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Sunday, January 24, 2016
Friday, January 15, 2016
Steve Hofstetter, a comedian made on YouTube fame, may have committed gun-buying shenanigans at the January 10th, 2016 Henderson Gun Show. It appears that he induced his fellow comedian Brent Mukai to commit a straw purchase when Hofstetter himself was the one interested in the gun and wanted it for his video. Not shown on video is whether or not the buyer, Mukai, handed the gun over to Hofstetter, and what the exact nature of the transfer was. According to the heavily edited video, Hofstetter provided the money to purchase the firearm on behalf of Mukai and additionally offered to compensate Mukai with a steak dinner for his trouble.
Hofstetter made the video for YouTube, which can be viewed here, but you probably shouldn’t watch it just to deny him the satisfaction of the view count going up.
Nevada Carry has contacted the ATF and asked them to investigate the matter. The uncut video would likely shed more light on exactly what happed. Most likely, there is enough gray area to avoid any legal charges, but its definitely shady and I doubt the dealer involved in the sale would be happy with their 'appearance.'
Lots of things are wrong with what Hofstetter alleged in his video. Frankly, if you are ignorant enough to get the basics wrong, you really shouldn't have an opinion on the topic. In Nevada, the Department of Public Safey Point-of-Contact center (POC) conducts the background checks, not the FBI NICS call center.
The buying an apartment/house analogy doesn’t hold water either. Apparently, passing a background check run through federal and state law enforcement databases and completing the ATF Form 4473 is ‘too easy.’ I’m sure that if landlords and banks had computerized databases on all the information they need, buyers/renters would be approved faster and we might have avoided the 2008 recession. Scratch that last one, I saw The Big Short.
Purchasing an apartment requires use of private background check and credit check resources that are not as comprehensive as law enforcement records and also take longer. The best indication of future performance is by checking references; a new landlord has to call old landlords to verify this. The government doesn’t have a database of people who pay their rent late and trash apartments; it does have a database of people who shouldn’t own guns.
Businesses, such as a leasing company, also has interests that a the federal government does not. Renting an apartment is also not a constitutional right that is being eroded daily.
Bringing a dog in to a restaurant (in this case, BJs on Eastern in Henderson, which is gun friendly) rejected the comedians non-service dog from entering. A dog that is not trained, like a service dog is, can cause a lot of problems in a restaurant. I’ll leave that to your imagination. Brining your dog with you everywhere is also not a constitutional right. And for Hofstetter’s sake, let’s hope he was only kidding about having ‘his’ gun on him because I didn’t see that it was openly carried and I doubt that he has a concealed firearm permit.
I really wonder why ‘comedians’ and liberals think it’s okay to abuse logic, facts, and break the law (actually or implied) to try and prove their point. What did Hofstetter prove here? That he bought a gun at a gun show and had a background check done? Maybe he should have went to a private seller if he was trying to make a point. That Nevada and its businesses respects the people’s right to self-defense? That being able to pay a mortgage or rent on time has nothing to do with whether or not someone is prohibited from buying firearms?
Finally, Hofstetter leaves the 'gun' in a box on the sidewalk along the Strip. Though the box was probably empty, implying they left it on the street was insultingly stupid.
Hofstetter engaged in legally dubious activities to make a poorly articulated point, in a pretty childish and unfunny manner. Like most liberal anti-gun personalities, Hofstetter ignored most of the facts and legalities to suit his own warped opinions. Such a disingenuous video and obvious disregard for reality invalidates whatever argument he might have been trying to make. If you can’t argue honestly, you’re probably wrong. Despite his assurances that he does support the Second Amendment, such behavior indicates he does not.
Mr. Hofstetter, please stay the hell out of Nevada and our business.
Update 1/18/20: Based on tips by Nevada Carry and others, our sources report that the ATF has begun an investigation into this matter. We don't have official confirmation of that yet. Hofstetter is denying any criminal activity:
Update 1/18/20: Based on tips by Nevada Carry and others, our sources report that the ATF has begun an investigation into this matter. We don't have official confirmation of that yet. Hofstetter is denying any criminal activity:
The criminal elements here are up to the ATF to determine, but it definitely appears that this little stunt was not well thought out and now Hofstetter is backpedaling to explain himself. Chances are, no charges will be filed against Hofstetter et al but if the ATF is willing to investigate a video by a comedian, then clearly enforcing gun laws isn't quite the problem the anti-gunners are making it out to be.
