I Think, Therefore I Mistake

The First Rule of Talking to a Jury:

Thou shalt never, ever, ever say "I think", "I believe", or "I" followed by any verb other "am" and then only once if you a need to introduce yourself.
          Corollary A: Don't use the word "my" either as in "my belief", "my thoughts", etc.

I've had that discussion with any number of times with younger lawyers looking toward their first jury trial. It is amazing how much attorneys want to give their opinion to the jury. It's a strange mistake to make because it doesn't really help much unless you're somebody with a big reputation. Young attorneys trying theft cases don't have that kind of reputation. And, any attorney who has been doing this job long enough for their reputation or position to matter should already have this trained into them.

Of course, anybody who watches nowadays realizes this ain't always the way it works out. I blame this on the fact that juries have been denigrated so much that even senior attorneys haven't tried many juries. So here's the reason for the rule: most importantly to the court, bolstering the argument ain't allowed; most important to the attorney, bolstering is almost always weaker than a straight argument.

Examples:

"I wouldn't bring this charge of theft if I didn't believe Jane Doe did it."

"Jane Doe's a thief. It's obvious she's guilty. You know this because you've seen the evidence."

Which of these would be your stronger opening? I know the first one is "bolstering", but to be honest with you, when I hear something similar to the first statement I don't hear something that makes me confident. I hear something that says, "I know my case is weak, but please believe me." It's a dumb way to start your argument.

Proposed Firearm Laws (Virginia)

Over the last few days, I've been summarizing the bills which are being put forth to restrict firearm ownership in the General Assembly of Virginia that have been proposed so far. More may be proposed, but I think the core of the proposals are already in place. These are merely bills at this point and I don't know the probability of any passing, but with the high level of interest and the kind of exaggeration or misunderstanding I see in social media I thought an actual summary of what everyone is talking about might be useful.

Here's an index of the posts:

1.  Firearms to be made illegal.

2.  New age limitations.

3.  Limitations on magazines and triggers.

4.  Newly forbidden locations.

5.  Background checks.

6.  Purchase limitations.

7.  The Right to Bear Arms under the Virginia Constitution.

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Proposed Firearms Laws (Virginia) - The Remainder

Day four (part three) of looking at the bills which several members of the Virginia General Assembly have proposed become laws restricting firearm ownership and use. From the Senate there are Bills 12, 14, 16, 18, and 22 from Senator Saslaw; 13 and 15 (Senator Ebbin); 35 (Senator Surovell); 51 (Senator Spruill); 67 (Senator McClellan); 69 (Senator Locke); & 70 and 71 (Senator Lucas).  From the House there are Bills 2 (Delegate Plum) and 9 (Delegate Bourne). As stated previously, I know that's a ton of bills; I expect many to fail, get changed, get merged, etc. Generally, I would wait until the actual laws have been passed. However, because of the great amount of interest I'm going to look at these as they are in their larval bill state.


Limitations on Pistol Purchases:

SB22 (Saslaw) and SB69 (Locke) - § 18.2-308.2:2(R) - A person can only buy one pistol every 30 days. Violation is a class 1 misdemeanor (up to 12 months).


Reporting Stolen Firearms:

HB9 (Del. Bourne) and SB67 (Sen. McClellan) - § 18.2-287.5 - Failure to report a lost or stolen firearm to law enforcement within 24 hours of realizing it's gone is subject to a penalty of up to $250.

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More Posts about the Firearm Proposals
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Proposed Firearms Laws (Virginia) - Forbidden Locations

Day four (part two) of looking at the bills which several members of the Virginia General Assembly have proposed become laws restricting firearm ownership and use. From the Senate there are Bills 12, 14, 16, 18, and 22 from Senator Saslaw; 13 and 15 (Senator Ebbin); 35 (Senator Surovell); 51 (Senator Spruill); 67 (Senator McClellan); 69 (Senator Locke); & 70 and 71 (Senator Lucas).  From the House there are Bills 2 (Delegate Plum) and 9 (Delegate Bourne). As stated previously, I know that's a ton of bills; I expect many to fail, get changed, get merged, etc. Generally, I would wait until the actual laws have been passed. However, because of the great amount of interest I'm going to look at these as they are in their larval bill state.


Forbidden Locations:

Every year, the General Assembly seems to add a place or two where a citizen cannot carry a firearm. Here's this year's list.

