Second Amendment

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Even In New Jersey The Second Amendment Applies

June 27, 2012 by 5 Comments

On Friday, the Appellate Division of the Superior Court in New Jersey overturned the trial court in a case involving the denial of a firearms permit and ordered the return of Justin Blasko’s firearms absent any new disqualifying events. They made their decision on Second Amendment grounds.

Mr Blasko’s troubles started when his apartment’s building superintendent entered to fix his air conditioner and saw “assault weapons” along with other stuff including a four foot alligator. The super called police and they entered the apartment, seized his firearms, and issued him a summons for the alligator, a snake, and a leg-hold trap. They also filed a complaint that he had an illegal assault weapon.

Blasko entered a Pre-Trial Intervention program and the charges were eventually all dismissed. Moreover, the state later acknowledged that the alleged “assault weapons” were not in fact assault weapons as covered by NJ law. Following the dismissal of the charges, Blasko requested his firearms back.

The Superior Court in Passaic County denied Blasko’s request and ordered him to surrender his Firearms Purchaser Identification Card. They also permitted the State of New Jersey to sell his seized firearms and ammunition. The trial judge said that because Blasko’s firearms were “in plain view, accessible to a third party” his conduct was contrary to the public health, safety, and welfare which is a disqualifying factor for gun ownership in NJ. It should be noted that Mr. Blasko’s apartment was in a building that had locked access and that only the super had a key with which to enter his apartment (with prior notice and permission).

[T]he police report shows that Blasko kept his firearms in an extremely negligent and unsafe manner because he kept dozens of unsecured firearms and abundant ammunition in plain view in his apartment. . . . [He] chose to store these items in this manner knowing that his apartment was never truly “locked” since the building superintendent had a master key that he was permitted to use (or give to a maintenance worker to use) at any time even if [he] was not home. [He] in fact signed an agreement which permitted such access.

The Appellate Division examined all the instances that allowed for the forfeiture of firearms in NJ based upon negligent conduct. They found that Mr. Blasko’s past behavior and conduct did not rise to the level of negligence as needed by the law to seize his firearms.

The facts at hand present none of the circumstances found in the prior authorities to result in disqualification under N.J.S.A. 2C:58-3c(5). No weapon was discharged as found in Cunningham; no possession of narcotics occurred as cited in Sbitani; no domestic violence, drunkenness, or criminal conduct while intoxicated (assault, hit and run, and DWI) existed as relied upon in Freysinger, or a disregard of the gun laws as found in Osworth. Here, after eliminating the erroneous finding that Blasko possessed an assault rifle, the remaining facts 13 A-3848-10T2 underpinning the trial judge’s conclusion Blasko was disqualified under N.J.S.A. 2C:58-3c(5) were that he owned a significant arsenal of weapons, which were strewn haphazardly in his small studio apartment.

The court then examined whether New Jersey law required Mr. Blasko to keep his firearms locked up in a safe or with other devices such as a trigger lock. More importantly, they examined this in the context of the US Supreme Court’s rulings in Heller and McDonald. They concluded safe storage laws did not apply to Mr. Blasko as he was neither a commercial enterprise nor did he have minor children. They also concluded that based upon the Heller decision he was allowed to have his firearms accessible.

Despite a preference for the safe storage of weapons with safety locks, we conclude a law abiding adult, living alone without children, who openly leaves weapons in a locked apartment, insufficiently supports a finding of conduct contrary to the interest of the public health, safety or welfare pursuant to N.J.S.A. 2C:58-3c(5). See Heller, supra, 554 U.S. at 635, 128 S. Ct. at 2822, 171 L. Ed. 2d at 683 (holding “the District’s ban on handgun possession in the home violates the Second Amendment.

Mr. Blasko’s attorney was well-known gun law attorney Evan Nappen. More on the case can be found here. Nappen notes that this is the first time a higher court in New Jersey expressely applied the Second Amendment to a gun seizure case. This is definitely a win for gun rights in New Jersey and it was made possible by the careful building of Second Amendment case law by Alan Gura and others.

