I. PURPOSE

The following opinion answers questions related to questions raised by the WASPC as to whether a municipal law enforcement agency exposes itself to additional liability by certifying retired law enforcement officers as having met Criminal Justice Training Commission standards for firearms qualification. The purpose of the LAW ENFORCEMENT OFFICERS’ SAFETY ACT OF 2004 (18 U.S.C. Sec. 926B and 926C) is to supplement active law enforcement personnel in order to deter crime and prevent terrorist activity. The federal law accomplishes this by anticipating that additional armed law enforcement personnel that have already been trained will be present within each jurisdiction as officers travel from one jurisdiction to another while on business, vacationing or for any other reason.

The Act authorizes retired officers and active police officers from outside of each jurisdiction to carry a concealed firearm within each and every jurisdiction of the United States; thus, increasing the likelihood that an armed officer will be present if deadly force is presented on the roads or in any other location where the traveling officer from outside a given jurisdiction may be. The retired officer must qualify annually per the standards that officers are required to meet for firearms proficiency within the agency from which he or she retired. For a retired officer to carry a weapon in all fifty states, the federal statute requires:

“… a certification issued by the State in which the individual resides that indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the State to meet the standards established by the State for training and qualification for active law enforcement officers to carry a firearm of the same type as the concealed firearm.”

Emphasis added.

The LAW ENFORCEMENT OFFICERS’ SAFETY ACT OF 2004 is an aid to law enforcement and the public that costs the state or the federal government very little because the training has already been provided at the state level and each retired officer essentially becomes a volunteer who must pay the cost of maintaining his/her qualifications at the state and/or local level.

RCW 36.28A.090 reads in part:

Firearms certificates for qualified retired law enforcement officers.

(1) The purpose of this section is to establish a process for issuing firearms certificates to residents of Washington who are qualified retired law enforcement officers for the purpose of satisfying the certification requirements contained in the federal law enforcement officers safety act of 2004 (118 Stat. 865; 18 U.S.C. Sec. 926B and 926C).

(2) The Washington association of sheriffs and police chiefs shall develop a firearms certificate form to be used by local law enforcement agencies when issuing firearms certificates to retired law enforcement officers under this section.

(3) A retired law enforcement officer who is a resident of Washington may apply for a firearms certificate with a local law enforcement agency. The local law enforcement agency may issue the firearms certificate to a retired law enforcement officer if the officer:

(a) Has been qualified or otherwise found to meet the standards established by the criminal justice training commission for firearms qualifications for active law enforcement officers in the state; and…

II. ISSUES

A. Does the LAW ENFORCEMENT OFFICERS’ SAFETY ACT OF 2004 (hereinafter the Act) provide an opportunity for citizens and law enforcement agencies across the United States to acquire additional security at little or no additional cost to state, local and federal governments in taxpayer funds and potential liability?

B. Does qualifying and certification of a retired officer incur more potential liability than qualifying active police officers?

C. Is there a reasonable basis not to implement the provisions of state and federal law outlined above based on potential liability or any other issues?

III. ANALYSIS

A well known police organization has actively advocated that police agencies in Washington State not certify retired officers under RCW 36.28A.090 because of alleged liability issues. As a general rule licensing and permitting does not incur liability absent exceptional circumstances or a so-called “special relationship” with a person or group who is adversely impacted by improper certification at a level below that of the policy-making decision to develop such a process. Washington courts apply the “public duty doctrine” in order to determine whether a decision is at a policy-making level and therefore immune from liability claims.

Even at the “mechanical” level where a police firearms instructor determines whether official standards have been met, there needs to be a specific individual or group relying on the testing officials determination (as opposed to the public at-large in order to create a potential for liability. Since no such relationship exists when an officer or retired officer qualifies, the alleged potential for liability does not exist. Those advocating against certification of retired officers need to answer two questions:

1. Is the basis of the alleged potential for liability based on ageism?

2. Where is the evidence of any liability against local law enforcement agencies based on certification that an officer has qualified under state standards for firearms proficiency?

Most jurisdictions, including Washington State, already provide for retired officers to qualify and continue carrying within the state. This would be similar to issuing a concealed carry permit. Thus, the question can be formulated- Where again is the evidence of any agency incurring liability by issuing concealed carry permits or by any qualifying retired officers to carry a weapon within the State of Washington and why should carrying outside the state increase the potential for such alleged liability?

The answer to all of the questions raised above is that the potential for increased liability is virtually non-existent. The true rationale behind the position that some groups are taking is a political agenda that seeks to maintain the myth that armed private individuals cannot deter crime or protect themselves or the public; i.e., an anti-gun agenda.

Where there is no “special relationship” creating a duty to a class of people that have relied on a permit, potential liability does not exist. The courts in Washington look to the manner and extent of contact between the government official and the member of the public in order to decide whether such a special relationship exists. The courts also look to how explicit any assurance is made to the specific class of persons that may rely on a permit, license or certification. J& B DEV. CO. V. KING COUNTY, 100 WN.2D 299, 669 P.2D 468 (1983).

In J & B Development, the court held that a breach of a governmental duty owed only to the public as a whole cannot be the basis for a cause of action. See also RCW 4.96.010. Prior to J & B DEVELOPMENT, the Washington legislature had abolished most governmental immunity. In J & B Development, a building inspector was held to have a duty to the builder based on the special relationship created by issuance of a negligent building permit. The governmental entity breached a duty owed to the plaintiff as an individual rather than to the public at large.

The Public Duty Doctrine provides an exception to the general rule in Washington. The general rule is that the state and its subdivisions can be sued on any basis for which a private citizen may be sued. See RCW 4.96.010. Despite the waiver of sovereign immunity contained in RCW 4.96.010, the Public Duty Doctrine requires that a claimant suing a governmental agency or municipality must establish the breach of a duty owed by a governmental entity specifically to an individual or group making a claim. See WASHINGTON STATE’S 45-YEAR EXPERIMENT IN GOVERNMENTAL LIABILITY, by Michael Tardif & Rob McKenna. Seattle University Law Review, Vol. 29, Fall 2005.

The act of testing and issuing a certificate is in the nature of a “ministerial” or “operational” function. Nevertheless, the fact that the Washington State Legislature has provided that “…The qualification required under [subsection] (3)(a) of this section may be performed by the local law enforcement agency or by an individual or entity certified to provide firearms training” creates a discretionary, policy-making characteristic to an agency’s certification under state law. See RCW 36.28A.090. Thus, the discretion involved in creating a local certification process decision brings the decision under the immunity provided by the Public Duty Doctrine.

The fact that 18 USC 926© and the above referenced state law are promulgated for broad public safety purposes and not for the purpose of creating a duty to specific class eliminates liability for the decision. Therefore there is no valid argument that potential liability exists by certifying that retired officers have met the standards of the Criminal Justice training Commission. On the other hand, the benefit to the national public may be immense. The benefit to the people of Washington State accrues as armed police officers from other states travel in Washington; i.e., the benefit is derived from reciprocation as sister states implement the Act.

It is a well recognized principle of tort law that a fundamental element of actionable negligence is the existence of a duty owed by the person charged with negligence to the one injured. E. McQuillin, SUPRA. To be actionable, the duty owed must focus on the one injured, not on the public at large. To sustain an action against an individual, it is necessary to determine whether one is under a duty to a claimant as opposed to the general public. Similarly, to sustain an action against a municipality it is necessary to decide whether a municipality is under a general duty to a nebulous public or whether that duty has focused on the claimant.

J & B Development, supra.
The rationale of the “public duty doctrine” has historically been (1) prevention of excessive governmental liability and (2) the need to avoid hindering the governing process. Nevertheless, in J & B Development, the court stated:

“…the “public duty doctrine” has a third logical application in tort litigation. A duty to the public in general is usually considered a duty to no one in particular (I.E., the “public duty doctrine"). When considered in combination with the “special relationship” rule, however, it becomes a mechanism for focusing upon whether a duty is actually owed an individual claimant rather than the public at large. The “special relationship” rule is in fact the focusing tool. Assum(ing) a county voting registrar has a duty to refrain from registering nonresidents… it would be difficult, if not impossible, for an individual citizen to recover in tort against the County for the negligent violation of that duty.”

No liability is presented where the act, omission, or decision to certify involves a basic governmental policy, program, or objective. The act of a county or municipality exercising discretion explicitly provided by state law requires the exercise of a basic policy evaluation, judgment, and expertise on the part of the agency. Said discretion is essential to the realization of federal and Washington state policy; and is within the proper authority and duty of law enforcement agencies.

The act of an agent of a governmental entity shown to have been done in an arbitrary and capricious manner, or decided upon without considering the facts involved, may not be classified as a discretionary function and is not entitled to exemption from liability.
The fact that the state legislature has provided authority via RCW 36.28A.090 for local municipalities to implement federal law for the benefit of the public at-large raises an issue as to whether liability can exist where a certificate is issued in an arbitrary and capricious manner and foreseeable harm results. In the unlikely event that a court identifies a duty predicated on the requisite special relationship, any potential liability would be no greater than that which presently exists by certifying active police officers for duty.

“The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.” See EVANGELICAL UNITED BRETHREN CHURCH V. STATE, 67 Wn.2d 246, 253, 407 P.2d 440 (1965) (it is necessary to determine where, in the governmental process orthodox tort liability stops and the act of governing begins).

According to EVANGELICAL CHURCH, at page 254:

“Liability cannot be imposed when condemnation of the acts or omissions relied upon necessarily brings into question the propriety of governmental objectives or programs or the decision of one who, with the authority to do so, determined that the acts or omissions involved should occur or that the risk which eventuated should be encountered for the advancement of governmental objectives.”

EVANGELICAL CHURCH at page 255 states four preliminary questions that are relevant to determining whether an act was a discretionary governmental process:

(1)“Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?

(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?

(3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?”

IV. CONCLUSION

Therefore, in view of the federal and state mandates that confer discretionary governmental authority to implement certification, municipal law enforcement agencies are immune from liability. The arguments that are advanced related to potential liability are either disguised prejudice against retired officers (based on age) or are based on biases against private citizens being armed. After all, the rationale of the LAW ENFORCEMENT OFFICERS’ SAFETY ACT OF 2004 is that armed citizens can make a difference, a rationale that runs directly contrary to the “consensus” that citizens with weapons are more of a danger to themselves or others than to the bad guys.

To be entitled to immunity, the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place. The author’s opinion herein can be particularly relied on by Washington State municipalities and law enforcement agencies due to the fact that the Legislature clearly made the decision to implement the certification process a local determination within the discretion of municipal governments.

It goes without saying that refusal to clearly look at the benefits set forth herein may frustrate an inexpensive public safety initiative- an intiative with the potential for saving lives that has not incurred any liability that we know of in the five years since Congress enacted the law providing for officer and public safety. Not to implement the law demonstrates irresponsible public administration that poses real political liability in light of the potential for mass shootings and future terrorist acts like the one that occurred recently in Mumbai, India that involved heavy use of small arms.

Seattle is not exactly a cowboy town but a little like a rodeo.

Whether its marching in a “PRIDE” parade with your weapon in plain view or riding your Harley to Sturgis with the rest of the Iron Pigs, we all have our point of view.

Rebecca Griego also had a point of view. She wanted to be safe from a man that was stalking her. She obtained a Domestic Violence Protection Order. Nevertheless, she was murdered by a man that was known to be stalking her for a long time in Seattle:

Seattle newspapers reported Thursday morning that gunman Jonathan Rowan had been living in this country illegally for more than ten years. Stopped for drunken driving last June 30 by Seattle police, his residency status could have been determined, were it not for Seattle’s ridiculous policy. Generically called “Sanctuary Laws,” they tie the hands of police and allow foreign nationals a free pass to stay here illegally.

“Rowan was a prime example of why such ordinances (restricting right to carry) should be abolished. It is because of policies like this – that protect people like Rowan – that honest citizens want to arm themselves.”

“The Northwest has a particular problem with violent illegal aliens,” added CCRKBA Executive Director Joe Waldron. “The last three peace officers killed in eastern Washington all died at the hands of illegal aliens.”

See also Months of Stalking.

You see Rebecca was shot by an illegal alien, Jonathan Rowan, who had been in the U.S. illegally for ten years. But Seattle is a Sanctuary City, one of many that refuses to report people to the U.S. Immigration and Customs Enforcement (ICE)- not even people like Rowan that are required to be deported. Cities like Seattle and San Francisco just decide that they are not going to follow certain laws like when Mayor Newsom decided to ban all guns in San Francisco and marry same-sex couples.

It doesn’t matter to Mayors Nickels and Newsom what state and federal law says. It is no different than the pot smoker that thinks that pot is harmless and so it is alright to grow and smoke- except that the consequences get more serious when it is the government practicing “civil disobedience“.

You can ask Mrs. Bologna, the mother whose husband and son were gunned down by a deportable MS-13 member in the Potrero Hill District of San Francisco. Ask this lady that was a mother of four about the consequences of San Francisco’s policy that lead to three previous felony convictions for the MS-13 member, time served but no deportation by the feds because San Francisco refused to turn the alien over to the U.S. Immigration authorities.

See Father of 4 Son; Victims of Road Rage.

MS-13 is all over the country- even small towns and suburbs. They are like an army. Even if you could take away their guns, they actually prefer machetes. It is their trademark. At first, it seemed that Mr. Bologna did not back up his car fast enough and so they called it road rage. Later it turned out that, since Bologna and his sons are Hispanic-looking, their killer may have thought they were rival gang members. I wonder whether this fact makes a difference in his sentencing? As an Anglo-looking person, it makes me feel much more comfortable, especially when I think about the .45 caliber pistol at my side.

But you cannot ask Rebecca. If she were alive she might consider obtaining a Concealed Pistol License (CPL) before obtaining a Protection Order. Some domestic violence advocates will immediately react by protesting, “The statistics show that the stalker would probably use Rebecca’s own pistol against her!”

Such objections reflect a preadolescent mode of thinking that is similar to the argument that we should abolish armies because war is bad for the world. Trying to explain that the world is not going to disarm is about as helpful as trying to explain why people can and should get professional training in self defense. Not martial arts- great discipline and karate and judo train the mind-and spirit I am told- but only slightly better than protection orders for stopping bullets!

The trouble is, Rebecca Griego is not alive. She is dead because of yet another grievous “liberal” policy promulgated by the Seattle City Council that permits illegal and often violent aliens to remain in the city.

If you know a woman with a clean record that wants to obtain a CPL and needs protection against violence or threats of violence from a stalker, ex-boyfriend or psychotic husband, we will provide self-defense training for her and make sure that she has legal representation. It is time that we fight back against predators in our streets and fight back against the predators in City Hall!

Players are prepared to resist violent criminal assaults but NFL management is sacrificing to idols of political correctness. When I reviewed much of the information about the NFL’s position on players exercising their Second Amendment right of self defense, I was reminded of the Deacons for the Defense. Most people do not realize that there was a branch of the Civil Rights movement that bore arms in order to resist the night riders that were prepared to kill civil rights workers. Not just the NFL management, but the Democratic Party has had a long history of racism that has been closely linked with the history of gun control.

“That Every Man be Armed” by Stephen P. Halbrook, deals with the legislative history of the Fourteenth Amendment and provides a startling account of the newly freed black Americans and how the Fourteenth Amendment was enacted in order to stop Southern militiamen that were actively attempting to disarm blacks who tried to protect their homes and families from lynchings. Many of the blacks returned from fighting (on both sides of the Civil War- some for the North and some for the South). The homes of black Freedmen were searched by white night riders in order to discover weapons.

White men were the only citizens allowed to have firearms under the newly passed Jim Crow laws and failure to submit to the authorities’ unlawful searches and seizures often lead to lynchings in which innocent black men, women and children were literally skinned alive and mutilated.

When the Fourteenth Amendment was debated, the Southern Democrats indignantly denounced the language of the proposed Amendment, declaring that due process protection would include the right of Negroes to be armed the same as white citizens had the right to be armed pursuant to the U. S. Constitution. At that time, during the 1870s, the Northern advocates of civil rights for blacks (mostly Republicans) vehemently asserted that the Southerners were exactly right- due process for black citizens included the right to keep and bear arms just like it did for whites!

This legislative history should be discussed again when the Supreme Court hears DC v Heller. The Court will be dealing with the issue of whether the Second Amendment is an individual right. The Congressional debates leading up to ratification of the Fourteenth Amendment show that both sides acknowledged that the Second Amendment was an individual right that adhered to all citizens. Most Constitutional scholars, the U.S. Department of Justice and most state legislatures are recognizing the importance of armed citizen empowerment related to deployment of deadly force in personal protection and for protection of families and homes.

The City of Washington DC is administered under Congressional authority and therefore the issue of whether the Second Amendment applies to the states will be a very live issue. The Parker court stated very clearly that the Second Amendment does not restrict regulation of firearms by the states but how far can regulation go without constituting a de facto prohibition? That is the issue that the U.S. Supreme Court may soon decide in connection with the District of Columbia. It should be noted that the cities like Washington DC and Chicago that have great numbers of poor blacks are also the cities where gun control has the greatest stranglehold.

