Printed in the USA.
The Gottlieb-Tartaro Report
Issue 067
July, 2000
GUN RIGHTS APPEAL MAKING NEW CASE LAW
U.S. appeals court judges are shaping the future of gun rights. And that could be the best news gun owners have had since the Second Amendment was ratified.
A three-judge panel in the Fifth U.S. Circuit Court of Appeals in New Orleans recently heard arguments in the case of U.S. v. Emerson, which had resulted in a landmark lower court ruling that affirmed the personal right of American citizens to own a firearm. This case could redefine many gun control laws.
TOM GRESHAM, host of "Gun Talk," heard on over 100 stations on the Talk America Radio Networks and www.talkamerica.com, flew to New Orleans to report on the appeals court proceedings. GRESHAM also serves on the Board of Directors of the Citizens Committee for the Right to Keep and Bear Arms.
GRESHAM gave the background of the original case now on appeal: Last year U.S. District Judge SAM R. CUMMINGS ruled in favor of Dr. TIMOTHY JOE EMERSON, who claimed that he had been arrested unconstitutionally for possessing a firearm while under a restraining order from his estranged wife.
In divorce court, Dr. EMERSON’s wife accused him of making a telephone threat to kill her lover, which the media treated as a real confrontation with a gun, but in federal court Judge CUMMINGS ruled there was no violence or threat of violence.
Prosecutors said EMERSON not only violated the restraining order, but also violated a federal law that prohibited anyone under such a restraining order from even possessing a gun. Judge CUMMINGS overturned that law, saying it violated the spirit of the Second Amendment and "an individual’s right to bear arms."
Judge CUMMINGS’ written opinion addressed the question whether the U.S. Constitution guarantees the right to bear arms to individuals, or only to state militias.
The CLINTON administration had to appeal, and in order to appeal, had to clearly state its true view on personal gun rights: there are none.
During appeals court arguments in New Orleans, TOM GRESHAM reported, Senior Judge WILL GARWOOD asked federal attorney WILLIAM B. MATEJA, who was arguing for the United States, "You are saying that the Second Amendment is consistent with a position that you can take guns away from the public? You can restrict ownership of rifles, pistols and shotguns from all people? Is that the position of the United States?"
WILLIAM MATEJA: Yes.
Judge GARWOOD: Is it the position of the United States that persons who are not in the National Guard are afforded no protections under the Second Amendment?
MATEJA: Exactly.
When MATEJA went further, saying that the Second Amendment didn’t protect the private guns of National Guard members, Judge GARWOOD asked, "What else is needed?"
MATEJA: The weapon in question must be used in the National Guard.
In other words, no one, even if a member of the National Guard, has a right to own guns privately.
The panel didn’t seem to buy that. The appeals court has not indicated when a decision will be announced. Stand by for history in the making.
NEW YORK PUSHES GUN CONTROL ON SEVERAL FRONTS
NEW YORK STATE LEGISLATURE: Gov. GEORGE PATAKI’s "5-point gun control package" passed the State Assembly after last-minute approval by the State Senate. Senate Republican Majority Leader JOE BRUNO (R-43) struck a deal with the PATAKI administration during the last legislative meeting of 2000, which set the stage for the bill’s Assembly passage and the Governor signing it into law.
The package including measures that raise the legal age for purchasing handguns from 18 to 21 and require background checks on gun buyers at all state gun shows.
New York lawmakers also required locking devices on all new handguns, a pattern started by Maryland, which passed the first such restriction in April.
The PATAKI package also contains a ban on so-called "assault weapons," and the controversial "ballistic fingerprinting" or "Gun DNA" requirement. This measure requires handgun dealers and manufacturers who do business in the state to submit shell casings from the test firing of their guns to the state police’s forensic lab. Computerized images of the casings would serve as "fingerprints" for firearms and be kept on file.
Gun owners are particularly worried about the government keeping records of specific handguns because it comes perilously close to gun registration.