SB16 (Sen. Saslaw) - § 18.2-287.4 - No shotguns that carry over 7 rounds anywhere in public. Class 1 misdemeanor (up to 12 months).

SB71 (Sen. Lucas) - § 18.2-308.1 - Pre-Schools and Daycare Centers. Class 6 felony. Up to 5 years if mere possession. Mandatory entire 5 years if use or try to use the firearm.

SB15 (Sen. Ebbin) - § 18.2-283.2 - Commonwealth owned buildings where government employees conduct their business. Class 1 misdemeanor (up to 12 months) and forfeiture of the firearm to the Commonwealth.

SB13 (Sen. Ebbin) - § 18.2-283.2 - Capital Square in Richmond. Class 1 misdemeanor (up to 12 months) and forfeiture of the firearm to the Commonwealth.

SB35 (Sen. Surovell) - § 15.2-915 - Allows localities to pass an ordinance to forbid firearms at an event which requires a permit. No punishment laid out.

SB51 - (Sen. Spruill) - § 18.2-308.012 - Cannot possess a firearm and drink in a public space that has been approved for alcohol consumption. Class 2 misdemeanor (up to 6 months).

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More Posts about the Firearm Proposals
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Proposed Firearms Laws (Virginia) - Magazines and Triggers

Day four (part one) of looking at the bills which several members of the Virginia General Assembly have proposed become laws restricting firearm ownership and use. From the Senate there are Bills 12, 14, 16, 18, and 22 from Senator Saslaw; 13 and 15 (Senator Ebbin); 35 (Senator Surovell); 51 (Senator Spruill); 67 (Senator McClellan); 69 (Senator Locke); & 70 and 71 (Senator Lucas).  From the House there are Bills 2 (Delegate Plum) and 9 (Delegate Bourne). As stated previously, I know that's a ton of bills; I expect many to fail, get changed, get merged, etc. Generally, I would wait until the actual laws have been passed. However, because of the great amount of interest I'm going to look at these as they are in their larval bill state.

Non-Standard Magazines:

As most everyone knows, standard magazine size for most magazine fed rifles is 20 rounds (old school) or 30 rounds. Pistol magazines typically hold at least 12 rounds. The good news is that if you already own standard magazines you can keep them. The bad news is that if you want new ones you will have to travel to Kentucky, West Virginia, Tennessee, or North Carolina to buy them.

SB16, introduced by Senator Saslow, creates a new statute, § 18.2-308.9, which will limit the sale of magazines in Virginia to the non-standard 10 round capacity. It will be a class 1 misdemeanor (up to 12 months in jail). It also illegalizes "importing" such magazines, but that's not defined and in context within the statute the meaning would have something to do with bringing them in to give to another (noscitur a sociis). Buying standard magazines for ones self and returning to the Commonwealth would appear to be legal.

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COMMENT:  Yes, I know that a judge in California has ruled the limitation to the non-standard ten round magazine is unconstitutional. However, the 4th Circuit Court of Appeals, which reigns over those of us in Virginia, has held that the limit is constitutional. It's not the sharpest opinion legally - relying a great deal on emotional appeals instead of legal analysis - and relies to some extent on the rather tenuous idea that a mass shooter will be taken down when he pauses to reload and therefore a ten round magazine will provide more such opportunities when a mass shooting is in progress. It is, of course, judged under an intermediate standard leaning toward rational basis. 

To be honest, the federal appellate courts have shown themselves over and over again hostile to asserted rights under the 2nd Amendment. I fully expect the decision by the California judge to be overturned by the 9th Circuit. Short of some sort of ruling by the US Supreme Court that these sort of cases should be subject to strict scrutiny, do not expect this law to be overturned on constitutional grounds.
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Trigger Activators:

SB14, proposed by Senator Saslow, would make it a class a class 6 felony (up to 5 year in prison) to possess a device that will enable a firearm to fire a burst, which means it could fire more than one round per trigger squeeze without becoming fully automatic.

