H222 (Idaho Campus Carry) Senate Hearing

During the hearing on H222 one senator suggested that campus carry was an “intellectual exercise”.


This bill was not an intellectual exercise for any of the people who supported it. I do not believe that I can explain our motivations better than the following excerpt from the case of State v. Payne, 146 Idaho 548, 199 P.3d 123 (Idaho 2008) (emphasis added):



I. FACTUAL AND PROCEDURAL BACKGROUND


The district court sentenced Payne to death for the murder of Samantha Maher after a jury found him guilty of kidnapping, raping, robbing, and murdering Maher.


On July 6, 2000, Payne abducted Maher from Julia Davis Park in Boise. That morning, he left his home as if to go to work, even kissing his wife goodbye, but instead drove to the park. Payne had with him a loaded .22 Ruger and several recent purchases: handcuffs, latex gloves, detailed maps and atlases of Oregon, and camping gear. Payne approached Maher around 10:15 that morning as she was arriving for her class at Boise State University. Carrying the handgun, Payne forced Maher into the front seat of her car. He then handcuffed her wrists and drove her car to an unknown location. After sexually assaulting her, Payne raped Maher, leaving bruises, cuts and scrapes on her face, back, and buttocks. After the rape, Payne placed the handgun at the back of Maher’s head and shot her. Payne then placed Maher’s body in the back seat of her car and drove to his rented home, a former dairy farm, near Nampa. He disposed of her body by dumping it in a concrete drainage tank containing water and debris near one of the barns on the property. He went into his home, ate some left-over pizza, and left a note under a bed pillow for his wife. He took Maher’s keys and purse containing her credit cards and drove to the Oregon coast and then on to Eugene, Oregon the next day.

Prosecutors Must Produce Witness Testimony to Prove Firearm Registration

Via email from Michel & Associates, P.C. Attorneys at Law:

The California Court of Appeals has ruled that handgun registration information cannot be admitted into evidence at trial without accompanying witness testimony and an opportunity for a defense attorney to cross-examine that witness. People v. Sanchez (2011 DJ DAR 4269; DJ, 3/24/11; C/A 6th). This is good news for firearm owners.
 
Mr. Sanchez was charged with carrying a concealed handgun in a vehicle without a permit. The handgun was loaded, and was allegedly not registered. Under Penal Code section 12025(a)(1)/(b)(6), if an illegally concealed or loaded firearm is not registered then the criminal offense, which is usually a misdemeanor, can be charged as a much more serious felony. In the Sanchez case the District Attorney sought to prove that Sanchez’ firearm was not registered by trying to admit into evidence a certified document from the California Department of Justice stating the custodian of records had conducted “a diligent search of the Automated Firearms System… for the Firearm Ownership History of Jose Gonzalez Sanchez…” and that the “search revealed no record.” 2011 DJ DAR 4269; p. 11, 12. But the document was determined to be “testimonial” (i.e. ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact’). And testimonial evidence requires an actual witness to take the stand, provide the evidence to the court and jury and, most importantly, be cross-examined by the defendant’s attorney. 2011 DJ DAR 4269; p. 23.
 
What does all this mean for firearm owners?
 
Registration and permitting databases kept by the State are not always accurate. In fact, errors are common. A defendant should never accept a written declaration or document as evidence that a firearm was not properly registered, or that the defendant lacked the correct permit. Prosecutors should be held to their burden of proof and compelled to offer sworn witness testimony to the court and jury that the defendant did not properly register and/or possess the correct permit. Because the firearm registration system is subject to much criticism for inaccuracy,  prior to trial all government reports on the accuracy of the database should be subpoenaed, a database expert should be consulted, and a careful cross-examination should be prepared.
 
The offenses where this rule applies include carrying an unregistered loaded handgun (Penal Code section 12031(a)(1)/(2)(F)); possession of an unregistered concealed handgun (12025(a)(1)/(b)(6)); importation, sales, and/or possession of an “assault weapon” or “.50 BMG rifle” (12280(a), (b) and (c)); possession of a “destructive device” (12303); possession of one of the dangerous weapons listed in Penal Code section 12020(a)(1); importation and/or sales of large capacity magazines (12020(a)(2)); and possession of a “machinegun” (12220). There are other situations where the testimonial rule would apply as well.
 
