Austin Gun Rights Examiner Howard Nemerov once again shows why he is one of the best journalists writing on the gun issue. His latest column debunks an Internet rumor that the BATFE forced a Texas gun show to allow sales only by federally licensed firearms dealers.
Dean McAdams says:
I thought the BATFE was going to change their name?
[DK: They usually go by "ATF." I prefer "BATFE," because it conveys more information (that they are a Bureau and that their jurisdiction includes explosives).]
January 20, 2010, 1:07 pmOren says:
Thanks. It’s good to see strong supporters of the RKBA speak rationally about the shrill (and IMO very counterproductive to the cause) alarmism like that debunked here.
As far as the actual dispute goes, I thought it was a given among libertarian types that no lessor ought to be forced to host a gun show under any circumstances and hence, a fortiori, lesser restrictions are fine. I see neither smoke nor fire.
January 20, 2010, 1:20 pmTTC says:
Not much of a debunking.
The police and ATF lean on the lessor, and the lessor caves, but somehow the police and ATF have nothing to do with it?
From the article itself, it describes the purpose of the nuisance abatement meeting is to communicate to the involved parties what happens next if the nuisance isn’t abated. Somehow, the reporter left out what the next steps were. I can’t imagine they’d be pleasant for the lessor.
This is akin to saying that the House healthcare reform doesn’t force you to buy health insurance. It just gives you a choice between insurance, and fines and prison time.
January 20, 2010, 1:40 pmRT says:
This is not a debunking of anything. Adding a middleman to the equation does nothing to alleviate the fact that the process started with the APD and BATFE.
January 20, 2010, 1:51 pmHouston Lawyer says:
I agree with RT.
A large number of the attendees at a gun show are there to sell. These people are not licensed and are not required to be. They are in no position to determine whether their buyers are convicts or illegal aliens.
Is the ATF or APD stopping people leaving the gun shows and asking for ID?
January 20, 2010, 1:59 pmOren says:
The middleman here being a private property owner with the undisputed right to cancel the gunshow entirely. That makes a big difference. If RKBA proponents want to ride roughshod over the rights of lessors it’s going to be a much harder battle.
No, and I don’t see why the town would go easy on a property holder that’s causing a nuisance. Certainly wholesale violation of Federal and State law qualifies (absent any mitigating factors) as a nuisance.
18USC44S922 disagrees — they have a duty not to sell to any person which they have reasonable cause to believe is a felon/alien:
Seems clear enough to me.
I don’t see anyone making that claim …
January 20, 2010, 2:33 pmFiftycal says:
The jackbooted thugs, led by a former Californian that is now cheif of police, threatened to SEIZE property due to “multiple arrests” for illegal sales of guns. The evidence? 12 arrests in 12 months. During which 12 shows were held and maybe 250,000 people went thru the gun show. This was nothing but a lynching. Shows had been held there for at least 10 years. You can poo-poo this now, but ATF is behind it, they know they can’t get their wish list of ending gun shows thru Congress and this is how they are going to get Obammao’s wishes enforced.
January 20, 2010, 2:39 pmOren says:
The distinction is that the power to ban the gun show entirely already existed (in the hands of the lessor) whereas the House bill creates that power than did not exist already. Before the healthcare bill no one could make you buy healthcare.
Again, the property holder has the undisputed right to do as he pleases with the property so long as it doesn’t cause a nuisance (including not leasing to TGS in the first place). The House of Representatives, on the other hand, is bound to certain enumerated powers and various explicit restrictions on the exercise of those powers.
January 20, 2010, 2:39 pmLarryA says:
There’s the old story about the politician detained on Sixth Street for soliciting a prostitute and illegally carrying a handgun. He complained, “You can get arrested in Texas for that?”
The cops answered, “You weren’t arrested in Texas. You were arrested in Austin.”
January 20, 2010, 2:41 pmOren says:
All kinds of people threaten all kinds of things. The question is whether such seizure would ultimately be judged lawful.
Yeah, how dare the government chose to enact policy by voluntary negotiation with citizens instead of the coercive power of legislation and prosecution!
There are times I’m rather embarrassed that I have to share the proRKBA position with these nuts. It’s sad that one has to qualify the ideological basis of such an obvious proposition and probably a good reason that a common sense proRKBA position does not have an overwhelming supermajority (as opposed to the current majority).
