The legality of owning firearms resides firmly in the founding fathers’ crafting of the Second Amendment, but a patchwork of state and municipal gun laws threaten to undermine a citizen’s right to keep and bear arms.
Nowhere is the assault on the Second Amendment more evident than in New York City where unsuspecting airline passengers are winding-up in jail after running afoul of Mayor Bloomberg’s interpretation of the Second Amendment. The NY mayor’s dislike of firearms is well known, and he even formed an “anti-gun” taskforce. The three-term Mayor even tried to peddle his anti-gun program to Arizona, after a psychologically unstable person shot Rep. Gabriel Gifford’s. Perhaps, most recently readers may remember Bloomberg’s anti-gun commercial that aired during this years’ Super Bowl.
Bloomberg’s law or tourist trap, recently ensnared Mark Meckler, Tea Party co-founder, who was arrested at LaGuardia airport along with another 700 hundred other airline passengers over the last few years. Meckler informed the ticket agent of his locked-up firearm (as required by federal law) and was promptly arrested by Port Authority officers and charged with felony gun possession and thrown in jail. This revenue generating scam works flawlessly at New York’s LaGuardia airport.
Sounds reasonable, right?
This reporter investigated the guidelines from TSA and the airlines for transporting firearms. An American Airline employee described the outbound (LaGuardia) procedure for transporting a firearm commenced with a call to TSA to confirm the legality of the passenger’s firearm paperwork; TSA would ensure the firearm was locked in a hard case with no ammunition in the chamber; and finally TSA inspectors would store the firearm in the owner’s checked luggage in a TSA-approved, locked firearm case, and it’s off to New York.
This reporter decided to take it a step further and asked what the procedure would be for boarding the plane on the return flight back to sunny California. The agent replied, “The exact same process would be implemented at LaGuardia Airport.”
This due diligence concurred with the instructions at the TSA and airline websites.
Knowing LaGuardia was the destination, the agent did not mention “you had better checkout New York law, otherwise you risk losing your gun, being placed under arrest at the ticket counter, and thrown into jail, which, in addition to spending a few days in jail, will cost you thousands of dollars in penalties, legal fees, fines and additional travel expenses.
The “special treatment” New York City imposes on in-transit visitors legally carrying a firearm sparked a number of questions.
Phone call number two went to the New York Port Authority Police Department querying why the Port Authority Police get the first call when a passenger attempts to check in at the airline ticket counter? Other airports follow TSA rules and guidelines under the interstate firearm transportation section (18 USC §926A Interstate Transportation of Firearms), which stipulates that it is perfectly legal to travel by air with a firearm, as long as the passenger can lawfully possess a firearm at their FINAL destination.
A follow-up call to the San Diego Port Authority confirmed they had nothing to do with checking firearms for airlines. In fact, they said, “We are only called when TSA finds a firearm that is either undeclared or stored improperly.”
So why is the process of transporting a firearm not followed in New York? A New York Port Authority spokesperson explained that officers follow the protocol set by the NYC District Attorney.
“In New York City, it is illegal to possess a firearm at any time, unless there is special permission given by the city authorities,” said Al Della Fave of the Port Authority.
There it is, NYC officials claim to have worked-out an “arrangement” with TSA, the airlines and the Port Authority. They will relieve lawful gun owners of their Second Amendment right when they attempt to leave the city. (Of course their firearm is already in a locked TSA-approved and inspected case.)
New York’s draconian handgun laws take it a step further by granting the courts or police departments the power to confiscate an air traveler’s firearm, and perhaps more alarming, is the fact that law enforcement can and does destroy the weapon.
As it turns out New York City is a gun-free zone! Only permission granted by Mayor Bloomberg’s office can waive the strict firearms prohibition. This is something hundreds of travelers to or through New York City have learned the hard way. Many of these unfortunate gun owners have traveled through hundreds of airports declaring their weapons without arrest, but in New York City, they are arrested, charged with several felonies and thrown in the clink. The tab for the incarceration exceeds thousands of dollars.
However, if New York is truly interested in strict adherence to the city’s handgun law, why aren’t they arresting passengers lawfully carrying their firearm when they collect their luggage and try to leave the airport? TSA keeps a record on file alerting airline personnel to the fact a firearm is stored in checked luggage.
Neither the Port Authority Police nor District Attorney spokespeople could answer that question.
A career choice landed this guy in jail
There are plenty of careers that require possession of a firearm. Providing private security for high-profile clients is one such career.
Take Kain Guercci for example, he is the director of operations for Talon Executive Services, a company that provides security details for a wide variety of high-profile clients.
Like hundreds of other law abiding travelers, Guercci passed through New York’s LaGuardia airport without staying in the city, but declared his firearm at the ticket counter as he has done hundreds of times in the past. However, this time the airline ticket agent notified the Port Authority Police, instead of TSA, and Guercci spent 72 hours behind bars.
Guercci knew the strict New York rules and traveled via taxi to LaGuardia airport from Connecticut. He thought he was following the in-transit law. “There is no asterisk or notation that the (TSA) rules apply everywhere except New York City, where I did not spend the night,” he explained.
Thinking this was just a misunderstanding, “I called my boss, a former and well-respected Secret Service agent, who explained it must have been a mistake, sit tight, and I’d be out soon,” Guercci said.
