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Thread: Accidental discharge in own home = felony

  1. #1
    Campaign Veteran marshaul's Avatar
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    Accidental discharge in own home = felony

    I have a meta-question for Virginians:

    Why the hell do we allow laws like this to remain on the books?

    In Virginia, if your gun malfunctions and discharges in your own home, you are an instant felon. Same result if you've ever had an ND. Why is there not a constant outcry to fix this? Any one of us could potentially lose our RKBA, for quite literally nothing.

    http://leg1.state.va.us/cgi-bin/legp...0+cod+18.2-279

    Why is it, when we had a supposedly "pro-gun" Republican government, and before the Newton tragedy, there was no push to substantially reform Virginia's gun laws?

    Concealed carry in a glovebox is a joke, and that's about the only progress we made.

    Another one that frosts my pickles is the archaic, first-half-of-the-century style bloated National Forest regulations, which subjects hikers with the same ridiculous set of impossible-to-learn regulations that hunters face. (Jefferson is probably spinning in his grave knowing that his name is applied to the biggest gun-free zone in the state.)

    Virginia has good gun laws overall, but there are a few areas where we couldn't be any worse than California, and yet I see absolutely zero impetus to do anything about it.

    Why is that?
    Last edited by marshaul; 04-10-2013 at 04:25 PM.

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    Regular Member TFred's Avatar
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    Just so we all know the law you are referencing:

    18.2-279. Discharging firearms or missiles within or at building or dwelling house; penalty.

    If any person maliciously discharges a firearm within any building when occupied by one or more persons in such a manner as to endanger the life or lives of such person or persons, or maliciously shoots at, or maliciously throws any missile at or against any dwelling house or other building when occupied by one or more persons, whereby the life or lives of any such person or persons may be put in peril, the person so offending is guilty of a Class 4 felony. In the event of the death of any person, resulting from such malicious shooting or throwing, the person so offending is guilty of murder in the second degree. However, if the homicide is willful, deliberate and premeditated, he is guilty of murder in the first degree.

    If any such act be done unlawfully, but not maliciously, the person so offending is guilty of a Class 6 felony; and, in the event of the death of any person resulting from such unlawful shooting or throwing, the person so offending is guilty of involuntary manslaughter. If any person willfully discharges a firearm within or shoots at any school building whether occupied or not, he is guilty of a Class 4 felony.


    My question, is there any other section of code that make it unlawful to discharge a firearm inside your home? The first paragraph is all about malicious intent. The second paragraph keeps "unlawful" but removes malicious intent. Where is it stated that discharging a firearm inside one's own home is against the law? This section does not say that it is, but merely that if you do it unlawfully, then that is a crime. At best, this is a contribution from the Department of Redundancy Department.

    (I admit this may be a stupid question, I have not looked for the answer at all.)

    TFred
    Last edited by TFred; 04-10-2013 at 04:32 PM.

  3. #3
    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by TFred View Post
    Just so we all know the law you are referencing:

    18.2-279. Discharging firearms or missiles within or at building or dwelling house; penalty.

    If any person maliciously discharges a firearm within any building when occupied by one or more persons in such a manner as to endanger the life or lives of such person or persons, or maliciously shoots at, or maliciously throws any missile at or against any dwelling house or other building when occupied by one or more persons, whereby the life or lives of any such person or persons may be put in peril, the person so offending is guilty of a Class 4 felony. In the event of the death of any person, resulting from such malicious shooting or throwing, the person so offending is guilty of murder in the second degree. However, if the homicide is willful, deliberate and premeditated, he is guilty of murder in the first degree.

    If any such act be done unlawfully, but not maliciously, the person so offending is guilty of a Class 6 felony; and, in the event of the death of any person resulting from such unlawful shooting or throwing, the person so offending is guilty of involuntary manslaughter. If any person willfully discharges a firearm within or shoots at any school building whether occupied or not, he is guilty of a Class 4 felony.


    My question, is there any other section of code that make it unlawful to discharge a firearm inside your home? The first paragraph is all about malicious intent. The second paragraph keeps "unlawful" but removes malicious intent. Where is it stated that discharging a firearm inside one's own home is against the law? This section does not say that it is, but merely that if you do it unlawfully, then that is a crime. At best, this is a contribution from the Department of Redundancy Department.

