Pro-Open Carry Court Decision in the 9th Circuit?

The 9th Circuit (Federal court including CA, Hawaii, see map) issued a 2-1 decision upholding the right of an individual to openly carry a firearm in public for self-defense under the 2nd Amendment, finding in favor of a petitioner who was summarily denied a carry permit in Hawaii. The Washington Post has a decent article. This post is for inquiring minds who want to read more about the background and implications of the decision without having to do the searching I did to find the bits and pieces. I include direct links to court opinions at the bottom.

A word of pessimism should be immediately noted: the last time the 9th Circuit issued a pro-Right-To-Keep-and-Bear-Arms (RTKBA) decision (Peruta v San Diego), it was reheard en banc (by the full panel of judges instead of just the original three) and reversed, even though the county declined to continue defending its position. When it was further appealed to the Supreme Court, SCOTUS refused to hear the case. Justice Thomas wrote an excellent and scathing dissent over the denial, joined by newly-arrived Justice Gorsuch.

This new opinion was actually written by the same justice who wrote the 2-1 Peruta opinion, Justice O'Scannlain. That original opinion was extremely well-written, well-researched, and well-supported in law. It leaned on research by Stephen Halbrook, an attorney who was involved in Heller and McDonald, into the judicial history of the RTKBA (author: "That Every Man Be Armed" and "The Founder's Second Amendment"). I would anticipate that this recent one will be as well (once I finish reading it.) None of that made any difference to the 9th Circuit majority. Justice Callahan, the judge who had joined with O'Scannlain in the 2-1 opinion, wrote one of the dissents to the en banc opinion reversing it, arguing (correctly) that the majority opinion misstated and directly violated the Supreme Court holding in Heller. That did not matter enough to the Supreme Court majority for them to bother hearing the appeal.

I would fully expect, therefore, that this more recent case, Young v Hawaii, will get similar treatment: it will be reheard en banc, very likely reversed, and appealed to the Supreme Court. What happens at the Supreme Court this time is anyone's guess. They cannot avoid the issue forever, and ongoing changes in the court might affect the outcome by the time it gets there. The downside is that the process will almost certainly take several years before the case is actually disposed of (for better or worse).

Links To Additional Sources

• Young v Hawaii, 9th Circuit opinion (PDF)
• Peruta v San Diego, 9th Circuit opinion, 13 February 2014 (PDF)
• Peruta v San Diego, 2016 9th Circuit en banc opinion (including Callahan's dissent, PDF) - 824 F.3d 919 (9th Cir. 2016) (en banc)
• Peruta v California, Supreme Court, denial of certiorari, order and dissents (PDF)
• Stephen P. Halbrook, "That Every Man Be Armed: The Evolution of a Constitutional Right" [on Amazon.com].
• A Harvard Law Review analysis (in 130 Harv. L. Rev. 1024) explains how the disagreement between the 9th Circuit majority and dissents hinged on a narrow framing of the controversy (concealed carry) versus broad framing (right to keep and bear arms). It also describes the defects in the majority opinion by not adequately defending their reasoning for restricting the issue to concealed carry alone. This analysis is highly relevant to Young v Hawaii because this recent case deals with open carry rather than concealed. This difference may make it more difficult for the courts (9th Circuit or SCOTUS) to avoid the broader issues.

Trump, Florida, and Gun-Control: Dues and Don'ts

On the issue of gun control, due process, Florida, and Trump: even if Trump's statements regarding due process are taken very generously they are still wrong, dangerously so, and inapplicable to the Florida shooting in any case. There was no need in Florida to short-circuit due process and violate rights. There was plenty of warning and plenty of time for the law to act well within its authority and regarding the limits of the Constitution. They simply didn't.

Pre-deprivation vs. Post-Deprivation Process

Due process is ALWAYS required. That is simply what the word 'due' means: it is what is required to satisfy rights. The process which is 'due' is usually pre-deprivation process. In pre-deprivation process, an adversarial proceeding such as a hearing occurs in front of a neutral-arbiter (judge) before rights are offended by the government. An adversarial process means both sides are represented and the person(s) being deprived get to make their case, examine the evidence, etc. A criminal trial is one way to satisfy due process but not the only one and never has been. It is not even the only way to satisfy pre-deprivation process.

Post-deprivation process is usually invoked when there is an immediate danger to life or property. An eviction of a tenant, for instance, often requires a hearing first and the eviction happens only if the court finds in favor of the landlord. If the landlord's property is in danger of being damaged by the tenant before that can happen, the order can be reversed: the tenant is immediately removed, then the court argues about it. Post-deprivation process means that the adversarial part happens after the defendant has already been deprived of something.

Another example is an 72-hour psychiatric hold on an individual who is (arguably) an immediate danger to themselves or others. An emergency hearing is then held to decide whether to release the individual or if involuntary commitment or some other action actually is necessary. Not surprisingly, there are rules for how this has to happen and— if these rules are satisfied— due process is satisfied as well. Process is not short-circuited, merely follows a different path.

Attorneys among my readers may be cringing that this explanation simplifies things a bit. Although this is quite true, I am not writing for attorneys but for people (like Trump?) who have no understanding of the law. This is also why I am uncharacteristically not peppering this piece with citations: just understand that there are already provisions for emergency circumstances and there have been for centuries. Lack of such options is not really the problem (here).

Not Relevant Anyway

In the case of the Florida shooter, Cruz, this really does not matter anyway. There were opportunities and plenty of time for authorities to do things the long and slow way. It is not disputed that the would-be shooter, Cruz, interacted with law enforcement many times (the exact number, either 23 or 36, apparently depends on how you count) over a period of several years. This was not a last-minute development, not in any sense, any more than it was in the case of Virginia Tech. What is more, at least three incidents rose to potential felonies. Arguably a number of them did, but that hardly matters: Cruz, at the least, was the subject of a 9-1-1 call where he is alleged to have threatened his adoptive brother with a firearm, a potential felony. Further, he was alleged to have texted threats to his ex-girlfriend and her new boyfriend. Making specific threats of violence or death to specific individuals in a specific context and putting his name on it is a potential felony. It is indisputably reasonable cause for a criminal investigation which is in turn likely to furnish probable cause for arrest. It can be argued that imminent danger and probable cause for arrest was already present with no need for an investigation before-hand (post-deprivation process), but the slow way would likely have worked as well.

If Nikolas Cruz had been convicted of or plead guilty to, say, felony assault, particularly as an adult, this would have started a criminal record. Given a criminal record, it would have been much more likely his other activities would have been put together. The FBI, for instance, might have immediately seen that the subject of the called-in tip already had a history of potential violence. Certainly, it would have made it harder for Cruz to pass a background check to purchase firearms!

[Note, I am not excusing the FBI here for dropping the ball by not referring the tip, merely saying that local authorities might have made the FBI's error less likely.]

