Hollow-point Myths Continue in Atlantic City

Last night I was reading an article about how Atlantic City, NJ is terrible with managing its money. Despite casino revenue, a high sales tax, hotel occupancy taxes, rental car taxes, and exorbitant property taxes, they can't seem to keep their heads above water. The city also seems bad at (re?)negotiating with the police union, since they are laying off 40 patrolmen to help close their budget gap. It is a shame in city with such a bad reputation and high crime rate. But this blog is not about taxing and spending, it is about firearms freedom. I clicked on more news in the AC area, and saw an article about an arrest involving drugs and illegal firearms:

They soon discovered Bundy was carrying marijuana, cocaine, a gun and hollow-point bullets, which can pierce body armor.

Emphasis added at the end there. This is wholly and factually wrong, and is poor journalism. As an expat of the state of New Jersey, this bothers me to no end. Politicians cannot find solutions to budget issues that take 40 officers off of the streets of a dangerous city, yet they can pass feel-good laws like the one that outlaws the carry of hollow-point bullets. The misinformation and scare tactics spread during the passage of these laws continue to spread through the media and reverberate in the echo chamber that is the borders of New Jersey.

Hollow-point bullets are designed with a very specific intent: to expand and/or break up upon entry into an object. This allows all of the energy of the round to go into the target and NOT through it. This is almost literally the opposite of an armor piercing round. Does this make a hollow-point round potentially more lethal than ball ammunition? Yes. But it also makes it safer. Hollow-point rounds are less likely to travel through their target and create collateral damage. They are less likely to travel through the walls of a home or apartment and endanger bystanders. Hollow-point bullets are better at stopping a threat and are safer for those who might be around. They are the best solution for civilians defending themselves. For all of the same reasons they are the best solution for law enforcement - which is why every department in New Jersey carries them in their sidearms.

Hollow-points are available and legal in the 49 other states, so the supply is very high. Criminals will continue to carry and use them in NJ despite the law. The hollow-point ban serves only as a distraction to the state's true crime (and budget) problems and is a grave disservice to their honest and law-abiding citizens.

Of course, New Jersey is a 'may issue' carry state, so the law is irrelevant for most people. The state exercises its "discretion" by denying permits to almost everyone but the well connected. Regardless, this type of law amounts to nothing but fear-mongering and distraction. It also perpetuates misinformation that is readily spread by a media that is ignorant and afraid of firearms.

A Consolidated Response to the Bloomberg/MAIG Gun Trace & Trafficking Report

A report recently released by Michael Bloomberg's gun control group, Mayors Against Illegal Guns (MAIG), has been swiftly taken up by a sympathetic media. Hungry for a now-rare win in the gun control debate, reporters are splashing quotes, misquotes, factoids, and blurbs across headlines from the Huffington Post to your local editorial board. The report itself claims to show a link between states with lax gun regulation and the interstate trafficking of firearms to criminals. MAIG has gone so far to create a stand-alone website to illustrate this link. MAIG has used ATF aggregate firearms trace data to generate this report and, if taken at face value, it seems like a strong call to action for more regulation. A few brave reporters and firearms bloggers have tackled a number of issues with the report that should convince you NOT to take it at face value, and I wanted to consolidate the rebuttals in one place:

1. The MAIG report constantly refers to all of the traced firearms as "crime guns" and indicates they were "recovered at the scene of a crime." Not all guns traced are from crimes. In fact, a routine traffic stop of a legally armed citizen might result in a trace if the detaining officer is feeling motivated. The gun used in a justifiable homicide could be submitted for a trace. Only about 1/6th of guns submitted to the ATF for tracing were related to a violent crime. The majority are for simple possession violations, which can be an easy thing to accidentally commit in draconian states like NY, NJ, MA, etc.
2. The ATF trace data is not a random sample - it is a sample deliberately selected by individuals. The ATF notes this in the opening of all trace data reports:
   

   The firearms selected do not constitute a random sample and should not be considered representative of the larger universe of all firearms used by criminals, or any subset of that universe.