Here's what Nevada attorney Ben Bunker has to say about straw purchases.
Sunday, January 10, 2016
As the Las Vegas-Clark County Library District Board of Trustees meets later this week, they will not be discussing the hot topic of open carry in the library. At the board’s November meeting, citizens expressed their concerns over self-defense, the equal application of the law, and the library district intentionally exposing itself to a costly lawsuit. Despite a half-dozen citizens, including Assemblywoman Shelton, speaking out against the district’s illegal actions, no trustee decided to step up and tackle the issue.
Of interest in this matter is a recent action of the Denver (Colorado) Science Museum. They have chosen to remove their policy and signage asking concealed carried weapons stay out of the building. Doing so anyway was not illegal, as Colorado state law (CRS 18-12-214), only prohibits carrying concealed firearms into buildings that have security and weapons screening devices permanently in place at each entrance. The city of Denver is allowed under state law to prohibit openly carried firearms.
The Museum's previous policy was as follows:
"It is the policy of the Denver Museum of Nature & Science to restrict the presence of weapons within this facility or controlled parking areas. This policy applies to all employees and volunteers of the Museum, visitors, vendors or those who are not specifically authorized to carry such weapons."
The museum’s new policy brought it into alignment with the Denver Zoo and Art Museum, both of which also allow carrying concealed firearms. All three facilities are part of the city’s Scientific and Cultural Facilities District.
The change in policy was based upon recent terrorist attacks and a concern for employees and visitor safety. Vice Present of Finance and Business Operations Ed Scholz told the Denver Business Journal
"'Paris and San Bernardino got people thinking 'are we doing best practices?' This is a change we decided to make,' Scholz said. 'The safety of our guests and staff is the No. 1 priority of the museum ... it always has been, and we believe we're doing everything we can to keep people safe.'"
"'I think the quick insinuation is that, 'oh the museum is allowing guns,'' he said. 'That's not what's happening. You have to have a permit, the permit allows you to carry it. There's nothing I can do about that, I don't write the law.'"
Despite the usual rhetoric from the anti-gun crowd, the change was pretty much a non-event. The Denver Zoo and Art Museum has not seen any incidents involving a concealed carrier behaving badly, nor an increase in crime because concealed firearms are allowed in.
The Las Vegas-Clark County Library District could easily take the same approach. The library administration can inform staff of the legality of openly carried firearms in the library. Ideally, the trustees should repeal Rule of Conduct #3 and affirm the legality of open carry under state law. It is the district’s employees and counsel which seem to have forced this matter to become an issue. Rather than simply respect state law, they chose to defy it. Though Nevada’s laws differ from Colorado’s, the decision and the reasoning behind it are based on principles that would apply hear. The LVCCLD should take a lesson from Denver.
Thankfully, there have been no further reported incidents of a citizen lawfully carrying a handgun openly being harassed at the libraries, yet this does not mean the district is quietly acknowledging the law. Only time will if the district is continuing to enforce its quite illegal policy as citizens continue their business of patronizing their public libraries.
Board of Trustees meet Thursday, January 14, 2016 at 6:00 PM at the West Charleston Library, 6301 West Charleston Blvd. Las Vegas, NV 89146.
Tuesday, January 5, 2016
I’ll be the first to give President Obama credit. He’s not a tyrant after all—just a grossly incompetent president who wishes he could exercise the authority of a dictator. Obama is restrained by something, and I won’t shy away from admitting that I believe that restrain is indeed supernatural, providential restraint. Obama acted entirely within the law using his executive powers to direct the ATF, FBI, and other federal agencies.
In essence, all the president did was ask the ATF to do its job. He didn’t set a magical number on gun sales making people suddenly “engaged in the business”, in part due to the problems I pointed out in my previous article yesterday.