Who Should Bear the Blame

Random law-abiding citizens should not be punished for this incident by having their constitutional rights to due process nor their natural, common law, and constitutional rights to keep and bear arms violated. Period. Giving more power to the very authorities who dropped the ball has two results:

1. the power will be abused in the wrong situations
2. there will still be nothing to guarantee it will be used to prevent tragedy

The same authority which failed to act in this case can still refuse to act in the future, but they will have even more tools to abuse authority when they feel so inclined. There may be ways in which the existing process can be tweaked (I am cautiously in favor of GVROs myself, I have written elsewhere about potential loopholes in juvenile criminal records and background checks), but none of that really matters here. The background check did not succeed because a juvenile record was prematurely expunged, but because no record was ever created in the first place because the local authorities failed to do their jobs.

The people who should be punished (under whatever process is due) for this horrific act of violence are, in order:

1. the shooter himself
2. the local sheriff's office, including potentially the sheriff and individual deputies
3. whoever at the FBI failed to pass the phoned-in tip to the regional office as procedure required

It is possible that other legitimate targets for ire may come to light. The first one, the shooter, is ongoing. It is actually unusual for the perpetrator to be available for justice. I had to endure the long process of a trial for the shooter at my school, but many of the perpetrators suicide or are killed by police. There is a potential for closure available here in that process and that is not a small thing. The second one is best conducted by Floridians and particularly those in the affected county through whatever process is available under their state constitution. At the very least, the locals can and should respond at the ballot box, but that is not something any of us can do for them; they have to want to take action. Finally, we are told that an investigation of the missteps within the FBI is ongoing. Perhaps this will yield results and perhaps it will not. We, as citizens, need to keep on top of this process, but it is too early to expect results.

None of these things particularly involve making new laws, short-circuiting due process, or even gun-control at any level. The criminal justice system failed in what it is already authorized and charged with doing. The failure cost lives. The details of the precise magnitude of the failure and why are still forthcoming, but the fact that it occurred is not really in question.

MO HB 75 -- Should All Cops Wear Video Cameras?

In response to Mike Brown/Ferguson, Garner/New York, our local issue with the arrest and beating of Bob Estep, and so forth, people across the country have proposed requiring all cops on duty to wear video cameras. In Missouri, this issue has come to a head with the filing of HB 75. People I respect are supporting this measure and I agree with some of its aims, but I also have problems with it, some of which can perhaps be resolved by better wording and some of which perhaps can not. In this article, I am going to explain the proposal as I understand it, explore the underlying issues, and lay out my objections. Hopefully this will lead in the direction of a solution which works.

What Is the Goal?

Let me start by making it clear that I do not believe that all of the examples of police abuse currently in the news are examples of abuse. I am not convinced that Mike Brown is such an example, for instance, but do believe that the throttling of Garner in New York probably is. Sometimes the evidence for or against abuse is simply not there, and this is what advocates of HB 75 hope to change by recording objective evidence from every encounter to help make that decision. In theory, that evidence cuts both ways by:

1. Providing evidence that a victim was abused when law enforcement goes too far
2. Providing evidence to clear the officer when the suspect escalated the encounter.

Michael Steinberg, Legal Director of the ACLU of Michigan, states this "win-win" outcome as the position of the ACLU["Violence In Ferguson Spurs Interest In Police Body Cams", CBSDetroit, 5 Oct 2014].

The Missouri law justifying a peace officer's use of force is found in chapter 563:

1. A law enforcement officer need not retreat or desist from efforts to effect the arrest, or from efforts to prevent the escape from custody, of a person he reasonably believes to have committed an offense because of resistance or threatened resistance of the arrestee. In addition to the use of physical force authorized under other sections of this chapter, he is, subject to the provisions of subsections 2 and 3, justified in the use of such physical force as he reasonably believes is immediately necessary to effect the arrest or to prevent the escape from custody.

2. The use of any physical force in making an arrest is not justified under this section unless the arrest is lawful or the law enforcement officer reasonably believes the arrest is lawful.[emphasis mine]

[RsMO §563.046]

The rest of the section goes on to discuss use of deadly force in making an arrest. I discuss this in detail elsewhere in the context of the Supreme Court Garner decision and the fact that Missouri law may be unconstitutional as written[Eric Vought, "Tennessee v. Garner and Missouri's Use of Force Statute" guest blog on gundebate.com].

Note the use of the term "reasonably believes" three times in this section. In criminal law, "reasonably believes" sets up both a subjective and an objective standard. The peace officer must believe that the suspect is guilty of an offense and that the arrest is justified. Belief is subjective. The peace officer may truly believe something and be completely mistaken: it still counts as "belief".

The law goes further and requires that the belief be "reasonable", which means that there must be rational cause for the belief. The mythical "reasonable person", confronted with similar circumstances, must be capable of holding such a belief. This is an objective standard which is influenced by previous case law defining what is considered "reasonable" and what is not[Joel Samaha, "Criminal Law, 5th Edition", West Publishing Company, Minneapolis, MN 1996. pp 220-221]. The textbook case dealing with "reasonable belief" is People v. Goetz [68 N.Y. 2d 96, 506 N.Y.S.2d 18, 497 N.E. 2d 41 (1986)]. The opinion in that case goes into detail on the difference between "belief" and "reasonable belief" in finding that a man in the NY subway did not have a "reasonable belief" that the teens he shot were armed and a threat to his life.

So, in the end, then, the question of "reasonable belief" is what we hope to use video evidence to answer, and, specifically, the objective "reasonable" component. There is also an inevitable trap, however: video evidence shows us what actually happened and may go to proving whether an attempt to arrest (and therefore to use force to effect it) was actually correct. The actual question in justifying use of force is not whether the arrest was justified, however, but whether the peace officer "reasonably believed" the arrest was justified. The temptation of video evidence is to get distracted by hindsight rationalization and lose sight of the what the peace officer knew or should have known at the time he (or she) was forced to make the decision. Those two issues are not always the same.

The Limits of Video Exemplified In Rodney King Trial

The Rodney King incident is a good example of misuse of video when context is lost. The short clip the media played over and over showed a number of police beating an apparently helpless man. The media did not show the crucial 13 seconds of video or the non-taped events leading to that moment where the suspect beat and hospitalized several officers and brushed off the effects of the taser, because, the officers believed, King was under the influence of PCP.

Although the later evidence questioned the idea that he was drugged at the time it is clear that the taser was completely ineffective for some reason, the officers did not know at the time whether or not he was drugged, and lawyers for both sides stipulated that King was intoxicated. The extent to which the police used force almost certainly went too far, but the question of whether the police "reasonably believed" that escalation of force was justified was lost (for many people) in the hindsight, knee-jerk reaction to the video clip, which lead to the outraged public reaction at their unexpected acquittal.["The Limits of Videotape: An Echo of Rodney King"]

This is not to say that video is not useful, but rather that it comes with its own dangers which we must be mindful of. In some cases, video from dash-cams or bystanders makes the critical difference in obtaining a prosecution or disciplinary action for use of force, such as the beating of 76-year-old Pete Vasquez where dash-cam footage lead to the firing of the officer. We have to recognize that video footage is not magic, it can be misused, and must be balanced with other evidence.