His three-day nightmare included jail time with criminals who were arrested during a nighttime drug sweep. A visit by Secret Service associates of his boss to clear the “confusion” further fueled the preverbal fire when Guercci’s Queen’s jailers took cash from his wallet and handed it to him in front of his felony-drug dealer cellmates. “Let’s just say I had to use my survival skills to protect myself from those criminals.”
Authorities wasted no time and charged Guercci with a class C violent felony, which carries a 3 1/2 to 15 years sentence, ensuring jail time.
Guercci said his three-day stint behind bars left him “shocked and utterly dismayed” with the New York legal entanglement. “I’ve never been arrested before.” After Guercci made it back to California, he was forced to notify the Orange County Sheriff of the incident and had his conceal carry permit temporarily revoked. “Luckily, I’m in good standing with the Sheriff and he was sympathetic to my New York ordeal.”
Fortunately, Guercci’s boss paid the considerable legal expenses and his conceal carry firearm permit was returned once all the court appearances and fines were paid. Guercci refers to the 72-hour ordeal as contrived and believes the New York firearm anomaly is “some sort of money-making racket for the New York’s law enforcement community.”
Criminal-defense lawyer Martin D. Kane points out on Lawyers.com; “What New York does is not helping matters. It’s pretty unreasonable, and it’s great fuel.” He goes on to explain that attorneys should not try to ‘defend’ these cases.
Kane said the specific law is clear and there is no room for negotiation (18 USC §926A Interstate Transportation of Firearms.
“The mistake some defendants and defense lawyers make is in fighting the charge and taking it to the point of indictment—and once they’re indicted, it’s impossible to workout a type of disposition that will have no consequence.” Kane concludes that it’s best to take a plea deal, pay the legal fees and fines, and never bring another firearm to New York.
While that may be sage advice, it has left many lawful gun owners tarnished as well as angry. Some legal experts suggest New York could face a legal entanglement of their own, by those who were wrongly arrested and their firearms destroyed.
The New York City’s DA declined to comment on cases involving Port Authority Police and lawful gun owners transporting firearms.
**Breaking–Stay tuned; Former White House party crasher, Michaele Salahi’s bodyguard, Richard Surrency, was nabbed at LaGuardia airport yesterday for possession of a firearm that was locked and stored in checked in luggage. According to TMZ.com, Surrency had a permit to lawfully carry a firearm when he was ensnared in Mayor Bloomberg’s anti-Second Amendment airport zone.
For more stories; http://www.examiner.com/homeland-security-in-national/kimberly-dvorak
© Copyright 2012 Kimberly Dvorak All Rights Reserved
The case, New York against Mark Meckler, Tea Party Patriots co-founder; The charge, C Violent Felony of Possession of a Firearm with Intent to Use; The reality, Meckler was in-transit at LaGuardia Airport and declared his fully-licensed, unloaded weapon that was stored in a TSA-approved locked case located in his luggage; The result, jail and a fine.
Meckler describes his ordeal as nothing short of a nightmare. “On December 15, I requested a firearms declaration form from the ticket agent. It was my intent to declare and check my unloaded firearm. I have a valid concealed carry permit for it issued in California.” Meckler explains that he carries a firearm after receiving several threats against his life due to his role in the Tea Party Patriots, a group that looks to limit government involvement.
Meckler’s honesty landed him a New York jail for 12 hours where he says other inmates disclosed how easy it was to own firearms without necessary paperwork.
New York’s strict gun-control regulations are ultimately responsible for Meckler’s arrest, according to his attorney Brian T. Stapleton of Goldberg and Segalla. In the end, Stapleton was able to resolve Mr. Meckler’s felony charge with a non-criminal Disorderly Conduct disposition which carries a $250 fine plus attorney fees and court costs.
With the incident in Meckler’s rearview mirror, the fact remains that NYC still has his Glock 27 (New York reportedly destroys seized firearms) and New York’s exercise of confiscating weapons are a disturbing trend.
“It’s outrageous… Arresting law-abiding citizens for declaring a licensed firearm is anti-Second Amendment,” according to Stapleton.
Meckler’s attorney advised him that he could try to recover his firearm, but the $5,000-7,000 costs were no guarantee. In fact, the majority of these cases result in the state’s favor. “I am not alone in facing this tyranny. It has happened to hundreds of people in the New York metro area,” Meckler said. “My lawyer, Brian Stapleton, has handled over 400 of these cases himself, so he is an expert on the subject.”
The Calguns Foundation, a large Second Amendment organization, says this is nothing more than the politicization of those in power.
“What we have here is political extortion. The government knows it’s not worth it for an individual to spend thousands of dollars and risk prosecution to fight over the return of a $500 firearm, even if they possessed the firearm lawfully. And, in many cases, the local governments know this and seize firearms to rack up a tally for federal grant money,” explained Jason Davis attorney for Calguns.
Davis voiced his outrage over New York City’s conduct of superseding Federal law Sec. 926A (18 USC §926A). Interstate transportation of firearms that states, “Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.”
Other legal experts warn Americans about this disturbing anti-Second Amendment trend.
“400 cases of seizure and destruction of privately owned, licensed fire arms by the City of New York demonstrate a clear disregard for the Second Amendment, private property and due process. While there are numerous legal arguments supporting the right to keep and bear arms, prohibitions on unreasonable seizure of private property, and interference with interstate commerce, it is the audacity and arrogance of New York to think the U.S. Constitutional protections do not apply to the Port Authority. One need not be a Constitutional scholar to understand that until citizens challenge the City of New York and the Port Authority this outrageous practice will only emboldened their self-proclaimed and singular assault on the rights of Americans and hasten the erosion of our freedom from oppressive government.”