NEW YORK CITY: The administration of Republican Mayor RUDOLPH GIULIANI has become the 32nd municipal government to file a lawsuit against members of the firearms industry.Filed in Federal District Court in Brooklyn, the lawsuit cites "deceptive marketing," "irresponsible supervision of sales," and "design flaws" as the causes of gun deaths and injuries. The City is seeking tens of millions of dollars for alleged injuries and other damages.
Congressman BOB BARR (R-GA) wrote to Mayor GIULIANI, "I was deeply disappointed by your announcement that the City of New York plans to file a frivolous lawsuit against legal firearms manufacturers." He added, "Your lawsuit directly undermines the Second Amendment by seeking to create an environment in which firearms companies are unable to do business. If your goal is really to achieve a de facto repeal of the Second Amendment, I urge you to do it in the open, rather than resorting to the subterfuge of filing frivolous negligence suits."
Other GIULIANI critics said that the mayor’s recent departure from the Senate race might have been a factor in his decision to attack the industry, suggesting that he is now at liberty to risk alienating prospective conservative donors around the United States.
NEW YORK CITY: A Times Square gun-theme store and restaurant planned by the National Rifle Association has been criticized by the New York City Council. In a resolution the Council said, "The promotion of guns has no place in such an entertainment venture and especially not in Times Square, where the city has worked hard to rid the area of guns and gun-related violence."The NRA said the City’s carping will have no effect on its plans.
Nassau County: The Nassau County Legislature recently passed a budget with a 700% hike in pistol license renewal rates.The five-year pistol license renewal fee went from $25 to $200.
The gun license increase was evidently the result of pressure from Gov. GEORGE PATAKI’s office: it qualified the county for a $100 million state bailout, which would preserve the county’s bond rating and prevent the state from appointing a control board to take over the general operation of the county. The vote to pass the budget was unanimous.
MIXED MESSAGES ON THE CONTROVERSIAL SMITH & WESSON AGREEMENT
Three recent votes in the House of Representatives have gun owners celebrating and angry — celebrating the first vote and angry at the second and third.
The first two votes were on amendments to the U.S. Department of Housing and Urban Development’s appropriations bill, amendments introduced by Rep. JOHN HOSTETTLER (R-IN). The New York Times correctly called the HOSTETTLER amendments "an effort to scuttle an agreement between the CLINTON administration and Smith & Wesson."
The controversial "sell-out" agreement between gunmaker Smith & Wesson and the Clinton administration gives the company "favored supplier" status with the U.S. Department of Housing and Urban Development and more than 400 local government units in return for compliance with a list of intrusive White House rules.
The first vote came on an amendment that would prevent the government from spending any money for the anti-gun Communities for Safer Guns Coalition, which was organized by the federal government and now includes 411 locations nationwide.
The Associated Press reported that the spending prohibition passed by a vote of 218 to 207.
The Coalition had promised in a March 17 agreement to make Smith & Wesson guns the preferred firearm for its law enforcement agencies in return for the company’s promise to use locking devices on its handguns, develop "smart gun" technology, obey government-approved sales practices, and comply with numerous other restrictions.
The importance of eliminating this agreement could hardly be overemphasized. The CLINTON administration envisions all gun manufacturers eventually submitting to it. The enforcement apparatus for the agreement would be virtually unaccountable to congressional oversight or public scrutiny. Smith & Wesson itself has been reported to be having second thoughts about the agreement.
The vote stops the Clinton administration from issuing press releases or having its lawyers help the Coalition, and stops HUD from lobbying state and local officials to give such favored supplier status to Smith & Wesson. It is also a slap at ANDREW CUOMO, secretary of the U.S. Department of Housing and Urban Development, who spearheaded the Coalition and the gun agreement.
Minutes later, the House muddied its message by voting 219 to 206 to reject the second HOSTETTLER amendment, which would have forbidden the federal government outright from enforcing the agreement between Smith & Wesson and the federal and local governments.
Sixteen Representatives switched their votes from aye to nay, only two of them Democrats, MIKE THOMPSON (CA) and PETER DEFAZIO (OR).
