The Heller Gun Decision Week 7 - Working Out a Bit Different Than Many Thought

The first suggestion is how D.C. processes gun registrations based on the National Instant Criminal Background Check System, which is already required by federal law for all retail firearm sales and are quickly done. Unlike the NRA which proposes arguably to repeal registration, they propose to streamline it. Reference was made to junking a vision test - there really is not one but Alan Gura before the US Supreme Court stated that a vision test was OK. No good deed goes unpunished.

Secondly, they want all semiautomatics register-able and a firearm may not be banned unless it is prohibited by federal law or subject to the National Firearms Act, which covers weapons such as real machine guns and sawed-off shotguns. The provisions of HR 1399 and HR 6691 do that but do not change the sawed-off shotgun definition which is 20 inches on the barrel – while federal law is 18 inches.

Third, they want DC to junk the existing trigger lock requirements and instead fashion sensible safe-storage regulations – whatever that means. Given that the Emergency Ordinance expires in 90 days under the terms of the same safe storage change in the emergency regulations disappear if DC does nothing.

Fourth, under federal law, buyers may acquire a handgun only within their state of residence: Out-of-state sellers must first ship the gun to someone in-state who has a Federal Firearms License.

As has been noted, because of the Gun Control Act, DC residents cannot directly acquire handguns from non-DC FFL’s. Bob and Dave argue that Congress should revamp the federal restrictions on interstate handgun sales to allow, at a minimum, District residents to purchase handguns in Maryland or Virginia – as HR 6691. While I am not philosophically opposed to this, it is a chimera.

As I have noted before, the District of Columbia undertook THREE pieces of legislation-policy in order to comply with Heller: (i) 6 months amnesty to register handguns including transport to and fro to do so which is city prosecution policy – the effect of which is that possession of handguns in the home will not be prosecuted if that is the sole violation, (ii) enacted Act 17-0422 which is a 90 day emergency ordinance that expires on October 14th; (iii) revised handgun registration procedures by DCMPD.

The City has made clear that it will rewrite its gun laws – as it must – during the 90 days. If it does not, then it is out of compliance with Heller. As I have noted before, the semiautomatic issue relates to an Act of Congress dating back to 1932. As I have also noted, the emergency regulations eliminated the need for a carry license by a registered pistol owner for one’s home. It should have applied to other private property where the registered handgun owner is but it is what it is.

As to the original DCPPA (HR 1399), the reason it banned open or concealed carrying of any gun is that when point of possession registration is repealed, there are no controls on where long guns can be carried as the registration certificate acts as to rifles and shotguns as a defacto licensing condition on where one could have the gun and what it could be used or transported for. Neither the original DCPPA nor HR 6691 repeal DC Code §§ 22-4508 to 4510. Section 4508 imposes a 48 hour wait on all sales and reporting to MPD prior to delivery to do a check, Section 4509 requires retailers to be licensed, and Section 4510 requires retailers to notify the DCMP that the handgun was delivered.

The effect of this retention of registration for point of transfer transactions is that in-DC handgun transactions are registered but people moving to DC (Congressmen and the like) do not have to register their guns. When Assemblyman Kevin Shelley addressed this anomaly in 1997 in California – Governor Wilson signed the bill – polling among voters showed very high (92%) to support equal treatment on registration. In fact, 2 incumbent Republican legislators were subjected to 4 devastating Dr. Cavala hit pieces on this issue alone and lost their seats – including the Republican State Senate Minority Leader.

While prior to the emergency regulations the DC Code did not state explicitly that the registration is a defacto premises license it does so in effect for the following reasons:

One: A person cannot possess any firearm in DC without it being registered unless exempt. (DC Code § 7-2502.01(a)) There are exemptions from the registration requirement, besides the case law defense of “innocent temporary possession” or the statutory surrender provisions noted below, and estates (DC Code § 7-2503.01), the main exemptions are set forth in DC Code § 7-2502.01(b).

Two: Per DC Code § 7-2502.06, generally an application for a registration certificate is to be issued (and a registration certificate issued) prior to taking possession of a firearm from a licensed dealer or from any person or organization holding a registration certificate therefore. In all other cases, an application for registration must be filed immediately after a firearm is brought into the District. It is deemed compliance with the preceding sentence if that person personally communicates with the Metropolitan Police Department and provides such information as may be demanded; provided, that such person files an application for registration.

Three: Per DC Code § 7-2502.03(b)(8) and (11) a person has to state where the gun is to be kept and what purposes it will be used for. That is noted on the certificate.

Four: Per DC Code § 7-2502.08 any person holding a registration certificate, in addition to any other requirements imposed by this unit, or the acts of Congress, must notify the Chief in writing of, among the following, a change in any of the information appearing on the registration certificate or required by § 7-2502.03.

Five: Per DC Code § 7-2502.09 a registration certificate must be revoked if, among other things: (i) Any of the criteria in § 7-2502.03 are not currently met; or (ii) there is a violation or omission of the duties, obligations or requirements imposed by § 7-2502.08; or that the gun is carried or possessed in violations of the storage requirements.

As such, the registration even prior to the emergency regulations was a defacto “premises license” to use a New York State term of art. The amended ordinance (now in effect) via the rewrite of 7-2507.02 makes this even clearer.