Some People Are More Equal Than Others

The problem is that other evidence often comes down to two factors:

1. The word of the the suspect
2. The word of the arresting officer

Both of these parties have strong motives to lie or color the truth. Both of the parties may have their perceptions colored by stress. Both of them may make mistakes. All things being equal, the testimony of both should be weighed the same.

All things are not equal, however. The incidents are generally investigated by the police themselves and the local prosecutor has a close relationship with law enforcement. The courts and jurors also tend to believe law enforcement over the word of the suspect, especially if the suspect is actually a criminal or can be painted by law enforcement as anything other than a perfect citizen. The problem here is that criminals and riff-raff are no less entitled to the protection of the law regarding use of force than anyone else, and even the most honorable citizen has done something which can call their word into question. Past behavior of police officers in the arrest, however, is often barred by the judge as prejudicial unless the officers themselves call witnesses or submit evidence to their character.

In an ideal world or even one which is moderately fair, a peace officer should be given some benefit of the doubt in whether their actions are justified. Law enforcement does deal with criminals on a regular basis, they are required to put themselves at legal and physical risk to carry out their public duty, they are (theoretically) given adequate training in the limits of the law, and they are often the only ones in the place to judge whether they believed an adequate threat existed. This is the exact same sense in which Castle Doctrine creates a presumption that a home owner is justified in using force to defend themselves and places obstacles in the way of armchair quarterbacks second-guessing their fear of an intruder who awakens them in the dead-of-night.

But again, the world is not ideal and often is not even "moderately fair". Especially when police encounter citizens going about their lawful business and instigate an encounter the citizen has no ability to avoid, we rightly question the deference accorded the law. Pete Vasquez had done nothing wrong. He had dealer plates on his vehicle which temporarily exempted him from having a valid inspection sticker. He did no more than explain this (relatively courteously) to the officer who was in fact mistaken about the law. Vasquez had no ability to avoid the encounter initiated by a police officer. Other similar encounters suggest that, in the absence of video evidence (and the word of a bystander, incidentally), Vasquez not only would not have received justice but he might have found himself charged with being the aggressor and prosecuted. An intruder can choose not to break into a home, but a citizen cannot necessarily avoid an encounter with law enforcement.

Even with body cams, the suspect does not always win a claim of abuse, such as the controversial case in Florida where Victoria King was dragged out of her car at a traffic stop and convicted of resisting arrest despite allegations of excessive force and brutality. The officer was wearing a body cam but the video does not clearly resolve the different claims of how the window came to be broken or whether King attempted to roll up the window on the officer's arm. A video does give the citizen an opportunity to present evidence which might not otherwise exist.

What Does HB75 Try To Accomplish

Let's take the bill summary [PDF] a piece at a time (the bill text is also online [PDF]). We are referring to the Introduced version here, which will likely change as the bill makes its way through committee.

This bill imposes an additional tax of one cent on every retail sale of any handgun or ammunition in Missouri. All revenues derived from this tax must be used solely to provide funds for video and audio equipment for law enforcement officers.

This is the mechanism proposed for funding the body cameras. It should be noted that the bill text is specific, limiting the use of the funds to the implementation of body cameras not video and audio equipment generally. However, the precedent this would make is alarming: gun-control advocates have often proposed taxes on ammunition and firearm sales to fund violence prevention. Those taxes are often shot down (by the electorate or the courts) as impermissible restrictions on the Right To Keep and Bear Arms.

Why should gun owners bear the burden of this enactment? Why not a tax on basketballs or cars or donuts? To put a specific perspective on this, why should unpaid law enforcement volunteers— who already pay for their own equipment (including firearms and ammunition) in order to serve the public— pay for the body cameras as well? If it is important enough to require peace officers to wear video cameras why is it not important enough to fund from general revenue and share the cost equally among all citizens? If this is passed, what precedent does it set for other taxes on firearms and ammunition for other public uses with arguably just as much merit? I would oppose HB 75 on these grounds alone.

The bill requires all uniformed law enforcement officers in Missouri to wear a video camera affixed to his or her uniform while on duty. The video camera must record the interaction between a law enforcement officer and a member of the public. The recording must include both audio and video.

Uniformed law enforcement officers arguably would exclude uniformed volunteers without arrest powers, but, e.g., the Lawrence County Sheriff's Auxiliary includes uniformed volunteers, some of whom are commissioned, who do not possess law enforcement powers and the language is potentially ambiguous. It would be preferable to specify "licensed peace officers" or require arrest powers explicitly. Volunteers may be deputized during an emergency, thus temporarily gaining arrest powers under RsMO 57.119, and the wording may require further tweaking to exclude this case. It is not practical to equip temporary deputies called up in the middle of a dire crisis with cameras. These are wording problems, however, and not fatal to the bill if corrected.

All law enforcement agencies must preserve any recordings made by a video camera for a minimum of 30 days and must develop any policies and procedures necessary to execute these provisions.

Clearly if we are to bother making the recordings, we need to ensure that they are preserved, so this portion is common sense. It is worth mentioning, however, that the videos should not be publicly accessible nor necessarily amenable to Sunshine request (Missouri's equivalent of FOIA) because they likely contain confidential data. This is not to protect the LEO but the rights of victims and suspects. Some of this has been discussed in Columbia, MO where officers now wear body cams (which can be switched on and off at need).

I reject out of hand the idea that law enforcement officers have any privacy right in their public actions. The public they interact with, however, clearly does have a privacy right. It is also important to note that some actions of law enforcement, while being technically public, may endanger law enforcement efforts or the public if revealed. This encompasses the entire sphere of data typically classified as For Official Use Only or Law Enforcement Sensitive and exempted from Sunshine Act requests. Often this protection should only be temporary, such as data revealing details of an ongoing investigation or security measures for a public event.

At a minimum, body cam videos should be accorded the same protection as 911 recordings under RsMO 610.150 ("... shall be inaccessible to the general public... Any closed records pursuant to this section shall be available upon request by law enforcement agencies or the division of workers' compensation or pursuant to a valid court order authorizing disclosure upon motion and good cause shown.") It can be argued that this is made possible by "...shall develop any policies and procedures necessary..." in the bill text, but I, for one, would be more comfortable were it spelled out. Again, this is not a fatal problem with the bill.

These provisions cannot apply to detectives or other law enforcement officers while they are working in an undercover capacity or to any law enforcement officer in any situation where the wearing of the video camera would endanger the safety of the officer or the public.

This provision is also common sense. Detectives interviewing witnesses or dealing with confidential informants obviously should not be [required to be] recorded and nor should undercover activities. In many agencies, detectives are not "uniformed" and undercover officers forgo uniforms for obvious reasons. There is a minor but significant ambiguity here where the lack of punctuation can imply that detectives are only exempted while undercover, which is clearly not the intention but potential confusion can probably be eliminated with slight rewording.

The Devil In the Details

So far we have a major issue with the funding source of the proposal and some wording problems, all potentially fixable. As we dig a little deeper, however, there is a nest of difficulty which is much tougher to resolve.

