WHY THE SECOND AMENDMENT MATTERS
Last year (2008), the Supreme Court of the United States (hereinafter SCOTUS) ruled that Americans have an individual right to keep and bear arms. Why does the decision in DC V HELLER matter to city-dwellers like you and I that live or work in Federal Way and have almost no place in our lives for hunting, target shooting or toting a pistol as we go about our busy routines?
The fact that the Washington State Constitution already guarantees Washingtonians protection if we choose to possess firearms also raises the issue of what was, if any, the HELLER decision’s impact on residents of our local communities. Any law-abiding U.S. citizen of sound mind (twenty-one or older) can obtain a Concealed Pistol License in Washington State. You can even keep and wear a weapon in your own home or business without obtaining a CPL. So why does DC V HELLER matter in the Evergreen State?
To answer the question we need a nutshell course on Second Amendment jurisprudence. When the federal government first got involved with regulating guns pursuant to the National Firearms Act of 1934 (NFA). In the 1939 case of UNITED STATES V MILLER, SCOTUS took up the issue of whether the NFA’s prohibition against sawed-off shotguns violated the Second Amendment. The MILLER court decided the issue by analyzing whether sawed-off shotguns are militarily useful. Ever since that time gun control advocates, law professors and even a minority of Supreme Court justices in the HELLER dissent have been able to point to United States Circuit Court precedents in which the decisions cited the MILLER case and rejected claims that the Second Amendment protects an individual right. Thus, prior to recent times, a majority of legal scholars and even our own Ninth Circuit Court of Appeals have taken the position that the “people” that have the right to keep and bear arms are the states; i.e., the U.S. Constitution only protects a state’s right to maintain a militia.
Pro-gun folks advocate that MILLER only dealt with the issues in a very oblique fashion for a number of reasons, including the fact that the only representatives that appeared to argue the issues in MILLER were the government lawyers! Because the defense did not appear, there was arguably no way for the judges to hear both sides of the issues. It is worth noting that, despite the assertion in the MILLER opinion declaring that sawed-off shotguns have no military usefulness, short barreled shot-guns were very much in use as trench guns in WW I.
It can be argued that the HELLER case is actually the first case in which SCOTUS has dealt directly with the issue of who has standing to assert the right to keep and bear arms. The HELLER decision almost guarantees that many more Supreme Court decisions will follow. Because Washington, DC is not a state there are bound to be cases that decide whether the states are obligated to abide by the Second Amendment and what restrictions are reasonable for the states and the federal government to enact. Keep in mind that many rules dealing with firearms are administrative and are buried deep within arcane intricacies of local, state and federal bureaucracies.
Those of you that resent rampant militarism, the Founding Fathers are on your side! The legislative history of the Bill of Rights reveals that the Founders were conflicted about the wisdom of permitting standing armies that could be used against the people to usurp American’s civil rights. The Federalists compromised with the anti-Federalists by leaving the size of the military up to the President and Congress. By keeping the people armed, Americans would be prepared if the government neglected the national defense and, at the same time, the people would have recourse in the event that the new federal government ran roughshod over our liberties. You have to say one thing for those old boys- they were radical!
Dick Heller, an armed security guard for a government agency, was prohibited under Washington, DC’s draconian gun laws from possessing a gun in his home, even though the United States Government entrusted him to guard life and the U.S. Government’s property. Because he challenged and overturned the DC gun ban, cities like Morton Grove, Illinois are already revising their gun laws to permit at least some private possession of guns within their city limits.
History has demonstrated that the federal government, states and local governments can and will enact laws that deprive individuals and states of the ability to take control of our own destinies. The Interstate Commerce Clause has been invoked to justify economic regulation and federal incursions into almost every area of our lives. Presidents can enter into all kinds of treaties and there are many legal scholars prepared to argue that treaties may be valid even without going through the cumbersome process entailed by the plain meaning of the U.S. Constitution. My Constitutional law professor taught me that treaties supersede the Constitution!
