Eatin', Shootin', and Workin': The Blessing of Life, Liberty, and the Pursuit of Happiness

The funny thing about getting married is your family doubles. The Holidays used to be a relatively simple affair: wait until the last minute, make some phone calls about when to meet up, and that was the end of the business. In other words, I just followed the family traditions that had been established long before I had any say in the matter.

But, then I went out and got married. Now the holidays present a problem: two people who have been following their own respective family traditions are now part of each other's families. And, since neither my wife nor I can be in two places at once, compromises must be made.

Well, this year, we compromised by heading up to north Florida a few weeks before Thanksgiving to see my father-in-law and step mother-in-law. For those of you who are not familiar with Florida geography, let me give you a little lesson: the farther north you go, the farther south you get. And that's why we love to go up north during the holidays.

Although it wasn't quite Thanksgiving, we still indulged in some fine southern cooking during our visit. And, we also took the opportunity to shoot pumpkins. That's right. Luckily, the father-in-law has a bit of land and is generous about letting us shoot on it. So, my wife busted out here trusty S&W 686P .357 and I brought along the Beretta 92FS (back from the factory and doing fine), the Marlin 336SS 30-30, and the Remington 870 Police Magnum. Needless to say, we made short work of those evil pumpkins. And I also got an invite to return in January for a bit of deer hunting. Yes!

Right now we're visiting with the central-Florida branch of the family. After a fine Thanksgiving turkey meal (and a long nap) we are going to visit our favorite indoor gun range in Florida. Knights Shooting Sports ( http://www.knightshooting.com/) is a must for any shooter who gets within a day's drive of the Tampa-St. Pete area. This place is awesome. It has a 50-yard indoor rifle range and a 25-yard indoor pistol range. And, unlike most indoor ranges, nothing is off-the-table when it comes to firepower. Full auto? No problem (they'll even rent you a class 3 machine gun if you forgot to bring your own). High powered hunting rifles? No problem. Hell, they'll even let you shoot your .50 cal BMG if you can fit it through the door. Eat your heart out California! Remember how you felt when you were like 8 and your parents took you to Disney World? Well Knights offers the same feeling for grown ups kids like me.

Finally, there's the work thing, which I have been squeezing in here and there. It keeps me busy and has kept me away from the blogging. But, my series on Florida gun laws is still in the works, so stay tuned.

Beyond Party Loyalty

Gun owners can no longer look to one party to protect their interests. The idiocy, greed, and mismanagement of the Republican party proved that.
So what are we to do? I don’t know, but I’ll tell you one thing. The gun issue isn’t going away. Gun owners don’t crawl into a hole just because their traditional party loses ground. This issue has to come to a head eventually, so let’s do it now. If the new party in power wants to revive the gun control debate, then let’s take off the gloves and get this over once and for all. More restrictive gun control will lead to more court challenges. We're bound to get cert granted eventually, and then it's on.

The framers put the Second Amendment in the Constitution for a reason. It was inevitable that the government would eventually seek to infringe on the right to keep and bear arms. So let’s test the damned thing once and for all. We won’t lose that fight, and we won’t be dependent on a single party to "protect" us.

Mind Your Manners

Okay Dems. Looks like you got the House and probably the Senate. Now what are you going to do about guns? Remember 1994? Could be a short two years if you forget the lessons of the past and start laying hands on Americans' guns.

However, respecting the Constitution and proving your naysayers wrong could go a long way to shaping a new Democratic party, a party that is capable of broad appeal and a long tenure. On the other hand, if you rush to pass a new "assault weapons" ban and other extremist gun control legislation right out of the gate, then you'll prove your detractors to be correct. This malaise with the status quo will pass. Don't mistake it for a mandate on guns.

Your deal.

Why Do You Need an AK-47?

Because it's fun, because it's my right, and because somebody told me for 10 years I wasn't supposed to have one. Any more questions?

I Surrender

Man, a rough workweek bled into the weekend and the you know what just kept on coming. Needless to say, I haven’t had much time to post.

Although I haven’t been writing, I have been thinking. One of the great things about running a blog is the interaction you get with your readers. A post gets created kind of like this: think about an issue, formulate a position or a viewpoint, sit down and get your words out on paper, rewrite and refine until you think you’ve pretty much figured it all out. But folks, that’s just when the fun starts, for your readers jump in and pounce on your assumptions, your equivocations, and worst of all, your factual or legal misstatements. I wouldn’t have it any other way.