January 20, 2010, 2:45 pmFub says:
So, suppose you carry cash instead of credit cards. Suppose further that some cop says “Either you stay off my beat, or I seize your cash because I suspect it’s drug money.”
Forfeiture laws permit cops to seize cash for that reason. You know your cash isn’t drug money. You know you can prove it to any court. You also know that it will take you years and thousands of dollars in legal fees to get it back.
So, you decide to stay off his beat. Did the cop “enact policy by voluntary negotiation”? I don’t think so.
January 20, 2010, 3:11 pmKen Arromdee says:
Are you seriously claiming that the government was not threatening to do anything toa lessor who says no? That would have to be the case for it to be truly voluntary.
January 20, 2010, 3:26 pmOren says:
That turns on whether he has reasonable cause to suspect that it’s drug money. If he does, then his exercise of power is lawful, if not then it isn’t. IOW, don’t complain about the cop’s request, complain about the power used to enforce that request.
In the instant case, the question turns to whether the nuisance abatement measures that were threatened are lawful and proper as applied to the lessor. If they are then I don’t see that he has cause to complain just as much as a drug dealer cannot complain about a cop lawfully exercising his power to seize drug money.
I’m claiming that they have not threatened to do anything unlawful. As far as I understand, it is never illegal to make a threat to do something that is rightly within your legal powers to do.
Just as in the above example, if it is within their legal power to shut the place down for nuisance it is therefore within their legal power to threaten to shut the place down for nuisance if the nuisance is not abated. Taking the analysis down one step, if the lessor has the legal power to cancel the lease entirely, it is within their power to threaten to cancel the lease unless they lessee agrees to the conditions.
Edit: On reflection, it seems that you might be arguing that the original nuisance abatement proceeding is not legitimate because the activity does not fall under the statutory definition of nuisance. Alternatively, you could argue that, as applied, it violates some enumerated right to the enjoyment of property or other liberty interest of the property holder. I don’t know enough about the law of property and nuisance to make this claim, although as I recall numerous bars around here have been cited for nuisance violations because their clientele were violating drug laws.
If you can convince me that the nuisance abatement proceeding was not lawful to begin with, then I agree with your position. That would be like a cop threatening to seize money without reasonable suspicion that it is drug money. Conversely, if the NAP is lawful then the analogy is to a cop with reasonable suspicion. The lessor to the TGS (as a property owner) has to follow the generally-applicable law of nuisance just like any non-gun-related group.
January 20, 2010, 3:41 pmBobDoyle says:
Encarta Dictionary definition of “voluntary” — of free will: arising, acting, or resulting from somebody’s own choice or decision rather than because of external pressure or force
Clearly, Oren, ATF was exerting “pressure” on HEB and thus HEB’s decision was NOT voluntary. But you know that, don’t you.
January 20, 2010, 3:45 pmAnonymous Austin Gunshow attendee says:
I think you need to look at the city of Austin’s prior behavior regarding gun shows to get the whole picture (the gun show had to be moved from a city venue years ago.)
If the city is so concerned about illegals getting firearms at gun shows then maybe they should re-think the sanctuary status.
January 20, 2010, 3:47 pmOwen H. says:
If you’re going to claim that there were such threats, shouldn’t you actually show that they were made and what they were, instead of simply declaring that they must have made threats?
If a bar becomes a problem because of ongoing illegal drug sales, it’ll be shut down under nuisance laws even if the owners had nothing to do with such activities.
January 20, 2010, 3:49 pmAndy krause says:
Did anyone try try to stop any other shows for nuisance abatement? If not, why just the gun show? Was any type of show held after this without the abatement? Was the abatement in effect for any of the last 16 years of the show? For a debunking the facts presented here are pretty sparse.
January 20, 2010, 3:53 pmorca says:
Gun shows are covered by the Second Amendment somehow?
Who knew?
January 20, 2010, 3:55 pmOren says:
In legal circles, “voluntary” generally means in the absence of unlawful pressure or force.
It appears that no one here wants to argue that the pressure the ATF or the APD put on the lessor was unlawful (probably because it wasn’t, although as I said, I don’t know enough about nuisance to make that determination) so they want to argue that there is some special exception for gun shows that magically transforms an otherwise-lawful nuisance enforcement action into an illegal one. I’d love to know the mechanism.
[ It occurs to me that maybe some folks think that the action is not illegal just poor policy. On that claim I take no position. ]
I was giving him the benefit of the doubt in assuming that the threats were made. The operative point is whether the action (putatively) threatened was lawful or unlawful.