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More Posts about the Firearm Proposals
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Proposed Firearms Laws (Virginia) - Illegal Firearms

Day three of looking at the bills which several members of the Virginia General Assembly have proposed become laws restricting firearm ownership and use. From the Senate there are Bills 12, 14, 16, 18, and 22 from Senator Saslaw; 13 and 15 (Senator Ebbin); 35 (Senator Surovell); 51 (Senator Spruill); 67 (Senator McClellan); 69 (Senator Locke); & 70 and 71 (Senator Lucas).  From the House there are Bills 2 (Delegate Plum) and 9 (Delegate Bourne). As stated previously, I know that's a ton of bills; I expect many to fail, get changed, get merged, etc. Generally, I would wait until the actual laws have been passed. However, because of the great amount of interest I'm going to look at these as they are in their larval bill state.

Illegal Firearms: This comes from SB16, proposed by Senator Saslow. It's a fairly sweeping change in the definitions of what firearms are illegal.

Assault Firearm: 18.2-308.8

This statute currently only makes the Stryker 12 "Streetsweeper" shotgun illegal. If the bill passes as written, it will create a class of firearms known as "assault firearms" and those will be illegal to possess.

Rifles and Pistols

To begin with, nothing in this statute has anything to do with revolvers. So, if you're sporting the Dirty Harry Special (.44 Magnum) you don't own an "assault firearm."

For both rifles and pistols, this is about all about firearms with either detachable or fixed magazines. Detachable magazines are self explanatory, but there's no definition in the statute for a "fixed" magazine. The common sense definition for this would be a firearm with an internal storage capacity. However, after doing some research, apparently this also means a semi-detachable magazine. As best I can tell, this would mean that the magazine cannot be ejected as normal by simply hitting a button on the side of the firearm and letting the magazine fall out. Instead, the magazine is held in place until a tool is used to remove it or the magazine is held in place until the rifle is broken open.

Under subsections (A)(1) and (3), if your "fixed" magazine is limited to ten rounds, there are no limitations as to what modifications you can do to your rifle or pistol or what cool stuff can be attached to it.

Subsections (A)(2) and (4) set out a two part test to declare a rifle or pistol an "assault firearm."

1.  Does the firearm have the ability to accept a detachable magazine?"

and

2.  Does it have any single one of the following?

Rifle	Pistol
Folding / Telescoping Stock	Folding / Telescoping Stock
Thumbhole Stock	Thumbhole Stock
A Handgrip for Non-Shooting Hand	A Handgrip for Non-Shooting Hand
Bayonet Mount	Capacity for a Non-Handgrip Magazine
Grenade Launcher	A Shroud to Protect Non-Shooting Hand
Flare Launcher	Weighs 50 oz. or more
Silencer	Threaded Barrel which can attach
Flash Suppressor	~ Silencer
Muzzle Brake	~ Flash Suppressor
Muzzle Compensator	~ Barrel Extender
Threaded Barrel which can attach the last four items	~ Forward Handgrip
Anything similar to the above	Anything similar to above

There's a fair bit of the above that's humorous. Interestingly, your pistol can have a silencer, flash suppressor, and barrel extender as long as it doesn't screw on. Human ingenuity being what it is, I would expect clips or something similar to fill that gap. Or the pistol could simply be built with them. Are bayonets a serious issue? I don't remember hearing bayonets were a serious issue at any of the shooting events and mainly it's been a reason to make fun of USA Today for thinking AR-15 owners use chainsaw bayonets: "Sometimes I think the gun rights crowd is too hard on the media, and then I see stuff like this." I did learn some new things looking through this. I didn't know there were civilian models of M203's and when I looked up thumbhole stocks for pistols, certain that was a ridiculous idea, I got introduced to the concept of AR-15 pistols which apparently can have such a stock; it seems like a stupid concept, but it's a concept.


Shotguns

Under subsection (5) you cannot have a shotgun "with a revolving cylinder" which I'm pretty sure is supposed to cover the Striker 12 and its knockoffs.

Subsection (6) sets out a two part test to declare a shotgun an "assault firearm."

1.  Is the shotgun semi-automatic?

and

2.  Does it have any single one of the following?

Shotgun
Folding / Telescoping Stock
Thumbhole Stock
Pistol Grip
Detachable Magazine
Fixed Magazine Over 7 Rounds
Anything Similar to the Above

Parts are a Firearm  - Any parts that can be used to change a firearm into an assault firearm or which can be assembled into an assault firearm are an assault firearm.

