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Missive #20

Patches is climbing the stairs better these past few days. I have also added a third walk for her. The same .3-.4 miles that she has been doing twice a day for the past few weeks. She is more her ‘normal’ self in the morning, that is to say she is pulling on the leash rather than me dragging her along behind us. She still doesn’t do her morning dance when I get up but she is more active in the morning than before she started taking the pain pills. A happier dog.

Another storm coming today and tomorrow. I can see rain in the west and southwest as I type. I think our walks are going to be disrupted.

The Battle Continues, or
Never Underestimate the Mendacity of Your Political Enemies, Part II
By John Ross

Copyright 2003 by John Ross. Electronic reproduction of this article freely permitted provided it is reproduced in its entirety with attribution given.

Last week I talked about how a group of anti-carry individuals filed a motion for a temporary injunction to hold up the implementation of Missouri’s License-To-Carry law. On Oct. 10 Judge Steven Ohmer granted the temporary injunction, saying the law might be unconstitutional. Yesterday he heard more arguments from both sides, over a six-hour period ending at 8:00 PM. The proceedings were very uplifting, and also very interesting.

Although the judge had earlier dismissed all claims save the one on Constitutionality, he re-allowed arguments on these other issues yesterday. One of these claims is that the carry law violates the Hancock Amendment to the Constitution, which addresses unfunded mandates.

The plaintiffs (that’s the anti-carry folks) put the Jackson County Sheriff on the stand, who said that he estimated he would need to hire three more deputies and two more clerks to process the anticipated license applications. This would cost about $150,000 per year, which he did not have. On cross-examination, he testified that he had planned to hire these five new people because he anticipated approximately 6000 applications in the first year, with an application fee of $100. He said $38 of that amount would go to the Highway Patrol and FBI for fingerprint checks. Defense asked what $62 times 6000 applications equaled, and he admitted that there would be over $360,000 in revenue to his department. He also testified that his department estimated that each application would take a half hour total to process, on average. The defense didn’t have him do the math on the stand, but I (and I hope the judge) immediately did it in my head. A half hour times 6000 applications is 3000 hours. Split between five people is 600 hours per person, or 15 weeks of work, less than four months labor for a year’s pay. The sheriff was planning to hire twice as many people as he needed, and would still turn a $200,000 profit on the deal. And this was a witness for the plaintiffs!

Defense called three more sheriffs to testify. All said pretty much the same thing: They already had the computer software in place to process the applications and comply with the recordkeeping requirements, and since they were already doing lots of background checks and fingerprint cards for other reasons (i.e. handgun purchase permits), doing a few more wouldn’t be much of a strain. They all said they didn’t know how many applications they’d get, but whether it was a single application or ten thousand, at $62 a pop, they were sure they’d make money on the deal. In each case, defense asked the sheriff if he had been appointed or elected, and under what party. (Plaintiff’s lawyers objected to the party question, but were overruled.). All sheriffs had been elected, and all were Democrats. The message, I thought, was subtle but crystal clear: Judge, concealed carry is a key issue for outstate Democrats. If you think you’re helping out the Democratic party and increasing your chances of an appeals court appointment by supporting a Democratic governor’s unpopular anti-carry position, think again. The Governor’s antigun stance is killing us and our party. Fuck this one up for us and come 2004, we’ll all be out of a job and there won’t be a Democratic governor to give you your appointment.

That was it for witnesses, and it was time for plaintiff and defense arguments.

Burton Newman, chief counsel for the plaintiffs (and the husband of a plaintiff group member who is one of the Misguided Moms*), pointed out that some Constitutional rights were stated in the negative rather than the positive, such as the right to be free from unreasonable search and seizure. From here he made the extraordinary leap to the claim that Missourians had a Constitutional right to be free from all concealed weapons carried by citizens. He then made the claim that the police were not citizens, but were rather “The State.” Several people later told me they were immediately reminded of George Orwell. Newman and his associate Richard Miller (a Kansas City lawyer who sues gun manufacturers and who told the paper that with concealed carry, there would be “more guns going off accidentally or when dropped”**) also made arguments that this was an unfunded mandate, the language was vague, and (my favorite), that since the voters narrowly defeated a different bill in a 1999 concealed carry ballot referendum, the legislature should never revisit the issue again. I am not making this up.