A large agency often has a clear distinction between patrol officers and detectives. As noted above, detectives are often not uniformed in such agencies, so they might be exempted under the wording of this proposal in any case. It seems likely that large agencies can shuffle responsibilities to make it easier to separate those who must wear cameras and those who should not.

It makes sense to use officers without arrest powers in some situations and I advocate the selective use of non-peace officers in law enforcement to separate certain responsibilities and thereby reduce instances of abuse. Lawrence County's intelligence section is entirely non-peace officer volunteers. This has created important opportunities because some witnesses and informants have come forward who would not be comfortable first approaching an officer with arrest powers. The non-peace officer has no authority to escalate the situation under 563.046. The non-peace officer volunteer becomes a viable bridge between "us" and "them". Such opportunities might also come into play with this proposal.

St. Joseph Missouri's experience with body cameras came with mixed results and issues were raised about the cameras discouraging the interaction of potential witnesses with uniformed officers.

What about small agencies and, in particular, rural Sheriff's Offices?

In many such offices, all deputies wear uniforms. Some of them primarily patrol and some of them primarily work as detectives, but all or most deputies will do both at least some of the time. The county Sheriff himself is a "uniformed law enforcement officer" and may, by turns, respond to a violent incident (should be recorded) or speak with a confidential informant (must not be recorded). A sheriff's office with (e.g.) 20 or fewer full-time deputies likely cannot shuffle responsibilities to make this proposal work.

Unlike the other minor textual problems of HB75, I see no way to tweak the wording to rescue it. Dash-cams, now becoming ubiquitous, do not suffer the same issues. An officer can step away from his vehicle to take a conversation off-the-record. If we give officers the discretion to turn off the cameras according to the nature of their task-of-the-moment, then the entire point of the bill would be undermined: how would we judge the claim that an officer was right to turn off the recorder in a situation where we have no recording and differing accounts? What happens when the recorder is 'accidentally' switched off during an altercation? Alternately, sheriff's offices might be exempted, but will a small-town police department with 6 full-time officers be any better able to comply than a rural Sheriff? If sufficient exemptions are made to correct the problem, will the bill be able to accomplish its objective of deterring police misconduct?

Alternative Solutions?

I am open to the idea that there may be ways to rescue the bill which satisfy my concerns and perhaps some will be suggested by readers.

The State Highway Patrol is clearly an agency with the size and structure. The Highway Patrol already has dash cameras (inward and outward facing) and audio on the troopers themselves. It might be a worthwhile experiment to start with body cams on SHP patrol officers. As a statewide agency, it is clearly appropriate to subject them to statewide policy.

Columbia's experience (along with that of Lowell, Michigan) suggests that body-cams have value even when officers can switch them on and off at will. The Columbia cameras retain video for 30 seconds before they are switched on. If policy requires the use of cameras in police-public encounters, then an officer switching off a camera in a questionable situation will need to justify that decision. If an officer's actions are above-board, they have an incentive to record in order to justify their actions to later review.

If cameras are to be always on (and perhaps even if they are not), the decision of whether to use them should be left to the jurisdiction and its voters. With large structured agencies and access to funding, it is likely that they are appropriate, leaving small localities to balance their needs, funding, and priorities. Columbia enacted their policy without the need for a statewide requirement. I am generally opposed to a one-size-fits-all statewide policy on body cameras and am therefore opposed to the HB 75 proposal as it stands.

Disclaimer and Disclosure

This author is the Commander of the Lawrence County Sheriff's Auxiliary, a unit of non-peace officer volunteers in service to law enforcement. I therefore have a relationship with law enforcement but am neither compensated nor employed by them.

These opinions are my own. Nothing in this article represents any official policy or opinion of the Lawrence County Sheriff's Auxiliary, the Lawrence County Sheriff's Office, any other agency or public/private organization.

Armed To the Terror of the People: Where Do We Draw Lines?

How does he eat?

In my previous blog on gun control, I laid out why 'sensible gun control' won't happen, and made clear why there is currently no common ground even between reasonable gun control advocates and reasonable gun-rights supporters. Turn-about is fair play: in this blog, I talk about the traditional limits of open carry and get into some of the nuts and bolts of the controversy between concealed-carry and open-carry which controversy also hurts any chances of reasonable agreement on the Right To Keep and Bear Arms. The reader may quickly realize that I am writing this in the context of the present actions by a Texas Open-Carry advocacy group in carrying rifles into restaurants. The demonstrators' behavior  resulted in some of these restaurants changing their policy against open-carry and has created a bit of a backlash even from gun-rights supporters.

In Which We Explore Common Law Offenses Against the Peace

Before anyone 'jumps the gun' I am not opposed to open-carry, against open-carry in restaurants (with permission of the owner), or against open-carry advocacy in general, but there are recognized (within a good bit of room for interpretation) traditional limits to open-carry and I am going to probe at where those limits may be. By 'traditional limits' I mean that stated in the Statute of Northampton of 1328 (2 Edw. 3, c. 3 (1328)) which expounds a common law crime going back to antiquity:

Item, it is enacted, that no man great nor small, of what condition soever he be, except the king's servants in his presence, and his ministers in executing of the king's precepts, or of their office, and such as be in their company assisting them, and also [upon a cry made for arms to keep the peace, and the same in such places where such acts happen,] be so hardy to come before the King's justices, or other of the King's ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King's pleasure. And that the King's justices in their presence, sheriffs, and other ministers in their bailiwicks, lords of franchises, and their bailiffs in the same, and mayors and bailiffs of cities and boroughs, within the same cities and boroughs, and borough-holders, constables, and wardens of the peace within their wards, shall have power to execute this act. And that the justices assigned, at their coming down into the country, shall have power to enquire how such officers and lords have exercised their offices in this case, and to punish them whom they find that have not done that which pertained to their office.

Or, as later expounded by the Elizabethan lawyer, Lambarde:

Yet may an affray be without worde or blow given as if a man shall sh[o]w himself furnished with armour or weapon, which is not usually worne and borne, it will strike a feare to others that be not armed as he is: and therefore both the Statute of Northampton . . . made against the wearing of Armour and weapon and the Writte thereupon grounded, doe speake of it, by the words, effrey del pays, an, in terrorem populi.

Obviously we do not have a king in today's United States, our king's officers do not enjoy the exclusive authority they did in 1328, and even under English common law, the Statute of Northampton was interpreted by the courts so as to blunt it's edge, but this historical statute supported a common premise which is still upheld today: armed gangs roaming the countryside terrorizing people are bad. The words "in affray of peace" and the Latin "in terrorem populi" (to the fear of the people) is still referred to in modern law. Less obvious, perhaps, is the connection to Missouri's RsMO 570.030.2(1) providing a blanket exemption to Chapter 570's weapons offenses to:

"...any person summoned by such officers to assist in making arrests or preserving the peace while actually engaged in assisting such officer..."

which is, incidentally, one of the legal underpinnings for armed law enforcement auxiliaries (local 'select militia' or volunteer constabularies) in Missouri. There is no problem with people arraying themselves for battle when battle is actually afoot or when the 'hue and cry' goes up of a crime actually being committed, but there is a point where armed groups legitimately cause fear and are a detriment to public order.