In Mark Meckler’s words…
On December 15, 2011 at approximately 5:15 a.m., I was at LaGuardia International airport preparing to check in for a flight out of the city. During a routine check-in, I requested a firearms declaration form from the ticket agent. It was my intent to declare and check my unloaded firearm.
I purchased this firearm legally, and I have a valid concealed carry permit for it issued in California. The unloaded gun was locked inside a TSA-approved travel case, and the case was locked inside my checked luggage. I carry the firearm for my personal safety, having received numerous threats due to my role in the Tea Party Patriots. I have checked this firearm at airports dozens of times before, all across the country.
As I traveled through LaGuardia that morning, I passed TSA signs telling me I had the right to check this unloaded firearm in my luggage, and that I am required by law to declare the firearm to the ticketing agent. This is exactly what I did.
The ticketing agent provided me with the declaration form, and I signed it and returned it to her. She advised me that she would need to call Port Authority police to inspect. This is not unusual when traveling with a firearm. Procedures vary from airport to airport, from airline to airline, and even from day to day, and as a law-abiding citizen, I have always been happy to cooperate.
Unfortunately, that day, I didn’t realize that I was about to cross paths with New York City’s anti-Second Amendment stance. Upon showing my case and the weapon to the officer who arrived on the scene, and after a few brief questions, she advised me that she was placing me under arrest for violating New York City’s firearms laws.
To say that I was stunned would be an understatement. I am from a law enforcement family. My mother is a retired correctional officer, and I have spent my life around folks from the law enforcement community. I have always considered myself a law-abiding citizen. I have never been arrested before. I have never been in police custody. I can never say those things again. On December 15th, 2011, I was arrested, handcuffed at the ticket counter, and taken to a waiting squad car for transport to the Port Authority Police station at LaGuardia.
I was subsequently transferred, in handcuffs, to the Queens Central booking facility in New York City. I was charged with felony possession of a firearm with intent to do harm. I spent the day in Queens…in jail.
It was a nightmare that I can scarcely describe to you. Until you have felt the handcuffs on your wrists, and until you have heard that cell door close behind you, it is impossible to understand what it means to actually lose your liberty. And since that day, my liberty has been at stake, and because of that threat, based upon the advice of counsel; I’ve been unable to speak publicly about this case. Today the silence ends.
I am pleased to announce that the criminal case against me has been dropped. Although I was originally charged with a violent felony, the case against me was resolved with a plea to “disorderly conduct. ” Disorderly Conduct is not a felony or a misdemeanor, or even a crime. The facts underlying my plea are that I declared a legally purchased, properly licensed and unloaded firearm at an airport counter. Apparently, much to my surprise, in New York City, it is considered “disorderly conduct” to exercise your constitutionally guaranteed, Second Amendment rights.
Strangely, now that the case against me is over, the authorities refuse to return my firearm. There is no law that allows them to confiscate a weapon in this manner. They simply say “no” when you ask for your weapon back. This is apparently their “policy.” It is done regularly in New York. This is government robbery. Not only is New York City anti-Second Amendment rights, but they are depriving citizens of their legally owned property. My lawyer has advised me that I can attempt to pursue the return of my firearm but that to do so would cost me more than the firearm is worth. I am not alone in facing this tyranny. It has happened to hundreds of people in the New York metro area. My lawyer, Brian Stapleton, has handled over 400 of these cases himself, so he is an expert on the subject.
While the end of this case is the end of a horrible nightmare for my family and I, it is not the end of this fight. It is just the beginning. Since the original incident, I have received more emails, phone calls, texts and tweets of support than you can imagine. To those people, I want to say heart-felt thanks on behalf of my entire family. We have come to know that we are not alone in this particular fight. Apparently, this happens to hundreds of people per year in New York City. And New York City is not alone in its attack on our rights. This sort of Constitutional abuse, Second Amendment and otherwise, is taking place all over the nation. And we as citizens must stand against it. We must protect our rights, or we will lose them.
Many of you know me as someone who is willing to stand and fight for self-governance in this country. I’m no politician, and I’m not from a powerful or connected family. I’m an average American citizen. And I stand shoulder to shoulder with millions of other Americans who, despite enormous obstacles, and despite the politicians and ruling elite who oppose us, intend to return this country to the bounds of the United States Constitution.
The politicians and ruling elite will try, but we must not let them label us Democrat or Republican, conservative or liberal. We cannot let them make us fight against each other. Too much is at stake. We the People are losing our sovereignty to the government. We the Peoplemust stand and fight for our inalienable rights.
I’m not alone in this fight. There are so many laws, that no one can know or understand them. We are all affected. From the inner city to the farm, from the heartland of America to the coasts, people are under pressure from a government that no longer serves them. From my home in California, to the farmland of Kansas… from the small towns of South Carolina to the metropolis of New York, every year the legislatures pass thousands of laws and regulations that do not serve the people.
The legislators don’t read the bills they pass, and even if they did, they couldn’t understand them. Our criminal justice system is terribly broken, and no longer serves the people and the communities it was intended to serve. Our regulatory system is broken; small businesses and the communities that rely on them crushed under the weight of unnecessary regulation.
We are, step by step, destroying the heart of America. And we are doing so because we are not governing ourselves according to the Constitution. It’s up to us…the People.