The fourteen Republicans who voted for the spending cut but against the lawsuit prohibition were, by state: California: GEORGE RADANOVICH, ELTON GALLEGLY, and RONALD PACKARD; Colorado: THOMAS TANCREDO; Florida: BILL MCCOLLUM, S.W. BILL YOUNG, DAN MILLER ILENA ROS-LEHTINEN, and LINCOLN DIAZ-BALART; Georgia: JOHNNY ISAKSON; Iowa: GREG GANSKE; Nebraska: DOUGLAS BEREUTER; New York: SUE W. KELLY; Ohio: STEVEN LATOURETTE.
A few days later, Rep. HOSTETTLER, undaunted by the loss on one amendment and buoyed by his victory on the other, offered an amendment to the Justice Department appropriations bill that would forbid the DOJ from suing Smith & Wesson for failure to comply with the agreement.
That amendment lost by a vote of 201 to 196 — a scant three votes short.
A spokesman for Rep. HOSTETTLER said, "We would have won it if NRA had lifted even one finger."
The National Rifle Association sat this vote out, saying, "Due to concerns regarding the drafting of these amendments, NRA did not take a position on either [of the first two votes], although we certainly support the spirit in which they were offered."
Those "concerns" were variously reported as not wanting to annoy House Speaker DENNIS HASTERT (R-IL) by legislating through appropriations (even though both sides of the gun issue routinely do so), and as worry about the language including only Smith & Wesson, when other gun manufacturers are at risk of being roped into the agreement.
NRA likewise did not come forward on the third vote.
SENATOR HATCH HOLDS NICS HEARING
The FBI computer that performs background checks on prospective gun buyers is sluggish and prone to unexplained failures, experts told the Senate Judiciary Committee at a hearing called by Chairman ORRIN HATCH (R-UT).
Hatch said he supports the concept of the National Instant Criminal Background Check System (NICS), but blamed the CLINTON administration and the FBI for not running it properly.
Among the problems cited by experts were glitches in the massive database that records information on about 38 million Americans. The glitches have blocked law-abiding citizens from purchasing firearms for personal protection and delayed one-quarter of all such transactions.
Sen. HATCH said at the hearing, "Instead of an instant check, we have a system that too often causes needless delay to law-abiding citizens who are simply exercising their constitutional rights. System outages are a major culprit."
FBI Assistant Director DAVID LOESCH said, "The FBI’s goal is to minimize system downtime. The FBI recognizes the disruptive effect downtime can have on the business operations of gun dealers and the resulting inconvenience to prospective gun buyers. We’re learning as we go along to make this better. We’ve got a lot of things working that are going to make this better."
On May 11, the system inexplicably crashed, preventing over 100,000 Americans from purchasing firearms. The FBI’s LOESCH admitted the agency had not figured out what happened, but offered their best guess: It was a "defect" caused by miscalculating table sizes in the Interstate ID database. The NICS system checks three databases for each transaction: the internal NICS records, the Interstate Identification Index, and the National Crime Information Center.
The FBI could do better with more "resources."
Sen. PATRICK LEAHY replied, "I understand how difficult it is to have the resources for everything you need to do. But somewhere along the line you have to have priorities here. Where are you going to put the resources?"
LOESCH paused, shrugged his shoulders, and said he didn’t have an answer.
ANTI-GUN ADS TO RUN DURING REPUBLICAN NATIONAL CONVENTION in Philadelphia
An anti-gun group called Silent March has announced an advertising campaign that will appear on 100 Philadelphia city buses and fifty trains before and during the Republican National Convention.
Since its formation in 1994, the group has used the gimmick of displaying the empty shoes of murder victims killed by criminals using guns.
The Philadelphia ads will feature photos of the shoes of murdered 17-year-old Iona Prep student DEREK PAUL VALENTIN. The ad’s caption reads, "When you kill handgun legislation, you kill more than a bill." A tagline reads, "It’s just common sense."