The emergency ordinance (A17-0422) amended D.C. Code § 7-2507.02 to require that each registrant shall keep any firearm in his or her possession unloaded and either disassembled or secured by a trigger lock, gun safe, or similar device, except that this requirement shall not apply to: (1) law enforcement personnel; (2) a firearm that is kept at the registrant’s place of business and not the registrant’s home; (3) a firearm while it is being used to protect against a reasonably perceived threat of immediate harm to a person within the registrant’s home; (4) a firearm while it is being used outside of the home for lawful recreational purposes; or (5) a firearm while it is being transported for a lawful purpose as expressly authorized by District or federal statute and in accordance with the requirements of that statute.

The terms and conditions set forth in revised D.C. Code § 7-2507.02 are carrying conditions of registration. While the emergency ordinance did not directly amend DC Code § 22-4505 or that area of DC Code to provided a carry exemption in the home, that was the effect. A registration certificate should act as an exemption from the requirement of a carry license on any fixed private property that person has. However, given the immediate need for a legislative response that was probably not realistic. The City should have been handing out carry licenses for business people with no questions asked. The emergency ordinance expires in the middle of October at which point the situation returns to status quo ante.

As I have noted repeatedly, there are severe and immediate consequences of repealing the point of possession registration requirements and making non-scalpel changes to other provisions of DC Code.

• Repealing point of possession registration (and its registration conditions) without enacting the original DCPPA’s ban on open and concealed carrying for any firearm reopens the open carrying issue as to rifles and shotguns on public streets. Armed groups marching with guns is a career ending decision – even the NRA goes nutso on open carrying.

• Repealing point of possession registration without enacting the DCPPA’s carry exemptions – which have to be added or else it raises the other issues I raised last week as to safe transport - creates its own discrete issues. In fact, you cannot transport the gun to see if you could obtain a carry license.

• Repealing point of possession registration but retaining point of transfer registration creates discrete classes of pistol owners. DC residents have to go through hoops but people moving to DC with guns aka Members of Congress - do not. I am not normally an advocate of retroactive registration – though we do encourage that with a carrot and a stick approach in California- and most legally owned handguns are in fact registered - as I noted a few Blogs ago - but given who moves to DC and the lack of esteem Congress is held, favorable treatment for Members of Congress is a CAREER ENDING DECISION.

With those issues in mind, I have reviewed HR 6691. This legislation has five substantive provisions and I would argue that four of the five substantive provisions are in themselves all career ending decisions with the fifth also a career ending decision because of the repeal of registration. After discussing these provisions with several present and retired California State legislators who oversaw Assembly campaigns, they all agreed that this legislation is the MASHER BASHER on anyone who sponsors or cosponsors the same or votes for it. These experts include, but are not limited to: Dr. Bill Cavala, Steve Peace, Dario Frommer, Johan Klehs.

• The legislation repeals the current definition of machine gun in DC code (and the 1932 Act of Congress) to legalize semiautomatic firearms. Absent the repeal of registration, this would not be per se offensive– though I would have preferred that the definitional change reflect what Steve Halbrook was requesting as relief in Heller 2. While I support magazine capacity limitations, the reality is – as to California – that we do not ban “assault weapons” as that term is understood. Rather, it is a licensing and registration scheme.

• The legislation repeals in TOTO the current registration requirements in DC Code in the Firearms Area of DC Code Title 7 but retains DC Code §§’s 22-4508 to 4510. This is the special treatment for Members of Congress provision.

• By repealing registration for a series of complicated reasons, it reduces penalties repeat offenders who possess machineguns, sawed off shotguns, and short barreled rifle.

• Keeps DC Code § 7- 2505(d)(3) and provides that transfers of ammunition are allowed solely to a person for the caliber of the gun owned by that person. It substitutes “owned” for having a handgun registration certificate. By eliminating registration certificates and since one can’t carry a pistol to dealer (and even how does one show that he owns the gun) per the lack of exemptions per DC Code § 22-4504, in effect this change in conjunction with existing law, bans pistol ammunition transactions. This IS a career ending decision if you are from Mississippi.

• It rewrites DC Code § 22-4504 to: (i) eliminate the need for a carry license on one’s home or place of business, or other land owned or legally possessed by that person; and (ii) eliminates the 5 year potential prison sentence for off premises carry violation for pistols and makes it retroactive – arguably. This proposal probably results in the retroactive release from federal facilities of some number of some very dangerous people. This is clearly a career ending decision.

• It does not include any of the additional exemptions – and there were not a sufficient number in the original DCPPA – to cover all safe transport issues.

• It repeals the revised trigger lock requirements and does not replace it with anything – despite the fact that the NRA has supported CAP laws in other states. This – coupled with the registration repealer – creates the open carry Masher Basher.

• Creates – without a sunset - a limited exemption to the federal ban on interstate handgun sales by allowing residents of D.C. to acquire directly (and bring it back into DC) handguns in Virginia and Maryland from Virginia and Maryland FFL’s if the transaction complies with Maryland or Virginia law. This provision is a Chimera.