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North Carolina Will Not Appeal Bateman Ruling

May 8, 2012 by

The state of North Carolina will not be appealing their loss in Bateman v. Perdue which found the emergency powers ban on off-premises firearms and ammunition to be unconstitutional. In speaking with Alan Gottlieb at the NRA Annual Meeting, I got the impression that it would be OK with the Second Amendment Foundation if North Carolina did appeal. The rationale is that a win in the 4th Circuit would help to expand Second Amendment rights beyond just the state borders of NC. As it is, while Bateman is a welcome win and will be cited in future cases involving the Second Amendment, it does not carry the same weight as if the ruling came from the Court of Appeals.

The Second Amendment Foundation released the following statement regarding North Carolina’s decision not to appeal the ruling.

BELLEVUE, WA – North Carolina’s failure to appeal a federal judge’s ruling that struck down the state’s emergency power to ban firearms and ammunition outside the home during a declared emergency adds one more Second Amendment victory to the court record being established by the Second Amendment Foundation.

“When the anti-gun lobby claims that courts have not struck down any laws on Second Amendment grounds,” noted SAF founder and Executive Vice President Alan Gottlieb, “they deliberately ignore the fact that the District of Columbia’s handgun ban was overturned. Likewise, Chicago’s ban was stricken by McDonald v. City of Chicago, as was the city’s ban on gun ranges. Maryland’s draconian regulations on concealed carry were struck down, and so was the Massachusetts ban on firearms ownership by legal alien residents. Part of Omaha’s registration law was overturned, and now North Carolina’s emergency powers gun ban has fallen.

“All but one of those cases,” he added, “were filed by SAF, and in the Heller case against Washington, D.C.s ban, SAF filed an important amicus brief.”

Gottlieb said North Carolina’s decision not to appeal their loss, “frees the foundation to file more legal actions against cities and states that still have laws on the books that violate our constitutional rights.” There are now at least six federal court victories to SAF’s credit, knocking down laws that infringed on Second Amendment rights, and Gottlieb is confident more are coming.

“The North Carolina case should send a message to other states and municipalities with similar emergency powers laws that violate civil rights that they should remove those restrictions immediately,” he stated.

“I want to thank our plaintiffs, our legal team, our staff and in particular, our members and donors who have made all of these victories possible,” Gottlieb said. “Three of these victories, including Bateman v. Purdue in North Carolina, affirm that the Second Amendment doesn’t stop at your front door, like the gun prohibition lobby claims.

“Winning firearms freedom one lawsuit at a time is a long, slow and expensive process, but SAF is committed to it,” he concluded.

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Privilege Or Right

April 29, 2012 by 3 Comments

Ana Simvoska of TV-6 – Fox UP – in the Upper Peninsula of Michigan has a story posted yesterday concerning concealed carry in the state of Michigan. The station’s Facebook followers wanted to know more about Michigan’s concealed pistol license and what was required to obtain one.

She titled her story, “Concealed carry a privilege, not a right”, because of the information she was given by officials with the Michigan State Police.

Those hoops are a loaded application, fingerprints and a background check. Any felonies, or misdemeanors can disqualify you. That’s because carrying is a privilege not a right, officials said.

“They’re trying to ensure that when they give you the ability to carry concealed that you’re doing so safely, that you don’t have a history of violence, you don’t have a history of mental instability, and certainly that you’ve been a good citizen,” Lt. Robert Pernanski said.

In a few states such as Vermont and Arizona which have constitutional carry, carry is treated as a right and not a privilege. However, in the majority of states it is treated like in Michigan as a privilege.

That said, given the Heller decision which found that the right to keep and bear arms meant both “to possess” and “to carry weapons in case of confrontation” and subsequent decisions such as Woollard and Bateman which confirmed this right exists outside the home, I think states are treading a fine line between privilege and right.

Alan Gura has pointed this out forcefully in many briefs when he writes that the dictum from Heller that states the Second Amendment “is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” cannot be used to eliminate all carry outside the home. As he wrote in Bateman, “the Court confirmed that there is a right to carry at least some weapons, in some manner, for some purpose.” Gura notes that Justice Stevens in his Heller dissent acknowledged that the Court’s opinion “protected the public carrying of arms”.

