CALIFORNIA CARRY

                       by J. Neil Schulman


There are several bills in the pipeline here in California to "reform"
the Concealed-Carry-Weapons (CCW) laws.

Currently, in California, it is illegal to carry a handgun, loaded or
unloaded, concealed on your person or in your vehicle (Penal Code
Section 12025), except in your own residence or a place of business you
own.  It is also illegal to carry a loaded firearm except in your own
residence or place of business you own (Penal Code Section 12031).  In
addition, there is the "gun-free school zone" law forbidding being in
possession of a firearm on or within 1000 feet of school property (Penal
Code Section 626.9).  First-offense violations of these laws are
misdemeanors with up to six months in county jail and up to a $1000
fine; but restrictions on owning or possessing firearms can be imposed
by the court as a condition of probation.  Second or further offenses
can be tried as felonies, which -- in addition to serious prison time --
can ruin one's life, credit rating, ability to obtain jobs, and forever
bar one from owning or possessing firearms anywhere in the United
States.

There are additional possession restrictions having to do with courts
and legislative sessions; I'm not going to deal with these here, since
they are a separate and thornier issue.

Effectively, these laws make it impossible for the average citizen to
carry a firearm for protection in California, since the only way around
them is to obtain a License to Carry a Concealed Firearm (CCW License).
These are governed by California Penal Code Section 12050, which
specifies the conditions and procedures under which a citizen may obtain
a CCW license.

In California, a person wishing such a license must apply to a chief
of police or sheriff in the county in which one resides.  One must fill
out a standard form mandated by the state's attorney general, submit
photographs and a set of fingerprints which will be used for a criminal
and psychiatric background check with both the California Department of
Justice and the FBI.  The chief of police or sheriff has the discretion
to issue the CCW license to a resident of that county who is "of good
moral character," and who can demonstrate "good cause" for requesting a
CCW license.

In actual practice, this system of issuing licenses is highly
restrictive and discriminatory.  Few minorities and few women are
granted CCW licenses.  Even persons with obvious "good cause" -- persons
living in high-risk neighborhoods or working in high-risk jobs -- are
routinely denied CCW licenses.

A lawsuit filed against the City of Los Angeles for failure to abide by
the requirements of California Penal Code 12050 has resulted in two sets
of plaintiffs being issued CCW licenses; but there has yet to be a
revision of standards by which non-plaintiffs in Los Angeles can have
expectation of receiving a CCW license without a legal battle.
In other cities in California, the situation is generally as restrictive
as it has been for the last twenty years, except for some
government prosecutors who are finding it easier to get CCW licenses.

Because of this dismal situation, gun lobbyists have been working with
legislators in Sacramento to develop bills which will modify Penal Code
Section 12050 to make it easier for Californians to obtain CCW licenses.
Some of the proposals are based on the Florida CCW law which went into
effect on October 1, 1987.

Under the Florida law, CCW licenses are granted by the state rather than
a local sheriff or police chief.  The licenses will be issued both to
residents of Florida and U.S. citizens who aren't Florida residents.
One must fill out an extensive form and submit fingerprints and a
photograph, and pay a substantial fee (about $160.00 currently). One
must submit proof of firearms proficiency -- this is a minimal barrier
since any 8-hour NRA safety certificate will do.  If one is not in a
category forbidding one to own a firearm, one will then be issued a CCW
license good for four years.  Note well: in Florida, a first
offense for carrying a firearm WITHOUT their CCW license is not a
misdemeanor but a felony; conviction revokes one's right to own a
firearm anywhere in the United States.

The Florida CCW law is attractive to most gun owners because, in a
practical sense, it solves the problem of carrying a gun for protection.
We are used to filling out forms, standing in lines, paying fees, and
dealing with bureaucracy.  We do it with tax forms, driver's licenses,
business licenses, home-ownership, insurance, credit applications, and
so forth.  So, adding one more set of forms to fill out, and another
check to write, isn't a big deal for a lot of us.

Of course there's only one problem with all this.  Carrying a gun is a
natural right deriving from our right to defend our lives and property.
This right was codified in the Second Amendment as one of those
fundamental rights of the people which was to be protected by the United
States.  However, the last two centuries have not been kind to the
people's rights.

The United States is, in effect, no longer a society based on rights,
but has slowly deteriorated into that from which it once seceded: a
society based on political power and privileges.  A citizen asserting
the rights enumerated in the Bill of Rights -- or any of the
unenumerated rights covered under the 9th and 10th amendments -- will
find that courts will not protect those rights and will not punish
public officials who violate them.  This is the reality we face today.

Today, one does not gain a right by asserting it.  One gains a right by
winning the political consensus necessary to get that right granted to
whatever extent one can AS A GRANT OF POLITICAL PRIVILEGE.

This is, of course, disgusting in what's supposed to be a free country.
But the alternative to using the political system to obtain one's rights
as a privilege granted by those in power is to obtain the power to
enforce our rights directly: that is, by the use of force.