In most jurisdictions, armed to the fear of the people is a common law or statutory offense. In North Carolina, for instance, the common-law crime contains the following elements (Note to the 7th Edition of "North Carolina Crimes"):

A person guilty of this offense

(1)  arms himself or herself with an unusual and dangerous weapon

(2)  for the purpose of terrifying others and

(3)  goes about on public highways

(4)  in a manner to cause terror to the people.

Is Carrying a Firearm Itself an Affray of Peace?

Note the limitation in State vs. Robert S. Huntley that "a man may carry a gun for any lawful purpose of business or amusement, but he cannot go about with that or any other dangerous weapon, to terrify and alarm, and in such manner as naturally will terrify and alarm a peaceful people," (25 N.C. (3 Ired.) 418, 40 Am. Dec. 416 (1843)). The offense is not the mere carrying of arms but doing so in alarming fashion for the purpose of terrifying others. This limitation against the Going Armed To the Terror of the People (GATTOP) offense is typical and also goes back to British common law as noted in William Hawkins' "Treatise of the Pleas of the Crown", 8th Edition, Vol. I, 1824, London, pp 489 (first published in 1716):

That no wearing of arms is within the meaning of the statute unless it be accompanied by such circumstances as are apt to terrify the people; from whence it seems clearly to follow, that persons of quality are of no danger of offending against this statute by wearing common weapons, or of having their usual number of attendants with them for ornament or defense, in such places, and upon such occasions in which it is the common fashion to make use of them, without causing the least suspicion of an intention to commit any act of violence or disturbance of the peace. And from the same ground it follows, that a person armed with privy coats of mail, to the intent to defend themselves against their adversaries, are not within the meaning of this statute because they do nothing in terrorem populi.

The Hawkins quote, commenting on Rex v. Knight (1686) highlights the common debate about whether GATTOP must include unusual weapons or merely unusual circumstances. For example, one might argue that a double-barrel shotgun is an extremely common weapon but it is not common to carry one to a play and may be apt to terrify. Huntly rejected the argument that the commonality of shotguns was itself a defense but still held that merely carrying was not offensive. Rex v. Gardner (1739) also held that for farmers, firearms were as much a necessity as cabbage-nets for defending stock or eliminating vermin and not offensive, despite statutes (hunting laws, for instance), directly prohibiting commoners from having firearms.

Part of the matter is the tie to intent. As above, an intent to defend oneself and not to terrify is a distinguishing factor, but also an astonishingly subjective one, particularly in a culture deeply divided over the role of firearms. What is apt to terrify an average resident of New York City versus of rural Missouri are very different and so therefore is what the mythical 'reasonable person' would expect to terrify another. For that matter, GATTOP offenses were misused during the Jim Crow era to discriminate against armed Negroes: while a Klansman may be terrified by a black person with a gun, it hardly constitutes a crime to so terrify. A Klansman with a gun may be a legitimate source of terror, but this is tied to the likely intent to intimidate or commit mayhem rather than the firearm itself. Finally note that Hawkins defends the wearing of arms for ornamentation, not merely defense.

In Missouri (where I live), "to the terror of the people" was previously in the statutory definition of a riot but was removed, leaving it necessary to actually commit or intend to commit unlawful acts. Specifically excluded are training for hunting, self-defense, or civil defense for legitimate law enforcement-related activities (including organized militia). Compare the wording of modern RsMO 574 (and 574.050.1 in particular) versus historical Chapter 47 (quoted in "A treatise on the law of evidence, Volume 3", by Simon Greenleaf, 1899, pp 213).

[EMV 2019-08-9: RsMO 574.115, effective 1 Jan 2017, defines the crime of "Making a terrorist threat, 1st degree" which now covers some of the same ground and was the basis for charging an individual with a rifle who caused a panic at a Springfield, MO Walmart earlier today. This law would seem to raise exactly the same issues (pro and con) discussed here. (Thank you, Cory Mignard.)]

[EMV 2019-08-10: The DA actually chose to charge the individual at Walmart under RsMO 574.120, "Making a terrorist threat, 2nd degree" which only requires proving reckless, not criminal intent.]

It is probably worth highlighting the 'persons of quality' distinction in Hawkins which is (or should be) of no relevance today. We no more have gentry and grants of arms today than we do kings, but we do unfortunately still have a prejudice against poor people with firearms while we rarely respond to the rich or public figures with armed retainers in tow. For that matter, as some have rightly pointed out, this "Moms Demand Action For Gun Sense In America" often travels with armed security as well, so both sides in the present debate are on equal footing as regards the use and presence of firearms. The question comes down to one of intent and degree, which are not always easy to determine.

Ironically, GATTOP is an offense which lends itself to misuse in order to intimidate and terrify people who carry arms, one of the issues open-carry advocates raise and with some truth. Through intent or ignorance, police in some jurisdictions routinely misuse GATTOP or close variants to arrest or merely detain and intimidate citizens lawfully carrying and who are otherwise guilty of no offensive conduct. This fact does not mean, however, that the offense itself does not exist or that there is not a reasonable line somewhere which possessors of firearms sometimes cross.

Which Brings Us Back To Current Events

So, given that history, what of a group of open-carry advocates carrying semi-automatic rifles into a restaurant as part of a protest? What of the specific issue that they did so to a meeting of this "Mom's Demand Action" group? What is their precise intent? Is their conduct an offense in the legal sense? [I am not referring to the open-carry group by name because the Texas Open Carry group disavowed their conduct, so they are a subset, not representative of a larger organization.]

First, let us dispose of the private property issue and the rights of the restaurant owners. When the open-carry group first entered the restaurants, the owners had not prohibited them and the restaurant policies either allowed or were explicitly silent on the issue. The law universally supports the right of an owner or their representative to 'trespass out' patrons causing a disturbance. The law almost universally supports the right of the restaurant or other business to forbid firearms in the first place. Nevada law makes 'no carry' policies of no legal effect, though the owner can still trespass out individuals, and some states, notably Missouri, forbid business owners from banning lawful firearms from vehicles parked on the premises. For the most part, I morally support the business owner's right to post a carry policy, regardless of local law, even when I disagree with the policy: my option is to take my business elsewhere, which I often do.

So, that part of the issue is or should be a non-issue. My question is whether the conduct generally constitutes a public offense and is (or should be) generally unlawful in public. I am also going to dispose of the issue of whether what the open-carry group did is of generally poor taste: I believe that it is, at least in the specific fashion displayed, but people do have a right to act in poor taste, sometimes suffering social consequences (being banned from a restaurant in this case). I disagree with their conduct, but that is a different question from whether it was legally or morally wrong. I am unable to find a clear statement of Texas case law on GATTOP as I did for North Carolina (where I once lived and researched previously), but I am really much more interested in the general question than the minutia of local interpretation at the moment. [Update 20161215: Texas Penal Code 42.01 defines the offense of Disorderly Conduct. Among the offenses, "A person commits an offense if he intentionally or knowingly: ..." (8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;" ]

Do you take gold?