Consider also that in the very near future, you will be hearing a great deal about a proposed UN Treaty that is being touted as a “common sense” agenda to limit trafficking in small arms- a solution to international terrorism and other criminal activities. The only problem is that everywhere we look in the world, the thugs in high places are busy building up arsenals, while the honest folks are mostly disarmed- except in the United States of America.
The DC v Heller case makes it far more difficult for the executive branch of the federal government, Congress or a federal judge interpreting an international treaty to undermine the protection that Washingtonians enjoy under various state laws.
In a very real sense, the Second Amendment helps to protect our First Amendment rights. But guns have no inherent ability to guarantee that we will remain a free people. Vigilance and prayer must secure liberty.
In conclusion, you should take a final look at a not-so-apparent but self-evident truth. The right to protect our loved ones does not come from a constitution or other legal document. Protecting our families and communities from violence is not really even a right! It is a duty that is placed on us by God. The soccer-mom or senior citizen that might be carrying a concealed pistol often represents as much of a deterrent to violent crime as a six foot, two-hundred pound police officer. Why? Because predators never know where and when the armed citizen may respond with deadly force!
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STOPPING DOMESTIC GUN OWNER ABUSE
Firearms were used in 54 percent of the state’s domestic violence-related homicides since 1997. The Tacoma News Tribune states that abusers used firearms in 232 of 430 deaths that resulted from domestic violence between Jan. 1, 1997, and June 30, 2008. These statistics must cause all of us to be concerned.
See State Report Takes On Domestic Violence, By Stacey Mulick.
Statewide in the last two years, 68 women, men and children were killed in domestic violence incidents; 33 victims were shot. Should we look at how the criminal justice system can take further steps to get the weapons out of the hands of convicted abusers?
Under the 1996 Lautenberg Amendment and Washington state law, people convicted of domestic violence, including law enforcement officers and members of the military, are not allowed to possess firearms- no exceptions for police and military. These laws make it difficult to attract and retain personnel! Even authorizing a soldier to handle a weapon while stateside puts his command at risk of criminal prosecution.
Domestic violence laws like the federal Lautenberg Amendment make recruiting and retention of police and military personnel difficult. At one time there were exceptions for police and members of the military:
“For more than thirty years, the Gun Control Act of 1968 has provided the basic framework for gun control in the United States.” The law prohibited convicted felons from possessing firearms, but it provided an exception for members of the government, such as police and military members. This new Amendment, however, does NOT include such a provision. If, however, an officer is convicted of a felony version of domestic violence, the exception applies and the officer may continue to possess a weapon for the performance of his duties.
Since the Lautenberg Amendment became effective, officers who are convicted of a misdemeanor version of domestic violence are prohibited from possessing firearms, even on duty. This inconsistency in the statute has left police and military administrators in a difficult situation regarding the assignment of officers who are affected, although the number of officers affected has been relatively low. This statute also reaches back to prior convictions and applies them to prohibit officers from possessing firearms today, even when they have lawfully been armed officers for years.”
Thus, there are still exceptions that apply for military and police where DV protection orders have been entered and, ironically, where the DV conviction is a felony and not a misdemeanor!
§ 925. Exceptions: Relief from disabilities
(a)(1) The provisions of this chapter, except for sections 922 (d)(9) and 922 (g)(9) and provisions relating to firearms subject to the prohibitions of section 922 (p), shall not apply with respect to the transportation, shipment, receipt, possession, or importation of any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof.
The impact on recruitment and retention becomes evident once you realize how little it takes to get arrested for domestic violence when a mandatory arrest staute is in place. Mandatory arrest laws enacted in Washington and many other states make officers liable for any mistakes that result from exercise of discretion in making arrests for domestic violence. Thus, almost any hearsay accusation or circumstantial evidence (such as a case in which an officer responds to a 911 caller that was just driving by) can result in an arrest, no-contact orders and a chain of legal events that becomes so complicated and bewildering that defendants often feel that pleading guilty is their only choice.