Mike Minton, a lawyer from the powerhouse St. Louis firm of Thompson Coburn, went first for the defense. Mike (a former student in my concealed carry training class and a great guy) was representing the NRA with their amicus (friend of the court) brief that they had submitted. (I got to read this brief the day before and was mightily impressed. The brief was written in large part by my friend Stephen Halbrook, arguably the top Second Amendment legal scholar in the country.) Mike was representing the NRA for the first time in his career, but my guess is it won’t be his last. He put on a very articulate presentation that pointed out the bizarre nature of the plaintiffs’ claim. According to the plaintiffs, the Missouri Legislature had no power whatsoever to regulate the carrying of concealed weapons by enacting statutes addressing the subject. This flew in the face of over a century of enacting such statutes (before, during, and after the ratification and re-ratification of Missouri’s Constitution) and having these statutes upheld time and time again in court over the 129-year period since the 1874 prohibition and the 1875 shall not justify Constitutional language was added. If the court held for the plaintiffs, he pointed out, every single one of the exemptions passed in the last 129 years would be unconstitutional, including carrying a concealed weapon in your own home, on your own rural property, while at your own business, or as a police officer. Such a ruling would not only be contrary to 129 years of Missouri rulings, it would go against every other state court’s interpretation of the Constitutions of other states with near-identical wording.***

The Attorney General’s office was up next, and it was here that I learned quite a bit about the Hancock Amendment against unfunded mandates that I had not known before. First of all, Hancock Amendment cases may only be brought by the agency suffering the unfunded mandate, not by “concerned citizens,” so the anti-carry group had no standing. Second, Hancock Amendment cases cannot be brought before the Court until actual costs have been incurred from a measure that is actually in effect. They cannot be brought up in anticipation of a new law that someone thinks might cause an unfunded mandate. Last of all, Hancock allows any agency suffering an unfunded mandate to withdraw from whatever is causing that problem, it does not mean the entire law is thrown out statewide. The AG’s office pointed out that every sheriff who testified said he’d make money on concealed carry applications, no sheriff’s department anywhere in the state had asked to be relieved of their license-issuing obligations, and thus the judge should summarily throw out the entire Hancock part of the plaintiff’s claim. I had heard rumors that the AG’s office (which does not like concealed carry) might send in the third string and sandbag us. They might hate concealed carry, but apparently having St. Louis judges rewrite state law is something they hate a whole lot more. From what I saw, they were as dedicated to this cause as Patton and his tank division charging towards the Rhine.

Peter VonGontard, another friend of many years and the counsel representing the interveners to the injunction (a local shooting range) went last. He took a slightly different tack, and a good one. He pointed to the numerous exemptions to the 1874 concealed carry prohibition which the legislature had enacted in the past 129 years: Police, federal judges, process servers, and anyone in his home, at his business, or on a peaceable journey throughout the state, among others. All these exemptions had no fees, background check, or training requirement whatsoever. (Police now have to have training, but that is a recent change. For over a century it was not required.) What was the purpose of these exemptions? So that these people could protect themselves. Why was the 2003 license-to-carry measure passed? For the same reason. The license-to-carry endorsement, he stressed, has many requirements, including background checks, fees, and training. It is more restrictive than the other exemptions, which we’ve had (with no problems) for years. He talked of the plaintiffs’ claim that they were being harmed by losing their imagined ‘right’ to live free from any concealed weapons. First of all, they’d always had concealed weapons around them, carried by the exempted parties listed above. More importantly, what of the other side? What of the thousands of people who had counted on being able to apply for a license on October 11, but who had had that opportunity denied them within hours of the measure taking effect? What of the victims of the recent spate of carjackings? His message was clear: Maintaining this injunction is eventually going to cost some decent citizen his life.

Burt Newman made a motion to have his clients’ $250,000 bond released. Mention of the bond really got my attention. The bond is the elephant in the living room that the plaintiffs don’t want to think about. Newman put up $50,000 of this bond out of his own pocket(!) Doing this always makes lawyers queasy, for it’s after-tax money, unlike when they donate their time. The AG’s office suggested that since the judge had indicated additional time would be required to decide this issue, an additional bond was in order (an excellent idea, in my opinion, and one which made Mr. Newman’s face redden visibly. I’m sure Newman was wondering if the Attorney General planned to file suit against the plaintiffs for bringing a frivolous lawsuit and wasting the AG’s office’s time.) Peter VonGontard explained that his client was still being harmed (reduced demand for training classes) and therefore the bond should be increased. The judge ruled the bond would stay at $250,000, and the temporary injunction would remain in effect while he pondered the merits of the arguments. He stated earlier that he would try to have a ruling by November 1, but I don’t expect that. Everyone knows it’s going straight to the Missouri Supreme Court if he rules against us. If he rules for us, we go after the money. The exception (and this is a real possibility, in my opinion) is if the plaintiffs dismiss their lawsuit with prejudice. This is the only way I see for them to avoid the torrent of financial liability in which they are about to drown. If the plaintiffs dismiss their own suit with prejudice, then they get their $250,000 back, the whole issue goes away, the plaintiffs can never revisit this issue, and the carry law takes effect immediately.