Historically, registration and permitting documents like these had been allowed into evidence in court without the testimony of the preparer under the “business records” exception to the hearsay exclusion rule. The “business records” exception to the hearsay rule allowed out of court statements, in this case documents, if they were prepared in the ordinary course of one’s business. But the Supreme Court determined even if these were “business records” they were prepared for the purpose of trial, were testimonial, and therefore required the presence of a witness to testify. 129 S.Ct. at pp. 2538-2540.
 
The Sanchez decision follows two Supreme Court decisions establishing the law on the topic. In 2004, the United States Supreme Court declared that under the Sixth Amendment testimonial statements must be subject to cross examination at trial. Crawford v. Washington (2004) 541 U.S. 36. So if a statement is obtained outside of the courtroom for purposes of prosecution, the person who made the statement must be subject to cross-examination by the defense or the statement cannot be used as evidence. This holding was expanded in Melendez-Diaz v. Massachusetts ( (2009) 129 S.Ct. 2527). Under a Massachusetts state law, prosecutors were allowed to enter “certificates of analysis” to prove that an item was a “controlled substance” instead of having an actual person testify at trial. 129 S.Ct. at pp. 2530, 2531. The Supreme Court determined that this was unconstitutional according to the analysis in Crawford. In order to enter the information as evidence a witness would need to be present to testify to establish the illegality of the substance. 129 S.Ct. at p. 2532.
 
If facing charges for one or more of the previously mentioned offenses, gun owners should be sure that their attorney is aware of these Supreme Court rulings, as well as the Sanchez decision, and forces the prosecution to be held to their burden of proof and provide sworn witness testimony regarding registration and permitting documents.

Quote of the day—Christopher Burg

Carry laws are in place in every state except Wisconsin and Illinois. To this day no evidence can be brought forth demonstrating these laws have lead to an increase in violent crime but much evidence exists demonstrating these laws correlate with a lowering in violent crime. Yet the Brady Campaign continues to warn about the “blood in the streets” that’s inevitable when carry laws are passed. Why are these people still clinging to their failed belief that guns are the problem? Because not doing so will cause them to lose their Joyce Foundation funding and then they would have to go find real jobs.

The bottom line is carry permits have been nothing but beneficial. There hasn’t been a single valid argument made against passing liberalized (in the classical sense of the word) carry laws. So far no “blood in the streets” instance have occurred and frankly the laws have been on the books in some states for decades. You would think the anti-gunners would wake up and realize nothing they’ve said has come true and thus their argument has no weight. Then again for most anti-gunners their argument is emotional and logic can go take a flying fuck and a rolling doughnut.

Christopher Burg
March 31, 2011
Brady Campaign Whining About Illinois Possibly Lifting Their Carry Ban
[Yup!—Joe]

Quote of the day—Dennis Henigan

We must, once again, confine military firepower to the battlefield, by reinstating a ban on high-capacity ammo clips.  Why hasn’t such legislation long ago been enacted?

Usually such a question prompts a discussion of the NRA’s outsized political power – its resources, its tactics of threats and intimidation, and the commitment of its cadre of true believers.  Indeed, in recent years, the gun control issue has become so dominated by the question of whether stronger gun laws can be enacted, that it has left little room to address the real issue – whether stronger gun laws should be enacted.

Dennis Henigan
Brady Center Vice President
March 29, 2011
Jim and Sarah Brady: Beyond Politics to Idealism
[To answer the first question, because it is pointless. I have demonstrated that with my video. Furthermore the U.S. Department of Justice sponsored study said, “Should it be renewed, the ban’s effects on gun violence are likely to be small at best and perhaps too small for reliable measurement.”

What is he implying with the statement “outsized political power”? Does this mean he thinks there should be some regulation of political power in this country? Perhaps when blacks/Jews/homosexuals get a little too uppity they should be silenced or at least put in their place. Or is it just those people that exercise their specific enumerated right to keep and bear arms that should be put down when their numbers get a little too big for the politicians to ignore?