The “victim” often pleads with the prosecutors to drop the case and a great deal of pressure, including threats of prosecution against the victim, are often employed in order to gain the testimony of the “complainant witness ” that may have never initiated the complaint at all. The State has sole control over whether to proceed with the charges in Washington State and in King County and Seattle rarely dismisses cases even when the “victim” is vehemently denying that any assault ever occurred.
Even when a woman denies that an assault has occurred her husband or boyfriend is prone to be arrested, jailed and charged despite the responding officers’ common sense determinations. This is because of the technical fact that probable cause exists and failure to arrest makes officers liable for any mistaken judgment that results in death or injury to the “victim“.
Every officer, prosecutor and criminal defense lawyer is familiar with the problem of how unfair the system is to men. Nevertheless, no politician, prosecutor or judge is going to position himself or herself to look soft on domestic abusers! The coalition of DV activists in Western Washington is ferocious to any official that crosses their agenda:
A police officer having probable cause to believe that a person has committed or is committing a felony shall have the authority to arrest the person without a warrant. A police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the presence of the officer, except as provided in subsections (1) through (10) of this section….
© The person is sixteen years or older and within the preceding four hours has assaulted a family or household member as defined in RCW 10.99.020 and the officer believes: (i) A felonious assault has occurred; (ii) an assault has occurred which has resulted in bodily injury to the victim, whether the injury is observable by the responding officer or not; or (iii) that any physical action has occurred which was intended to cause another person reasonably to fear imminent serious bodily injury or death. Bodily injury means physical pain, illness, or an impairment of physical condition. When the officer has probable cause to believe that family or household members have assaulted each other, the officer is not required to arrest both persons. The officer shall arrest the person whom the officer believes to be the primary physical aggressor. In making this determination, the officer shall make every reasonable effort to consider:
(i) The intent to protect victims of domestic violence under RCW 10.99.010;
(ii) the comparative extent of injuries inflicted or serious threats creating fear of physical injury;and
(iii) the history of domestic violence between the persons involved.
“This degree of statutory control leaves the officers with little discretion, imposing a duty upon the officers to make arrests in most cases. The result is that officers make arrests in marginal situations, essentially because they are “afraid not to. Officers tend to err on the side of the statute’s demand for an arrest, even when they believe an arrest is unnecessary.”
See Impact of Domestic Violence On Law Enforcement.
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Nickels Missing; Seattle Finds Smoking Gun Dec 17, ‘08 1:14 AM
by Mark S. Knapp, Federal Way
Subsequent to publishing the following article, Nickels issued his edict. He is now out of office and his successor and the City of Seattle are battling at least two legal actions that the City cannot expect to win:
Mayor Nickels wrote to the Speaker of our State House of Representatives, Hon. Frank Chopp, on May 4, 2006. Greg Nickels stated:
“State law preempts any and all local regulations related to firearms. Our hands are tied at the local level and we are unable to adopt any local laws to protect our residents from gun crime.”
-Mayor Greg Nickels, May 4, 2006.
For several months after the Mayor Nickel held public hearings on his plans to ban guns on City property, he seemed to know that the legal action ready to be filed by the Second Amendment Foundation in Bellevue, Washington can seriously hurt the City. Then in March, 2009, the Mayor’s office indicated that the edict will go into effect on a yet to be announced date. See Workman.
During his nonappearance at the public hearings held to air his edict banning carry of weapons on most city premises and parks, the Mayor clearly created an unrebuttable presumption that he has delusions of grandeur that are more characteristic of Cook County political personalities than the traits we see in our Seattle politicians.
Maybe guilty of malfeasance and violation of his oath to uphold the Constitution by reason of insanity will be his plea? Official misconduct to deprive citizens of privileges and immunities is a form of reckless disregard of the Mayor’s official duties and oath of office, according to one retired Coast Guard member. “Gun free zones don’t work,” the indignant citizen proclaimed as he stood there, still a watchman on the stormy sea of liberty. This theme was repeated by several speakers until finally one impassioned lady cried, “The reason we keep repeating ourselves is because you guys just don’t hear us!” The people of Mumbai seem to have heard the message better thsn the Mayor.