While we aren’t there yet, I do think there will come a time when carry (in some form) will be recognized as a right and not a privilege.

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Bank Of America, The Second Amendment, And A 46 Year Relationship (updated)

April 23, 2012 by 15 Comments

On Friday, Kelly McMillan of McMillan International, a manufacturer of firearms and some of the best stocks going, posted on Facebook about the treatment of his company by Bank of America. The bank has not issued any statement or press release refuting Mr. McMillan’s version of things. I do have an email in to their press relations office for group commercial banking and will post any response that I get.

Based in Charlotte, NC, Bank of America is the product of a merger between San Francisco-based Bank of America and Charlotte-based NationsBank. Before it took the NationsBank name, it had been NCNB and North Carolina National Bank even before that. While the original Bank of America traces its history back to Amadeo Giannini and early 20th century San Francisco, the real owners of the current Bank of America got their start in 1960 as the North Carolina National Bank and were considered upstarts in the NC banking industry.

McMillan’s full unedited post is below:

McMillan Fiberglass Stocks, McMillan Firearms Manufacturing, McMillan Group International have been collectively banking with Bank of America for 12 years. Today Mr. Ray Fox, Senior Vice President, Market Manager, Business Banking, Global Commercial Banking came to my office. He scheduled the meeting as an “account analysis” meeting in order to evaluate the two lines of credit we have with them. He spent 5 minutes talking about how McMillan has changed in the last 5 years and have become more of a firearms manufacturer than a supplier of accessories.

At this point I interrupted him and asked “Can I possible save you some time so that you don’t waste your breath? What you are going to tell me is that because we are in the firearms manufacturing business you no longer what my business.”

“That is correct” he says.

I replied “That is okay, we will move our accounts as soon as possible. We can find a 2nd Amendment friendly bank that will be glad to have our business. You won’t mind if I tell the NRA, SCI and everyone one I know that BofA is not firearms industry friendly?”

“You have to do what you must” he said.

“So you are telling me this is a politically motivated decision, is that right?”

Mr Fox confirmed that it was. At which point I told him that the meeting was over and there was nothing let for him to say.

I think it is import for all Americans who believe in and support our 2nd amendment right to keep and bear arms should know when a business does not support these rights. What you do with that knowledge is up to you. When I don’t agree with a business’ political position I can not in good conscience support them. We will soon no longer be accepting Bank of America credit cards as payment for our products.

Kelly D McMillan
Director of Operations
McMillan Group International, LLC
623-582-9635
http://www.mcmillanusa.com/

 My family has had a 46 year relationship with Bank of America and its predecessor NCNB. From checking and savings accounts, car loans, safe deposit boxes, to the mortgage on my mother’s house, we have dealt with Bank of American in one form or another since 1966. Indeed, my mom had one of the first BankAmericards back in the late 1960s. We now know this as a VISA card.

After my mom’s death in 2008, I kept one account open with Bank of America out of nostalgia for the length of that relationship. I should have remembered that there is no such a thing as nostalgia in banking.

I will begin winding down my banking relationship with Bank of America this week. The first to go will be the BassPro-branded VISA card which is actually a Bank of America VISA card. Then I will begin transferring any remaining bank drafts from Bank of America to my other banks. Once this is done, the remaining checking account will be closed and thus end our 46 year banking relationship. I will be letting Bank of America management know why I closed the account.

I most certainly cannot tell you what to do nor would I. However, I would ask that you consider whether you want to keep your money at a bank (or any of their subsidiaries such as Merrill Lynch) that doesn’t respect you or your Second Amendment values. You know what I plan to do. What you do is up to you.

UPDATE: As noted in the first paragraph, I reached out to Bank of America for a comment on the McMillan Group International situation. I received a reply from Anne Pace of Bank of America. Her email didn’t have any signature line so I don’t know her exact title or position in the firm. Her verbatim response is below:

We want to let you know that we have heard the comments and questions regarding one of our customers. While we cannot discuss the details of any individual client we work with, we can assure you the allegations being made here are completely false. Bank of America does not have a policy that prohibits us from banking clients in this industry. In fact, we have numerous, longstanding customers in the industry.