    (I admit this may be a stupid question, I have not looked for the answer at all.)

    TFred
    My reading is that, in order for such an AD/ND to not be unlawful by this statute, it must both be A: not malicious, and B: not in such a manner so as to endanger someone's life.

    If I'm right, that may mean it's not illegal if you, say, shoot into a concrete floor. But good luck proving that. It all starts stacked against you, what with firearms being as dangerous as they are. That is to say, one could make the argument that all AD/NDs endanger someone's life.

    This is so ass-backwards, it hurts. If someone has an ND, and they want to share their learning experience to help others stay safe, they've just admitted to a felony. In what world does that enhance safety?
    Last edited by marshaul; 04-10-2013 at 04:46 PM.

  4. #4
    Regular Member TFred's Avatar
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    Quote Originally Posted by marshaul View Post
    My reading is that, in order for such an AD/ND to not be unlawful by this statute, it must both be A: not malicious, and B: not in such a manner so as to endanger someone's life.

    If I'm right, that may mean it's not illegal if you, say, shoot into a concrete floor. But good luck proving that. It all starts stacked against you, what with firearms being as dangerous as they are. That is to say, one could make the argument that all AD/NDs endangers someone's life.
    I don't see it. Where does it say that discharging a firearm in one's own home is unlawful?

    The entire first paragraph is out of play, because each phrase is modified by the use of the word "maliciously." That leaves only the second paragraph, which adds the modifier "unlawfully" to the act committed (discharging a firearm) in order for it to be a crime. But the paragraph does not define what "unlawfully" means. The fact that there is a different punishment if someone is killed means that can't be the basis for determining "unlawful", as that would render the first part of the paragraph illogical as written.

    TFred

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    Campaign Veteran marshaul's Avatar
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    I agree, it's poorly worded. Maybe a lawyer can help clarify what that actually means.

    My interpretation as follows:

    If any person maliciously discharges a firearm within any building when occupied by one or more persons in such a manner as to endanger the life or lives of such person or persons, or maliciously shoots at, or maliciously throws any missile at or against any dwelling house or other building when occupied by one or more persons, whereby the life or lives of any such person or persons may be put in peril...
    OK, but it's not malicious. What do we have left?

    If any person discharges a firearm within any building when occupied by one or more persons in such a manner as to endanger the life or lives of such person or persons, or shoots at, or throws any missile at or against any dwelling house or other building when occupied by one or more persons, whereby the life or lives of any such person or persons may be put in peril...
    Now, you're right that, all by itself, malicious is a necessary part of the offense. But then we have that part about "if not malicious", and then an implication that it may still be unlawful.

    But, yes, again, it would take a lawyer to explain whether my interpretation is inapplicable, hopefully with some precedent.

  6. #6
    Campaign Veteran marshaul's Avatar
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    The Charlottesville police evidently feel the law entitles them to make felony arrests even if a discharge wasn't malicious:

    http://www.cavalierdaily.com/article...ischarges-gun/

    Fourth-year College student David Renardy was charged with a felony for discharging a gun in his apartment on Chancellor Street Tuesday. The bullet hit the neighboring Kappa Alpha Theta sorority house. No one was harmed in the incident.
    Now, I dunno if he was ever convicted, but even charging him was unconscionable.

    That right there is enough to confirm my view of this law as unacceptable. It should be quite unambiguous that an accident on one's own property, which harms nobody, is not justification to strip that person of right. (I'd go farther, but that much should not be up for debate.)
    Last edited by marshaul; 04-10-2013 at 05:02 PM.

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    Regular Member 2a4all's Avatar
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    Quote Originally Posted by TFred View Post
    Just so we all know the law you are referencing:

    18.2-279. Discharging firearms or missiles within or at building or dwelling house; penalty.

    If any person maliciously discharges a firearm within any building when occupied by one or more persons in such a manner as to endanger the life or lives of such person or persons, or maliciously shoots at, or maliciously throws any missile at or against any dwelling house or other building when occupied by one or more persons, whereby the life or lives of any such person or persons may be put in peril, the person so offending is guilty of a Class 4 felony. In the event of the death of any person, resulting from such malicious shooting or throwing, the person so offending is guilty of murder in the second degree. However, if the homicide is willful, deliberate and premeditated, he is guilty of murder in the first degree.