As to whether stronger gun laws should be enacted. I think that discussion was settled with the Heller and McDonald U.S. Supreme Court decisions. But like the KKK that didn’t really accept the results of the Civil War and the freeing of the slaves Henigan and Brady Campaign can’t seem to get past the fact that they lost.—Joe]

What can I do to fight evil and live in a just society?

I received an email from Tom Garrett, President, Society of Libertarian Entrepreneurs with a link to this video:

Nice stuff but when the government takes everything you have and gives it to the parasites you end up living the life of a slave and any improvements you make in your inner self are of little immediate value.

I would prefer to retire in Galt’s Gulch and let the system collapse but as Roberta X has pointed out, ‘We’re a bit short of Galts and Gulches an’ Midas Mulligan’s been in a Federal pen for a good long while now, accused of “redlining.”’

Quote of the day—Sandro Rettinger

I’ve decided I really am a heartless bastard about it, though. Screw the old people. Kill Social Security, Medicare, Medicaid entirely. “But we made a promise! We have to honor that!” people will screech. Fuck that noise. Old people made an agreement with the politicians of their day to pay in 5 cents on the dollar on the premise that I’d make up the difference now that they’re at an age where they’d like to retire. They’re welcome to find those politicians and demand their retirement of them. It’s not my problem. They counted on the promises of government when they could have fought to disband the whole fraud before it was catastrophic.

Sandro Rettinger
March 24, 2011
Comment to Our Economic Titanic,
[I’m inclined to at least partially agree with Sandro. There isn’t much else that can be done at this point.

But most of the politicians responsible are dead and there isn’t much money you can squeeze out of a dead politician. I suppose we could put a crater where their grave is and dump sewage into the hole. But as Heinlein pointed out such activities provide “only a momentary pleasure and is bound to get you talked about”.—Joe]

Quote of the day—Chuck Norris

One thing he definitely got wrong, however, was his arrogant statement that he “expanded” the rights of gun owners. The Bill of Rights is guaranteed and can’t be “expanded” by government, as it contains fundamental natural rights. Those rights can, however, be restricted by illegitimate government fiat, which is why the clear language of the Second Amendment prohibits even “infringement” upon it. But infringement is clearly on the agenda despite Obama’s rhetorical vacillations.

Chuck Norris
March 28, 2011
Obama triangulates on gun control
[Although I agree with the point that fundamental natural rights can’t be “expanded” it’s generally not a good idea to “look a gift horse in the mouth”. The time to use the point about rights cannot be expanded, only infringed, is during debates with those wishing to continue restricting our rights. I think this meme can be used to great effect in many circumstances. I think it is an important mindset shift that we need to adopt now that we are on the offensive. But I don’t think it is appropriate in this context.

We won minor victories on the guns on trains and in National Parks issues under the Obama administration. To the best of my knowledge they didn’t even put up a fight. For this President Obama deserves some cautious praise and perhaps a gentle, private, reminder on the nature of rights, not a public slap in the face.—Joe]

Dr. Joe’s cure can kill you

It turns out that Dr. Joe’s cure for everything isn’t sufficient by itself. In fact, it can kill you:

“Individuals who engage in sexual activity have a 2.7-fold increase in the risk of heart attack during a brief window of time – on the order of several hours – during and after the sexual activity, as compared to periods of time when the person is not having sex,” Dr. Paulus said in an e-mail.

Also of possible interest is that I know a woman who has had two different men “die in the saddle”, so to speak, with her.

I doubt that it is really connected but of even more interest is her name—Angel.

Posted in Sex

Boomershoot 2011 prep

Yesterday I delivered some more materials to the Taj Mahal, did some non explosive tests, took inventory, and did some maintenance.

One of the first things I did was test the new electric sifter. They claim a pound a minute for flour. If this translated to a 454 grams (one pound) per minute of KClO3 (potassium chlorate) then it would meet our needs. At our peak production rate we produce a single batch of explosives in 1.5 minutes. A single batch uses 400 grams of KClO3.

