Yeah, But…Without ‘Idiot Control’ Laws, We Wouldn’t ‘Need’ Full-Time Lawmakers
Senate Majority Whip Sen. John Cornyn’s (R-Texas) Fix NICS Act of 2017 (SB 2135) remains suspended in the purgatorial hearing limbo that is the Senate Judiciary Committee, but that doesn’t mean battle lines are being drawn for the final showdown.
It breaks down to this: Us vs. Idiots.
At least, that’s the way Sen. John Neely Kennedy (R – Louisiana) sees things. In a Jan. 10 interview with the New Orleans Times-Picayune, Louisiana’s junior senator said he opposes Cornyn’s bipartisan gun bill because you can’t legislate double-o stoopid.
“I don’t think we need more gun control; I think we need more idiot control,” he told the NOTP, noting the bill wouldn’t be necessary if federal workers “do their jobs. We shouldn’t be asking government workers to ‘pretty please with sugar on top, can you do your job? To me, the state employees and the federal employees already have an incentive to comply with the NICS. It’s called their job.”
The bill would punish federal agencies—and workers—that fail to upload relevant disqualifying records into the National Instant Criminal Background Check System (NICS) and would grant more money to states that comply.
The bill was introduced in November after Air Force veteran Devin Patrick Kelley killed 26 churchgoers in Sutherland Springs, Texas. In the wake of the mass murder, the Air Force acknowledged it failed to report Kelley’s 2012 military court convictions for domestic abuse, which would have prohibited him from legally possessing the firearms he used in the shooting.
The Fix NICS Act has 17 Democratic co-sponsors, 17 Republican co-sponsors, and an independent co-sponsor, Sen. Angus King of Maine, and is expected to pass the chamber easily when it is put to a vote.
“It has bipartisan support,” Kennedy told the NOTP before conceding, “It appears I will be the only no vote.”
Meanwhile, here is a status check of three background check-related bills stewing about in Congress:
HR 38, The Concealed Carry Reciprocity Act of 2017, passed by the House on Dec. 7 and referred to the … yes! … Senate Judiciary Committee. It has been read twice on the Senate floor.
HR 4434, The Fix NICS Act of 2017, is the House version of SB 2135. Introduced on Dec. 13 by Rep. Henry Cuellar (D-Texas) and referred to the House Subcommittee on Crime, Terrorism, Homeland Security and Investigations.
HR 4477, The Fix NICS Act of 2017, introduced by Rep. John Abney Culbertson (R-Texas), which is like SB 2135 and HR 4434 but not exactly the same. It was introduced on Dec. 5 and was placed on the Union Calendar, which schedules hearings on bills involving money issues.
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TECHNOLOGY vs. REGULATION
Defense Distributed Could Get 2018 Supreme Court Hearing
Among cases the U.S. Supreme Court may accept for its 2018 session, which begins Oct. 1 — always the first Monday of October — is Defense Distributed’s challenge to rulings that prohibit it from distributing its downloadable software for 3D printable “ghost guns.”
Justices met in a Jan. 5 conference to review the merits of the case, Defense Distributed v. Dep’t of State, U.S., No. 17-190. Should they accept it, their ruling could have far-reaching ramifications in the ever-accelerating gap between global advances in technology and governments’ catch-up capacity to regulate it, not to mention the First Amendment, Second Amendment, and federal trade policy.
In an August petition, Defense Distributed requested the Supreme Court to determine if the Fifth Circuit U.S. Court of Appeals erred by not considering the merits of its claim — that applying a pre-publication approval requirement to online computer-aided design (CAD) files allegedly violates the First Amendment.
Defense Distributed describes itself as a non-profit that develops and publishes open source gun designs, so-called “wiki weapons.” It has been embroiled in legal tangles with the federal government since the U.S. State Department demanded in 2013 that founder Cody Wilson pull plans for a plastic 3-D printed pistol, the Liberator, from Defense Distributed’s website because it violated the International Traffic in Arms Regulation (ITAR) treaty.
Wilson complied with the request after Liberator blueprints had been downloaded more than 100,000 times. He later sued the federal government, alleging First Amendment infringement. The Second Amendment Foundation eventually joined the suit.
The suit claims ITAR is “clearly an unconstitutional grab against our fundamental liberties.”
In September 2016, the 5th Circuit ruled 3-1 that the government’s “exceptionally strong interest in national defense and national security outweighs Plaintiffs-Appellants’ very strong constitutional rights … The fact that national security might be permanently harmed while Plaintiffs-Appellants’ constitutional rights might be temporarily harmed strongly supports our conclusion that the district court did not abuse its discretion in weighing the balance in favor of national defense and national security.”
Though printing guns is a craft still in its infancy, 3D printers offer a potentially easy way around proposed gun control restrictions and registrations. Technology experts, gun rights proponents and gun safety advocates say printable firearms and ammunition magazines pose a challenge for regulators.
“People all over the world are downloading this stuff all the time — way more people than actually have 3D printers,” Wilson told the Washington Post in 2016. “This is hot stuff on the Internet now.”
Outdoor Life has followed this story now for years. Read just two Defense Distributed items in Gun Shots here and here.
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Federal Judge Upholds New York’s Pistol Permit ‘Moral Character’ Clause
Chief U.S. District Judge for the Western District of New York Frank P. Geraci, Jr., on Jan. 10 dismissed a lawsuit filed by Libertarians that claimed the time and cost involved in applying for a pistol permit in New York – up to a year—is overly burdensome and, therefore, a violation of the Second Amendment.
In dismissing the case, Libertarian Party Of Erie County Et Al V. Cuomo Et Al, Geraci rejected the argument that New York’s 1913 Sullivan Act is constitutionally vague because of its reliance on determining a license applicant’s “good moral character.”
The law remains as relevant today as when it was adopted, he wrote ion his opinion, by ensuring that “only law-abiding, responsible citizens” are allowed to own guns. “Moreover,” he added, “the laws promote public safety and prevent gun violence.”
The law was named after the Tammany Hall politician who sponsored it. It requires licenses for state residents who possess firearms small enough to be concealed.
The Erie County Libertarian Party challenged the law because it allows various local governments charged with issuing permits to determine who gets them and who doesn’t. This criteria can vary from jurisdiction to jurisdiction and is a form of prior restraint on the exercise of a fundamental individual right guaranteed in the Constitution.
“There’s a right to bear arms, but it’s only a privilege in New York State,” Erie County Libertarian Party attorney James Ostrowski told Phil Fairbanks of Buffalo News on Jan. 11. “We’re not surprised by the decision and we’re obviously going to appeal.”
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IN THE COURTS
Coalition Seeks Supreme Court Review of ‘Gun Control By Zoning’
A coalition of gun-rights groups petitioned the Supreme Court on Jan. 9 to accept their challenge of an Oct. 10 Ninth Circuit Court of Appeals ruling that Alameda County, Calif., did not violate the Second Amendment by prohibiting three businessmen from opening a gun store near a residential area because, it determined, there is no protected right to sell guns.
The coalition’s attorneys argue that the county used a zoning ordinance to make it impossible for gun stores to operate inside its limits, making Teixeira v. County of Alameda a viable candidate for Supreme Court review. The coalition includes the Second Amendment Foundation (SAF) and Calguns Foundation, a California-based gun-advocacy group.
“You simply cannot allow local governments to ignore the Second Amendment because they don’t like how the Supreme Court has ruled on the amendment twice in the past 10 years,” SAF founder Alan Gottlieb told Stephen Gutowski of the Washington Examiner on Jan. 10. “You shouldn’t be able to zone the Second Amendment out of the Bill of Rights.”
In 2010, the Alameda County Board of Supervisors revoked a permit filed by John Teixeira and his business partners, Steve Nobriga and Gary Gamaz, to open a shop called Valley Guns and Ammo in an unincorporated part of the county.
The board said the proposed location near San Leandro violated a county ordinance prohibiting gun stores within 500 feet of a residential area. The proposed location was 446 feet from a house. The three challenged the ruling in federal court, claiming the board changed zoning laws to block their proposed business.
A federal judge dismissed the case in 2013, but the Ninth Circuit revived it last year when Circuit Judge Diarmuid O’Scannlain said the businessmen made a plausible argument that their Second Amendment rights had been violated.
In March, an 11-judge en banc panel heard arguments in the case. The plaintiffs’ attorney Donald Kilmer argued the Second Amendment also protects the right to sell arms.
Alameda County attorneys argued in its briefs the ordinance does not prevent the sale of guns in the county. The court concurred in an opinion issued in October.
“Teixeira has not plausibly alleged that the county’s ordinance impedes any resident of Alameda County who wishes to purchase a firearm from doing so,” Circuit Judge Marsha Berzon wrote. “Accordingly, he has failed to state a claim for relief based on infringement of the Second Amendment rights of his potential customers.”
The court noted that there is a Big 5 Sporting Goods store just 600 feet from the proposed location for the gun store and nine other gun stores in the county.
Calguns Foundation Chairman Gene Hoffman told Gutowski that the Ninth Circuit’s ruling is encouraging others to use their zoning code as a form of gun control.
“Since this case was filed, multiple local city and county governments have used unconstitutional zoning laws to stop new gun stores from opening and close down existing gun stores,” he said. “If this was a book store or an abortion clinic, the Ninth Circuit would not have hesitated in striking this zoning regulation unanimously.”
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