Many cities have virtually outlawed possession of pistols and other firearms; in Washington DC weapons have to be kept unloaded, disassembled and locked with a trigger lock. The City’s fiat thereby makes any such weapon effectively useless in a community that has one of the highest crime rates in the U.S. The law prohibits transporting a firearm in any location and the City’s attorneys apparently did not dispute the allegation that moving a firearm from one room to the other in your own home constitutes a crime under DC’s draconian regime.

New York City and Chicago area may be good places to look for a test of whether the Second Amendment applies to the states via the Fourteenth Amendment. The author of “That Every Man Be Armed” provides a persuasive brief hammering home that the right to keep and bear arms may be one of the most fundamental protections- a Constitutional protection that is intrinsically rooted in a well ordered society. The ability to defend our lives, our families and, at certain times, our property goes to the very essence of what law is all about. Mr. Halbrook is a Constitutional lawyer and an able firearms advocate.

Halbrook has chapters discussing Constitutional theory as it has developed at various times in classical Greece and Rome, English common law, colonial America and up through fairly recent times. It is encouraging to see that many of the classical world’s philosophers and political theorists come down squarely in favor of the principle that free citizens bear arms. Not to keep and bear arms is historically an earmark of a slave in almost every Western society.

Armed citizens are the institution that the Founding Fathers proclaimed to be the most practical line of defense against foreign invaders and domestic tyrants.

I first heard about the Deacons for the Defense when Condoleza Rice was telling Larry King about her father, a theologian, who gathered with other churchmen in their homes armed with shotguns in order to resist the night riders in Montgomery, Alabama. She reasoned that, if there had been gun registration, Sheriff Bull Connors would have made sure to disarm the Deacons so that the Ku Klux Klan could do its evil work. By the way, Forest Whitaker starred in the movie.

Now the NFL has become like a new breed of plantation owner, attempting to intimidate the players from exercising their Constitutional right to defend themselves against violence.

Washington Redskins safety Sean Taylor was murdered when he confronted armed intruders with a machete. His home was located in a gated community in Miami.

The intruder(s) shot him.

Would the outcome have been different if Taylor had a gun instead of a machete?

The NFL has attempted to discourage players from arming themselves. This is a public relations campaign and has very little to do with the safety of the players.

“The leagues would rather the players put themselves at risk than have the players protect themselves with guns.”

Paul Tagliabue instituted an official league gun policy back in 1994 that discourages possession of legal weapons in the players’ own homes! “Any weapon, particularly a firearm, is dangerous,” the policy states, “especially so when it is in a vehicle or within reach of children and others not properly trained in its use.”

Former Chicago Bears tackle Tank Johnson was banned from the league for part of a season after he got in trouble with Chicago law enforcers for possessing a firearm illegally in his home. “It is not enough to simply avoid being found guilty of a crime. Instead, as an employee of the NFL or a member club, you are held to a high standard and expected to conduct yourself in a way that is responsible, (and) promotes the values upon which the league is based….”

NBA Commissioner David Stern stated, “It’s a pretty, I think, widely accepted statistic that if you carry a gun, your chances of being shot by one increase dramatically. We think this is an alarming subject. Although you’ll read players saying how they feel safer with guns, in fact those guns actually make them less safe. . . .”

Washington, D.C., home to Sean Taylor’s Redskins, is currently facing a legal challenge to its virtual ban on handguns. For decades the city has had one of the toughest gun-control policies in the country. It has also consistently had one of the highest murder rates. According to Chris Sprow,the editor-in-chief of Chicago Sports Weekly:

Pro athletes are targets. They are young, wealthy, famous, and many opt not to abandon the communities where they grew up. They face a different threat and a different reality than halls traversed by the likes of Stern and Goodell. Last summer in Chicago, two high-profile NBA players were robbed at gunpoint in their own homes. Antoine Walker was confronted in his garage, bound with duct tape, and robbed of thousands of dollars in cash and jewelry, as well as his Mercedes. This was in his multi-million dollar Gold Coast home, located in a wealthy, downtown Chicago neighborhood. Weeks later, Eddy Curry was robbed in similar manner at his palatial estate in Burr Ridge, a suburb outside the city.

Police later determined both players had been targetted because of their status as professional athletes. Locally, the Chicago Bulls were forced to issue a statement, warning their own players to take new measures to insure their own security.

Why do the players need to be warned to prepare for violent attacks?

“Professional athletes, most of us came from the streets. We feel like we know the streets and can pretty much protect ourselves. But now we’re in a position where we’re being targeted, and the stakes are just too high.”

Atlanta forward Shelden Williams was recently carjacked at gunpoint.

Is it wise to put the safety of players at risk just to enhance the NFL image?

Since the aftermath of the Civil War, “gun control” has simply been a proxy argument for some as a method for keeping blacks unarmed. Arms roundups of freedmen were common in the South in the years following the liberation of slaves, and the result was more control for white landowners, and the lurking and pervasive Ku Klux Klan, who used their mobility to terrorize freed blacks. In many ways still today the gun is as much a measure of protection as it is a symbol of the ability to protect— to self govern, if need be.

In February 1994, a black Democrat State Senator from Chicago, Rickey Hendon had his unregistered handgun stolen from his home. “I have a right to protect myself,” he told the Sun-Times. Blacks tend to live in higher crime areas; lack the resources for private security, alarm systems, and other measures; and aren’t particularly trusting of or willing to rely upon the police to protect them. When the City of Chicago began restricting handgun possession in 1983, some of the loudest objections came from black politicians, who said the ban discriminated against black Chicagoans who needed to be armed to protect themselves.

Wealthy athletes are targets for violent crime.

Mr. Sprow’s recommendation that teams focus on teaching young players how to own, maintain, and use guns responsibly makes a great deal of sense! (Chris Sprow is the editor-in-chief of Chicago Sports Weekly, and has contributed to a number of other publications, including the New York Times and ESPN the Magazine.)

John R. Lott Jr. in his incisive article entitled Athletes and Guns lists some of the reasons that fifty percent of NFL players justifiably arm themselves to fend off deadly assaults.

Their wealth and high profiles make them targets for violent criminals.

Early in the morning on Jan. 21, Corey Fuller, the 5-foot, 10-inch, 210-pound defensive back for the Baltimore Ravens, was confronted by two armed robbers outside his Tallahassee house. One robber chased Fuller into his house where his wife and children were sleeping, but Fuller was able to grab a gun and fire at the attackers, who then ran away.

In late October, T.J. Slaughter, a 6-foot, 233-pound linebacker, was arrested for allegedly pointing a gun at motorists who pulled up next to him on the highway. Slaughter denied that he had pointed the gun at the motorists and claimed that they had threatened him. According to Slaughter, he told the men to move away from his car. No charges were filed, but the Jacksonville Jaguars still cut Slaughter the next day. Jacksonville claimed Slaughter was performing poorly.

Greg Anthony, a 6-foot, 176-pound guard for 12 years in the NBA, carried a registered gun during part of his career. He said, “More and more people approach you, and you just never know what somebody is capable of doing …”

Mr. Lott goes on to state:

Recent media stories – from the New York Times to the Chicago Tribune – have run extremely negative stories on professional players owning guns. The Tribune described players owning guns as a “problem [that] persists.” Ironically, within days of the December New York Times piece, it was revealed that the New York Times lets its reporters carry guns in Iraq.

– Yancy Thigpen of the Tennessee Titans (height: 6-1, weight: 203 lbs.) has faced three armed robberies since joining the NFL eight years ago. The last one left him and his fiancée tied up inside his house with their 2-month old daughter locked in a closet. An earlier robbery involved a carjacking.

– Will Allen of the New York Giants (height: 5-10, weight: 195 lbs.) was assaulted, doused with gasoline and robbed by an assailant when he returned to his house one evening in 2001.

According to John Lott, such misguided advice simply makes players and their families more vulnerable and does not square with the U.S. Department of Justice’s findings. The Justice Department’s National Crime Victimization Survey has shown that not being armed is statistically the strategy most likely to result in victimization.

Aggressiveness is always a better strategy than the passive approach that is often recommended in much of the officially sanctioned literature on how to deal with assaults.

One player, T.J. Slaughter said. “I believe legally owning a gun is the right thing to do. It offers me protection. I think one day it could save my life.”

See NFL Athletes; Guns & Second Amendment.

The following notes are the beginning of a series of observations penned by a man that attends autopsies- lots of autopsies. I cannot vouch for the author’s authenticity but the issues identified below seem worth considering. The prose may seem morbid but there are passages herein that constitute sheer poetry for serious gunners and the information may save your life:

One of the benefits of working in a morgue is that I get to see what works and what doesn’t. Ballistic gelatin is good as far as it goes, but there’s nothing like seeing what a bullet actually does once it strikes bone, flesh, and organs. Suffice it to say, it doesn’t always mimic ballistic gelatin.

The other is that I get to hear some great CCW stories. Here’s one of them: A recently-married couple living in one of the less desirable sections of Atlanta decided that for safety purposes they should get a handgun and learn how to shoot it. They bought a Glock 27 in .40, CCW permits, and made regular trips to an indoor range. One evening, having just come back from the range, they cleaned and loaded the Glock and had left it on the coffee table in the living room, intending to put it up later. Shortly thereafter they heard a knock at the door and, expecting company, opened it without looking through the peephole.

A crazed male entered the apartment brandishing a handgun yelling, “Give it up, give it up!” The husband said that it was obvious the individual was high on drugs and there was absolutely no question in his mind that both he and his wife were going to die. Knowing this, he decided that his only option was to go down fighting.

The BG forced them both down a narrow hallway into the living room, screaming all the while. The husband was in the lead, followed by his wife, and then the BG, whose view of the living room was being blocked by the husband and wife.

The husband reached down, grabbed the Glock, pushed his wife aside, and fired one shot at the BG, striking him dead center in the middle of the chest. Although knocked to the floor, the BG still made a feeble attempt to retrieve his own gun. At this point, the husband let him hold another one to the chest. That ended that little problem.

Upon talking to the still-shaken husband, the police said he could remember little of what all the BG had said. As he recalled it, “All I can remember is that his first words were ‘Give it up!” and his last words just as he saw the Glock were “Oh, (fill in the blank)!”

I see an average of 8.2 autopsies per day/365 days per year, and I can tell you that when the chips are down, there’s nothing that beats a 12-gauge. As for handguns, the name of the game is not only shot placement but how a properly-placed bullet acts once it gets there. I’ve seen folks killed by a bb to the eye and others survive after being hit by several well-placed rounds with a 9mm.

As for me, I’ll take a slow-moving .45 to a gun fight any day. I absolutely despise a 9mm for defensive situations (yes, they will eventually kill but often not quickly enough to prevent the BG from doing you in first)and a .380 as well. These are probably the two calibers I see most often on the autopsy table.

But then, I’ve seen most everything. I’ve seen a guy killed by a .416 Rigby, as well as a suicide to the head with a .44 Mag that didn’t penetrate the skull on the other side.

The long and short of it is that you just don’t know how ANY bullet will react to tissue and bone until you open them up and take a look. I’ve seen hardball fragment and hollowpoints act just like hardball. That said, shoot what you’re comfortable with and place your shots well whatever caliber you use.

The .357 is gloriously effective. It’s just that semi-autos are much more common than they used to be, so we see far more 9mm and .380 rounds on the autopsy table than we do the .38 and .357.

Particularly among the gangbangers, the 9mm and .380 are the weapons of choice. The .357 is a wonderfully effective round for self-defense from what I’ve seen, but it’s rare that we get them in anymore.

Again, this is from experience that I’ve made my calls on what works and what doesn’t. I have no use for mouse guns like the .32, although it’s a lot better to have a mouse gun than nothing at all. Personally, I’ll never carry anything smaller than a .40 and prefer the .45. Day in and day out, results from the autopsy table show me that the .45 is the gun to have in a gun fight, provided you can shoot it well. If not, it’s better to have something you can shoot well, even if it’s a mouse gun, than something you can’t.

I spent most of my life in Knoxville, TN and absolutely loved it. But then, my job is working in the Medical Examiner’s Office, and, as you said, this is a target-rich environment. Having a job in an Atlanta morgue is job security at its best.

KRL, I’ll take slow and heavy to light and fast any day. What I want is a round that plows through bone and tissue and expends ALL of its energy in the body. That said, the 125-grain .357 is marvelously effective.

S/W-Lifer, You’re correct in what you’re thinking. Yes, the 9mm and .380 are the rounds I most often see on the autopsy table, but they’re also the rounds that usually require multiple hits to make the kill. The standing joke in the morgue is to guess the caliber by looking at the x-rays. If multiple rounds show up on the x-rays more often than not it’s a 9mm or .380 (or .32 or .25 or some mouse gun caliber). If only one round shows up, it could be an inordinately good hit with a .380 or 9mm, but more likely it’s a .40 or .45.

Yes, the .380 and 9mm will do the job, but usually multiple hits are required as opposed to single hits with a .40 or .45.

Instead of individual replies to each of these questions, let me see if I can narrow some observations down into one long one. Forgive me if some of these have been in other posts, but they bear repeating.

First, ballistic gelatin, being all that’s available for most bullet testing, is good as far as it goes but it’s often far different from what we see in the morgue. A far more realistic scenario would be to dress up ballistic gelatin with a heavy coat of denim to mimic blue jeans, embed some bones obtained from a butcher shop, and throw in a few objects of varying densities to mimic organs. Try it again, and I think you’ll see that this impressive wound cavity that’s so often seen in ballistic gelatin goes down the tubes. The human body isn’t just composed of one density as ballistic gelatin is, and the bullet does various things to various parts of the body as it passes through.

And that’s why I think observations from a morgue are so important. Day in and day out, I get to see what works and what doesn’t. More than that, I get to see what the same caliber does with various bullets weights and designs and how it reacts to different parts of the body. The best of all are when the gangbangers use the mix and match technique and shoot a variety of bullets in the same magazine and these bullets wind up in the same victim shot from the same gun. Hardball and hollowpoints in the same body from the same gun give a great comparison on the effectiveness of each.

To be continued. Please e-mail your comments to

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See also Notes From the Morgue.

THE LIVING CONSTITUTION

This week I was amazed to read in the NEW YORK TIMES that some conservative legal scholars think that the recent Second Amendment case, DC V HELLER, is a case in which the conservative Supreme Court justices made a decision based on judicial activism. For those initiated into the arcane intricacies of Constitutional jurisprudence, this is tantamount to accusing the majority in HELLER of un-American activities- at least from the standpoint of the strict-constructionists (like Justices Scalia, Alito, Thomas and Chief Justice Roberts. The epitome of judicial activism is Roe v Wade in which the Court held that a woman’s right to privacy, although not identified as a constitutionally protected right in the text of the U.S. Constitution, nevertheless exists by virtue of a “penumbra” that emanates from the text.

Thus, in modern times the theory has arisen that the “living Constitution” changes and mutates in organic, almost Darwinian progression along with changes in American society and evolving international norms. Strict-constructionists (like the conservatives in the HELLER majority) maintain that we are going down the road to dictatorship from the unelected judicial and academic elite when we depart from the original meaning of the text as understood by the men that drafted the document.

The NEW YORK TIMES article quotes Judge Richard A. Posner’s August, 2008 article in THE NEW REPUBLIC in which he wrote that the HELLER court’s failure to allow the political process to work out varying approaches to gun control that were suited to local conditions “was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade.” Such criticism cannot be dismissed- Posner is preeminent among modern legal thinkers!

Then we have another well-recognized judge, J. Harvie Wilkinson III, stating, “The ROE and HELLER courts are guilty of the same sin.” So was the HELLER majority running roughshod over the states and making new law by judicial fiat?

The article in the NEW YORK TIMES fails to note one very important aspect of the HELLER, decision; i.e., the decision pointedly does not guarantee a right to keep and bear arms in a situation where state government action poses the threat to gun owners. The Court took the HELLER appeal in order to decide whether the right to keep and bear arms is an individual right while exercising judicial restraint by deciding a case that only impacts Washington, DC, at this time.

The U.S. Constitution originally restricted the federal government’s powers; in relatively modern times, the Court has applied its decisions to the several states. The Fourteenth Amendment, enacted after the Civil War to protect newly freed black citizens, is the rationale by which some Constitutional protections are incorporated so as to protect citizens from our own state legislatures and other state officials- including the above mentioned right of privacy that a woman can assert against her husband, the life of a child (right up to and beyond birth) and any claims that families and society can make regarding parental rights and related concerns.

At the time of the debate over passage of the Fourteenth Amendment, Southern Democrats argued that if the new citizens’ rights were protected then blacks would own guns. The Northern Republicans answered them by telling they were damned right! It is worth noting also that none of the legal scholars quoted by the NEW YORK TIMES claimed that the Second Amendment is a “corporate” right that does not apply to individuals.