ELLEN FREUDENHEIM, co-founder of Silent March, said, "As the Republican party gathers in this historic city to engage in one of our nation’s greatest democratic traditions, we must recognize how we are failing our children by allowing the epidemic of gun violence to go unchecked. These advertisements are a wake up call that American families are demanding sensible regulation of the gun industry, including oversight of the design, manufacture, distribution, and marketing of firearms."
The ads will be part of a series of protest demonstrations during the convention to push the group’s anti-gun agenda.
The group plans to display 250 pairs of shoes of dead people at the Liberty Bell. The group will display nearly 30,000 pairs of shoes at Independence Historic Park, claiming it represents the number of Americans killed by people with guns in a single year.
Silent March leaders said the group will also stage protests and demonstrations at the Democratic National Convention.
A SUSPICIOUS LAWSUIT
Chicago has sued a federal law enforcement agency seeking confidential data concerning gun buyers nationwide in an effort to bolster its $433 million lawsuit against the firearms industry.
The city filed suit in 1998 against 23 gun manufacturers and 13 suburban gun dealers to recoup alleged losses incurred by "gun violence," the latest anti-gun slogan.
The city is seeking a nationwide list of all persons who have bought more than one gun in a five-day period. That list is kept on a databank maintained by the Bureau of Alcohol, Tobacco and Firearms.
City officials want the list so they can reinforce their claim that manufacturers deliberately market guns to criminals. The BATF list could help the city track major gun dealers — who, the city alleges, may possibly supply street gangs — by purchasing patterns.
TOM AHERN, a BATF spokesman, said that handing over the list would violate the privacy rights of law-abiding gun purchasers and that personal information on the list could jeopardize investigations and the safety of undercover BATF agents.
But there may be more to this lawsuit than meets the eye. The Illinois State Rifle Association (ISRA) has issued a news release expressing "concern over the intent of a lawsuit filed by the City of Chicago against the Bureau of Alcohol, Tobacco, and Firearms."
ISRA president RICHARD PEARSON pointed out that Chicago Mayor RICHARD DALEY’s administration may be trying to do in the courts what it could not do in the state legislature.During the 1999 legislative session, noted PEARSON, DALEY allies in the Illinois General Assembly attempted to pass a series of gun control bills that would have granted Chicago officials unrestricted access to statewide firearm purchase records without benefit of a court order. Even the Democrat-controlled House shot that one down.
The lawsuit against the BATF, PEARSON says, "is a clear attempt by DALEY to use the courts to accomplish that which the state legislature has prohibited him from doing."
The ISRA is concerned that a DALEY victory in this multiple-purchase suit would open the door for the mayor to obtain records on every lawful firearm purchase in the state.
PEARSON said, "Individuals purchasing more than one handgun from a licensed dealer within a five day period freely submit to the special federal documentation process. They did so under the assumption that the federal government would protect their privacy. Little did they know that their names might one day end up in a file folder on Mayor DALEY’s desk."
LOS ANGELES CONSIDERS AMMUNITION SALE BAN
A Los Angeles City Council committee has proposed a ban on ammunition sales, even though panel members know that such a law is unlikely to withstand a challenge in California courts.
The Public Safety Committee also recommended an alternative, a law that would require background checks for anyone purchasing ammunition in Los Angeles.
Councilman MIKE HERNANDEZ, ban originator, said, "We have a problem in our society and a problem in our city, and I think this is a remedy to solve that problem."
RANDALL HERRST of the pro-gun Center for the Study of Crime, said, "Laws which do not have a rational basis are unconstitutional, and I think you’ll find that this law does have no rational basis."
A number of pro-gun organizations have said they would challenge the city measure if it is adopted.
The proposed ammunition ban is similar to an ordinance passed last year by the Los Angeles County Board of Supervisors. That law is being challenged by Great Western Shows, a gun show company that claims it violates the U.S. and California constitutions.
CANADA: GUN CONTROL AFFIRMED BY HIGH COURT
The Supreme Court of Canada has upheld the Firearms Act (aka Bill C-68), an onerous gun control law that most Canadians are ignoring.