There were a lot of long faces amongst the anti-carry folks yesterday, as you might imagine. They didn’t lose (yet), but the judge didn’t give them the permanent injunction they wanted, and their arguments were seen for what they really are–grasping at straws. The extremely corpulent (500#+, to my eye) Rev. B.T. Rice (one of the plaintiffs) was there, looking somewhat embarrassed by the attention he was getting, and generally covering his teeth with his lips when he talked. The unusually cadaverous but spry Alvin Brooks (another plaintiff) was also there, looking much less embarrassed than his colleague and showing off a huge set of very white teeth. I was unable to stop thinking about what might happen if these two men survived a small plane crash together on top of a high mountain.

While I was sitting in one of the courtroom benches, I realized the woman next to me was turned towards me and staring. She had that fire-engine red hair and heavy makeup that are arguably attractive (as is almost anything) on a teenage hottie but are mildly appalling on a shapeless woman of seventy. “Who are you?” she hissed. I smiled and introduced myself. “I was afraid of that,” she said with a disgusted look. “It’s not a pleasure to be sitting next to you.” Her husband, poor fellow (I assume he was her husband) looked away in embarrassment at his wife’s rudeness. I told her I was sorry she felt that way, and asked her name. She told me, but the name meant nothing to me. Then she demanded her husband switch places so she wouldn’t have to sit next to me. He complied meekly. “I have children and grandchildren,” she announced. Lucky them was all I could think.

Greg Jeffery told me later that the red-haired lady was one of a group of four or five local women members of the Misguided Moms who have dummied up a half-dozen or so official-sounding names, like “Mothers Opposing Hidden Assault Guns and Silencers,” “Females Opposed to Owning Loaded SIGs,” “Citizens Unarmed, Not Toting Sidearms,” or somesuch, to try to generate media attention. They trade around the positions of President, Secretary, Treasurer, etc. every few months on their letterhead but their “organizations” don’t have any actual members. I told Greg what had happened and he grinned sadly and shook his head. “If you were lying on the sidewalk bleeding, these people would spit on you as they walked by. They despise us.”

If this is true, they must hate a lot of people, as concealed carry passed with a supermajority in both houses. My hypnotism skills ain’t that good. I also can’t help but wonder if these women become utterly terrified when they visit any of the 44 concealed carry states in America. Maybe they restrict their family vacations to those two gun-free utopias, Chicago and Washington, D.C.

I left the courtroom in good spirits and stepped out into the cool night, feeling invigorated. We hadn’t won yet, but the news media that were there saw the lack of substance in the plaintiffs’ arguments and the awful implications if the judge ruled for them.

Me, I’m planning to get some of that $250,000 bond money before it’s all gone. This foolish injunction has hurt my class attendance to where I only taught four classes in the last week, and two of them weren’t full. Maybe I’ll use the bond money to fund some free training classes, carry guns, and application fees for people who can’t afford it, and live in that red-haired lady’s neighborhood. I’ll tell ’em that since she funded their right-to-carry, go thank her, not me.

John Ross 10/24/03

*Newman claims his team is eating their legal expenses on this case, estimated by the defense lawyers to ultimately exceed $75,000. There was rampant speculation among the observers regarding what might have caused Mr. Newman to take the case on these terms.

**This lawyer apparently thinks endorsement holders will choose to carry 19th-century single action revolvers (“cowboy guns”) with a loaded round in the chamber under the hammer, as these are the only guns that go off if they are dropped on the hammer. He has also been quoted as claiming that with concealed carry, criminals will now get their guns by mugging endorsement holders. In other words, armed citizens will be the “gun store of choice” for Missouri’s street criminals. I am not making this up.

***Although Mike did not use this specific argument, as I explained to my ten-year-old daughter, what the plaintiffs were asking you to swallow was the notion that a First Amendment which read “The people shall have the right of free speech, but this shall not justify potentially inflammatory speech, such as shouting ‘fire’ in a crowded theater” meant that it was never permissible to shout ‘fire’ in a theater, not even during a fire, and that the legislature was powerless to grant this or any other exemptions to an absolute prohibition on all potentially inflammatory speech.

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