Obama made it easier for you to buy machine guns, short barreled rifles, silencers, and the like. He did remove the trust exemption from NFA item background checks, but by removing the chief law enforcement officer sign-off requirement, he obviated the actual need for trusts. Trusts became popular because a corporation (which a trust is), can’t be fingerprinted, background checked, and don’t need the approval of a potentially hostile chief of police or sheriff’s signature. Many anti-gun cops have sunk NFA item applications over the year. In Nevada, for instance, the only real problem is the local constabulary (I’m looking at you Sheriff Lombardo) approving the paperwork in less than 30 days.
All in all, pretty much nothing changed. Now if you’re somebody who sells guns privately to make a living, you might be concerned the ATF is going to start paying more attention to you. Do yourself a favor and go get an FFL, a business license, and pay taxes like the rest of us.
So yes, I will give Obama credit for not going full-retard and declaring all guns illegal. It was a long-shot in any case, but there was some question at how much infringing he would do. The rest of his proposals are crap, but other writers cover those better than I could. In short, while Obama would sign any anti-gun bill the Congress would pass, he’s not quite a tyrant and begrudgingly respects the law. America is a land where law rules, even if it gets a little murky at time. I will give my due respects to the president for being a bigger man than most of us would give him credit for.
Monday, January 4, 2016
Many news stories are reporting that President Obama is set to announce an executive order on the topic of gun control. This executive order is intended to limit private sales and increase the numbers of gun sales or transfers that require a background check. Incidentally (perhaps intentionally too), it will also gut gun shows of private sellers, some of whom admittedly probably should be licensed, based on volume. Unfortunately, this executive order will have a chilling effect on the right to keep and bear arms, increase the power of an ineffectual agency, the ATF, and is a redundant measure to existing laws which go largely unenforced.
As a hostile Congress has repeatedly stymied Obama’s requests to close this or that loophole and pass “meaningful” gun control, an executive order is his last resort. Obama has stated several times in the past few months that gun control is the final major objective he would like to achieve before leaving office. Out of all the options available to him, he has arrived at empowering the ATF, by using its regulatory discretion (authorized by Congress long ago), to precisely define what being “engaged in the business” of buying and selling firearms is exactly.
President Obama’s executive order is intended to cut down on the numbers of private gun sales that cannot be tracked through background checks. The ultimate plan, as I have unveiled in my exposé of the UBC initiative, is to force all sales through dealers, under the guise of increasing background checks to ease the implementation of a sale/transfer based gun registration system.
If President Obama’s executive order passes, and universal background checks for that matter, gun buyers will be required to pay at least $25 in Nevada, perhaps more, depending on the dealer, to buy or transfer a gun. In states like California where private sales are illegal, the fees generally run from $75 to $100 or more dollars.
“Engaging in the business”
Many are wondering exactly what can the president do? Federal officials admit that “engaging in the business” is a hard phrase to define, in terms of numbers and conduct. Suggestions have been made for over two decades to more strictly define the term to narrow who may sell without a license. First, we need to understand the phrase "engaged in the business".
The 1968 Gun Control Act defines: "engaged in the business" as:
“as applied to a dealer in firearms, … a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms...”
and “with the principal objective of livelihood and profit” as:
“The term ‘with the principal objective of livelihood and profit’ means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection; Provided, That proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism...”
President Obama’s power in this particular case is limited strictly to his control as chief executive over the Bureau of Alcohol, Tobacco, and Firearm. As they have done before regarding various types of ammunition and devices like the Sig Brace, the ATF can make some regulatory decisions. Congress has specified that the ATF may create regulations to further the enforcement of legislation. In this case, the president will direct the ATF to create a numerical definition of “engaged in the business” of buying and selling firearms.
This is entirely in keeping with the power of the ATF and the president, even though it contradicts a strict view of the Second Amendment and confuses the issue of separation of powers. President Obama cannot ban gun shows, he cannot ban private gun sales, and he cannot mandate universal background checks, at least not without becoming a dictator.