In a follow-up email, Ms. Pace identified herself as one of the bank’s spokespeople.

UPDATE II: Kelly McMillan has a follow-up statement on Facebook regarding the statement put out by Bank of America that they don’t discriminate against the firearms industry.

In response to Bank of America’s public statement:

The statement we [McMillan] posted was an accurate account of the events that transpired late last week. McMillan Group has been in good standing with B of A and a loyal customer for the past 12 years. We were told that we must finalize all of our accounts because we manufacture firearms.

McMillan cannot speak for Bank of America’s company wide policies, but we can speak out about our personal experiences.

We [McMillan] kindly suggest that if Corporate Bank of America has no policy against conducting business with firearms manufactures, then they should communicate these policies with their regional Vice Presidents and other management.

UPDATE III: I closed out my BassPro Outdoor VISA from Bank of America this afternoon so the first step has been taken. I will be closing out the checking account as soon as everything has cleared and I’ve moved the remaining check drafts to another account at another bank.

I think I will use the money in this account to pay for my trip to the Gun Rights Policy Conference in Orlando this September. It seems only fitting.

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So Absurd I Don’t Know Where To Start

February 28, 2012 by 3 Comments

Yesterday afternoon, Edward McClelland, the Ward Room blogger for NBC Chicago, had a post entitled “Let’s Follow the Entire Second Amendment.” The post was so absurd, I really don’t know where to begin.

McClelland starts by attacking what he calls Second Amendment Absolutists.

Frequently, I hear gun owners describe themselves as “Second Amendment Absolutists.” By this, they mean they should be able to own any gun they want — a potato gun, a .22-caliber pistol, an elephant gun, a bazooka — and take it anywhere they want, hidden inside their pants. As justification, they point to a clause in the Second Amendment, declaring “the right of the people to keep and bear arms, shall not be infringed.”

McClelland says “Second Amendment Absolutists” cited this language in the McDonald case and in the suits against the State of Illinois concerning concealed carry. He accuses gun rights supporters of ignoring the complete language of the Second Amendment by leaving out the prefatory clause, “A well-regulated militia, being necessary to the security of a free state”, regularly. He then goes on to state his understanding (or misunderstanding) of the Second Amendment.

As I read it, the amendment guarantees Americans the right to keep and bear arms so they can form a militia. Yet very few Second Amendment Absolutists belong to militias, or even look as though they’re in shape for combat.

He then takes this a step further and makes a proposal to Gov. Pat Quinn and Attorney General Lisa Madigan regarding carry laws in the State of Illinois.

if the Second Amendment Absolutists are going to hold you to the second half of the Second Amendment, hold them to the first half: tell them they can carry any gun they want, anywhere they want, as long as they join the state’s militia, the Illinois National Guard. It would require one weekend a month of training, plus the possibility of active duty if the United States becomes involved in a war.

McClelland undoubtedly thinks he is being smart. Or a smart ass. He even calls it a win-win for the State of Illinois as the “National Guard could solve both its manpower shortage and its firepower shortage. The new recruits would all bring their own guns. “
Of course, he ignores 10 USC § 311 which defines the militia – both organized and unorganized.

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

It also ignores the holding of the majority in District of Columbia v. Heller which found that the Second Amendment was an individual right and that the prefatory clause neither limited nor expanded the right in the operative clause.

Held:
1. The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home.
Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but
does not limit or expand the scope of the second part, the operative
clause. The operative clause’s text and history demonstrate that it
connotes an individual right to keep and bear arms. Pp. 2–22.

Fortunately, these is not one comment to the entire post that agrees with McClelland’s so-called interpretation of the Second Amendment. Yet, I can imagine some people who do read it will be shaking their heads in agreement and that is sad.

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Happy 220th Birthday To The Second Amendment

December 15, 2011 by 1 Comment

On this date in 1791, the Commonwealth of Virginia became the 11th state to ratify the Bill of Rights and with it, the Second Amendment. Interestingly enough, New Jersey – a state where the Second Amendment has been under attack – was the first state to ratify it on November 20, 1789. It took a total of 811 days for these amendments to be ratified.