As to the “go to Maryland or Virginia” proposal, currently under federal law, limited deliveries of rifles and shotguns can occur between an FFL in one state and a non FFL in another state: (i) all NICS checks requirements are complied with prior to delivery (under the 30 day window); (ii) the transaction is conducted in a face to face transaction with the FFL where the FFL may operate; and (iii) the transaction complies with the laws of both states. All interstate transactions have to be brokered through an FFL. There are currently no real firearms dealers in the District of Columbia, and the federal ban prohibits residents from directly acquiring handguns outside of the District. While the NRA states that District residents have no means of purchasing/acquiring handguns, given the way the emergency regulations work, they probably do if acquired from an in-DC source.

The federal law on deliveries of rifles and shotguns was enacted in 1986 in recognition of the fact that many states at that time – and still do – had very limited controls on rifles and shotgun transactions. However, there are a growing number of states that have California “universal background check” requirements on rifles and shotguns.

The following states that have something akin to California “universal background check” requirements are: (i) Colorado (at gun shows); (ii) Hawaii; (iii) Illinois, (iv) Maryland as to “regulated firearms” that are not handguns; (v) Massachusetts; (vi) Michigan (as “pistols” are defined by Michigan Comp. Laws § 28.421(e) as firearms with overall lengths of less than 30 inches – which includes a gun with collapsible e stocks that bring them under 30 inches are “pistols” see: 1985 Op. Atty Gen. No. 6280); (vii) Minnesota as to regulated firearms that are not handguns; (viii) New Jersey; (ix) New York (at gun shows), (x) Oregon (at gun shows); and (x) Rhode Island. I should note – and again this was before and because of the way that the 8 bill package works – Michigan probably registers and licenses more rifles and shotguns - albeit “concealable” ones, see: People v. Smith, 225 N.W.2d 165, 167 (1975) - than any State save for Massachusetts and Hawaii.

While there are no hard statistics, I would suspect that the interstate long gun transaction rules where they can occur, the number of these transactions occurring is not huge. If it does occur, it may well be at gun shows in the Mountain West because of the rapidity of NICS checks. The reason this procedure is not widely used is that the transaction has to comply with the laws of both states and a large number of gun dealers are understandably wary of touching this.

Under the text of HR 6691, the transaction has to comply with both the laws of both jurisdictions DC and Maryland or DC and Virginia. Indeed one person has stated that the drafting is so poor here that it actually means a DC resident had to meet the requirements of both VA and MD but not DC. Given the unique situation that exists in DC, I am not per se opposed to a limited window to allow people to go to Virginia or Maryland to acquire handguns while DC licenses FFL’s. The problem is that I don’t think this proposal in fact works.

As to Maryland, in reviewing Maryland law, it is very clear that it prevents non-residents from directly acquiring handguns from in-state sources.

In the case of Virginia, this might be doable but even that is not clear that legally or practically it can be done. In Virginia, while it has undergone a demographic change let’s be honest. If a non traditional white Male shows up at a gun store in Virginia outside the DC Metro Area inquiring about acquiring a handgun, the first response is going to be “this is a Bloomberg sting” which was barred by a Virginia law enacted in 2008. The gun dealer will immediately call the local police in who will do “field interrogation”. While the NRA might then push for a California-Missouri “must serve” laws, the Virginia General Assembly does not meet until 2009 AND I sincerely doubt that such procedures would be timely enacted. it did hoist itself on its own petard.

Aside from “cultural resistance”, in 2008 after Virginia Tech, Virginia state law was changed in terms of mental health reporting requirements to make it very difficult to do a long gun transaction involving a non resident. One provision of those changes is that for a non resident to acquire any gun requires a 10 day waiting period and background check with the Virginia State Police before a NICS check can be initiated.

I should note that if such transactions can take place, the practical effect is to arguably weaken - I would not say eviscerate as some would say - one-gun-a-month laws in both Maryland and Virginia as Maryland has a 7 day waiting period. Theoretically you can go to two guns a month. However, DC has stated that the one gun for 90 days will lapse once registration is updated.

However, HR 6691 does not change the DC requirements of handgun registration at point of transfer and the waiting period that has to be complied with. It is not clear that what DC point of transfer pistol registration form for dealers exists OR can be even provided to a FFL who does not have licensed premises in DC.

As such, assuming that this is even doable in Maryland, this forces Maryland to register handguns and other regulated firearms to DC residents who do not live there while at the same time forcing Maryland gun dealers to also register handguns to DC residents by submitting registration material to DC. I am all for comprehensive registration but it should not constitute duplicative registration. What did we just fix in Michigan?

As to Virginia, this in effect forces Virginia FFL's to register handguns to DC residents if the waiting period-background check can somehow be complied with. Yet there is no formal registration in Virginia as such other than for one-gun-a-month enforcement. In fact, doing registration in Virginia may be illegal save incident to one-gun-a-month enforcement.

All of this suggests that DC should license as many transfer FFLs as possible and declare victory on that front. But, as I said I am not averse for a limited period of time allowing DC residents to go to Virginia or Maryland if this is a viable - and non racist - option.

The net result of HR 6691 is: (i) promiscuous carrying on city streets of traditional and non traditional rifles and shotguns; (ii) bans on ammunition transactions; (ii) requires registration for in-DC transactions on handguns but not for persons moving to DC aka members of Congress; (iv) reduction of penalties for persons with priors who possess machineguns, sawed off shotguns, and short barreled rifles, and (v) because of the CWPOL changes, the possible early release some very dangerous people from federal prisons. Having pointed out how flawed up DCPPA Round Deux (HR 6691) is the question is what would I do to rectify this situation?

