Monday, March 26, 2012

Hit Piece by Chuckles Nichols; Why carry, not OC, was the target

Charles Nichols, who I call "Chuckles" a lot of times, decided to do two different hit pieces on me in the last week:

In other news, the sky is blue, the Brady Campaign are liars, you need a mix of two different chemicals to breathe, and Chuckles apparently committed perjury by lying on a state form submission to the California Secretary of State's Office.

I also did not see Chuckles anywhere in the Byron White US Courthouse's Courtroom III, either.  He may have gotten notations from other reporters.  Of course, he didn't do the right thing like say, waiting for the oral arguments before blasting out to everyone who will listen what his impressions are from third parties before the oral arguments are acquired by him.

"They just concluded a second round of oral arguments before the Court of Appeals. The first time around, one of the three judges pointed out to Peterson's attorney that Colorado is an Open Carry state and that state has recognized prohibitions on concealed carry since the 19th century. His lawyer then reluctantly said that his client would carry in whatever manner the court decides."

What Chuckles the Perjurer leaves out is the Colorado Appellate Court decision in Trinen v. City/County of Denver, which makes it clear that Colorado is NOT an open carry state. In that particular case:

In Robertson, supra, the supreme court did not expressly state whether the right to bear arms is a fundamental right. However, by requiring that restrictions on the right be only reasonable, rather than necessary, the court essentially applied the rational basis test in evaluating the constitutionality of a city ordinance that implicated the right to bear arms. Therefore, we conclude that the court implicitly found that the right to bear arms is not a fundamental right. See People v. Young, supra.
The state cited Trinen as a reason why a person should not OC in Denver, either.  More from the decision:
Trinen also argues that the language in § 38-118(a)(1) requiring a "direct and immediate threat" is too restrictive. We disagree.
When liberally construed, the language "direct and immediate threat" requires some real identifiable and substantial justification for carrying a gun away from one's home. Absent such a qualifier, anyone could carry a gun about Denver and claim that it was for self-protection. Section 38-117 reflects the Denver City Council's determination that such practices endanger public safety and that it is reasonable to allow citizens to exercise their right to bear arms by obtaining a permit. Thus, the constitutional right has not been rendered nugatory. See People v. Blue, supra.
Section 38-117(b) indubitably places restrictions on the constitutional right to bear arms. However, in our view, the ordinance is a reasonable exercise of the police power, and Trinen has not met his burden of establishing beyond a reasonable doubt that the restrictions are so severe as to render the ordinance unconstitutional.

Both our briefs in the district court, as well as the briefings at the court of appeals, points out the standing law of Trinen in the state court system.   Don Kates, along with David Kopel, challenged Denver's "Assault Weapons" Ban.  Here is the result, from Silveira's Second Amendment Suicide:

Nor am I just spinning some theory here. I am talking about the outcome of actual cases. Of course every lawyer with a long career has lost cases. But until I started litigating AW cases I had a virtually unblemished record, including having invalidated the San Francisco handgun ban in 1982. Since the late 1980s I have been involved in litigating AW cases; half a dozen in California and individual cases in Colorado and Connecticut. Every one has been an utter disaster. 
Unlike California, Colorado, Connecticut, Ohio and Oregon used to have right to arms clauses in their state Constitutions. Unlike the phony controversy about the federal Second Amendment, these state right to arms clauses clearly did guarantee an individual right. But in each of those states AW bans were enacted by state or local law and well-meaning lawyers (including me) challenged those AW bans under the clear state constitutional right clauses. Because the clauses were so clear the judges were faced with a clear choice: they could either hold that AWs are constitutionally protected or they could read the right to arms clauses out of the state constitution. And that is what they did.  The people of Colorado, Connecticut, Ohio and Oregon still have their state constitutional right to arms, of course – but only as long as no legislative body seeks to ban and confiscate their guns. If a ban is passed as to any kind of gun in Colorado, Connecticut, Ohio and Oregon the likely result of any constitutional attack on that ban is that it will be upheld on the same false reasoning that was used to uphold the AW bans.
A direct victim of the attack on Denver's Assault Weapons ban was the inability of Mr. Trinen to prove the supposedly clear reading of the Colorado Constitution's Bill of Rights, via the use of the courts of "false reasoning".  You see, because of the Robertson v. City/County of Denver case, Article II Section 13 of the Colorado Constitution is essentially dead letter, and the state judiciary would accept anything a government said in re the state constitution.   State law issues, of course, are a completely different matter.  The recent ruling in the Colorado Supreme Court in re Campus Carry was a pure matter of statutory interpretation of it's preemptive nature of the state's Concealed Carry Act, not a constitutional matter.