In my more substantive posts, partly for rhetorical effect and partly out of soft mindedness, I’ve conceded that the government has at least some right to regulate the manner in which the people keep and bear arms. Then I continued to develop my positions on the manner in which the government can and cannot regulate firearms in the United States. By now, you know I think that the Federal government has very little authority (if any) to regulate the private use or possession of firearms. Thus, on federalism grounds, gun control has to be primarily a state issue.

I plan to develop a series of posts on the right of state governments to regulate private use or possession of firearms with specific reference to Florida law. That will follow shortly.

But before I get to that, I do want to acknowledge the thoughtful readers who are keeping me honest. They make a very good case for the position that the government–state or federal– has no right to regulate the private use or possession of firearms UNLESS, said use violates the rights of others. While I’m not entirely convinced that this viewpoint is legally or historically accurate, it is a point well taken. We need to be very guarded with out precious civil rights, for once they are lost, they are nearly impossible to regain.

If I am going to play fast and loose with the right to keep a bear arms, I’d better have a damned good reason. Thank you, thoughtful readers, for pointing that out. I’ll keep that position in mind as I start my series on state gun laws.

Under the Gun

Work has been hellish this week. Look for new posts this weekend.

How Much is Enough?

I’m certainly no constitutional law scholar. I hate to admit it, but the only time a SCOTUS decision gets my attention these days is if it directly affects my practice area. Such is life.

But I do remember a thing or two from law school. And more importantly, I know how to read the English language, which seems to be a most underrated skill when it comes to constitutional interpretation.

So, here goes: I got into an interesting exchange with a thoughtful reader in the comments on my post on convicted felons and guns. I started that post with the premise (an admission really) that there is by necessity a balance between the government’s right to regulate the manner in which the people keep and bear arms and the right of the people to keep and bear said arms. My thoughtful reader opined that, in fact, the government has no power regulate the people in such a manner. Although I took some issue with his position, he certainly called me out on a key point that I conveniently left out of the discussion: the federal government has a very tenuous claim on the authority to regulate private firearms in this country.

Caveat: (for you 1L conlaw students out there) I am at least dimly familiar with M’Culloch v. Maryland and such concepts as the "affectation doctrine". So don’t write me and tell me why I’m wrong. What follows is my personal opinion of what the Constitution really means. This isn’t a courtroom and no one reading this blog is bound to base his or her opinion on stare decisis. We have to follow the law, but we never have to agree with it.

We should start with the premise that the Framers started with: the federal government is a government of limited powers. When the Framers nervously embarked on the formation of a federal government, they realized that they formed this potential monster at the expense of the sovereign powers of their own state governments. Thus, they insisted on a written constitution (ironically) so no one could go back and "reinterpret" the agreement. And, they insisted that the federal government be strictly circumscribed so that it could only exercise such powers as were explicitly delegated by the Constitution. Finally, as an additional assurance that this principle would be respected, the Framers expressly reserved all powers not delegated to the federal government "to the States respectively, or to the people". U.S. Const. amend. X.

This is such a simple concept, really. It has only been complicated over the years by those who wish to avoid it.

So, where in the Constitution does it say that the federal government has the authority to regulate the private use and private ownership of firearms? Article 1, Section 8 of the Constitution states:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Folks, that’s pretty much it. Now, one could certainly argue that Art. 1, § 8 gives the federal government the authority "to make all laws which shall be necessary and proper" to provide arms to the militia, to discipline the militia, and, when the militia is called up, to govern the militia. But I just don’t see how any of these powers justifies such atrocities as the Lautenberg Amendment or the now defunct ban on so called "assault weapons".

Call me what you will, but I think the federal government has very little constitutional authority to regulate the private ownership of firearms in this country. And guess what, if the feds don’t have it, the power is reserved "to the States respectively, or to the people".

State gun laws are another post for another time.