If I have a billboard on my front lawn and an officer knocks on my door and threatens to have it condemned and torn down, one logically asks three questions:
(1) Does the law, in fact, prohibit the billboard ?
(2) Does the law fall within the power of the legislature and comport with my constitutional rights?
(3) Does the statute authorize (and the constitution permit) the threatened remedial action?
The questions that don’t seem relevant is whether the officer/town/State has a historic animosity towards billboards. It may very well be (as AAGA contends) that the town just does not like billboards and has made numerous efforts in the past to remove them but, again, the doesn’t magically transform a lawful exercise of statutory power into an unlawful one.
January 20, 2010, 4:03 pmOren says:
This seems like a valid line of attack. If the nuisance abatement proceedings were selectively used only on gun shows then that might be so arbitrary as to be unlawful.
A quick search on google shows that NAPs were initiated against a few dozen bars/music establishments (for noise/alcohol/drug issues) and many more threatened.
January 20, 2010, 4:12 pmKen Arromdee says:
Using lawful threats just means they’re shutting it down lawfully, not that they’re not the ones shutting it down at all.
Besides, by your reasoning the police could go to a store (as long as it had an actual nuisance) and say “we’ll arrest you for this nuisance unless you refuse to sell alcohol to that guy my daughter’s dating.” It’s legal to not sell to a particular person, and the police could legally arrest the store owner for the nuisance, so there’s nothing wrong, right?
January 20, 2010, 4:18 pmTTC says:
“In legal circles, “voluntary” generally means in the absence of unlawful pressure or force.”
Arguing is so much easier when you can just make up definitions.
I’d like to see Oren parse involuntary commitment vis a vis legal firearm ownership using his personal definition of voluntary/involuntary/forced.
January 20, 2010, 4:51 pmAlan says:
I don’t see any debunking either.
The City of Austin is antagonistic to gun shows and doesn’t want them in Austin. This is a matter of historical fact. The “illegal alien” excuse is just that, an excuse.
The APD and BATF leaned on the property owner the day before the show. They are clearly attempting to make the promotor suffer economically and create an environment where no one else is willing to operate a gun show.
January 20, 2010, 5:28 pmAlan says:
I don’t see any debunking either.
The City of Austin is antagonistic to gun shows and doesn’t want them in Austin. This is a matter of historical fact. The “illegal alien” excuse is just that, an excuse.
The APD and BATF leaned on the property owner the day before the show. They are clearly attempting to make the promotor suffer economically and create an environment where no one else is willing to operate a gun show.
January 20, 2010, 5:28 pmAnonymous Austin Gunshow attendee says:
I think this is accurate. Maybe it is time for the state legislature to slap down the city to prevent any nuisance laws being used against gunshows.
January 20, 2010, 5:39 pmPlastic says:
Depending on jurisdiction, this would indeed be an illegal use of police power. There’s a large difference between threatening to enforce the punishment for breaking a law if someone doesn’t stop breaking the law and demanding personal services for not enforcing the law.
Of course, whether this situation was actually breaking any nuisance laws and whether the threatened method of enforcement was legal has not been very well established so far.
January 20, 2010, 6:04 pmFederale says:
I noticed that ICE was involved. Curious in that ICE refuses to do workplace enforcement operations in Austin, which is a center of illegal alien employment, but will work with the sanctuary city Austin PD to arrest illegals. I guess some illegals are better than other illegals.
January 20, 2010, 6:32 pmPintler says:
There is a middle ground between impartial rule enforcement and personal gain. If the mayor is a prude, is it OK for him to have the liquor inspectors, building department, and cops rigidly enforce every law against a strip club or nasty bookstore, while completely ignoring the same violations at the Christian bookstore or Irish pub next door?
I’m not objecting to the concept of nuisance laws in general (it looks like they are finally going to pull the license of a nearby bar so notorious the police bring in deputies from other areas at closing time), but I think you want to be careful about the mayor/whomever using them to push a private agenda.
Seattle had a long history of corruption using such tactics (see the book ‘On the Take’). If I’m a small businessman, I’m not sure I’m better off being shut down because the mayor doesn’t like my line of business than because I didn’t send enough cash this month. Either way I’m out of business (and in fact, at least for the out and out corruption, I have the option of paying him off).