Last Thursday Ry and I had spent a considerable amount of time brainstorming how we might be able to make some modifications to it to “just let it run all day” so that even if it didn’t process the KClO3 as fast as the flour we could probably use it to our advantage because it could continue to run when we took breaks and production was slowed for other reasons.

I was very pleasantly surprised to find it would sift nearly 2 kg per minute. Although there might still be some modification which will enhance its utility I think it will be a very useful addition even unmodified.

The other items I delivered were five gallons of ethylene glycol (car antifreeze), the 50 pounds of I bought on Friday, and a few dozen plastic containers to be used as a new target.

I still have to deliver the 275 pound drum of KClO3 in my garage and the electrical generator, but those will have to wait until the ground is drier.

I knew the ground would be wet and soft and I was prepared to carry most of the items (not the 50 pound item) by hand or in my backpack the 0.4 of mile from the road.

I parked by the road inspected the ground out past the main target area by the tree line and figured that if I chose the correct path I could make it. I was correct but it was much slicker than I expected and I spent a considerable amount of the time sliding sideways through the mud as I tried to change directions to hit the drier and more firm ground.

After crossing the field used for shooting I proceeded across the waste land to the Taj Mahal. There is one area without a culvert where the ground gets very soft with water running over it during spring runoff. I hit that spot as fast as I dared. Immediately after crossing it you must make a turn or you will drive head on into some trees. I again spent considerably more time sideways that I would have liked but I made the turn and tried to continue up the hill to the Taj. No luck. The ground was greasy slick and my four wheel drive vehicle  barely clawed its way out of the trees. Had I not been able to get clear of the trees I probably would have been stuck. I would have not been able to turn around or get sufficient speed to make it back through the standing water.

Here are some pictures:

IMG_5087Web2011

IMG_5088Web2011

The last 100 feet probably took close to a full minute as the vehicle slowly continued to moved forward throwing mud and digging into the ground until if finally stopped in the snow.

Here is a picture after I made it back to the road:

IMG_5089Web2011

Coming back out was relatively uneventful in terms of risk of getting stuck but the muddy water splashed on the windshield which made for some interesting times as I tried to clear it and maintain sufficient control of the vehicle to keep it out of the swampy areas that would have meant an embarrassing call to my brother for help. He had advised me it was too wet to make it out there and back.

Some people are more equal than others

As near as I can determine these people believe that if you can convince your state legislators to assert rights guaranteed to the individual states by the Tenth Amendment you are not a legitimate part of the political process. Apparently only those people that advocate for the infringement of states rights are legitimate.

They haven’t publically proposed a punishment yet but I suspect they have thought about it.

Here is a sample:

The UA researchers identified what they termed the “Commerce Battering Ram Strategy,” a legal-political apparatus that “private lawmakers” – unelected individuals who thrust themselves into the political process – have developed to harness states’ legal powers in an attempt to break open federal laws.

“Using the Tenth Amendment as its core log, a Commerce Battering Ram mobilizes states to challenge the federal government,” Orbach said, adding that legislation and litigation are key to such mobilization.

In effect, individuals within the movement attempt to propel as many state laws as possible toward weakening the government’s control of guns, the research team said. 

While it would appear that individuals within the movement are merely exercising their legal rights as citizens of the United States and participating in the democratic process, Orbach, Callahan and Lindemenn all argue that that use of battering rams “is not equivalent to legitimate participation in the democratic process.”

“Commerce Battering Ram”? That sounds like a phrase straight from Josh Sugarmann’s playbook like “assault weapon”.

Quote of the day—Ken

As a former peace marcher, head shop owner, member of the Brady Campaign, and gun store protester, I see no reason why we shouldn’t have constitutional carry in all 50 states, eliminate the National Firearms Act, Gun Control Act, and Brady Bill, overrule all state gun laws as violations of the 2nd Amendment, and make Samuel Colt’s birthday a national holiday.

Ken
March 25, 2011
Comment to You know the whole “I’m a gun owner BUT” thing?
[Nice mockery!