The NEW YORK TIMES article explains that some prominent liberal law professors, including Laurence H. Tribe of Harvard, Akhil Reed Amar of Yale and Sanford Levinson of the University of Texas, have concluded, sometimes reluctantly, that the amendment in fact protects an individual right. The Supreme Court appointments made by the new president may decide if and how and when the Second Amendment protects many of the rights that you and I cherish. So now that you have voted, did you vote with a careful view as to how the Constitution should be read?

The horse is prepared against the day of battle: but safety is of the LORD.

Proverbs 21:31 (King James Version)
King James Version (KJV)

The ultimate force is love. Everything we do has to be motivated by love. That is why we constructed this site. To express love for our community, our servicemen and law enforcement; to encourage sensible solutions to the threats that seem to be gathering.

When the righteous are in authority, the people rejoice: but when the wicked beareth rule, the people mourn. Proverbs 29:2

We can blow the trumpet until we are blue in the face but if it is not motivated by love, we have accomplished nothing.

So why does our site advocate self-defense?

10 USC 311. Militia: composition and classes

(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 commissioned officers 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 above referenced federal law recognizes an organized and an unorganized militia. The United States Constitution and the Washington State Constitution clearly recognize an individual right to keep and bear arms. It also states that there is no right to maintain a militia. The prohibition against militias is in reference to a standing (or organized militia) as opposed to the “unorganized” or militia at large (as it used to be known).

The media often equates the concept of a militia with vigilante actions. Militias have been associated with racism and unlawful activities in times past. The concept of the militia-at-large is a legal concept that has its roots in the interest of the people in assisting our government in times of need. There is no place in society for people to take matters into their own hands when it comes to meting out justice. The only situation in which a citizen would be justified in using deadly force is in defense of self or others. All the Founding Fathers and every generation of Americans recognized this concept up through the present time.

Ironically, many generations of large scale military bureaucracies and the collectivist mentality fostered by big government programs have resulted in the idea that the people should surrender all control over the means of self-defense, including personal protection.

The Book of Jude makes reference to “…men that speak abusively against whatever they do not understand; and what things they do understand by instinct, like unreasoning animals- these are the very things that destroy them.”

With all the freedom in the U.S. to question our leaders and aggressively express dissent, we should not forget to respect our government. People that rail against government seem to be the kind of people that are referenced in the Biblical passage quoted above. On the other hand, it takes a very shallow-minded individual to think that the world will be safer if we all just trust our government to keep us safe. While the sheep dogs are burying a bone or two, the wolves may be scarfing up the sheep!

Dictators and arrogant bureaucrats are usually intent on depriving citizens of the means for meaningful alternatives to governmental monopolization of force

When it goeth well with the righteous, the city rejoiceth: and when the wicked perish, there is shouting.

Proverbs 11:10 (KJV)

We want to be prepared to give an answer to everyone who asks us to give the reason for the hope that we have. But to do so with gentleness and respect….

We are blessed to live in a free nation that has the strongest military in the world. We should not take either of these premises for granted because the very attributes that make a free nation free and successful can undermine that nation. History is replete with many successful civilizations that faltered and lie buried in the dust. You and I are the militia just by virtue of being prepared, vigilant and jealously guarding our liberties. We welcome President-elect Obama and look forward to a new time in U.S. government, a prosperous time in which our liberties will thrive.

Freedom: A democracy is two wolves and a small lamb voting on what to have for dinner.
Liberty is a well armed lamb contesting the vote.

-Benjamin Franklin (1706-1790)

See also Surveillance Detection.

Many gun owners are interested in holding certain items that are restricted under the National Firearms Act. There are several advantages in using revocable trusts to hold weapons and other components that come under the purview of Title II of the NFA.

We are working with Apple Law Firm, PLLC to help interested gun owners get an NFA Trust in place. You may want to go to NFA Gun Trust Lawyer Blog to find out more.

You will need a Class III license to own a Title II weapon and the BATF will not permit ownership of weapons that violate Washington State and other states’ firearms laws. Thus, you need to know the laws in more than one jurisdiction if you are interested in obtaining suppressors, automatic weapons and any other weapons that are restricted under federal and state laws. As time goes on, we will start posting more articles on such subjects.

Generally a Firearms trust only works for the weapons or class 3 items that are legal in the state where they will be stored unless the state laws permit businesses and trusts to own but not individuals. In Washington, a trust would not allow an individual to purchase a machine gun, but it would permit them to purchase an AOW (a separate category of restricted weapons) without the permission of the CLEO (a specific local/state law enforcement officer required under federal law to approve possession of certain items) and give the additional protections that a trust can offer.

While you are checking out the links, click on the link to a recent article on Why the Second Amendment Matters published in our local Federal Way Mirror.

See also The Living Constitution?

Attorneys for various municipalities around Washington State have issued legal opinions that RCW 9.41.290 “only applies to the regulation of firearms themselves” and “excludes regulations that only secondarily affect firearms… that do not embody a punitive regulation”. The Washington State Attorney General’s Office issued a legal opinion last week that thoroughly rebuts such opinions based on Cherry v Metro and another case that dealt with certain narrow issues applied to a venue for a gun show leased from the City of Sequim, washington.

We previously pointed out in a letter dated May 22, 2008, that the so-called “legal authority” on which many jurisdictions are relying is contrary to any reasonable analysis of the law. Incidentally, the City of Federal Way is now in full compliance with state law as of January 8, 2009.

The legislature has put cities and counties in Washington on notice that local governments’ hands are tied when it comes to restricting our gun rights- even inside the building where the jails and police stations are located. If the City can’t disarm you inside City Hall, how can it force you to be defenseless in the City’s Parks? Keep in mind- cities can only enact those laws and ordinances relating to firearms that are specifically authorized by state law.”

There was recently a mass shooting in another state where the attacker shot and killed a uniformed police officer as a prelude to killing several other people during a City Hall meeting. Our state’s legislature has decided that the solution to such scenarios is not to disarm the people but to make sure that many honest people will be armed when violence occurs.

The key case is Cherry v Municipality of Metropolitan Seattle, a case in which a Metro employee was fired for bringing a gun to work. The folks that seek to repeal or subvert the state preemption law assert that Cherry is authority for disarming you when you cross onto City property. Despite such bold assertions, the Cherry case just stands for the premise that if you work as a municipal employee, you may be prohibited from carrying a weapon while on the job.

There are presently cities all over Washington State receiving the same advice as Federal Way. The reason for such advice is because many politicians in Washington, like Mayor Greg Nickels in Seattle, don’t like the state preemption law and have announced publicly that they want it repealed. Lawyers often provide advice that will provide justification for the client’s agenda (e.g., to restrict your gun rights). Prior to the AG issuing the opinion putting anti-gun politicians in their place, cities were being advised by counsel to rely on the case of Pacific Northwest Shooting Park Association v Sequim in order to wage their quiet jihad on your ability to protect your family and loved ones.

In Pacific Northwest Shooting Park Association v City of Sequim, 158 Wash.2d 342 (2006), the court held that the City of Sequim was acting in a private capacity when leasing out a city convention center to an association conducting a gun show within the premises belonging to Sequim. Basically the court decided that the laws that apply to public parks, public meetings and other municipally owned premises and property are not the same as restrictions imposed on private parties per a city’s contractual relations with private parties.

AGO Opinion 2008-8 essentially states that the City of Federal Way’s conclusion that the city has the right “to decide as an owner how its property is used” would render the preemption statute meaningless. In the event civil litigation becomes necessary, attorney fees could be very high especially in the face of the unequivocal legal authority outlined herein.

As stated already, there are several jurisdictions within the State of Washington that are not presently complying with the preemption law and firearms owners are becoming very concerned that such callous indifference to state law may endanger the lives of Washington citizens in direct contravention of legislative intent!

The best defense for the citizens of Washington state, all of whom are vulnerable to random shootings and street violence is to limit the number of “gun free” zones that are available as kill zones to criminals, terrorists or other deranged individuals seeking publicity by mass shootings. Almost all such shootings have occurred in areas where honest citizens have been rendered defenseless by laws or policies that violate RCW 9.41.290.

See also The Living Constitution?

Medellín v Texas is a landmark that stands for freedom in the United States.

See United States

In recent years, some members of the U.S. Supreme Court have made attempts to meld U.S. law with foreign law. International norms are apparently a new prism through which U.S. Constitutional law should be interpreted, according to some justices.

For example, in criticizing the Court’s own previous decision upholding state laws against consensual sodomy, the Court stated:

Where a case’s foundations have sustained serious erosion, criticism from other sources is of greater significance. In the United States, criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. And, to the extent Bowers relied on values shared with a wider civilization, the case’s reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. Lawrence v Texas reversing Bowers v Hardwick

In the Lawrence v Texas decision, the majority opinion focused on global economics and world order as a justification for reversing an opinion that the U.S. Supreme Court delivered seventeen years before.

Medellin is a death penalty case but the Supreme Court did something more important than just deal with the issue of whether the State of Texas must give a psychopath a new trial. In Medellin, the strict-constructionist members of the Court put a death knell to the concept that international tribunals, treaties and legal usages are binding on states like Texas (and the State of Washington). For example, by holding as it did in Medellin- that international treaties and presidential orders do not trump state laws- the Court may have protected Americans from the UN Treaty on Small Arms that the UN is preparing to promote very heavily in the U.S. (the UN has been working on this agenda throughout the world- even as the UN remains a haven for genocidal regimes of every stripe). The “Progressives” who are up in arms against the Roberts Court are livid, according to the Wall Street Journal:

Though the case became a global cause célèbre, its sordid origins trace to 1993, when José Medellín, a Mexican national, murdered two Houston teenagers. He was sentenced to death by a Texas jury, but his lawyers argued on appeal that he hadn’t had access to Mexico’s consulate before he confessed to his crimes.

This was a violation of the 1963 Vienna Convention, which holds that diplomats are supposed to be notified when their nationals are arrested. In response, the U.S. government took steps to ensure states better comply in the future, both to fulfill its treaty obligations and serve the reciprocal interests of U.S. citizens detained abroad.

But Mexican authorities made the case a referendum on capital punishment and international legal norms, ultimately suing the U.S. in the International Court of Justice at The Hague. The ICJ ruled in Mexico’s favor, ordering states to give Medellín and some 51 other nationals new hearings. The question before the Supreme Court was whether such international dictates must be enforced by sovereign state courts. An affirmative answer might have gone a long way toward validating the expansive claims of liberal legal theorists that U.S. courts take instruction from the U.N., among other moral oases.

Chief Justice John Roberts, writing for the 6-3 majority, ruled that the ICJ finding was not binding because the Vienna Convention is an understanding between governments. It is a diplomatic compact that was never intended to automatically create new individual rights enforceable domestically by international bodies. Texas’s violation was of diplomatic protocols, and calls for a diplomatic remedy.

Treaty provisions must be in accord with the plain meaning of the Constitution as it is written, not as some European-style socialists would have it to be. This distinction establishes a fire wall between international and domestic law. It also protects the core American Constitutional principles of federalism and the separation of powers.

Justice Roberts pointed out that courts must leave to the political branches the primary role in deciding when and how international agreements will be enforced.

Medellín v. Texas also swatted away a claim of Presidential power. According to the WSJ, the Bush Administration attempted to calm the diplomatic world by directing states to comply with the ICJ ruling in a 2005 executive order.

The Court ruled that the President’s power is limited by the Constitution. Authority to make treaty commitments does not extend to unilaterally asserting new state responsibilities or legal duties. The executive makes new laws subject to the legislature. The same crowd that is so suspicious of the Bush Administration’s claims of executive power, can’t wait to turn the executive powers over to international politicians who have already banned guns in most of Europe, Australia and Canada, to name a few!

Another safeguard provided by the Medellin case, is the safeguard against potential hate speech laws that chill your First Amendment freedoms. Hate speech laws are being used all over the Western World to silence criticism of Islam. If the multiculturalist crowd has its way, it could become a crime to make statements in the United States of America that violate hate crime laws like the laws enacted in Australia and Canada and many Western European nations. Hopefully we will continue to have Supreme Court Justices that recognize this kind of totalitarianism disguised as multiculturalism as a threat to liberty and free speech.

The Medellín majority has delivered a victory for the U.S. Constitution. For many years, the elite lawyers and politicians have been claiming that the Constitution is always changing based on the needs of each generation. This is not rule of law but an argument for tyranny which would interlineate international norms in place of bedrock Constitutional norms.

There are still many law professors and judges that think treaties supersede the U.S. Constitution. Hopefully the Medellin case has put such legal doctrines to rest! The decision went against the Bush Adminstration this time but if Medellin is reversed the next decision could impose UN-made laws that shut down our ability to conduct full debate on many important issues. Debate is often a strength that promotes new ways of dealing with threats and opportunities.

Ironically, we have President Bush to thank for men like Chief Justice Roberts and the other justices on the Court that read documents in plain English and just said NO to the Bush Administration’s overly aggressive claim of presidential power.

See also Perverting the Bill of Rights.

Here is an excerpt from some of the Court’s questions and the answers in DC v Heller:

JUSTICE BREYER: Now, focus on the handgun ban. As I read these 80 briefs – and they were very good, I mean really good and informative on both sides – and I’m trying to boil down the statistics where there is disagreement, and roughly what I get – and don’t quarrel with this too much; it’s very rough – that 80,000 to 100,000 people every year in the United States are either killed or wounded in gun-related homicides or crimes or accidents or suicides, but suicide is more questionable. That’s why I say 80,000 to 100,000. In the District, I guess the number is somewhere around 200 to 300 dead; and maybe, if it’s similar, 1,500 to 2,000 people wounded. All right.

Now, in light of that, why isn’t a ban on handguns, while allowing the use of rifles and muskets, a reasonable or a proportionate response on behalf of the District of Columbia?

MR. GURA: Because, Your Honor, for the same reason it was offered by numerous military officers at the highest levels of the U.S. military in all branches of service writing in two briefs, they agree with us that the handgun ban serves to weaken America’s military preparedness. Because when people have handguns -handguns are military arms, they are not just civilian arms – they are better prepared and able to use them. And, certainly, when they join the military forces, they are issued handguns.
And so if we assume that the sort of military purpose to the Second Amendment is an individual right, then the handgun ban, as noted by our military amici, would impede that.

JUSTICE SOUTER: Can we also look to current conditions like current crime statistics?

MR. GURA: To some extent, Your Honor, but we have certainly -

JUSTICE SOUTER: Well, can they consider the extent of the murder rate in Washington, D.C., using handguns?

MR. GURA: If we were to consider the extent of the murder rate with handguns, the law would not survive any type of review, Your Honor.

JUSTICE BREYER: Whose judgment is that to -

JUSTICE SOUTER: The question is whether they may consider those statistics, and I take it your answer is yes?

MR. GURA: Well, those statistics might be considered in some way, the fact is that at some point there is a role for judicial review. And you can’t just grab at statistics – and some of the statistics that were used here are very weak, and studies that have been rejected by the National Academy of Sciences repeatedly. I mean, we don’t really have – it’s hard to say that those laws -

JUSTICE SOUTER: But I think – I don’t want you to misunderstand my question. My question is that by looking to the statistics, I’m not suggesting that there is only sort of one reasonable response to them. I want to know whether – whether the policymakers may look to them; and I take it your answer is yes?

MR. GURA: To some degree, yes, policymakers have to be informed by what’s going on in order to make policy. However, there are constitutional limitations enforced by courts that are going to limit those policies. And when you have a ban which bans 40 percent of all weapons that are the type of weapons used by civilians, 80 percent of all self-defense occurs with handguns; when you have that kind of ban, functional firearms ban, these are extreme measures -

JUSTICE KENNEDY: But Just to be clear -and I don’t want to misstate your position, but my understanding, I at least inferred that you would consider it reasonable to ban shipment of machine guns and sawed-off shotguns in interstate commerce?

MR. GURA: Yes, Your Honor.

JUSTICE STEVENS: And how about a State university wants to ban students having arms in the dormitory?

MR. GURA: Certainly that creates some sort of an evidentiary record. Conceivably that -

JUSTICE STEVENS: That’s the bare fact. That’s what – a State regulation prohibits students from having arms on campus.

MR. GURA: We would have to do -

JUSTICE STEVENS: You’d have to think about that.

MR. GURA: – some fact finding. It’s something that might be doable, but again, that’s so far from what we have here. We have here a ban on all guns, for all people, in all homes, at all times in the Nation’s capital. That questionably is too broad and too sweeping under any level of review.
Thank you, Your Honor.

CHIEF JUSTICE ROBERTS: Thank you, Gura.

For complete audio transcript of the oral arguments in DC v Heller go to Oyez.

Recently the Detroit News carried an article about women who carry more than credit cards in their purses.

One woman stated, “The first time I shot a gun was in February. I was a practicing at a firing range and I felt empowered when I held it in my hand and fired.”

“In that instant, I knew carrying a gun was something I wanted to do. I decided to get a personal weapon because of all the craziness going on today. My mother has been armed for many years and because of the times, it’s more of a necessity.”