It’s time to stand for self-governance. It is time to stand for the plain meaning of the Constitution. Every word of the Constitution is important, and we must fight for them all. We must fight for every inch of this country, from the inner city to the smallest rural town. We are all of us, first and foremost, American citizens. We’ve always governed ourselves…and we always intend to. And we’ve always been willing to stand when freedom is at stake. It is time to stand…time for all of us, every race, every religion, every gender, every American to stand up and fight for liberty and take responsibility for governing ourselves.
No one should ever have to go through what my family has been through, simply for exercising a fundamental right, specifically enumerated in the United States Constitution. I am committed to making sure no one does. And I’m willing to work with anyone…anyone, who agrees that it’s time for people to govern themselves once again.
Will we as citizens fight for our inalienable right to govern ourselves, or will we quietly allow ourselves to be “governed” into submission by a ruling elite, disconnected from our citizens and our communities? Only history will tell, but I intend to fight.
For more stories; http://www.examiner.com/homeland-security-in-national/kimberly-dvorak
© Copyright 2012 Kimberly Dvorak All Rights Reserved.
The California Calguns Foundation has filed a federal lawsuit against the state’s Department of Justice as well as Attorney General Kamala Harris for implementing a policy forcing gun owners to wait 10 days before they can take possession of additional firearms.
The case is entitled Jeff Silvester et. al. vs. Kamala Harris, et. al and was filed in the District of California Federal District Court in Fresno.
The Calguns Foundation signed on to the lawsuit with the Second Amendment Foundation and three individual plaintiffs.
“The State has absolutely no reason to infringe the rights of California gun owners who already possess firearms when they buy another one,” said Jason Davis who is the attorney for the plaintiffs. “California currently requires the registration of handguns in California. And, beginning January 2014, it will also require the registration of all newly-purchased rifles and shotguns. Notably, California keeps a current database of all residents who are prohibited by state or federal law from owning or possessing firearms.”
The plaintiffs, Jeff Silvester, Michael Poeschl, and Brandon Combs have firearms registered with the State of California. Combs and Silvester also have firearms licenses issued by the state that constitute continuous background checks. The plaintiffs argue that their law abiding background coupled with extensive background checks should remove them from the “cooling off” period.
“In just about every other state in the U.S., I as a law-abiding gun owner, could walk in and after passing an instant national background check, walk out with a firearm to defend myself in my home,” said Poeschl. “What’s really frustrating is that California is one of the few states that force gun owners to register all handguns that they buy. If the state’s database saying that I already lawfully own a gun isn’t proof that I don’t need a ‘cooling-off’ period, then what is?”
Currently, if Californians want to legally conceal carry a firearm they have to pass more stringent background checks. In most counties, residents have to provide detailed reasons in order to carry a weapon. Acceptable reasons include carrying large amounts of cash to banks or other businesses, bodily threats, or a member of the court system.
“I have a license to carry a loaded firearm across the state,” Silvester said. “It is ridiculous that I have to wait another 10 days to pick up a new firearm when I’m standing there in the gun store lawfully carrying one the whole time.”
The “cooling off” period also affects gun collectors.
“As a collector, I submitted to a Live Scan background check and obtained a Certificate of Eligibility to Possess Firearms from the State of California at my own expense,” said Brandon Combs. “In the Internet era, where every California gun dealer has a computer connected directly to the State’s databases, there is no logical reason to force me to wait 10 days and make another trip simply because California doesn’t want to acknowledge the Certificate that it issued to me. I have registered guns, and I have the State telling me that I can possess guns, but for some reason I can’t exercise my constitutionally protected rights for another ten days? That’s insane.”
Currently California enforces some of the nation’s toughest gun laws and has banned numerous weapons that can be purchased legally in other states.
“This lawsuit seeks to prevent the infringement of gun owners’ rights and requests the 10 day ban on possessing firearms purchased not be applied to current gun owners who pass instant background checks,” Davis concluded.
A copy of the complaint and case filings can be downloaded at http://calgunsfoundation.org/resources/downloads/category/20-silvester-v-harris.html
© Copyright 2011 Kimberly Dvorak All Rights Reserved.
A developing trend in California courtrooms has purveyors of the Second Amendment up in arms- in order to protect oneself outside their domicile gun owners must pass muster with county Sheriff Departments, according to a federal judge.
Yesterday U.S. District Court Judge Morrison England in Sacramento, CA ruled that Yolo County Sheriff Ed Prieto indeed had the right to choose who qualifies for conceal carry gun permits. The judge explained there was nothing unlawful about requesting applicants to prove they have a reasonable need to carry a weapon outside their home.
The reasonable need is often referred to as “good moral character” and it gives Sheriff Departments a lot of latitude in the decision making process. Typically “good moral character” scenarios include courtroom prosecutors, businessmen who carry large sums of money, victims of “stalker-like crimes” and security-related employees.
Yolo County Sheriff Prieto, who has 43 years of law enforcement experience, commented on the decision made in the Sacramento courtroom yesterday. “I think the judge made a good decision. The Second Amendment really does not give anybody the right to conceal carry a weapon. It really comes down to the safety of our community.”
Judge England, who was appointed by President George W. Bush, also pointed out in his 16-page decision that there is a California law already on the books that allows most California residents to carry an unloaded weapon with them at all times (excluding school zones), and that these firearms could quickly be loaded to use in case of an emergency.