   Presenting findings from this data as evidence of the efficacy or what MAIG calls "reasonable" gun laws is precarious at best. One could easily cherry pick from this data to illustrate a point. For example, in my home state of Washington more traced guns were from California than Idaho and Montana combined, despite the fact that the latter states are closer in proximity and have much more lax gun laws.
3. Many of the more restrictive states already have statewide registration and databases of firearms. These states can perform intrastate traces of "crime guns" and may not need to access the ATF trace data to determine origin. This further skews the sample data and could hide facts important to the debate. (Example: if a crime gun is traced in NJ and is found to originate in NJ via their own records, it would not necessarily be submitted to the ATF. Thus, the ATF trace data would not reflect potentially high levels of gun crime committed with firearms obtained within the state. This makes it harder to judge the efficacy of their laws.)
4. MAIG plays with the numbers to present the data in such a way that it favors them, and omits data that does not. MAIG uses raw numbers in some instances, and numbers controlled for population (per 100,000 residents) for others . One of the sound bites intentionally released (knowing the media would gobble it up) was that a mere 10 states are responsible for selling half of all 'crime guns' in the US. What is left out in those articles is that those 10 states that originally sold 49% of traced guns contain 52% of the population.
5. Causation is not equal to correlation. Even if the sample data used were an accurate representation of the source of guns used in violent crime (which it is NOT), the report still does not prove that heightened restrictions are the cause of lower export/trafficking numbers. Nor does it explain outliers like Missouri, Michigan, Nebraska, and Washington that have very lax gun laws and low numbers of exports, even when controlled for population. We could also take a look at Washington DC, where almost all of the traced guns are imported. According to these trace data, Maryland exports 4.34 crime guns/100k residents to the District and Virginia exports 3.36 guns per 100k. Yet MD has already enacted 8 out of 10 of the MAIG regulations, while VA has only enacted 4 of them. How does MAIG explain this?
6. The correlation also fails to indicate which laws, if any, are actually impacting the trace and trafficking rates. The most absurd illustration is an attempt to link right to carry (RTC) to gun trafficking. Is it the carry permits that allow for trafficking, or do states with laws that supposedly 'promote' trafficking also just happen to have RTC? It doesn't matter to Bloomberg & co. This poor sample data with no control group is enough reason to deny you your rights. While the report claims that RTC discretion is used to prevent misdemeanants and the mentally ill from carrying firearms, it fails to mention that New York City's discretion only allows for the famous and well-connected to receive permits and Philadelphia's discretion means that applicants with prior parking tickets are routinely denied the right. In entire counties of California, Sheriffs use their 'discretion' to simply deny all carry permits, while residents of other counties can exercise their right statewide. MAIG is drawing a weak conclusion here to attempt to scare people into enacting restrictive laws that have been in their (and other anti-gunner's) play book forever.
7. What other statistic correlate with this data? A 2009 poverty rate map overlays pretty well with the ATF trace data:
   So, by the MAIG conclusions, poverty must increase the illegal trafficking of guns. Perhaps you should have to verify your income level before you can exercise your gun rights. A map of the US black population correlates pretty well with the export data (other than a few outliers, which MAIG has no problem ignoring in their report):
   Surely MAIG is not insinuating that we disarm the black population. Yet, it correlates well with their data. But that would be racist. Let's move on to a (growing) minority that everyone can get away with judging. Maybe - just maybe - fat people are the ones trafficking guns. Let's see:
   Again, aside from a few inconvenient outliers, the map correlates strongly. Perhaps MAIG will soon be releasing their 10 point plan to crack down on fast food and gun trafficking. We could abandon our 2nd and 4th amendment rights by installing random police checkpoints to seize guns hidden in fast food bags. All joking aside, these maps are used to illustrate that point that correlation is not a strong enough reason to put reason aside.

These points show that the MAIG report is not focused on scientific rigor. They are focused on sound bites and digestible data points that will actually aid in abandoning common sense. They are hoping to generate a flash point of emotion that will convince us to give up rights that we have fought hard to establish and protect. Let's hope that it is only their sycophants in the media that will fall for such a ploy.

DC Circuit Court Still Against the 2nd Amendment

Today, the District of Columbia Federal District Court ruled against Dick Heller's latest challenge to DC's restrictive gun laws. Heller claimed that the District's gun registration, assault weapons ban, and high-capacity magazine ban were not "usual and reasonable". Paul Helmke of the Brady Campaign, short on victories recently, quickly praised the ruling:

Politicians and legislatures at all levels should stop using the Second Amendment as an excuse for inaction against gun violence. They should follow the District’s example and pass the strong, common sense gun laws Americans need and demand to protect their communities.

What Helmke (and other articles on the ruling) fail to mention is that this is the same District Court that dismissed Parker v DC, which later became DC v Heller. It is not surprising that this court would find DC's onerous restrictions Constitutionally palatable. I believe that the more appropriate question is what regulation (outside of the outright ban that the Heller case overturned) wouldn't the DC Circuit find reasonable? Instead of using the strict scrutiny that other enumerated Constitutional rights receive, Judge Ricardo Urbina applied intermediate scrutiny (using the pre-Heller US v Miller case as a guide) so he could defer to the DC City Council's cries for public safety:

Because the Council provided ample evidence of the ways in which the registration requirements will effectuate the goal of promoting public safety, and because public safety is a quintessential matter of public regulation, the court concludes that there is at least a substantial nexus between the registration requirements and the important governmental interest underlying those requirements.

