[UPDATE: The decision below was filed July 7, and PACER, which I checked before posting the post, echoes this. Nonetheless, as two commenters pointed out, the decision is dated June 25, one day before Heller was handed down. If anyone could explain why there'd be a two-week delay between the signing of the written decision and the filing — something I generally haven't found to be the case in district court — I'd love to hear it.
It may be that my condemnation of the court was mistaken or at least overstated, given the June 25 date; on the other hand, Heller was big news the very next morning -- and anticipated to be coming down then -- so if the district court decision wasn't officially filed until July 7, I wonder why there wouldn't be an opportunity to correct it. In any case, I'd love to hear what people who are knowledgeable on such matters, especially in the Northern District of California, could tell me.]
From Bates v. San Jose, 2008 WL 2694025 (N.D. Cal. July 7):
Bates was formerly a sergeant with the San Jose Police Department. He was granted a disability retirement from the department in April 2004, due to the fact that the City could not accommodate the work restrictions placed upon him by his physician, at least in part to “avoid psychologically or physically stressful work.” Upon receipt of this information, defendant Amoroso, then deputy chief, denied Bates a concealed weapon permit under Cal.Penal Code § 12027.1(e) which prohibits the issuance of a permit to carry a concealed weapon to any officer who has retired “because of a psychological disability.” ...
Bates now sues the City, Davis and Amoroso for violation of his civil rights to freedom from deprivation of due process of law, freedom from summary punishment and freedom from the deprivation of the right to bear arms for failing to initially grant him a concealed weapons permit under § 12027.1. [Footnote:] The denial of a concealed weapons permit does not constitute a deprivation of the right to bear arms. Hickman v. Block, 81 F.3d 98, 101-02 (9th Cir.1996), cert. denied, 519 U.S. 912 (1996)....
But Hickman expressly rested on the view that "the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen" — a view D.C. v. Heller expressly rejected. As one might guess, while district courts are generally bound by circuit precedent, "where intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority" — including when the irreconcilability is in the "mode of analysis" and not just square conflict in the specific holdings — "a three-judge panel of this court and district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled." Miller v. Gammie, 335 F.3d 889, 899, 900 (9th Cir. 2003). And it's not like Heller was a low-profile case that judges and clerks would routinely miss, or that the conflict between Heller and Hickman was somehow subtle. Now it may well be that under Heller, concealed weapons bans remain constitutional; there's language in Heller that suggests this. I should also note that all the briefing in this case came before Heller, so the parties technically didn't raise Heller; and more broadly, my skim of the plaintiff's opposition to the city's motion for summary judgment didn't really discuss the Second Amendment. If the court had made any of these points, that would have been fine. But simply relying on a precedent that Heller swept away strikes me as wrong, though of a piece with other recent decisions (see here and here).
All Related Posts (on one page) | Some Related Posts:
- Felons and the Right To Bear Arms:
- Interesting Tenth Circuit Concurring Opinion on the Right To Bear Arms and Felons:
- Pipe Bombs Unprotected by the Second Amendment:...
- Ninth Circuit's Sensible Response to a D.C. v. Heller Claim:
- It's As If Heller Never Happened:
- More on Guns in Post Office Parking Lots:...
- One More Early Post-Heller Second Amendment Opinion:
- Another Early Post-Heller Second Amendment Case:
- One of The First Post-Heller Second Amendment Opinions:
I personally never imagined that Heller would overturn concealed carry laws. I would prefer everyone carried openly, TBH. I believe if only 10-20% of the population were openly carrying in every large metropolis, we would see a dramatic decrease in violent crime.
The decision's reliance on cases that were invalidated with Heller is obviously wrong, but it's not a surprising wrong. The whole collective rights argument came about like this, in contrast to Supreme Court decisions, and it won't be surprising to see the same folk try the same methods again.
Of course it's wrong. That's not the point. The point is, do they even care? The answer is: no.
Or public masacres.
The case for Second Amendment rights cannot rest on social science or on positive social effects. It can rest on the simple fact that they are protected by the Bill of Rights.
"The right of the people to keep and bear Arms, shall not be infringed", not openly to bear arms.
"I would like to vote, the Supreme Court says I can."
"Ain't no Supreme Court here in the swamp, other than Elmer and his axe handle. Elmer, give him some justice."
Everything old is new again. Of course, Elmer is now Ron Whyte, so at least the names change.
This is the part that scares me the most. While I can understand not allowing convicted felons and people with severe mental disorders to have guns, it makes no sense to deny concealed carry permits on the basis of unrelated medical conditions.
Even if the "reasonable restriction" standard of review is lowered to rational basis for concealed carry, I have a hard time seeing why it would be rational to deny this permit to people on the basis of their health - or rather, a specific health condition. In theory, a government could come up with enough seemingly rational restrictions (hypertension, any anti-depressant use, etc) that would effectually prevent anyone from getting a concealed carry permit.
Open carry seems imprudent to me ever since I read that ten percent of cops killed on the job were shot with their own gun.
I'm not sure about the bird or cursing, but I can easily imagine that a lot of men would stop engaging in questionable behaviour with women if women were openly carrying. A lot of it is about a display of power and dominance, which may not seem like as good an idea when she can fight back.