January 20, 2010, 6:55 pmLarryA says:
It depends on the nature of the nuisance. Selectively hitting gun shows for litter violations would be arbitrary if other events also produced litter. Criminals purchasing firearms seems like it would be more specific to gun shows, so not using the issue on a quilting show would be reasonable.
The reason it might be arbitrary is that I’d guess criminals and illegals wouldn’t show up at a place where there are as many cops as a typical gun show. The ATF agent had only one example. There are also studies showing that criminals purchase few firearms at gun shows. Also, if there is a problem, it looks like a good venue for a sting operation, targeting those breaking the law instead of those acting within it.
January 20, 2010, 7:27 pmOren says:
(1) Usually arrest is not a lawful remedy for nuisance.
(2) This in not a lawful use of a nuisance abatement statute because the actual nuisance (whatever it is, you didn’t specify) will not be abated by refusing to sell alcohol to this individual. It fails to be even rationally related to the nuisance.
(3) As a more general matter, it’s always going to be true that the police have considerable power over those that are (by your assumption) violating the law by virtue of their discretion to look the other way. This hardly seems unique to nuisance laws except perhaps as a subclass of laws to which the public will not be outraged at nonenforcement.
I cannot see any reasonable solution to to this problem — if you violate the law then you are subject to the penalty prescribed in the law. We can prosecute LEOs that take bribes to look the other way but if the concession is not something of material value (and especially if it is rationally related to abating the original violation) then we have to leave it to the voters if they disapprove of the arrangement.
That was the sense of the world that I was using. If you prefer, I give you leave to erase my use of the word “voluntary” and replace with whatever other word conveys the meaning that I had intended.
Accepted as plausible. So what? Many towns are antagonistic to large musical events, shall they be forced to accept them against their will?
As I said above, perhaps this is bad policy but the more I read about Austin, the more I see this as legitimate expression of the voter’s will.
Again, the same can be said for bars in quiet towns and music festivals.
I see nothing special about a gun-show (vis-a-vis a music festival, for instance) that compels the State to treat them with kid gloves.
That’s the most logical thing I’ve read yet. The State surely has the power to curtail the power of its subdivisions.
These things would make it bad policy or bad policing, not arbitrary. Where the legislature has multiple different ways to solve a problem, one generally defers to their choice so long as it is a rational means to a legitimate end.
January 20, 2010, 8:02 pmOren says:
Whoops, double post.
January 20, 2010, 8:34 pmTTC says:
On a related note, what would a “reasonable cause to believe” that a person was a felon or illegal immigrant entail?
I can hear the cries of racism and bigotry already.
January 20, 2010, 8:46 pmBrett Bellmore says:
What bunk. Why care whether it would ultimately be judged lawful, when the legal process to reach that ultimate conclusion would bankrupt you as surely as the seizure? The power to initiate proceedings is the power to destroy, even when everyone involved knows the target will ultimately prevail. It will always be, until people start being compensated for failed legal assaults, as a matter of routine. (Not just a remarkably rare theoretical possiblity.)
Everybody seems to understand that except lawyers. Who seem to imagine the average person actually aspires to spend months in court, feeding their life savings into the legal system.
January 20, 2010, 9:05 pmA. Cooper says:
I think a lot of commenters here didn’t fully read the linked article. According to it, the original contract between HEB and the gun show included the FFL language.
So whatever pressure APD or ATF or ICE can be said to have put on HEB, the outcome was merely that they started asking the gun show to stick to the letter of the contract. That doesn’t seem particularly problematic to me.
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January 20, 2010, 10:10 pmTTC says:
“The HEB representative asked if anything could be done to stop such illegal activity. Both ATF and APD told him that when prospective buyers purchase through a gun dealer with a Federal Firearms License (FFL), the seller performs a background check before completing the sale. ATF told him that a “large majority of the time” this stops a prohibited purchase.
HEB then decided to add a condition to the rental agreement, which Texas Gun Shows agreed to, limiting gun sales to FFLs.”
The original article disagrees…
January 20, 2010, 10:55 pmA. Cooper says:
It also says:
So the ATF and the APD have different versions of the story, I guess. One wonders what the original contract language actually was. One wonders if TGS would be willing to disclose it.
January 20, 2010, 11:00 pmGaryC says:
IANAL, but that seems to me to be inconsistent with the laws against blackmail. The blackmailer may be threatening to do something totally legal, and in fact, ethical, such as publish a true story that a judge is having an affair with a defendant’s wife. (I’m assuming that the blackmailer has no legal duty to report that information.)