    If any such act be done unlawfully, but not maliciously, the person so offending is guilty of a Class 6 felony; and, in the event of the death of any person resulting from such unlawful shooting or throwing, the person so offending is guilty of involuntary manslaughter. If any person willfully discharges a firearm within or shoots at any school building whether occupied or not, he is guilty of a Class 4 felony.


    My question, is there any other section of code that make it unlawful to discharge a firearm inside your home? The first paragraph is all about malicious intent. The second paragraph keeps "unlawful" but removes malicious intent. Where is it stated that discharging a firearm inside one's own home is against the law? This section does not say that it is, but merely that if you do it unlawfully, then that is a crime. At best, this is a contribution from the Department of Redundancy Department.

    (I admit this may be a stupid question, I have not looked for the answer at all.)

    TFred
    First, the question about "any building". What about indoor shooting ranges? Here's at least one instance where it's lawful.

    18.2-287.4. Carrying loaded firearms in public areas prohibited; penalty.

    It shall be unlawful for any person to carry a loaded (a) semi-automatic center-fire rifle or pistol that expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with a magazine that will hold more than 20 rounds of ammunition or designed by the manufacturer to accommodate a silencer or equipped with a folding stock or (b) shotgun with a magazine that will hold more than seven rounds of the longest ammunition for which it is chambered on or about his person on any public street, road, alley, sidewalk, public right-of-way, or in any public park or any other place of whatever nature that is open to the public in the Cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, or Virginia Beach or in the Counties of Arlington, Fairfax, Henrico, Loudoun, or Prince William.


    The provisions of this section shall not apply to law-enforcement officers, licensed security guards, military personnel in the performance of their lawful duties, or any person having a valid concealed handgun permit or to any person actually engaged in lawful hunting or lawful recreational shooting activities at an established shooting range or shooting contest. Any person violating the provisions of this section shall be guilty of a Class 1 misdemeanor.


    The exemptions set forth in 18.2-308 shall apply, mutatis mutandis, to the provisions of this section.


    Now the question of "one's own home" may prove a bit trickier. There's always the issue of self defense, which is lawful. Otherwise?
    A law-abiding citizen should be able to carry his personal protection firearm anywhere that an armed criminal might go.

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    Regular Member TFred's Avatar
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    Quote Originally Posted by marshaul View Post
    OK, but it's not malicious. What do we have left?
    But you left out the word "unlawfully".

    So when you ask, "What do we have left?", you threw in a third option, that, barring an answer to my "stupid question" above, is not mentioned in the code at all.

    Remember, the courts have said (and you'd have to search through User's posts to find the cite) that they assume every word included by the legislators is there for a specific reason. You can't just arbitrarily leave one out.

    TFred

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by marshaul View Post
    The Charlottesville police evidently feel the law entitles them to make felony arrests even if a discharge wasn't malicious:

    http://www.cavalierdaily.com/article...ischarges-gun/

    Now, I dunno if he was ever convicted, but even charging him was unconscionable.

    That right there is enough to confirm my view of this law as unacceptable. It should be quite unambiguous that an accident on one's own property, which harms nobody, is not justification to strip that person of right. (I'd go farther, but that much should not be up for debate.)
    Well, let's see. Were the residents of the Kappa Alpha house put in peril? How are you going to convince some yahoos sitting in the jury box that the shooter knew absolutely and precisely where everybody in the KA house was, and you could, beyond any doubt at all, assure that the bullet would not inperil any of them regardless of what movement they made or did not make as the bullet left your gun until it came to rest?

    An Accidental Discharge (a mechanical malfunction of the weapon) is not a person discharging a firearm. Discharging a firearm requires a volitional physical activation of the mechanism.

    A Negligent Discharge is obviously not an accident, but a discharge caused by someone when the conditions undrer which the firearm ought to have been discharged were not optimal (place, time, manner). It implies responsibility on the part of the person.

    So, was this an AD or a ND?

    stay safe.
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  11. #11
    Regular Member TFred's Avatar
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    Quote Originally Posted by marshaul View Post
    I just now read this article... What in the WORLD is this writer smoking!?

    [Police Lt. Ronnie] Roberts said this does not happen on a regular basis, and it was not illegal for Renardy to have the firearm in his off-Grounds home. In Albemarle County, it is legal to possess a firearm as long as the owner has a valid driver's license and undergoes a proper screening process.