In that "an armed society is a polite society" comes from one of Heinlein's lesser novels, in which manners are in fact enforced by an elaborate code duello, there's something in what you say.
But the real-world bearing of arms makes people careful not to lose their tempers, not for fear of what the other guy will do but for fear of what they will do; ramping up the consequences instills caution. So the saying is true enough even if Heinlein's vision was false.
Just Saying: There isn't a formal procedural mechanism, but it's up to the district judge. He or she is welcome to delay issuance of opinions for any reason at all. If I were a litigant for whom such a delay seemed likely to be helpful, I'd file a motion or send a letter (depending on the judge) suggesting this; with most judges, at worst, the answer would just be "no."
When the end result of escalating rudeness between two strangers is a gunfight, there is a greater incentive for both parties to back down and go their separate ways because the indignity of suffering an insult is less costly than the problems that result from escalating to deadly force. People who lack this restraint are subject to natural selection in the following ways:
1) losing gunfights and becoming dead
2) winning gunfights and becoming imprisoned
It isn't that people have a rational fear that insulting someone will lead directly to a shooting. It is a rational fear that two people insulting one another may lead to shoving or punching or more. If one or both parties have firearms, that escalation may eventually involve those firearms. Anyone who played a part in escalating the situation to deadly violence is in a lot of trouble.
People back off to avoid fights even when they know the other party is unarmed because you can't claim self defense when you were the aggressor. And even if you're in the right, any shooting is going to create a huge risk of lawsuits and criminal prosecution no matter where you live. Shooting someone is the sort of thing you don't do unless you have no choice.
I support Heller and the right to keep and bear arms on an individual basis. But I do NOT want to live in a society where large numbers of people are always going around armed.
****
There is a dictum in *Robertson v. Baldwin* (1897) stating that the 2A does not extend to carrying concealed weapons in public.
http://www.secondamendmentfacts.com/RobertsonvBaldwin.htm
Yeah, among decent, basically civilized people in normal circumstances, there's merit to what you say. But those circumstances are quite often not present. People get drunk, they get high, they get angry. And when they do, they behave irrationally. And I really don't think that the presence of a gun in their hand or on their waist is likely to actually cause them to behave more rationally, because at that point rational thought is slipping away rapidly.
As for "unless you have no choice," take a look at the Joe Horn case. Take a look at the shooting of Yoshi Hattori by Rodney Peairs. People shoot to kill when they have PLENTY of other choices, either didn't think of at the time or out of a desire to protect their (or somebody else's) property from a perceived danger (which may or may not actually exist).
(1) the passage EV criticizes is in a footnote
(2) the proposition that Hickman is cited for may still be good law (see pp. 54-55 of Heller slip op.)
(3) the Second Amendment argument seems to have been a small part of the case and probably didn't figure prominently in Bates's briefing.
(4) I'm just speculating, as I've never been a district court clerk, but I think that the judge and his clerks probably read Heller and thought (correctly) that it didn't cast doubt on the constitutionality of a concealed carry permit statute that makes an exception for officers who retired "because of a psychological disability".... and didn't amend the opinion. Perhaps they didn't check to see if any of the cases cited in the opinion had been undermined by Heller, and perhaps they should have... but I don't see the big deal. District court opinions don't bind anyone outside of the immediate case, the result wouldn't have changed, district courts are busy, and I assume that Bates could have (and perhaps still can) filed a brief or sent a letter to the court if his attorneys thought that Heller was helpful to his case.
A concealed weapons ban would pass strict scrutiny if:
-nearly everyone carried openly
-by custom, only criminals carried hidden weapons
-the concealed weapons ban is directed at preventing criminal misuse of firearms.
In modern times, such a ban would likely be unconstitutional because:
-customs have changed such that concealed carry is no longer a sign of criminality. Restricting it serves no compelling government purpose
-open carry is largely illegal and even when legal, open carriers are often subject to government harassment.
BRANNON DENNING, CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATES V. MILLER AND
THE SECOND AMENDMENT, 26 Cumb. L. Rev. 961-1004 (1996).
I'm aware of this but I think the solution is to punish these people for their poor judgment, not to punish me for using the same tool for a legal purpose.
IMO, this isn't even a gun problem, this is a stupid problem. If you want to dwell on the gun issue, I just don't see any rational place you can take this argument. Hardened criminals aren't restrained by gun control and they aren't liberated by an expansive 2nd amendment. It's lawyers, doctors and engineers who want an expansive legal RKBA so they can protect themselves without fear of prosecution over the tool they used.
Depending on where you live you may already be in such a society and not even know it. I'm reminded of the line from Dr. Strangelove telling us that a doomsday device is useless if you keep it secret.
going around armed.
You already do live in such a society. This is the beauty of the concealed carry laws. We've got 20 years of evidence that letting people carry guns in public doesn't cause any problems and no one even noticed it happening.
And the reality is that it's easier to kill somebody on the spur of the moment, in a fit of rage or fear or emotion, with a gun rather than a knife, rock, or other weapon. I don't think that simple fact should cause a different constitutional result to be reached (I think it's entirely irrelevant to the fundamental constitutional issue), but I do think it's one which should be relevant to whether we should PROMOTE wide-spread gun carrying.
