Month: July 2010

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Guns in Video Games

July 21, 2010 by

The Firearm Blog has a guest post by Pascal Eggert on designing guns for video games.

Since the Complementary Spouse’s nephews play Halo 3 professionally on Teams Instinct and Status Quo, I found this quite interesting. Having watched their tournaments both in person and on-line, I always thought the guns were almost right. However, for a gunny, almost right just grates.

Pascal addresses that here:

I think about stuff like this a lot and have come to the conclusion that the one thing that is even worse than wrong visual representations of real guns in games are horribly designed fictional guns. In this area a lack of understanding of firearms gets easily multiplied and if you thought an AK47 is a magic device in the first place your sci-fi AK7000 will be a magic device so random it will not convince even the stupidest player. Yes, in the realm of fantasy you can invent whatever you want and find an explanation for any technical problem, but there are still the laws of physics that should be considered. Unfortunately most sci-fi guns are so bad that people just stopped caring about them with no questions asked

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The AHSA and Bloggers

July 21, 2010 by

AHSA, the American Hunters and Shooters Association, the anti-gun front group was called to task by the bloggers on the Days of our Trailers blog. AHSA was asked if they were such a “pro-gun” group why didn’t they submit an amicus brief in the McDonald case.

Their response was that they filed one but it was not “publically published” and would be released “post decision”. Obviously, they were using the Dean Wormer (of Animal House fame) “double secret” type of brief.

When called on this, they got testy.

Good sir, please refrain from writing me or I will report you to the local authorities for harassment.

It reminds one of those e-mail letters you get on behalf of deposed Nigerian rulers. That really isn’t fair to the Nigerian scammers as all they are after is your money whereas the AHSA seeks to give cover to politicians who would violate your Constitutional rights.

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Bushmaster President to Retire

July 21, 2010 by

From Bushmaster:

Bushmaster Firearms® Announces the Retirement of the Company President

Windham, ME –After over a 40 year career in business and manufacturing, John A. DeSantis, President of Bushmaster Firearms has decided to retire and to pursue other challenges and another exciting phase of his life. John has been a tireless driving force behind the success of Bushmaster. He surrounded himself with a great team of professionals and together they have grown Bushmaster into the largest commercial AR platform rifle manufacturer in the world. John commented that “Bushmaster will always have a warm place in my heart and I have enjoyed my experience with the Freedom Group of Companies. I look forward to spending more time with my family.”

“On a personal note, John is truly a world-class gentlemen and I am proud to call him a personal friend. John has been an invaluable asset to our company and me personally. His wisdom and his high regard for our product, combined with his deep respect for the rich traditions of our industry, have been a great source of counsel and advice to me.” said Ted Torbeck, CEO, Freedom Group, Inc.

John’s retirement will be official on July 31, 2010, but he has graciously agreed to stay on and oversee the day to day business of Bushmaster until his replacement can be found. He also will continue on a consulting arrangement to help grow our modern sporting rifle business.

About Bushmaster Firearms International, LLC

Bushmaster Firearms International, LLC (BFI) is the leading supplier of AR15/M16 type rifles in the United States for Law Enforcement, security and private consumer use. Headquartered in Windham, Maine, with additional facilities in Dallas, Georgia and Lake Havasu, Arizona, BFI supplies aluminum and advanced carbon fiber-based rifle platforms in calibers ranging from 5.56mm/223 to 50BMG. These and associated accessories manufactured by BFI meet the tactical rifle needs of US customers as well as Military, Law Enforcement and Security clients from over 50 countries worldwide. Visit our web site at www.bushmaster.com.

I wonder if this has anything to do with the plans for the Freedom Group to go public.

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Heritage Foundation on the UN’s “Programme of Action” on Small Arms

July 21, 2010 by

Theodore Bromund and David Kopel have just released a research report for the Heritage Foundation entitled “As the U.N.’s Arms Trade Treaty Process Begins, U.N.’s “Programme of Action” on Small Arms Shows Its Dangers”.

It is a short report and well worth a read to get an idea of what the UN and the Obama Administration is up to.

As the Bromund and Kopel note:

The PoA is becoming a dangerous failure. Like many international initiatives for conventional arms control, it is being hijacked by true believers who refuse to distinguish between arms used for aggression and arms used for legitimate self-defense. As a result, the PoA’s modest potential for good is disappearing. This is a warning sign that the U.S. should heed as the Arms Trade Treaty process begins.

As long as the PoA ignores the fact that many U.N. member states approve of the transfers they pretend to condemn, the PoA—and especially a treaty based on it—will be counterproductive: It will limit the defensive arms of the law-abiding, while law-breaking states continue to supply arms to their proxies.

The U.S. should resist all efforts to turn the PoA into a treaty. If preparations for the 2012 meeting show that these efforts are continuing or that the PoA will persist in wasting time on broad, controversial, or unrelated items, the U.S. should withdraw from the PoA process. If it participates, it should keep the focus on using voluntary cooperation between law-abiding democracies to facilitate control of illicit arms trafficking.

There is also a discussion of this paper on the Volokh Conspiracy.

UPDATE: I just received this from the Second Amendment Foundation who as a NGO (Non-Government Organization) is represented at the Arms Trade Treaty talks.

SAF REPORT LIVE FROM THE UN

The Following is an up to the minute report from Julianne Versnel, Director of Operations for the Second Amendment Foundation who is representing SAF as an NGO delegate at the United Nations ATT meeting.

The Arms Trade Treaty Prep Committee began on July 12, 2010 and will conclude on July 23, 2010. Ambassador Roberto Garcia Moritan of Argentina is the Chair. On Friday, July 19, Non-Governmental Organization (NGO) representatives were told that the majority of the meetings would be closed to them. The critical discussions on the scope of the treaty will have no input from any non-governmental entity. Scope is critical in the Arms Trade Treaty process. In North America, some Pan Asian Countries and in some other parts of the world, the arms that we expect to have covered in this treaty are nuclear weapons. In much of Europe and most all of Africa, the delegates anticipate that the ATT will cover rifles, shotguns, handguns and ammunition as well.

There appears little doubt that some sort of treaty will be adopted by 2014, if not by 2012. It is anticipated that the final treaty will attempt to register all firearms, require micro-stamping, destruction of surplus ammunition on a very set schedule, registration of all firearms and restriction on any transfer of arms including between private individuals and many other restrictions. If the United States is a signatory and this is ratified by the U.S. Senate, this UN treaty would be the law. On October 30, 2009, UN members voted in favor of an ATT. The United States voted in favor of an ATT.

The UN has an aggressive schedule of meetings planned to push for these restrictions and we will be there representing you in every way we can. We will be at the CTOP/COP meeting in Vienna the week of October 18 and a General Assembly meeting at the end of October. In January, the five permanent members of the Security Council will meet and this is on the agenda. There will be another ATT Preparatory meeting at the end of February in New York. The regional UNIDIR meeting sponsored by the EU will start in March. We will come full circle with the Programme of Action Experts Meeting in May 2011 and the July 17-21 ATT Preparatory meeting that is expected to offer the final draft to the treaty.

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Disarming the Elderly

July 20, 2010 by

David Codrea has written an excellent article on the elderly and firearms in his Examiner Gun Rights column. The article was in reaction to a New York Times “health” article entitled “Guns in Frail Hands”.

Codrea speculates that with an aging population in the United States this may be next front for gun control advocates.

Which leads us to a ripe-for-exploiting “loophole” (that’s what the anti’s call anything impeding total control, don’t they?) of sorts:

“Families find little help in the law when trying to pry guns away from impaired family members.”

Except there really is no gap in law. It’s just that:

“The federal Brady Act bars gun sales to anyone adjudicated mentally “defective,” a legal process few children want to put parents through.”

It really does get down to taking responsibility for our elderly relatives and making the hard decisions. I know of what I speak. I buried my Mom two years ago after a four year stay in a nursing home with advanced dementia. There were hard decisions that needed to be made including the very first one about getting her into a nursing home – a place she didn’t want to be but she needed to be.

Codrea sums it up by saying:

We have an aging population. Many of us still have parents, others of us are starting to realize we ourselves aren’t getting any younger. The decisions we are or will be faced with aren’t easy ones. That means there is no one-size-fits all solution where we can just pass another “gun control” law and consider the problem solved.

We need to have this discussion in the gun community, to develop tools and resources to help us help ourselves and our loved ones.

Or we could just let government take over and make the best decisions for us.

He is absolutely correct. We need to have this conversation and we don’t need a one-size fits all sort of law imposed by our “betters” from on high.

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Outdoor Life’s Fifty Best Made Guns of All Time

July 20, 2010 by

Outdoor Life magazine has released what they consider the fifty best made guns of all time.

It is an interesting list but I do wonder how one gun made the list but not another. For example, they have the AK-47, the AR-15, and the M-14 but not the M-1 Garand. Given that the M-14 is derived from the Garand it is hard for me to understand how that is a better rifle than the Garand.

As to shotguns, they chose the Browning Citori and the Ruger Red Label but not the Browning Superposed. I think among shotgun lovers there is more love for the Superposed than either of the other two.

The list is what it is but I think many will disagree with it.

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Supplemental Briefing is Ordered in Nordyke Case

July 20, 2010 by

On Monday, the Ninth Circuit Court of Appeals ordered supplemental briefs from the attorneys for both sides in the Nordyke case. They also will accept amicus briefs in support of either party.

The parties were ordered to submit briefs of no longer than 15 pages addressing:

(1) the impact of McDonald v. City of Chicago, No. 08-1521, 2010 WL 2555188 (U.S. June 28, 2010), on the disposition of this case; and
(2) any other issue properly before this court, including the level of scrutiny that should be applied to the ordinance in question.

Eugene Volokh of the Volokh Conspiracy noted that:

The express mention of the level of scrutiny suggests that the panel might be willing to reconsider the issue. My guess is still that the panel will largely say what it said before, or perhaps reach much the same result but instead relying on cases such as Webster v. Reproductive Health Servs. (1989), which held that the right to abortion did not include the right to perform abortions in a state-owned hospital (even if the abortions imposed no extra cost on the hospital). But its most recent order makes that far more clear, and a victory for the gun show organizers more likely (though I think on balance still not very likely).

The Court denied the motion for a supplemental briefing by Nordyke as moot. I discussed that brief request here. Despite denying the motion, one must wonder if it spurred them to issue the order for a supplemental briefing.

You can read the full order below:

Nordyke v. King – Order for Supplemental Briefing

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A Reason Not to Slam the Door When Angry

July 20, 2010 by

The Volokh Conspiracy is reporting on a New Jersey case where an applicant was denied a license to keep a firearm in the home because “his ex-wife says he ‘became angry at times, slammed doors with force and caused damage,’ which made her fear him.” The applicant, it should be noted, had never been charged with either a misdemeanor or felony charge of domestic violence.

Read the whole discussion here. It makes for very interesting – though troubling – reading.

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Montana State Shooting Association v. Holder – Hearing

July 20, 2010 by

Oleg Volk’s The High Road board posted this email from Gary Marbut, the President of the Montana Shooting Sports Association. MSSA and Marbut had sued the Federal government over the Montana Firearm Freedom Act.

Sender: Gary Marbut-MSSA
Subject: Report – Oral argument; MSSA v Holder US Motion to Dismiss
Date: Thu, 15 Jul 2010 21:55:17 -0600
To:

Dear MSSA Friends,

Oral argument was held today on the U.S. Motion to Dismiss MSSA v. Holder, our lawsuit to validate the principles of the Montana Firearms Freedom Act.

The hearing took place in the U.S. Courthouse at the corner of Broadway and Pattee in Missoula, beginning at 9:00 AM, and finished shortly after 11:00 AM.

The U.S. moved to dismiss the lawsuit (standard, boilerplate move) based on standing, jurisdiction, and merit.

Concerning standing, the U.S. argues that I, as the sole individual plaintiff, don’t face imminent injury to allow me to obtain judicial relief because there is no certainty that the BATFE will arrest me and the U.S. will prosecute me if I forge ahead with plans to make MFFA items without federal permission (licensure).

About jurisdiction, the feds say the U.S. is sovereign and cannot be sued, except under the provisions of the Administrative Procedures Act which allows suit to clarify rights and responsibilities only after “final agency action.” The U.S. says that the BATFE letter to me advising me that I will be prosecuted if I make any MFFA items for resale is not final agency action, although the U.S. cannot say what other position the BATFE could take to grant me any relief beyond what it already has done (threaten me with prosecution if I make MFFA-protected items).

About merit, the U.S. says that precedent is against the MFFA concept, our side is bound to lose, so the court might as well just dismiss the lawsuit now.

In this hearing, the U.S. was represented by Jessica Leinwand, a young Department of Justice attorney from D.C. Jessica seemed bright, competent, well prepared, but only knowledgeable in a bookish way. That is, she seemed quick with and knowledgeable about case citations that supported her side of the argument, but she did not mount or support any philosophically-based arguments. Although Jessica’s arguments seemed to be competently mounted, they also seemed to lack any touch of passion or personal vestment. One may suppose it’s difficult to wax passionate about arguing the federal government position.

For a young attorney with limited experience to travel half way across the country to a strange place and stand in opposition to a half-dozen other experienced attorneys must be a nervous-making, intimidating experience. However nervous, Jessica did not let it show and did a good job of focusing on business at hand.

There were a whole string of attorneys representing our side of this contest. Lead attorney for Plaintiffs (MSSA, SAF, and me) was Quentin Rhoades, a partner with the Missoula firm of Sullivan, Tabaracci and Rhoades. Quentin has been lead counsel for Plaintiffs on this case since the inception, and has done other litigation for MSSA. Quentin was accompanied by ST&R attorney Rob Erickson, although Rob did not argue.

Plaintiffs had arranged in advance to give some of our argument time to two other attorneys representing amici parties to the lawsuit. One is Nick Dranias of the Goldwater Institute in Arizona. Montana federal court rules require that attorneys from out of state must associate with and be “sponsored by” a Montana attorney in order to appear in federal court in Montana. Nick was sponsored by attorney Tim Fox of Helena, recent candidate for Montana Attorney General.

The other amicus to whom Plaintiffs ceded some argument time was Virginian attorney Herb Titus, who represents Gun Owners of America and Gun Owners Foundation. Herb was sponsored in Montana by attorney Greg Jackson of Helena.

The Attorney General of Montana has intervened in this lawsuit to defend the constitutionality of a statute enacted by the Montana Legislature and was given oral argument time separate from that given to Plaintiffs and Defendant U.S. The Montana AG was represented by attorney Chris Tweeten from the Montana Department of Justice in Helena.

The AG was persuaded to cede some of his allocated oral argument time to Professor Jeff Renz of the U. of M. School of Law, who argued for another amicus group of Montana legislators.

Forward of the bar in the courtroom were the judge – Magistrate Judge Jeremiah Lynch, the court secretary, the judge’s two law clerks, Quentin, me, Jessica (and Jessica’s unnamed assistant), Tim, Nick, Greg, Herb, Chris and Jeff. There were about 40 people in the audience, including MSSA Board Member and State Representative Cary Smith from Billings, State Senator Jim Shockley from Victor, Idaho Representative Dick Harwood who sponsored the Idaho Firearms Freedom Act, a delegate from Congressman Denny Rehberg’s office and interesting others.

The order of presentation was this:

Magistrate Lynch introduced the case.

Quentin explained time ceded to Nick and Herb and introduced the Montana sponsors for each who introduced Nick and Herb to the court.

Chris introduced himself and introduced Jeff.

Then the hearing began.

Jessica went first for 35 minutes (all times approximate), and reserved 15 minutes for rebuttal at the end.

Quentin went next for 20 minutes, then Nick for 10 minutes, and Herb for another 10 minutes.

Following those, Chris argued for 15 minutes, and finally Jeff for 10 minutes.

Last, Jessica used her reserved 15 minutes for rebuttal/closing.

I will not attempt to cover all of the arguments made or questions asked by Magistrate Lynch. There was not a lot of new material that was not already in briefs provided by various parties, all of which is available from the FFA Website.

Although all attorneys involved (including Jessica) did a great job, Jeff carved out for himself the role of a cleanup batter. He used his final ten minutes primarily to address issues left in play by questions from Magistrate Lynch. In jumping into that cleanup role, I thought Jeff did an especially helpful job.

I have asked ALL others present (including audience members) to offer personal comment about the hearing today, and I will post those comments Online when available and send you a link. This location will also offer digital pics of all the folks involved (outside the Courthouse).

I will say that I thought we had a powerful presentation by those on our side (i.e., everyone but Jessica). Our net argument was that the lawsuit should not be dismissed, but should go to trial for development of relevant facts. There are far too many legal issues and subtleties at work to attempt to brief you on all of them here. However, if an entirely neutral judge were presented with all the briefs submitted and arguments heard today, I believe he’d let the matter go to trial. Of course, I’m not prejudiced.

Whether or not that will actually happen remains to be seen. Quentin thinks we may have a decision within two weeks, but I don’t think anyone really knows for sure.

No matter, the game is now engaged – we are on the field. We are in play with MSSA v. Holder and at the wave front of a tsunami of interest in states rights sweeping the U.S.

Best wishes,

Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
author, Gun Laws of Montana
http://www.mtpublish.com

Another commenter, who goes by Proficient Rifleman, was in the courtroom as an observer and had this to say:

I was in the courtroom and can tell you that Quintin Rhoades did a very good job in his oral arguments. He presented the case that Mr. Gary Marbut and the Montana Shooting Sports Association are suffering harm by NOT being able to produce firearms under the MFFA, due to legitimate threat of prosecution by the Federal Government.

The attorney for the Goldwater Institute did a very good job also, as did the attorney for Gun Owners of America and Gun Owners Foundation. A representative for the Montana Attorney General’s Office also made a brief statement on behalf of Montana and the MFFA.

The Federal Government’s attorney made the case that Marbut and MSSA had no standing, since he has not produced a single firearm, has not lost any business from his non-production, and currently is not being prosecuted for violating the Gun Control Act. The Government also argued that Federal regulatory authority extends to purely intra-state activities pretty much anytime congress decides it should.

Marbut’s argument, and that of all the amici, though coming from slightly different directions, was that the threat of prosecution was enough to chill commerce. That the Federal Government does have the authority to regulate interstate commerce, but not intra-state (limited by the 10th amendment), and that various precedents may not apply since McDonald was decided.

Overall it was a good way to spend the morning.

Oral argument transcripts will be available soon.

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Shall Not Be Infringed

July 20, 2010 by

Professor Eugene Volokh of the Volokh Conspiracy blog, in response to a reader who says “The standard of review should be ‘SHALL NOT BE INFRINGED’”, has an interesting discussion on what the courts have said constitutes “infringement” as opposed to “reasonable regulation.”

Historically, the answer courts have generally given is that “reasonable regulations” of the right to bear arms aren’t infringements, while “prohibitions” are infringements. That of course just pushes the problem back to the question of what’s a reasonable regulation and what’s a prohibition (or an unreasonable regulation); and I think the courts have sometimes found gun restrictions to be “reasonable regulations” when they should have struck down the restrictions as excessively burdening — and therefore infringing — the right.

The question came up with regard to the Nordyke case. Is the government controlling access to government property an infringement or a reasonable regulation? Volokh thinks most courts will tend to say that the government can restrict access to government property and will classify it a reasonable regulation.

In general, with regard to gun rights, Volokh says:

But in any event, it seems unlikely that courts will take an absolutist view towards the right to bear arms, to the point that any regulation of any possession of any arms in any place will be seen as an “infringement.”

He ends by pointing readers to a 2009 article he wrote on the Second Amendment for the UCLA Law Review. The article is comprehensive (107 pages!).

I would also suggest reading the comments in the blog post as you have comments from Seond Amendment scholars such as Dave Hardy and David Young.