Gun Magazine Confiscation Stopped In California.

A law allowing for the confiscation of gun magazines with over ten bullet capacity has been deemed unConstitutional by the United States District Court for the Southern District of California.

Prop 63 had been passed and required owners of “high capacity magazines” turn them in, modify them to not hold as many rounds, or send the magazines to another state.

According to the Volokh Conspiracy, the opinion by Judge Roger T. Benitez is solid and addresses many issues.

Previously, Judge Benitez had issued a preliminary injunction against the confiscation law, and the preliminary injunction was upheld by the Ninth Circuit, as discussed in this post. Today’s decision follows cross-motions for summary judgment, and makes the injunction permanent. The next step in Duncan v. Becerra will be an appeal to the Ninth Circuit by California Attorney General Xavier Becerra.

The 86-page opinion is the most thorough judicial analysis thus far of the magazine ban question. The opinion is founded on a careful analysis of the record, and thus provides an excellent basis for future appellate review on the merits, perhaps one day by the U.S. Supreme Court.

Covering all bases, the opinion analyzes the confiscation law under a variety of standards of review. First is the standard favored by Judge Benitez, what he calls “The Supreme Court’s Simple Heller Test.” In short, magazines over 10 rounds are plainly “in common use” “for lawful purposes like self-defense.” Ergo, they may not be confiscated. The analysis is similar to then-Judge Kavanaugh’s dissenting opinion in the 2011 Heller II case in the D.C. Circuit.

The Duncan opinion then examines the confiscation statute under various levels of “heightened scrutiny”: categorical invalidation, strict scrutiny, and intermediate scrutiny. The confiscation statute is found unconstitutional under each of these standards.

Under the various heightened scrutiny tests, the government bears the burden of proof. The opinion explains in depth why the evidence put forward by the California Attorney General does not come close to carrying that burden. The core problem is that the Attorney General’s evidence, which relies heavily on expert declarations, is speculative, shoddy, or unrelated to the statute at issue.

“Before I started researching gun deaths, gun-control policy used to frustrate me…..”

Leah Libresco

Before I started researching gun deaths, gun-control policy used to frustrate me.

Those are words of the first line of an article written by Leah Libresco in the Washington Post entitled, “I used to think gun control was the answer. My research told me otherwise.

She writes:

Before I started researching gun deaths, gun-control policy used to frustrate me. I wished the National Rifle Association would stop blocking common-sense gun-control reforms such as banning assault weapons, restricting silencers, shrinking magazine sizes and all the other measures that could make guns less deadly.

Then, my colleagues and I at FiveThirtyEight spent three months analyzing all 33,000 lives ended by guns each year in the United States, and I wound up frustrated in a whole new way. We looked at what interventions might have saved those people, and the case for the policies I’d lobbied for crumbled when I examined the evidence. The best ideas left standing were narrowly tailored interventions to protect subtypes of potential victims, not broad attempts to limit the lethality of guns.

Wait, how can this be? A writer who had an opinion and then sought to verify that opinion? When the facts didn’t match her beliefs, she changed her thinking?

As my co-workers and I kept looking at the data, it seemed less and less clear that one broad gun-control restriction could make a big difference. Two-thirds of gun deaths in the United States every year are suicides. Almost no proposed restriction would make it meaningfully harder for people with guns on hand to use them. I couldn’t even answer my most desperate question: If I had a friend who had guns in his home and a history of suicide attempts, was there anything I could do that would help?

However, the next-largest set of gun deaths — 1 in 5 — were young men aged 15 to 34, killed in homicides. These men were most likely to die at the hands of other young men, often related to gang loyalties or other street violence. And the last notable group of similar deaths was the 1,700 women murdered per year, usually as the result of domestic violence. Far more people were killed in these ways than in mass-shooting incidents, but few of the popularly floated policies were tailored to serve them.

Is this woman insane? How dare she use common sense!

But One Life.

The other day, President Obama gave a speech outlining his proposals for gun control. Often ignoring the law and the Constitution, he plowed ahead to the point where he started to tear up and cry. He said that he got emotional when he thinks of all the people killed by gun violence. People have commented on this and frankly, we were disturbed by the optics of the tears.