I think consideration of these issues should also come into play when considering the validity of laws which restrict WHERE a gun may be carried.
In the abstract most of us don't. Unfortunately we don't live in the abstract. Have you ever lived in a crime-ridden neighborhood? I have, and it's not pleasant. I was afraid to bring my trash down to the basement in my building. I had a guy pull a knife on me in my lobby. More than once thugs tried to follow me to my front door and then ring every bell in the building in hopes the door would open before I got upstairs. This was New York City. At that time teenagers had a license to kill thanks to compassionate liberal thinking. Only those compassionate liberals took taxicabs, and lived in buildings with guards, sometimes armed guards. The rest of us were left to fend for ourselves. And frankly I don't care if someone loves that monster who is trying to do me in. I still think humans can make moral choices. Sometimes compassion is a luxury we can't afford.
Jim, that's crap. It's just crap, I'm sorry. I prosecuted people for 5 years, looked at pardon applications daily for another 4. I've seen PLENTY of homicides committed by previously law-abiding citizens which would very likely not have happened had the individual not had a gun immediately at hand. And even in Louisiana, which isn't too bad as far as concealed-carry is concerned, only a fairly small percentage of the population has a CCW permit. There are plenty of restrictions on WHERE you can take your gun, and you're not allowed to have higher than .05% BAC while carrying.
Look, I support the right to carry guns. But I'm getting fed up with those on the gun rights side who deny that there are ANY risks associated with having large numbers of people routinely carrying firearms. That's just not reality. Those countervailing risks may not outweigh the benefits (the ability to take out the bad guys before the cops can get there), and they shouldn't outweigh the RIGHT protected by the 2nd Amendment, but they do exist and we should be cognizant of them.
The dangers inherent in that type of environment are one of the many reasons I support your right to carry a gun, and to use it for self-defense. My only point is that there are indeed risks also associated with having lots of people carry guns... especially when they don't live in such a crime-ridden neighborhood.
Innocent people ARE killed by people whose fingers are too quick on the trigger. So are people who get in normal, everyday bar fights and arguments with spouses and friends and neighbors. That's a fundamental fact.
By the way, I support your right to carry a gun and to use it in self-defense, so I'd really appreciate it if you not suggest I was a liberal or was saying that you didn't have such a right.
I suppose if you construe the term broadly enough, "normal law abiding citizens" are capable of sinking to any level of depravity. Are you sure that dealing with the scum of society for nearly a decade hasn't changed your opinion of what "normal" people are like?
Where I am from, "normal law abiding citizens" don't go around getting into bar fights or gun fights for that matter. The fact that some of the prisoners you deal with didn't have prior records doesn't make them model citizens or representatives of the general population.
You don't seriously think the entire country is like you and your neighborhood, huh? Do you stay always on the right side of the tracks? Do you hang out primarily among the educated class? There's a WHOLE lot of people in this country who work hard and are fundamentally good, decent people who nevertheless do things like drink and carouse and yes, sometimes get in fights. Those aren't daily occurrences for most of them, sure, but then neither is needing to actually use a gun in self defense.
Is there a CA law or regulation that states that authorities "shall issue" a weapons permit to retiring officers? My understanding is that retired officers are not considered a risk to society and that they are actually an asset to law and order due to their training and proven record.
If your assertion that publicly carried guns increase the risk of harm and death is correct, why do concealed permit holders have a far below average rate of crime commission than the general population? Why don't we see your calculus play out whereby normal people behave the same as before but with a higher chance of gunfight at any given time? Could it be because these same normal people modify their behavior when they carry?
You are not the first person to assert the "rivers of blood in the streets" or "wild west all over again" memes. These scenarios were trotted out 40+ separate times when we were passing concealed carry laws around this country. The only thing we know for sure was that the chicken littles were wrong.
The solution is not to restrict the right, but to restrict the people who abuse it.
You might be surprised how practical it would seem in a state like Alaska.
So far as blood-curdling blog comments are concerned... well, there's nothing like keyboard courage. You can hear worse in bars any day but the patrons seldom take the noose and torch out the door.
And this is true whether the Supreme Court's applicable decision is "liberal" or "conservative".
And I don't in general advocate in favor of "restricting the right." I entered this thread complaining about the notion that we'd all magically be more civil to each other if we knew that the other guy was armed. I don't believe that to be the case, and I don't want to live in a society where I'm in fear of my life should somebody take offense to me flipping them off in traffic. I do think the risks associated with wide-spread arming is something which can and should be acknowledged in evaluating the wisdom of some gun-related laws. For example, I think it is not appropriate or wise for the government to restrict the rights of property owners to choose to bar guns from their property.
I fall more in line with what Jim is saying. Those who own legally, and more importantly CARRY legally are even less likely to be involved in a case where the discharge of a firearm occurs.
My reading is that Pat seems to believe that there is a constant involved in that: x number of CCW holders (or open carry or access to firearms etc) has a direct correlation to x number of "acts of stupid". Where "acts of stupid" is the unhappy circumstance of someone getting into any and/or more trouble simply due to the easy or quick access to a firearm. I do not agree. Data indicates that the overwhelming majority of gun crimes are commited by those with existing criminal history. This does not completely invalidate the argument that more guns will mean more incidents. But there is no way to say that more legal carry will mean more incidents outside previous criminal enterprise. In fact, I believe that the data from States that have enacted shall-issue laws shows exactly the opposite.