I love it.—Joe]

More to the Idaho campus carry story

We lost on bill H222 in the senate committee but there is still a lawsuit in progress.

I received the following email from Michael C. Brown of ISSA this morning which gives us a little more info as to what was said at the hearing. I find it exceedingly interesting stuff:

The Senate state affairs committee voted 6-3 to kill H222. Several senators who had answered surveys saying they would support the bill voted to kill it. I have attached the testimony that I gave since you won’t hear a word about it in the media. More later:

—-

I would like to clarify a couple of points about H222 where there apparently is some confusion:

This bill does not “allow” guns on college campuses. This bill does not change current law about where someone may carry a firearm. The colleges and universities have chosen to implement policies banning firearms on their campuses that purport to regulate members of the university community as well as members of the public with no connection to the institution. They are merely policies and as such have no force of law.

These campuses are public property owned by the people of Idaho not by the regents or trustees and not by the state board. The people, in Article 1 Section 11 of the state constitution have described how and by whom they want carry on their property regulated. That provision states, “The people have the right to keep and bear arms, which right shall not be abridged…” The only exception to the guarantee which is pertinent here is a grant of power to the legislature: “this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person;…”.The Idaho courts have not construed this provision since it was amended in 1978 but in 1902 the Idaho Supreme Court found that a statute that broadly prohibited carrying firearms violated both the previous (weaker) language of art 1 sec 11  and also the second amendment to the United States constitution  (it took the US Supreme Court another 106 years to reach a similar conclusion). To quote from that opinion: “Under these constitutional provisions, the legislature has no power to prohibit a citizen from bearing arms in any portion of the state of Idaho, whether within or without the corporate limits of cities, towns, and villages. The legislature may, as expressly provided in our state constitution, regulate the exercise of this right, but may not prohibit it.” In re Brickey, 8 Idaho 597, 70 P. 609 (1902).

The purpose of this bill is to clarify exactly what authority public colleges and universities in Idaho have to regulate firearms on their campuses. This legislation represents the first specific grant of authority to an institution of higher education to regulate firearms (in dorms only) since 1889. While the regents of the University of Idaho have been granted general authority to operate the university under article 9 section 10 of the constitution and the various state colleges and universities’ boards have been granted similar general authority by statute, the question remains: if a general grant of authority to run a college authorizes a state institution to abrogate the enumerated constitutional right contained in art 1 sec 11 , then, by that logic, can they also deny the other rights guaranteed by the Idaho constitution on their campuses?

This bill does not “allow” open carry on college and university campuses. In 1978 the people of Idaho voted to amend Article 1 Section 11 of the state constitution to take away the authority of the legislature to regulate the open carry of firearms.  Here is the old language:

“ The people have the right to bear  arms  for their  security and

  defense; but the legislature shall regulate the exercise of this right by law.”

And, again,  here is the relevant current language:

“The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person…”(emphasis added).

By the plain language of this provision, the legislature can only regulate concealed weapons and it has chosen to do so by passing a law of general application which requires that a license be obtained before a concealed weapon may be carried in public. In a couple of instances the legislature has enacted laws that prohibit all firearms in certain discrete locations (airports and K-12 schools). The courts have not ruled on the constitutionality of these provisions. Note, however,  that all of these are very narrow exceptions to the general rule. Likewise the grant of authority to the institutions to regulate all firearms possession in dorms is a very narrow exception and is much more likely to be upheld by the courts  than the kind of absolute ban which the Supreme Court struck down in Brickey.

There have been concerns raised about which rules will apply in facilities that house both graduate and undergraduate students. The simple answer is : the institutions all employ attorneys (some of whom are here today) who know how to draft a housing contract. Please note that the bill allows the institutions to regulate as well as to ban. If this is a real concern the institutions can choose to regulate by allowing all residents of a mixed undergraduate/ graduate housing building to have firearms in their apartments.