So what are the statistics for concealed carry permits in Seattle and vicinity? By gender, age, etc. We aim to get those statistics and if you have some statistics, please e-mail them to us:

Between 1988 and 1996, gun ownership by women nationwide skyrocketed by over 70 percent. January 1996 data from the Washington State Department of Licensing Firearms Unit show that 18.6 percent of all concealed-handgun permit holders (past and present) in Washington are women. That’s 118,728 pistol-packing moms, daughters and grandmas from Seattle to Spokane.

According to John Lott, the longer “shall issue” laws (such as Washington’s concealed carry law that requires a permit to issue within thirty days) are in place in a state, the more effective they are. In the period studied, for every five years a shall-issue law was in place, murder rates dropped by at least 15 percent, robberies by 11 percent and rapes by 9 percent. The benefits of concealed-carry laws for women are especially striking. According to Lott’s research, one additional woman carrying a concealed handgun reduces the murder rate for women by about three to four times more than one additional man carrying a concealed handgun reduces the murder rate for men.

Recent announcement about threat to ports that may indicate ports in Tacoma and Seattle are vulnerable to attack:(January 9, Houston Chronicle) National Study doubts ports’ security. The Coast Guard lacks the resources to meet its own security standards to protect against terrorist assaults at American ports, even as the nation is to dramatically expand imports of liquefied natural gas, the Government Accountability Office has found. The GAO, in a report made public Wednesday, noted that while U.S. intelligence officials know of no specific threat to American ports, captured terrorist training manuals have cited seaports as potential targets. And terrorism trainees are instructed to try to obtain surveillance information on ports for use in a possible attack.

However, “despite considerable efforts to protect ports and the energy traffic in them, the level of protection is not where the Coast Guard believes it should be,” the report said. “At some ports, Coast Guard units are not meeting their own levels of required security activities.” Ports are inherently vulnerable, the report said, because they are often sprawling facilities, close to major urban centers like Houston, and with access by both land and sea. Ships are likewise targets, since they travel along known routes, often through waters that do not allow room to maneuver away from potential threats, the report noted. Among its recommendations, the GAO urged the Department of Homeland Security, which includes the Coast Guard, to develop a national plan to balance the need to meet its new LNG security burdens while also handling all of its existing security responsibilities.

Wouldn’t we be safer if more people took advantage of their gun rights?

According to LAUREL S. BARTON, a recent guest columnist in the Seattle PI, Seattle Mayor Greg Nickels’ quoted the figure of 550 violent firearms crimes in 2005. Nickels’ is one of the mayors around the country that thinks we need more common sense in our gun laws. In other words, Nickels wants more gun control while Seattle refuses to cooperate with the federal government in getting illegal aliens out of the city (See story on Seattle’s Sanctuary law).

Ms. Barton goes on to say:

Most people will be horrified and will fail to ask the crucial, underlying question: How many of those guns were purchased legally? After all, laws will affect guns legally acquired, not those from secondary sources. The answer: 15 percent of guns used in crimes are legally obtained. That leaves 85 percent unaffected by changes to gun control laws.

The number of crimes prevented by firearms based on incidents reported to the police nationwide is roughly 64,615 yearly; the estimate can jump as high as 2.45 million if one factors in unreported cases. Compare those numbers to 30,000 gun-related deaths yearly and one can see the difference is, at the very least, 34,000 people saved by guns.

Many gun control advocates are pressuring the legislature to amend the Washington State statute that prohibits local governments from passing local restrictions, thus creating a confusing patchwork of local laws:

RCW 9.41.290
State preemption.

The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

See Washington Cities Enact Illegal Gun Laws

In Cook County, Illinois the laws may change every time you cross a city line (Illinois is one of the few states that does not allow any concealed carry). Such patchwork laws would pretty much kill Washington State’s statutory provisions allowing concealed carry (with a permit). The Washington State Constitution clearly (and unequivocally) identifies the right to bear arms as an individual right. By the way, the Founders of the Republic drafted the Bill of Rights very clearly. But some people think the U.S. Constitution is written in tea leaves and question what the meaning of “is” is!

According to the Detroit News, Americans own more than 200 million firearms, more than 60 million of which are handguns (National Institute of Justice statistics):

“Figures vary widely about the gender breakdown of ownership, but federal statistics claim 9 percent of women own guns.”

Brian Anse Patrick, a professor at the University of Toledo who studies gun culture, has observed that as concealed carry permits are becoming available due to laws that are rapidly changing in may states the issue of comcealed carry has become mainstream and more women are carrying:

“Before the CCW laws were liberalized, the people getting trained traditionally in gun culture were the old white guys,” Patrick said. “But after (2001) women said, ‘I am a woman and at risk and it’s a pretty sensible thing to do.‘”

There are many local ranges in Seattle-Tacoma area where men and women can learn about the laws and the mecanics of concealed carry, including shooting schools. We have many links at the Link Page herein.

“Few women feel comfortable with a guy showing them how to shoot,” Sullivan said. “A lot of the women come and become better shooters than their husbands. Others want to defend themselves.”

Some of the classes are just for women only because some women have never been around a gun and feel more comfortable learning in a group with other women.

In Colorado, a woman named Jeanne Assam, was thrown right into the path of a mad-dog killer:

Amid deafening cracks of gunfire, smoke-spewing canisters and the flight of thousands of New Life Church members, Jeanne Assam said she suddenly saw the hallways clear and a gunman come through the door.

“I took cover. I identified myself. I engaged him. I took him down,” the 42-year-old former law officer and volunteer church security guard said Monday at a news conference in the Colorado Springs police station.

Murray was carrying two handguns, an assault rifle and over 1,000 rounds of ammunition, said Sgt. Jeff Johnson of the Colorado Springs Police Department.

See also Michelle Malkin “Feminization of Gun Debate.”

“Generally a lot of women are out alone at night and they just want to feel like they have that level of protection. There are also a lot of single moms who feel it is important to protect their family and their kids in that regard.”

You may not only save your own life by preparing ahead but you could save a port facility from exploding in a blaze of liquefied natural gas! Many people tell me that they will use deadly force if they have to but seem to expect that they will get some advance notification of when the time has arrived. The time to get your concealed carry license is now. If you are a woman or man that has questions, comments or additional information, including statistics pertaining to concealed carry permits issued in the Seattle-Tacoma area you should send us an e-mail at knapp.m@comcast.net.

It has come to our attention that Paul Ferris, the preeminent firearms lawyer in the State of Washington, is warning anyone that has ever been convicted of domestic violence in Washington State that the NICS and BATF no longer view a Restoration of Rights under Washington law as valid under federal cases dealing with the definition of civil rights. Here is an excerpt from Mr. Ferris’ Washington Record site and a link for the full text:

There has been a reversal in the position of the Bureau of Alcohol, Tobacco and Firearms (ATF) and the National Instant Check System (NICS) regarding Washington State court orders restoring firearm rights to persons convicted of misdemeanor crimes of domestic violence. Many Washington State citizens with misdemeanor DV convictions followed established procedures in pursuing relief from federal prohibition by obtaining a state court order restoring firearm rights. This procedure for relief was typically recommended by NICS in appeal letters. A state court order restoring firearm rights removed the federal prohibition because the federal statute expressly contained an exception for offenders whose right to possess had been restored:

A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

The issues lies in the interpretation of “civil rights". The federal government had been treating the right to possess firearms as a civil right lost upon conviction of a misdemeanor DV crime. Typically, civil rights refers to core rights such as voting, holding elected office and serving on a jury. Recent federal court decisions in many circuits hold that the right to possess firearms is not a civil right. Thus, ATF and NICS now take the position that a Washington State court order restoring firearm rights to misdemeanants does not remove firearm prohibitions under federal law because the conviction does not result in the loss of civil rights.

Not all circuits have taken this position. However, Washington State is in the 9th Circuit and a violation of federal firearm laws in this state could be prosecuted in federal district court under precedents in this jurisdiction.

It is important to note that a state court order restoring firearm rights is still necessary and valid (within state jurisdiction but not federal) to remove prohibitions under state law for domestic violence misdemeanors. Without one, an offender would be subject to prosecution by the State of Washington for a felony charge - unlawful possession of a firearm in the second degree - if found in possession of a modern firearm or muzzleloader.

The Wyoming Attorney General recently filed a lawsuit in federal district court over the federal government’s refusal to honor Wyoming state procedure for restoring gun rights in domestic violence misdemeanor cases. Perhaps our legislators will soon realize the fiasco created by the Lautenberg Amendment and join the efforts to repeal it. Please contact your representatives and encourage them to become educated about this issue and respond appropriately.

Note that vacating a Washington conviction does not completely expunge or set-aside the conviction as required by federal law under federal interpretations of the Tenth Circuit in the case of Wyoming ex rel Crank v United States. The 2008 Crank decision may be a moot issue in Washington because it has been recognized for some time that in order to restore gun rights it is necessary to petition the Washington State courts for a Certificate of Rehabilition and Restoration of Firearms Rights.

In the Crank case, the State of Wyoming sued the BATF because the BATF interpretes the state expungement statute in such a way that federal gun rights are not restored subsequent to a restoration of rights under Wyoming law. Washington is in the Ninth Circuit and our statute, enacted by the legislature to restore gunrights, is significantly different than the Wyoming expungement statute that was the issue in Crank. However, it is not enough to merely vacate the conviction under RCW 9.96.060(3). You must obtain a Certificate of Rehabilitation under RCW 9.41.047.

For now the bottom line seems to be that if you were convicted of a felony (and lost your voting rights and other civil rights) and Washington state restores your right to possess a weapon then the BATF and NICS will recognize Washington’s restoration of your gun rights. On the other hand, if your rights are restored subsequent to a DV that is not a felony, the fact that your other civil rights were not taken away under state law dictates that Washington cannot restore your rights in a way that the BATF and NICS will recognize.

See Logan v US and United States of America v Brailey.

For some good news, see the Second Amendment Foundation’s News Release; courts are shooting down cities and anti-gun mayors that enact illegal laws:

See SAF Amicus Brief in U.S. v Hayes and see also:
Ohio Supreme Court Upholds Gun Rights.

The SAF brief is especially important because Justice Scalia’s majority opinion in DC v Heller drew on many sources referenced in the following brief.

The Second Amendment Foundation (“SAF”), a tax exempt organization under § 501©(3) of the I.R.C., is a non-profit educational foundation incorporated in August 1974 under the laws of the State of Washington.

SAF seeks to preserve the effectiveness of the Second Amendment through educational and legal action programs. SAF has 650,000 members and supporters residing in every state of the Union.
♦ ———————————
The language, grammar, and history of the Amendment show both that its protection is not limited to militia related activities, and that the protected right does extend to having arms for self defense against violent criminals.
♦ ———————————
ARGUMENT

United States v. Miller is unworkable: Petitioners’ principal claim is that the 2nd Amendment “protects the possession and use of guns only in service of an organized militia.” This interpretation leads to one of three untenable conclusions:

• that the federal government is free to eliminate the people’s constitutional right to keep and bear arms by abolishing or failing to maintain an organized militia, a conclusion that is absurd on its face; or

• that American citizens have a right to require the federal government to maintain an organized militia in which they can keep and bear arms, which implies–contrary to all historical evidence– that the Second Amendment substantially amended the provision of Article I giving Congress virtually unfettered authority to regulate the militia;4 or

• that the Second Amendment forbids Congress to preempt state laws conferring a right to keep and bear arms while serving in a state militia, which has the problems discussed below.

Petitioners appear to adopt this third alternative, which is fatally flawed.

1. Like the second alternative, it entails an historically unsupported assumption that the Second Amendment substantially altered Congress’ Article I authority to regulate the militia.

2. A right of the states to organize and arm their own militias as they see fit conflicts with the constitutional prohibition against their keeping troops without the consent of Congress.

3. This Court has consistently concluded that the federal government has extremely broad powers to preempt state militia regulations, and has never suggested that the Second Amendment has any relevance at all to preemption questions. E.g., Houston v. Moore, 18 U.S. 1 (1820); Perpich v. Dep’t of Def., 496 U.S. 334 (1990).7 Accordingly, petitioners’ interpretation of the Second Amendment is insupportable.

The Miller case suggests an interpretation that is different from petitioners’, and more facially plausible, namely that private citizens might have a right to possess weapons that are “part of the ordinary military equipment or [whose] use could contribute to the common defense.”

This test (which is not Miller’s holding) implies that American citizens have a right to possess at least those weapons that an unaided individual can “bear” and that “could contribute to the common defense.” Today this would include, at a minimum, the fully automatic rifles that are standard infantry issue, and probably also shoulder-fired rockets and grenades.

When Miller was decided, infantry were typically armed with the same sort of bolt-action rifles that civilians commonly kept for use in everyday life.

Dissenting in Houston v. Moore, Justice Story noted that the Second Amendment at most might confirm that states have a limited concurrent power to regulate their militia “in the absence of, or subordinate to, the regulations of Congress.” 18 U.S. at 52-53. Cf. Hamilton v. Regents, 293 U.S. 245, 260 (1934)(citing Second Amendment when noting that state militia laws that are not preempted must also transgress “no right safeguarded to the citizens by the Federal Constitution”).

The SAF brief goes on to explain that the Miller case focused on whether the weapon (a sawed-off shotgun) was militarily useful and concludes that such an approach is ambiguous when it comes to deciding whether individuals can assert the Second Amendment right to keep and bear arms apart from membership in a state sponsored militia:

Accordingly, the ambiguous opinion in Miller should be read to hold only that this Court required further evidence before it could decide whether an unregistered short-barreled shotgun was, in the circumstances presented by that case, covered by the Second Amendment.

As the following discussion will show, the purpose of the Second Amendment is to prevent Congress from using its Article I authorities, including its authority to regulate the militia, to disarm American citizens. The principal reason for including a preamble praising the militia – a preamble that does not substantively alter the operative prohibition on federal overreaching – was to endorse the traditional citizen militia, which many Americans preferred as an alternative to standing armies.

The language, grammar, and history of the Amendment demonstrate both that its protection is not limited to militia related activities, and that the protected right does extend to having arms for self defense against violent criminals.

II. The text of the Second Amendment establishes that the constitutional right extends beyond militia-related weapons and activities.

Eighteenth century state constitutions frequently included explanatory language that was manifestly over- and/or underinclusive.See Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793 (1998).

A. The grammatical structure of the Second Amendment does not imply that the purpose of the constitutional right is limited to fostering a well regulated militia.

The most significant grammatical feature of the Second Amendment is that its preamble is an absolute phrase, often called an ablative absolute or nominative absolute.

Such constructions are grammatically independent of the rest of the sentence, and do not qualify any word in the operative clause to which they are appended. The usual function of absolute constructions is to convey some information about the circumstances surrounding the statement in the main clause.

The Northwest Ordinance (for example) stated that “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged".

The SAF brief goes into a fairly tedious grammatical discussion that includes very some tecnical details pertaining to the syntax and linguistical construction of the preamble’s endorsement of militias. Some editorialists have criticized Justice Scalia’s opinion (which contains even more linguistical analysis) arguing that the majority tortured the English language in order to achieve an outcome-oriented “activist” decision.

Of course, the reality is that Justice Stevens and his Constitutional wrecking crew (aka the minority) are the judical activists. Justice Stevens leaps through a series of mental gymnastics in order to conclude that only state militias are encompassed in the Second Amendment’s language. Individuals, according to the minority, have no recourse under the Second Amendment. Why- because the Miller case held that weapons must have useful military purposes and that sawed-off shotguns lack such military usefulness. It takes a great deal of linguistic agility to get from Miller to Justice Stevens’ dissent. Justice Stevens’ dissent makes for great reading- if you want to major in psycho-linguistics! The reality is that Miller was about the federal government’s ability to regulate firearms and had nothing to do with asking the question before the Court in Heller; i.e., the question of whether the Second Amendment is an individual right.

No one even questioned the meaning of the Second Amendment in the 1930s. The Miller case was decided not long after the federal government made its first foray into controlling weapons like sawed-off shotguns and machine guns.

Prof. Lund’s brief on behalf of SAF continues:

C. “The people” referred to in the Second Amendment has always been a much larger body of individuals than the militia.

The militia has always been a small subset of “the people” whose right to keep and bear arms is protected by the Second Amendment. James Madison, for example, estimated that the militia comprised most obviously…

… women were not part of the eighteenth century militia, nor are they included today (except for female volunteers in the National Guard). Women, however, have always been citizens and thus part of “the people.” See, e.g., Minor v. Happersett, 88 U.S. 162, 165-70 (1874) (although women did not have voting privileges, they were part of “the people” who ordained and established the Constitution, and they have always been citizens).

Just as women have always been covered by the First Amendment’s “right of the people” to assemble and petition for redress of grievances, and the Fourth Amendment’s “right of the people” to be secure from unreasonable searches and seizures, women have always had the same Second Amendment rights as men.