I agree with Pat that with any firearm (like any dangerous tool), there will be some incidence of accidents/stupid/overt acts that utilize said tool. I think the vast majority of firearms owners and/or carriers are more than "cognizant" of the fact that there ARE risks associated with firearms..contra to the argument Pat makes:
No one has said there are no risks. But the sheer number of legally owned firearms to the actual number of firearms crimes committed by those everyday people who just happen to make a life-altering mistake should show how COMPLETELY the "countervailing risks" DO NOT outweigh the benefits of more everyday people carrying.
Laws on open carry are generally much less restrictive than concealed carry laws.
You say: "Data indicates that the overwhelming majority of gun crimes are commited by those with existing criminal history." By looking only at "gun crimes," you're limiting several categories of incidents that I am including in my own estimations. I used the example of the Rodney Peairs shooting of Yoshi Hattori earlier. Hattori, dressed as John Travolta in Saturday Night Fever, was a Japanese exchange student looking for a Halloween party in Peairs' neighborhood. He knocked on the Peairs' door, either thinking it was the party house or looking for directions. Peairs' wife answered it and freaked out. Peairs then went around to his carport, saw Hattori walking up the driveway (he thought this might be the party house, and was going to look around back to see). Peairs chose to open the back door (increasing the danger to himself and his family) and shoot Hattori. He was, alas, acquitted, so there was no "gun crime" committed here. That's one type of senseless death of the type I am concerned about.
One also needs to look deeper at the stats for situations where, for example, an armed robber shoots only because one of the innocent bystanders draws a weapon and fires first. That's going into the books as a gun crime by a real criminal, but in fact it may well constitute a death or two which wouldn't have happened had not a bystander tried to be a hero.
Beyond that, the data that we have is based on set of cultural conditions and laws which have (unjustly, in my opinion) restricted the ability of many people to carry guns. As I noted before, even in "shall issue" states, there remain any number of conditions imposed on such permit holders and one must still apply for them, be tested, etc. That selection process culls out a fair number of the hot-heads and idiots. Were the culture and laws to shift in a different direction, I would expect the number of people carrying guns to increase and the culling process to be reduced. Thus, I don't think that the current crop of CCW carriers is necessary representative of the population as a whole or the population which would be armed if the laws and culture were liberalized significantly.
So you just don't trust the people. Is that it? Shall issue state requirements vary quite a bit, from Vermont and Alaska which have no, repeat zero, requirements to places like Nevada, Utah and Florida, where even out of staters with clean backgrounds get a permit. Vermont and Alaska haven't had "blood baths." No, the blood baths happen where the psychos have an open field of fire created by government regulations, like at Virginia Tech.
Personally, I don't trust so many of our media, so I guess that licenses to publish papers, high taxes on presses, and a 10 day waiting period before publishing are in order. And of course the First Amendment doesn't limit the government's ability to do those things, does it?
"The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms byfelons and the mentally ill, ..."
One giveth the other taketh.
Heller will not change anything in fact. It just established the power of the Federal government to limit individual rights.
We all will be catolgued as mentally ill ... if you hold the wrong kind of political beliefs.
I initiated this conversation to talk primarily about culture. The only law relating to gun rights which I have said is a bad idea is the one which restricts the rights of property owners to bar guns from their property. Yes, I plead guilty that in my hierarchy of rights, property rights come before gun rights, and I don't believe that the government should dictate what I can and cannot allow on my property. On the cultural (not the legal) front, I am very concerned about the attitudes displayed by, frankly, people like you, whose first reaction seems to be that more guns on the streets is an absolute and ultimate good, and that people like Joe Horn or Rodney Peairs are heroes and defenders of property rather than idiots who exercised piss-poor judgment which actually put themselves and their families in greater danger while ending the lives of 3 human beings (2 criminals and 1 entirely innocent teenager).
Me, I would prefer that we expend our energies mostly to develop a society where most people feel no need to carry a gun in order to walk the streets safely. I think that requires some balance, and rejecting the view that a universally-armed population should be an end in itself.
But thank you for your righteous chastisement.
You left out the part where Hattori had a habit of running at people as if attacking them and then pulling up and laughing at the joke.
It's unfortunate that folks who play on the freeway are likely to get hurt, but that's no reason to accomodate such behavior.
Second, I've never suggested that we instantly switch from shall-issue licensing to no-license carry. I even think that it was wise for the Court to have dodged this issue to avoid putting laws in 40 generally pro-gun states at risk of legal challenge. It is becoming increasingly apparent that the courts are going to be plenty busy just dealing with the legal gyrations of a few anti-gun states.
However, I think the risks of unlicensed open carry are being vastly overstated. Virginia has had unlicensed open carry for a long time. There is nothing stopping DC's abundant criminal population from hopping on a train and going anywhere in northern virginia to commit crimes. Why doesn't this happen? Since unlicensed open carry is legal, why don't they just strap a gun on their hip and go around robbing people? There has to be some reason, no?
