Tag Archive for 'firearm'

Supreme Court: It’s Illegal to Purchase a Gun on Behalf of Another Lawful Gun Owner

It’s hard being a middleman, especially if the federal government prosecutes the middleman for a legal transaction. Bruce Abramski, a former police officer, discovered this the hard way when he was misidentified as a bank robber. Although state prosecutors eventually dropped the investigation, federal prosecutors discovered a gun purchase receipt during a search of Abramski’s home. The receipt showed that Bruce had purchased a Glock 19 handgun for $400 on behalf of his uncle, Angel Alvarez.

bruce abramski gun purchase caseBruce had checked “yes” to a background check question asking if he was the “actual transferee/buyer” when he was purchasing the gun. Bruce then signed the form, acknowledging that it is a federal crime to make false statements about “any fact material to the lawfulness of the sale.” Lower courts dealt with the issue that Angel Alvarez was also a legal gun owner, casting doubt on whether the misstatement was legally relevant. The Supreme Court addressed the question of whether Congress intended to regulate third person gun purchases. In a 5-4 decision, the Court voted against Bruce, affirming his five year prison sentence.

Courts Should Not Fix Laws

As Justice Scalia said in his dissent, “The Court makes it a federal crime for one lawful gun owner to buy a gun for another lawful gun owner.” The majority of the Court does so because it sees a loophole that they feel should be closed. The law Bruce was prosecuted under makes it illegal for a person to make a material misstatement about the person’s attempted acquisition of a gun from a licensed dealer. The majority treated Bruce as an agent for his uncle, making the uncle the “person” who purchased the gun.

However, the background question, “Are you the actual transferee/buyer?” could be read as asking whether the person answering the question is the person paying for the gun, NOT whether the person purchasing the gun is an agent for another man or woman. Justice Scalia provided a perfect example: “So if I give my son $10 and tell him to pick up milk and eggs at the store, no English speaker would say the store ‘sells’ the milk and eggs to me.” Answering the question this way does not interfere with Congress’s attempt to keep guns from “felons, fugitives, illegal drug-users and the mentally ill” because the actual gun owner is neither a felon nor mentally ill.

The fear is that if “agents” are allowed to purchase guns, then a felon could hire a delivery man to purchase the gun without having to go through a background check. That does seem like a clever workaround, but the law also requires there be a paper trail when a gun is transferred to another. Since Bruce had a receipt for the police to find, it’s clear that the law already has a method of tracking third person gun purchases.

Federal Overreach

Gun control proponents see this case as a victory. It is sad that any case involving firearms automatically devolves into an argument over the role of the Second Amendment. Gun control advocates might see this ruling as a win, but I see a man who is imprisoned without cause. When courts give federal laws more teeth than originally intended, we all lose.

Why the Gun Control Issue Is Absurd on Both Sides

On the topic of gun control, Americans completely lack common sense.

gun controlIn Washington, D.C., the nomination for Surgeon General is delayed because the candidate, Dr. Vivek Murthy, wrote on Twitter that guns are a healthcare issue. The nomination block is rather extreme given that most Surgeon Generals, including President Regan’s appointee, Everett Koop, believed guns were a healthcare issue. Actually, most medical associations, such as the American Medical Association, support gun regulation. Common sense dictates that guns are a healthcare risk. Shooting a bad guy will put the bad guy in poor health; that’s the very reason gun owners want guns for self-defense!

Of course, the 2nd Amendment is only a right if you’re an adult. Ten year old Nathan Entingh was suspended from school for three days for a “Level 2 Look Alike Firearm” – his fingers. Nathan had put his fingers up to another student’s head and said “Boom!” A teacher saw him and sent Nathan to the principal’s office. Ohio has a zero tolerance policy and students at Devonshire Alternative Elementary School had been repeatedly warned against gun related behavior.

What do these two stories have in common? In the former, Dr. Murthy is criticized for talking about guns. In the latter, Nathan and his fellow students are prohibited from engaging in gun related behavior, such as making paper guns. To overgeneralize for a moment, it seems as though nobody in the United States is allowed to talk about guns.