He can however decimate gun shows by threatening private sellers with their large numbers of guns for sale with prosecution if they sell X number of too many guns. At the extreme end of the debate on what the president will do, some have said that “multiple” sales, meaning more than one gun in a given period, would equate being “engaged in the business.”
How many make it business?
The question is not is President Obama going to place a number on what constitutes “engaging in the business”, but rather, what that number is going to be.
Several cases found the following variation in numbers that under the totality of the circumstances equaled “engaging in the business.” For example: 30 firearms bought and sold over a 4-month period, three transactions involving eight firearms over 3 months, more than 12 firearms transactions over “a few months”, codefendants sold 11 firearms at a single gun show; 11 firearms sold over 6 weeks, six firearms sold over 2 weeks.
There is no easy metric, as an avid shooter could purchase a number of firearms in a year, determine they do not like the gun they bought, and turn around and sell it. Some may be forced to liquidate very large firearm collections due to financial needs or upon the death of a relative. In the first case, a wealthy, avid shooter could (for example) conceivably try out one new gun a month and sell it. For a professional firearms reviewer who prefers to remain independent and not accept trial weapons, this is entirely realistic. A large gun collection ranging from dozens to hundreds could likewise be liquidated for various reasons. Neither would be “engaging in the business”, though through factors like market demand or appreciation, a profit could be made.
How many at a time, or in a year, and with what intent? For instance, 10 guns, four times a year, sold by advertisement or at a gun show? Someone could still sell 40 guns that way. Online sources have variously speculated that the number is anywhere between five and twenty-five a year, or even “one gun per month.” The most accurate estimate that anyone has gleaned from the Obama Administration has come from the Washington Post with 50 guns annually and even the Justice Department conceded the difficulty in setting such a number.
“White House officials drafted the proposal in late 2013 to apply to those dealers who sell at least 50 guns annually, after Congress had rejected legislation that would have expanded background checks more broadly to private sellers. While the White House Office of Legal Counsel and then-Attorney General Eric H. Holder Jr. initially concluded the regulation was legally defensible, according to several individuals involved in the discussions, some federal lawyers remained concerned that setting an arbitrary numerical threshold could leave the rule vulnerable to a challenge.”
Nevada Carry believes 50 is the number the president will specify, saying it allows for liquidation of collections and pursuit of hobbies, etc. Gun grabbers always want to appear reasonable in their ‘common sense’ demands because they never see themselves as they potential tyrants that they are.
To be in violation of the law and truly “engaging in the business”, one must be “obtaining livelihood and pecuniary gain” from the sale of firearms; that is deriving income to live by or getting some monetary gain, i.e. profit. Simply making a profit, as I go into further detail below, is far too narrow of definition, in fact, it would be unconstitutionally vague by itself.
Imagine a license being required to sell a gun privately because it is worth more than when you bought it and such increase in value is a ‘profit.’ The Glock 42 and 43 series of single stack pistols are very popular and were in quite high demand upon their introduction. Many shooters bought them because of their novelty, only to find that they disliked the Glock trigger or another factor and then offered them for sale online. If a private buyer is willing to pay more than the seller paid, because of scarcity, should she seller be required to be licensed?
Everytown has an article on its widely criticized research website with sensational stories of guns sold privately that resulted in tragic death. The examples they cited ranged from 16 to 700 guns sold. While the latter case, based on sheer volume over time alone, can be undeniably cited as someone “in the business”, numbers as low as 16 approaches the level of arbitrary.
A numbers-sold only approach is ineffective. Let’s say the rule is 50 guns sold in a year is “engaged in the business.” So I have to get a license to sell the 51 guns in my deceased father’s collection?
No one really knows what the number will be. Perhaps the president will use an average of statistics gathered from prosecutions and ATF investigations to make an educated guess at what the number should be. The following weeks can only tell.
Gun shows really a problem?
Those who have been to gun shows know that private sellers range from people looking to sell one or two of their guns to vendors with tables full of guns, sometimes the indistinguishable from licensed dealers. Without a doubt, some people take advantage of being a private seller to unlawfully “engage in the business” because it is easier than being a federally licensed dealer and are seeking to make a business income without the overhead and responsibility of a legitimate business.