Similarly, although unlicensed concealed carry obviously requires no background check or need to apply for permission, it also advertises to everyone that you are carrying a gun, including police. People acting suspiciously while open carrying invite scrutiny from the general public and the police. It is perhaps "unfair" but people who open carry while dressed like homeless people or ninjas are going to get stopped by the cops. A lot. Open carry is not the sort of thing someone with warrants or a criminal record wants to do because it advertises that they are in possession of a firearm. No need for probable cause if it is out in the open.
My point is that while some people are bound to do stupid things, the vast majority of people are capable of employing common sense. They alter their behavior as necessary to accommodate their changed circumstance of carrying a gun. And nothing bad happens because they are in most circumstances, overly careful.
That's probably not entirely applicable to civilians. Cops are obligated (by dept. regs, if not by law) to confront drunks who are exhibiting loud, A-holeish behavior on the streets, and even in the privacy of the A-hole's own home. Civilians can dial 9-1-1 and keep rolling. Not that the risk is nonexistent....
My concern is that I don't trust that the police won't target armed citizens for charges related to scaring the horses (brandishing/menacing/assault, or whatever). If the cops had to randomly stop and frisk 10-20 citizens in order to find one (covertly armed) uppity serf to make an example of, the game would become obvious PDQ. In NYC, the entire political establishment, and the political echelons of the PD, are vehemently anti-gun. The rank-and-file of the NYPD are less so, but probably still not ready to see ordinary citizens with a 1911A1 strapped on.
PatHMV, you're mistrust of your fellow citizen is probably a result of your professional environment. If I'm not mistaken police have higher rates for misuse of firearms than legally armed civilians. Sorry, but I can't find an authoritative cite for that assertion, right this moment. It seems quite possible that police misuse of arms is significantly underreported, because such determinations are made based on information supplied by...the police.
You don't want to live in a society where people commonly go about armed; I don't want to live in a society where only agents of the government can be armed. It's a difference of temperment, I suppose.
Beyond that, I agree with the rest of your comment. I do think that there are cultural factors (including informal enforcement actions like you suggest will happen) that will limit the number of open carry folks strapping on the six-shooter. If you agree with those things, then my argument may not be with you. However, I've seen plenty of people (like Andy Freeman commenting above) who seem to place primary blame on the idiot who got shot rather than the person living who unnecessarily shot somebody.
Andy Freeman: I sat through most of the Peairs trial. My boss prosecuted the case. Don't try to tell me the facts of it or suggest that Peairs had any justification other than his paranoid wife and his stupidity to kill that innocent young man. Even if Hattori was being a stupid teenager, that's not a death penalty crime in this country, and I think anybody who thinks that shooting justified (and yes, that includes the jury who acquited Peairs) is beneath contempt. It is PRECISELY the people like Rodney Peairs out there that make me fear living in a community where everybody but everybody is armed. Too many gun rights advocates out there seem to be like you, defending shootings like the Hattori case as being appropriate rather than vilifying the man who misused the awesome responsibility that comes from pointing a gun at another human being and pulling the trigger.
This post really doesn't hit the *main* issues with CCW here in the Bay Area.
First, San Jose (and the Sheriff of Santa Clara County) typically find *any* reason for denying a CCW. Effectively they have made this county into a "No Carry" jurisdiction.
Moving from Texas, I inquired about the CCW, and ran into a gamut of trouble just trying to find out from the respective departments even what the criteria would be.
Second, the numbers and applications are supposed to be, by state law, records that one can view. The departments who wish to be "No Carry" require one to file a FOI suit to get that information, and in many cases the salient portions of the applications are redacted as supposedly being "investigator notes".
As it turns out, just about the only recourse in the "No Carry" counties seems to be suits based on the 14th amendement showing capricious and random allowances of CCW by the jurisdictions.
Sorry, Heller hasnt entered either the judiciaries mind here, nor the licensing authorities (i.e. the PD or Sheriffs).....
If one considers the meaning of "bearing arms", unless you believe it means to carry them around inside your house (which is silly), then it really can only mean one thing, and that is being carried in public, for lawful purpose. I think any/all laws prohibiting open carry are not likely to survive post-Heller unless the composition of the Court changes before the incorporation question, or a specific State bar on open carry question makes it there.
Personally I am a CWP holder and prefer carrying concealed. That said, I don't think we get to pick and choose what rights we do and don't defend just because observation of the free exercise of those rights may be uncomfortable for some. Folks that are squeamish at the sight of openly carried firearms will just have to learn to deal with it, just like the conservatives have to learn to deal with seeing Playboy for sale in convenience stores.
My two cents.
As a rule, nearly anything that makes the news for more than a week is not good fodder for making public policy decisions. Battling drug gangs don't make national news headlines even though they have driven murder statistics for years now.
Gun crimes, accidental deaths, suicides...these are all numbers that are chalked up to firearms. In some cases (namely suicide) I think inappropriately. The death of Hattori will be recorded as a firearms related death. So in that regard will be counted in a way that I think you are including.
Regardless, as I mentioned before the rate of this type of incidence among previously clean-record citizens is very, very low.