Given that DC’s gun laws are very complex and overly so, here is what conceptually I would do (and I may have a Mockup on this):

• There is arguably no need to get into non-registration of machineguns and sawed off shotguns because there possession is already banned by DC 22-4201. However, making them non-register-able may be necessary so I would retain the non register-able provisions of DC Code § 7-2502.02(a)(1)-(3), inclusive.

• The short barreled rifle definition should cover: (i) rifles with an overall length of less than 26 inches, (ii) rifles with barrels less than 16 inches in length, (iii) any weapon made from a rifle (whether by alteration, modification, or otherwise) if that weapon, as modified, has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length.

• Expand the sawed-shotgun definition to cover any weapon made from a shotgun (whether by alteration, modification, or otherwise) if that weapon, as modified, has an overall length of less than 26 inches or a barrel or barrels of less than 20 inches in length.

• Expand the definition of sawed-off shotgun to cover hand held smooth bore weapons (defined under the National Firearms Act as “any other weapon”)

• Treat as un-register-able semiautomatics that have a self loading magazine in excess of 17 round or which have attached to it a detachable magazine in excess of 17 rounds or the magazine and the semiautomatic are in the immediate possession of the same person. This essentially what Steve Halbrook asks for in Heller 2.

• Treat as a “pistol” in both Title 7 of DC Code and Title 22 of DC Code (per Michigan) a center fire rifle which has an overall length of less than 30 inches – though I can see both sides of this issue.

• I would eliminate the pistol related transaction provisions of DC Code 22-4508 to 22-4510 as they are confusing. In place and stead, I would create Michigan style licensing so that you get the license and then once you get the gun you bring the paperwork in to register it and get a registration certificate – though I would retain dealer licensure. (So does HR 6691 and HR 1399).

• I would allow a get legal approach as exists to be proposed in Michigan (per the Jones Mayes package which also eliminates the “temporary lawful possession” conundrum created by People v. Hernandez-Garcia, 728 N.W.2d 406 (Mich. 2007)) and current New York law.

• I would fast track registration by putting in effect a 10 day yes or no process and if the answer is not no, it is yes, with an appeal procedure so that guns are registered quickly as is the case now in Michigan and Nevada.

• Streamline all of these ballistic imaging procedures that are part of the emergency regulations – if they are even needed.

• Allow loans of guns without a registration certificate if the loan is under the direct supervision of a registered gun owner, exempt person, gun dealer, or law enforcement agency.

• Amend in all the pistol carry exemptions from the DC PPA into DC Code § 22-4504 plus 4 or 5 more from California AKA transport of the gun in to and fro to license the carrying or getting it registered.

• Exempt from the carry license registered (or deemed registered) pistols possessed on private property but otherwise leave § 22-4504’s penalty scheme in tact.

• Repeal the carry license as an element of the offense and in place and stead provide that the carry license is an exemption from the prohibition on carrying. This may be current DC practice but it removes some issue. Lest anyone think this is anti-gun, the carry license as an exemption (See California Penal Code § 12027(j)) was authored by Assemblyman Willard Murray – an NRA A+ rated legislator as part of a 1992 cleanup bill.

• Exempt from the carry license carrying incident to the loans described above.

• Allow persons with out-of-state carry license or registration cards to in effect be “deemed registered” by being exempt from the normal registration process but be deemed registered if they file minimum paperwork if they are temporary residents of DC and immediately be issued registration cards. [This takes care of the application of DC laws to Congress, Judiciary related people and the President, cabinet, and sub-cabinet officials.]

• Amend DC Code § 22-4506 to automatically issue a DC carry license to carry anyone who has a carry permit from his or her home state with a time limit.

• Codify Timus v. United States 406 A.2d 1269 (D.C. 1979) so it's totally clear that private security personnel can posses and acquire guns and ammunition.

• Allow persons with out-of-state carry license or registration cards to acquire ammunition while retaining the current rules for in-DC residents (as reflected in Timus).

• Totally revise and streamline how private security personnel are licensed in DC.

• Rewrite or repeal the trigger lock requirement so that it is a modified CAP law. At a minimum it means that when you are in the house, the lock does not have to be on and remove the imminent harm language.

• Limit the application of the registration requirements and carry license requirements to non DC residents.

• Somehow limit the ability of DC to undermine all of the above cited reforms.

As to limiting the application of the registration requirements and carry license requirements to non DC residents, while I am not arguing for reciprocity, I do believe more has to be done here. DC Code § 22-4506 now allows DCMPD to issue a carry license to any person having a bona fide residence or place of business within the United States and a license to carry a pistol concealed upon his or her person issued by the lawful authorities of any State or subdivision of the United States. I am inclined to support automatically issuing a DC carry license to carry anyone who has a carry permit from his or her home state with a set time limit. This approach has a substantial amount of benefits and reflects what is occurring in other jurisdictions. It also removes whatever self interest members of Congress have to inject themselves into DC gun laws.

What I am proposing actually goes far beyond what HR 6691 proposes without gutting registration, releasing criminals from prison, banning ammunition transactions, allowing open carrying, and other career ending decisions.