The justices recently ruled that Ottawa has a right to protect public safety, and rejected arguments that licensing guns encroaches on provincial jurisdiction over personal property. Six provinces and two territories had challenged the law for encroaching on provincial jurisdiction.
The Firearms Act requires gun owners to be licensed by the end of this year and to register all firearms by the end of 2002. There are at least 7 million guns in the country. Only 1.6 million are registered.
The high court ruled, "All guns are capable of killing and maiming. It follows that all guns are a threat to public safety. As such, their control falls within the criminal law power."
One wonders that justices could use such lunatic logic: if the test of "killing and maiming" was applied to virtually any object, cars, rocks, knives, stairs, baby bottles, one could justify criminal law power over cars, rocks, knives, stairs, baby bottles and an indefinitely long list of other things — a police state wackier than GEORGE ORWELL’s Animal Farm.
Canadian gun owners seem to think the law and the Supreme Court are just that wacky: they’re not licensing or registering their guns with great speed. In fact, a recent report released by a member of Parliament showed that it would take 19 more years to register all the guns in Canada at the present rate of registration.
In order to meet the cutoff date of January 1, 2003, the Royal Canadian Mounted Police would have to register 11,832 guns per day, 365 days a year. They’re only registering 1,135 guns a day, and that’s up from an earlier production rate of only 557 guns per day.
The registration effort has already cost $327 million to pay 1,500 bureaucrats to push paper. They’re registering less than one gun per bureaucrat per day.
Canadian Justice Minister ANNE McLELLAN has said she will make changes to the law to make it easier for gun owners to register. She plans to cut the $45 license fee to $10, and simplify the registration form to one page.
The provinces and a number of pro-gun organizations are still planning to defeat the law altogether, whether in the courts or by electing a new government.
BRAZIL: GOVERNMENT BANS GUN SALES
Justice Minister José Gregori recently announced an immediate ban on the sale of firearms, to remain in effect until the end of the year.
By then the government hopes to have won congressional approval of a total ban on civilian possession of firearms, allowing guns only to members of the armed forces, police officers and employees of private security companies.
Brazilians now own about 8 million guns, about three-quarters of them unregistered.
The gun ban was prompted, said the government, by "growing public alarm over a wave of crime."
HUNGARY: PLANNING EUROPE’S TOUGHEST GUN CONTROL LAW
BELA RING of Hungary’s Interior Ministry legal department has applauded lawmakers’ proposed restrictions on gun ownership, even depriving security service officers of their firearms, alarming citizens from hunters to insurance companies.
ZOLTAN TROMBITAS, chairman of the Association of Gun License Holders, said that legally owned firearms have not been used for criminal purposes in Hungary for many years. "The authorities should concentrate their resources on collecting unlicensed weapons. Can’t they understand that lawfully armed civilians constitute a powerful deterrent against violent crime?"
The government responded that it is not the task of civilians to fight armed criminals. The proposed new law is still under consideration.
GUN NEWS TICKER: SHORT TAKES ON GUNS
• Snotty TV talk show queen ROSIE O’DONNELL is still talking out of both sides of her mouth about gun control. On the one hand, she pushes for tighter gun laws while on the other she has an armed bodyguard and lives in a gated community in Greenwich, Connecticut. She is critical of the Greenwich Time, her local paper, for releasing information about her bodyguard applying for a gun permit. She also claims to have received threats because of her outspoken stance against guns, saying she needs protection from violent people. We all do, ROSIE.
• Austrian gunmaker Glock said it is feeling the pinch of a Clinton administration campaign to force manufacturers to sign on to the anti-gun agreement that Smith & Wesson signed. Five cities that are clearly part of the administration’s "Communities for Safer Guns" coalition have notified Glock that they are putting on hold purchases totalling about 2,000 Glock pistols, and may cancel the purchases. Glock is the predominant supplier of U.S. police weapons. Glock officials hope to save the sales, and refused to identify the cities.