I’m proud to say as a native North Carolinian, that the Tar Hell State was the third state to ratify the Second Amendment (and the rest of the Bill of Rights) on December 22, 1789.

Jim Shepherd, publisher of The Outdoor Wire, had this to say about it in his comments this morning:

Our friend Bill Gravatt at Sinclair International sent us a reminder note yesterday we wanted to pass on to you. Today (December 15, 2011) is the two hundred and twentieth anniversary of adoption of the Second Amendment. If you’re a gun person, it’s one of those dates that belongs on your calendar every year…if you’re not a gun person, well, you should let some of us who are take you to the range so you can try shooting for yourself. As Rob Leatham is fond of saying “I’ve never taken anyone to the range and had them tell me they’ve not had fun.” Today’s the anniversary of why it’s so easy for Americans to enjoy the recreational sport of shooting -and the ability to protect our families and out country. The Second Amendment’s not about hunting, sport shooting or any of the other diluted suggestions you hear from time to time. It’s about our inalienable right to self-protection…and it’s worth defending.

I agree with Jim and I like his suggestion about taking someone to the range. The more first time shooters that go to the range, the more we win in our battle to protect and preserve the Second Amendment.

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Jim Shepherd Goes One-On-One With Herman Cain

November 7, 2011 by

Jim Shepherd, editor and publisher of the The Outdoor and Shooting Wires, just had a one-on-one interview with Republican presidential candidate Herman Cain. The full interview can be found here.

With regard to participating in outdoor sports, Cain said he fishes irregularly, has never hunted, and has camped maybe one time. However, he does shoot but not on a regular basis.

The part of the interview that is really relevant here is what he said about the Second Amendment. Shepherd does bring up Cain’s past statements on it that have seemed wishy-washy.

SHEPHERD: OK, let’s segue from that to the Second Amendment. You have said “the Second Amendment, I support it”. Yet at the same time you’ve said the states should have the right “absolutely” to regulate firearms. How do you reconcile what sounds like a double standard?

CAIN: That wasn’t what I said.

SHEPHERD: OK….

CAIN: …for example, if a state wants to require some sort of background ID check that should be the state’s determination. If the state wants a different requirement for carrying concealed…those are the kinds of things I’m talking about.

I did not say that I believed the states should regulate firearms, that was a misinterpretation. Somebody will go back and dig that up, but if it was said – and I don’t think that it was – I never intended that. I was talking about IDs, that’s what I was talking about.

SHEPHERD: Do you then believe that Chicago and Washington, D.C. have the right to have so restrictive a local regulation that it virtually assures that you can not own a handgun, even if you meet the federal requirements?

CAIN: I don’t agree with those decisions.

Herman Cain then goes on to make a more definitive statement on the Second Amendment and the right to self-protection and self-defense.

CAIN: Let me say one other thing about the Second Amendment.

SHEPHERD: Please do..

CAIN: And I have to say it this way: the founders said people are endowed with certain unalienable rights and that among these are life, liberty and the pursuit of happiness.

I happen to believe there’s another certain unalienable right included in that, and that is the right to defend yourself, to defend your family and to protect your property which I call the Second Amendment to the Constitution.

So, it’s not only an Amendment..

I happen to believe that it’s an unalienable right, right there with life, liberty and the pursuit of happiness.

Jim Shepherd details how this interview came about at the bottom of today’s Outdoor Wire.

I am a little uneasy about Cain saying that states could have a more stringent background ID check as it seems that is a carte blance given to the gun prohibitionists in places like California, Illinois, and Massachusetts. I am glad that Cain recognized that we have a right to protect ourselves, our families, and our property. Read the whole interview and decide for yourself.

Thanks to Jim Shepherd for doing what it took to get this interview. Stuff like this doesn’t regularly appear in the mainstream media.

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MSNBC’s Alex Wagner: Get Rid Of Second Amendment

November 7, 2011 by 4 Comments

Alex Wagner is a political analyst on MSNBC, contributor to the Huffington Post, and is reputed to be getting her own daytime show on MSNBC. She appeared on HBO’s Real Time with Bill Maher this past Friday evening. Along with Ms. Wagner were former NY Gov. David Patterson, Rep. Darrell Issa (R-CA), comedian Bill Engvall, and Delaware Attorney General Beau Biden.