This is where things start to unravel. Judge Urbina claims that these restrictions are 'reasonable' under the 2nd Amendment, because the right must be balanced with 'important government interest' of 'promoting public safety' (instead of enjoying strict scrutiny). Furthermore, the judge states that the Council provided 'ample evidence' to support these claims. The full decision reveals some scary developments on this front. The council generated its evidence by holding hearings in which they took testimony from anti-gun advocates as well as token pro-gun advocates. They then, unsurprisingly (this is the council that believed their outright ban on handguns and functional long arms was Constitutional), sided with the anti-gun advocates and presented these findings as fact while at trial. Judge Urbina took these findings at face value. Who were some of these unbiased and dependable experts, whose testimony was used to find law such as the 'assault weapons' ban reasonable?

• Brian Siebel: Senior Attorney with the Brady Center to Prevent
  Gun Violence - the preeminent anti-gun advocacy group
  
• Cathy L. Lainer - Chief of the DC Metropolitan Police Department and political appointee of anti-gun DC Mayor Adrian Fenty
  

While none of the articles in the media mention this fact, it is not buried. Apparently Judge Urbina saw no conflict of interest in this testimony and found it worthy of specifically highlighting it in his ruling.

This ruling is clearly only the first step in determining what regulations will be deemed reasonable under the 2nd Amendment, but it is obvious that Judge Ubrina will do everything in his power to keep the 2nd Amendment as close to a dead letter as possible. I believe that he intentionally manipulated the text of the Heller decision to violate the spirit of the ruling and create an avenue to use only intermediate review:

A minority of those courts have applied strict scrutiny based on the fact that the majority opinion in Heller describes the Second Amendment right as a “pre-existing right,” Heller, 128 S. Ct. at 2797, 2804, analogizes the Second Amendment right to other fundamental rights, id. at 2797, 2817 n.27, 2821, and states that the right to have arms was “fundamental for English subjects” at the time of the founding...If the Supreme Court had wanted to declare the Second Amendment right a fundamental right, it would have done so explicitly.

I suppose we should not be surprised by Urbina's dismissive behavior towards DC v Heller and his acceptance of vehement anti-gun testimony as material fact. The DC District Court and the DC City Council have fought against gun rights before. Hopefully this time, just like last time, the DC Circuit Court and Supreme Court will come to the same conclusion: the anti-gun position of the District and the Council are unconstitutional and should be overturned.

Predictable Post-McDonald Media Hysterics

The oral arguments for McDonald v Chicago, challenging Chicago's ban on handguns, took place earlier this week. The official ruling will not be handed down until sometime in June, but the transcripts of the arguments and firsthand accounts by those who attended have all indicated that the Court is likely to incorporate the 2nd Amendment against the states. Having seen this coming since Heller was decided almost 2 years ago, the usual anti-gun media outlets have littered their opinion sections with biased, outcome-oriented diatribes against the forthcoming ruling.

Dana Milbank of the Washington Post is a particularly egregious offender. His gun metaphors are everywhere including the article's title: "Justices arm themselves with activism in Chicago gun ban case". His opening sentence is so absurd that it should give you pause and consider whether further reading is even necessary:

It's about to get easier to shoot people in Chicago. Actually, it's about to get easier to shoot -- and be shot by -- people in the rest of the country, too.

Forget the fact that Chicago is one of the most dangerous cities in America despite its handgun ban. Forget the fact that states that allow handgun ownership and carry have no measurable increase in crime because of it (often there is a decrease in crime). Forget the fact that criminals have no regard for the ban, and only honest citizens are effected by it. Forget the fact that Chicago is one of the few places in the US where handguns are banned outright, making it an absurd notion that allowing them in this one small prohibited area will somehow make it "easier" to shoot people in the rest of the country. Milbank goes on to call Scalia an 'activist' for appearing to support the incorporation of gun rights against the states. What he fails to mention is that simply overturning an existing law does not an activist make, especially in the framework of the Constitution. The activism that Scalia has spoken out against in the past is one that creates rights that have no contextual basis in the words of the Constitution. I believe the Heller decision does an exemplary job of explaining the textual, historical, and cultural meaning of the 2nd Amendment.