HR 6691 also shows lobbyist run amuck – aside from Randy Schuenemann on Georgia vs. Russia. People get into trouble when they rely on others who do not have their own interests at heart. Just remember Beyoncee: “I depend on me”. The reason that HR 6691 is a masher basher is it was negotiated out without anyone looking at the long term interests of the Members.

On other DC fronts, since July, DC has given out 322 firearms applications, taken in 26 guns for registration, approved 11 applications, and denied three for criminal background or other reasons. Amy McVey (who is the first registered handgun owner in DC post Heller) was profiled by DC’s NBC affiliate. McVey lives in an upscale upper northwest Washington neighborhood. She and George Lyon, of Mount Pleasant, have created www.CapitalGunOwners.org. They want the D.C. Council to make gun registration simpler rather than the temporary law Mayor Fenty and the council passed. McVey said she also would like a permit to carry a handgun outside her home. She may testify about that during Council hearings next month.

While McVey was featured on the NRA website, it neglected to note that Amy McVey was amended out of Heller 2 (Case 1:08-cv-01289 in the United States District court for the District of Columbia) as a Plaintiff. Under Federal Rules of Civil Procedure Rule 15(a)(1) a party may amend a pleading once as a matter of right before being served with a responsive pleading. In any other case, a party may amend its pleading only with the opposing party's written consent or the court's leave. As such, why McVey was amended out is not a matter of public record. This one amendment as a matter of right is akin to rule in California per CCP 472. At least in this state, adding or deleting a party may be done pursuant to Section 472 without court permission if Section 472 otherwise applies. Gross v. Department of Transportation, (1986) 180 Cal.App.3d 1102 and National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 519.

On other fronts, there are the following developments:

First, as the NRA’s suit against the San Francisco City Housing Authority, press reports indicate that the NRA will likely dismiss the City & County of San Francisco from the lawsuit challenging a ban on the possession of firearms in San Francisco’s Housing Authority developments. The federal lawsuit sought to overturn both a 2007 local ordinance banning gun possession on county land and a provision in the San Francisco Housing Authority’s lease agreement that prevented residents from keeping a gun on Housing Authority land. Mayor Newsom appoints the Housing Authority. The NRA failed to tie the city ordinance to the lease provision of the Housing Authority, which apparently is a federal agency.

San Francisco City Attorney Dennis Herrera had called the lawsuit “little more than a publicity stunt that improperly names SF as a defendant, and makes false representations to the court,” after the lawsuit was filed. If such is the case, the SF under the loser pays provisions of 42 USC 1988 should file its own request for attorney fees and costs. While the text of Section 1988 does not contain any limitations on loser pays - save for the United States Government receiving its attorneys fees - in Hughes v. Rowe, 449 U.S. 5, 14-15 (1980) the United States Supreme Court held that a prevailing defendant in an action brought under 42 U.S.C. § 1983 may recover attorney's fees from the plaintiff only if the district court finds "that the plaintiff's action was frivolous, unreasonable, or without foundation."

In Hughes, the Court held that it's prior holding in Christiansburg Garment Co. v. EEOC, 434 U. S. 412 (1978), holding that a defendant in an action brought under Title VII of the Civil Rights Act of 1964 may recover attorney's fees from the plaintiff only if the District Court finds "that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Id. at 434 U. S. 421. The Court held in Hughes:

“Although arguably a different standard might be applied in a civil rights action under 42 U.S.C. § 1983, we can perceive no reason for applying a less stringent standard. The plaintiff's action must be meritless in the sense that it is groundless or without foundation. The fact that a plaintiff may ultimately lose his case is not, in itself, a sufficient justification for the assessment of fees. As we stated in Christiansburg:

‘To take the further step of assessing attorney's fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.’ 434 U. S. 422.” 449 U.S. at 15

Chuck Michel who is the NRA’s attorney in this matter has indicated that there is a settlement under discussion which would bar “illegal guns” but would allow residents to have “legal guns”. H e also disclosed potential other litigation strategies. As I indicated in an earlier Blog, the only way to distinguish between legal and illegal guns is by that person presenting proof that the gun(s) he or she owns and is in the premises is registered with the California department of Justice that is presumptive proof that the gun is a legal gun.

If the person wants to and is not sure that the gun is registered to him or her, he or she can file his or her own firearm registration requests with the California Department of Justice which will provide the same free of charge indicating what they own per the authority at least as to handguns and assault weapons pursuant to Penal Code § 11106(c)(3).

If for whatever reason the gun is not properly registered to that person but is register-able, DOJ will also affirmatively register any gun that is not illegal by the person filing a voluntary registration form per Penal Code § 12078(1). Both of these forms are in pdf editable form on DOJ’s website.

As I predicted in my Heller Week 2 article posted on this site on July 11, 2008, the effect of any settlement that provides the tenants’ relief will require that the NRA acceding to and having to pay for gun registrations. The submission of a 11106(c)(3) request is free but requires the payment of a notary fee ($10.00). The completion of a Section 12078(l) form requires a payment of $19.00. Given that a quality handgun costs at least $400.00 and public housing residents do not have that kind of money, it would seem to me that the NRA (or more appropriately the Second Amendment Foundation which has an agreement with Smith & Wesson to share in the proceeds of the Smith & Wesson commemorative Heller v. D.C. revolver) is morally obligated to assist tenants in being properly trained and armed with registered handguns acquired in full accordance with California law.