    The actual quotes from the LEO don't seem to point to him as the source of this monstrosity.

    By the way, this article was published April 21, 2011!

    TFred

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    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by skidmark View Post
    Well, let's see. Were the residents of the Kappa Alpha house put in peril? How are you going to convince some yahoos sitting in the jury box that the shooter knew absolutely and precisely where everybody in the KA house was, and you could, beyond any doubt at all, assure that the bullet would not inperil any of them regardless of what movement they made or did not make as the bullet left your gun until it came to rest?

    An Accidental Discharge (a mechanical malfunction of the weapon) is not a person discharging a firearm. Discharging a firearm requires a volitional physical activation of the mechanism.

    A Negligent Discharge is obviously not an accident, but a discharge caused by someone when the conditions undrer which the firearm ought to have been discharged were not optimal (place, time, manner). It implies responsibility on the part of the person.

    So, was this an AD or a ND?

    stay safe.
    skid, with all due respect, you're completely missing the point.

    This was a negligent discharge. But the law makes no distinction. It could have been accidental (you'll note my original post clearly evinces the same understanding of "accidental" vs "negligent" which you present), and there's no reason to suspect the result would have been any different.

    Even when it is negligent, I don't believe it ought to rise to a (semi) permanent abrogation of right.

    Moreover, TFred was the one who's reading of the law would preclude an arrest in this case. My reading, as indicated, would guarantee it.

    Which is precisely why the law needs to change.

    We're talking about a felony here. And I know plenty of gun owners who have had NDs. None of them deserve to be felons.

  13. #13
    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by TFred View Post
    But you left out the word "unlawfully".

    So when you ask, "What do we have left?", you threw in a third option, that, barring an answer to my "stupid question" above, is not mentioned in the code at all.

    Remember, the courts have said (and you'd have to search through User's posts to find the cite) that they assume every word included by the legislators is there for a specific reason. You can't just arbitrarily leave one out.

    TFred
    I'm not arbitrarily leaving it out. I'm leaving it out because the law specifically indicates that it applies to at least some circumstances where there is no malice. I still believe, and at least skidmark seems to agree, that if there is endangerment, there is a felony.

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    Hmmmmm. While I understand Marshaul's point, I kinda doubt the law was intended for that. However, that won't stop an anti-gun prosecutor if he thinks he can get away with it.

    I do notice there is no police exception, so if police fill a house full of holes while serving a warrant, they're felons.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

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    As already stated, it looks like the statute requires either malice or an unlawful act. The statute makes it illegal to shoot into an occupied dwelling in a way that endangers someone. Malice might include shooting into the house to scare its occupants (pure speculation on my part). The unlawful act would be the reckless handling of a firearm (http://leg1.state.va.us/cgi-bin/legp...+cod+18.2-56.1) like the negligent discharge. An accidental discharge, I would argue, is not an unlawful act. In the case of the sorority house shooting, the argument must have been that the firearm was handled recklessly.

    I don't think that the lawful use of a firearm inside a house is covered. If you are using the firearm for self defense, then it is the lawful use of force and 18.2-279 does not apply. Likewise, law enforcement officers that discharge their weapons in the line of duty for self protection or for the protection of others would also not be in violation of this statute as those discharges are lawful.

    I didn't have time to look up any case law so these are just my thoughts.

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    Regular Member sharkey's Avatar
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    Quote Originally Posted by marshaul View Post
    SNIP And I know plenty of gun owners who have had NDs.
    That scares me. They could have become convicted felons easily if those rounds penetrated someone.

    You're affirming what the anti's say.
    "Public opinion and votes have nothing to do with this. The challenge of the Court is not what they're going to do with votes. The challenge-- of the Court is are they going to protect people's rights." - Al Sharpton


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    "Unlawfully" requires proof of some independently unlawful act. E.g., if the negligent discharge occurred during the course of a burglary. The usual charge filed against folks who do something like that is "reckless handling of a firearm", a misdemeanor. Even there, though, "reckless" requires proof of a willful disregard for the safety of others; mere negligence won't cut it.
    Last edited by user; 04-11-2013 at 09:30 AM.
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    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by sharkey View Post
    That scares me. They could have become convicted felons easily if those rounds penetrated someone.