This was little consolation to gun rights groups who hired Alan Gura, a Second Amendment attorney from Alexandria, VA who focuses on these types of cases. Gura plans to appeal Judge England’s ruling to the very liberal 9th U.S. Circuit Court of Appeals located in San Francisco, CA.
“Obviously it doesn’t do anyone any good to walk around with an unloaded gun, especially in public, because that’s just an advertisement for a criminal to take it off your person,” Gura explained. “They’re not going to have time to start loading their handgun. Criminal events usually play out more quickly than that.”
However the judge disagreed with Gura’s arguments. “Regulating concealed firearms is an essential part of Yolo County’s efforts to maintain public safety and prevent both gun-related crime and, most importantly, the death of its citizens. Yolo County’s policy is more than rationally related to these legitimate government goals,” England said in his ruling.
Also there is a substantial effort underway in Sacramento to reverse the “open carry” law in California. Democrat State Assemblyman, La Canada Flintridge introduced AB144, which bans residents from openly carrying a firearm, passed yesterday in the State Assembly. If signed by liberal Democratic Gov. Jerry Brown, gun owners would completely lose their ability to carry firearms outside their homes.
This hasn’t been the first effort to ban “open carry” weapons, last year Democrat State Assemblywoman Lori Saldana’s bill AD-76 failed to pass during a lame duck session.
Reacting to yesterday’s ruling, Marc Halcon, President of California Association of Firearms Retailers put it this way; “One of the most fundamental rights we have as citizens of this country is the right to feel safe and secure, not only in our homes but within our community. Although I question the logic of carrying an ‘unloaded’ firearm, I understand the concern of some of our lawmakers. This entire situation would be solved in a matter of minutes if the State of California would follow the vast majority of the other states and allow for the ‘shall issue’ provision for law abiding citizens to carry a concealed weapon. A secondary benefit would be an increase in State revenue generated by the fees and tax’s associated with allowing a ‘shall issue’ licensing process for law abiding citizens.”
More cases are working their way through federal courts
There is also another conceal carry gun case making its way through the California court system.
The crux of this case centers on the “shall issue” versus the “may issue” status that the state of California doesn’t adhere to equally throughout the state’s 58 counties. The lead plaintiff, Edward Peruta argues he has been wrongfully declined a Conceal Carry Weapon (CCW) permit in San Diego. Peruta says that he has permits to openly carry a concealed firearm in three other states and has several letters of recommendations as well as other information to provide “good cause” that was rejected by the San Diego Sheriff Department CCW investigation.
“Every resident, taxpayer and voter of San Diego County should be outraged that the Sheriff offers the right to bear arms for “SELF DEFENSE” to the prominent, wealthy and/or well connected while refusing the same right to the average everyday hard-working law abiding residents of San Diego County,” Peruta said.
The end result was similar to the Yolo County lawsuit and Southern District of California Judge Erma Gonzalez ruled against the gun-rights groups and Peruta.
“The Second Amendment law is currently like a child who is learning to walk and the issue remains unsettled across the country and it will take time for all the cases to work their way through the courts in order to be settled,” Peruta said.
At the San Diego hearing in Federal Court, San Diego Attorney Paul Neuharth together with the Los Angeles County firm of Attorney Chuck Michel threw words out like “licensing schemes” and “preferential treatment” as to how the County of San Diego conducts business with regards to the CCW application process.
Read the complete ruling here; 16-page ruling
For more stories; http://www.examiner.com/county-political-buzz-in-san-diego/
© Copyright 2011 Kimberly Dvorak All Rights Reserved.
Continue reading on Examiner.com: California conceal carry gun rights case dealt another setback – San Diego County Political Buzz | Examiner.com http://www.examiner.com/county-political-buzz-in-san-diego/california-conceal-carry-gun-rights-case-dealt-another-setback#ixzz1MeAEwFNs
Supreme Court has taken up a Second Amendment case, the outcome will surely create changes in the way Americans are allowed to acquire firearms, what rules will be in play and what role cities and states will have in the right to own a gun.
In part the Second Amendment reads; a well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Not only was this right given to all citizens of the U.S. for self-defense, but also the founding fathers wanted its citizenry to never fear their government.
The case currently before the High Court, McDonald verses Chicago, will take on the issue that states can regulate the ownership of handguns. McDonald a retired military man was stripped of his rights to own a handgun because Chicago passed stringent gun ownership rules. He is fighting back.
“It’s a basic question,” says the plaintiff Otis McDonald. “If these 12-13-year-olds can walk up and down the street with guns, I should be able to own one. I’ve paid my taxes and I have worked all my life. I have been open to governments and I’ve served my country in the Army. Why is it I can’t own a hand gun to protect my home?”
Many say this case has been a controversial issue the Supreme Court has not wanted to open for more than 200 years, but the pendulum of change is swinging in America.
The stakes are high and anyway you look at it the rules in the second Amendment will change.
Think of it as building a house. First you have to dig a hole, this is what the Heller case did when it ruled; “The Court recognized in the Heller case that the Second Amendment protects an individual right of a U.S. citizen in a federal enclave, so it is no stretch that a U.S. citizen would enjoy that same right anywhere in the United States,” according to Gun Owners of America who follow gun rights cases.
This case set up the pouring of the cement phase or foundation phase that now resides in the Supreme Court’s hands known as the McDonald case. All that is left is the architectural design or what the house will look like. The Court will first determine if the rights exist and then they will set up the regulations gun owners and states must abide by.
