Repeal Permit to Purchase to be heard tomorrow 6/08/2010

Glock9mmOldStyle · Jun 15, 2010

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We need to call on our NRA brothers to help us! If they haven't been informed of this already. I know my way around douche bag politicians (they love WaCo) & the one thing they are all scared Sh*Tless of is the NRA!

Bronson · Jun 15, 2010

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Glock9mmOldStyle wrote:

We need to call on our NRA brothers to help us! If they haven't been informed of this already. I know my way around douche bag politicians (they love WaCo) & the one thing they are all scared Sh*Tless of is the NRA!

The NRA is endorsing these bills and too many people will just swallow whatever pablum the NRA feeds them.

Bronson

Glock9mmOldStyle · Jun 15, 2010

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Oh Crap!

Glock9mmOldStyle · Jun 15, 2010

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Ok - this is just the HB correct? It still has to pass the Senate right? If so how much time do we have to sound the alarm, raise money for an ad campaign? We need to be screaming bloody murder at our reps. (in my case lost cause Basham(Sen.) & Geiss(Rep.) both Anti-Gunners!

stainless1911 · Jun 15, 2010

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This is why some call it Negotiate Rights Away. A prime exsample in fact.

Bronson · Jun 15, 2010

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Venator wrote:

Joel's reply to me.

Brian,

What you're saying is that Michigan should keep its requirement that forces everyone without a CPL who wants to purchase a handgun to obtain a permit from their local law enforcement agency because eliminating that requirement would take away a loophole in federal law that benefits a small number of gun owners who openly carry in federal school zones?

You may want to consider that position, if made public, would likely be counter-productive in winning support of open carry among Michigan's gun owners. Over 95% of the people who have e-mailed me on these bills have written in support of them.

The NRA has expressed no concern with the bills over the open carry issue. I support open carry and I agree with you philosophically that the requirement to obtain a CPL to carry is elitist. But the overall benefit to gun owners from HB 5972 and HB 5973 far outweighs the cost.

Due to opposition to the bills from gun control advocates, it is possible the bills may not move forward or may be amended in a way to only exempt some purchases from the permit.

Joel

Hmmm, is the bolded part a thinly veiled threat from Rep. Sheltrown?

Bronson

Ruckus · Jun 16, 2010

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FWIW...

One of the other Reps on the committee that discussed these bills forwarded my email to him to my Rep whom was not on the committee. She responded to it earlier today. In part, she mentions:

"After receiving your email, I took the liberty to speak with the bills' primary sponsor, Representative Kim Meltzer, regarding this legislation. She informed me that a substitute bill is under construction which would make this legislation only applicable to situations in which a weapon is purchased from a dealer with a Federal Firearms License. This ensures that purchasers are still run through the National Instant Criminal Background Check System when purchasing through an FFL licensed dealer, and if not, they must still receive a purchasing permit."

Bronson · Jun 16, 2010

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bandersnatch wrote:

FWIW...

One of the other Reps on the committee that discussed these bills forwarded my email to him to my Rep whom was not on the committee. She responded to it earlier today. In part, she mentions:

"After receiving your email, I took the liberty to speak with the bills' primary sponsor, Representative Kim Meltzer, regarding this legislation. She informed me that a substitute bill is under construction which would make this legislation only applicable to situations in which a weapon is purchased from a dealer with a Federal Firearms License. This ensures that purchasers are still run through the National Instant Criminal Background Check System when purchasing through an FFL licensed dealer, and if not, they must still receive a purchasing permit."

I don't see that as being workable with the FederalGun-Free School Zones problem.

Ifsomeone did not have a CPL andhe bought a pistol from a licensed FFL dealerhe would NOT be allowed to openly carry that pistol within 1000 feet of a school because, as I readit,the NICS check doesn'tmeet the requirements for exemption.

or....

Someonedoes not have a CPL andshe gets the required LTPa pistol from a private owner then she DOES fall under therequirements for exemption to the Federal 1000 foot rule.

That's a logistical nightmare. There willbe one segment of gun owners thatwould be illegal in a school zone and another segment that would be legal....that's asinine.