Even if one mistakenly supposed that “the people” referred to in the First, Second, and Fourth Amendments included only those citizens with full political rights (thus excluding women), the militia and the people would still remain substantially noncongruent.

Under the Second Militia Act of 1792, for example, the militia included most free, able-bodied male citizens who were at least 18 but under the age of 45. This would have included a substantial number of men who were not old enough to vote. The framers of the Bill of Rights knew how to draw precise distinctions between rights appertaining to militiamen and those belonging to the general population. See U.S. Const.amend. V (requiring presentment or grand jury indictment “except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”).

This example further undermines the supposition that the framers thoughtlessly conflated the militia with the people in the Second Amendment. Political speeches during the founding period sometimes seemed to equate the militia with the people. Careful attention to the context, however, shows that such statements were not meant literally, but rather served rhetorically to contrast a relatively broad-based militia with narrower variations. See,e.g., 10 The Documentary History of the Ratification of the Constitution 1312 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (George Mason at the Virginia ratifying convention); 2 The Complete Anti-Federalist 341 (Herbert J. Storing ed., 1981) (Federal Farmer).

Thus, the militia included many men who did not have full political rights. The opposite form of noncongruence was also significant. Those who were physically unable to perform militia duties, as well as those aged 45 and older, still had all their political rights, including the right to vote. Besides the numerous men in these categories, many other citizens were legally exempted from militia duties. Thus, many men with full political rights were not subject to militia obligations.

The noncongruence of the militia and the people points to another fatal defect in petitioners’ interpretation of the Second Amendment. Nothing in the Constitution purports to forbid Congress from exempting everyone from militia duties, as this Court has recognized.

III. The nature and history of the Second Amendment confirm that its purpose cannot be confined to fostering a well regulated militia.

The preceding analysis demonstrates that the text does not impose a “militia-related” limitation on the Second Amendment right. The constitutional language, however, would be nonsensical if one could not specify any relation at all between the right to arms and the desideratum of a well regulated militia. There is such a relationship, though not the one assumed by petitioners, who mistakenly contend that the Second Amendment protects access to arms only in the service of an organized militia.

A. The Second Amendment contributes to a well regulated militia by preventing a specific misuse of Congress’ Article I authorities, including its authority to regulate the militiaArticle I of the Constitution gives Congress virtually plenary authority to regulate the militia, and the Second Amendment does not purport to shift any of that power to the state governments. The Court has recognized this fact by deciding numerous preemption cases involving state militia laws without so much as mentioning the Second Amendment. See, e.g., Houston v. Moore, 18 U.S. 1 (1820); Perpich v. Dep’t of Def., 496 U.S. 334 (1990).

Let us focus again on the language of the Constitution. One obvious way for a militia to be well regulated is to be well trained or well disciplined as a military organization, and the framers of the Second Amendment no doubt meant to conjure thoughts of such an organization.
32 The Second Amendment, however, added absolutely nothing to Congress’ almost plenary Article I authority to provide for military training and discipline.

Furthermore, the term “well regulated” also has a broader meaning that is actually more relevant in this context.

It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects. . . . If a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation, and at the disposal of that body, which is constituted the guardian of the national security.

As its operative clause makes clear, the Second Amendment simply forbids one kind of inappropriate regulation (among the infinite possible regulations) that Congress might be tempted to enact under its sweeping authority to make all laws “necessary and proper” for executing its Article I militia powers (or perhaps other delegated powers).

Note: The brief discusses how the drafters of the Bill of Rights were concerned as to the negative consequences of standing armies (much like people today that justifiably express concerns that military exigencies may subvert our Constitutional framework and undermine privacy and freedom. There was also concern that state militias would come under federal control and/or that the federal government would fail to maintain organized militias. Either circumstance would hold the potential of eroding national and local security:

…or (the federal government) may so neglect the militia as to deprive it of any meaningful existence.

B. The Second Amendment’s background and drafting history confirm that the constitutional right is not limited to militia-related purposes.

The history of the Second Amendment confirms this limited and indirect – though real – relationship between a well regulated militia and the constitutional right to arms.

At the Philadelphia Convention, qualms were repeatedly expressed about the danger of standing armies in peacetime, along with a preference for maintaining the militia as an alternative to such armies.

It was also recognized, however, that a traditional militia could not by itself adequately provide for the nation’s security, even in peacetime.

Accordingly, the delegates put no significant limits on federal military authority in the constitution they proposed.38 Near the end of the Convention, however, George Mason recurred to the uneasiness he and others had expressed. Recognizing that “an absolute prohibition of standing armies in time of peace might be unsafe,” Mason proposed that the clause giving the federal government almost plenary authority over the militia be prefaced with the following words: “And that the liberties of the people may be better secured against the danger of standing armies in time of peace.”

James Madison himself spoke in favor of this proposal, arguing that the proposed addition would not actually restrict the new government’s authority, but would constitute a healthy disapprobation of unnecessary reliance on armies.

The only recorded objection, offered by Gouverneur Morris, was that this language set “a dishonorable mark of distinction on the military class of Citizens.”

During the subsequent ratification debates, the massive transfer of military authority to the federal government became one of the chief Anti-Federalist complaints. The Federalists who controlled the First Congress, however, were no more willing than the Philadelphia Convention had been to curtail federal authority in this field.

As Madison noted when introducing his initial draft of the Bill of Rights in the House of Representatives, he was averse to reconsidering “the principles and substance of the powers given” to the new government, but he was prepared to incorporate noncontroversial “provisions for the security of rights.”

Consistent with Madison’s view – though not with petitioners’ interpretation of the Second Amendment – Congress rejected proposals to put substantive limits on congressional authority over armies and the militia.

“What the First Congress was quite willing to do, and what it did do in the Second Amendment, was to make explicit the… denial of federal power to infringe the right of the people to keep and bear arms.”

Like the Mason proposal that Madison had supported at the Philadelphia Convention, though more subtly, Madison’s initial draft in the First Congress lauded the militia without diminishing federal authority to keep up standing armies, and without requiring the federal government actually to maintain a well regulated militia.

In the Madison draft, however, the comment about the militia’s value was attached to a provision guaranteeing a right of the people rather than to a provision about congressional authority to regulate the militia, as Mason’s proposal at Philadelphia had been. This created the potential for confusion, and virtually all of the modifications made in Congress to Madison’s initial draft had the effect of clarifying that the right of the people to keep and bear arms was not confined to the militia context.

That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same.

Although Madison was obviously quite familiar with this proposed amendment, he offered nothing like it to the First Congress. (An unidentified Senator did offer an amendment with the same wording, which was voted down. Id. at 1151, 1152.)

First, the House deleted the reference to a “well armed” militia, which might have misleadingly suggested that the sole purpose of protecting the people’s right to arms was to ensure that the organized militia would be well armed. The text sent to the Senate read: A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed; but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

Congress adopted the text that is now a part of the Constitution:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This text offered nothing to satisfy Anti-Federalist desires for actual limits on federal authority over military affairs, and the only contemporaneous criticisms of the Second Amendment were complaints that it did not satisfy these desires.49 The private right protected by the Second Amendment caused no controversy, precisely because it is a private right.

The drafting history of what became the Second Amendment thus confirms that its endorsement of the traditional militia does not imply that the people’s right to arms is contingent on the manner in which Congress exercises its authority to organize and regulate the militia.

Stephen P. Halbrook is a prolific gun rights theorist and avid shooter. The brief cites his law review article entitled “The Right of the People or the Power of the State”, 26 Val. U. L. Rev. 131, 184-85, 192-94 (1991).

Justice Scalia’s opinion also referenced Halbrook extensively. Justice Scalia’s opinion is remarkable in that it shows the little known relationship between the Second Amendment, passage of the 14th Amendment and the beginnings of modern conceptions of Civil Rights that occurred when Southern Democrats enaged in vigilante attacks against black and white republicans in the South. The attacks against the newly free blacks were often initiated by house to house searches in order to confiscate weapons that were prohibited to blacks pursuant to Southern Jim Crow laws. Lynchings often ensued against blacks that resisted and white sympathizers (usually white Republicans).

C. This Court has recognized that the Constitution contains declaratory language that does not change the legal effects that the Constitution would have had without that language.

When Congress sent the Bill of Rights to the states for ratification, it described its provisions as “declaratory and restrictive clauses” meant to “prevent misconstruction or abuse of [the Constitution’s] powers.” The Second Amendment has both declaratory and restrictive elements. The words of praise for the militia in the Second Amendment are a declaration of respect for the traditional militia system, which might – or in practice might not – provide an alternative to the standing armies that many citizens feared.

As early as Marbury v. Madison, 5 U.S. 137, 174 (1803), the Court acknowledged that an entire constitutional clause might be interpreted to be without effect if 50 2 Schwartz, supra, at 1164. U.S. 316, 420-21 (1819), went even further: without claiming that the words required such an interpretation, the Court concluded that the Necessary and Proper Clause may not augment and certainly does not diminish the incidental powers elsewhere conferred by implication on Congress. Perhaps the best example of constitutional language that was not meant to change the meaning of the Constitution came from the very same draftsmen who gave us the Second Amendment. The Tenth Amendment simply reaffirms what was already established by the original Constitution. Citing relevant historical documents, this Court concluded that its purpose was simply to provide reassurance to the public that the new government was meant to be one of limited, enumerated powers:

The [tenth] amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national 51 The full sentence in Marbury reads: “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.” Petitioners quote only the first clause. Pet. Br. 17.

Thus, this Court has concluded that an entire constitutional amendment was adopted only to allay what were regarded as unfounded fears, without changing or qualifying anything in the Constitution to which it was appended. It is therefore not at all anomalous that the Second Amendment – drafted by the same Congress and adopted at the same time – includes a reassuring preambular comment that was not meant to change or limit the effects of the operative clause to which it was appended.

IV. The purpose of the Second Amendment includes protection of the fundamental natural right of self defense against criminal violence.

Respect for the original meaning of the Second Amendment requires that its language be applied – faithfully and appropriately – to contemporary society….

The fact that public debates focused on questions about the Second Amendment’s adequacy as an obstacle to tyrannical exercises of federal military power does not so much as suggest that anybody thought the new federal government did or should have the authority to disarm its citizens in the name of crime control. Such illogical inferences have long been rejected.

… fear of a tyrannical federal government – has understandably subsided. At the same time, the military power of the government has become overwhelming, which greatly diminishes the potential of an armed citizenry to deter such tyranny. It remains true that a large stock of arms in private hands raises the expected cost to the government of engaging in seriously oppressive actions, and thereby makes such oppression less likely to occur. But whereas Madison could plausibly argue that the new federal government would be incapable of raising an army capable of subduing America’s armed populace, today’s armed forces have the technical ability to inflict unthinkable mayhem on the civilian population.

Even more important, a significant gap has developed between civilian and military small arms. Eighteenth century Americans commonly used the same arms for civilian and military purposes, but today’s infantry and organized militia are equipped with an array of highly lethal weaponry that civilians do not employ for self defense or other important lawful purposes. The Constitution does not require this Court to blind itself to that post-Miller reality, or to hold that the civilian population has a right to keep every weapon that the militia can expect to find useful if called to active duty.

Nor should the Court blind itself to other contemporary realities, the most important of which is the problem of criminal violence, and the inability of the government to control it.

Rather than focus exclusively on eighteenth century comments about maintaining an armed counterweight to the armies of a potentially tyrannical federal government, the Court should recognize that the broader purpose of the Second Amendment emerges readily from the Constitution’s founding principles.

Those founding principles are summed up in the familiar liberal axioms set out in the Declaration of Independence. In liberal theory, the most fundamental of all rights is the right of self defense.

Thomas Hobbes, the founder of modern liberalism, advanced this proposition with his customary forcefulness when he acknowledged only one natural right, and described it as “the Liberty each man hath, to use his own power, as he will himself, for the preservation ofhis own Nature; that is to say, of his own Life.”

Locke stated that “[B]y the Fundamental Law of Nature, Man being to be preserved, as much as possible, when all cannot be preserved, the Leviathan", ch. 14 (first paragraph) (1651).

See Donald S. Lutz, The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought, 78 Am. Pol. Sci. Rev. 189 (1984).

“And one may destroy a man who makes War upon him, or has discovered an Enmity to his being for the same Reason, that he may kill a Wolf or a Lion . . . .”

The SAF brief quotes several other great thinkers from the liberal tradition of freedom that developed in Western Europe during the Age of Reason.

For example the brief quotes Montesquieu:

“The life of states is like that of men. Men have the right to kill in the case of natural defense; states have the right to wage war for their own preservation.”

Blackstone in his Commentaries on the English Common Law stated:

“Self-defence therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society.” The exchange of rights that constitutes the social contract does not diminish the central importance of the natural right to self defense. Rather, political or legal limitations on the exercise of that right must be understood as efforts to enhance the citizens’ ability to protect their lives effectively. For that reason alone, the Second Amendment should be applied vigorously with respect to governmental restrictions on the liberty of citizens to defend themselves against the violent criminals whom the government cannot control. “

This corollary to the central premise of liberal political theory is consistent with evidence about eighteenth century attitudes. William Blackstone, for example, characterized the English right to arms as a “public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”

Just as one would expect from the fundamental principle of liberal theory, Blackstone makes no distinction between oppression by the government itself and oppression that the government fails to prevent. If anything, his language seems to refer more easily to the ineradicable phenomenon of criminal violence, experienced by all free societies, than to the extraordinary instances of governmental oppression that call for armed resistance.

…(T)he Pennsylvania ratifying convention proposed a bill of rights including this provision: That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and governed by the civil power.

It would be anachronistic to think that the reference to “killing game” in this proposal reflected a passion for sport. Apart from the role of hunting as a food source at that time, Americans would have been acutely aware, from Blackstone if from nowhere else, of the English game laws behind which the “preventing of popular insurrections and resistance to the government, by disarming the bulk of the people . . . [was] a reason oftener meant, than avowed, by the makers of forest or game laws.”

The Massachusetts ratifying convention proposed that the federal Constitution: be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them . . . .

The natural right of self defense is the most fundamental right known to liberal theory, and the Second Amendment is our Constitution’s most direct legal expression of Blackstone’s insight that “in vain would [basic rights such as that of personal security] be declared, ascertained, and protected by the dead letter of the laws, if the [English] constitution had provided no other method to secure their actual enjoyment.”

The brief cites Blackstones Commentaries to show that “Personal security” is listed as the first of the three great primary rights and that Washington, DC presents exactly the kind of threats which demonstrate the importance of the right to keep and bear arms under English principles of Common Law.

According to what Blackstone calls “the dead letter of the laws,” personal security must be very well assured in a city where almost nobody except agents of the government are authorized to possess an operable firearm. The reality is rather different, and nothing in the Constitution requires this Court to ignore that reality.

In the twenty-first century, the most salient purpose of the Second Amendment is to protect the people’s ability to defend themselves against violent criminals.

Accordingly, the federal government must be required to offer justifications for gun control statutes that go far beyond fashionable slogans and unsubstantiated appeals to hypothetical salutary effects on public safety. Any other approach would trivialize the fundamental right protected by the Second Amendment.

Petitioners have not satisfied the standard of exacting scrutiny to which the District of Columbia’s disarmament laws should be subjected, and this failure is fatal to their case. Nor should this Court accept the Solicitor General’s beguiling invitation to remand the case for application of some lower level of scrutiny loosely derived from an inapt analogy to governmental regulation of elections that the government itself conducts.

The D.C. Code unequivocally forbids American citizens to keep an operable firearm in their own homes for the protection of their own lives. Under no standard or review that respects the fundamental nature of the Second Amendment right could this prohibition possibly be upheld.
♦ ———————————
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted,
Nelson Lund*
George Mason University School of Law
3301 Fairfax Drive
Arlington, Virginia 22201
(703) 993-8045
*
Counsel of Record

Seattle Mayor Greg Nickels recently announced a plan to ban guns at all city facilities, including parks, Seattle Center and community centers. He was already kicking against the restrictions of Washington’s state preemption law- a state statute that absolutely restricts the regulatory authority of local governments when it comes to almost everything pertaining to firearms. The legislature’s rationale was to make sure that checkerboard laws do not make gun ownership and sales impracticable on a jursidiction by jurisdiction basis.

A man with a Concealed Pistol License injured two people in a shooting at the Northwest Folklife Festival at Seattle Center. Apparently there was some kind of scuffle, possibly occurring when someone decided to grab his weapon because of concerns about safety (something that should have been dealt with by the police- not self help- if the concern was well-founded). The incident became a triggering event for the Mayor to hold a news conference with Police Chief Gil Kerlikowske (also an advocate of further gun controls, Chief Kerlikowske is known around our area as the chief that let his weapon get stolen from his unlocked vehicle). Mayor Nickels declared “Our parks, our community centers and our public events are safer without guns.”

The executive order, which does not require City Council approval, will apply even to citizens with a concealed-weapon permit.

Violators will be considered trespassers and asked to leave city property, but the city does not have authority to impose fines or jail time (due to the above referenced preemption statute:

RCW 9.41.290
State preemption.