It was darned near impossible for us to imagine George Bush crying after 3000 Americans lost their lives on 9/11. It it impossible to think of Johnson crying after the assignation of John F. Kennedy. It is difficult to imagine Kennedy himself crying in public. We certainly did not see Eisenhower cry during the Korean conflict. There was no wavering in FDR’s voice as he asked Congress to declare war on Japan. Even Abraham Lincoln, who seemed to allow the deaths of every soldier in the North and South to rip apart his heart and soul never shed a tear.

It is not something that we expect of our leaders.

That’s our opinion on how it looked, and you are free to disagree with that opinion.

AF Branco of Comically Incorrect, takes a more direct approach to lack of logic and critical thinking behind those tears. As usual, he does it with devastating effectiveness.


“Attempted Possession Of Unlawful Ammunition?”

Washington-Map-Shells-Lamp-Cropped-ROH The story of Washington D.C. resident Mark Witaschek goes back to the summer of 2012. Emily Miller of the Washington Post gives a brief history:

Mr. Witaschek, a successful financial adviser with no criminal history, is the first known case of a citizen being prosecuted in D.C. for inoperable ammunition. Washington police and prosecutors have spent a year and a half trying to nail him for the possession of so-called unregistered ammunition.

A hunter and gun owner, Mr. Witaschek has always kept his firearms at his sister’s house in Virginia. If convicted, he

faces a year in jail and a $1,000 fine for having a single, inoperable shotgun shell in his home. The jury trial starts on Feb. 11.

The Metropolitan Police Department raided Mr. Witaschek’s rented Georgetown house twice in the summer of 2012 on the word of his angry ex-wife.

The first raid was done without a proper search warrant. The police found a box of rifle cartridges found in a closet but because the search was illegal, as evidence the box of cartridges was thrown out.

The police returned for a second search and this time, armed with a warrant, they found an antique Colt revolver (which is legal in the District of Columbia,) a holster (also legal), a shotgun shell that had misfired and was inoperable, and a box of muzzle loading sabots.


Sabots are plastic covers that make it easier to push the bullet into a muzzleloader gun. There is no propellent on the bullet or sabot — because the gunpowder is separated — so it is not clear that it can be categorized as ammunition and thus only registered gun owners can possess it.

The 12 gauge shotgun shell was a remnant of a hunt in which Witaschek had participated. At trial, Witaschek was put on the stand:

Defense attorney Howard X. McEachern asked his client to explain how he came to have a shotgun shell on his desk

at his home in Georgetown. Mr. Witaschek explained that he kept the shotgun shell as a “souvenir” from a hunting trip in southern Virginia with friends in 2006.

He said that as a deer approached, “I raised the shotgun, took aim, fired and nothing happened.” He looked up and saw the deer run straight into a tree.

Gun Ordinance In Oregon.

Ah yes, the effective use of satire.

A resident of Ashland, Oregon has so perfectly mocked hastily written, knee jerk gun control laws that we just had to share this video.

In the video, a citizen of Ashland, who seems to be of English descent based on his accent, mocks knee jerk gun control laws to the point of absurdity. How he kept a straight face the entire time is beyond me.

The citizen was speaking in regards to proposed gun control laws being discussed by the city. Oregon does permit cities to pass their own gun control laws to a certain extent.

A citizen speaks to the City Council in opposition to a local “loaded carry” ban ordinance one of the Councilors has brought for consideration. No facts, figures, statistics, or other evidence of any existing problem has been presented by the sponsoring Councilor. She has however, made emotional pleas to “protect the children”, dropped the “Sandy Hook” tragedy as supporting gun regulation, and other such bullshit.

She actually said “I know there are statistics out there but I didn’t look them up”. WTF

Meanwhile, the Chief of Police has stated that the town has NEVER had an incident involving an open carrier. Hmmmmm no problem? Why an ordinance then? Oh yeah….to FEEL good.

This citizen uses satire to point out the idiocy of the proposed ordinance.

And then there is this video that appeared on FoxNews several years ago:

Pastry Appeal Denied.

Pastry-Gun-ROH You may remember the case of Josh Welch, a second grader attending Park Elementary School near Baltimore, Maryland. Josh was suspended last year for allegedly biting parts off a pastry (a Pop Tart or generic brand) leaving the remaining pastry in the shape of a gun.

The pastry “gun” was a rectangular, strawberry-filled bar, akin to a Pop-Tart, that the second-grader had tried to nibble into the shape of a mountain Friday morning, but then found it looked more like a gun, [father] B.J. Welch said.