Activists behind McDonald explain that the reason they are pushing the Supreme Court to overrule another case called Slaughter-House has nothing to do with guns. Instead, these activists want to advance a libertarian agenda, in which federal judges could sit in judgment of state and local laws involving labor, employment, business regulations and other economic issues having nothing to do with guns.
Currently the Constitution is silent on these matters and Court members could be ruling in the favor of activists who want the courts to start declaring constitutional rights against such things, therefore giving federal judges the power to strike down laws of this sort that the judges don’t agree with.
While most agree the make up of the court assures at least a 5-4 ruling in favor of McDonald, Clayton Cramer, an expert in gun laws says this issue will come down to the 14th Amendment.
The dilemma with this approach is it could endanger gun rights. Most attorneys agree the narrower your focus when arguing a case, the Justices are more likely to rule in your favor. The consensus with the McDonald case is to keep the focus on the gun ownership issue.
Groups like the National Rifle Association will argue this is about the right to keep and bear arms “This is quite a lot to swallow under the best of circumstances. In a situation such as this, where the narrowest argument you can make is still a broad one with serious ramifications, pushing a much larger agenda than necessary starts to run the risk that the Court will choke on the whole thing.”
For this reason, the NRA is working hard to keep the focus of this case where it belongs, on gun rights. Whether the Second Amendment gives 300 million Americans a right against state or local laws that ban guns is a monumentally important issue for personal liberty, and so the NRA’s argument presents, only that issue before the justices.
Their argument stresses that the Court should apply (or “incorporate”) the Second Amendment to the states through the 14th Amendment Due Process Clause. Although this approach is beset with problems from a conservative legal perspective, it’s nonetheless how the Court has always tackled these issues and so it becomes the safest route for extending gun rights to the states.
Yet the Constitutional Accountability Center, a liberal advocacy group with ties to members of the Obama administration, is urging the justices to strike down the Illinois gun bans. The center says the case allows the court to correct a poor constitutional interpretation from the late 19th century and that establishing a federal right to self-defense could open the door to progressive readings of individual rights in future cases.
The attorney arguing McDonald’s case is Alan Gura, a conservative, and he is aiming to have the Supreme Court strike down the Illinois gun ban. He also says that a victory in gun cases could pave the way for future rulings that will bolster property rights and limit government power.
“This case will restore those (gun rights) to all with certain caveats,” Gura said in a Fox News interview. “The Bill of Rights protects an individual rights in this country.”
Paul Helmke, President of the Brady Center to Prevent Gun Violence, observed the oral argument in the case of McDonald v. City of Chicago. He said, “In the two years since the Heller decision, courts throughout the country have rejected the arguments of gun criminals and the gun lobby that the Second Amendment enshrines their ‘any gun, anywhere, any time’ agenda.”
“The arguments seemed to indicate a consensus around the Court’s strong language in the Heller decision that reasonable restrictions on gun ownership are ‘presumptively lawful,” Helmke said. “The Supreme Court should maintain the limitations it set out in the Heller decision and defer to the judgments of our elected officials in protecting the public from gun violence.”
Taking the McDonald case one step further is Denis Henigan of the Brady Center. “I think there is broad legislative authority to reduce the risk from the right to own a gun and we hope the Court gives similar assurances in this case.”
Gura fired back and said, “The Supreme Court is a court of law, not a social science experiment and under the laws and the right in our Constitution is the right to keep and bear arms.”
An ardent supporter on the bench is Justice Scalia who wrote the majority opinion that invalidated Washington D.C.’s handgun ban, however he went a step further an stated that the Second Amendment, “if properly understood, there is no limitation upon arms control by the states.”
Justice Scalia wrote a book in 1997 titled, “A Matter of Interpretation,” where he viewed “the Second Amendment as a guarantee that the federal government would not interfere with the right of the people to keep and bear arms.”
Now the McDonald case before the court sees the city of Chicago and their claims contrary to the Second Amendment and that it does limit arms control by the states.
Gun Owners of America argues that the U.S. Supreme Court should recognize a robust individual right to keep and bear arms that prohibits states and their subdivisions from infringing on that right. GOA urges the Court to guarantee citizens the right to keep and bear arms as a “privilege or immunity” of national citizenship under the Privileges and Immunities (P&I) clause of the 14th Amendment.
GOA also urged the Court to avoid reliance on the 14th Amendment’s Due Process Clause and its so-called Incorporation Doctrine. The Incorporation Doctrine was invented by judges manipulating the Due Process clause, but P&I is based on the actual words of the Constitution.
The Court has already recognized in the Heller case that the Second Amendment protects an individual right of a U.S. citizen in a federal enclave, so it is no stretch that a U.S. citizen would enjoy that same right anywhere in the United States. P&I will protect the rights of citizens who constitute the government – the same persons called “the people” in the Second Amendment, GOA contends.
Moreover, P&I would not be subject to erosion over time as justices on the court change, as has proven true with Due Process incorporation. There is little risk that the Supreme Court would later use the P&I clause to create new constitutional rights, such as for health or housing. If the McDonald decision relies on the Due Process clause, the result could be a weakening of the right to keep and bear arms as well as the invention of new rights – something that has already been done using that clause.
The NRA is also actively involved in the Supreme Court case and was allowed to present their argument for 10 of the 30 minutes to the Justices.