Bronson

Venator · Jun 16, 2010

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More emails from Representative Sheltrown

Brian,

I have been told since the last e-mail I sent you by one of the gun organizations in the state that Michigan's purchase permit isn't enough to qualify for an exemption from the federal law. I asked that organization to provide me with either a legal opinion or case law on that point. Do you have a statement from the feds or case laws that shows that it does qualify? Also, why does the NRA oppose open carry?

Joel

MY response:

Joel,

I don't have case law, just the part of the Federal act that exempts a person from the 1000' restriction (below). We have never had an issue with open carry in school zones because a background check is done for a handgun purchase and meets (ii) below. It's really about the background check and in essence a purchase permit is a "license" to possess the handgun so it meets the requirement. If you do get case law one way or the other please let me know.

Opsommer is in the loop and asked for an attorneys opinion and I forwarded all to Steven Dulan (I'm sure you know Steven). Perhaps Steven is the person you are referring to that has contacted you from a gun rights group. Steven said he would look it over and get back to me. That was last week.

I have sent an email to the Detroit office of ATFE for their take on this question.

AFTE link on school zones: http://www.atf.gov/publications/download/p/atf-p-5310-1.pdf

TITLE 18 > PART I > CHAPTER 44 > § 922 in part: (2)
(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.
(B) Subparagraph (A) does not apply to the possession of a firearm—
(i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;

The NRA may have changed it's stance but last year they were not in favor of OC. But as the popularity of OC increases they may have changed their view. I do know that GOA DOES support OC and was a supporter early on. Larry Pratt (Of GOA) OCs from time to time.
Cheers,

Brian

Brian,

Steve Dulan is not who contacted me but his opinion would be helpful. Regardless, my opinion on this issue is that the benefits of the elimination of the purchase permit for non-CPL holders far outweighs the impact of the federal rules for those non-CPL holders who open carry and that elimination of the purchase permit is the next step we need to make politically toward the elimination of registration. I would love to just eliminate registration now but that isn't realistic.

Joel

Venator · Jun 16, 2010

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Also recieved this from Rep. Sheltrown:

"That's a federal issue open carry advocates need to work to change. It makes no sense to oppose good state legislation that eliminates a needless requirement to obtain the state's permission to purchase a handgun because of an unrelated restriction in federal law. In policy making, this is called "making perfect the enemy of good". It happens when interest groups are so focused on their own narrow agenda that they are unable to step back and take a look at the whole picture. In this case, Michigan's open carry movement is lining up with gun control advocates in opposing the elimination of the purchase permit -a proposal supported by the great majority of legal gun owners in the state, the NRA, MCRGO and SAFR. If HB 5972 fails to pass, either due to opposition from gun control advocates or the simple inertia of the legislative process, many legal gun owners in Michigan are going to blame the open carry movement. That's not the type of political victory you're going to want."

stainless1911 · Jun 16, 2010

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Our opposition is the result of seeing the big picture:banghead:

detroit_fan · Jun 16, 2010

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What good is ths bill if they make you still get a PP for private transactions?

scot623 · Jun 16, 2010

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This is the perfect case for the old adage "if you don't use a right, you lose it". It would be one thing to say, every non-cpl holder gun owner in Michigan is losing the right to open carry in most major cities, or large parts of their small towns. But what the politician sees is "it's only gonna effect a couple thousand(if that) people who OC without a CPL so they don't matter".

Venator · Jun 16, 2010

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scot623 wrote:

This is the perfect case for the old adage "if you don't use a right, you lose it". It would be one thing to say, every non-cpl holder gun owner in Michigan is losing the right to open carry in most major cities, or large parts of their small towns. But what the politician sees is "it's only gonna effect a couple thousand(if that) people who OC without a CPL so they don't matter".

Yes you get it. This was an earlier exchange with Joel.

Joel,

One thing comes to mind is that if you are concerned about CPL holders, they already don't have to have a purchase permit to buy a handgun. So while the bill may help non CPL holders by removing the onus of a permit to purchase, the bill would eliminate their carry right near schools, which I have mentioned can include a large segment of public property in large cities.