Prohibited persons and unscrupulous private sellers do take advantage of private sales to avoid background checks. This is the main reason why the president and the Justice Department are so opposed to private gun sales, at least publicly. From a licensed dealer’s perspective, it can be frustrating to have to run a business legally and responsibly while watching an unlicensed dealer skirt the law, sell to criminals (intentionally or not), and avoid taxes and business expenses. Most Americans can agree that we should all play fair.
When it comes to providing crime guns, most felons and prohibited persons don’t get their guns from gun shows or the private dealers there. The National Sport Shooters Foundation, which represent dealers, said the following about an anti-gun group’s report on gun shows:
“Interestingly, the report does unwittingly prove that gun shows and online sales are not the problematic Wild West that gun control groups claim they are. Defendants only used them in a small minority, 10 percent, of the cases examined. The other 90 percent of the time the individuals accused of buying or selling firearms illegally were not relying on gun shows, online markets or print ads.”
Another report found that “Gun shows are frequently implicated in trafficking investigations yet less than 2% of felons incarcerated for crimes involving guns had acquired those guns themselves at gun shows.”
Clearly, gun shows aren’t the problem. As far as regulating who should have a license and who shouldn’t, based on frequent gun sales in volume, the ATF (responsible for such matters), has failed at this task for decades. This is another regulation that is not going to be enforceable. Existing regulations can be enforced, except that evidences shows the ATF does not do its job.
In July of 2004, the US Justice Department's Inspector General said:
“We found that the ATF’s inspection program is not fully effective for ensuring that FFLs comply with federal firearms laws because inspections are infrequent and of inconsistent quality, and follow-up inspections and adverse actions have been sporadic. [...] the ATF manipulates the criteria it uses to target FFLs for inspections so that it only identifies as many such FFLs as it has the resources to inspect.”
They also found that suspected criminal violations are not always referred for criminal investigation.
“In our interviews, 12 of 18 Inspectors said that they rarely refer information gathered during FFL inspections to Special Agents because they did not believe that Special Agents would follow-up on the information.”
The ATF could easily curb the amount of unlicensed dealers abusing the system, yet they do not. Time and time again the federal government fails to regulate or investigate and legislation, in this case by presidential decree, is offered as ‘a solution.’ All the executive order will do to the benefit of ATF enforcement is require the special agent to be able to count in order to determine if there is a violation or not.
America has entered a strange period where the Supreme Court makes decisions based upon partisan affiliation and the popular mood of the country. One only needs to look at the decisions on Obamacare and gay marriage issued in 2015 for examples. On the gun front, DC vs. Heller goes unenforced outside of Washington D.C. and the Supreme Court, likely out of fear of the liberal justices attempting to overturn the Second Amendment, has not taken additional cases to settle matters definitively. To do so would take the Supreme Court to decide, once and for all, that “shall not be infringed” means exactly that.
Even while an unquestionable right remains assailed in piecemeal around the country, the president has resolved to act any way he can. Reduced to executive order, he will do that. While he could issue an extraordinary decree, such as banning ‘high capacity’ magazines, such an action is not within his discretion as it is a legislative issue and Congress has not granted him any authority, express or implied, to decree on that topic. As I said above, he could direct the ATF to define “engaged in the business” ruining anyone who wishes to sell large numbers of guns privately.
I believe that (at least in a sane judiciary), any attempt to place a number on “engaged in the business” would be unconstitutionally arbitrary without Congress defining the term. For instance, one liquidating a collection because of age, etc. might cross the magic number, but wouldn’t necessarily doing so to earn a livelihood or any extraordinary “pecuniary gain”. A prosecutor would still have to argue in front of a jury just what about a man selling off all but a handful of his guns in order to pay his daughter’s medical bills made him “engaged in the business.” Surpassing an arbitrary number or arguing that one made a profit equals guilt cannot overcome the legislative intent that it was meant to regulate business enterprises.