If we consider the demonstrators' lawful business to be eating in a restaurant, where they simply happen to be carrying rifles, then it is hard to justify a GATTOP accusation. Even if this seems far-fetched to some, consider the fact that my wife and I met on a field of battle with a medieval reenactment group and we often would go with a group to a restaurant after an event or need to purchase items during an event with some number of us still armed and armored. The looks someone gets when checking out at Wal-Mart dressed as a 10th century viking with a bottle of Gatorade and a roll of duct-tape are priceless, but hardly rise to the level of riotous acts. As officers in our Sheriff's Auxiliary, we also end up at restaurants as a group when going off duty after a deployment or exercise, with the lot of us open-carrying (likely to be in uniform but if not on active-duty, not under the protection of RsMO 570.030). So, unusual business, perhaps, but not riotously so in and of itself. To some extent, being in public in either of these cases is advertising for our activities, but not a primary purpose, and advertising is not an intent to incite terror, pretty much by definition.

But it seems to be hard to claim that this specific group 'just happened' to organize an event specifically to display firearms at the restaurant for the purpose of protest and, from their behavior toward the gun-control-advocates, that part of their intent was not directly intimidation. Even viewed very permissively and from the point-of-view of a strong RTKBA-supporter, it would be very difficult to defend the conduct. At the very least, it would seem imminently reasonable for authorities to question the behavior, perhaps detain and charge, letting a jury sort it out. Certainly the behavior is an entirely different league from the odd individual with a handgun in an open-carry holster being harassed by law enforcement in Wal-Mart (national corporate policy allows open-carry where otherwise legal) or a street corner in locations where open-carry is protected by law[I discuss the issue of open carry and race elsewhere, in a gundebate.com guest blog].

The response of the business owners also supports this conclusion. The chains in question have scrupulously avoided the debate over firearms over the years. Firearm owners will avoid businesses which are not firearm-friendly and word gets around quickly, concealed-carry patrons often taking their business elsewhere when open-carry patrons are offended (concealed carriers are often standing there, unmarked, while open-carriers are being harassed). This creates a strong incentive for the businesses to take no position and to allow conduct permissible in their jurisdictions. The owners of the various chains involved have made direct statements that the only reason they have considered policy changes is because the incidents have left them with no choice, turning their establishments into circuses and political battlegrounds incompatible with their basic function to serve customers. Videos of some of the incidents show no screaming children, no patrons running in fear, and no one cowering under the tables, so it may be argued that 'terror' is too strong a term for the result, but again, it is difficult to argue that intimidation did not occur and was not intended by the demonstrations.

The unfortunate result of the changes in policy is that these businesses will lose customers. Whatever the reason for the change, when I see a "No Carry" sign, I will go somewhere else. But the businesses are in a position where that will happen either way and it is clearly the result of the demonstrator's conduct and that is a problem. The conduct is also to the detriment of RTKBA advocates across the board as it allows gun-control advocates to label every gun-owner as obnoxious, armed--- dangerous--- loonies.

Broader Policy Questions--- National Irrationality Muddies Waters

Once you get away from the conduct in these incidents, however, and start to approach questions about general policy, the mud very quickly rises. One of the reasons for this is that open-carry demonstrators do have a valid point hiding in the murk: public policy and public advocacy vis a vis open and concealed carry often makes no sense at all. Many jurisdictions (e.g. Florida, California, Illinois, New York) place limits on open-carry on the theory that open-carry indicates a purpose to intimidate and engage in unlawful behavior. Other jurisdictions place limits on concealed-carry on the theory that it indicates criminal behavior and an intent to ambush unsuspecting citizens. Often enough, these are the same jurisdictions. Gun-control advocacy groups (e.g. Bloomberg's various fronts) often try to argue simultaneously that they are not against lawful carry, that open-carry is bad and should be unlawful, and that concealed-carry is bad and should be unlawful. Then they argue that handguns are criminally dangerous and should be outlawed but open-carry of long-arms is directly equated with terrorism. This conundrum lead to Heller, McDonald, and the 9th Circuit's Peruta decision: yes, firearms may be regulated to an extent, but you cannot leave the average citizen with no reasonable path to comply with the law and still exercise their rights.

Missouri's Constitution at least makes the limits clear (Article I, Section 23):

That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.[EMV 2014-11-5: SJR 36, adopted on 5 August 2014, amended this section.]

If you want to carry without a license, it has to be visible, but the state has the authority to enact licensing for concealed-carry. Fine. Nevertheless, municipalities still try to outlaw open-carry in a Constitutional-mess-waiting-to-happen.

Many gun owners with concealed-carry permits first hit the open-carry contradiction when traveling to a state where their CCW is not honored. I go into this issue in some detail in a 3-part Open Carry Travelogue from our trip to Nevada to speak at an emergency-manager's conference. It is simply not rational to have a law requiring someone to have a firearm clearly visible and then treat complying with the law as an affront to the peace. The vagaries of open-carry law and the inconsistency of enforcement causes many open-carriers to adopt very visible holsters or otherwise hang a flashing neon sign off of the fact that they are carrying as this is the only conduct which the courts consistently interpret as "not concealed". By doing so, however, they immediately attract unwelcome attention by both anti-gun citizens and law enforcement.

As long as this conundrum remains, open-carry advocates will work to continue to carve out a more-defined space for them to comply with the law and to convince businesses to accept their conduct. The need for that advocacy directly leads to the extremes of the movement doing ill-considered things and also develops a fair portion of the anger directed at the Bloomberg fronts working to circumscribe the practice still further. This does not make the conduct of the Texas protesters acceptable, but it does explain a bit better why it occurs. The extremes of the open-carry advocacy carrying guns in a way calculated to intimidate is wrong and a problem, but no more a problem than the jurisdictions where police with guns overstep the law to carry out their own advocacy: St. Louis, Missouri or Marshfield, Missouri cops harassing open-carry citizens, for instance, or Illinois, New York, New Jersey cops flagrantly violating federal Peaceable Journey protections allowing transport of a properly-secured firearm from point A to point B where it is legal in both places.

So what is the solution? Compliance with the law should never be a complicated affair. The problem is not that we do not have enough gun-laws but that the ones we have are often senseless. Senseless laws do not encourage respect for the law in gun owners, the law-abiding are punished, and the real criminals can exploit technicalities. In the US where the RTKBA is an enumerated right not just in the US as a whole but in most state constitutions, we need to come to some general consensus on what the rules are and make them clear. National concealed-carry reciprocity would solve some of the issue by removing the need for concealed-carriers to resort to open-carry on travel. We recognize drivers' licenses across state lines in accordance with Article IV protections, why not carry permits? Better consistency in recognizing minor state officials and emergency responders from other states who may carry on travel would also help. But the best solution is to resolve our national schizophrenia over the concealed/open divide. Doing that would deflate the entire issue. More than that, clear law would make it easier to decide what behavior actually crosses the line and deal with it in a rational and just manner.