Brian

Brian,[/i]
[/i]For the reasons you stated, the concern isn't about CPL holders. It is about the great number of legal gun purchasers in Michigan forced to go through this needless process of having to obtain permission from the state to purchase a handgun.

[/i]Joel[/i]

Joel,

Which is great, but not much good if they can't possess it in public areas, because they now fall under the federal gun free zones.
Brian.

scot623 · Jun 16, 2010

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Joel sure is confident in his mind that 95% of gun owners don't carry. He must think eveyone buys a gun and leaves in the nightstand.

DrTodd · Jun 16, 2010

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If you don't think anyone has been prosecuted under the new and revised Gun Free Zone Act, think again:

United States v Danks (1999) http://openjurist.org/221/f3d/1037/united-states-of-america-v-jordan-danks

United States v Tait (2000) (Attempted prosecution of an Alabama permit holder)
http://openjurist.org/202/f3d/1320/united-states-v-tait

United States v Nieves-Castaño (2007) Was charged & Convicted in her own home!
http://openjurist.org/480/f3d/597/united-states-v-nieves-castao

United States v Weekes (2007) http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=gdih&searchTerm=eOUI.hYga.aadi.YbWc&searchFlag=y&l1loc=FCLOW

United States v Cruz-Rodriguez (2008) https://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=gdif&searchTerm=eUKY.KSSa.UYeO.HbLY&searchFlag=y&l1loc=FCLOW

Venator · Jun 16, 2010

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United States v Nieves-Castaño (2007) Was charged & Convicted in her own home! In Puerto Rico: THIS WAS BECAUSE SHE WAS LIVING IN PUBLIC HOUSING near a school, so perhaps she was in violation. Would a public house be considered private property???? I don't know.

http://openjurist.org/480/f3d/597/united-states-v-nieves-castao

My comments in red.

DrTodd · Jun 16, 2010

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Venator wrote:

United States v Nieves-Castaño (2007) Was charged & Convicted in her own home! In Puerto Rico: THIS WAS BECAUSE SHE WAS LIVING IN PUBLIC HOUSING near a school, so perhaps she was in violation. Would a public house be considered private property???? I don't know.

http://openjurist.org/480/f3d/597/united-states-v-nieves-castao

Click to expand...

My comments in red.

Recent lawsuit in San Francisco over this issue: http://www.nraila.org/News/Read/NewsReleases.aspx?ID=12060

My guess is that she 1) had poor representation in the first trial, 2), her argument of "vagueness" was week in the appeal... overall, crappy legal representation (IMHO) ...convicted under the law nonetheless.

Venator · Jun 16, 2010

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Todd what a great find. This case answerstwo questions. Oneof whether a Michigan purchase permit counts for exemption (ii). Seems it does. Also it addresses the question that has come up before. If Michigan expunges a felony under state law does it also count in federal law? The answer seems to be yes.

United States v Tait (2000)
http://openjurist.org/202/f3d/1320/united-states-v-tait

Feds recognises any states felon restoration rights.

This Court finds that Michigan law provides for the automatic reinstatement of all civil rights of convicted felons following release from custody and completion of probation. Thus, once [the defendant] completed his sentence ..., all or essentially all of [his] civil rights-namely, his right to vote, to hold public office, and to serve on a jury-were "restored automatically by the force of the very [Michigan] laws that suspend[ed] them."

[/i]Also it seems that any license to possess a firearm is counted as an exclusion from the 1000’ rule. In this case the person had a permit to possess a handgun issued in Michigan and Alabama and was in Alabama school zone.It also states that if the state is happy with how they handle firearm possession then so is the fed. At least that’s my understanding. Read the decision for yourself.

The grand jury's second count against Tait charges him with a violation of 18 U.S.C. 922(q)(2)(A) (the "Gun-Free Subparagraph (A) does not apply to the possession of a firearm ... if the individual possessing the firearm is licensed to do so by the State in which the [/i]school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license....

18 U.S.C. 922(q)(2)(B)(ii).

The Gun-Free School Zone Act dictates that Tait violated federal law via possessing a handgun in a school zone unless Tait was licensed by Alabama, and either Alabama or Escambia County verified that Tait was qualified to receive the license.[suP]5[/suP] As Tait did possess a handgun in a school zone, and Tait was licensed in Alabama, the issue boils down to whether Alabama or Escambia County adequately verified that Tait was qualified to receive the license.