I read in the newspaper this week that a guy in Mexico makes a little boat that stays right below the water and leaves no heat signature because the exhaust pipes are under water. They cost a million dollars but drug dealers buy them up faster than the government can eliminate them. A terrorist could never bring a crew to Seattle like that? Those guys only know how to handle weapons of mass destruction like nukes and crude biological stuff. They would never get in an underwater boat and come to a friendly town like Seattle where everybody except Weyerhauser Corporation loves trees. But then again, the boat has a range of 2,000 some miles…. I digress.
According to FBI crime statistics, there were 9,000 hate crimes in 2007 and 41% of those crimes occurred in public buildings such as the Seattle City Hall. Back in 2008, the Mayor announced that he had legal authority to ban weapons on City property. That is when the public hearings occurred. Since then, the number of approved applications for Concealed Pistol Licenses has increased and so have gun sales in King County.
Yvonne Ward, a civil rights lawyer that represents crime victims, was present at the hearing and told the City of Seattle exactly why Mayor Nickels’ gun ban will make victims more vulnerable to men that prey on women. The Mayor’s edict victimizes women twice by making criminals of those that disobey the law.
Ms. Ward, an Asian-American leader who definitely carries, was among many that provided public comment and then asked, “Where is Mayor Nickels?” The Mayor was conspicuously absent. The hearing, held on Bill of Rights Day, was replete with doctors, retired veterans, academics (including a UW professor emeritus) and victims of violent crimes- all opposed to Nickels’ decree.
One of the few that favored the ban claimed to speak for the Jewish Federation insisting that disarming honest people on City property is a “common sense” way to stop hate crimes like the shootings that occurred at the Federation’s Seattle headquarters. I asked the speaker wouldn’t he be safer having armed citizens nearby? He abruptly cut off the discussion with me in the hallway.
A survivor of the same hate crime (committed by a menatlly ill person of Middle Eastern ancestry who became agitated when Israel went into Lebenon a few years ago) said her niece was also a victim. She also stated that she is a board member of Washington Ceasefire. These were some of the few that favored the gun ban. Several speakers made reference to Hitler and Lenin’s outspoken support for gun control, the point being that all dictators share the same sentiments as Washington Ceasefire.
Joe Waldron came from sunny Florida to point out that if you lock your weapon in the car in order to comply with the Mayor’s edict you run the risk of getting your weapon stolen like Gil Kerlikowske- the former Seattle PD Chief’s gun was stolen from his vehicle and is now a potential instrumentality of criminal violence on the streets! Evidently the Obama Administration overlooked little problems like the lost gun and the fact that his son has a drug problem. He is now slated to be the nation’s new drug chief!
Speakers favoring responsible self-defense included self-professed “liberals” and gay people that are opposed to becoming victims. A rape victim stated that she would be terrified to walk in a Seattle park near her home without concealed carry. Many fathers also expressed safety concerns about taking their families to parks without the ability to protect their kids. Judges and prosecutors might also have concerns about their own personal safety traversing City property but none were present to testify. In Seattle, many folks use Metro and cannot lock their weapons in the car to enter property belonging to Mayor Nickels. You may or may not be surprised how many lawyers carry- for good reason.
One of these days I would like to write an article analyzing the statistical probability that ethnic minorities will be victims of violent crime compared to statistics for non-minority Caucasians. Of over 150 people present from many races and backgrounds, there must have been twenty that favored the Nickels Gun Ban.
Most of those that favored the change seemed to be spokespersons from Ceasefire. They used words like illogical to characterize armed self-defense. Hmmmmm….
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Yakima Mayor Edler recently announced that he joined Mayor Bloomberg’s Mayors Against Illegal Guns (MAIG). Yakima is dealing with a string of gang-related shootings that have rocked the City of Yakima. MAIG’s Mission Statement declares:
“We support the Second Amendment and the rights of citizens to own guns.”
The anti-gun mayors’ group does not support the right to bear arms, however. MAIG has stated that “a policy that is appropriate for a small town in one region of the country is not necessarily appropriate for a big city in another region of the country.”