Exclusions:

1.  Rendered permanently inoperable.

2.  Antique.

3. Curio or Relic.

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More Posts about the Firearm Proposals
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Comparing the Virginia Right to Bear Arms with the Federal

Both the US Constitution and the Virginia Constitution have the right to bear arms baked in.

Virginia:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

Art. I, Sec. 13.

 The highlighted section was added in 1971. Prior to that, it was a reflection of the belief of our founding leaders that a standing army is dangerous and that the citizens could and should stand to the defense of their nation as a militia instead. This belief is also reflected in the preamble section of the right recognized in the Federal Constitution.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amend. II.

Inherent in the militia concept is the idea that each person in the militia will possess and bring with him a firearm. In fact, it was a requirement under law. Don't believe it? Here are a few muster notices for various militias.

Notice that they all require the militiaman to report with his weapon. The last one even specifically lays out what weapon and accoutrements the militiaman is required to bring with him.

The federal amendment is notorious for its vagueness. Is the part left of the second comma a condition that controls the language right of that comma? Does it refer to the National Guard and limit the right to guardsmen? Or, does the language right of the second comma recognize a pre-existing right and perhaps specifically, by reference to militia, give a sense of what sorts of "arms" a citizenry has the right keep and bear? Does it guarantee that citizens have a right to weapons which could make them an effective military force if mustered? Or perhaps the language right of the second comma recognizes a right and the language before that comma is just surplusage not relevant in the modern world? It's a quagmire.

The Virginia Declaration of Rights, as modified and included as Article I section 13 of the Virginia Constitution, is in some ways much clearer. There is no doubt that it is referring to everyone in Virginia. It defines "militia" as "the body of the people." That's me, you, and every other permanent resident of Virginia. More specifically, most of us are in the unorganized militia which is a legalistic way of saying that the Commonwealth of Virginia has been failing to train us to arms as it seems required to per this constitutional provision.  BTW, for those of you who don't know, if you're between the ages of 16 to 55 you are subject to activation at the behest of the governor. Of course, the statutes are an overlay and limitations they place on "the body of the people" reflect choices in using the militia; they don't actually limit the composition. In other words, the fact that a statute limits ages of those serving within the militia doesn't mean that the age is actually limited - it just means the Commonwealth will only use those within the given age range.

The conscious decision to place the right to keep and bear arms in the militia section of the Virginia Constitution and adding "therefore" as a connector makes this far less ambiguous than the federal amendment. It applies to members of the militia. However, it makes it clear that we are all members of the militia so that's not a limitation.

The ambiguity is what "arms" means. As this right is specifically tied to militia service it seems to be those types of weapons which would be used by a militia. Note the third call to muster above. The arms for a militia are those which are minimally acceptable for military usage. In other words, if the governor were to call up companies from the unorganized militia and every person showed up with their pistols that unit would be almost completely useless. So, pistols wouldn't be covered by "arms" under the Virginia constitution. On the other hand, were the entire company show up with "assault" rifles the "arms" would be appropriate. This seems to indicate that under the Virginia Constitution pistols would have few protections while assault style rifles would have much more.

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Caveat: Yes, we all know the militia concept is outdated and exists now only as a vestige of an unrealistic - one might even say quaint and romanticized - belief of our forefathers that our country could be adequately defended by citizen militias. Nobody believes in this system anymore except for some folks out there forming independent militias which are not what our forefathers meant when they wrote militias into our constitutions. "Who are the militia? They consist now of the whole people, except a few public officers." George Mason (debating Virginia's acceptance of the Federal Constitution). The militias foreseen by our constitutions consist of you and me and everybody in our county called together to serve under an officer or two appointed by the government.

And yet, the militia section is still in the Virginia Constitution and the militia statutes are still on the books. This means that the militia still exists constitutionally and legally  and the constitutional protection pursuant it is still extant.

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Caveat 2:  OMG. I'm still subject to recall for military service. Hopefully, the governor of Virginia won't need to call me into militia service for just a couple more years so that I can age out. Of course, the level of desperation that a governor would need to call a overly rotund, terribly out of shape, old guy like me into militia service would probably require a simultaneous invasion by Canada, Mexico, China, Bulgaria, and Species 8472. Even then, a guy whose main job when he was in the Army was to speak Arabic probably wouldn't be of much use. Let's all keep our fingers crossed that it never comes to that.