Ban Gun Bans
19th Annual Gun Rights Policy Conference
by Dave Workman
September 26, 2004
"Reciprocity is a scam. It's a system for denying your rights.
We have embraced it, which is a mistake."
Reciprocity and recognition statutes passed by state legislatures, along with passage of the federal law allowing retired and off-duty police to carry concealed all over the country, are paving the way for national concealed carry for legally armed private citizens.
That's the forecast from a panel of experts who addressed the final day's audience at the Gun Rights Policy Conference in Arlington, VA.
"We're moving along, the trend line is good," said Joe Waldron, executive director of the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), which co-sponsored the 19th annual event with the Second Amendment Foundation (SAF).
Added Massad Ayoob, a nationally-recognized self-defense and firearms authority: "We are winning in this area of the gun rights battle, we are decisively ahead. We are entering the years of reciprocity."
Their remarks came during a mid-morning panel discussion that was preceded by a detailed discussion of Firearms Legal Issues at the federal and state levels. That opening panel discussion included: David Kopel, research director for the Independence Institute; Gary Mehalik, communications director for the National Shooting Sports Foundation; attorney Chuck Michel, counsel to the California Rifle & Pistol Association; Jim Archer, Rhode Island Citizens' Rights Action League, and Ramon Santini, an attorney for Ohioans for Concealed Carry.
Mehalik led the morning briefing, recalling that with the defeat in Congress last March of legislation that would protect the firearms industry from frivolous anti-gun lawsuits, the effort will begin anew to pass a bill once the new Congress is in session in January.
"It is a bill that has widespread support and we're hoping to bring it forward again in the next Congress and get it passed, because it is necessary to shield manufacturers of lawfully produced non-defective products form lawsuits," Mehalik said.
Calling this an effort to pass tort reform legislation, Mehalik said the debate "obviously has ramifications outside the firearms industry." He alluded to a scenario in which the owner of a used car lot could be held liable for a crash involving a car he sold to someone who then drove it irresponsibly.
Beyond this effort, Mehalik also encouraged activists to write letters to their newspapers, and to make gun rights an issue in political races.
"We don't want any further interference in the rights of responsible people to make firearm purchases," he stated.
Michel focused audience attention on events in California, where "there are lots of lawyers, so naturally there's lots of litigation." He recalled some industry lawsuits, and also noted that "there are cases being litigated under the radar."
One such case involves a lawsuit by two county prosecutors against the state attorney general over the interpretation of the state's assault weapon law. He suggested that Gov. Arnold Schwarzenegger was alluding to that case when he noted in a veto message that gun laws are "so confusing" in the Golden State.
In one incident, Michel recalled that authorities had started "going door to door confiscating guns."
"We went up to Sacramento and said 'What the hell are you doing? These are not assault weapons,' (under state law). They wound up going back and returning those guns with an apology," Michel said.
He complained that there is a "whole range of laws and local ordinances that are there now just really to confuse people." Michel criticized local governments for passing anti-gun ordinances just to "make a statement" even when they conflict with state law.
"They'd just as soon people didn't know what they can do because then they'll throw up their hands and say it's not worth the trouble to figure out how to own a gun," Michel asserted.
Michel also reported other problems with current California laws, ranging from trouble for students who wear gun-related clothing to schools, to gunowners who find their firearms are subject to confiscation if their spouse is "taken in for mental health evaluation."
Kopel's remarks concentrated on Wisconsin, one of four states where there is no concealed carry statute. He said a small victory was won in court this year, when the state Supreme Court there recognized that "the right to keep and bear arms is fundamental."
However, the court also said that all statutes-including gun control laws-are "entitled to a presumption of constitutionality." That means they must be successfully challenged in court, and that the law must be proven unconstitutional beyond a reasonable doubt. He called that standard "preposterous."
"That's the standard of proof when the state wants to put somebody in prison," Kopel said. "I think it's preposterous that (for) your rights to be vindicated that you have to prove a statute to be unconstitutional beyond reasonable doubt."
That ruling said it was constitutional for someone to carry a concealed handgun in his place of business, but that is as far as the ruling went. The state high court said a ban on concealed carry is constitutional. Meanwhile, though Wisconsin does not ban open carry, Kopel acknowledged, "It is hard to exercise."
Santini reported that the situation in Ohio has "steadily improved." There have been some problems along the way, since the state passed a concealed carry statute. He said some sheriffs unilaterally decided they had discretionary authority over issuance of concealed pistol licenses. In another incident, reported in Gun Week earlier, Ohioans For Concealed Carry (OFCC) requested a special prosecutor to investigate one case involving a sheriff who turned over street address information on concealed pistol license (CPL) recipients, that was subsequently published in a local newspaper.
That sheriff is currently being investigated for committing a felony, Santini said, because release of that detailed information is apparently forbidden by the law.
Elsewhere, some municipalities have said they do not care about the new law, and have passed or threatened to pass restrictions on concealed carry not allowed under the statute.
"Some have backed down," he said. "Others, like the City of Clyde, had to be sued."
One of the bizarre tenets of the new law is a "plain sight" requirement for carrying a gun while in a vehicle. There has been one case already, in which a licensed citizen was arrested and charged for violating this requirement. The judge seized the firearm and will not return it, so the case is being appealed.
It will likely take some time before the carry situation in Ohio is completely resolved, but in the meantime, OFCC activists will stay on top of things, he said.
In Rhode Island, the concealed carry situation is different, with what appears to be an understanding between the attorney general and local police chiefs to prevent most citizens from getting a carry license.