In that vein, the SAF should provide vouchers so these persons may legally acquire the Heller Commemorative (Model 442 revolver) which is on the approved roster in California is a high quality revolver that is also a very safe and uncomplicated handgun. The Model retails for $561.00. Smith & Wesson is in fact the nation's top revolver manufacturer – it sold 185,000 revolvers in 2006, 48 percent of all revolvers made that year in the United States.

Smith & Wesson spokesman Paul Pluff at the time of the conundrum over what would DC register noted – correctly in my view – that revolvers are more accurate, more reliable and easier to manage than higher-tech semiautomatic pistols in an emergency. As he noted, for most people, most confrontations, there are not going to be a high volume of rounds being shot. It is also safer to store if you have kids in the home. One would hope that this litigation is handled so that there is an enforceable judgment in effect so that if someone violates the agreement there is the contempt option and the membership does not have to eat it on litigation costs because of the odious decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001).

Two, while some folks are not happy that the Democratic platform called for a reauthorization of the assault weapon “ban”, that term is incorrect because the term “ban” is not what the 1994 legislation did. All the 1994 law did was to prohibit the importation and domestic making of certain guns after a certain date. It was not retroactive in effect and while the domestic ban has expired the import ban is still in effect – put in place by Bush 41. In fact, John McCain voted for S. 1805 in 2004 that called for a 10 year extension of the 1994 ban.

There were also some questions about “Cheyenne vs. Chicago”. What I interpreted that to mean is a statement that a “one size fits all” system is an infringement on state choice. Let me give just one example. Michigan- as noted above - has a licensing system which developed in that state because of local conditions. Pennsylvania on the other hand has a point of transfer handgun registration system. Clark County (which is Nevada) has a third type of registration system. Each has their pluses and minus and all three states have individual RKBA clauses in their state constitutions but I believe subject to an individual right via the Privileges and Immunities Clause this is a local issue.

Because of Heller, gun shows (and here I actually disagree with McCain because he would make ILLEGAL conduct that is legal in California), McCain-Feingold, S. 1805, and other issues – assuming that the NRA can even focus on politics because of lawsuits about to commence on “moles” they have a tough road to hoe even if they focus on Heller being in jeopardy. First off, any appointee has to get through the US Senate and I can assure you that Harry Reid will not allow anyone to go on the Court that puts Heller at risk. It is likely that the first Obama nominee will be a Western (as in Mountain West) Democrat who is a sitting Judge on a State Supreme Court who is a raving civil libertarian and PRO Gun. In fact, I would put the entire Montana Supreme Court on the US Supreme Court if I could.

In fact, Montana Governor Brian Schweitzer said he does not think Republican John McCain has an advantage over Barack Obama with gun voters. Brian is as pro-choice on guns as you can get. Brian properly noted that between Obama and McCain (and here who the VP nominee is makes a big difference) said die-hard gun voters will likely take a dim view of both presidential candidates. But, Brian correctly noted that Obama would have an advantage with hunters because he has talked more about preserving public lands.

Three, in terms of what is happening in Illinois, Evanston repealed its gun ban last week and is not looking to enact any new laws until the dust settles. Also, Mayor Daley apparently has told people he realizes that Chicago’s gun registration system is constitutionally deficient on a number of grounds.

Four, as I noted Professor Volokh at www.volokh.com has been posting several post Heller lower court decisions. One particular decision of note is that on August 1, 2008, the US District Court for the Eastern District of Pennsylvania ruled in United States v. Kitsch that in light of Heller that a prohibited person – at least as to being completely barred from possession must know that he or she is prohibited and that he or she must know that what he or she possesses is a gun.

Kitsch is really not new – the Washington State Supreme Court held the same way State v. Williams, 148 .3d 993 (Wash. 2006). In California, because of a 2003 Denise Ducheny law cosponsored by the NRA and CA DOJ (I did the “chaptering amendments”) a person can go through a DROS type check without actually applying for a gun to see if he or she is prohibited. In fact, the State Senate passed last week AB 837 by Mike Feuer (D-AD-42) –and it is now headed to the Governor, makes changes to the Ducheny law, among others to comply both with what Kitsch and Williams held as well as to meet the requirements of the NICS Improvement Act.

In addition, and I alluded to this last week on the issue of aliens, Magistrate Judge Edwin G. Torres in the Southern District of Florida, in United States v. Boffil-Rivera, recommended that the District Judge reject a constitutional challenge to 18 USC 922(g)(4) that criminalizes firearm and ammunition possession by “illegal aliens” – which if you understand the whole legal presence issue in the context of drivers licenses is not an open and shut case – as I noted below as to the issue of “parolees”. Magistrate Judge Torres noted in effect after a long historical analysis that the common law right was held only by citizens and those who swore allegiance to the Government; it did not include everyone present on American soil.

Finally, on August 11th, Judge John A. Woodcock, Jr. (a Bush 43 appointee) of the United States District Court for the District of Maine ruled in United States v. Booker held that based on the absence of a meaningful distinction between felons and persons convicted of crimes of domestic violence as predictors of firearm violence, the critical nature of the governmental interest, and the definitional tailoring of the statute, the Court concluded that persons who have been convicted of a misdemeanor crime of domestic violence could added to the list of "felons and the mentally ill" against whom the prohibitions on the possession of firearms" and ammunition survive Second Amendment scrutiny. Judge Woodcock did engage in an interesting discussion of the level of scrutiny for Second Amendment regulations: strict versus intermediate with no conclusion reached.