The blackmail victim, in this case the judge, may be asked to do something both legally and morally acceptable, such as attend and speak at a charity fundraiser. He might not even be required to make a contribution himself, on the assumption that his mere attendance would be of value in legitimizing the event and drawing other attendees.
What would distinguish this set of facts from blackmail? Nobody is threatening to do any unlawful, at least not yet. My impression is that blackmailers often escalate their demands over time, starting out with fairly minor ones.
January 20, 2010, 11:21 pmDan Hamilton says:
So Oren, HEB tells the APD and ATF to pound sand. We cleared out those people that ran the bad gun shows. TGS has never had those problems. Your threat is unlawful. This is the day before the show. TGS has to much money invested and we have a contract.
APD shuts down the show. Shuts down the property. 2 years later the courts determine that HEB is correct. The threat was unlawful. HEB is only out 4 or 5 million dollars in lawyers fees and lost revenue. BUT THEY WERE RIGHT!!.
Oren, it doesn’t matter a&&*()*%&#$(&( bit weither it was lawful or not!! Once the APD and ATF made the threat HEB had to cave.
They can get away with it because it is a gun show. If the try it with a music festival the people will scream bloody murder.
Just like with the cops arresting cash, cars or anything else, you have to prove that your cash (whatever) isn’t drug money. Lawyers, time, and much more money MIGHT MIGHT getyour money back. The cops take your $20,000 and it takes 2 years and $50,000 to get it back. Right! Almost nobody will do that. Does that mean that all that money is drug money?? Oren would think so. If it was they would spend whatever it takes to get their property back, wouldn’t they Oren!!
Oren you aren’t that dumb. You are making a FINE LEGAL destinction. That MEANS NOTHING IN REAL LIFE!
The APD and ATF had the power to cost HEB millions. It didn’t matter weither it was legal or not. Do what we say or be destroyed. And Oren says that HEB should fight and if they don’t then they are doing it willingly. Yea, Right!
January 20, 2010, 11:54 pmOren says:
Lack of personal interest.
The intent to gain something of value on the part of the blackmailer is an essential part of the offense (at least in my jurisdiction, YMMV obviously I can’t look up all 50 State laws).
Indeed. I assume that you haven’t beat your wife, at least not yet.
Because the next time it happens there is clear precedent and the official is now violating a “well-established right”. Liability under 18USC1983 follows.
I suppose you think Heller was a fool for wasting all that time and money arguing for his rights in the Courts or is more convenient to disparage Justice when you don’t like the result?
In order to be exactly even handed, you need now to accuse the legislative branch of some sort of conspiracy and we’ll have all 3 branches of government lined up for the scorn machine.
Notably absent here is any idea how one might have a functioning government in which the executive can bring a case that’s not a slam dunk without fearing liability if it fails, a court system that would function instantly and cheaply and maybe a pony.
January 20, 2010, 11:59 pmDan Hamilton says:
How about if the Government is found to be in the wrong, the Gov pays the legal fees. Simple.
BTW: Oren you KNOW that Heller didn’t pay the legal fees. So get real.
January 21, 2010, 12:10 amGaryC says:
How direct does this personal interest have to be? Possibilities include:
a) The blackmailer’s wife is a paid employee of the charity who will be fired unless she delivers a keynote speaker
b) The charity is actually a fraud, and the blackmailer is soliciting contributions from others that will be stolen
c) The blackmailer is demonstrating to another defendant that he “owns the judge” and is soliciting a bribe
In the latter two cases there are obviously other crimes that have been committed, but do all three constitute blackmail? More precisely, would a reasonable district attorney believe there is a prosecutable case of blackmail in all three cases?
January 21, 2010, 12:38 amKen Arromdee says:
Then I guess it’s blackmail. Perhaps some individual policemen didn’t have a goal of getting rid of gun shows in the city, but someone up the chain of command seems to have, and shutting down the show would be valuable to that person.
Next time? There is no next time if you get bankrupted by the first time. The fact that you set a precedent which lets someone else not be bullied by police sometime in the future doesn’t help you, when setting that precedent drove you out of business.
January 21, 2010, 12:47 amKen Arromdee says:
You aren’t even being consistent. What you originally said was “Yeah, how dare the government chose to enact policy by voluntary negotiation with citizens instead of the coercive power of legislation and prosecution!”
If by “voluntary” you meant “without unlawful pressure” instead of “without pressure”, then you would be implying that legislation and prosecution are unlawful things.
