Recently in Firearms Category

Each time we have one of these horrific mass shootings, many people shake their heads and ask, "What on earth could make somebody want to do something like this?"  In most cases, the perpetrator is dead and did not plan to survive the attack.  This time we have a living perpetrator, so perhaps we will learn more.

I suspect that a strong desire to be in the headlines is part of the motivation.  Too many young people place too much emphasis on being "famous" and have lost the distinction between being famous and being infamous.  There is even a television series titled, "Murder Made Me Famous."

In December 1941, President Roosevelt famously declared that the 7th was "a day that will live in infamy."  He didn't say "fame," and everyone knew the difference.  The perpetrators would go down in history, but as villains, and that was universally regarded as a bad outcome for them.

Gallup Poll on Gun Laws

Megan Brenan reports for Gallup that a poll shows that 46% of Americans are dissatisfied with our gun laws and want them more strict, 39% are satisfied with the laws as they are, and 8% are dissatisfied and want them less strict.

So a proposed law for greater restriction would have 46% in favor and 47% (39+8) opposed.  That's about as tight as it gets.  A proposal for less restriction would have 8% in favor and 85% (46+39) opposed.

A footnote on the graph notes but does not give a figure for "those who are dissatisfied but want laws to remain the same."  Huh?  Apparently the number of such confused people is small.

Yes, Carjacking Is a Crime of Violence

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Today, the Ninth Circuit decided United States v. Gutierrez, No. 16-35582:

The sole question presented by this appeal is whether the federal offense of carjacking is a "crime of violence" under 18 U.S.C. § 924(c). We hold that it is.
Odd that the question can be asked seriously.  All the circuits to consider the question have decided it the same way.  See pages 5-6 for citations.

The same panel decided in United States v. Werle, No. 16-30181 that "a Washington state conviction for felony harassment constitutes a crime of violence under the Federal Sentencing Guidelines."

Cal. Cops Speak Out on Gun Legislation

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The Police Officers Research Association of California has this press release on Gov. Brown's signing of SB 620, noted in yesterday's News Scan:

PORAC has opposed the bill from the beginning, and for two serious reasons:

• The current statutes relating to firearm enhancements already allow a judge to use discretion in sentencing. Each enhancement section has various levels of sentencing durations to be used by the judge on a case-by-case basis.
• PORAC continues to have concerns over the passage of Proposition 57 and the early release of prisoners who have not only committed serious crimes against the public, but have usually left a trail of victims behind. The firearm enhancement sections of the Penal Code oftentimes may be the only penalty keeping a convicted criminal from being eligible for early parole under Proposition 57. By allowing a judge to eliminate, or not impose, the firearm enhancement, the likelihood of dangerous criminals on the street increases.
This measure is unfair to victims and dangerous for our communities.
On many contentious social issues, including crime, there is often reason to suspect that researchers are partisans who decide what position they want first and then design a study to provide support for that result.  In the history of the "harder" sciences, there are many examples of researchers being dragged by their data to results they found distasteful, but that is not seen as often in the "softer" ones.

It is refreshing then, to see this article in the WaPo by Leah Libresco.  She studied gun control at FiveThirtyEight, and her research changed her mind.

Felons, Weapons, and Knowledge

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When a convicted felon is not allowed to possess a firearm, what knowledge must be established to prove a violation?  The California Supreme Court addressed that issue today in the context of probation violations in People v. Hall, S227193.  U.S. Supreme Court nominee Neil Gorsuch has dissented in favor of the defendant on a related issue.

In the California case, drug dealer LaQuincy Hall was given probation upon the condition, among others, that he "may not own, possess or have in [his] custody or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on [his] person."

Although he made no objection in the trial court, Hall claimed on appeal that the condition needed to be modified to prohibit only "knowing" possession.

Given the relevant case law, the firearms condition is properly construed as prohibiting defendant from knowingly owning, possessing, or having in his custody or control any handgun, rifle, shotgun, firearm, or any weapon that can be concealed on his person....  Because no change to the substance of either condition would be wrought by adding the word "knowingly," we decline defendant's invitation to modify those conditions simply to make explicit what the law already makes implicit.  A trial court, however, remains free to specify the requisite mens rea explicitly when imposing a condition of probation.

California Proposition Poll

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SurveyUSA has this poll on California's ballot propositions, among other things.

"Proposition 62, which would end the death penalty in CA and replace it with life in prison, trails by 15 points today and is headed for defeat." If that sounds familiar, it's nearly identical to what the same poll found about two weeks ago, noted in this post.

"Proposition 63, which outlaws large-capacity magazines and requires background checks on ammo purchases, leads by more than 2:1 and will pass." 

"Proposition 64, which would legalize, regulate and tax recreational marijuana, is supported 52% to 41%. Caution advised."

And Proposition 66, which would streamline the death penalty and allow us to restart executions?  They didn't poll on it.  Again.

The pollsters note:

Polling ballot measures and citizen initiatives is an inexact science. In general, having nothing to do with California specifically and having nothing to do with 2016 uniquely, opposition to a ballot measure increases as Election Day approaches. Rarely does support for a ballot measure increase over time. It is likely that opposition to Propositions 56, 62, 63 and 64 will increase once early voting begins on 10/10/16. This may alter the calculus on recreational marijuana Proposition 64, which today has the most fragile advantage of those measures tested.
Answer:  When Barack Obama is handing out clemency to drug felons.  If they were packin' heat on the street corner, well, look, boys will be boys.  

The important thing is to shimmy down the prison population.  If the federal recidivism rate is half (49.3%, exactly), and crime across America is skyrocketing, please, get over it.  We need to "rebuild our communities"  --  with drug pushers.

Heather MacDonald lays it out in her telling piece in the National Review.

President Barack Obama commuted the sentences of 214 federal prisoners yesterday, part of his ongoing crusade against a criminal-justice system he regularly declares racist and draconian. The White House trumpeted the fact that this was the largest one-day grant of clemency since 1900....

Many of the commuttees possessed stolen firearms or firearms with their serial numbers obliterated. Some were in violation of National Firearms Registration, which can mean possession of a federally prohibited weapon, such as a machine gun, silencer, or sawed-off shotgun. We don't know how many guns the offenders actually had; a commuttee during a previous batch of commutations had 40. 

Nor does the Justice Department's press release disclose the actual incidence of firearm possession by these federal convicts. Gun possession can be used to increase a federal sentence under the federal sentencing guidelines without a prosecutor's actually bringing a formal charge. A gun charge can also be plea-bargained away. Many advocates of criminal-justice reform believe in maximum gun control, yet White House press releases on the president's commutations have been silent on the widespread incidence of illegal gun possession.

Probably not.

A liberal precinct in a liberal paper (Wonkblog in the Washington Post), reports some scholarly research:

Lawful gun owners commit less than a fifth of all gun crimes, according to a novel analysis released this week by the University of Pittsburgh.

In the study, led by epidemiologist Anthony Fabio of Pittsburgh's Graduate School of Public Health, researchers partnered with the Pittsburgh Bureau of Police to trace the origins of all 893 firearms that police recovered from crime scenes in the year 2008.

They found that in approximately 8 out of 10 cases, the perpetrator was not a lawful gun owner but rather in illegal possession of a weapon that belonged to someone else.

The main problem is not the gun, any more than the main problem is the truck in Nice or the knife in Japan or the pressure cooker at the Boston Marathon.  The problem is the fellow using it.

"We flood communities with so many guns that it is easier for a teenager to buy a Glock than get his hands on a computer or even a book."
-President Obama, remarks at memorial service in Dallas, July 12, 2016

WaPo fact checker Michelle Ye Hee Lee has this article with the above headline, concluding with an award of Three Pinocchios (mostly false).

Defining "Carrying" A Firearm

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Is a loaded revolver "on his person" if it is carried inside of a backpack that is being worn by a man fleeing from the police? In California, the answer is yes.

On Monday, the California Supreme Court held in People v. Wade (S224599), that the defendant in that fact scenario was guilty of carrying a loaded firearm pursuant to Penal Code section 25850, subdivision (a). The Court got this one right. A loaded revolver tucked into a waistband, a loaded pistol inside of a briefcase, and a loaded firearm packed inside of a suitcase at the airport are all "on his person" and are all an equal threat to public safety.

In so holding,the Court said: "we believe the statute should be fairly applied consistent with the Legislature's concern with the threat to public safety from those with control over and ready access to loaded guns in public. We agree with the Court of Appeal in this case 'that defendant's immediate access to the revolver within the backpack he wore created the type of clear threat to the general public . . . that is prohibited by section 25850, subdivision (a).' "
WaPo fact checker Michelle Ye Hee Lee had this article Thursday on President Obama's various statements after mass shootings, which are not fully consistent with each other or with the facts.  The article also has a cautionary nugget about what "experts say" and what "studies show."

