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Thread: Dept of Forestry says CHP only

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    Accomplished Advocate peter nap's Avatar
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    Public comments may be made by email; here's mine. Feel free to email your own, even if it's just, "yeah, what he said." Send them to: ron.jenkins@dof.virginia.gov


    To: Ronald S. Jenkins, Administrative Officer

    Re: Proposed Regulation 4VAC10-30(amending 4VAC10-30-170)

    Comment:

    I regret that I will be unable to attend the public hearing scheduled on the
    subject matter of this proposed regulation. I ask, therefore, that you take
    the following into consideration.

    I note in the description you published, you acknowledge that the Second
    Amendment to the Constitution of the United States prohibits any
    interference with the right of citizens to own and possess firearms (a legal
    point that I would say has yet to be established with respect to state
    agencies). And then proceed to describe a regulation that does precisely
    that which is prohibited.

    I take the position that Article I, Section 13 of the Constitution of the
    Commonwealth of Virginia, upon which the text of the Second Amendment to the
    U.S. Constitution was modeled, does prohibit any interference with the
    lawful carrying of firearms, whether openly or concealed, by the Department.
    The general grant of authority upon which you premise your proposed
    regulation, Va. Code Section 10.1-1101, does not authorize acts in violation
    of the Constitution of Virginia.

    The Department does not have the authority to prohibit the ownership, use,
    or possession of firearms. The statute you cited relates only to the power
    to "promulgate regulations necessary or incidental to the performance of
    duties or execution of powers conferred under this chapter...". There is no
    rational way to understand how regulation of the mere possession of firearms
    relates to management of forest resources as described in that chapter of
    the Code, nor is there any code section in the said chapter as to which the
    regulation of possession of firearms would either be necessary or
    incidental.

    Moreover, the Department is a "locality" within the definition specified in
    Va. Code section 15.2-915, which further states that, without a specific
    grant of authority to regulate the possession of firearms, no agency or
    department of the Commonwealth may do so. That is a clear statutory
    prohibition.

    Thus, enactment of the current regulation was an ultra vires act, taken
    without the authority to do so, and thus legally void. Any person detained
    or interfered with on account of his possession of a weapon would have
    grounds for a lawsuit against every person, personally, who acted beyond the
    scope of his lawful authority in attempting to enforce such a regulation.
    (When one is engaged in acts beyond the scope of his authority as an agent
    of the Sovereign, sovereign immunity does not apply.)

    Finally, anyone who chooses to take legal action merely to challenge the
    regulation would be entitled to damages and his legal fees, also pursuant to
    Va. Code section 15.2-915.

    I suggest to you that this is an opportunity to bring the documentation into
    line with reality. The regulations need to reflect the state of the law.
    Any attempt to exceed the grant of authority actually conveyed (and note
    that the Constitution creates limits upon the legislature's ability to grant
    authority) would constitute an act for which individuals in the Department
    may be personally liable. The Dillon Rule applies to all creatures of the
    Commonwealth, including agencies and departments; it is not limited to
    municipal corporations. The Department simply does not have the authority
    to regulate the ownership or possession of firearms, period. That is the
    state of the law, which I suggest the regulations must reflect.

    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Wow, nicely done user.

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    Regular Member TFred's Avatar
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    Using the number recently cited on the floor of the Virginia House of Delegates, and the estimated 2009 population of the state of Virginia cited on Wikipedia, this means that only 2.9% of Virginia citizens will be allowed to protect themselves in state Forests.

    TFred

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    Accomplished Advocate peter nap's Avatar
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    Ahh, well, thank you.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Regular Member kennys's Avatar
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    We need to hit this one hard, I can't say I didn't see it coming, I just hope we can stop it and keep this permit only crap to a minimum if not non exist ant. It is a right, not a privilege and the paper only seems to muddy the water.

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    Anyone without a CHP willing to give it a go?

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    Regular Member kennys's Avatar
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    peter nap wrote:
    If you notice, the report says:
    “In
    Florida… permit holders are about 300 times less likely to perpetrate a gun
    crime than Floridians without permits.”

    So the P4P view is getting clearer now. People with permits are good people.

    Non Permit Holders are thrown in one barrel, holding OC only, drug dealers, murderers, generally ALL criminals.
    That is until they try to entice all by the P4P view and make it look more pro gun than it is. Couldn't you actually say it isthe road to turning a permit into a privilege rather than a right? Than criminals that have not been caught yet get a permit, or those missed by a system that has failed beforeand that caught with it, than it gives fuel to the anti gun agenda in that they will try and add more road blocks into getting a permit because their thinking is it would be too easy. Example look at one of the first things they started harping on after the Appomattox shootings, "he had a permit". If this were to happen wouldn't this put us back at square one with an up hill battle?