The context of each incident is completely different, of course. Dr. Murthy is in a job interview with the Senate while Nathan is playing around. The adult is being grilled because Senate Republicans, and some Democrats, believe they are protecting the 2nd Amendment. The NRA fears that an anti-gun right Surgeon General could do to guns what past Surgeon Generals have done to tobacco. Warning labels and public education campaigns about the health risks of tobacco have greatly restrained what the tobacco industry can do today.

Nathan was suspended because the school fears for student safety. I don’t have to mention the number of school massacres to show why Ohio has a zero tolerance policy on guns in schools. Many judges would probably defer to the school on matters of school safety, even if those same judges doubt that zero tolerance is the best approach.

In both cases, an institution seeks to protect something important. Gun rights advocates are trying to silence Dr. Murphy to protect gun rights. Gun restriction advocates want to silence students to protect student safety. It’s ironic that opposing sides of a debate have reached the same conclusion: they can win if everyone walks around on eggshells whenever the topic is brought up.

Still, it is extremely jarring to see a doctor attacked for a position most doctors hold and a ten year old boy punished for something most ten year old boys do.

The Dangers of 3-D Printable Guns

You may have heard about a new phenomenon called “3-D Printing”.  New printing technologies have basically allowed 3-D images to be printed in real life using plastic-polymer type liquids that solidify into workable 3-dimensional items.  3-D printing has already been used to print literally all kinds of things, from workable wrenches to complex mechanical models and even bio-mechanical devices.

3-D printing, combined with rapid prototyping methods, allows virtually any physical object to be “printed” in real space.  But what happens when this technology is used to print, let’s say, fully functioning dangerous weapons such as guns?  And not just any type of gun, but a full-on semi-automatic rifle?

That’s what this guy claims to have done.  He built the receiver of his gun, which is the working portion of the gun that qualifies it as a firearm, entirely from 3-D printed materials.  Sound scary?  It does to me.  Plastic guns might not appear at first that menacing, but I believe that this type of technology may be enough to trigger major changes in the area of gun control and firearms law.  Most of these changes will likely require a shift from mere possession of guns to the focus more on the production, manufacturing, and design of homemade guns.

Here are some loaded topics to think about along with 3-D printable guns:

  • Possession of FirearmsGun possession is highly regulated by state and federal laws.  A license is usually needed to own and wield a gun, and the procedure for properly selling a gun is also regulated.  3-D printable guns and gun parts may make it easier for people to skirt the law when it comes to possession.  It may also make it easier for people who aren’t supposed to be owning guns to purchase them such as convicted felons and underage minors.
  • Illegal Manufacture of Guns:  At the heart of 3-D printed guns is the software that allows the design to be captured and printed.  These can easily be obtained online and downloaded like any other program.  Something needs to be done to muzzle the dispensing of such programs; I suspect that illegally possessing such software or programming may become the equivalent of possessing an illegal firearm.
  • Disposability:  Printable plastic materials may make it easier to dispose of guns that are used in the commission of a crime.  They are likely to be easier to destroy than traditional guns and gun parts, making them less traceable.  Also, homemade guns won’t have any serial numbers or tracing numbers, which basically makes them non-existent in terms of gun registration.
  • Monster Custom Guns:  As gun-producing technology reaches the public, we should expect to see all sorts of amateur Tony Starks types trying their hand at making the most outrageous firearm prototypes.  While this may become a gun collector’s dream, complicated gun designs will reach a whole new caliber, very quickly.

One thing about 3-D printed guns- at the moment there are still a few kinks to be worked out in terms of the actual practicability of the working pieces.  For example, there are still some durability issues regarding factors like heat, friction in the chambers, etc.  However, I think that these kinks will be worked out in no time at all, since, after all, human technology is at the point where we’re printing all kinds of different gadgets.

But this leads us to my own greatest concern with this technology, legally speaking.  Regardless of whether the gun works or not, certain crimes actual don’t require a real, working gun for a person to be convicted of a serious crime.  For example, assault with a deadly weapon sometimes doesn’t actually require that the deadly weapon be functioning.  In most cases, it’s enough if the victim simply believes that they’re being confronted with a deadly weapon.