Archer explained how the state's political environment has changed since the general assembly in 1959 re-codified the sate law recognizing a fundamental right of citizens to keep and bear arms. In recent years, he said, there has been a dramatic shift among local police chiefs, who have not been issuing as many licenses under the state's "suitability" standard.
A state Supreme Court ruling in a case involving a gunowner named Charles Mosby did result in an important precedent, Archer noted. In that case, the court rendered the opinion that Rhode Islanders have an individual right to keep and bear arms.
"We now have a ruling that we are essentially a shall-issue state," Archer said. "What we have to do now is move forward and capitalize on this (Mosby's) lawsuit."
Where individual rights really come into play surfaced in the next panel discussion, on Right to Carry.
In addition to Waldron and Ayoob, this panel included gun law author Alan Korwin of Arizona, and John Ridlehuber, president of the Texas Concealed Handgun Association.
Waldron reminded the audience that only Wisconsin, Nebraska, Kansas and Illinois still have no concealed carry statute. He noted that the legislatures in the first three states appear amenable to passing such a law, but that the governors have vetoed such measures.
California, Hawaii, Iowa, New Jersey, Massachusetts, Maryland, New York, Rhode Island and, at least for the moment, Minnesota, are discretionary issue states. The remaining states are all shall-issue states, with laws that differ slightly.
Waldron added that of all the states, Vermont and Alaska are unique in that neither requires a CPL to carry concealed or openly within their borders.
"That's probably where we all ought to be going," he offered.
Waldron cautioned the audience that if they travel to another state that recognizes their CPL, they need to obey the carry laws of the host state. He referred gunowners to the Traveler's Guide and also www.packing.org, the latter a website that continually updates information on state gun laws.
"What you do at home isn't necessarily what you can do on the road," Waldron said. "If you carry in another state based on reciprocity or recognition of your state license, the host state rules apply. Check before you travel."
Down in the Lone Star State, according to Ridlehuber, "We have relaxed our rules." He also noted that carry regulations change rapidly, and agreed that www.packing.org is a quick resource for up-to-date information.
Texas concealed carry falls under the authority of the Department of Public Safety.
At first, the state was slow to enter reciprocity agreements or recognize the CPLs issued by other states, but Texas today recognizes licenses from several states. Ridlehuber believes national reciprocity should be the law of the land.
"If we could go to a Vermont-style or Alaska-style (law) most of us probably would be better off," he suggested.
Yet, he acknowledged that the political climate in Texas is not such that he anticipates passage of such a statute in the foreseeable future.
Getting such a law passed will be harder, Ayoob warned, if gun activists adopt an "in your face" approach to getting their way. Changing the law can be a slow process, and sometimes gun laws are so odd that they seem not to make much sense, he indicated.
In Virginia, for example, Ayoob noted that, "you cannot carry your handgun into a restaurant that has a liquor license even if you are not drinking, which is just utterly ludicrous. Yet through the loophole in the law, you can walk into a bar with your pistol hanging out in open carry. This, my brothers and sisters, I'll tell you right now is not going to make a whole lot of friends for the movement."
He added, "Don't be flashing guns where liquor is flowing, because . . . it makes no friends for the movement."
"Basically," Ayoob said, "you all need to know your turf. I would cheerfully come down here and testify to the Virginia state legislature that from 1923 to now the fact that in (New Hampshire) citizens are allowed to carry a gun into a bar and have a couple of drinks has never been a problem. It has never been an issue in crime or law enforcement."
He stressed that, "If you walk around with your Glock hanging out you're going to be seen as an exhibitionist."
Ayoob was addressing a situation in Virginia where a small, but visible number of gun rights activists have taken to carrying openly. He seemed to disdain the practice out of concern that it will turn the general public against legal carry of firearms.
On the positive side, he cited passage of HR-218 by Congress earlier this year, allowing retired and off-duty police officers who have qualified with their sidearms, to carry concealed anywhere in the country.
"Let me tell you something," Ayoob said, "HR-218 is going to be the opening of the door for national concealed carry for the rest of you. It creates the key element of obvious legislative intent."
Gradually, he said, Congress will get the message that, "even absent the power to arrest in the given situation, it is a good idea for the public safety that when violent criminals draw weapons good men and women be there with guns to ward them off."
He predicted that this shift will start within the next two to three years, when there will be ample anecdotal information about crimes being prevented by armed retired and off-duty police, to make national carry by private citizens seem like a good idea.
Someone who knows guns laws is author Korwin, and his philosophy differed considerably from that of his panel colleagues.
"Reciprocity is a scam," Korwin asserted. "It's a system for denying your rights. We have embraced it, which is a mistake."
He said a reciprocity listing of states that either will or will not recognize someone's CPL is wrong. He called the existing situation "nonsense." In his home state of Arizona, Korwin said the term for going armed is "constitutional carry."
"It cannot be infringed," Korwin stated.
He called reciprocity "a good first step . . . backwards." In Arizona, concealed and open carry are legal just about everywhere. One place where there remains a problem is in a so-called "gun free" zone.
"Gun free zones are a fraud," he insisted. "Under the image of making you safe they deny your ability to protect yourself. That's fraudulent. Denying your right to protect yourself does not make you safe. Because it's fraudulent, it ought to be against the law. It's reckless, it's negligent."
Korwin advocates making property owners legally liable if they ban guns on their premises and someone is injured by a criminal as a result. He also believes that school administrators should be allowed to be armed, and that schools should offer firearms safety courses as part of their regular classroom curriculum.
"In Arizona we're going to introduce a bill that makes marksmanship a requirement for a diploma," he announced.
This is the tenth year of concealed carry in Arizona, and Korwin said several Arizona residents owe their lives to having had guns available when they needed one.