I do not know if Elton John realizes that he has become a cause célèbre in the Idaho legislature but the concern has been raised that this bill would affect the ability of colleges and universities to lease their facilities to promoters for concerts and other events where the promoter requires that firearms be banned. If we look at what happens in a couple of neighboring states I think this concern disappears. While the courts in Idaho have never addressed the issue of whether a lessee can impose restrictions more stringent than a state actor would be able to, the Oregon courts have. In Starrett v. City of Portland 196 Ore. App. 534; 102 P.3d 728; 2004 , the court held that a promoter who had leased a publicly owned venue could ban guns during the duration of their lease even though the public entity that owned the property would not be able to do the same thing under Oregon’s preemption law (which is similar to Idaho’s). Likewise, in Washington a state statute, RCW 9.41.300, prohibits cities from barring holders of Washington concealed weapons permits from municipally owned stadiums and auditoriums. Despite this statute, Elton John plays the Spokane Arena, a municipally owned facility, on April 8th, the night before he plays Taco Bell Arena here in Boise.

This bill is completely unnecessary. The colleges and universities, as I have pointed out above, do not have authority to ban firearms on their campuses as they purport to do. If they would stop infringing on the constitutional rights of faculty, staff, students, and the public and conform their policies to the existing law, there would be no need for this legislation. Instead they have chosen, in this time of straitened institutional finances, to require individuals and groups to engage in litigation, costly to both sides, in order to vindicate their rights.

Quote of the day—Joe Waldron

The Washington State Patrol is back-pedaling swiftly after firearms dealers, the gun owning public — and nearly three dozen state legislators, led by Rep. Matt Shea (R-4) — raised the alarm over the WSP letter to firearms dealers seeking broad information about the sale or acquisition of AR-15s (and clones) and AR-15 lower receivers a week ago. It seems there may be ONE RIFLE missing, possibly from the State Patrol inventory. Rather than work with the BATFE, who has jurisdiction over federal firearm licensees, they decided to keep it in-house — except for their clumsy outreach to more than 1,000 licensed Washington firearm dealers! The Patrol still seeks cooperation and information from dealers (legitimately so, in my opinion), but acknowledges it has no authority to ask for the records.

As I opined last week, it’s more a case of overzealousness on the part of the WSP’s investigative division and a lack of understanding of federal laws regulating firearm dealers and insensitivity to the privacy concerns of gun owners. No nefarious schemes to create an AR-15 registry in the Evergreen State — for now.

Joe Waldron
March 25, 2011
GOAL Post 2011-12
[This is in regard to the letter to all the gun dealers in the state of Washington that I told you about earlier.

I agree with Waldron. Sometimes people do stupid insensitive stuff without realizing it. Give the WSP a break this time but watch for signs they are unrepentant.—Joe]

Quote of the day—Costco Employee

Costco Employee: “What are you going to do with all that ?”

Joe: “Make explosives out of it.”

Costco Employee: “Good to know.”

March 25, 2011
[”” is mystery ingredient number four in Boomerite. There are three ingredients listed in the recipe on the website but what we actually use is one generation ahead of what we post on the website.

Whenever I am so completely open and honest about what I am doing with some large quantity of something (like a shopping cart full of zip lock bags) I always wonder if the police got a call as I was walking out the door. If so, I always managed to get out of town before the cops caught up with me.—Joe]

Random thought of the day

Alan and others are sort of optimistic about the coming government collapse. Kevin is pessimistic.

The argument for optimism is basically that government is a parasite and that once the parasite dies the host (or new offspring of the host) will be able to flourish. I can see that.

I can also see that as the government nears the end those in power will rationalize almost any action to “Maintain order” or “To preserve the union” in the face of the riots. They will “just have to”. Your “goods, knowledge, and skills” may be required by others. And “whatever means necessary” will be utilized to implement “justice”.

As my brother Doug told me recently after I expressed some satisfaction about owning some productive farm land in our time of economic collapse, “We own land only as long as the law allows it.”

This is the difference between the Soviet Union and us. When the Soviet Union collapsed they already owned and controlled everything. There was nothing left for the government to take when the checks started bouncing.

I’m not saying the government will be successful in the acquisition process but both success and failure would be exercises of considerable unpleasantness.