Why 'Sensible' Gun Control Will Not Happen

Common Ground?

It is a commonly repeated meme that 'most gun owners' support 'sensible gun control', usually interpreted as including such things as universal background checks. While this statement is probably true on its face for some definition of 'sensible', it ends up being irrelevant. Practically, politically, nothing resembling 'sensible' gun policy is or will be possible any time soon. This post discusses some of the reasons why that is the case in the context of recent events in Missouri and why even 'reasonable' gun owners and 'reasonable' gun-control advocates currently have no common ground. If we understand that problem, it may be possible to change it, but it won't be easy.

First off, I am a conservative gun owner, I work with law enforcement (in my capacity as the Commander of the Lawrence County Sheriff's Auxiliary, a unit of armed, non-peace officer volunteers in Southwest Missouri), and my experience with issues like school shootings is rather direct and personal. At least in the abstract, I am for 'reasonable' gun control as some people define it. I believe quite strongly both that

1. the Right To Keep and Bear Arms (RTKBA) is an individual capital-R Right as well as a communal Duty and
2. society has a responsibility to keep arms out of the hands of prohibited persons (violent felons, the adjudicated insane, those under certain temporary orders)

On the surface, this would seem to create some--- perhaps narrow--- common ground with moderate gun-control advocates. I have even discussed at times what some potential proposals might look like with folks of that persuasion, but the unfortunate fact is that they simply will not happen, not now, not soon, and will never happen without significant sociopolitical changes. The specter of governmental misuse of 'reasonable' gun control is not a theoretical slippery slope problem but an inevitable and currently insoluble issue borne out by direct, practical experience. Enough politically active gun owners are aware of this issue to render even apparently 'reasonable' policies stillborn.

Background Checks versus Registration

The issue can be demonstrated by examining another very common argument advanced by gun-control advocates, at least some of whom I believe are honest and well meaning:

Proposals for universal background checks are designed to make it impossible to create a registry and therefore there is no possibility of governmental misuse of the check system.

Specifically, this statement is applied to attempts to close the "gun-show loophole" and apply some kind of instant checks to all private firearm transactions. I am not even going to approach the discussion here of the "gun-show loophole" or the various fallacies involved. I am going to stipulate that some portion of firearm transactions happen outside of FFLs, are not subject to background checks, and that society might benefit from preventing some portion of those firearms from going to prohibited persons. I am going to charitably assume, for the sake of argument, that the main proponents of such a system have honest motives and that there is some technical implementation possible which would not drastically inconvenience common, completely private transfers of firearms including auctions, swap meets, in-family transfers, gifts, and trades between neighbors.

Even given those assumptions, there is a substantial logical inconsistency in the idea of universal checks without universal registration. We'll deal with that problem and then move on to the real show-stopper. The reason that instant background checks work with FFLs is simple: in order to be an FFL, you have to register with the federal government. Given that FFLs are registered and required to keep substantial paperwork on their transactions, it is possible for the federal government, via the BATFE, to audit an FFL to ensure compliance with background checks. Off-book sales, especially when matched to financial data from other sources (e.g. tax returns, manufacturer records), trigger scrutiny, potential forfeit of license, and possibly prosecution.

So how does that work with a private transaction? Under a universal check policy, if a firearm transfers from private person A to private person B to private person C, how do you verify that a check occurred at each stage? You can't. Since none of those people are required to keep paperwork or records for audit purposes and because the check system is not supposed to create a de facto registry or transaction history, there is in fact no way to figure out after-the-fact when checks should have occurred or even which checks did or did not occur. This is, in fact, the exact conclusion that the Justice Department came to:

The nine-page document says the success of universal background checks would depend in part on “requiring gun registration,” and says gun buybacks would not be effective “unless massive and coupled with a ban.”

Read more: http://www.washingtontimes.com/news/2013/feb/23/nra-uses-justice-memo-accuse-obama-admin-wanting-c/#ixzz32JsfYJTF
Follow us: @washtimes on Twitter

This problem could be partially ameliorated by constructing an auditable transaction history from each check made. If there are records of an FFL sale to person A and a private transfer check to person B and a firearm is found in the hands of person C (and not reported stolen), then it can be deduced that a required check was skipped between person B and person C. An auditable transaction history is for all intents and purposes a registry, at least of firearms transferred after the universal checks are put in place.

A transaction history still would not solve the problem of an unreported middle-man (a background check occurs on transfer to person C but not from person A to B), and it would do nothing about existing arms in private hands prior to the start of universal checks. Someone found with a weapon and no history of transfers can simply claim that they possessed the weapon before the start of checks. The only possible solution to the latter problem would be a complete registration of who owns each firearm at the start of the system so that you can actually determine whether and when a private transfer has occurred. Any firearm found without a current and correct registration would then indicate a violation either way: failure to record a transfer or failure to register in the first place.

Low-Hanging Fruit Technically Reachable

Let's say for the moment that this issue was surmountable: either you accept that gaping holes will exist in the checks and use it only to catch low-hanging fruit where a violation is obvious or you accept a pragmatic limitation of enforcing checks only for firearms with recorded FFL transfers after the effective date of the universal check system. You could also get quite a bit closer to the goal with a cleverly designed permit-to-purchase system whereby a potential buyer carries a card documenting a relatively recent background check. The seller would only, in theory, have to be able to verify that the card is valid and that it is not in a list of revoked permits (to catch people prohibited after their most recent check, such as someone subject to a protective order or who has been involuntarily committed). Such a system would limit the exposure of private data to only the administrators of the system and to buyers/sellers who share a transaction.

In theory, a permit-to-purchase system could allow conscientious sellers to avoid unknowingly selling a firearm to a prohibited person. People can effectively do this today in Missouri by asking someone for a valid concealed-carry permit, but they would have to restrict the pool of potential buyers to only CCW holders. If the buyer-seller were then required to retain some documentation of the transaction, such as an invoice or bill-of-sale, then law enforcement could reconstruct the transaction history for a particular firearm by walking through the chain of transactions one at a time, but would not be able to mount practical fishing expeditions. Black market transactions would still occur, but some sales which pretty much everyone would agree to be unlawful might be stopped and that is, in fact, a goal that I--- radical gun rights supporter that I am--- can agree with in the abstract.

So, let's say that you could solve the practical problems, that you could craft a bill with sufficient safeguards and with some sharp teeth to discourage government from misusing the data. Let's further assume that you could shepherd that bill all the way through the political process without it being substituted in committee or rewritten in reconciliation, crippled by malicious or plain stupid amendments, or subverted to other purposes. I don't actually believe even this much is possible, but let us assume for the moment that it is.

It still won't work.

Missouri CCW Debacle

Missouri has a shall-issue concealed carry permit (CCW) system. Until recently, possession of a CCW permit was indicated by an endorsement on the drivers' license administered through the state Department of Revenue (DOR). In 2013, the DOR was caught requiring documents for CCW application and renewal that it had no authority to require, and was found to be scanning and storing those documents contrary to state law. Because people were concerned that the scanned data would make permit-holders vulnerable to wholesale identity-theft (the reason state law forbade the DOR from requiring, scanning, or storing certain documents in the first place), various investigations were begun into the policy changes. Along the way it was discovered that permit-holder data had already been disclosed in ways which clearly violated the law. Roughly 163,000 CCW holders had their data distributed on multiple occasions.