Many of the positions taken by MAIG around the U.S. violate our Washington State Constitution and RCW 9.41.290 which “fully occupies and preempts the entire field of firearms regulation” within Washington State. Thus, our state firearms preemption law prohibits local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law.
Yakima’s City Council recently decided to repeal two illegal firearms restrictions that violate state preemption law.
A nineteen year old man was shot dead during an argument yesterday (September 17, 2009) at the Federal Way Transit Center. There have been previous shootings there, including the death of an innocent bystander.
Federal Way’s neighboring mayor, Pete Lewis of Auburn, and other Washington mayors presumably join Mayors Against Illegal Guns (MAIG) to combat violent crime and make cities like Auburn safer.
According to MAIG, more than 450 mayors from big cities and small towns across the country have joined the coalition. MAIG claims that it just seeks common sense solutions that may vary for different localities but MAIG’s real agenda (possibly unknown to well-intentioned mayors like Mr. Lewis- but unlikely at this point in time) is to restrict folks from exercising many of our gun rights, gradually removing the ability of citizens to stop violent crimes immediately by armed self-defense.
Legislation supported by MAIG includes repealing the Tiahrt Amendment which provides for trace data to be provided to law enforcement and prosecutors but prohibits providing firearms information for lawsuits aimed at closing down gun manufacturers and gun shops. The NRA and The Fraternal Order of Police oppose releasing such data as releasing some of the data could jeopardize officer’s lives.
Mayor Bloomberg would restrict people on the terror watch list from buying or owning guns. Earlier this year, Homeland Security warned that some of our troops returning from combat zones pose a potential terrorist threat.
Do we want our returning servicemen and women placed on a watch list and losing their right to keep and bear arms? Once on the list, many Americans have found that there is no way to get off of it- even where the government admits a mistake has been made.
Mayor Nickels of Seattle, a founding member of MAIG, announced again that he is prepared to proceed with an illegal gun ban on city premises despite the certainty that he will soon be leaving office (he did not make it past the primary due to the unpopular style of his governance in the Emerald City). Despite Washington’s firearms preemption law and an imminent legal challenge that Seattle cannot win, Seattle’s lame-duck mayor is foisting huge legal expenses on Seattle’s taxpayers. Isn’t it less expensive to simply punish violent predators to the maximum extent of the law? But Nickels, like a few of Seattle’s other anti-gun politicians now in Washington, DC, is feathering his own nest in hopes of a salaried position with MAIG or even a position in the Obama Administration.
See Dave Workman.
MAIG is against HR 2296 and S. 941 which would clarify the standards and improve the process for imposing penalties related to intentional violations of federal gun laws. MAIG’s opposition is apparently because the proposals are not hard enough on simple paperwork mistakes that can presently result in the BATF harassing and even closing down legitimate gun dealers!
MAIG’s present goal in Washington State is apparently to remove the so-called “gun show loophole”. The argument (shown to be false by Department of Justice statistics) is that, since people can buy guns at gun shows without a background check, many criminals are purchasing guns at gun shows. The Washington Arms Collectors, the organization that hosts many gun shows in Washington, requires that only WAC members (all of whom have passed background checks) can purchase weapons at gun shows. Dealers still have to perform NICS checks at gun shows just like they do in their regular place of business.
Under present Washington law, private parties can presently buy or sell weapons away from gun shows without any background check. Will MAIG want legislation closing the private party loophole next?
Efforts to prevent the existence of any loopholes work better in totalitarian societies. Laws already enacted need to be enforced more strictly before we give up our freedom. Let’s make society safer by making things harder for the predators, not for law abiding gun owners.
You can find out whether your mayor is a member of MAIG with the handy NRA list from the NRA-ILA. The following Washington mayors (as of August 20th, 2009) are involved in this anti-civil rights organization:
Mayor Peter B. Lewis
Auburn, WA
Mayor Cary Bozeman
Bremerton, WA
Mayor Greg Nickels
Seattle, WA
Mayor Bill Baarsma
Tacoma, WA
Mayor Royce Pollard
Vancouver, WA
Mayor David Edler
Yakima, WA