The state courts directed me under Trinen to apply for a license to carry as this was, in the state courts words, "... reflects the Denver City Council's determination that such practices endanger public safety and that it is reasonable to allow citizens to exercise their right to bear arms by obtaining a permit."   Denver law, as conceded by the state AG, requires a carry license in order to carry in either manner.  The Denver ordinance requires a state license to carry.  It becomes a matter of nomenclature.

Denver could have chosen to recognize all of state licenses to allow me to open carry, or had a separate licensing scheme for open carry.  They did not.  Instead, they co-opted a state scheme with the Manager of Safety, also the enforcer of the city's criminal law prohibitions for carry without a license.

Of course, Chuckles doesn't understand anything about Colorado legal jurisprudence matters.   You see, Chuckles sees my involvement as a volunteer for civil rights in a manner he doesn't appreciate like a bull seeing a red cape being held by a matador.   He ignores the clear text of Heller in the way which doesn't fit his "concealed can't be the right" narrative:
 Justice GINSBURG wrote that "[s]urely a most familiar meaning is, as the Constitution's Second Amendment . . . indicate[s]: `wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.'" Id., at 143, 118 S.Ct. 1911 (dissenting opinion) (quoting Black's Law Dictionary 214 (6th ed.1998)). We think that Justice GINSBURG accurately captured the natural meaning of "bear arms."

As for this:

The judges said that Heller only entails a right to keep a firearm in one's home and oh by the way, Peterson never challenged any particular law and makes no mention of Open Carry in his lawsuit.
My counsel did not mention "open carry", he mentioned "carrying a functional handgun for self defense".

8. When he visits Denver, Peterson wishes to exercise his right to keep and bear
arms by carrying a functional handgun for self defense.

11. Denver Ord. § 38-117(b) prohibits the carrying of a firearm outside one’s
dwelling or place of business without a CHL.

12. C.R.S. § 18-12-203(1)(a) prohibits issuing a CHL to a non-resident of
13. C.R.S. § 18-12-203 vests the sheriffs of the several counties with authority to
issue CHLs.
14. As ex officio sheriff of Denver County, Defendant LaCabe is responsible for
receiving and processing applications for CHLs in Denver County.
15. Denver Ord. § 38-117.5 vests Defendant LaCabe or his designee with authority
to issue CHLs.

59. By prohibiting any meaningful opportunity for Plaintiff to bear arms in the
City and County of Denver through a licensing scheme that precludes Plaintiff
from obtaining a necessary license to bear arms, Defendants have violated
Plaintiff’s right to bear arms guaranteed by the Second Amendment to the
Constitution of the United States.

Nomenclature issues, essentially.

More spew from Chuckles.

Unfortunately, thanks to the NRA/SAF/CalGuns it now looks like the 10th Circuit Court of Appeals is going to decide that Heller only entails a right to have a loaded firearm in one's home.
Their Kool-Aid drinking supporters will claim that losing is all part of their "secret plan."

Like nearly all people, I hate losing.   Chuckles, however, has zero understanding of legal history and judicial procedure.   In the federal court system, the "loser" controls the appeal.    When someone files as part of the strategic civil rights litigation (in a similar vein to the religious freedom cases of the Jehovah's Witnesses in the 1940's or the school segregation cases of Charles Hamilton Houston and Thurgood Marshall from 1930 to the 1960's), you have to be willing to appeal a losing ruling upwards, or choose a defendant who will definitely file an appeal upwards if they lose.

The AG's of the anti-gun states, like DC, will not particularly accept the idea of "taking a loss for the team" like the Brady Campaign staffers tried to convince DC to do (Source: Adam Winkler's Gun Fight), but the elected officials of anti-gun jurisdictions do not take being told no by the courts well.  Denver is no different.

Chuckles, of course,  would rather use shortcuts and just plain cheat. From the Silveira posting:

The first victorious case was a vital first step, but had they only brought that case they would still have been subject to endless harassment under laws that differed from the one that first victorious case overthrew.
In sum, it is hopelessly unsophisticated to believe that one Supreme Court victory is going to make gun control go away. What is needed is one really strong first case, followed by another, followed by another, followed by another, followed by another, followed by another, and so on. With the constitutional law thus established we can go on to apply it ever more expansively.
In contrast to the Unsophisticated View, the Wrong View acknowledges that it will take multiple decisions to establish our Second Amendment rights. But its proponents see making an "assault weapon" case like Silveira the first Second Amendment case decided by the Court as a shortcut. They believe (all-too-rightly) that if the Supreme Court will invalidate an AW ban, it will invalidate virtually any other gun control. The problem is that the converse is far more likely: If the Court is given an AW case first, it is very unlikely to decide the case our way and its decision will doom other challenges to other kinds of gun control.