In other words, printed guns will make it more difficult to distinguish what’s a real gun and what’s not.  That means we’ll probably be seeing more dangerous holdups and crimes with real or realistic-looking guns, and less stick-wielding robbery fails a la World’s Dumbest Criminal.  All in all, this will probably translate into more victims, and also more criminals, and I think our society needs less of both right about now.

Federal District Court in Maryland Rules State’s Gun Control Law Unconstitutional

It looks like gun nuts and Second Amendment proponents alike have potentially just found a new home to roost their Glocks.

Yes, I know the link I just provided was to a very long and seemingly boring Maryland federal district court opinion.  But don’t worry, you don’t have to read it because I’ll provide the “bullet” points (ba-dum-bum) for you.  The opinion in Woollard v. Sheridan just came down the pipeline a few days ago and holds as unconstitutional a Maryland gun control statute.

You read that right gun huggers, unconstitutional; as in going against the highest law in our land.

However, what’s most interesting is that the gun restrictions in the Maryland statute itself aren’t all that different then the wording you’d find in the gun permit laws of other states.  Maryland allows the carrying of concealed weapons outside the home, but only if the carrier can show “good and substantial reason” to carry a gun.  The Maryland law in question generally restricts this to people who run businesses that have a high chance of being robbed, law enforcement, judicial officials, private security staff, and those that can show an “objectively heightened threat above and beyond personal anxiety.”

Sounds groovy, right?  However, it’s the last category that the federal district court had trouble with.  The court’s ruling essentially states that it’s unconstitutional for Maryland to require people to lay out a specific objective threat and instead should allow anyone with reasonable apprehension of their safety to carry a gun outside of their home for protection.

This is huge because it means that the federal district court in Maryland is going old school with their Second Amendment interpretation and, as many critics have pointed out, is in essence condoning the carrying of guns for plain old personal protection, ala Texas.  However, I should also note that this ruling has already been reserved for appeal, so who knows what the federal appellate court will say about its underling’s decision.

The federal district court’s ruling does bring up an interesting point on the current state of gun laws in America.  As it stands today, most states don’t allow the concealed or unconcealed carrying of guns in public.

Now I’m not a gun nut by any means, but I’ve never understood the reason why most governments are so against allowing concealed carry.  Yes, I’ve heard the arguments: increase gun violence, possibility of increase gun threats, and so forth.  But these reasons aren’t very compelling to me because the whole point of gun control laws is to prevent the unauthorized use of guns.  The ironic part however is that they don’t seem to do much to prevent those in society that we want to keep from using guns from actually using them.

By this I mean, career criminals, gang members, robbers, and every other person gun control laws are aiming to stop will nonetheless use and carry guns because, well, they’re criminals and they’re going to carry and use guns no matter what.  But this isn’t to say that all former convicts are forever convicts, but rather what I mean is that if someone is planning to commit a crime where the use of a gun is necessary, that person probably isn’t going to care that they’re also breaking a gun control law.

The fact of the matter is that gun control laws only end up harming those that really need protection the most.  Chances are a law abiding citizen isn’t going to be carrying a gun and thus becomes a potential target to wrongdoers since they’ll know that their victim won’t be able to fight back as effectively.  Gun control laws remove the ability for lawful citizens to utilize a power crime deterrent.  And aside from increasing the sentence of those criminals caught with a weapon in public, gun control laws don’t do much by way of protecting citizens.

Like I said before, I’m not a gun advocate in any sense of the word, but I think federal district court in Maryland made the right decision in this case.  Even though their ruling will most likely be struck down on appeal, hopefully their opinion will gain some traction and help put the issue of gun law reform back into the public’s attention.

It seems like there should be a much easier way to restrict gun usage from the more criminally inclined in society while also allowing private citizens a chance to still protect themselves.  Something as simple as a Megan’s law type gun restriction could be the answer.  I think by simply enacting a law prohibiting gun crime convicts from carry guns in public while allowing everyone else to do so is a good place to start.

Does the Second Amendment Protect a Right to Carry Guns Outside The Home?