Before we get too far afield though:
PatHMV:
I certainly don't think it is necessarily true that some people will actually need to be shot for a gun-carrying society to be a civil society. Projection of force is used in all manner of ways. From our own military carrier groups to a football team lining up 500pounders on their offensive line. Both are letting you know that hey, we mean business...let's operate with that knowledge and within the established norm. That norm is either the rules on the field, or how society and government says nations must interact.
Do I want to walk around with everyone overtly packing iron on their hip? Debateable. Do I want someone who doesn't have my best interests in mind to wonder if I am carrying? Most definitely! Criminals prey on those they deem weaker than themselves, or someone they can reasonably overpower. Take those aspects away, and by definition I think you'll have a more civil society. Throw in the fact that someone will be less likely to enter a situation that has the potential for escalation as was previously mentinoed (nice one Jim), and again...more civil society.
While Hattori's behavior certainly played some part in his death, Peairs made some very serious mistakes. If he was worried about his safety, then opening the side door after the misunderstanding at the front door was a serious error in judgment. Once he was outside, Hattori's actions gave Peairs enough reason to be afraid for his safety that I can see why the jury in the criminal case was reluctant to convict. And it makes perfect sense that he lost the civil suit.
Drawing a gun on someone--and then shooting them--is a very, very serious matter. Hattori's hosts should have, at some point, explained that Hattori's behavior, while it might be acceptable in Japan (which has almost no crime), was completely inappropriate in a place like Baton Rouge, which is a bit of a criminal cesspool. Peairs' actions were stupid. The two combined to create a tragedy. But not a terribly common tragedy.
Racist intent. Racist consequences. (California CCWs are overwhelmingly issued to white males.) I'm not surprised that liberals are reluctant to challenge the discretionary issuance aspect of the law.
1. There are people who are not allowed to possess firearms: convicted felons; convicted domestic violence misdemeanants; and those who have been involuntarily committed as mentally ill or adjudicated as mentally incompetent. A concealed weapon permit provides a simple and easy way for a police officer to verify that a person who comes to his attention may lawfully possess a firearm. I don't know that police officers frequently stop a person carrying a concealed weapon and have to then determine if they are in a prohibited class or not, but I can see why police officers might prefer a fast way of doing the verification.
2. All laws work at the margins. There are people who would not qualify for a concealed weapon permit, because of age, mental illness history, criminal convictions, and for whom the prospect of being arrested and sent to jail for carrying without a permit may be an incentive to not carry. I will agree that many of these people are not going to be influenced by such a law. A person who is planning murder, rape, or armed robbery isn't going to be stopped from carrying a gun illegally.
But there are some people in the prohibited classes who probably will be discouraged. Are these career criminals? Probably not. They may be people whose short tempers, intoxication problems, or mental illness, makes them a danger to others (and a gun may make them even more of a danger). If even 5% of those who are prohibited from firearms possession are discouraging from carrying a concealed weapon by the law, that's a win.
The vast majority of people I know are reasonable, civil people, at least in most circumstances. As Jim correctly points out, MOST murders are drug people killing other drug people. The number of robber-on-innocent shootings is quite small, on a per capita basis, and varies a great deal by neighborhood, city, and state. Statistically, you're more likely to die in a car accident than by gunfire. The risks of both being shot because you are unarmed by a violent criminal and being shot by an angry, gun-toting average citizen losing his temper are both relatively small. My point is that expanded gun carrying will reduce the one already small risk and increase the other already small risk. How much, I don't know; I'm hardly predicting a "blood-bath."
Truly, how is it possible to deny that more guns in the hands of more people means, almost inevitably, an increased risk of accidents and misjudgments leading to death? More cars on the road means more accidents and misjudgments, too. It doesn't take statistical manipulations to see that.
So again, my primary point is that the more widespread guns are, the more likely people with Peairs' atrocious judgment and temperament are to both have and USE those guns inappropriately.
What I read at the time matches the Wikipedia account--that the Halloween party that Hattori was headed to was on October 17, 1992--or a couple of weeks before Halloween. Even if you were expecting people in costumes on Halloween, you would not expect it two weeks before.
The accounts that I read at the time indicated that Hattori was in the habit of running towards strangers while shouting in Japanese so that he could take pictures of their startled reaction. I understood that this was the case that evening. Remember, Hattori and his friend were at the wrong address, but didn't know it. I can see why this stunt might have seemed appropriate if he was expected.
If you want to see fewer ordinary people carrying guns, take away the reason that most of us carry guns. We don't carry them because we like it. Even my Colt Mustang is clumsy to carry in warm weather. Even in cold weather, it is one more thing to be responsible for--I can't just take off my coat and leave it on a coat rack. Make America a place where decent people don't fear being robbed, raped, or murdered--and many people will either stop carrying, or carrying a lot less.
These accidents and misjudgements are not a function of the "number on the street", but of the attitude towards and pervading understanding of the usage of the tool...and to a lesser extent training and familiarity.
I'm certainly not going to argue against a prosecutor on a case I'm likely to agree with him on! A teenager shot on halloween night when someone had to open their door to do it? Sounds pretty obscene. My only point is that it had nothing to do with more guns on the street, i.e. extended firearms carry either open carry or CCW.