But Milbank is not alone. The Philadelphia Inquirer, known to blame the city's rampant crime problem on the gun laws of greater Pennsylvania, also warns of dangerous times ahead. The unsigned article also opens with dire (and fraudulent) warnings:

A gun-rights decision by the Supreme Court two years ago threatened to make it more dangerous to walk the streets of Washington...(the Court) seems intent upon expanding the risk to other U.S. cities by dismantling strong gun-violence safeguards.

I'm sorry - MORE dangerous to walk the streets of Washington? DC has been one of the most violent cities in America for decades. Somehow allowing citizens who submit to various tests, fees, and fingerprints to own a gun strictly in the confines of their home will make the streets more dangerous? Again, this is based upon no factual information whatsoever.

There are two themes that can be found in both articles which I find more frightening than any of the baseless warnings they spout. The first is their advocacy of outcome-driven Supreme Court decisions.

(the Court) will be embarking on a social and legal experiment that's likely to play out across the chalk outlines on many cities' mean streets. Given the national plague of gun violence, that's simply the wrong course for the court.

These articles barely even reference a militia clause or a collective rights theory. They simple state that the 2nd Amendment should not be extended to the states because they have a belief (with inconclusive evidence) that it will save lives. Making decision on the Supreme Court level based purely on the desired outcome is dangerous to all of our rights and essentially makes the Constitution a dead letter.

The second scary theme the authors' put forth is a belief that that an absolute ban on the most popular class of firearms (handguns) somehow is a 'reasonable regulation' that passes the strict scrutiny given to a fundamental enumerated right.

The question now is how far the high court will let the NRA go in undoing the sensible gun-safety rules with which many communities have long been comfortable...As Bryan Miller, head of the New Jersey anti-gun-violence group Ceasefire NJ, noted: "Chicago's handgun ban has been in effect for 28 years. Yet suddenly the gun lobby has manufactured a court case with the intention of totally dismantling our nation's gun laws so gun makers can sell more guns."

The only evidence for this that they submit is simply that these prohibitions have not yet been challenged. But considering that Heller is less than 2 years old, that become an absurd statement.

McClatchy Leans Towards Chicago?

McClatchy News has an article on their website previewing tomorrow's oral arguments in the McDonald v Chicago case, which challenges the city's ban on private handgun possession. Amidst a smattering of tiring firearms metaphors ("in the crosshairs", "restrictions will be blown away", "test-fire arguments") and the assertion that the Conservative Justices will "stretch the Second Amendment further", there is a curious representation of an important amicus brief. The attorneys-general of 37 states filed in support of McDonald et al, stating that states should not have the ability to deprive citizens of the right to own a handgun. McClatchy wrote:

The attorneys general for Florida, Texas, Alaska and 34 other states have urged the court to strike down Chicago's gun ban. So have a majority of members of Congress, and individual prosecutors from 34 California counties.

Think there is a little bias there? I believe that Florida, Texas, and Alaska are being specifically named in a pejorative way. Those states are known as being quite gun friendly, and their citizens and politicians are often the ire of people with liberal and/or anti-gun persuasions. I wonder why Doyle didn't choose to call out Wisconsin, Maine, and Rhode Island? They all signed on. Or maybe Washington, Virginia, and Minnesota? Iowa, Indiana, and Ohio? I suppose that wouldn't quite fit their us vs. them, blue state vs. red state, liberal vs. conservative frame of mind. The truth is, the issue of gun rights has been transcending party lines for decades and this case, with its due process and privileges and immunities implications, has supporters from across the political spectrum.

Pointed Analysis of the Steven's Dissent in DC v Heller

I don't like to simply parrot articles from other gun rights blogs, but there is a great piece posted on "Of Arms and the Law" that needs to be shared. Dave Hardy's "Ducking the Bullet: District of Columbia v. Heller and the Stevens Dissent" (published in the Cardozo Law Review) illustrates how we came within one SCOTUS vote of not have an individual 2nd Amendment right. While the Scalia majority has been analyzed to death by both sides, the Stevens dissent (joined by Souter, Ginsberg, & Breyer) has gone pretty much untouched. Hardy takes it apart piece by piece and shows that a rushed, piecemeal, historically inaccurate dissent nearly stripped us of our rights. Here is a choice anecdote that should frighten gun owners and remind them how precarious the battle for our rights was and is:

Or Might the Amendment Protect a State's Power to Impose Militia Duty? The dissent advances this view, as well:

"[I]t is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States' share of the divided sovereignty created by the Constitution."

This is the most strained view of all. There is an individual constitutional right to be forced to discharge a legal duty. Rather a strange "right"!

Worth taking the time to read in full. You can also download the full PDF article here.