The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

Many state legislators are asking the state Attorney General’s Office to issue an opinion as to the Mayor’s announcement. The order directs city departments to report back to Nickels within thirty days with a plan to implement the policy, so the state AG’s office is reluctant to plunge into the fray where restrictions are contemplated but not actually imposed at this time.

According to one local news article, Nickels stated the city will start by posting signs in city buildings such as City Hall:

The mayor said he hopes the city will not have to require pat-downs or metal detectors in city buildings, but suggested those measures as a possibility for festival organizers of events such as Bumbershoot at Seattle Center.

“I would not be surprised if there is a challenge to our authority on this,” Nickels said. He said a recent lawsuit involving the city of Sequim may give him authority to ban concealed weapons on city property.

The Sequim case involved gun show operators that sued the City of Sequim for interference with contractual relations when the City required that the premises (the venue for the gunshow was owned by the City) would be restricted to gun sales by dealers only. The court held that where the City was acting in a capacity similar to a private business, imposition of some restriction on gun sales did not violate RCW 9.41.290.

See Pacific Northwest Shooting Park Association v City of Sequim, 158 Wash.2d 342 (2006).

Many Washington localities have already been doing what Mayor Nickels wants to do. Cities like Federal Way have simply been violating the state preemption law without advertising it. The Mayor of Seattle thinks he can throw around enough weight to make the legislature cave-in to his fiat. The Washington State legislature is so heavily Democrat that it often seems impossible to block most of the Demsocratic majorities wishes.

So far, there have been enough Democrats from Eastern Washington and Republican stalwarts to hold the line on gun laws. Those “blue dog” Dem and GOP lawmakers must feel like the the boy with his thumb holding back a flood of firearms restrictions, but every year they manage to keep a number of laws (like gun show restrictions) from getting reported out of committee.

It is going to be interesting to see how the U.S. Supreme Court’s recent decision in DC v Heller will impact the lawmakers in state capitals around the country. Already cities in Illinois and other states are amending their laws. Morton Grove, Illinois, for instance, is busy modifying its longstanding restrictions. If a future Court is composed of justices like Breyer, Souter, Ginsburg, Stevens and Kennedy the issues may be relitigated so the upcoming presidential election is critical!

The difference between Constiturional strict constructionists and those that worship at the altar of “the Living Constitution” is that conservatives obey judge-made laws even when we do not agree with them. Many of the media hacks have been denouncing DC v Heller as judical activism and Washington, DC announced that it will register revolvers but not semi-autos! To call such conduct passive-aggressive behavior is an understatement. It is more like lawlessness on the part of the authorities in Washington, DC. It is no wonder there is so much crime on the streets. When the powers that be are not setting criminals loose or spending our tax dollars to promote some new social lunacy, they are busy finding ways to prevent us from effectively defending ourselves.

By the way, people in the inner-cities are most often the victims of violence and are often afraid to testify in court. For such folks (like the citizens of Washington, DC), the issue of defending one’s home and family is not an academic exercise in pettifoggery and parsing legal hairs. Not with gangs of drug dealers ruling the streets.

In order to make such claims, the “newspapers of record” claim that it is settled Constitutional doctrine that the Second Amendment only protects state militias. If you said such a thing to James Madison, Thomas Jefferson or John Adams they would think you had lost your mind! So much for objectivity.

We need to start registering journalists; but just in the big cities, because that is where all the major journalistic crimes are being fomented. We can start with NYC and then move to Chicago, Washington, DC and San Francisco.

Every registered journalist will be required to keep a key-lock on his or her keyboard. If one of these journalists tries to defend herself in writing by calling me (or anyone like me) a right-wing fanatic, ignorant redneck or lawyer affiliated with the religious right, the feds should revoke his/her license and prosecute for brandishing an automatically-keyed writing utensil with intent to intimidate.

The First Amendment balancing test will apply, of course. I am not in favor of chilling freedom of speech!

As modern day Israel prepared to celebrate Purim, a Palestinian gunman was preparing to slaughter Israeli people in the same way that Haman attempted to do in the time of Esther. Purim is the annual celebration of the great deliverance of the Jewish people in the days of Queen Hadassah (Esther):

These holy days are observed to honour the defeat of the enemies of GOD’S people. Purim commemorates the downfall of Haman (means: tumult), the enemy of the Jewish people in the Persian Empire. As such, Haman is a type of Satan, the “accuser” - the one who has throughout history, sought to eliminate the Hebrew race. Haman had the king’s servants cast lots (purim) to determine the date on which the Jews would be destroyed, but his wicked plan was thwarted because of GOD’S great mercy and the obedience of Hadassah (Queen Esther).

“Purim” (casting of lots) is explained like this: Haman, having been warned that all enemies of the Jews had in the past met with frustration, being superstitious, decided to cast lots to determine the most favourable day for the slaughter.

But it turned out that Haman was hanged on the same gallows which he had previously prepared for Mordecai, and all the Jews escaped a terrible massacre. The next day, the 14th of Adar, the victory was joyously celebrated.

After the Persian royal advisor, Haman’s genocidal plot to rid the world of the Jewish people was foiled, “V’nahafoch Hu!” (roughly interpreted: “and the tables were turned!") became the rallying cry of the Jewish people during the month of Adar. Today the Talmudic sages advise [Tractate Ta’anit 29a] Jews throughout history to seek to schedule critical events, in which Divine assistance is desired, during the month of Adar:

On the thirteenth day of the twelfth month, which is the month of Adar, the king’s decree was supposed to be executed. The enemies of the Jews had hoped to overpower the Jews that day, but the plot was overturned, and the Jews overpowered their enemies.

Throughout King Achashvairosh’s provinces the Jews gathered in their cities to defend themselves against those who tried to hurt them. No one could withstand them, because everyone was afraid of them.

Even the provincial ministers, the satraps, the governors, and the king’s pages, supported the Jews, because they were afraid of Mordechai.

You see, Mordechai had become very influential in the king’s household, and his reputation was known throughout the empire; as a result, Mordechai was becoming more and more powerful.

The Jews struck at all their opponents with the sword, killing and destroying them, and they defeated all their enemies.

In Shushan Capital the Jews killed and destroyed five hundred men.

They also killed Parshandasa, Dalfon,Aspasa, Porasa, Adalya, Aridasa, Parmashta, Arisei, Aridei and Vayizoso, the ten sons of Haman, the son of Hamdoso, persecutor of the Jews. But they did not pillage their property.

They notified the king of the death toll in Shushan Capital the same day it occurred.

The king said to Queen Esther, “In Shushan Capital the Jews killed and destroyed five hundred men, as well as the ten sons of Haman. Who knows what they did in the more distant provinces of the empire? Whatever you want, you will be given; whatever your request, it will be done.”

Esther replied, “If it pleases the king, may the Jews of Shushan have tomorrow also, with the same rules as today? And also, could the ten sons of Haman be hanged on the gallows?”

The king ordered these things to be done. The decree was announced in Shushan, and also the ten sons of Haman were hanged on the gallows.

So the Jews of Shushan gathered again on the fourteenth day of Adar, and they killed another three hundred men in Shushan, but they did not pillage their property.

The Jews in the rest of the empire also gathered to defend themselves and get peace from their enemies, and they killed a total of seventy-five thousand, but they did not pillage their property.

They fought their battle on the thirteenth day of the month of Adar, and they rested on the fourteenth. So they made the fourteenth day of Adar a day of feasting and celebration.

The Scriptural explanations above are from a Messianic and Jewish teachers. Surprisingly, the Persian Emperor, deceived by Haman’s manipulation, issued an edict for the massacre of the Jewish people. Esther informed the Emperor-King of the deception and the only way that he could legally undo his own decree was to issue a new edict permitting the Jews to defend themselves. The decree had the same effect as the modern day Second Amendment. Although it was a temporary decree, genocidal killing was stopped as the Jews turned the table on those who would have killed and plundered them. The death toll was great but the Persians that were foolish enough to seek Jewish blood died instead.

The following is a recent example of how Israel’s modern history contains many events that convey to an open minded observer that supernatural military events are still occurring. The modern Purim story of the Mercaz Harav seminary is also an example of what military strategists call swarming tactics where as soon as the enemy attacks or presents a target of opportunity, opposition coalesces spontaneously as a result of units that are prepared to react to random situations that are impossible to anticipate by means of conventional response planning:

From BBC News

Eight people have been killed and nine wounded by a Palestinian gunman who infiltrated a Jewish seminary in West Jerusalem, Israeli officials say. The gunman entered the school’s dining room and opened fire with an AK-47.

Witnesses said the gunman went into the library at the Mercaz Harav seminary in the city’s Kiryat Moshe quarter and opened fire.

The assailant, who Israeli police said was a resident of East Jerusalem, was shot dead by an Israeli army officer.

The attack is the worst of its kind in Israel for a number of years.

The White House has led international condemnation but the Palestinian Islamist group Hamas called the attack “heroic” while not claiming responsibility.

When we got in… we saw young, 15-, 16-year-old guys lying on the floor with their Bibles in their hands - all dead on the floor.

However, the 15-strong UN Security Council failed to agree on a resolution condemning the attack because of reservations from temporary member Libya, which sought to link it to Israeli actions in the Gaza Strip.

A previously unknown group called the “Jalil Freedom Battalions - the Martyrs of Imad Mughniyeh and Gaza” claims to have carried it out, according to Lebanese Hezbollah media.

The fact that the school is at the heart of the settler movement in the occupied West Bank may have been the reason why it was targeted, BBC Middle East editor Jeremy Bowen reports.

Many of its students are on special courses that combine religious study with service in combat units in the Israeli army, he notes.

There will be an Israeli response to this attack, our Middle East editor adds - the question is how severe it will be.

‘Horrific’

The gunman entered the library at the Mercaz Harav seminary on Thursday evening, where about 80 students were gathered, and fired an AK-47 rifle for several minutes, witnesses say.

One of the students, Yitzhak Dadon, reportedly shot the gunman twice before he was finally killed by an off-duty Israeli army officer, who had gone to the school after hearing gunfire.

“I shot him twice in the head,” he told the Reuters news agency.

“We heard shooting and knew that something had happened,” recounted Yitzhak Dadon, 40, who studies at the yeshiva. Dadon said he cocked his handgun and went up to the roof of the yeshiva, where he saw the terrorist spraying gunfire indiscriminately at the crowd inside. Dadon said he fired two bullets at the terrorist, who began to stumble.

“He started to sway and then someone else with a rifle fired at him, and he died.”

Another man told the BBC that there had been “terrible scenes” inside the building afterwards.

“When we got in… we saw young, 15-, 16-year-old guys lying on the floor with their Bibles in their hands - all dead…” he said.

Jerusalem police commander Aharon Franco confirmed there had been only one gunman and said he had hidden his weapon in a cardboard box.

Celebratory gunfire reverberated throughout Gaza City, as groups of Hamas militants marched through the streets waving green flags and calling out over loudspeakers: “Allah gave us this victorious day, because we deserve our freedom.”

John Lott, a senior research scientist at the University of Maryland, provides the following analysis for comparison with the above referenced scenes in Jerusalem and the Middle East:

As Northern Illinois University restarts classes this week, one thing is clear: Six minutes proved too long.

It took six minutes before the police were able to enter the classroom that horrible Thursday, and in that short time five people were murdered, 16 wounded.

Six minutes is actually record-breaking speed for the police arriving at such an attack, but it was simply not fast enough. Still, the police were much faster than at the Virginia Tech attack last year.

12,000 people, including relatives of the Northern Illinois University students killed Feb. 14, attend a memorial Sunday in DeKalb, Ill. The previous Thursday, five people were killed in the city council chambers in Kirkwood, Mo. There was even a police officer already there when the attack occurred.

But, as happens time after time in these attacks when uniformed police are there, the killers either wait for the police to leave the area or they are the first people killed. In Kirkwood, the police officer was killed immediately when the attack started.

People cowered or were reduced to futilely throwing chairs at the killer. In attacks last year at the Westroads Mall in Omaha, Neb., the Trolley Square Mall in Salt Lake City and the recent attack at the Tinley Park Mall in Illinois, or all the public school attacks, they had one thing in common: They took place in “gun-free zones,” where private citizens were not allowed to carry their guns with them.

The malls in Omaha and Salt Lake City were in states that let people carry concealed handguns, but private property owners are allowed to post signs that ban guns; those malls were among the few places in their states that chose such a ban.

In the Trolley Square attack, an off-duty police officer fortunately violated the ban and stopped the attack. The attack at Virginia Tech or the other public school attacks occur in some of the few areas within their states that people are not allowed to
carry concealed handguns.

It is not just recent killings that are occurring in these gun-free zones. The Columbine High School shooting left 13 murdered in 1999; Luby’s Cafeteria in Killeen, Texas, had 23 who were fatally shot by a deranged man in 1991; and a McDonald’s in Southern California had 21 people shot dead in 1984.

Nor are these horrible incidents limited to just gun-free zones in the U.S. In 1996, Martin Bryant killed 35 people in Port Arthur, Australia. In the last half-dozen years, European countries — including France, Germany and Switzerland — have experienced multiple-victim shootings. The worst in Germany resulted in seventeen deaths; in Switzerland, one attack claimed the lives of 14 regional legislators.

At some point you would think the media would notice that something is going on here, that these murderers aren’t just picking their targets at random. And this pattern isn’t really too surprising. Most people understand that guns deter criminals.

If a killer were stalking your family, would you feel safer putting a sign out front announcing, “This home is a gun-free zone"? But that is what all these places did.

Even when attacks occur, having civilians with permitted concealed handguns limits the damage. A major factor in determining how many people are harmed by these killers is the time that elapses between when the attack starts and someone is able to arrive on the scene with a gun.

In cases from the Colorado Springs church shooting last December, in which a parishioner who was given permission by the minister to carry her concealed gun into the church quickly stopped the murder, to an attack last year in Memphis to the Appalachian Law School to high schools in such places as Pearl, Miss., concealed handgun permit holders have stopped attacks well before uniformed police could possibly have arrived. Just a few weeks ago, Israeli teachers stopped a terrorist attack at a school in their country.

Indeed, despite the fears being discussed about the risks of concealed handgun permit holders, I haven’t found one of these multiple-victim public shootings where a permit holder has accidentally shot a bystander.

With about 5 million Americans currently with concealed handgun permits in the U.S., and with states starting to have right-to- carry laws for as long as 80 years, we have a lot of experience with these laws and one thing is very clear: Concealed handgun permit holders are extremely law-abiding. Those who lose their permits for any gun-related violation are measured in the hundredths of a percentage point.

We also have a lot of experience with permitted concealed handguns in schools. Prior to the 1995 Safe School Zone Act, states with right-to-carry laws let teachers or others carry concealed handguns at school. There is not a single instance that I or others have found where this produced a single problem.

Though in a minority, a number of universities — from large public schools such as Colorado State and the University of Utah to small private schools such as Hamline in Minnesota — let students carry concealed handguns on school property. Many more schools, from Dartmouth College to Boise State University, let professors carry concealed handguns. Again, with no
evidence of problems.

Few know that Dylan Klebold, one of the two Columbine killers, was closely following Colorado legislation that would have let citizens carry a concealed handgun. Klebold strongly opposed the legislation
and openly talked about it.

No wonder, as the bill being debated would have allowed permitted guns to be carried on school property. He attacked Columbine High School the very day the legislature was scheduled to vote on the bill. With all the media coverage of the types of guns used & how the criminal obtained the gun, at some point the news media might begin to mention the one common feature of these attacks: They keep occurring in gun-free zones.

Gun-free zones are a magnet for these attacks.

I just started reading “America Fights Back, Armed Self-Defense In A Violent Age“, by Alan Gottlieb & Dave Workman. This title is Amazon.com’s highest selling book pertaining to gunrights and rightfully so. Gottlieb and Workman present real stories of how unarmed victims fare and why legislatures all over the U.S. are enabling citizens to take back our communities by reasonable application of armed force. The narrative starts with Cheshire, Connecticut. Connecticut, once the epitome of American free-enterprise and decency, is still the home of Colt, Marlin, Mossberg and Savage but is also a state where armed self-reliance is in retreat. The whole United States has become jaded and hamstrung by complacency and misinformation.

We have also heard so many reports of predators pouring out of state-sponsored catch and release programs, that the possibility of being the next victim is just a dull feeling of denial mixed with anxiety. Nevertheless, Cheshire and the nation, was shocked when two recently released repeat-felons, savagely beat Dr. William Petit, Jr. during a home invasion and then tortured and murdered his family.

RCW 9A.16.050
Homicide — By other person — When justifiable.

Homicide is also justifiable when committed either:

(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or

(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is.