“As a party to the case, NRA argued before the U.S. Supreme Court today that the Second Amendment protects the fundamental, individual right to keep and bear arms no matter in which city or state one resides. We are optimistic the Court will hold that the Second Amendment applies to state and local governments through the Fourteenth Amendment and that handgun bans, like those in the City of Chicago and the Village of Oak Park, are unconstitutional under any standard of judicial review,” said Wayne LaPierre and Chris Cox of the NRA.
“This view is shared by a bipartisan group of 309 members of Congress from both chambers, 38 state attorneys general and the majority of the American people. We look forward to the decision by the Court later this Term.”
Just as history proves the United States is an ever-evolving country and through political parties the justice system moves like a pendulum. The economic upheaval has caused many to get back to basics. It appears that the pendulum is swinging from the left to the right.
One thing is certain in uncertain times Americans want the right to protect themselves. The McDonald case is 200 years in the making and the decision facing the Supreme Court is the fact that it is either a federal government right or a state’s right to apply the right to own a gun.
The rules de jour often embedded in our leaders are based on personal political beliefs rather than the personal individual needs of citizens.
There is now doubt America faces a different “wild west” scenario, but there is also no doubt the founding fathers made is very clear – Americans have the right to keep and bear arms.
This is part one in a series.
There are many reasons applicants are denied the right to carry a hand gun, prior brushes with the law, inconsistent legal records or lack of need, however in San Diego it appears if they just don’t like you your conceal carry permit application it is stamped – DENIED.
It’s true California is a liberal state and as such keeps a close eye on the state’s gun owners, however, San Diego takes exception to what constitutes residency in order to prevent gun owners from legally carrying their weapon. As a result, Edward Peruta has filed a lawsuit against San Diego County and Sheriff William Gore – leveling some precedent setting charges.
Peruta, a Connecticut native, owns home in several states (including California), calls himself a liberal Democrat and is a firm believer in the Second Amendment and finds it odd that he is having so many troubles in San Diego.
“I guess you could say my wife sums it up best, California seems to follow the ‘rules de jour,’” Peruta said.
His San Diego saga began when he and his wife decided to take their home on the road, a motor home that is. When the Peruta’s made the decision to travel across the country law enforcement officers encouraged him to carry a firearm for protection.
“It seemed plausible enough, we were traveling in a vehicle with only one exit, carrying quite a bit of cash and would pass through areas where cell phone coverage would be spotty,” Peruta explained. “So I naturally looked into what the process was for states around the country and put together a piecemeal gun owner application process in the states I owned homes. I wanted to make sure I was covered wherever I traveled.”
His logic garnered him three conceal carry permits in the states of Connecticut, Florida and Utah. In each state he went through the application process that included references and background checks. Smooth sailing for Peruta in other states would not meet with the same result in San Diego.
“I knew there was going to be trouble when I turned in my application at the San Diego Sheriff’s office and they denied me before they even took my application! I was stunned by their lack of candor,” Peruta explains.
According to the San Diego Sheriff’s paperwork they received Peruta’s application and he was interviewed by Donna Burns, a licensed supervisor on November 17, 2008. During the initial phase of the CCW application process Burns advised him he did not meet the criteria for a CCW license and was denied the ability to turn in an application.
“I wasn’t happy about the decision and returned in December to talk to Blanca Pelowitz, a manager, who concurred with her staff that I did not qualify to even hand in my application for processing,” he said.
At this point his career in journalism kicked in and he insisted the Sheriff’s Department take his application, his references and required fees.
In paperwork obtained from Peruta, the San Diego Sheriff ‘s office had this to say. “Despite the fact Peruta was told he did not meet the criteria for a CCW license Peruta insisted this office accept his application. Peruta was advised that no monies would be refunded once his application was accepted.”
Houston we have a problem, collecting 100 percent of the fees and not refunding money is against California Penal Code.
This is where the San Diego Sheriff Department ‘s claim begins to unravel. The psychic abilities of the San Diego Sheriff’s office are amazing. Apparently they can predict which CCW applications will be approved and those that won’t without reading and checking completed CCW applications.
One of the main sticking points for San Diego Sheriff employees is the fact Peruta lives in his motor home at Campland on the Bay in San Diego, from November 15 to April 15 each year. The department balks at Peruta’s residence even though he has presented paperwork for the last two years, fulfilling the residency requirement the Sheriff Department claims is mandatory for a successful application.
The lawsuit Peruta filed will tackle the residency issue San Diego is claiming as the leading indicator for denial of his CCW permit. The thorough process the SD Sheriff’s office says they completed did not include contacting the plaintiff’s eight character references, including three law enforcement officers, disregarding the three states that have issued CCW permits to Peruta already and looking at the “good cause” aspects in connected to the CCW submitted application.
Wording contained in the Second Amendment lawsuit stipulated Peruta provided all the required information necessary for a successful application. Mr. Peruta also turned in a completed and certified National Rifles Association (NRA) Basic Pistol Safety Course, an eight-hour Firearms Safety Proficiency Certificate, Good Cause and Durational Residency in San Diego, yet he was still turned down.
San Diego Sheriff candidate, Jay LaSuer, who is running against Gore in the upcoming election, has made many statements about the CCW process and has openly endorsed a “shall issue” stance. “If a person can pass a background check and is a law abiding citizen they ‘shall’ receive a CCW license,” LaSuer explains. “When you have a Sheriff like Gore who doesn’t understand the law, how can you expect him to apply it?”