Damned Beretta

So I had a rock n' Rollin' range session yesterday. I busted out the silhouettes and practiced point shooting at about 10 feet. That's right folks, this wasn't your "obtain sight picture, control your breathing, squeeze trigger" type shooting. It was point the gun in the general direction of your target and double tap. The goal was not to create "one ragged hole" but rather to get as many center mass hits as quickly as possible. This is the kind of shooting you do when someone breaks into your house at 3:00 in the morning: don't miss, but don't screw around with the niceties of marksmanship either. You get the point.

Of course I had my trusty Ruger P345 . . . needless to say it performed masterfully. Big ol' holes center mass, no malfs, no problems. It did its job.

Then I switched over to my trusty bedside companion: my 9mm Beretta 92FS. Folks, as much as I like my Ruger, the Beretta was the winner in this exercise. She sports a 15+1 capacity so that I could keep on pounding the silhouettes until I was good and sure they weren't getting back up. And because the recoil is quite minimal with the big ol' Beretta even my point shooting produced fairly tight groups. The Beretta hits once and gets right back on target . . . it's one hell of an fine performer. I can see why the military selected it. Of course, I get the luxury of stoking it up with Corbon 115 gr. +Ps, so I don't have the same complaints as our men and women in uniform about the 9mm's stopping power. But that's another topic for another post.

So why pray tell am I pissed about my Beretta? Well it's on its way to the factory for some repairs because the trigger mechanism won't engage . . . that's why. Probably something I did while I was cleaning it. But, it still doesn’t give me the warm and fuzzies knowing that my bedside piece can't hang. After all, the Ruger's still running like a champ and I cleaned the two guns at the same time. Makes me want to bite the bullet and get a Glock 17. Glock's sure are ugly, but they seem to be idiot proof (which is apparently what I need in a handgun).

Banned for Life: Felons and Guns

There’s a delicate balance between the right of the government to regulate the manner in which people own and use firearms and the right of those people to keep and bear arms. Article 1, § 8(a) of The Florida Constitution sums up this balance quite nicely:

The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.

In other words, on the one hand, the people of the State of Florida have the personal right to keep and bear arms in defense of themselves and the lawful authority of the state, and on the other hand the manner of bearing arms may be regulated by law.

Although some do not agree, I believe the Second Amendment to the United States Constitution essentially strikes the same balance:

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 is the context in which we must examine the multitude of current state and federal laws regulating the use and possession of firearms in this country (and for that matter, proposed state and federal laws dealing with the same). The extreme ends of the debate (e.g. those who think the people have an absolute right to own whatever weapon they want and those who think no one has the right to own any weapon whatsoever) either misunderstand this analytical framework or simply ignore it. But the rest of us who wish to have a rational and intelligent debate on the subject are bound to work within it.

So what, then, about specific gun laws? Well, arguably, the heavy restrictions on full auto machine guns, short barreled shotguns and rifles, explosives, and the like contained in the National Firearms Act (26 U.S.C. §§ 5801-5872) and its Florida compendium (Fla. Stat. § 790.221) fall on the side of the government’s right to regulate. But, on the other hand, the so called "Lautenberg Amendment" to the Gun Control Act of 1968 (18 U.S.C. § 922 (g)(9)), which creates a lifetime ban on anyone convicted of a misdemeanor "crime of domestic violence" from owning or possessing a firearm seems to step way over the line. I mean a guy and his girlfriend get into a minor tussle, they both have scratches and bruises, they’ve both clearly hit each other (perhaps in self defense). But, as often happens, the cops only arrest the guy and he ends up taking a plea "just to get it over with". The guy's lawyer probably isn't familiar with federal gun laws and, therefore, never tells him he'll have to give up his deer rifle forever if he takes the plea.

So what about a lifetime ban on those convicted of felonies (i.e. crimes punishable by more than a year in prison)? This absolute ban exists in Federal law (18 U.S.C. § 922(g)(1)) and in Florida law (Fla. Stat. § 790.23(1)(a)). At first blush, you would probably say, well of course a felon shouldn’t be able to own guns. But, you might rethink your position if you knew just how many crimes are classified as felonies these days.