Maher posed the question what would you change in the Constitution. Wagner’s answer?

“Well, I’m going to be pilloried for this. I think get rid of the second Amendment, the right to bear arms. I just think in the grand scheme of the rights that we have; the right of assembly, free speech, I mean, owning a gun does not, it does not tally on the same level as those other Constitutional rights. And being more discreet about who gets to have a firearm and right to kill with a firearm, I think is something that would be in our national interest to revisit that.”

You can watch a video excerpt of it here on RealClearPolitics. I love the look on Darrell Issa’s face when she says it. Then when Maher asks Bill Engvall what he thinks about it, Issa quips “she has a right to be wrong.”

However, Engvall has lost me as a fan when he says he doesn’t see any reason for a person like himself to own an AK-47. This was just after he said he should be able to protect his family and that he is a avid hunter and fisherman. Fudds like Engvall need to realize that the gun prohibitionists see his deer rifle with a scope as “high-powered sniper rifle” and they will be coming after that as well. Jeez!

Fortunately, Issa gets serious and says the reason for the Second Amendment is for self-protection from the criminal element and from a tyrannical government. He says the Second Amendment is why we don’t have dictators like Col. Gaddafi and never will.

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Dave Kopel On The Origins Of The Bogus Collective Right Theory

September 9, 2011 by

The gun prohibitionists love to say that the Second Amendment is a collective right and that is what the Founders meant. Unfortunately for them, history is not on their side. Dave Kopel, the Research Director of the Independence Institute, in an interview with Cam Edwards discusses his article showing the origins and bogus nature of the collective rights argument.

Here is a link to his article that was published in America’s 1st Freedom.

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Insurrectionist Ideology?

January 13, 2011 by 3 Comments

Since it appears that the Coalition to Stop Gun Violence doesn’t want to be left out of the frenzy surrounding the Tucson shootings, they released this on Monday but with their own unique spin:

FOR IMMEDIATE RELEASE
January 10, 2011

MEDIA CONTACT:
Ladd Everitt, (202) 701-7171, leveritt@csgv.

STATEMENT OF CSGV ON TUCSON SHOOTING RAMPAGE

Washington, DC—Those of us at the Coalition to Stop Gun Violence are deeply dismayed at the horrific shooting rampage that occurred in Tucson this weekend. Our thoughts and prayers—and the thoughts and prayers of all our member organizations—are with the victims and survivors of this terrible tragedy. We hope for a full recovery for all of those who lie wounded today.

Sadly, Saturday’s tragedy was both predictable and inevitable. Insurrectionist rhetoric—which posits that the Second Amendment gives individuals the right to take violent action when they believe that our government has become “tyrannical”—was once confined to the dark corners of gun shows and the Internet. In today’s America, however, it has become a “mainstream” idea that is widely promoted by movement conservatives, high-profile media figures, and even elected officials and candidates. Tucson was not unique—since the conservative wing of the Supreme Court embraced the insurrectionist idea in the D.C. v. Heller decision in 2008, there have been numerous threats and acts of violence against government officials.
Additionally, America’s weak gun laws continue to allow individuals who are obviously deranged to legally purchase semiautomatic firearms with high-capacity ammunition magazines that hold more than 10 rounds. Jared Lee Loughner’s history of mental illness, substance abuse and violent threats was well-known to law enforcement, the U.S. Army and his educators at Pima Community College. None of this, however, was detected by an instant, computerized background check that takes just a few minutes and involves no actual investigation of the gun purchasers.

If we are to avoid future massacres, our elected officials must institute policies that prioritize public safety and human life over gun industry profits. And they must speak out in no uncertain terms against poisonous insurrectionist ideology that threatens the integrity of our democracy itself.

Insurrectionist ideology? I guess Josh Horwitz and Ladd Everitt don’t know much about history and prefer to live in their own Wonderful World. If they need some help learning history, I’d be glad to suggest some books such as the two books from David Young dealing with the origins of the Second Amendment and the founder’s intent in putting it in the Bill of Rights.