What Chuckles doesn't understand, that much is obvious, is that some things are meant to be decided by the Nine Justices at 1 First Street.  Carry will be one of them.  Whether it be my case, Moore v. MadiganPalmer v. District of Columbia,  Kachalsky v. Cacace or Piszczatoski v. Filko, carry will be decided at 1 First Street.  Chuckles seems to think that a guy who has his own home is a more sympathetic plaintiff for unlicensed no fee carry than a guy on a fixed income who lives in a public housing project, like, for example, Guy Montag Doe?

Chuckles would rather attack volunteers who put their time and treasure into winning, make insinuations about me being "Senior Member" (scary, do I get a cane or a walker, sonny?), being a contributor (I just like having more PM space) and being moderator (this is because of my expertise on a particular subject matter).    He's just pissed off he got banned from several forums for breaking the rules.  He banned me from his Facebook group.  Ho hum.  Whatever shall I do, rather than engage in dialogue with geniuses like this??

Chuckles pretty obviously suffers from Dunning-Kruger Cognitive Bias.  He also reminds me of Wile Coyote from Operation: Rabbit

Genius, indeed.

Thursday, March 15, 2012

Anti-Self Defense Types Fundraising on my case

I extremely rarely use this blog.  Been too busy, you know, working.

It was, however, brought to my attention a situation involving the Brady Center fundraising using my case as a reason.  Conveniently, however, they do not mention me, my attorney, SAF, or Alan Gura (SAF's amicus counsel who will be arguing).  They only mention the NRA.  Copied for posterity:

Don't let the NRA force guns onto your streets!
Dear Friend,
We have the right to decide how we keep our streets safe. The NRA wants to take that
right away.
If the NRA gets its way, your hometown might soon be forced to allow virtually anyone
to carry loaded handguns on public streets, buses and parks — and no laws, elected
officials or even law enforcement officers will be able to stop them.
That's not the America I want to live in — and I fight every day to prevent it.That's why on Monday
I'll be in a Denver federal court going head-to-head against one
of the NRA's top attorneys. I'm fighting for people like you who believe that communities
should be able to decide for themselves about loaded guns in their public places.  The
NRA won't stop until guns are carried everywhere.

Please help me and the other Brady attorneys defeat the NRA again!

This case is critical. If the NRA wins, this will be the first appeals court ruling that there
is a Constitutional "right" for individuals to carry a gun virtually anywhere outside the
home. If we win, the people will have the right to decide whether guns are allowed in public
spaces in their communities.
How extreme is the gun lobby's position? It's so extreme that even Colorado's NRA "A-rated"
Attorney General is arguing alongside me. He knows how perilous it is to relinquish Colorado's
right to protect people from the lethal risks of guns.
Almost all Americans agree with us. But the NRA has armies of lawyers bankrolled by a billion
dollar industry. So we need your help now to defeat the gun lobby where its massive war-chest
can’t buy success — in the courts.

Please join us as we beat back the NRA to ensure strong gun laws and safe communities.
We can't do it without you.

John Lowy [photo]Thank you,
John Lowy [signature]
Jonathan Lowy
Brady Center to Prevent Gun Violence

I removed the fundraising links because I'll be damned if I help give the Brady Center any money. 
If the NRA gets its way 

Except the NRA is just an amicus curiae party, just like the Brady Center is and they were told to argue sua sponte by the 10th Circuit Panel.  They want to help, that's cool, but this was MY case, funded by myself, private interested parties as well as state 501(c)(3) orgs. 

Your hometown might soon be forced to allow virtually anyone to carry loaded handguns on public streets, buses and parks — and no laws, elected officials or even law enforcement officers will be able to stop them.

Well, anyone who is willing to pay $152.50 on a license and a state and FBI fingerprint background check, actually travel to Denver to apply (which I did), and be subject to the same laws as the residents of Colorado are.  They can't carry in schools or secured areas, so I don't know what they are blathering about.

That's not the America I want to live in — and I fight every day to prevent it.

United Kingdom Border Agency for Immigration

I was going to suggest Canada, but I believe within a decade they have shall-issue LTC's anyway, thanks to the tireless efforts of CSSA and CILA.

