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« National Carry Part III | Main | Fix NICS (formerly H.R. 4477) »

H.R. 38 The Details, cont'd.

Loads of components no one has mentioned

Qualified freedom from arrest
The statute provides that, if you are carrying and in compliance, you “may not be arrested or detained” for anything related to the firearm. Some dangerous wiggle room would be eliminated if that said “shall not” instead of “may not.” It’s a small point. You do remain subject to arrest while carrying if, “there is probable cause to believe that the person is doing so in a manner not provided for by this section.” That’s a bigger point. It’s not clear what this might encompass, though it seems to say you must be in compliance to be protected. Proper ID is “facially valid” and “prima facie evidence” you are correctly licensed under the law. The protection does not seem to extend to any other violations or offenses (jaywalking while armed?).

They pay your legal bills
To discourage state and local governments from acting against you, first, the prosecution has the explicit burden of proving beyond a reasonable doubt, the highest standard, that you were out of compliance. Next, if you use this law as a defense and the government loses, they must pay your legal bills, a big deterrent to false charges.

You can sue
For extra measure, the statute includes a guarantee similar to 42 USC §1983, a right to a private lawsuit against the state, including damages, other relief, and legal bills. If you are deprived of any “right, privilege or immunity” secured by this law, using any “statute, ordinance, regulation, custom or usage” of any state, you can sue. This seems to set up a conflict with authorized no-guns signs in section (b)(2): No-gun-zones can be set up, yet you can sue if your rights are denied. The right to sue is only against the government, private zones in section (b)(1) are not mentioned.

Handguns redefined
A new definition of handgun is introduced, only for the purpose of this statute. Redefining terms is always a cause for concern, unexpected results frequently lurk, and this one has several dark corners. Nothing prevents authorities from taking definitions from one place once enacted and using them in other places, “as matters of settled law.”

The statute says: ‘‘The term ‘handgun’ includes any magazine for use in a handgun and any ammunition loaded into the handgun or its magazine.” It seems the bill seeks to protect a traveler in an unfriendly jurisdiction, who might be cited just for the magazines or ammo, because in some states, magazines matter, as can ammo type. The gun includes its ammo, but this doesn’t quite say that.

If this passes, a magazine is now a handgun. Possession of a handgun introduces all sorts of complexity, that now starts applying to empty or loaded magazines, complexity skyrockets, rights shrink. The bill says “any magazine for use in a handgun” so any magazine is affected.

Ammo redefined
Regarding ammo, only ammo loaded into “the handgun” is a handgun for the purpose of this law (loose ammo remains plain old ammo). The implication is ammo loaded into the gun the person carries. And next, ammo loaded into magazines for that handgun, though not necessarily in it, are handguns. If you have a loaded or empty magazine you have a handgun. If you then acquire a matching pistol, do you have two handguns? Is a six-shooter seven guns? Those are the easy problems. Walking past a school zone with an empty magazine would almost violate state versions of the next law.

The Clinton-era imaginary gun-free-school-zone is quashed
A person who carries a firearm discreetly under the terms of this statute -- with a state permit or in a state that doesn’t require one -- is not subject to 18 USC §922q, the gun-free-school-zone law. Open carry is not included. The possible combinations leave unresolved questions. For example, is a person with a carry permit from a state without Constitutional Carry, who goes to a Con-Car state, immune to the gun-free-school-zones, or does the bill fail to protect a permittee outside their state of origin? Other conditions exist, no need to think about it further since the language will likely change in conference.

National land assets are open to armed citizens
A person carrying under the terms of this statute may do so in any public areas of the National Parks, a National Wildlife Refuge, public Bureau of Land Management lands, Army Corps of Engineers land, and Bureau of Reclamation land.

Just added, federal officials protect themselves
They frequently do this, include themselves as a special category instead of being under the same law we are. Without notice or discussion, qualified off-duty and retired law-enforcement officers (QLEOs) rewrite the existing laws to include themselves with special carry privileges, including discharge in school zones (Section 103).

"Dangerously" armed judges
In Section 104, federal judges, with no concern for permits, checks, training, ability or anything, as long as they’re not prohibitees, without showing proof, can carry sidearms concealed nationally. These are the very conditions every anti-gun-rights activist is screaming about, for which judges have now given themselves a pass. [cont'd.]

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  • Freelance writer Alan Korwin is a founder and past president of the Arizona Book Publishing Association. With his wife Cheryl he operates Bloomfield Press, the largest producer and distributor of gun-law books in the country. Here writing as "The Uninvited Ombudsman," Alan covers the day's stories as they ought to read. Read more.

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