January 21, 2010, 12:54 amSteve (CT) says:
Sebastian over at Snowflakes in Hell makes some suggestions regarding further investigation on the process of this investigation.
January 21, 2010, 5:49 amDavid Schwartz says:
Oren is consistent if by “voluntary” he means without the threat of unlawful use of force or the use of any force, lawful or not. Although this sounds like a very peculiar definition, it’s actually pretty close to the common sense notion of “voluntary”.
January 21, 2010, 6:48 amBrett Bellmore says:
“Because the next time it happens there is clear precedent and the official is now violating a “well-established right”. Liability under 18USC1983 follows.”
And you’re still bankrupt, which is why you knuckled under to the threat. The point is, the threat to initiate legal actions works as a threat even when the charges are baseless, because legal actions cost you dearly even if you prevail. Which is why people of ordinary means find such threats terrifying, even if they’re innocent.
Ditto what Dan said. I doubt the legal system would utterly collapse if the government had to make people whole after legal actions if it failed to prevail. Anymore than the requirement that it compensate owners for takings makes the country ungovernable. It would, however, take away the government’s power to threaten to bankrupt innocent people if they don’t submit to demands officials have no authority to make.
January 21, 2010, 6:52 amBrett Bellmore says:
Except that Oren’s bit about unlawful use of force implies that if a cop arrests you and drags you off in cuffs, you’re going with him voluntarily. Which is just Orwellian.
January 21, 2010, 6:57 amJoel says:
What exactly does this story present as a valid auspices to subvert a Constitutionally held right? Is there some properly enacted law which strips one of the right to privately sell firearms in cases where illegal immigrants have been sold weapons nearby? The syllogism presented here, i.e. illegals buy guns, that is illegal, and thus no one can sell guns without Big Brother approval, is a false and dangerous one. Considering there is exactly one arrest per month reeks to me of set up, as the municipal leaders in Austin have unabashedly stated several times that they are dead set upon closing the gun show “loophole.” Looks as if the BATF found a willing locality and took full advantage. However, I am glad the Feds have found a forum to tell their side of the story.
January 21, 2010, 9:32 amPubliusFL says:
I don’t know about common sense, but it is the same understanding of “voluntary” that underlies the IRS’s claims that the tax system is voluntary.
January 21, 2010, 10:15 amRT says:
Oh, come on now. You know very well that it was not a case of “voluntary negotiation”. More like “You’ll meet with us or else, and you’ll do what we say, or else, and you’ll smile and say nice things to the press, or else.”
January 21, 2010, 11:01 amKen Arromdee says:
Even with this contrived definition, he couldn’t contrast it with legislation, since legislation is a threat to use lawful force, and would also be “voluntary” by his definition.
January 21, 2010, 11:07 amOren says:
Meaning, as I said, the government would be restrained from taking any case with any chance of failure. Even a slam-dunk DNA-evidence case like the OJ murders could lead to the taxpayers of Los Angeles paying millions to Johnny Cochran. No thanks.
The exact boundaries of the personal interest required for blackmail is beyond my knowledge. The existence of a gray area does not, however, imply that there are not clear-cut cases on either side. In the instant case, it’s quite clear that the APD/ATF (unless we find that one of them is also a licensed FFL on the side trying to drive out the competition) does not have one.
Only in the extraordinary cases in which the particulars of the threat have never been adjudicated before. In most ordinary cases, the contours of the law are already well settled obviating the need for bankruptcy-inducing legal action (and allowing for direct liability for losses on the part of violating government agency).
The essential part that you are ignoring is that the initial litigant on the matter generates enormous benefits for the rest of us. Heller fought DC for however many years but millions of citizens in DC & Chicago will benefit.
Usually it’s the ones that go kicking and screaming (and tasing) that are considered to be against their will. Remember, there were two parts.
At any rate, if you like, I’ll withdraw the entire comment about voluntary policy making and concede it. It’s not essential to my argument and complaining about it seems to be distracting from the argument of whether or not the lessor has to follow the same law of nuisance that every other property owner does (or, alternatively, whether that law is unconstitutional for some reason).
Ultimately, the story ‘State uses the power of the law to pressure people into complying with their preferred policy’ sounds to me precisely like ‘dog bites man’. Unless any part of the exercise is actually unlawful, the only possible answer would have to be to change the law. When the law (such as the Austin nuisance abatement law) is breathtakingly broad, the attendant power to pressure is likewise broad.