    You're affirming what the anti's say.
    You're confirming that you aren't what you claim. I have little time for trolling and disingenuousness.

    First of all, they could become convicted felons whether the round "penetrated" somebody or not, at least if they are subject to the whims of the Charlottesville police.

    Secondly, people make mistakes. It happens. Only an anti would make a comment like yours, in light of things like the following:

    http://www.youtube.com/watch?v=tZdeAVOiQmU

    Thirdly, how many drivers do you know who've had car accidents? It scares me to think that, at any point, any car could lose control and kill me.

    Lets make them all felons, shall we?

    That was a rather disgusting post. Why are you here?
    Last edited by marshaul; 04-11-2013 at 11:53 AM.

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    Quote Originally Posted by user View Post
    "Unlawfully" requires proof of some independently unlawful act. E.g., if the negligent discharge occurred during the course of a burglary. The usual charge filed against folks who do something like that is "reckless handling of a firearm", a misdemeanor. Even there, though, "reckless" requires proof of a willful disregard for the safety of others; mere negligence won't cut it.
    Ahhh. I feel a little better, now. Thanks.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

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    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by user View Post
    "Unlawfully" requires proof of some independently unlawful act. E.g., if the negligent discharge occurred during the course of a burglary. The usual charge filed against folks who do something like that is "reckless handling of a firearm", a misdemeanor. Even there, though, "reckless" requires proof of a willful disregard for the safety of others; mere negligence won't cut it.
    That's somewhat mollifying.

    What do you suppose was the reasoning behind the frat house case? A misdemeanor might be sensible, but they charged him with the felony, despite absence of recklessness or malice.
    Last edited by marshaul; 04-11-2013 at 11:53 AM.

  21. #21
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    Quote Originally Posted by marshaul View Post
    That's somewhat mollifying.

    What do you suppose was the reasoning behind the frat house case? A misdemeanor might be sensible, but they charged him with the felony, despite absence of recklessness or malice.
    Hard to say for sure. Could be an anti-gun cop or prosecutor. Could be the charges were later dropped or changed. Could be they found something that made it, shall we say, less than accidental.


    I'm also concerned about this line from the story, emphasis mine: "In Albemarle County, it is legal to possess a firearm as long as the owner has a valid driver's license and undergoes a proper screening process."

    Huh!?!
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  22. #22
    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by Citizen View Post
    I'm also concerned about this line from the story, emphasis mine: "In Albemarle County, it is legal to possess a firearm as long as the owner has a valid driver's license and undergoes a proper screening process."

    Huh!?!
    Yeah, you gotta wonder where they come up with that stuff.

    A driver's license? Really?

  23. #23
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    Quote Originally Posted by marshaul View Post
    That's somewhat mollifying.

    What do you suppose was the reasoning behind the frat house case? A misdemeanor might be sensible, but they charged him with the felony, despite absence of recklessness or malice.
    Absence of malice~yes. Absence of recklessness~absolutely reckless, stupid, dangerous, and fortunate no one was killed. Maybe charging with a felony was extreme, maybe not. If this ND happened from horseplay then yes he deserves the felony.
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    Regular Member TFred's Avatar
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    Quote Originally Posted by Citizen View Post
    Hard to say for sure. Could be an anti-gun cop or prosecutor. Could be the charges were later dropped or changed. Could be they found something that made it, shall we say, less than accidental.


    I'm also concerned about this line from the story, emphasis mine: "In Albemarle County, it is legal to possess a firearm as long as the owner has a valid driver's license and undergoes a proper screening process."

    Huh!?!
    I pointed that out earlier in the thread. It wasn't quoted, so I suspect it was an error on the author's part. The story is 2 years old anyway, the author has probably since graduated.

    TFred

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    Quote Originally Posted by marshaul View Post
    Yeah, you gotta wonder where they come up with that stuff.

    A driver's license? Really?
    Yeah. My great-grandmother never learned to drive. Small town, everything within walking distance, and all that. She was pretty fiesty even into her later years. Kept a revolver in the nightstand, don't you know.


    I'm also concerned about that screening process. Ouch! I wonder if they use a fine mesh like an archaeologist, or a course mesh like a quarry sorting out gravel. Do they go all TSA on you and make you strip, or can you wear denim during the process?
    Last edited by Citizen; 04-11-2013 at 12:13 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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