In a move that provided a great excuse for authors of constitutional law textbooks to come out with a new edition (as if they needed one), the Supreme Court ruled a couple years ago that the Second Amendment to the Constitution confers an individual right to bear arms, ruling that laws which prohibit or severely restrict the possession of handguns in private residences are unconstitutional. Last year, the Supreme Court ruled that this right is incorporated against the states by the 14th Amendment, so the right applies nationwide (not just on federal property) and restricts state governments along with the federal government.

Both of those cases, however, left many, many questions unanswered. While the court in both cases gave a few guidelines on what types of restrictions on gun ownership and possession are constitutionally-permissible (for example, states can ban gun ownership by convicted felons, they can require background checks and registration, they can ban guns from government buildings, etc.). However, the court left many gaps which are presumably to be filled in subsequent cases, as the issues arise.

firearm supreme courtThe Supreme Court is now being given its first opportunity to answer one of the biggest unanswered questions it left in Heller and McDonald (the two cases mentioned earlier): does their ruling extend to the right to carry concealed weapons outside the home (in this case, in a car on a public highway)?

Many states already allow residents to carry a concealed weapon, with varying restrictions. Some states, known as “shall-issue” jurisdictions, will grant a license to carry a concealed weapon to anybody who requests one, unless there is a compelling reason not to (they are a convicted felon, under the legal age of majority, etc.). Other states, known as “may-issue” jurisdictions, allow people to apply for concealed-carry licenses, but will only grant them if the applicant shows that they have a very good reason for needing to carry a gun with them.

And in a few states, like Arizona, you can legally carry a concealed firearm without even having to apply for a permit.

Quite a few states, however, do not issue concealed-carry permits, and have altogether banned the carrying of concealed weapons outside the home.

So far, lower courts have consistently ruled that the Second Amendment, when read along with the Supreme Court’s recent opinions, does not confer a right to carry concealed weapons outside the home. However, before McDonald and Heller, lower courts were ruling, pretty consistently, that the Second Amendment doesn’t confer an individual right to keep guns in the home, and the Supreme Court overruled them on that point.

So, if the Supreme Court ends up granting cert, there’s a real chance that it could further extend the protections afforded by the Second Amendment. While there are federal laws that are meant to make it easier for people to transport lawful, registered firearms across state lines without running afoul of state laws (known as “peaceable journey” laws), many states have laws on the books that place severe restrictions on carrying guns outside the home, even if they’re in the trunk of a car where neither the driver nor any passengers have immediate access to them.

While I’m not sure how the Supreme Court should rule in this case, if it even takes it, it does seem that if it did find a limited right to carry a gun in one’s car, establishing a constitutional baseline, it would make transporting guns (for lawful purposes) across state lines much easier, and create far less hassle and uncertainty for law-abiding gun owners.

On the other hand, there is no question that guns, in the wrong hands, are dangerous. And while both sides of the gun control debate can cite volumes of studies showing that increased gun ownership increases or decreases violent crime (proving that the issue of gun control is probably far more complicated than either side of the debate makes it out to be), there are obvious concerns raised by the recognition of a constitutional right to carry guns in automobiles on public highways.

We all know that “road rage” is a problem, and it’s not hard to imagine somebody snapping and firing shots at other motorists when they perceive that they’ve been slighted. Obviously, this would not be a common occurrence, but it’s hard to argue that more guns on the road wouldn’t make this more common.

Also, the presence of a gun, even if it’s legal, in a car could trigger a misunderstanding with a police officer, possibly leading to an officer-involved shooting.

On the other hand, I recognize that people have a right to defend themselves, and that this right is relevant outside the home, as well as inside. I don’t pretend to have a perfect solution to the question of gun control, and I don’t expect the Supreme Court to have it, either. However, I’ve argued before that having a clear rule is, in many ways, more important than what the rule says. Legal uncertainty and ambiguity can be more paralyzing than clear prohibitions on certain types of conduct.

For example, in the U.S., cars drive on the right side of the road. In many other countries, they drive on the left side. One arrangement is no better than the other. What’s important is that a rule exists in the first place, to prevent head-on collisions.

Similarly, having a uniform, nationwide rule on the carrying of guns in private autos would also be helpful, reducing legal confusion.



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