If we win

If you win,  and I lose, I can petition SCOTUS.  Perhaps gloating and goading the plaintiff isn't a good idea?   That's what sucks about your position: Even if I lose, I still win.  If we go back to the Heller and McDonald text, then you have 3-4 votes.   Pro-self defense side has 5-6.  Would you like to roll the dice?

the people will have the right to decide whether guns are allowed in public spaces in their communities.

You mean like how supposedly "the people have the right to decide whether whether or not marriage is between a man and a woman"? *buzz* wrong.  As Perry v. Brown in the US Court of Appeals for the Ninth Circuit stated, the 9th Amendment and the 14th amendment's equal protection provisions protects gays and lesbians in their family choices on equal grounds as mix gendered couples.  However, the 2nd amendment is a specifically enumerated fundamental right.  There's also the issue of why non-resident, when they freely issue on a shall-issue basis to residents, is treated as an "unwelcome alien" rather than a "welcome visitor".

Their above statement is also supportive of unchallenged anti-gay violence.   You see, the Brady Center, along with their (c)(4) Campaign, openly supported cities banning handguns in the home, and requiring trigger locks to where guns cannot be used in self defense in one's own home.

Anti-gay violence is tied for 2nd largest hate crime statistic in Denver, behind race.

Hate crime statistics for Denver, Colorado.

Race 36
Religion 5
Sexual Orientation 9
Ethnicity 9
Disability 2
Total Reported Hate Crimes 61
Reported Hate Crimes by Quarter

First Quarter (Jan/Feb/Mar) 17 Second Quarter (Apr/May/Jun) 11
Third Quarter (Jul/Aug/Sep) 24 Fourth Quarter (Oct/Nov/Dec) 9

Of course, being anti-self defense, they will say that 9 of these is very rare for a large city.   

To the 9 people who were attacked, however, it happened to them just one too many times.

And of course, this is just the reported stuff.    Talking to my LGBT brothers and sisters in Denver, there is a LOT more than just 9 hate crimes.  They don't report because they view the police as worse than useless, and there's tremendous amount of tension between the LGBT community and Denver Police for numerous reasons (hidden cameras catching cops beating lesbians and gay people without any provocation, resulting in firings by the previous Manager of Safety).

I don't butch up my natural voice just to avoid a problem in public, as some straight anti-sefense types have suggested.   They seem to be real insensitive bastards when they tell people to "avoid doing things to attact criminal attention", you know.  

You see, government enforced personal pacifism is a religion, and for gay people, this enforced religion results in things for us like being curb stomped or being stabbed in the back with a broken beer-bottle.

Simply put, the Brady Center, despite the heightened risk to gay people from anti-gay violence, wants the resident anti-gay criminal class of Colorado to be able to attack out of state gays from 21 states who may be visiting the state without fear of them being armed legally.  It's that simple.

Almost all Americans agree with us. 

They agree that not everyone should be able to carry.   It's all about how you ask the question in an attempt at a push poll.  Also, if almost all Americans agree with you, it should be a simple matter of amending the constitution using Article V, right?    Except in places like Kansas where 89% of the population supported a strong RKBA provision in 2010. 

But the NRA has armies of lawyers bankrolled by a billion dollar industry. So we need your help now to defeat the gun lobby where its massive war-chest can’t buy success — in the courts.

Nice to know that I'm bankrolled by a billion dollar industry.   I have this 100 foot yacht that I take out into Puget Sound, my house is paid off, I have no more bills, ever.  /sarcasm

Btw, I predict, just like the anti-gay organizational hate machine, will use the term "activist judges" if the pro-self defense side wins the case.

CITADEL at one of my favorite forums posted this:
That's pretty crudely crafted propaganda. 
The most conspicuous example of this twisted spin is Gray's case being spearheaded by the NRA. They did this because without the NRA, one cannot make the connection to the funding of 'the multi-billion dollar gun industry'. Without this, its a hard sell to say that millions of guns are being pushed into the streets by one person's rights being vindicated in court, being funded by the many contributors of the SAF, and other gun rights advocacy groups. I predict that the same dialogue will resurface with the CGF's involvement in other wins... Credit will be given to the NRA and the alleged monolithic gun manufacturers, instead of where it is due.  
Me: I notice they didn't mention SAF or Alan Gura. I wonder why...hmm....
They live in the Harry Potter universe. To them saying 'Gura' is akin to a wizard invoking the name of Voldemort. He-Who-Must-Not-Be-Named... 

It's nice to be a muggle-born rather than a wizard, I guess. 

That being said, my real commentary about the amicus counsel opposition blatantly lying and misrepresenting who actually paid for the case, or saying it's an NRA case: