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Mixed Results From Today’s Judiciary Committee Meeting

March 8, 2013 by

There is both good news and bad news from today’s Senate Judiciary Committee business meeting. The meeting agenda had votes on six nominees for US District Court judgeships and four gun control bills.

First, five out of the six the judicial nominees were passed out of committee on voice votes. However, Kenneth John Gonzales, the US Attorney for New Mexico and a nominee for a District Court judgeship, was held over. This would appear to mean that according to Committee Rules at least one member of the Judiciary Committee requested that the vote on Gonzales be held over until the next committee meeting. As I mentioned yesterday, Gonzales and his office have been pursuing a vendetta against the Reese family of Deming, New Mexico. Check out the Tea Party of Luna County for complete info on the prosecution of the Reeses.

Second, three of the four gun control bills were held over. The bad news is that Chairman Patrick Leahy’s S. 54 – Stop Illegal Trafficking in Firearms Act of 2013 made it out of the committee. It passed on a 11 to 7 vote. Sen. Chuck Grassley (R-IA) was the only Republican to vote for the bill.

Grassley did have an amendment to the bill that would require the Attorney General, Deputy Attorney General, or Assistant Attorney General for the Criminal Division to personally review and approve any “Fast and Furious” type of operation. This amendment was adopted unanimously.

The full results of the business meeting with links to the amendments is below:


The Senate Judiciary Committee held an executive business meeting to consider pending nominations and legislation on March 7, 2013. The Committee was not able to complete action on pending matters and the meeting recessed subject to the call of the Chair.

Agenda

I. Nominations

Sheri Polster Chappell, to be United States District Judge for the Middle District of Florida
Ordered Reported by Voice Vote

Kenneth John Gonzales, to be United States District Judge for the District of New Mexico
Held Over

Michael J. McShane, to be United States District Judge for the District of Oregon
Ordered Reported by Voice Vote

Nitza I. Quinones Alejandro, to be United States District Judge for the Eastern District of Pennsylvania
Ordered Reported by Voice Vote

Luis Felipe Restrepo, to be United States District Judge for the Eastern District of Pennsylvania
Ordered Reported by Voice Vote

Jeffrey L. Schmehl, to be United States District Judge for the Eastern District of Pennsylvania
Ordered Reported by Voice Vote

II. Legislation

S.150, Assault Weapons Ban of 2013 (Feinstein)
Held Over

Amendment ALB13141(Grassley)
As Amended, Adopted by Voice Vote

Second Degree Amendment ALB13196 (Coons)
Adopted by Unanimous Consent

Amendment ALB13190 (Grassley)
Failed by Roll Call Vote, 9-9

Amendment OLL13115 (Cornyn)
Failed by Roll Call Vote, 9-9

S.54, Stop Illegal Trafficking in Firearms Act of 2013 (Leahy)
Ordered Reported by Roll Call Vote, 11-7

Substitute Amendment HEN13250 (Leahy)
Adopted by Unanimous Consent

Amendment ALB13193 (Grassley)
Adopted by Unanimous Consent

S.374, Protecting Responsible Gun Sellers Act of 2013 (Schumer)
Held Over

S.146, School Safety Enhancements Act of 2013 (Boxer)
Held Over

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Free Webinar On Gun Control And The Second Amendment

March 7, 2013 by

Professor Jeffrey Welty of the UNC School of Government will be leading a free webinar on Wednesday, March 20th. The webinar is scheduled to run for 75 minutes. The topics include:

  • The Second Amendment
  • The right to bear arms under North Carolina’s state constitution
  • Existing federal and state gun laws
  • Proposed gun regulations, including the proposed federal assault weapons ban
  • City and county power to regulate guns
  • Whether state law enforcement officers may or must enforce federal gun laws
  • The legal status of “open carry”

 This webinar is open to the public. They have also applied to the State Bar for CLE credits for this webinar.

Equipment requirements are a high-speed Internet connection and Adobe Flash Media Player.

Pre-registration is required. Go here to pre-register. Instructions on how to register are here.

This sounds like a great opportunity if you can make it. I plan to clear my schedule so as to participate in it.

UPDATE: I just signed up. It takes about 3-5 minutes as you have to register for their store and set up a user ID/password. It was not a big deal.

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Open Carry In North Carolina

March 7, 2013 by 1 Comment

The topic of open carry made the Off The Record blog of the Greensboro News-Record on Tuesday. It isn’t often that you see a reasonable discussion of open carry in a newspaper without it being connected to some crime. In this case, it was an article by Jeff Welty of UNC’s School of Government in their North Carolina Criminal Law blog that led to the posting about open carry.

As to the question of whether you as a law-abiding citizen can legally carry openly in North Carolina, the answer is generally yes. That is thanks to a 1921 case decided by the North Carolina Supreme Court.

From the Off The Record blog:

The case originated in Kernersville, where its central figure, Orah W. Kerner, was a member of the namesake family. He was “president of American Hosiery Mills, senior member of the firm of Kerner Brothers, and a large tobacco planter,” according to his 1923 obituary.

According to the Supreme Court, Kerner “was walking along the streets of the town of Kernersville in Forsyth County carrying some packages, when he was accosted, for the purpose of engaging him in a fight, by one Matthews; that in the course of this altercation he set down his packages and went to his place of business and there procured a pistol, which he brought back with him unconcealed to the scene of the altercation. Sec. 3, ch. 317, Public-Local Laws 1919, prohibits the carrying of such weapons off his own premises by any one in Forsyth without a permit, even though it was not concealed. The court, being of the opinion that this statute was in conflict with the constitutional provision that “the right to bear arms shall not be infringed,” directed a verdict of not guilty, and the State appealed.”

The Supreme Court affirmed the trial court verdict, noting the distinction between the right to keep and bear arms and the right to carry concealed weapons.

“The former is a sacred right, based upon the experience of the ages in order that the people may be accustomed to bear arms and ready to use them for the protection of their liberties or their country when occasion serves. The provision against carrying them concealed was to prevent assassinations or advantages taken by the lawless, i. e., against the abuse of the privilege.”

Open carry in North Carolina is not without constraints. One of the more common issues that comes up is what is called “going armed to the terror of the people.” Professor Welty notes that it comes up when someone is intentionally trying to scare or terrorize others but “a person doesn’t commit this offense by carrying a weapon in a
non-threatening and orderly manner, such as going about one’s daily
business with a handgun in a hip holster.”

Professor Welty says that local government can regulate, to some extent, open carry in North Carolina. For example, they could prohibit open carry in public buildings and their parking lots. However, while NC GS 160A-189 and NC GS 153A-129 allows cities and counties to regulate the display of firearms on sidewalks, streets, and other public property, Professor Welty does not believe that they could use these laws to ban open carry.

But reading the power to “regulate the display of firearms” to allow
local governments to ban open carry in public is probably wrong for two
reasons. First, it would be unconstitutional under Kerner. As the
court noted, “[t]o exclude all pistols, however, is not a regulation,
but a prohibition, of arms which come under the designation of ‘arms’
which the people are entitled to bear.” Second, such a reading ignores
the fact that both statutes allow local governments to “regulate . . . or prohibit”
the discharge of firearms, but only to “regulate” the display of
firearms. The lack of parallelism appears to be intentional. Therefore,
although the precise extent of local government authority isn’t clear,
and a variety of local regulations might be permissible, a complete ban
on public open carry does not appear to be.

Given that Professor Welty works for the School of Government which has as part of its mission to educate local governments on the law, there is hope that this information will filter down to local law enforcement agencies.

H/T Ken Soderstrom

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The Next Round Of Federal Firearms Legislation

March 7, 2013 by

Since my last update, there have been three House bills dealing with firearms-related topics introduced and two in the Senate. The House bills probably aren’t going anywhere but the two Senate bills have the ability to gain some traction especially since they are the product of negotiations between Democrats and Republicans.

House

HR 848 – Rep. Mike Thompson (D-CA)
Armed Prohibited Persons Act of 2013
To direct the Attorney General to make grants to States to develop systems to retrieve firearms from armed prohibited persons.
Co-Sponsors:

Rep. Speier, Jackie (D-CA)
Referred to the House Judiciary Committee

HR 955 – Rep. Bobby Rush (D-IL)
Hadiya Pendleton and Nyasia Pryear-Yard Stop Illegal Trafficking in Firearms Act of 2013
To increase public safety by punishing and deterring firearms trafficking.
Co-Sponsors:
Rep. Kaptur, Marcy (D-OH)
Referred to the House Judiciary Committee

HR 965 – Rep. Luis Gutierrez (D-IL)
To prohibit the possession or transfer of junk guns, also known as Saturday Night Specials.
Referred to the House Judiciary Committee

Senate

S. 443 – Sen. Patrick Leahy (D-VT)
Stop Illegal Trafficking in Firearms Act of 2013
To increase public safety by punishing and deterring firearms trafficking.
Co-Sponsors:
Sen Blumenthal, Richard [D-CT]
Sen Collins, Susan M. [R-ME]
Sen Durbin, Richard [D-IL]
Sen Franken, Al [D-MN]
Sen Gillibrand, Kirsten E. [D-NY]
Sen King, Angus S. Jr. [I-ME]
Sen Kirk, Mark Steven [R-IL]
Sen Klobuchar, Amy [D-MN]
Referred to the Senate Judiciary Committee

S. 480 – Sen. Lindsey Graham (R-SC)
The NICS Reporting Improvement Act of 2013
A bill to improve the effectiveness of the National Instant Criminal Background Check System by clarifying reporting requirements related to adjudications of mental incompetency, and for other purposes.
Co-Sponsors:
Sen Begich, Mark [D-AK]
Sen Flake, Jeff [R-AZ]
Sen Heller, Dean [R-NV]
Sen Pryor, Mark L. [D-AR]
Referred to the Senate Judiciary Committee
(The text of this bill is not yet available. However, from the press release put out by Sen. Graham, it seeks to clarify when a person loses his or her right to firearms due to mental illness. They do stress it has to come from an adjudicative body.)

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S. 374 – Protecting Responsible Gun Sellers Act of 2013

March 7, 2013 by 1 Comment

Sen. Charles Schumer (D-NY) introduced S. 374 – the Protecting Responsible Gun Sellers Act of 2013- on February 25th and it will be voted for in the Senate Judiciary Committee today. The text of this Orwellian sounding bill is below. If you read it closely, it seems to be missing something. That something is the action component to go with the so-called findings part of the bill.


S 374 IS

113th CONGRESS

1st Session

S. 374

To ensure that all individuals who should be prohibited from buying a firearm are listed in the national instant criminal background check system and require a background check for every firearm sale.

IN THE SENATE OF THE UNITED STATES

February 25, 2013

Mr. SCHUMER introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To ensure that all individuals who should be prohibited from buying a firearm are listed in the national instant criminal background check system and require a background check for every firearm sale.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Protecting Responsible Gun Sellers Act of 2013′.

SEC. 2. FINDINGS.

Congress makes the following findings:

(1) Congress supports and respects the right to bear arms found in the Second Amendment to the Constitution of the United States.

(2) Congress supports the existing prohibition on a national firearms registry.

(3) There are deficits in the background check system in effect before the date of enactment of this Act and the Department of Justice should make it a top priority to work with States to swiftly input missing records, including mental health records.

(4) If the citizens of the United States agree that in order to promote safe and responsible gun ownership criminals and the mentally ill should be prohibited from possessing firearms, it should be incumbent upon all citizens to ensure weapons are not being transferred to such people.

END

The introduction to the bill calls its a bill to require all prohibited persons be listed in the NICS database AND to require a background check for all gun sales. So the question remains where is the action component of the bill. The
bill as written reads like a Senate Resolution minus a whole bunch of
whereas’s.

The devil is always in the details and I expect the devil to be at play with this bill. What will the Democrats on the Senate Judiciary Committee add to this bill today and what will be added as amendments on the floor of the Senate assuming that this bill, as expected, moves out of committee?

In my opinion, the innocuous sounding text of the bill plus the missing action component makes this a dangerous bill. I see it is a vehicle sponsored by one of the most notorious gun prohibitionists in the Congress to saddle us with gun control that we don’t want or need.

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GOA On The Senate Judiciary Bill Mark-Ups

March 7, 2013 by

The Gun Owners of America have sent out a notice about the bills that will be voted on in the Senate Judiciary Committee tomorrow. While they mention S. 443, I’m wondering if this bill will be substituted for the S. 54 which is on the agenda. I don’t always agree with GOA but I think are correct about S. 443 being more dangerous than S. 150 which doesn’t have a snowball’s chance in hell of being enacted.


Senate “Deal” Would Impose
Even More Gun Bans
Gifts, gun raffles and multiple sales of guns would be effectively banned

Thursday, the Senate Judiciary Committee will mark up four bills arising out of the Newtown tragedy:

* The Feinstein bill — which would ban millions of shotguns, rifles, handguns and magazines that Americans can legally own — but which will probably die on the Senate floor.

* The universal gun registry — which may also die on the Senate floor — unless a last-minute deal with Sen. Tom Coburn brings it to life.

* Legislation by Barbara Boxer, which throws away $100,000,000 on school safety studies, but doesn’t immediately mention guns.

* And, currently the biggest danger, the Leahy-Gillibrand-Kirk bill, which has ominously been labeled a “gun trafficking” bill.

In regard to this latter piece of legislation (S. 443), the bill is being sold inside the Beltway as a bipartisan “compromise” because anti-gun Senator Mark Kirk (R-IL) is a cosponsor of it.

But S. 443 would dramatically threaten to put gun owners in jail with horrendously long sentences for the most minor of infractions.

Essentially, the bill would impose a 15-year prison sentence for “negligent multiple sales by a dealer,” “negligent gifting” or “negligent raffling.”

Increasingly, there are more and more individuals who are “prohibited persons” for non-violent reasons — for instance, they smoke marijuana or they are military veterans suffering from maladies such as PTSD.

But if S. 443 is passed, any person who sells to such prohibited persons two or more firearms … or gives them a firearm as a gift … or raffles a firearm (where they are the recipient) … does so only at the considerable risk of spending 15 years in a federal penitentiary.

You don’t need to know the person is a prohibited person under either example. Nor does the recipient need to know they’re a prohibited person.

In fact, you don’t need to do anything more than plan (“conspire”) to transfer the gun. In addition, the recipient doesn’t need to be on the NICS list to be a prohibited person.

Not only that, under section 4 of the bill, if you even “intend” to sell a firearm to a person who turns out to be a marijuana smoker — or one of the prohibited military veterans suffering from PTSD — you become a prohibited person yourself.

Go here to read the entire analysis of S. 443.

When all is said and done, this bipartisan “compromise” is as bad as the Feinstein gun ban (S. 150).

ACTION: Click here to demand that your U.S. Senators oppose the Leahy-Gillibrand-Kirk bill (S. 443).

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Tough Tiddlywinks, Mr. President

March 7, 2013 by 2 Comments

After the Senate Republicans successfully filibustered Caitlin Halligan’s nomination for the Court of Appeals for the DC Circuit, you knew that Obama would release some self-serving accusing the Republicans of obstruction. Unlike in many other things the White House did not disappoint us here. Their statement is below:


Statement by the President on Republican Filibuster of Caitlin Halligan

I am deeply disappointed that despite support from a majority of the United States Senate, a minority of Senators continues to block the nomination of Caitlin Halligan to serve on the U.S. Court of Appeals for the District of Columbia Circuit. Nearly two and a half years after being nominated, Ms. Halligan continues to wait for a simple up-or-down vote. In the past, filibusters of judicial nominations required “extraordinary circumstances,” and a Republican Senator who was part of this agreement articulated that only an ethics or qualification issue – not ideology – would qualify. Ms. Halligan has always practiced law with the highest ethical ideals, and her qualifications are beyond question. Furthermore, her career in public service and as a law enforcement lawyer, serving the citizens of New York, is well within the mainstream.

Today’s vote continues the Republican pattern of obstruction. My judicial nominees wait more than three times as long on the Senate floor to receive a vote than my predecessor’s nominees. The effects of this obstruction take the heaviest toll on the D.C. Circuit, considered the Nation’s second-highest court, which now has only seven active judges and four vacancies. Until last month, for more than forty years, the court has always had at least eight active judges and as many as twelve. A majority of the Senate agrees that Ms. Halligan is exactly the kind of person who should serve on this court, and I urge Senate Republicans to allow the Senate to express its will and to confirm Ms. Halligan without further delay.

Liberal and progressive also had to jump in and express their displeasure according to BLT: The Blog of the Legal Times. Of course these are the same groups that pushed for filibusters of Republican court nominees when the Republicans held the Senate majority.

Washington’s progressive court-watching groups decried the block of what they call a highly qualified nominee for a 11-member court that has four vacancies. Alliance For Justice President Nan Aron said in a statement “urging Republican senators to rise above partisanship is like urging three-pack-a-day smokers to ‘just say no’ to tobacco.”


“The vote today also makes clear that the recent agreement to ‘reform’ Senate rules really was no agreement at all, but rather a blank check for continued obstruction,” Aron said. “We believe the Senate majority needs to reconsider the terms of this agreement, and revisit serious rules reform.”


The People For the American Way (sic) said it was a political strategy to keep Republican-appointed judges dominating the court.


“Let’s call the filibuster of Halligan what it is: a politically motivated attempt to keep President Obama’s nominee off the second highest court in the country,” PFAW Vice President Marge Baker. “The court continues to be dominated by far-right Republican-appointed judges who have pushed an extreme right-wing agenda on issues including environmental protection, workers’ rights and public health. This is not a coincidence.”

What a bunch of whiners. I wouldn’t be surprised to see Obama do a recess appointment of Halligan sometime in the future.

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Senate Judiciary Committee Votes On Gun Control Tomorrow

March 7, 2013 by



The Senate Judiciary Committee will have an executive business meeting tomorrow morning at 10am. There are a number of items that should be of concern to those concerned with the Second Amendment and gun rights.

The first item on the agenda is a confirmation vote on six nominees for US District judgeships. Of particular concern is Kenneth John Gonzales to be a District Court judge for the District of New Mexico. Gonzales is currently the US Attorney for New Mexico and the man behind the egregious prosecution of the Reese family of Deming, NM on charges of arms smuggling. They have already been found not guilty on 24 out of 28 charges and are seeking dismissal of the other four charges due to prosecutorial misconduct.

National Gun Rights Examiner David Codrea and the Firearms Coalition’s Jeff Knox have been doing yeoman’s work in covering this case since the beginning. Here are a couple of their latest reports. The Tea Party of Luna County (NM) has been on the case since the beginning as well.

Based on the prosecution’s behavior under Gonzales, I and many others feel he is unfit to sit on the bench. David Codrea is urging that people contact Sen. Chuck Grassley R-IA) to make their opposition known.

The other major items on the Judiciary Committee’s agenda are votes on four gun control measures.

II. Bills

S.150, Assault Weapons Ban of 2013 (Feinstein)

S.54, Stop Illegal Trafficking in Firearms Act of 2013 (Leahy)

S.374, Protecting Responsible Gun Sellers Act of 2013 (Schumer)

S.146, School Safety Enhancements Act of 2013 (Boxer)

Given the composition of the committee, I really have no expectation that they won’t pass these measures. The only question is whether any Republican votes for any of these measures.  I would hope not but there is no guarantees. Sebastian has a good post up today about the risk of letting gun controllers have any victory. In my opinion, a party line vote is about the best we can expect in the Senate Judiciary Committee and would count as a win.

It’s time to tell the Republicans on the committee that we expect them to hold the line. Contact info is available here.

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Vote On Anti-Gun Nominee Caitlin Halligan (Updated)

March 6, 2013 by 6 Comments

Just like a bad meal keeps repeating on you, so too does Obama’s nomination of Caitlin Halligan to be a judge on US Court of Appeals for the DC Circuit.

Majority Leader Harry Reid (D-NV) has scheduled a vote tomorrow morning to invoke cloture on the Republican filibuster of Halligan. From the Blog of the Legal Times:

Senate Majority Leader Harry Reid (D-Nev.) filed paperwork late Monday to try to defeat a Republican filibuster of Halligan, currently the general counsel of the Manhattan district attorney’s office. Reid will need help from some Republicans, since it takes 60 votes to break the block. If the filibuster is ended, Halligan then would need only 50 votes to be confirmed.

Reid spoke on the Senate floor Tuesday morning, using the 1991 confirmation vote of U.S. Supreme Court Justice Clarence Thomas as an example of why Halligan and every judicial nominee should get a confirmation vote without having to overcome a filibuster.

“I was very troubled with Justice Thomas, who was then a circuit court judge, and a decision had to be made by me and many others: should we allow Justice Thomas an up-or-down vote,” Reid said. “The decision was made, yes, he should.”