...and I think a miscue was read. I did not intend to imply that firearms should be a response of first resort. Most certainly they should be a last resort. We already have, what, something close to 40 states with shall-issue laws and varying degrees of beaurocracy to get them. Those states have seen no spike of incidents. Some exactly the opposite.
I think we're each holding a hammer over one-another's heads and banging away. Isn't it going to feel great when we stop!! :-)
I'm sympathetic to your argument Pat, and maybe you're correct that we're at the right level or balance of restriction vs. ownership right. I don't tend to think so. I think anywhere there is a legal inhibition to acquire and carry a firearm, and law-abiding citizens do it - where a criminal element by their very nature ignores it...inequality of the worst kind exists. This state is a most un-civil society.
I also recognize that, to pick one example, the vast majority of armed robberies end with no shots being fired by the robber. My personal belief is that an individual trying to shoot an armed robber (say, at a convenience store) is more likely to spur an innocent person being shot than to kill the robber, unless the person doing the shooting (a) has a clear shot, (b) is where they can't be seen by the robber before firing, (c) has some experience or training with handguns, and (d) has the requisite temperament to hold their hands steady while aiming and the courage (and aim) to shoot to kill with the first shot. Anything other than that is likely to result in the robber opening fire in return, which vastly increases the risk of innocent deaths. (Obviously, in a situation like that, one must use one's best judgment of what the safest thing to do in the situation is, and I wouldn't second-guess the decision made in such circumstances... we're considering here what the odds are generally.)
Also, I would agree that the people who are the greatest hazard are the hardest to disarm. That is, those at hazard of intentionally using a gun to commit a crime. But I think that imposing training requirements and the like (as well as promoting the proper attitudes through cultural and societal pressures) could help improve the judgment of people like Peairs and reduce the risk of that kind of misuse.
My initial comments in the thread were in reaction to a lot of other posts around the blogosphere that I've been seeing lately, where people are positively celebrating shooting other people, even over property, in order to once again strike fear in the hearts of criminals. We should be drumming into people's head the deep responsibility that comes with owning and using a firearm, always analyzing cases like Joe Horn's for ways that gun use could have been AVOIDED without endangering innocent people.
The problem that I have with your approach is that the Second Amendment doesn't allow you the discretion to apply your feelings to the law. Suggest you read Scalia in Heller again about the definition of the word "bear." And no, I'm not interested in righteous anger, I merely want employees of the government (like you) to get out of the habit of substituting their judgment for the law, which is what you obviously want to do, whether you put it that way or another. I'm sure you have all kinds of logic for your position as you have articulated here. Your approach, in fact, reminds me of conversations I've had with the two local superior court judges who I know socially. Their exposure to the criminal and legal classes is extensive, however, that limits their exposure to the 80-90% of the rest of the sane population, and therefore their judgment of human nature is, well, skewed. We can handle it, Pat, and things will work out fine.
About the only thing we DO need to deal with related to this (and I think Clayton Cramer would have much more to say about this in detail) is we must re-institutionalize a larger fraction of the mentally ill than we do now. It won't be inexpensive, but beyond funding what we really lack is the will to commit those who are dangerous to themselves and others due to mental health issues. My 2 cents.
You and the culture you describe are hardly the only culture out there. We live in a country with many different cultures (and no, that's not some new-fangled multi-cultural b.s., it's been a fact since we were founded). The rural community in which you grew up is certainly a fine one in many respects. But then there are city folk with fine cultures too. The elitist view would be one which suggests that their own little segment of society should somehow speak for all of the rest of them. If there's an elitist here, it's you. "We can handle it" is as smugly dismissive a statement of concern for anybody else's opinion as I've ever heard.
1. Every time a mentally ill person ends up committing a murder because he wasn't given the treatment he needed, it ends up costing hundreds of thousands of dollars by the time the court system has finished with final disposition--and either in a hospital or a prison, that person is going to be a recurring expense. A mental hospital isn't as expensive as it sounds, when you look at the alternative.
2. The experience of governments (and not just in the U.S.) with involuntary outpatient commitment suggests another model that also works, and substantially reduces the hazard of the mentally ill to themselves and others.
As I've argued in several posts re 2A over the past couple weeks, I think the concept of the militia as an armed citizenry offers a way to make sense of the amendment and implement it. The vast majority of states already have liberal carry permit laws. Individuals with carry permits can be considered members of the unorganized militia. 2A demands that permits be issued, but almost no one would deny that there could be exceptions--to convicted violent felons, say, or minors, or the adjudicated mentally ill. Some training might be required, but not in a way clearly intended to discourage people (and court decisions can draw the line). Such an interpretation of 2A would require a few states to follow the lead of the vast majority and enact some form of non-discretionary carry permit legislation (but it wouldn't force Vermont to enact restrictions). The idea is that the unorganized militia in this case serves as a first, immediate line of public defense against criminal assault, robbery, etc., until the police (organized militia?) can arrive. To fulfill this role, individuals do not require bazookas and bombs.
Pat, to answer you much more gently than you deserve... No. Not. At. All. Since when did it become elitist for the vast majority of the American people to be allowed to actually enjoy their full constitutional rights? How do you explain your confusion on this matter, as a government employee, since the simple text of the 2nd Amendment is "bear." Scalia was had is plainly enough in Heller - to paraphrase - bear: carry.