An executive order, rather than court cases, might itself be subject of successful court challenge. The National Review wrote:
“the Court held that President Truman had exceeded his authority by directing the seizure of steel mills to avert a strike during the Korean War, stating that ‘the president’s power to see that laws are faithfully executed refutes the idea that he is to be a lawmaker.’ Thus, the majority found that Truman had strayed too far into the province of the legislature, violating the separation-of-powers doctrine."
Executive orders are based on the clause from the Constitution that the president “take Care that the Laws be faithfully executed.” He cannot institute new laws. Well, he can try, but without a Congress willing to play along (Obamacare), his attempts will be unconstitutional.
The ATF may tackle people who should be FFLs, have a business license, and pay taxes like the rest of us, but their regulatory and enforcement power should not be used to put gun shows and private sellers out of business. It would be like the FDA shutting down a regular fundraising bake sale because none of the food was prepared in a commercial kitchen. In any case, President Obama can do what he likes, but ultimately, the Second Amendment exists for the main purpose of overthrowing men like Obama and Hillary who would seek to confiscate civilian firearms.
Saturday, January 2, 2016
As millions of Texans are finding out this weekend and will discover through the year, open carry is not a big deal at all. By the start of 2017, open carry in Texas will join the rest of the union as simply an ordinary part of life. Licensed (with a concealed handgun license) open carry is now legal, except where otherwise prohibited by law.
2014 and 2015 saw frequent armed protests all across the state in favor of open carry. Counter-protestors marched, packed dildos in holsters, and harangued Starbucks, Panera Bread, and Target until corporate issued a half-hearted ‘request’ to leave the guns at home.
Open Carry Texas and the supporters of open carry who won this legislative change have dominated the media reports and national public perception of open carry. The sight of men carrying long-guns in to Chipotle restaurants gave us a new meme and polarized anti-gun groups, such as the Bloomberg-backed Moms Demand Action,
Texas is not as gun-friendly as their state tourism bureau and large belt-buckle wearing natives might have you believe. Here in Nevada, it is perfectly legal to carry a gun in a bar, while drinking, as long as you don’t get drunk. In Texas, firearms are banned from restaurants and bars that derive more than 51% of their revenue from alcohol sales.
The Houston Chronicle wrote this synopsis of Texas’ gun laws and its ban on open carry
“One of the noticeable goals was to ensure that black people did not shoot back to the guys in the white hoods," said Clayton Cramer, an author and historian who has written extensively on the selective enforcement of early gun laws. ‘A great many of the southern states relied on the fact that they could enforce these laws fairly arbitrarily.’
“That all changed in 1871, however, when the Legislature first outlawed the carrying of pistols outside of the home: ‘If any person in this state shall carry on or about his person, saddle, or in his saddle-bags, any pistol … he shall be punished by a fine of not less than twenty-five nor more than one hundred dollars,’ or around $2,000 today.
“The law, which did not apply to travelers or any ‘frontier county … liable to incursions by hostile Indians,’ was passed by a Republican Legislature eager to ensure the Reconstruction government could disarm remaining Confederate sympathizers and other citizens who disagreed with the newly acquired rights of freed slaves.
“Why then, when southern Democrats regained power, didn't they abolish the handgun ban from the books? Why did they instead continue to increase the fee - to $500 by 1918 - and even make it an imprisonable offense in 1889?
“‘This way they could arrest black people,’ said Stephen Halbrook, a lawyer and noted authority on the history of gun policy in Texas and across the nation. ‘Whoever was in power could selectively enforce those laws against those they didn't like. There has always been a lot of racism in the way these kinds of laws have been enforced.’
“In fact, Texas' first-ever gun control law - a bill passed in 1866 that banned bringing guns onto a plantation without the owner's consent - was aimed at keeping guns out of the hands of African-Americans by disarming black sharecroppers. The law was part and parcel of Texas' "black codes," legislation passed across the former Confederacy that sought to keep newly freed blacks subordinate to whites in the eyes of the law.”
Even though it’s not constitutional carry and still requires a license, Texas has open carry. Millions of Texans are going to come to the realization, if they haven’t already, that a visible pistol in a holster hurts no one and makes the world a little safer.