The County and Sheriff’s Department have requested the case be dismissed, however the law remains on Peruta’s side and he is prepared to take this all the way. “I’ve discussed this with my attorney and we will take it to the Supreme Court if we need to,” he candidly said.
Looking down the road Peruta remains confident. “I never thought of anything but winning, and often think of the people who don’t know how to litigate or don’t have the personal funds or funding sources to solve their problems. I wasn’t looking for a legal fight with San Diego but couldn’t walk away given the facts and circumstances. I have the facts, knowledge, finances and legal resources to address this issue.”
What does Peruta want to happen as a result of the lawsuit? He hopes the staff of the San Diego Sheriff’s Department becomes educated, by court order or agreement if need be in how to read and implement provisions of the California Penal Code and make decisions based on the exact wording contained in the state law. He says it’s important for public employees regardless of the public agency they work for to listen, and treat individuals with the respect they deserve.
The continued disconnect between ‘real America’ and ‘bureaucratic America’ creates an unnecessary barrier for Joe taxpayer the result often ends with a lawsuit. “I would like public employees to stop adding or using words which are not contained in the law when making decisions,” Peruta explains.
Looking to change the way the San Diego Sheriff’s office does business is priority number one for Peruta, but the fact that many California residents don’t understand the law as it is written means they rely on public officials to be truthful during the application process.
“I believe that if this case is not settled and finds its way for whatever reason to a higher court, it has the potential to impact the right to bear arms across the country for countless law abiding individuals. I’d like to believe that this case will clarify and correct the current pattern of abuse which exists in the State of California regarding CCW licenses,” Peruta says.
At a minimum, Peruta would like to obtain and possess a government issued CCW permit, to exercise his second amendment right to defend himself and family members if necessary in California and receive compensation for the substantial amount of legal fees this case is sure to generate.
The San Diego Sheriff’s Department was contacted to respond to this lawsuit and have refused to respond.
For more stories; http://www.examiner.com/x-10317-San-Diego-County-Political-Buzz-Examiner
California will now require a thumb print to purchase ammunition and in Tijuana the drug cartel will relieve you of your thumb for choosing the wrong side.
Border violence continues to escalate along the San Diego/Mexico border with Mexican official Rogelio Sanchez being kidnapped by the Mexican drug cartel. Last week his lifeless body was left to hang on a busy overpass in Tijuana, naked with his genitalia cut off.
Right up the street in San Diego, residents will have to jump through another hoop to protect their families from growing violence.
Phoenix Arizona lays claim to the second highest kidnapping rate in the world behind Mexico City and there is growing speculation that the kidnapping rate is growing in the county of San Diego.
The cost of illegal immigration has more than financial costs. Currently the state expends in the neighborhood of $10 billion per year, the criminal element adds a whole new dynamic to this equation.
So why make it harder for the law-abiding gun owners to purchase ammunition? Why make it more costly for law enforcement officials to purchase ammunition to practice at the shooting range?
This is just another hit in a long list of revenue killer laws that intend to drive California into the ground. What will stop residents from purchasing bullets and providing tax revenue in Arizona, Nevada and Oregon?
What will stop criminals from owning and loading their weapons?
AB732 was penned by Assemblyman Kevin de Leon, D-Los Angeles and bans direct shipping to Californians who buy bullets via mail order or over the Internet as well.
Now lawful gun owners will have to pick up their bullets at a licensed handgun ammunition dealer, and file paperwork similar to the way guns are bought and sold.
The legislation will not require a waiting period like firearms, however all handgun ammunition must be stored behind the counters.
Along with a thumb print, ammo purchasers will also need to provide photo identification.
The information obtained by the store owner will now be kept on file and made available any law enforcement agencies.
For more stories; http://www.examiner.com/x-10317-San-Diego-County-Political-Buzz-Examine
Another attack on the Second Amendment in California could result is less ammunition for gun owners and more paperwork for gun retailers. California’s AB 962 legislation has been introduced by Democrat Assembly member Kevin de Leon of Los Angeles.
Gun owners find California’s AB 962 a serious threat to the right’s of law-abiding gun owners in the state. Assemblyman de Leon couldn’t disagree more. “These simple rules governing handgun ammunition will protect police officers, families and children from deadly gun violence,” he said.
Since March the bill has undergone some changes. One such provision within the bill that has been removed would have forced retailers to be licensed in order to sell ammunition. Although this provision was stripped, many gun owners in the state feel they must always remain alert or their guns will be taken away altogether.
California has quickly become known as a state that runs business, well, out of business. Regulations, taxes and unfriendly legislators in Sacramento have run the once Golden State into the Pacific Ocean.
That being said, AB 962 still contains rules that gun owners don’t appreciate. First, retail store owners will have to make the ammunition inaccessible from purchasers. The legislation requires individuals buying ammunition to be fingerprinted at the time of the sale.
AB 962 would also mandate that ammunition dealers keep these records and have them available for inspection by the Department of Justice. Gun owners believe this may cause some dealers to stop selling ammunition altogether.
Finally, mail order ammunition sales will be banned in California under AB 962.
Gun-rights activists encourage all responsible gun owners to contact their state representatives to voice their concern regarding this new anti-gun bill.
For more information on AB 962; democrats.assembly.ca.gov/members/a45/press/20090707AD45PR01.htm
For more stories;www.examiner.com/x-10317-San-Diego-County-Political-Buzz-Examiner