• Two Richmond, Virginia city councilmen have ruled that Mayor TIMOTHY M. KAINE must find private funds to pay the $9,000 he pledged to bus a delegation to the anti-gun Million Mom March in Washington, D.C. The city manager’s staff had originally planned to pay the cost, but protests from gun owners prompted the mayor to step in and volunteer to pay from his own discretionary fund. But further protests led the mayor to ask councilmen SA’AD El-AMIN and JOHN A. CONRAD to examine whether it was a proper use of the fund and agreed to abide by their determination. They said it wasn’t.
• The Gun Task Force of the U.S. Conference of Mayors has called for Congress to act on "gun safety" legislation to stop urban violence. Watch for those words, "gun safety," they will become the new chant of the gun control crowd. The Gun Task Force lamented gun violence, but not gun crime — that would point to gun criminals, and they’re not interested in controlling criminals, just guns. They called on the more than 430 mayors and other civic leaders that have pledged to support the coalition to give their business to gun makers who sign the "sellout" agreement.
• Smith & Wesson is feeling the backlash from its gun control agreement with the White House. The gunmaker plans to shut down two of its manufacturing plants for a month, placing an unspecified number of workers on unpaid leave. About 500 workers at plants in Springfield, Massachusetts and Houlton, Maine would be affected, according to WGGB-TV in Springfield. Smith & Wesson said the reason for the closure was "normal summer softness in the firearms market compounded by the reaction of some consumers to the agreement."
• A petition drive to put a school-and-church gun ban on the Utah state ballot failed to gain more than about half the signatures needed to go before the voters. The much ballyhooed "Safe to Learn, Safe to Worship" petition fell 30,000 signatures short of the nearly 70,000 needed for it to appear on this November’s ballot. Supporters of the measure that would have kept all guns out of schools and churches except law enforcement firearms said that the failure was more than popular rejection of the idea. Organizers blamed the campaign’s reliance on volunteers instead of a hired signature-gathering crew, and fear of "gun rights advocates’ harassment" that allegedly intimidated some volunteers. Gun rights advocates dismissed the excuses, saying, "People just did not want it."
• U.S. Senate candidate HILLARY CLINTON (D-NY) has joined Sen. CHARLES SCHUMER (D-NY) in calling for passage of his gun licensing legislation. The proposed bill would require all in the United States who wish to purchase a gun to obtain a state issued photo gun license and would prevent any gun store or individual to sell a gun to anyone without a valid license. All licensees would be required to pass a gun safety test to qualify. The legislation includes a verification system for private sellers to verify the validity of a license and includes grants for states to put a licensing system in place. HILLARY said her stand on gun control is another one of the important differences between her and her opponent.
GUN CONTROL IN SCHOOLS? IT’S ELEMENTARY
South Jordan, Utah’s elementary school has conducted mock trials for the past seven years.
Each year they select from a list of several topics presented to them. Then they invite members of the community to participate in the trial and to offer their testimony on the chosen subject.
Students take part as attorneys, judge and bailiff, while the rest of the class members serve as the jury.
This year the topic was gun control.
And they delivered a unanimous decision that adults with concealed firearm permits should be permitted to have guns in schools.
The star of the show was Republican Congressman Merrill Cook.
He told the youngsters that he did not personally want teachers to have firearms in school, but he also did not want to deny their right to carry a firearm if that is their choice and if the have a concealed firearm permit.
Janalee Tobias, the founder of Women Against Gun Control, also testified at the mock trial.
She spoke as a mother, saying she was concerned about violence in schools: "I want my kids to be protected."
Tobias complained that gun control advocates "often use their children as props for gun control."
She praised the students for selecting the difficult topic of gun control and for asking such good questions on their own.
Three gun control advocates presented the case against guns in schools.
The students invited their own principal, Richard Allred, who spoke on behalf of banning guns in school.
Jeremy DeWall, a sophomore at Bingham High School, also testified against allowing in-school firearm possession.
PTA President KaRynn Christensen, spoke directly against Tobias.
She told the students that as a mother, she was concerned that a teacher with a gun might suddenly use it on a student.
She told them that she is also against using violent means to stop a violent person.
In the end, the student jurors declared Cook and Tobias the winners in a unanimous decision.
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