“He barely made it,” Reid said of the 52-48 vote. “It would have been so easy to stop that nomination, but it would have been the wrong thing to do. As bad as I feel he has been as a jurist, that doesn’t matter.”

The Senate refused to invoke cloture on her nomination in 2011. She was renominated again in 2012 but time ran out on her nomination then. President Obama again renominated Halligan for the third time in January of this year.

Halligan has been opposed by every gun rights organization due to her actions against gun rights while serving as the Solicitor General of New York under then NY Attorney General Eliot Spitzer. She currently the General Counsel in the New York County District Attorney’s Office serving anti-knife DA Cyrus Vance, Jr.

I would urge you to either email or call your two senators ASAP asking them to oppose Halligan’s nomination.

UPDATE: The Washington Post reports that Halligan was again successfully filibustered. The motion to invoke cloture on her nomination only received 51 votes or 9 short of what was needed. Sen. Lisa Murkowski (R-AK) was the only Republican to vote for cloture.

The Library of Congress’ Thomas page is not showing the results of the roll call vote yet. If Halligan only got 51 votes, this would seem to indicate that some Democrats either didn’t vote or voted against her.

UPDATE II: The roll call vote stats have been posted on the cloture motion.  While no Democrats voted against the cloture motion, it appears that eight senators – four Republicans and four Democrats – did not vote.

YEAs —51
Baldwin (D-WI)
Baucus (D-MT)
Begich (D-AK)
Bennet (D-CO)
Blumenthal (D-CT)
Boxer (D-CA)
Brown (D-OH)
Cantwell (D-WA)
Cardin (D-MD)
Carper (D-DE)
Casey (D-PA)
Coons (D-DE)
Cowan (D-MA)
Donnelly (D-IN)
Durbin (D-IL)
Feinstein (D-CA)
Franken (D-MN)		 Gillibrand (D-NY)
Hagan (D-NC)
Harkin (D-IA)
Heinrich (D-NM)
Heitkamp (D-ND)
Hirono (D-HI)
Kaine (D-VA)
King (I-ME)
Klobuchar (D-MN)
Landrieu (D-LA)
Leahy (D-VT)
Levin (D-MI)
Manchin (D-WV)
McCaskill (D-MO)
Menendez (D-NJ)
Merkley (D-OR)
Murkowski (R-AK) 		Murphy (D-CT)
Murray (D-WA)
Nelson (D-FL)
Pryor (D-AR)
Reed (D-RI)
Rockefeller (D-WV)
Sanders (I-VT)
Schatz (D-HI)
Schumer (D-NY)
Shaheen (D-NH)
Stabenow (D-MI)
Tester (D-MT)
Udall (D-NM)
Warner (D-VA)
Warren (D-MA)
Whitehouse (D-RI)
Wyden (D-OR)
NAYs —41
Alexander (R-TN)
Ayotte (R-NH)
Barrasso (R-WY)
Blunt (R-MO)
Boozman (R-AR)
Burr (R-NC)
Chambliss (R-GA)
Coats (R-IN)
Coburn (R-OK)
Cochran (R-MS)
Collins (R-ME)
Corker (R-TN)
Cornyn (R-TX)
Cruz (R-TX)		 Enzi (R-WY)
Fischer (R-NE)
Flake (R-AZ)
Graham (R-SC)
Grassley (R-IA)
Heller (R-NV)
Hoeven (R-ND)
Inhofe (R-OK)
Isakson (R-GA)
Johnson (R-WI)
Kirk (R-IL)
Lee (R-UT)
McCain (R-AZ)
McConnell (R-KY) 		Moran (R-KS)
Paul (R-KY)
Portman (R-OH)
Reid (D-NV)
Risch (R-ID)
Roberts (R-KS)
Rubio (R-FL)
Scott (R-SC)
Sessions (R-AL)
Shelby (R-AL)
Thune (R-SD)
Toomey (R-PA)
Wicker (R-MS)
Not Voting –
8
Crapo (R-ID)
Hatch (R-UT)
Johanns (R-NE)
Udall (D-CO)		 Johnson (D-SD)
Lautenberg (D-NJ)
Mikulski (D-MD)
Vitter (R-LA)