Courts Actually Use Existing Laws

One of the biggest problems in our justice system is that the courts rarely enforce the laws that would put criminals in jail for a significant sentence. Plea bargains and prosecutors who pad their records by filing 'lesser charges' are mostly to blame for these light sentences. In an effort to crack down on the drugs and violence in the city of Huntington, local prosecutors teamed up with the Feds to make sure that a drug dealer serves the maximum time possible:

Ambrea Virginia Ragland, 23, of Huntington, pleaded guilty Tuesday before United States District Judge Robert C. Chambers to carrying a firearm in furtherance of a drug trafficking offense.
... officers seized crack cocaine, heroin, ecstacy, marijuana, hydrocodone, oxycodone and a fully loaded .22 caliber revolver ...
Ragland is scheduled to be sentenced Oct. 6. She faces up to life in prison and a $250,000 fine.
Herald Dispatch, 7-10-2008

Now if only more communities would enforce existing gun laws, we could start to make a dent. But instead, I'm sure politicians will continue to push for more gun laws instead of using the thousands that are already on the books. After all, a lot of them only know how to propose redundant 'feel-good' legislation & help out their political friends. But really, what are they gonna do? Get honest jobs?

Ranson Withdrawals Illegal Ordinance

There was an attempt to pass an illegal city ordinance in the eastern-panhandle city of Ranson late last month. Basically, The Ranson City Council proposed an ordinance on June 17th that would have made it illegal for anyone (even those with a valid CPL) to carry a firearm onto any city property. According to The Journal (Martinsburg):

“A fellow showed up at a recreational event and apparently he or she had a gun and frankly we did not have the means by which to, no law saying they couldn’t have a gun,” Mayor A. David Hamill said.
The man did have a permit to carry a concealed weapon, but agreed to remove the gun from the public field. The council now wants to enact an ordinance that would allow the city to prohibit people from carrying firearms on public property owned by the city.
...“The state code allows you to pass an ordinance like this but you have to have an ordinance in order to enforce it,” said city attorney Andy Blake, who drafted the proposed ordinance.

Well, the problem with that is WV Code § 8-12-5a (1999) preempts county and local governments from making firearms laws that are more restrictive then the WV State Code. Since WV laws only specify a few government buildings (like courthouses) as gun-free zones, the city of Ranson has no legal right to further restrict the carrying of firearms.
After pressure from the West Virginia Citizens Defence League, the city of Ranson dropped the proposed ordinance from their agenda. WVCDL president Jim Mullins and other gun rights supports attended the next city council meeting on July 1st to express their thanks for the city dropping the ordinance.
But this may just be the tip of the iceberg. According to the WVCDL:

In the course of investigating this issue, we have found that several other cities may be violating the preemption law, emboldened, in part, by the poor drafting our current preemption law contains. For the last two years, WVCDL has had bills introduced in the Legislature (2007 SB 715 & 2008 SB 732) to substantially strengthen the preemption law and bring all state & local government agencies under its coverage.

According to the same story in The Journal cited above:

"(Ranson's ordinance was) the same type of ordinance that (city attorney Andy) Blake wrote for the city of Martinsburg that is now enforced. The ordinance itself uses the same exact language as the state code but the phrase 'government entities' was replaced with the 'city of Ranson'."

 While no reports of actual enforcement of the Martinsburg ordinance have been found through an Internet search, it is obvious that just the existence of this ordinance is in violation of the state code.

The Heller Ruling

I thought an appropriate first blog would be something that not only effected the citizens of West Virginia, but all American citizens as well. On June 26th, 2008 history was made: SCOTUS ruled that the Second Amendment was indeed an individual right (which 73% of Americans already knew). It was disappointing that it was only a 5-4 decision against the District of Columbia's draconian gun ban, but it was very reassuring that all nine justices, even those in dissent, recognized that the Second Amendment guaranteed an individual, not collective, right to bear arms. No longer can the argument be made that the Second Amendment only applies to the National Guard (which is not a true militia anyway - at least not the type meant by the authors of the Constitution).

The majority opinion also noted several other positive rulings. The first is that the government cannot ban an "entire class" of arms. This should end Chicago's handgun ban when it is challenged in the courts. There is also a likelihood that a ban on so-called 'assault weapons' would no longer pass muster. Some have even suggested this ruling negates the GCA of 1986 that no longer allows registering of select-fire weapons which have been manufactured since it was signed into law. It appears the GCA of 1936 will remain intact though since it is a tax - though requiring the local law enforcement to make an arbitrary decision on whether to sign-off on a Class III firearm could probably be challenged successfully. State prohibitions on Class III weapons may be vulnerable to repeal as well, as well as the .50 cal bans that exist in several states.

Second, while the ruling allows for some forms of licensing and registration, the process cannot be arbitrary. In other words, there must be plain, reasonable requirements spelled out for the licensing procedure, and those that meet the requirements must be issued a license. This most likely dooms a number of the gun control measures in places like NYC.

Third, the majority also recognized that the right can be restricted, but they didn't expand upon the restrictions that are already in place. For instance, they agreed that those adjudicated as mentally ill and convicted felons may be excluded from firearm ownership, and that government buildings, such as court houses or your local FBI field office, can forbid weapons on their premises.

Finally, one of the most legally relevant, and widely overlooked, parts of the this decision is pointed out by Alan Korwin over at the Buckeye Firearms Association:

The core issue of "judicial scrutiny" is now established -- better than we had dreamed -- in what will be known as Famous Footnote #27 (p56). Laws impinging on the Second Amendment can receive no lower level of review than any other "specific enumerated right" such as free speech, the guarantee against double jeopardy or the right to counsel (the Court's list of examples).
**See the complete ruling here**

Law suits were filed in San Francisco, Chicago, and several Chicago suburbs within hours of the decision. Now only time will tell how many of these unconstitutional restrictions on law-abiding citizens will be overturned.