    Kind of makes me a little boxed in in the D if you do D if you dont .

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    Regular Member Thundar's Avatar
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    peter nap wrote:
    scarletwahoo wrote:
    Anyone without a CHP willing to give it a go?
    If you're asking if anyone is willing to break the law, I hope not. This needs to be changed through the system.

    Trying to take a Heller approach is expensive, time consuming and way too early.
    Well is this breaking a law or a regulation . It is the VAC not the code of Virginia, right?

    Challenging the regulation might not even require a regulation infraction.

    The agency is pre-empted. We clearly state this during the rule making process and document our desire to exercise our right in the state forrest. After the rule is promulgated we sue in circuit court. Hopefully even the court costs are recovered from the state agency for violation of preemption.

    Would be interesting to see what the courts do with the issue.

    My only concern is that the forrester may try to use the college carry litigation, which IIRC, did not go well for gun owners.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitableand let it come! I repeat it, Sir, let it come . PATRICK HENRY speech 1776

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    Makes you wonder if they would ever try to prosecute anyone violating this regulation, especially if the one charged showed a propensity to challenge the regulation.

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    Regular Member riverrat10k's Avatar
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    Thanks for the letter, User. I dumbed it down to my speech patterns and sent it on.

    As usual, a real asset on this board.

    Oh, and you too, Peter:P
    Remember Peter Nap and Skidmark. Do them proud. Be active. Be well informed. ALL rights matter.

    "An armed society is a polite society. Manners are good when you may have to back up your acts with your life."

    --Robert A. Heinlein

    Hey NSA! *&$# you. Record this--- MOLON LABE!

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    Regular Member riverrat10k's Avatar
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    Maybe a CHP holder OC'ing without permit?
    Remember Peter Nap and Skidmark. Do them proud. Be active. Be well informed. ALL rights matter.

    "An armed society is a polite society. Manners are good when you may have to back up your acts with your life."

    --Robert A. Heinlein

    Hey NSA! *&$# you. Record this--- MOLON LABE!

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    Regular Member kennys's Avatar
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    riverrat10k wrote:
    Maybe a CHP holder OC'ing without permit?
    +1

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    Regular Member Repeater's Avatar
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    peter nap wrote:
    This is the reason I kept asking McDonnell direct and pointed questions during his press calls.

    This is one time I expect to hold his feet to the fire. I hadn't said much about it lately because I was waiting for it to come out in the State Register. It did on the 15th and it's time to start cranking the vise handle.
    We will see very soon whether Bob McDonnell is truly an ally and defender of Virginia gun owners or not.

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    The public hearing date had to be changed from March 2 to March 4 from 1
    to 4 PM and will be held at:

    Buckingham Agriculture Center Auditorium

    13360 West James Anderson Hwy

    Buckingham, VA 23921



    Ron Jenkins
    Assistant State Forester
    Policy, Planning and Budget
    900 Natural Resources Drive, Suite 800
    Charlottesville, VA 22903

    Office 434 220 - 9022
    Cell 434 531 - 5985
    Fax 434 977 -7749
    ron.jenkins@dof.virginia.gov
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    I have let VA-ALERT subscribers know about the comment period and start the comments rolling in.

    However, the location I am showing for the hearing is on 54 Administration Lane....

    Damn - I wonder which is right.

    The alert asks everyone to also ask for open carry to be allowed, too.


    **UPDATE: They are both right, but the Administration is probably the correct one. Administration lane is a half circle that runs off Route 60.


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    Moderator / Administrator Grapeshot's Avatar
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    Thundar wrote:
    snip......

    The agency is pre-empted. We clearly state this during the rule making process and document our desire to exercise our right in the state forrest. After the rule is promulgated we sue in circuit court. Hopefully even the court costs are recovered from the state agency for violation of preemption.

    Would be interesting to see what the courts do with the issue.

    My only concern is that the forrester may try to use the college carry litigation, which IIRC, did not go well for gun owners.
    Actually no, state agencies are not preempted - localities (municipalities) and their agencies are so preempted.

    § 15.2-915.
    Control of firearms; applicability to authorities and local governmental agencies.


    A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.
    In short, the state has not addressed the issue of state agencies. The GA itself by Joint Committee rule made the changes regarding carry in the GAB and Capital Bldg without any change in the statutes.

    This very issue that is being addressed by some with the Governor and Attorney General.

    Yata hey


    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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