Mr. Obama gets the maximum Four Pinocchios (reserved for "whoppers") for his December 1 statement in Paris, "I say this every time we've got one of these mass shootings: This just doesn't happen in other countries."  Wow.

The President's other, more nuanced statements about the relative frequency of such incidents get the milder Two Pinocchio rating ("significant omissions and/or exaggerations").  To check the facts, Ms. Lee consults experts Adam Lankford and John Lott and gets very different answers.

Astute readers might notice how Lankford and Lott both compared the United States to grouped European countries, but their conclusions are vastly different. Lott says the rate is about the same, while Lankford says the rate is five times higher in the United States. How is this possible? The researchers are looking at different sets of years and different sets of countries. (Lott looked at Europe as a whole; Lankford at the European Union.) Lott uses a broader measure of mass shootings than Lankford does. Lankford looks at the number of shooters; Lott uses fatalities and shooting incidents. This is an example of how the data and definition can be adjusted to show different findings about mass shootings, even using a per capita rate.
Lots and lots of choices have to be made in setting up a study, many seemingly benign in themselves.  If a person wants to reach a particular result, it is easy as pie to run the numbers 16 different ways, pick the way that best supports your agenda, and throw the others in the trash.

This is why the viewpoint one-sidedness of American academia and the well-funded nonprofits is so very dangerous.  The truth comes out much more clearly when there are people on both sides doing these kinds of studies, but academic conservatives are an endangered species, and those who do "come out" are targeted by neo-McCarthyists determined to achieve ideological purity.

Be very, very skeptical about what "studies show" and "experts say."  

The San Bernardino Massacre

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I have held off commenting on the San Bernardino massacre until more was known.  Today's WSJ has a number of articles on the emerging picture and the policy dilemmas we faced as we decide what to do to reduce the risk of such horrors.
One of the oddities of federal gun law is that the right to bear arms is generally taken away only for felonies, but domestic violence is treated specially, and the right to own a gun can be taken away for a misdemeanor.

A recurring problem in both gun possession law and recidivist sentencing is dealing with the wide variety of ways that crimes are defined in the 50 states and handful of almost-states that make up our federal republic.  Yesterday, the U.S. Supreme Court took up the "misdemeanor crime of domestic violence" question in Voisine v. United States, No. 14-10154.  Amy Howe has this post at SCOTUSblog.

Counsel for the defendants asked the Court to take two questions:

1. Does a misdemeanor crime with the mens rea of recklessness qualify as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)?

2. Are 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution?
Mens rea means guilty mental state, an issue we discussed last term in relation to the Elonis case.  See, e.g., this post.

The high court took the statutory question, number 1, but said "fuggetaboutit" to the constitutional question, number 2.  No treat for Second Amendment fans this Halloween.

Schizophrenia on Gun Control

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In the wake of the Oregon mass shooting, President Obama proposed new restrictions on firearms that presumptively law-abiding people want to buy.  This has been his reaction before, as the Washington Post notes. At the same time, he is, by his support for the SRCA of 2014 (the Senate's sentencing reform bill), proposing to be more lenient on gun violence when undertaken by felons (typically but not always drug dealers). Specifically, the President and other SRCA backers want dramatically to scale back the penalties of 18 USC 924(c), which at present mandates harsh punishment for carrying or using a gun in the commission of a federal felony,

Question:  Why, when the President, unfortunately with good reason, views "gun violence" as one of the nation's most serious problems, does he want to take it easier on convicted criminals who carry and/or use guns while at "work"?

The 924(c) penalties are indeed harsh, and they are mandatory. This is for a reason. The mix of guns and drugs is probably the most lethal combination known to law enforcement. The shocking murder spike of the mid-1980's, coinciding with the crack wars, knocked us out of our stupor.  Partly because, over the last 25 years, we have taken gun-totting traffickers off the street for a very long time, we have  --  guess what!  --  much safer streets. There are now 10,000 fewer murders per year in this country than there were when 924(c) punishments kicked in full time.

And what does this means to our Most Avid Gun Control President?  Time to retreat to the softer sentencing of our more gun-violent past. 

Yikes.  I guess liberals were for gun control before they were against it.

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