Five, given the interest in the homicide of the Arkansas Democratic Party chair and carrying restrictions in Arkansas, Arkansas is not that expansive on carrying and the reason is that it is an old Southwestern State. Arkansas bordering on Mississippi, Missouri and Texas and the Indian Country was known as a very-very violent place and as a "no man's land" because of the nature of the territory. It is no accident that the Bowie Knife was also known as "The Arkansas Toothpick."

Arkansas Code § 5-73-120(a) makes it presumptively illegal to possess a handgun on or about one’s person. The only exemptions to Arkansas Code §5-73-120(b) are:

• The person is in his or her own dwelling, place of business, or on property in which he or she has a possessory or proprietary interest.

• The person is a law enforcement officer, correctional officer, or member of the armed forces acting in the course and scope of his or her official duties; or (iii) the person is assisting a law enforcement officer, correctional officer, or member of the armed forces acting in the course and scope of his or her official duties pursuant to the direction or request of the law enforcement officer, correctional officer, or member of the armed forces.

• The person is carrying a weapon when upon a “journey”, unless the journey (which is a one time long distance trip style exemption) is through a commercial airport when presenting at the security checkpoint in the airport or is in the person's checked baggage and is not a lawfully declared weapon.

• The person is a licensed security guard acting in the course and scope of his or her duties.

• The person is hunting game with a handgun that may be hunted with a handgun under rules and regulations of the Arkansas State Game and Fish Commission or is en route to or from a hunting area for the purpose of hunting game with a handgun.

• The person is a certified law enforcement officer.

• The person is in a motor vehicle and the person has a license to carry a concealed weapon pursuant to § 5-73-301 et seq.

As can be seen, the CCW exemption is vehicle related as the Arkansas Supreme Court alluded to in Boston v. State, 952 S.W.2d 671, 672 (Ark. 1997). Moreover, Arkansas is not per se a “shall issue” state. Per Arkansas Code 5-73-309(9) an applicant has to show that he or she desires a legal means to carry a concealed handgun to defend himself or herself.

As to the traveling-journey exemption, this exemption is – and was found from time to time in - found in Arkansas, Missouri, Tennessee, and Texas. From the relevant case law, it clearly was never intended to be a defacto carry license. See: Woodall v. State, 543 S.W.2d 957, 958-959 (Ark. 1976); State Riggins v. State, 703 S.W.2d 463, 464 (Ark.App. 1986).These states had these exemptions before they enacted a carry license regime and Tennessee repealed its exemption as part thereof.

Six, as to state implementation of the federal NICS Improvement Act, by the time next week the California Legislature should have passed and sent to Governor Schwarzenegger AB 837 (as noted above) and AB 2696 by Assemblyman Paul Krekorian (D-AD 43).

AB 837 is in reality in large measure a technical NICS Improvement Act implementation measure. AB 2696 would require – as opposed to the current authorization - the CA Department of Justice to participate in NICS regarding persons purchasing firearms and to enter into a Memorandum of Understanding (MOU) with the Federal Bureau of Investigation (FBI) for the purpose of providing information to that system. The bill would also – and this is very important - require local mental health facilities, commencing July 1, 2011, to change from hardcopy to electronic submission of reports to DOJ that contain information regarding persons admitted to the facilities on the basis of their being a threat to themselves or others. DOJ is currently working to have the mental health part of the partially complete before it would take effect.

AB 2696 is very important for two reasons. One, obviously prohibiting people with mental health issues not getting guns by closing reporting gaps is very important,. And, two, by speeding matters up and closing gaps, it allows for a discussion of the creation of some sort of fast track procedure for clearing transactions for registered gun owners, i.e. gun owners already in the system, on subsequent acquisitions. This is part and parcel of the computer upgrades that I have Blogged on and is consistent with the rational of SB 950 (Brulte) enacted in 2001.

Also, on August 10th North Carolina Governor Mike Easley signed into law North Carolina SB 2081 which authorizes North Carolina to report individuals who have been adjudicated dangerously mentally ill, or who have been involuntarily committed to a mental institution to NICS. Similarly, on August 5th New York Governor David Paterson signed into law New York SB 8706, a bill that will prompt the state to begin reporting mental health records to NICS. Prior to the bill's passage New York had reported almost no mental health records to the NICS system.

Last, but not least, Mayor Bloomberg tried to inject gun issues into the Presidential equation. He sent a questionnaire to both Senator Obama and Senator McCain. Here is the Nowick Analysis and on this I disagree with Mayor Bloomberg on several of his questions.

Question One: “As President, will you commit to push for the passage of legislation in Congress to require background checks on all gun sales at gun shows in 2009?” Given that both candidates have stated that they supported this, this is a tie.

Question Two: “As President, would you support passage of S.1237/H.R.2074 or other similar legislation to close this Terror Gap in federal laws?” Actually, the so-called Terror Gap is designed to use of the flawed “no fly” list to bar persons from acquiring guns and ammunition. No criminal conviction is required and the whole idea is flawed constitutionally.