Welch said an assistant principal at Park Elementary School told him that his son pointed the pastry at a classmate — though the child maintains he pointed it at the ceiling.

“In my eyes, it’s irrelevant; I don’t care who he pointed it at,” Welch said. “It was harmless. It was a Danish.”

Teachers and administrators freaked out, and suspended Josh, who was 7 years old at the time, for two days.

In the eyes of many, the incident shows the folly of so called “zero tolerance” rules in schools. Such rules equate a pastry or a drawing of a gun with the real thing. The school administrators were also accused of a lack of common sense. After all, if you want children to learn, then simply say to the child, “we don’t do that here.” Instead, the child is sent home and suspended for a pastry.

We aren’t too thrilled with the NRA either, who gave Josh a lifetime membership. To us, that doesn’t solve the problem of the people at the school who made the decision to suspend Josh to begin with and tries to make a 7 year old a poster child against gun control.

There are times when you just need to let kids be kids, an idea that Josh himself understands.

Everyone keeps asking me why I did it,” Josh said. “I don’t know why I did it … I wish people would stop asking me about it. It’ll probably go on for 45 years or something.”

One would think after all the rhetoric and all the back and forth, cooler heads would prevail and the incident would be wiped from the records of this 7 year old.

One would be wrong.

The Face Of A New “Criminal.”

Gregory-Dean-Jr-ROH To the left is the face of one of New York’s latest people charged with a crime.

Gregory Dean, Jr., is 31 years old and from Hopewell Junction in New Lebanon N.Y. On March 12, 2013, Dean was stopped by the police for having the light over his license plate out. While being interviewed by the police, the officer noticed there was a handgun on the seat which was partially covered by a sweatshirt.

The officer took the gun, which was legally owned and possessed by Dean, and then examined the magazine which contained nine rounds of ammunition – two more than allowed by New York’s SAFE Act (Secure Ammunition and Firearms Enforcement Act of 2013), signed Governor Andrew M. Cuomo within an hour after it was passed by the New York legislature.

Dean was arrested and charged.

Police charged Dean with unlawful possession of certain ammunition feeding devices, third-degree aggravated unlicensed operation,both misdemeanors, plus vehicle infractions, police said.

He was released without bail and ordered to appear May 23 in New Lebanon Justice Court.

Another criminal off the street.

Of course, the problem is that Dean did not do anything wrong Constitutionally. The seven round limit on the magazine size has lawyers chomping at the bit for a Constitutional challenge as it made far too many weapons illegal (thereby violating the “reasonable” standard when restricting rights) and also that the law is “ex post facto,” meaning it made legal acts prior to the law’s passage illegal.

Proof That A Vacuum Can Exist – Rep. Carolyn Maloney.

Rep-Carolyn-Maloney---ROH Representative Carolyn Maloney (D-NY) appeared on MSNBC’s “Jansing and Co.” Monday and proved that a true vacuum can exist – between her ears.

When discussing the Boston Bombers, Maloney said:

“(The bomber,) as we know now, was on the terrorist watch list, so we know a gun check would stop him, if there was a background check,” she said. “As it stands now, (the bomber) … or the next terrorist can go to any gun show and buy a hundred round magazine, they can buy all of the assault weapons they want, no questions asked.” (as per our policy of not advertising the names of terrorists and mass murders here at ROH, we have substituted “the bomber” for the person’s name

The problem is that Maloney is wrong. She doesn’t know what she is talking about.

The mere fact you are on a terrorist watch list alone would not prevent you from purchasing firearm,” said Dale Roberts, local lawyer who teaches firearms law for the Missouri Bar.

The 2nd Amendment right can only be denied for certain reasons such as being convicted of a crime or having a mental health record. “So if you are on the terrorist watch list and you have one of those disqualifications, certainly that would stop you,” said Roberts.

According to NPR, 90 percent of the people on the list between 2004-2010 were able to buy guns and explosives. Currently the federal government doesn’t share the watch list with the gun application list. Should the process be changed?

“I have mixed feelings about it. If you have been investigated and you are on the watch list for good reason, then I kind of think they should scrutinize that. But, there’s the possibility you are on the watch list accidentally or incorrectly,” said Roberts.

Being on the terroist “watchlist” doesn’t mean you have been convicted of a crime. In fact, there are people on the list that do not deserve to be on the list because the name has been added in error. One such person was the late Senator Ted Kennedy:

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