Alabama's licensing requirements are lenient: The sheriff of a county may, upon application of any person residing in that county, issue a qualified or unlimited license to such person to carry a pistol ... if it appears that the applicant has good reason to fear injury to his person or property or has any other proper reason for carrying a pistol, and that he is a suitable person to be so licensed.

Ala.Code 13A-11-75 (1975). The government argues that Tait's license is void for purposes of 922(q)(2)(B)(ii) for two reasons: first, because Alabama's requirements for verifying an applicants' qualifications are too relaxed to ever qualify their licensees for 922(q)(2)(B)(ii) protections; and second, because Tait was not a suitable person to be licensed under Alabama law. According to the government, these licensing deficiencies resulted in Tait receiving a void license which did not qualify for the exception in 922(q)(2)(B)(ii).

The government first argues that Alabama licenses never qualify for the exception in 922(q)(2)(B)(ii) because Alabama does not require its licensing agents to conduct background checks on firearms license applicants. The 922(q)(2)(B)(ii) exception only applies if "... the law of the State ... requires that ... [the sheriff] verify that the individual is qualified under law to receive the license." 18 U.S.C. 922(q)(2)(B)(ii). By its basic terms, the statute merely requires that the Alabama sheriff ensured that Tait was qualified under Alabama law to receive the license. While the Alabama law is extremely lenient, it is nonetheless the only pertinent law. Alabama has chosen its laws, and these are the laws which determine whether the federal statute's exception applies. See Caron v. United States, 524 U.S. 308, 118 S.Ct. at 2011-12, 141 L.Ed.2d 303.[suP]6[/suP] Alabama is free to set forth its own licensing requirements, and Congress chose to defer to those licensing requirements when it established "qualified under law" as its criterion for the exception to the Gun-Free School Zone Act. Therefore the government's first argument with respect to 922(q)(2)(B)(ii) is rejected.[suP]7[/suP]

The government next argues that Tait failed to qualify for an Alabama license, even under Alabama's lax standards, because Tait was not a suitable licensee. The government maintains that Tait was not suitable based on Alabama Code section 13A-11-72(a), which provides: "No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his ... possession or under his ... control." Ala.Code 13A-11-72(a) (1975). The government's argument fails due to a recent Eleventh Circuit opinion, United States v. Fowler, 11th Cir., 1999, 198 F.3d 808 (1999). The Fowler court held, "Without an express limitation on the certificate restoring civil and political rights ..., under Alabama law the restoration of civil and political rights restores the firearm rights limited by 13A-11-72(a)." Id.

The government tries to distinguish Fowler on two bases: first, that the defendant in Fowler received a written pardon restoring his civil rights (whereas Tait's civil rights were restored via operation of Michigan law); and second, that the Fowler case involved the interpretation of 922(g) rather than 922(q). Both distinctions are irrelevant. First, the Supreme Court held in Caron, "Massachusetts restored petitioner's civil rights by operation of law rather than by pardon or the like. This fact makes no difference." Caron, 524 U.S. 308, 118 S.Ct. at 2011, 141 L.Ed.2d 303. The critical issue is whether civil rights were restored unconditionally-not how the civil rights were restored. Tait's civil rights were restored, without reservation; thus Tait is entitled to the same protections as any other person without state-imposed limitations on his civil rights-including the protections of the 922(q)(2)(B)(ii) exception.

As for the government's second point, the fact that this court was evaluating 922(g) rather than 922(q) in Fowler is entirely irrelevant. Utilizing Fowler's line of reasoning, this court holds that Tait's firearms rights were restored for purposes of exceptions to 922(g) as well as 922(q). Fowler held that a felon's right to firearms was completely restored for purposes of removing 13A-11-72(a) limitations. Fowler, 198 F.3d 808. Tait's suitability for firearms licensing was equally restored. To hold otherwise would be non-congruous with Fowler. We therefore hold that the district court properly dismissed Count Two of the indictment against Tait.