The reality is that per current federal law any “terrorist” in this country is either a US Citizen or someone who is immediately deportable. Persons in this country without legal presence cannot acquire or possess guns or ammunition per 18 USC 922(g)(4) nor may anyone supply such a person with the same - per 18 USC 922(d)(5).

There are very strict limitations on non citizens acquiring firearms and ammunition or being supplied the same in any event. To the extent that there is an issue here, rather than making an issue up I would suggest that the Congress – and this is part of every single immigration reform bill – amend 18 USC 922(g) and 18 USC 922(d) to prohibit “parolees” (persons who have a legal presence) from possessing or being supplied with firearms and ammunition.

If a US Citizen is indeed a “terrorist” then federal law should be enforced to prosecute and incarcerate such persons. As to persons who are not US Citizens, the Second Amendment provides no protection as the Second Amendment applies solely to the People (aka citizens) and the privileges and immunities clause clearly applies solely to citizens – non citizens are NOT protected by Heller. This whole issue, incidentally, disappears when if Federal REAL-ID goes into effect in 2011. As such, this is a solution in search of a problem.

Question Three: “As President, would you support passage of S.1237/H.R.2074 or other similar legislation to close this Terror Gap in federal laws?” The answer to Question Three should be the same as the answer to Question 2.

Question Four: “As President, would you support passage of H.R.6664 or other similar legislation to put an end to the practice of allowing gun dealers whose licenses have been revoked for selling guns illegally to continue selling guns in their inventory without doing background checks?” This question is misleading but H.R. 6664 by Representative Mark Kirk (R-Illinois) is a meritorious bill and should be made part of a broader intermediate sanctions bill that should get a hard look in the next Congress authored by Congressman Zach Space (D-Ohio) for technical gun law violations.

Under current law, when a FFL license is revoked, the FFL is no longer an FFL. However, any licensed manufacturer, importer, or dealer can maintain and disposing of a personal collection of firearms, subject to such restrictions as apply in GCA to dispositions by a person other than a licensed manufacturer, importer, or dealer.

If any firearm is so disposed of by a licensee within one year after its transfer from his business inventory into such licensee's personal collection or if such disposition or any other acquisition is made for the purpose of willfully evading the restrictions placed upon licensees by GCA, then the firearm is deemed to be part of such licensee's business inventory. Any licensed manufacturer, importer, or dealer who has maintained a firearm as part of a personal collection for one year and who sells or otherwise disposes of such firearm shall record the description of the firearm in a bound volume, containing the name and place of residence and date of birth of the transferee if the transferee is an individual, or the identity and principal and local places of business of the transferee if the transferee is a corporation or other business entity.

I should add that 18 USC 925(b) provides that when a FFL is indicted for a crime punishable by imprisonment for a term exceeding one year, may, notwithstanding any other provision of this chapter, continue operation pursuant to his existing license (if prior to the expiration of the term of the existing license timely application is made for a new license) during the term of such indictment and until any conviction pursuant to the indictment becomes final.

HR 6664 is aimed at inventory that of FFL’s whose licenses are revoked or renewals denied that they may have on hand at the time of the revocation. Specifically, it bars the transfer of that firearm to the FFL to himself or herself or another whose name is on the same license or an employee as a personal collection. Any such firearms must be transferred to another and discrete FFL.

In California and other states that have strict private party transactions rules, this is a non issue because the minute your license is revoked by the state, you are a private person and are subject to private party transaction rules.

Question Five “As President, would you eliminate the Tiahrt Amendment crime gun trace data restrictions in your budgets for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)?” The answer to this is that at the behest of Representative Tiahrt himself Congress clarified this matter so that trace data IS available. In fact, BATF regularly posts on its website overall data by state and with a lot of detailed sub-information that is very-very informative.

Question 6 “Will your first proposed budget include full funding of the NICS Improvement Amendments Act of 2007?” (Actually the NICS Improvement Act Amendments was adopted in 2008). Given the fact this measure was much needed, the answer should – and no doubt – will be “yes”.

Finally, US Representative Carolyn McCarthy from Central Nassau County New York with US Representative Mark Kirk (R-Illinois), among others, introduced H.R. 6676 which requires background checks for all gun store employees and dealers. These background checks would likely be conducted through the National Instant Criminal Background Check System (NICS). California and several other states have such laws which really protect the dealer from liability issues.

In California, firearms dealers may require any agent who handles, sells, or delivers firearms to obtain and provide to the dealer a certificate of eligibility from the Department of Justice (enhanced NICS Check). Firearms dealers in this state must prohibit any agent who the licensee knows or reasonably should know is within a class of persons prohibited from possessing firearms from coming into contact with any firearm that is not secured and from accessing any key, combination, code, or other means to open any of the locking devices securing guns. Assuming that the bill is a NICS instant check and is limited solely to persons who directly possess or transfer a firearm or ammunition in the course of employment with the licensed dealer, it is not obnoxious.

Since the mid 1980's Irwin Nowick has worked for the California State Assembly and State Senate on a plethora of policy issues, most notably firearms legislation. He has been described as "The Assembly's resident genius" by a former Speaker of the Assembly and is seen frequently in the Capitol hallways and offices assisting legislators in drafting and amending pending legislation.