You might want to re-read Article 1 Section 8 of the Constitution. You have vastly understated the constitutionally defined missions of the militia. Police work maybe doesn't need a bazooka, however, repelling invasions does. And they are a) an arm and b) hand held - i.e. can be "borne." I expect flack for this, so flame on.
One issue I've had with what you've said that could at least implicitly be seen as call for limiting rkba is your comment regarding training. I don't trust the courts enough to draw distinctions between training requirments designed to promote profiency and those designed to discourage people from exercising the right. Unless you want to start having free speech training requirments.
Just like with the first, I would much prefer a regime without prior restraint. Let those who are unable to wield freedom responsibly bear the punishment.
And, Pat, there is no history of THESE PEOPLE often shooting bystanders down on the street because the permit holder is having a bad day.
There's your experiment and solid evidence that your fears are unfounded.
Well, Pat, unless your name is short for "Patricia" and there's things you're not sharing, it's doubtful that you're really in the segment of the population that is at risk for rape.
Flippancy over, I think it's hard for men - especially tall, strong men - to understand what it's like to move around in a society wherein you are physically weaker (or presumably physically weaker) than a would-be-attacker. Guns can provide a de-escalating force as well, in that their very presence may deter an attack.
Plan A is always - for sane people, anyway - to avoid an attack. When Plan A fails, it would be nice to have a Plan B - one that does not involve sex-change operations.
I personally don't think that the presence of a gun will compel people to continue to escalate a fight beyond what it would be otherwise, but, used correctly, can actually enable people to de-escalate an otherwise violent situation. While a short-tempered person may feel the need to pull a gun on a guy with a smart mouth, he may realise that the smart-mouthed guy is also armed, and the best he is going to do is a stalemate.
Nick
Nick
I've been following your posts with interest. As someone who is arguing for the "reasonable restrictions" point of view, you do a much better job than most -- likely because you actually believe your arguments, rather than trying to come up with a plausible cover for banning firearms.
I'm not sure, however, Baton Rouge is exactly a place that can be considered as an example of where anyone would feel any need to carry a firearm -- openly or concealed -- unless they are going hunting. I lived there for over 10 years, and I don't think I ever locked my back door, and I never felt threatened, whatever neighborhood I was in. In many ways, B.R. is the sort of place many want to think that America used to be (I know that isn't completely true, but the people are pretty polite and helpful, and neighborhoods tend to be communities where people know their neighbors. Except for the screwed up public school system, including the hamstringing of its financing due to the Homestead Exemption in the La. Constitution, it has a lot to recommend it).
The problem with the reasonable restrictions argument, is laws that get passed off as such. See, e.g., "Bought a BB gun to fend off squirrels, now his 20-year-old son faces three years for bare possession" [MyCentralJersey.com via Zincavage], http://overlawyered.com/
If you track back to the story, a college student was picked up for going 40 in a 25 zone, driving his father's car. Several years ago his father bought a BB gun at a garage sale, and it was in the back of the car. The kid is now facing 3 years, without possibility of parol, for possession of a "firearm" during the commission of a crime. The story recounts that another man was picked up for DUI, in his car was a pistol that he'd bought legally, but because it was in the open when he was picked up, he's facing the same penalty.
IMO, it's one thing to enhance penalties when someone uses a weapon in the commission of a crime. It's entirely different to make mere possession of a weapon, not in any way connected with the crime, either the basis for an enhancement or a separate crime. However, this is what gets passed off under the guise of "reasonable restrictions." It comes down to whether the vast majority of citzens, who are law-abiding, must have their rights substantially stripped away because of a small, irresponsible or criminal minority.
P.S.: I'm now in Yankee-Land. So pinch some tails and suck some heads and think of me (being denied that culinary pleasure) while you do. I miss good, fresh seafood fixed by someone who knows what spices are for.
If Scalia's writing on the Confrontation Clause is any guide, a lot would ride on whether Pat got right up in RKV's face when he said it. ;)
PatHMV,
I can't tell you how many people I've heard state that handgun/self-defense/martial-arts training made them act calmer and more circumspectly in public, but it's not a small number. I think in part it's a result of getting a serious look at justifiable-force issues close up.
Regarding the bar-fight issue, I know plenty in our local gun-rights community who either (a) simply don't drink because of the impairment-while-carrying issue, or (b) don't carry when they go out to bars (not a hard choice, since it's not legal in WA to do so.) I don't think a person needs to be highly educated or white-collar to see the need for these particular tradeoffs.
And you're simply wrong about CCW's vs open carry of firearms, at least as it pertains to WA state. The class of people who are prohibited from being issued a CPL here pretty much is the same class of people who are banned from firearms ownership per se (basically, plus those who are involved in current, pending procedures like have an outstanding warrant or injunction.) IOW, IF it's legal for you to own it (and openly carry it) you almost certainly will qualify for a CPL. WA has 3 decades' longer shall-issue experience than LA does, and the record suggests no serious problems have resulted from our liberal policies.
Jim@FSU,
I agree about the "stupid" problem. The sorts of things people will do while combining alcohol and, say, small boats or personal watercraft are truly mind-boggling.