Finally, I did read on another blog a decent proposal to restrict the definition of ‘nuisance’ to ‘activities reasonably believed to impact surrounding property owners negatively during the event’, which would neatly solve this issue to the satisfaction of all participants (well, not Brett, but he probably won’t be happy in any realistic resolution so there seems to be no point).
January 21, 2010, 11:43 amKen Arromdee says:
What makes this into a story is what the government did. The supposed debunking, which you seem to agree with, tries to debunk the claim that the government did it, but ends up saying “yeah, they did it, but it was legal so it doesn’t count”.
I have no idea why you think this is a non-story just because the government used a law to do it, considering that they did indeed do it.
Moreover, you haven’t actually shown that it was legal. As even you admit, selectively acting against gun shows might be arbitrary enough to be illegal.
I also wonder if you now retract your attack
since you’ve given up arguing that it’s voluntary.
January 21, 2010, 12:30 pmOren says:
The original claim was that the ATF did something wrong.
Then I cited numerous cases in which the NAPs were used against bars and musical establishments, meaning the nuisance law is not being applied exclusively against gun shows.
Retracted. Here’s the new version (remember, this was in response to the notion that this whole incident was motivated by Obama’s failure to pass a gun-show law through Congress):
January 21, 2010, 2:15 pmDan Hamilton says:
Yes, millions will benefit. And in this case thousands contributed to pay the legal fees.
Anybody offer to help HEB confrount the Austin ^*&%$^& Gov??
Oh sure, we are ALL LAWYERS that have studied this area and KNOW OFF THE TOP OF OUR HEAD that the ADP and ATF are in the wrong!!
Yes, this is a legal blog. You are right in making a legal arguement BUT ASSUMING everybody is an all knowing lawyer with millions to spend at the drop of a hat is not really helpful, now is it??
The ADP and ATF PUSHED the DAY before the Gun Show!
They ment to cost TGS lots of MONEY and show them they better not have a another show in Austin.
They ment to scare HEB into never having another Gun Show on their properity.
Oren, you may think this is just dandy but letting any government get away with this type of stuff is BAD. Trying to dampen the outrage, saying that it was all legal and fine is NOT HELPING. It is helping the government become MORE POWERFULL and the People beome weaker.
Do you really want that???
January 21, 2010, 2:33 pmOren says:
You might have to convince those people that they have a viable legal case before they open their wallets, which it seems they do not.
That money would probably be better spent lobbying the TX legislature for a change in the law.
That’s a new one to me. Can you state any precedent or statute that would suggest that the HEB or TGS have even a colorable case here?
Irrespective of how much money people want to spend, the first step is assessing whether they have a decent chance of prevailing. Again, I’m skeptical that they do.
Well, for one it’s kind of bizarre that my views should matter, considering that I don’t even live in TX. Let’s assume though (if you like) that, for some odd reason, my opinion does matter here.
For seconds, there is a difference between something be “legal” and something being “fine”. There are plenty of fine things to do that aren’t legal and there are plenty of legal things to do that aren’t fine. This seems like an example of the latter.
The reason that distinction matters, of course, is that it determines the proper venue for resolving the dispute. If the matter is legal but not, in our opinion, an acceptable state of affairs then the proper venue is to seek resolution through the legislature. That’s indeed what I’ve suggested. You want to spend millions fighting this in the Courts where it’s a dead-end case instead of recognizing that, this one time, the law is not in harmony with your policy preferences.
Finally, if I were drafting a nuisance statute myself, I would write it narrowly enough so that the alleged nuisance from the gun show would not be covered. That is not, however, the statute that exists nor do I consider myself a source of authority superior to the TX legislature and Austin council to the extent that I ought to consider my policy preferences to be more import than theirs.
January 21, 2010, 4:04 pmTia Mysoa says:
Hello Dave,
Greeting from South Africa!
February 23, 2010, 12:34 amI thought I’d pop in to say that I’ve posted your article “South Africa’s Deadly Disaster” on my blog. It ties in perfectly with the new Firearms Amnesty Campaign our government is running at the moment. The posting also includes some photographs of ingenious homemade shooting devices that our criminals carry around. I find your website and the comments here very interesting.
Maribel Dular says:
That is precisely what it seemed like to me likewise. Using the latest BATFE disaster involving the WE M4 Gas Blowbacks, this is only far more bad press for Airsoft.
March 15, 2010, 10:26 am