Bronson · Jun 16, 2010

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Here's the letter I sent to the members of the committee and some of their responses.

Dear Representatives,

I would like to offer my thoughts on HB-5972, to repeal the License to Purchase requirement for buying a pistol.

I could support this IF, and only IF, obtaining a Michigan Concealed Pistol License (CPL)followed the current rules for obtaining a License to Purchase (LTP), i.e.,no feeand with no required class.

As it stands now HB-5972 will serve to remove the ability of a person who cannot afford a Michigan CPL to effectively openly carry a firearm in urban areas by negating the exemption Michigan currently has to the Federal Gun-Free School Zones(paragraph q, sub-paragraph 2, heading ii). HB-5972 would effectivelyremove the right to bear armsfromALL people and give it only tothose whoare abletopurchaseit via the CPL process.

It is irrelevanthowmany people actually open carry sans CPL, what matters is that we, all of us, are able. If HB-5972 passes it will remove real, actualabililty to carryarms for the sake of some perceived convenience.

If HB-5972 passes as written residents of Michiganwill lose something while gaining nothing of substance in return.Michiganresidentswill still have to registertheirpistols andthey will stillbe required to undergoa background check when purchasing a firearm; HB-5972 just moves that onus from the localpolice departmentvia the LTP system currently in place to thelicensed firearmsdealer via the National Instant Check System. HB-5972provides no tangiblegainstoMichigan residents while robbing those residents who are not financially able topay the onerous fees associated with a Michigan CPL of the ability toeffectivelyopenly carry a pistolin urban areas.

In my opinion this bill, as written,is nothing more than feel-good legislation that offers no real gain in freedom to Michigan residents and should be re-evaluated and re-written to better serve the needs of ALL firearm owning residents of this state.

Thank you for your time.

Bronson

Battle Creek, MI
Michigan Open Carry Inc., Charter Member

Joel Sheltrown's response:

Amendments like the ones you are suggesting would kill HB 5972. Even then, it wouldn't resolve the objection many open carry advocates have to CPLs -the need to obtain the state's permission to carry. This isa federal issue open carry advocates need to work to change. It makes no sense to oppose good state legislation that eliminates a needless requirement to obtain the state's permission to purchase a handgun because of an unrelated restriction in federal law. In policy making, this is called "making perfect the enemy of good". It happens when interest groups are so focused on their own narrow agenda that they are unable to step back and take a look at the whole picture. In this case, Michigan's open carry movementis lining up with gun control advocates in opposing the elimination of the purchase permit -a proposalsupported by thegreat majority of legal gun owners in the state, theNRA, MCRGO and SAFR. If HB 5972 fails to pass, either due to opposition from gun control advocates or the simple inertia of the legislative process, many legal gun owners in Michigan are going to blame the open carry movement. That's not the type of political victory that will benefit open carry in the long-term.

Ken Horn's response:

Mr. Bronson,

Thank you for your email. I am in support of the bills, but will check with the sponsor on the issue you raise with regard to the elimination of a current exemption. Thank you for making me aware of this, and your position on the bills.

Kenneth B. Horn
State Representative
94th District

Richard LeBlanc's response:

Dear Mr. Bronson: Thank you for writing regarding HB 5972 and HB 5973. As an unabashed supporter of our Second Amendment Rights, it is likely I will support both bills, provided they are adopted as currently proposed.

While I support the effort to remove pistol free zones, these are two separate issues. Were an amendment offered to remove gun free zones, it would likely prevent these worthy bills from being enacted. Unfortunately, support for the removal of gun free zones does not currently exist in the state legislature. While I will continue to seek to protect our Second Amendment Rights, I cannot make the perfect the enemy of the good.

In addition, removing the feeandrequiredtrainingfor obtaining a CPLwould not receive sufficient support at this time.I am afraid that I do not share your interpretation of the effect of these bills. I do not see how removing a restriction to the purchase of a pistol in Michigan denies non-CPL holders their Second Amendment Rights. These bills accomplish much to defend our Constitutional rights. It would be a shame to see this legislation fail because support for a related, but separate, issue is lacking.

Regards,
Richard LeBlanc
State Representative
18th District (Westland)

Bronson

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