March 17, 2008
Lose a gun, go to jail!
In a sneaky amendment to a crime bill, Pennsylvania gun control forces are pushing hard for legislation that would criminalize the failure to report guns that are either lost or stolen.
HARRISBURG - Handgun-control proponents in the State House are attempting to force a floor vote today on a controversial bill that would require handgun owners to tell authorities when their weapons are lost or stolen.I can certainly understand the District Attorneys Association's reluctance. While its proponents attempt to market it as common sense, this measure would do little more than criminalize law abiding gun owners who fail to report crimes committed against them. And it would criminalize the failure to report what is often unknowable -- a simple loss.
This makes a potential criminal out of any gun owner, and it treats guns as inherently suspect property, which must be treated as different from other property.
Ever heard the expression "Count the silverware"? If you're wealthy enough to have valuable silverware, it probably is a good idea to count it occasionally. Because guests can be dishonest. So can contractors, house painters, gardeners, cleaning people, etc. It would be unimaginable for anyone to propose making it a crime to fail to report stolen silverware, though. People who might count it would do so for their own selfish reasons, not because they fear criminal prosecution. But if it becomes illegal to not report something which is missing, at what point is it missing? At the moment it disappeared? Or when you discovered the loss? Suppose you don't believe in locking up your guns (any more than a lot of homeowners would lock up their silverware), and you have a number of guns conveniently located in different places in the house. If a crooked contractor stole one during a remodeling project, you might not notice it missing for some time. And even if you noticed it missing, how would you know whether it was stolen and not misplaced? At what point would you be legally obligated to notify the police? At what point would criminal liability attach, and why? These are not idle questions, for they touch on the constitutional due process requirement that a statute must put a reasonable person on notice as to what conduct is forbidden.
Why single out guns unless the intent is to stigmatize them? I think that a law criminalizing non-reporting requires more than merely reporting a loss or a theft; by its nature it imposes an affirmative duty to monitor and count your guns on a regular basis or be a criminal (in much the same way that a law criminalizing the non-reporting of silverware would require counting the silver). But because it does not spell that out, I think it's unconstitutionally void for vagueness.
In numerous discussions and in editorial pieces like this one by Monica Yant Kinney, it is claimed that the goal of the reporting law is to stop the criminal resale of guns, by making it an additional crime for criminal enablers of illegal resellers not to report their illegal transfers:
"Lost-and-stolen is a no-brainer," said Joe Grace of CeasefirePA. "Ninety-six percent of Pennsylvanians support this."Wrong.
Advocates like Ms. Kinney ignore the fact that law would violate the Fifth Amendment's protection against self-incrimination, and would have no effect on the criminals it is supposedly intended to target.
Former prosecutor C.D. Michel analyzed this problem at length, and his analysis sheds more light on the reluctance of the Pennsylvania District Attorneys Association to back this legislation:
Ironically, the ordinance cannot be used against the real bad guys. No law can compel lawbreakers to report themselves. So a straw purchaser who legally buys a gun cannot be compelled to report that he resold it illegally. And since it wasn't actually lost or stolen, he hasn't violated the ordinance. Similarly, if a felon prohibited from possessing a gun illegally possesses one anyway, and it is lost or stolen, he can be prosecuted for having the gun in the first place, but cannot be prosecuted for failing to incriminate himself by reporting the loss.As he points out, the law creates a major problem for true victims of gun theft, whom he very rightly advises to hire an attorney before making any report to the police:
Perhaps worse, gun owners who truly are burglary victims must now hesitate to speak with police if their stolen gun is recovered at a crime scene. If the gun owner failed to report the loss at all, or on time, she faces possible criminal prosecution if she cooperates with police investigating the recovered gun. She should remain silent, get a lawyer and seek immunity first.Then there's the question of what to do if a gun is missing (or you think it's missing):
Legal representation may also be appropriate when a gun is first discovered missing. The owner can be prosecuted if the theft is not reported within 48 hours of when the owner "should have known" the gun was missing. Proponents have made clear they believe "responsible" gun owners should know where their gun is at every single moment and "should know" a gun is gone immediately. And the fear of prosecution will encourage those who miss the 48-hour window not to report the loss at all.You'd need a lawyer even if you misplaced a gun in a disorganized house with lots of repair people running in and out.
Basically, they're criminalizing victims of crime, criminalizing what would ordinarily be considered sloppiness, making ordinary gun owners inherently paranoid, ever more likely to become suspects, and in need of legal help for matters that used to be common sense. And of course, the illegal gun dealers, far from being the target class, are completely unaffected.
Because of the vagueness I described, laws like this will lead to cries for more laws -- such as the type advocated by Barack Obama in 1999 which would have made felons out of gun owners whose guns were not "securely stored":
In 1999, Obama proposed to make it a felony for the gun owner if a firearm stolen from his residence and used in a crime was not "securely stored" -- effectively negating the homeowner's right to self-defense.Via Dr. Helen, who called it "scary stuff."
And she's right. A gun that is locked up in a gun safe is as likely to protect you as a dog that is locked up in a closet.
I think these reporting laws are unconstitutional, and but another step on the road to criminalizing self defense.
But if they pass, what are gun owners to do? In an interesting discussion of a similar New Jersey law (which also touched on civil liability for stolen guns) Armed and Safe offered some advice:
If S. 2934 passes (which it seems bound to do), I think every handgun owner in New Jersey, on the day the law goes into effect, should report that all their handguns fell into the ocean (or were irretrievably lost in some other fashion). Let the petty tyrants chew on that.Ah, but what if the guns were later found? The gun owners could be arrested for making false reports!
posted by Eric on 03.17.08 at 12:38 PM
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