The good news presented by the authors is documentation of the rest of the story (the story that the media seems to want to keep under cover). The story is about honest people that take those extra steps to get a concealed weapons permit, train regularly and then take the extra pain to take a weapon with them when they go about their business. Not because of fear or some other negative attitude but because of the old-fashioned idea that citizens need to be prepared to protect their loved ones rather than waiting for the police to show up. It is not so much about “rights“. Its all about duty and love and the Boy Scout Motto: “Be Prepared“. Scouts still earn merit badges for learning how to shoot. And for reverence towards God and country.

Many lawyers, including myself, look to “Washington State Gun Rights and Responsibilities,” by Dave Workman to get immediate answers to questions like should we shoot at a fleeing felon and is there a duty to retreat when threatened with deadly force in Washington State. Think of how you normally make decisions under stress and then imagine making life and death decisions right after someone threatens your life with deadly force. What about the possibility that the police may mistakenly get the idea that you are the “perp” when they see you holding a weapon with a man down in a parking lot? What should you do after a firefight and are there some legal issues with which you need to be familiar in the aftermath of such a deadly confrontation?

Dave Workman co-authored with Alan Gottlieb.

Don’t play hero, call 911 and buy the book by Dave Workman at out Recommended Books link (scroll down the page to Links). Dave also makes holsters and does many other good things to assist gun owners in Washington State. He has co-authored several interesting looking books with Alan Gottlieb, also a leading light within the ranks of Second Amendment advocates.

The Washington Association of Sheriffs and Police Chiefs (WASPC) has been asked to provide assistance to law enforcement agencies in Washington State in order to get retired law enforcement officers qualified to provide additional security on a volunteer basis. The rationale of the 2004 federal law is to enable law enforcement qualified personnel to legally carry weapons in all fifty states provided the retired officer can requalify (just like active officers qualify on a yearly basis) in the jurisdiction from which he or she has retired. WASPC, according to our sources, maintains that law enforcement agencies are exposed to additional liability if an agency certifies retired law enforcement officers (LEOs) as having met Criminal Justice Training Commission standards for firearms qualification.

The purpose of the LAW ENFORCEMENT OFFICERS’ SAFETY ACT OF 2004 (18 U.S.C. Sec. 926B and 926C) is to supplement active law enforcement personnel in order to deter crime and prevent terrorist activity. The federal law accomplishes this by anticipating that additional armed law enforcement personnel that have already been trained will be present within each jurisdiction as officers travel from one jurisdiction to another while on business, vacationing or for any other reason.

The Act authorizes retired officers and active police officers from any jurisdiction within the United States to carry a concealed firearm within any jurisdiction of the United States; thus, increasing the likelihood that an armed officer will be present if circumstances warrant appropriate use of armed force. The retired officer must qualify annually per the standards that officers are required to meet for firearms proficiency within the agency from which he or she retired. For a retired officer to carry a weapon in all fifty states, the federal statute requires:

“… a certification issued by the State in which the individual resides that indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the State to meet the standards established by the State for training and qualification for active law enforcement officers to carry a firearm of the same type as the concealed firearm.”

The LAW ENFORCEMENT OFFICERS’ SAFETY ACT OF 2004 is an aid to law enforcement and the public that costs the state or the federal government very little because the training has already been provided at the state level and each retired officer essentially becomes a volunteer who must pay the cost of maintaining his/her qualifications at the state and/or local level.

RCW 36.28A.090 reads in part:

Firearms certificates for qualified retired law enforcement officers.

(1) The purpose of this section is to establish a process for issuing firearms certificates to residents of Washington who are qualified retired law enforcement officers for the purpose of satisfying the certification requirements contained in the federal law enforcement officers safety act of 2004 (118 Stat. 865; 18 U.S.C. Sec. 926B and 926C).

(2) The Washington association of sheriffs and police chiefs shall develop a firearms certificate form to be used by local law enforcement agencies when issuing firearms certificates to retired law enforcement officers under this section.

(3) A retired law enforcement officer who is a resident of Washington may apply for a firearms certificate with a local law enforcement agency. The local law enforcement agency may issue the firearms certificate to a retired law enforcement officer if the officer:

(a) Has been qualified or otherwise found to meet the standards established by the criminal justice training commission for firearms qualifications for active law enforcement officers in the state; and…

We have produced a legal opinion letter that we will make available to any law enforcement agency in Washington State.

See

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Liability for Mistakes in Low-Light Environments

Nevertheless, the question of liability for officer shootings in situations where justifiable use of deadly force becomes an issue is a very common situation for officers that needs to be addressed at a number of different levels according to experts.

The following information is from the Police Policy Studies Council and Law Enforcement News (a publication of John Jay College of Criminal Justice/CUNY):

Police shootings involving unarmed suspects often occur in a darkened setting. Many law enforcement agencies do not train their officers how to shoot under such conditions.

According to the Houston Chronicle, 59 percent of the 189 shootings that occurred in Harris County from 1999-2004 occurred between sunset and sunrise. In at least five cases involving unarmed suspects officers appeared to have mistaken an object for a gun in low light.

Research conducted in Los Angeles County, Baltimore County and New York City by Tom Aveni, a sworn officer, and trainer with the New Hampshire-based Police Policy Studies Council, turned up similar results.

Since most shootings occur under low light conditions, it makes sense for armed citizens and police officers to get specialized training in low-light combat shooting tecniques. The Firearms Academy of Seattle provides such training along with training in most aspects of rifle, pistol and shot gun tactics.

Although most state officer training only requires qualifying under daylight conditions that bear little resemblance to the environment in which police officers do their job, the study indicates that such training is critical.

In many if not most of these shootings, the low light conditions are such that a cell phone is mistaken for a gun especially where the suspect acts in such a way that the suspect’s body language is interpreted as intense or aggressive.

“When I see officers getting into trouble, it’s because they’re shooting at things they haven’t clearly identified.”

David Klinger, an associate professor of criminology at the University of Missouri in St. Louis, and the author of “Into the Kill Zone: A Cop’s-Eye View of Deadly Force,” believes that as much information as can be gleaned from real-life situations should be integrated into training.

“I can’t say that no police are ever trained [in low-light conditions], but it’s a training issue where many officers don’t get the opportunity to fire under those circumstances, absolutely.” He told LEN. “We want to make our training as realistic as possible so police officers are able to have spent some time in a variety of environments if they find themselves having to make a life and death decision. To the extent to which officers are not getting realistic training is the extent to which we’re not preparing them as well as we should.”

Just shooting at targets is not the kind of training that is needed in order to protect the officer and the public from the shootings that occur with a great deal of frequency, usually under low light conditions. Many shooting schools provide low light training for officers and non-police civilians; e.g., Firearms Academy of Seattle.

One example of an innovation that augments the traditional firearms training is the situation created at a recent IPSIC competition at Paul Bunyan Shooting Range in Puyallup. I participated in a scenario that created the sort of chaos present in the street environments faced by officers in real life where we started out in a mocked-up drivers seat, exited from a vehicle while engaging multiple targets that were behind partial cover and shot at moving targets.

Another situation involves engaging targets where lights may be bright in one room, dark in another and you have to move from a low-light environment to a brightly lit room.

I recently completed the defensive handgun class at FAS in which we were introduced to low-light combat techniques and learned the basics of shooting from cover. The low-light training is conducted in a darkened room with dimmer-controlled lighting. We learned two different methods of deploying a flashlight while shooting. The learning curve is rapid at FAS and by the end of the two day class all of us were shooting multiple shots with accuracy and speed that I never expected to achieve even after quite a bit of previous training and competition.

Incidentally, experts like Massad Ayoob recommend IPSIC and IDPA competitions because the degree of stress engendered in racing through multiple targets creates enough stress that a shooter begins to function like he will under the extreme stress of a gun fight. Continuing to function after your gun jams is a matter of survival that is inculcated by such competitions in which you find yourself racing through a maze of targets, making tactical decisions as to when to load another magazine and which target to engage first.

Perpetrators tend to run in packs and malfunctions are almost inevitable, especially during rapid fire shooting. Good shooters continue to move while they clear a jam (or stay behind cover). And the first rule in real life combat is that the situation is constantly changing. You may look up and find an innocent bystander standing in the doorway from which shots were fired a moment before. The ability to keep on thinking and functioning in these situations develops from constant repitition under stress with a professional trainer to push you past your normal limits of endurance.

Competition will also get you out there pushing your comfort level. So what makes the difference between officers that survive gunfights and those who don’t survive or make critical mistakes at the expense of unarmed civilians?

“The answer, simply put: ‘It is the difference in training.’ ”

Aveni’s findings summarized above are significant for officer survival, training, investigations, policy-making, and courtroom defenses. Compare the training of U.S. police officers to Japanese cops.

Criminals, particularly gang members, are becoming less frightened of being confronted by a citizen with a firearm. I just read an FBI report where exhaustive interviews were held with incarcerated gang members.

Their responses definitely contradicted many of the old-school “truths” that we learn in the course of our firearms training. To condense the report into some of the salient points:

1. Criminals are scared of being confronted with a firearm.

False. Most gangbangers have seen plenty of firearms, have been shot at a few times, and may carry one or more gunshot scars. They are not afraid of a gunfight.

2. If you point a gun at them, they’ll run away.

False. They will most likely shoot you where you stand. If you plan to draw a firearm, you’d better be prepared to fire it immediately.

3. Crooks never practice and are really bad shots. Since I just spent $$$ on a training course, I’m superman, in comparison.

False. Gang members may not use the latest techniques, they do indeed practice, and some are quite good. They use their firearms in confrontations regularly-
you don’t.

4. All it would normally take is a couple shots to end a confrontation.

False. More and more confrontations are against multiple assailants, who may not bug out when the shooting starts. That handy little Kel-Tec in your pocket is about worthless in this situation.

This info reiterates, at least to me, some key factors in carrying for self defense.

1. Carry enough gun - sufficient caliber, sufficient ammo capacity. What’s sufficient? Hard to be definitive here, but my regular carry pistol is a Para Ordnance Tac-Four: 13 rounds of .45 ACP, in a Dave Workman Undershirt holster. And I carry a spare mag.

2. If you carry, be prepared to shoot. Some folks carry around a pistol like a talisman to ward off evil. They figure if they ever need to draw, they will not need to shoot. That thinking may get you killed. You might NOT have to shoot, which is fine, but don’t assume that to be the default.

Go to Gang Members Practice More Than Police.

“Not much up on gun laws although I would like to have my rights restored after my legal issues over 20 years ago. Don’t know how to do that or if it is even worth it since I don’t own or plan to own any firearms. Sure do like target shooting though, especially skeet shooting with 12 gauge shot guns. I’m not much of a blogger either although I do like rap music and poetry.”

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This article by Dave Kopel is an installment in a 2001 National Review series that documents how dictatorships all over the globe are using the U.N. to promote firearms policies that facilitate genocide.

At the U.N. Small Arms Conference, Iran took the lead in promoting a ban on weapons supplies to non-states. The “non-state actors” clause would require vendors “to supply small arms and light weapons only to governments, or to entities duly authorized by government.” This would make it illegal, for example, to supply weapons to the Kurds or religious minorities in Iran, in case Iranian persecution or genocide drove them to rebellion. Had the provision been in effect in 1776, the sale of firearms to the American Patriots would have been prohibited. Had the clause been in effect during World War II, the transfer of Liberator pistols to the French Resistance, and to many other resistance groups, would have been illegal.

The United States stood firm against this clause, rejecting “compromise” efforts to revise the language, or to insert it into the preamble of the Program of Action. Although Canada pushed hard on this point, the U.S. delegation would not relent. U.S. Undersecretary of State John Bolton pointed out that the proposal “would preclude assistance to an oppressed non-state group defending itself from a genocidal government.”

Bolton’s statement, by the way, reflects the enormous contribution that Jews for the Preservation of Firearms Ownership has made to gun debate, through historical research demonstrating the victim disarmament is the sine qua non of genocide.

More recent research by constitutional attorney Stephen Halbrook has detailed how the Nazi regime used firearms-control laws, enacted by the democratic Weimar Republic, to disarm potential opponents of the regime, and to facilitate the persecution of Jews.

U.N. Deputy Secretary General Louise Frechette (of Canada) explained that in some parts of the world, an AK-47 could be obtained for $15 or a bag of grain. Small-arms “proliferation erodes the authority of legitimate but weak governments,'’ she complained.

U.S. delegate Faith Whittlesey (ambassador to Switzerland, under Reagan) replied that the U.N. “non-state actors” provision “freezes the last coup. It favors established governments, while taking away rights from individuals. It does not recognize any value higher than peace, such as liberty.”

According to the U.N., any government with a U.N. delegation is a “legitimate” government. This U.N. standard directly conflicts with the Declaration of Independence, which states that the only legitimate governments are those “deriving their just powers from the consent of the governed.”

In a letter to the New York Times, answering a Times editorial criticizing the U.S. for not allowing the conference to be used as a tool to disarm civilians, Whittlesey elaborated:

The highest priority of freedom-loving people is liberty, even more than peace. The small arms you demonize often protect men, women and children from tyranny, brutality and even the genocide too frequently perpetrated by governments and police forces. The world’s numerous dictators would be delighted to stem the flow of small arms to indigenous freedom fighters and civilians alike to minimize any resistance.. . .

The right of individual self-defense in the face of criminal intimidation and government aggression is a deeply held belief of the American people dating back to 1776, when small arms in the hands of private individuals were the means used to secure liberty and independence.

The United Nations Conference on Small Arms was held in a room where a large poster proclaimed: “SMALL ARMS KILL WOMEN & CHILDREN.” (Meanwhile, the U.N. propaganda office and its accomplices in the U.S. media claimed that there was no antigun agenda at the conference.) The U.N. says that small arms kill 500,000 people a year: 300,000 in war, and another 200,000 from murder, suicide, and accidents. Put aside, the fact that most war deaths are caused by governments, which wouldn’t be disarmed under the U.N. program. Also put aside questions about whether the U.N. antigun program would really disarm murderers. And forget the topic of whether antigun laws might reduce gun suicides or gun accidents, but would save few, if any, lives — since self-destructive people have many potential tools available.

Let us assume that the U.N. antigun program — which, as I detailed in a previous column, is a program for slow-motion disarmament of everyone except the government — would save every single one of those 500,000 lives.

Now, compare those half-million annual deaths with the 170 million civilians (not soldiers) who were murdered by governments in the first nine decades of the last century, as detailed by University of Hawaii political scientist Rudy Rummel.

Given that democide — Rummel’s term for mass murders by government — appears to be confined almost exclusively to regimes which have attempted to disarm their victims, it is reasonable to conclude that if every man and woman on this planet had owned a working firearm and ammunition, many — perhaps nearly all — of those 179 million lives might have been saved.

If small arms are really as destructive as the U.N. claims, it would still take 340 years for small arms to kill as many people as died from 1900 to 1990 due to the lack of small arms. Stated another way, even if we accept every one of the premises of the antigun advocates at the U.N., gun prohibition appears to be about four times deadlier than gun proliferation.

Gun “proliferation” begins with “pro” and “life.” Gun prohibition begins with registration, and ends with genocide.

Besides serving as the sine qua non of genocide, civilian disarmament helps dictatorships maintain their power — as demonstrated by the string of dictatorships that rose to support U.N. efforts to disarm everyone except the government.

Djbrina Moumouni, secretary general of the cabinet of the president of the Niger called illicit weapons “a scourge” which cause “drug trafficking, mass displacement, slow economic development and recovery, and the exacerbation of conflicts. The Niger has not escaped that fallout, and has suffered armed rebellion for some years now.”

The Niger delegate’s speech was a euphemistic reference to the fact that the pastoral Tuareg people of northern Niger, in the Sahara, spent much of the 1990s fighting for their independence from Niger. The Tuareg objected to uranium being extracted from their region, while profits went to people connected to the far-away central government.

To stay in Niger, the Tuareg wanted federalism and some regional autonomy. Their desire to leave was greatly intensified when they starved en masse in 1984-85 thanks to the Niger government’s venality and incompetence. And the central government of Niger, which tends to alternate between military dictatorships and one-party civilian dictatorships, hasn’t exactly been a good place for people to work within the system.

A report from the European Centre for Conflict Prevention, a pro-disarmament group, describes these problems in Niger quite straightforwardly, and explains that the UN’s solution is to disarm the Tuareg:

The United Nations have not been directly involved in managing the conflict, but the organisation is dealing with a closely related issue: the proliferation of small arms in the region. In 1993, it set up an Advisory Mission on the issue, at the request of President Konaré of Mali. The mission produced its findings to the Secretary-General in 1996. It identified a variety of causes for the unfettered flow of arms, including political instability, poverty, unemployment, ethnic and religious differences and the spill-over of intra-state conflicts into other states. This was said to apply to most of the states visited during the mission, including Niger.

What the European Centre and the U.N. (and their prohibitionist allies in private organizations) fail to understand is that in places like Niger, small arms are part of the solution, not the problem. The Niger government only began to make small steps towards treating the Tuareg better when the Tuareg were able to initiate an armed rebellion. One of the reasons that the Niger government never had the choice of following the policy of the Rwanda government (perpetrating genocide against a disaffected ethnic group) was that the Tuareg were armed.