Here are a few of the Florida offenses that will forever strip you of your constitutional right to keep and bear arms:

A third or subsequent conviction for driving on a suspended license (Fla. Stat. § 322.34(2)(c));

A conviction for driving after receiving a specified amount of traffic infractions within 5 years (Fla. Stat. § 322.264(2));

A conviction for failing to return a rental car on time (Fla. Stat. § 817.52(3)); and

A conviction for intentionally writing a bad check for $150 or more, even if you're just "floating" a check until payday (Fla. Stat. § 832.05(2)).

Now, these are not victimless crimes by any means, and I don't want to minimize their seriousness. But I think you get the point: these days felonies include many offenses that do not involve the use of force, violence, or even negligence. As such, is there even a rational basis in the law to impose a blanket firearms ban on all felons? I don’t think so.

I think that Florida and federal law needs to be amended to specify which types of felony convictions will subject the offender to a lifetime ban on owning or possessing firearms. Felonies that involve the use of force or violence, should certainly be included. But driving on a suspended license goes a bit far, don't you think? I don’t have an exhaustive list of offenses I think should be included or excluded. Rather, I am arguing for a shift in policy that seeks to impose the least restrictive means necessary to protect the public from dangerous individuals with guns. I also think there should be time periods after which you automatically get your rights back if you haven't committed any new offenses (rather than having to go through the difficult process of getting your civil rights restored).

Most poltiticans wouldn't touch this issue with a ten-foot pole for fear of the headline "Candiate A voted to let convicted felons own guns". This is unprincipled and cowardly. I want my elected officials to protect the right to keep and bear arms, even when it's poltically unpopular. And folks, the Republicans and their "get tough on crime mantra" are the least likely to ever touch this issue.

It's wrong to strip people of their gun rights for convictions that have nothing to do with violence or negligence or convictions that are too old to matter. Unfortunately, without principled leaders, this wrong will never be righted.

Power to the People: The Ruger P345

So, you've finally decided the gun snobs were right and there really is no better auto pistol cartridge for self defense than the good ol' .45 ACP?

Well, my friends, that epiphany is just the beginning, the very beginning.

Most people new to the .45 market can be identified by the shrill scream they let out when the ask the guy behind the counter "so how much is it"? A typical encounter for a first-time buyer in the market for a .45 auto probably goes something like this:

Neophyte buyer (NB): I'm looking for a .45, ya know for self defense and maybe for carry.

Guy Behind the Counter (GBC): We'll if you want a .45, there's no other choice than a 1911. Here let me show you a few options [whereupon the GBC grabs a Kimber Pro Carry, a Springfield Champion, and a Colt Commander, and begins to show NB the virtues of John Browning's masterpiece].

NB: How much do these cost?

GBC: [tells NB how much each pistol costs].

NB: [catches his breath, buys a Glock 23 and leaves the store without his .45].

Well, as much as we all want that $1,000 stock 1911 or (don't let my wife read this) that $ 2,000 custom Wilson Combat or Les Baer, the fancy 1911 is not the only option if you want a .45 ACP that fits your humble, "I'm a few years out of law school, I have crushing student loans, and I work for a government agency" budget. Glock, Springfield, Smith & Wesson, Ruger, Kahr, and some "B-rated" gun companies all make a .45 to fit the working man's budget.

Might I suggest one?

The Ruger P345. "Wait, did this guy tell me to go out and buy a Ruger"? Yep, he did. "But aren't Ruger's cast pieces of s*!t that feel like bricks in the hand and will get you laughed off the gun range by those in the know"? First of all the cast v. forged debate aside, Rugers, in any incarnation, are about the strongest handguns in the world. Now, the brick thing is a fair characterization of older Rugers (such as the P90 and the P97) but look out world, the P345 is about as svelt and as compact as you need a working pistol to be. And, anyone "in the know" would never fault you for owning a Ruger (he's probably got a few of his own in the gunsafe).

Even with the sticker price of those fancy stock 1911s, if you look under the hood, you'll often find MIM parts galore. I'll take Ruger's investment casting process over a MIM process any day of the week. One day when I finally get those loan's paid off and get into private practice, I'll get me one o' them fancy guns made by Bill Wilson (again, don't tell my wife), but in the mean time my trusty Ruger P345 rides "co-chair".

www.ruger.com

I Regret that I have But One Vote to Give for my Country

I did the dirty deed today (we have early voting in Florida). And I do mean dirty deed. It gave me no pleasure to walk into the booth and do my duty. But I did it anyway, even though it seemed pointless.