It should be noted that this entire issue developed in the context of the newspaper in Connecticut which had published concealed-carry permit holders personal information on a website. When Missourians were concerned about events in Connecticut, they were solidly reassured that such an incident would be impossible in Missouri, because the law contained safeguards to protect the confidentiality of permit-holders' data. I, myself, made that assurance publicly at several points based on my understanding of the law's clear wording which made violation a criminal offense.

After the governor's office first denied that the incident had occurred at all, to be contradicted by someone in the state Highway Patrol who had been involved in the disclosure, and them denied the significance of the incident, there were eventually two resignations, one on the Highway Patrol and one in the Department of Revenue. No disciplinary proceedings were initiated. No criminal prosecutions occurred. No publicly announced or documented criminal investigation happened at all. In fact, the DOR continued its unlawful actions after these disclosures came to light and after the governor ordered them to stop until the state legislature completely removed the system from their authority. A new system is being implemented and is now mostly functional with the county sheriffs printing and issuing CCWs. As the county sheriff's are already responsible for performing the background checks and application processing, the new system results in no additional exposure of private data. Information on the exact status of the CCW data disclosed and the scans of identity documents which were sent willy-nilly to a Georgia contractor is still rather murky.

The difficulty involved in getting the Governor's Office to take any action and the fact that a memo came to light whereby Janet Reno thanked the Governor for his help in implementing aspects of Real ID in Missouri (which aspects were specifically forbidden under Missouri Law) lead to state representative Rick Brattin introducing HR 923 in the 2014 state regular legislative session to impeach Governor Nixon (this was one of three impeachment resolutions introduced this session on three separate issues, one of which, Mike Moon's HR 476, I consider to represent an even more serious issue, that of not calling elections for unrepresented districts in the state, effectively barring 278,000 Missourians from representation during the session).

In my persona as Commander of the Sheriff's Auxiliary I presented testimony on behalf of the Sheriff's Office in the Committee Hearing for this resolution. At first, the legislature simply tried to bury it, but political pressure and public outcry forced the Speaker to refer it to the House Judiciary Committee (normally such measures would be handled by the General Laws Committee which was more favorable to the resolutions)... who again tried to bury it. Finally, pressure forced them to schedule a hearing, which was rescheduled twice. On the day it was supposed to be held, I traveled 3 hours, arriving the night before and footing a hotel bill (remember, we're volunteers) for a 1 hour hearing which started 37 minutes late and therefore did not get through the reading of the second resolution, let alone testimony. The hearing was then continued to the following week. Witnesses, including myself, had to travel again but the Committee did finally work its way through the resolutions and solicit testimony. No one spoke against any of the three resolutions. Some seven written testimonies were submitted against the resolutions as compared to approx. 270 in favor (Ron Calzone probably has better numbers, don't quote me on that).

The Committee, its hand now forced, had to consider the resolutions. A whip count (a request to determine how a measure would fare if it were called to a vote) indicated that the majority of the members were in favor of forwarding some or all of the impeachment resolutions to the full House. If passed by the House, the trial would then, under the Constitution, proceed under "seven eminent jurists" appointed by the Senate (Article VII, Section 2).

And When the Dust Has Settled...

So, the Committee members wake up one morning and read an interview where Stanley Cox, the Chairmen of the House Judicial Committee, says that the Committee as a whole determined that the accusations represented Unconstitutional behavior by the Governor, but did not rise to the level of impeachment and that no vote was necessary on the resolutions. Not only had the committee members not been notified of their own decision, nor had the sponsors of the resolutions (as is customary in committee proceedings). In the end, what with one thing and another, the Committee Chairman spun down the clock on the legislative session to the point where even if the resolutions could be forced to the floor, there was no longer any opportunity to act on them (the Missouri legislature is Constitutionally restricted to only part of the year--- a very good thing in most instances). Many people dragged their heels to delay the resolutions, but effectively a single legislator, Stanley Cox, pulled the trigger and kept every other legislator from voting on them.

For his trouble, incidentally, Representative Moon (my local district) has a suddenly appearing and well-financed primary challenger who happens to be married to a recent appointee of the Governor. All of this happened in a Republican-dominated legislature under a Democratic Governor and a Republican committee head. It isn't partisan politics, just run-of-the-mill corruption. Stanley Cox is term-limited, so his House seat cannot be threatened (his upcoming judicial election, on the other hand...).

'Safeguards' Really Aren't Unless Someone Is Willing To Enforce Them

The upshot of all this is an example of exactly the kind of chicanery that gun rights advocates fear in 'reasonable' legislation. Until very recently, I would have said that the Missouri CCW process represented exactly such reasonable regulation and that it incorporated sufficient safeguards. I like shall-issue CCWs; I like making sure that people licensed to carry have at least a minimum of exposure to self-defense law and that they don't screw up enough on the range to be kicked off (the only way anyone fails the range practical). Now I know for a direct and experiential fact that any such safeguards are irrelevant because they will never be acted on. If there is sufficiently blatant abuse, the regulation might be changed after-the-fact, but the violators will not be punished and those hurt will not be made whole.

Why would I expect that any attempt at universal registration... I mean background checks... would fare any differently? What safeguards would prevent data from being amassed beyond the mandate of the regulation, from that data being willfully misused, or from having that data simply inadequately protected? Should I expect the courts to leap to my defense? The Governor? The Legislature?

Target's 2013 exposure of 110 million customers' data did not happen because the thieves hacked Target's network directly, but because the attackers found a weak point in one of Target's contractors who probably should not have been given access to the main network in the first place ("A 'Kill Chain' Analysis of the 2013 Target Data Breach", Committee on Commerce, Science, and Transportation, 26 March 2014). Missouri passed a law to prevent the kind of data centralization and contractor access required under Real ID to prevent precisely this kind of occurrence with CCW/Driver's License data. There were legal safeguards in place. The safeguards were violated, no one was punished, and, in fact, we don't actually know that the practice has been stopped outside of the CCW process which was taken completely from DOR authority.

And So We End Up With Nothing

Color me unimpressed with "reasonable" regulation.

Until and unless the sociopolitical environment changes so that legislation 'with teeth' actually draws blood, I will not support firearm transaction check or permit-to-purchase proposals even if, on the surface, they appear reasonable and rational: I'm simply not that stupid. If advocates of 'reasonable' regulation had made even the slightest public effort to pin the ears back of the people responsible for the 2013 scandal, my attitude might be different. If media had not simply decried the sponsors of the impeachment resolutions as making a 'political stunt', my attitude might be different. I might be on the side of 'common sense' proposals. That opportunity has not only been lost, but I now side with the people working to roll back some of the "common sense" restrictions we already have.

[None of the preceding represents the official opinion of... well anything. Blame me. Or Canada. Or whatever.]