Likewise presenting an articulate defense of the pro-dictatorship position was Gaspar Santos Rufino, Vice-Minister for Defenze of Angola: “African leaders, in analyzing the causes of the proliferation and illicit trafficking of small arms, suggest that Member States and the suppliers should be more transparent in their conduct and go beyond national interests. This means, so far as possible, to impose limits on the legal production of certain basic goods, to exercise rigorous control of their circulation, and even to destroy surplus production of goods.

“It should be possible to do this with small arms and light weapons, as they are not basic goods and will not be missed by our people.”

Mr. Rufino, of course, is the Defense Minister of a Communist dictatorship which was installed by the Cuban army’s small arms and light weapons in 1975-76, and which has permitted exactly one election (criticized by some as fraudulent) in the last quarter-century.

Rufino complained: “In Angola, men with guns in their hands have opposed the legitimate Government for many years. It should be clear that it is imperative to destroy surplus arms, regulate their production in the legislation of manufacturing countries, and sell them to legally constituted and authorized entities.”

The “men with guns in their hands” are the men of UNITA, one of the groups that (along with Rufino’s Communist organization) fought against the Portuguese colonial regime until Portugal surrendered in 1975. Rufino’s side would have lost the civil war which followed, but for Fidel Castro’s modern-day Hessians.

What makes Rufino’s dictatorship — created by Cuban “men with guns in their hands” — legitimate? As Rufino shows, beneath the veneer of humanitarian rhetoric, the objective of small arms prohibition is to ensure that unpopular dictatorships enjoy a monopoly of force.

Yasir Arafat’s U.N. delegate charged that Israel arms its settlers illegally, thus turning them into a militia. She demanded that Israel to disarm the settlers.

Nguyen Thanh Chau of Viet Nam, a communist dictatorship which shot its way into power, called for “a comprehensive approach to the prevention, reduction and eradication of the illicit trade in small arms and light weapons at all levels.”

Sar Kheng, Minister of the Interior of Cambodia, represented a nation which, under its previous rulers, had taken care to confiscate guns before slaughtering a third of the population.

Cambodian gun control had been a legacy of French colonialism. A series of Royal Ordinances, decreed by a monarchy subservient to the French, appears to have been enacted out of fear of the Communist and anti-colonial insurgencies that were taking place in the 1920s and 1930s in Southeast Asia, although not in Cambodia. The first law, in 1920, dealt with the carrying of guns, while the last law, in 1938, imposed a strict licensing system. Only hunters could have guns, and they were allowed to own only a single firearm. These colonial laws appear to have stayed in place after Cambodia was granted independence. The Khmer Rouge enacted no new gun control laws, for they enacted no laws at all other than a Constitution.

As detailed in the book Lethal Laws, the moment the Khmer Rouge took power, they set out to disarm the populace. One Cambodian recalls that

Eang [a woman] watched soldiers stride onto the porches of the houses and knock on the doors and ask the people who answered if they had any weapons. “We are here now to protect you,” the soldiers said, “and no one has a need for a weapon any more.” People who said that they kept no weapons were forced to stand aside and allow the soldiers to look for themselves. . . . The round-up of weapons took nine or ten days, and once the soldiers had concluded the villagers were no longer armed, they dropped their pretense of friendliness. . . . The soldiers said everyone would have to leave the village for a while, so that the troops could search for weapons; when the search was finished, they could return.

People being forced out of villages and cities were searched thoroughly, and weapons and foreign currency were confiscated. To the limited extent that Cambodians owned guns through the government licensing system, the names of registered gun owners were of course available to the new government.

The current (non-genocidal) Communist dictatorship in Cambodia does not trust its people with arms any more than its predecessor did. The UN delegate called “illegally held arms” (e.g., all civilian arms) major obstacles to efforts to reconstruct and rehabilitate the country and to the building of democracy and respect for human rights.”

He explained:

The Government of Cambodia has designated management of all arms and explosives as its major task, and has instituted several measures, such as collecting and confiscating all arms, explosives and ammunition left by the war; instituting practical measures to reduce the reckless use of arms; and strengthening the management of weapons registration. Those who possessed weapons during the civil war wish to continue possessing them for self-protection. On the other hand, criminals have no intention of giving up their weapons, because they need them to carry out their criminal offences. However, with assistance from the European Union and from non-governmental organizations (NGOs), there has been some success in raising the awareness of the problem among a majority of Camobodians.

To date, more than 112,000 light weapons, together with several tons of arms, explosives and ammunition, have been collected. More than 50 per cent of those weapons and some 4,000 landmines have been crushed and burned in public ceremonies under the slogan “Flames for Peace.”

Like Cambodia, Pakistan has a dictatorship determined to possess a monopoly of force. According to Human Rights Watch, the military dictatorship perpetrates torture and many other human rights abuses.

Moin-Ud-Din Haider, Minister of the Interior, said, “Pakistan has become a victim of the proliferation of small arms and light weapons…” “It has threatened our political stability,” he explained, meaning that arms held by the civilians threatened the power of Mr. Haider’s military dictatorship.

“Since February of last year,” he boasted, “we have not issued a single license for any weapon” — demonstrating how a licensing system can be easily converted to a prohibition system.

He continued: “We have also prohibited the public display of weapons” — a parallel to his dictatorship’s ban on public rallies and demonstrations.

“We have started a weapons collection programme composed of two phases. In Phase I, the Government announced general amnesty from 5 to 20 June for voluntary surrender of illicit weapons” — similar to the gun surrender program run by President Clinton’s Dept. of Housing and Urban Development, and recently terminated by the Bush administration. Under both the Clinton and the Pakistani program, the targeted weapons firearms owned by civilians, regardless of criminality.

Pakistan’s delegate turned to the gun licensing system: “At present, the campaign to recover illicit weapons from those who did not surrender their weapons during the amnesty period is in full swing. During the amnesty period, we acquired a total of 86,757 weapons. In Phase II, we plan to cancel all automatic weapons licenses, which were loosely issued in the thousands by previous governments. Revalidation of existing arms licenses will be handled with great care.” In other words, the gun licenses which were issued by the democratic government would be eliminated by the dictatorship. As in Weimar/Nazi Germany, the licensing law created by the democracy proves to be a useful prohibition tool for the dictatorship.

Finally, the Pakistani Interior Minister made a brief pretense of pretending to respect Pakistan’s traditional culture of gun ownership, before announcing the government’s plan to obliterate it:

It must be emphasized that in segments of our society, possessing and carrying arms has been a proud cultural legacy. However, to their credit, many such people voluntarily surrendered their weapons. Thus, while the Government has sought to implement sound strategies, the real winners are the people of Pakistan, whose concern, cooperation and willingness to make ours a weapon-free society went a long way in launching our campaign on a promising note.

The wretched dictatorships endorsing the U.N.’s antigun program wouldn’t have surprised the federalist Noah Webster. Arguing in 1787 for adoption of the proposed American Constitution, Webster urged Americans not to worry that the new federal government could become a military dictatorship, for “Before a standing army can rule, the people must be disarmed.” (An Examination of the Leading Principles of the Federal Constitution (Philadelphia 1787).”

The “United Nations” was originally a name for the coalition that defeated the Axis in World War II. But today, gun prohibitionists and dictatorships are using the United Nations to promote the firearms policies of Hitler and Hirohito: First, preventing aid to victims to genocide and tyranny. And second, obliterating the moral distinction between free governments, which are founded on the consent of the governed, and dictatorships, whose victims have the God-given right to remove them by force of arms.

George Orwell once said, “That rifle hanging on the wall of the working-class flat or labourer’s cottage is the symbol of democracy. It is our job to see that it stays there.” If Orwell was right, Mikhail T. Kalashnikov may have arguably done more to extend the symbolism of democracy to the nations of the world than all the international funds that have been plowed into the undeveloped countries (and into Communist nations) by the United States and other developed nations.

Although it is premature to predict whether the world is ultimately headed toward democracy (unrealistic prognosis, I would say), there is little doubt that Kalashnikov designed a weapon that is affordable enough that almost any “labourer” can afford one anywhere in the world. AK-47s are even sold on the installment plan and, depending on the economics of supply and demand, have been available in some places for the equivalent of $50.00 American compared to $1,000.00 for Eugene Stoner’s M-16.

This is not to deny that a swath of death and destruction has followed the Kalashnikov. Kalashnikov always blamed the death and destruction on the politicians. I concur. Read “AK-47”, by Larry Kahaner, to see why I would make such an assertion.

My primary criticism of Kahaner’s approach in this interesting little history, subtitled “The Weapon That Changed the Face of War”, has to do with my sneaking suspicion that Mr. Kahaner would applaud a UN ban on small arms.

AK factories have long existed all over Eastern Europe, in China, North Korea and other places around the globe. Mostly under the auspices of the former USSR and the Eastern Bloc nations the manufacturing facilities and weapons proliferated. Jimmy Carter even authorized purchase of AK-47s for the mujahideen and, by the 1980s; the CIA was purchasing the weapons for the mujahideen and the Contras. The weapons were cheap, abundant and effective; they also were easy to use, fired ammunition abundantly available all over the world and could not be easily traced back to their sources. Many of the AK used in Africa and other countries have been recycled from war to war and through various continents with very little maintenance or refurbishment.

The most surprising fact about the AK is that it is ideal for the small of stature, especially children. In Liberia, Charles Taylor issued AK-47 to anyone that swore allegiance to him. He began mustering more children than adults. In the course of taking control of Liberia for six years, Taylor demonstrated that a minimally trained ten-year-old recruit armed with an AK can be more effective than a well trained adult. Apparently it’s the sense of immortality, laced with plentiful amphetamines, opportunities for rape, theft and mayhem and the likelihood that, if not for being a member of Taylor’s army, other children would hack off the infant soldier’s limbs. These grotesque practices spread to other African countries, including Sierra Leone where Taylor succeeded in controlling the diamond fields and introducing “blood diamonds” to the markets of the world.

Al Qaeda discovered that weapons, diamonds and drugs were the perfect mix for the world money laundry, and exploited the opportunity to bring brand name terror into new markets. The role of France and other major powers, including the US, was to maneuver for a seat at the arms bazaar. The French activities in Africa seem more ignominious than the others because of the role France played in setting up Rwandan for genocide. But there was plenty of blame to go around with all the usual suspects in the UN, the Clinton administration and the EU wringing their hands, apologizing and probably making money from the tragedy. See the link to Samantha Powers article below for the details.

The UN role has been to point to the finger at the US for its “intransigence” when it comes to global arms control. In 2001, the “consensus” at the UN Conference on the Illicit Trade in Small and Light Weapons (SALW) favored ridding the nations of the world of small arms, “especially AKs”. On July 9, 2001 John Bolton struck a historic note for liberty when he stated:

“We do not support measures that would restrain legal trade and legal manufacturing of small arms and light weapons… We do not support the promotion of international advocacy activity by international or nongovernmental organizations, especially when those political or policy views advocated are not consistent with the views of all the member states…We also do not support measures that prohibit civilian possession of small arms.”
Emphasis added

The author of AK-47 dismisses the important issues raised by the U.S. Undersecretary of State for Arms Control and International Security Affairs as though Mr. Bolton and the Bush Administration were merely kowtowing to the NRA and “a stab in the back to countries trying to keep AKs out of the hands of terrorist groups, drug cartels, and insurgents.”

Would you put your family at the mercy of the UN based on the member states’ promises to save lives in Africa? The plain facts are that virtually all the genocides in modern times have occurred with the benefit of maximum hand-wringing by the diplomats at the UN. The UN leaves when the “peacekeeping” gets dangerous and returns to exonerate itself when the dust settles in the blood! These same “diplomats” were some of the folks (including the French who were selling Saddam great amounts of illegal military technology) that did everything to ensure that Saddam Hussein had at least ten billion dollars to restart his WMD programs once the sanctions were lifted.

The UN role in the Rwandan genocide is documented by Samantha Power, “Bystanders to Genocide“.

Mr. Kahane makes the terse assertion that the anti-gun delegates identified the NRA as a pro-gun NGO that exerted a large influence on the U.S. position. Duh! “For the NRA, the conference represented the opportunity to raise funds and enter the international arena in a way never before possible.” The fact that the U.S. already is a world leader “in transparency of arms sales and accountability” compared to other countries, with “solid and workable” domestic gun laws poses an irony for the author. The fact that the U.S. is “in the forefront of monitoring weapons transfers, maintaining security of weapons caches, licensing of brokers, and setting standards for weapons markings”, raises the issue of why the “U.S. delegation did not push for international standards even in cases where U.S. laws exceeded worldwide proposals.”

I hear all this talk in gun-world about the errors of the NRA because the NRA supported some legislation of which some gunners disapprove. (See our article on the NRA at our Disaster Preparedness page. Whatever you think about this legislation or that NRA position, the NRA has been around since right after the Civil War and has an impact that cannot be duplicated by any other organization. It is an organization that works with the military and police and commands credibility with everyone that knows about the subject, except for award-winning journalists and former Washington staff correspondents for Business Week magazine, like Larry Kahane.

It is a startling irony that to compare Mikhail Kalashnikov’s poverty in old- age to the wealth enjoyed by his free world peers (i.e., weapons designers like Winchester and John Browning); the comparison amply demonstrates the merits of free-enterprise and evokes a certain nostalgia evinced by this simple soldier that designed a weapon to defend his comrades and his country’s vanished Communist way of life. Thank God that the USSR has “vanished”, nevertheless. Every indication is that Russia (now the biggest arms-supplier to underdeveloped nations according to the New York Times) and China (still a Communist giant, in case you forgot) are creating newer, better assault weapons. History demonstrates that both countries are probably keeping their newest small-arms technology a well-kept secret until deployed.

The U.S. is still the world’s biggest arms supplier. This brings us to the question of whether a world awash in weapons is amenable to democratic ideals. The fact is that individual nation-states themselves have to determine their national destinies and those choices are always made in a cauldron of conflict. The Middle-Eastern nations, for example, are working out a social process that is determined by many conflicting and dangerous forces and no amount of outside engineering can solve the problem.

The question of when and where to sell weapons to another nation, is preeminently a question of national foreign policy. There is no perfect formula or rationale for making such determinations and the UN certainly does not have the answers and never will. We have seen the U.S. arm the mujahideen in the Seventies and Eighties; then our erstwhile mujahideen ally, bin Laden, attacked us. According to Kahane, South America is flooded with U.S. supplied weapons left over from the conflict in Nicaragua and right-wing paramilitaries are vying with narco-terrorists in Columbia to destabilize the Western Hemisphere. The Russians and Chinese have also participated in supplying weapons to governments and NGOs in South and Central America and will probably continue supplying them. It seems like the winner supplies the weaponry- except in the case of the AK-47 and its offspring!

Venezuela is prepared to manufacture and sell a great number of AK-47s to Hugo Chavez’ friends and allies. We will be looking at a much more dangerous border if certain countries achieve their goals. Things may get very dangerous if future administrations shrink from the new challenge of Chinese geopolitical aims in the Western Hemisphere. Farmers and labourers that own cheap and useful assault weapons are the least of our worries and if they manage to overthrow some corrupt regimes here and there or protect themselves from genocide- who else is going to do it? Whoever framed the old metaphor of the wolf in the hen house must have had the UN Security Council in mind!

The UN has managed to institute restrictions on small arms in several nations already, but can the UN do anything where a Chinese owned weapons manufacturer NORINCO and/or Poly Technologies illegally ships assault weapons while China sits on the Security Council?

A company owned by a Chinese general (Poly Technologies) was actually caught illegally shipping SKS assault weapons (Chinese made semi-automatic versions of the AK-47) into the U.S. during the Clinton years. Allegedly the shippers had permits to import the weapons that were approved by President Clinton right after the U.S. assault weapons ban went into effect! The Chinese weapons were probably on their way to the gangs in Southern California. The assault weapons were being shipped by Chinese Overseas Shipping Company (COSCO) an instrument of the Chinese military that controls most of the world’s super-ports, including many of the major U.S. ports. Indictments were issued, but the Clinton Administration never managed to prosecute the corporate officials involved. In fact, there were Chinese campaign contributions made around this time by individuals and corporations connected to the transactions.

In May 1996, United States authorities caught the People’s Liberation Army enterprise Poly Technologies and the civilian defense industrial company Norinco attempting to smuggle 2,000 assault weapons into Oakland, California, and offering to sell urban gangs shoulder-held missile launchers capable of `taking out a 747′ (which the affidavit of the United States Customs Service of May 21, 1996, indicated that the representative of Poly Technologies and Norinco claimed), and Communist Chinese authorities punished only 4 low-level arms merchants by sentencing them on May 17, 1997, to brief prison terms.

How would the UN deal with that? The UN record can be summed up in one word- CORRUPTION.

If the gangs and terrorists in the Western Hemisphere (just south of that porous border) are getting as many AK-47s as all the above referenced information seems to indicate, then maybe all of us should have an AK-47 hanging on the wall of our cottage!