Why such pessimism, you say? Well it’s not so much pessimism as it is reality. It’s like being down by 17 points with two minutes to go in the fourth quarter. Any football player worth his salt would still get out there and give it his all, but in the end, he knows there’s really no chance.

As I went down the line and voted for state and federal candidates, I couldn’t help but wonder "how the hell did we get to this point in two years"? But, I really don’t have to wonder, because we all know why the Dems are going to take the house and the senate this year. As gun owners, we cannot blame ourselves. We have been fantastically politically active in the past two years. We have made our voices heard and we have brought the issue of the RKBA from the dark shadows to the forefront of contemporary political debates. But in the end, it won’t be enough and gun owners, I fear, will pay a heavy price for the stupidity, greed, and perversion of (some of) the Republicans. Voting for them gave me no great pleasure, I assure you.

If every gun owner would get out there, grit his or her teeth (like I did) and "do his duty" we might just be able to hang on until ‘08. But, I only have one vote, so now it’s up to the rest of you to get off your collective asses and protect our guns.

Site Caveats

A few very important caveats for anyone reading this site:

I AM NOT SOLICITING ANYONE'S BUSINESS BY OPERATING THIS BLOG! Because I work for a government agency, I am prohibited from operating a private practice and I cannot and will not represent anyone outside of my employer's practice. So don't ask. This blog is not an advertizement for my services because I am not looking for your business.

I WILL NOT GIVE ANYONE LEGAL ADVICE ON THIS BLOG, so don't ask. Everything I write in this blog should be considered my personal opinion and not in any way connected to my practice of law. If you are in need of legal advice, contact a licensed attorney in your state.

Even if I do talk about the law, MY COMMENTS ON THE LAW SHOULD BE CONSIDERED MY PERSONAL OPINION, AND NOT MY PROFESSIONAL LEGAL OPINION. The law is very fact-specific and no one should take anything that I say as advice regarding their particular legal question or legal problem. Again, the only person qualified to give you legal advice is a licensed attorney in your state who has considered all of the facts of your specific case before commenting on the law as it relates to your question. My general comments on the law or my opinions thereon cannot possibly answer your question. Got it?

I AM NOT HOLDING MYSELF OUT TO BE AN EXPERT ON FLORIDA GUN LAW OR A SPECIALIST IN CRIMINAL TRIAL LAW. I am simply a lawyer who owns guns, who is personally and professionally interested in firearms law, and who chooses to represent people charged with crimes in the state of Florida.

First Post

This a new blog, but I'm not a new blogger. Some of you may remember me as the Rangemaster from Smoke my Gun! (www.smokemygun.com). Well, I shut that site down a while ago and started to focus on my career. Now, I'm back in the blogesphere with a new angle on the same old subject: the personal and fundamental right to keep and bear arms.

What have I been doing for the past year or so since I nixed SMG? As the name of this blog probably hints, I've been practicing law in Florida. Specifically, I've been practicing criminal law.

So, that's right, I'm a lawyer whose sole practice area involves defending people who have been charged with crimes. I can hear the guffaws right now from my fellow pro-RKBA readers. "You do what?" "You defend criminals?" "How can you sleep at night?" Blah blah blah. Well folks, here in Florida, Chapter 790 (the primary source of Florida gun law) is part of the criminal code. That's right. And, any Florida gun owner who runs afoul of the multitude of thou shalt nots in chapter 790 is liable to become a "person charged with a crime" and is likely to be in need of the services of a . . . you guessed it . . . a criminal defense lawyer. So, there's nothing inconsistent with being a gun owner who believes very strongly in the right of all people to keep and bear arms, and an attorney who represents people charged with crimes.

Contrary to popular belief, liberty's first defender is often a lawyer who is willing to stand next to you after you've been sitting in a jail for a while (and you smell like you've been sitting in a jail for a while). Trust me, when someone is charged with a crime, he is often in very bad shape and very much in need of someone who will help him navigate the bowels of the criminal justice system and who will fight for his cause when no one else wants to. So, please, keep the lawyer jokes to yourself and check your warn cliches and stereotypes at the door if you choose to read this blog. If you can't do that, then move on to one of the other gun blogs out there. I won't be offended.