We have before us a simple alternative.  (1) We can use the political
means of obtaining power -- that is, gaining the support of large
segments of the society -- to pass legislation which will better
recognize our rights; or (2) We can use the revolutionary means of
obtaining power -- that is, gaining the support of large segments of the
society -- to overcome the military and police forces at the disposal of
those person in power who are violating our rights.

There is, of course, an ever-present third alternative: we can surrender
our rights and live as subjects of those in power.

Speaking for myself, I find the third alternative forever unacceptable.
But since the first two alternatives both involve gaining the support of
the populace as a precondition to victory, I find that there is little
difference in strategy between organizing for political victory and
organizing for revolutionary victory.  Both require winning the minds
and hearts of the people as its essential component and -- in my opinion
-- once we have the minds and hearts of the people, victory is already
ours.  At that point, those in power can no longer effectively impose
their will on the people and the institutions will change rapidly in the
direction of liberty regardless of what they attempt.  The collapse of
the Soviet Union without massive armed revolutionary conflict is strong
evidence of that.

In my view, the elements necessary for victory are (1) always be clear
about what our goals are; and (2) always be clear that any half-measures
accepted as a political compromise are not an end to our activism but
only a beginning.

Currently, of the 50 states, Vermont is the only one which allows any
adult to carry a loaded firearm, openly or concealed, without obtaining
permission from the government.  Vermont Carry must, therefore, be our
penultimate political goal on this issue.
>>> Continued to next message
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 þ OLX 2.1 TD þ Take the gun out of the CRIMINAL's cold, dead fingers!

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From: Neil Schulman #0 @176:700/11 via 176:400/0 PRNet
Re: CALIFORNIA CARRY      2/3
 
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>>> Continued from previous message
The adoption of a Florida-type CCW law in California may be a way-
station toward that goal, and its achievement would certainly make it
easier for Californians to carry their guns for protection.  Innocent
lives will be saved and some CCW-license holder may even be in the
right place at the right time to stop the next George Hennard, Gian
Luigi Ferri, or Colin Ferguson who decides to go on a shooting spree.

But, I feel that Florida Carry should be settled for only as a
compromise, not sought as an end in itself.  Toward that purpose, I
have drafted language that if enacted here in California go a long way
toward achieving Vermont Carry in California.

Here is how it works.

Instead of attempting to modify Penal Code Section 12050, which
governs the issuance of CCW licenses, the modification would be made
directly to those sections of the California Penal Code which prohibit
carrying to begin with -- PC 626.9, PC 12025, and PC 12031.

Currently, to obtain conviction of violating any of these three sections
of the California Penal Code, all that must be proved is that one was in
possession of the firearm in the prohibited circumstance -- either
concealed, or loaded, or within the school zone. The prosecution does
not need to prove any recklessness in the manner in which one was
carrying.  The prosecution does not need to prove that there was any
intent to commit a crime.  The prosecution does not even need to prove
that you were aware that you were in possession of a firearm in the
manner prohibited by the California Penal Code.  The simple fact of
carrying or possession in the prohibited circumstance is sufficient
to obtain a conviction.

What this proposed language would do is change the standard for
criminal convictions to require proof that the person carrying or
possessing the firearm was doing so in reckless endangerment of the
safety of others, or was doing so with the specific intent to commit a
felony or violent misdemeanor.

If adopted, this language would mean that to be convicted of the crime
of carrying a gun illegally, the prosecution would have to establish
facts showing that you weren't carrying it for a legal purpose (such as
self-protection) but carrying it for an illegal purpose (stalking
someone, threatening someone, illegal target practice, terrorizing
someone, mugging someone, carjacking someone, knocking over a 7-11,
gang-banging.)  This returns the focus of the Penal Code to its
intended purpose: to control criminal behavior, not impose prohibitions
on what honest citizens may do for their legitimate purposes.

This proposal makes the debate on the issue of civilian carry of
firearms crystal clear.  If a politician opposes honest people carrying
guns for honest purposes, it is only because he or she distrusts the
people and really wishes for a police state to control them.

But there is an even stronger argument that can be made for inserting
this language into Penal Code Sections 626.9, 12025, and 12031: it will
bring those laws into compliance with the requirements of Article 1,
If adopted, this language would mean that to be convicted of the crSection 1 of
the California Constitution, and also into compliance with
requirements set forth in the California Government Code.

Article I,  1 of the California Constitution reads: "All people are by
nature free and independent, and have certain inalienable rights, among
which are those of enjoying and defending life and liberty; acquiring,
possessing, and protecting property; and pursuing and obtaining safety,
happiness, and privacy." (as amended 7 November 1972.)

All sections of the California Penal Code must be in compliance with
this section of the California Constitution, or they are legally null
and void.  Since the California Constitution states, as inalienable
rights, "defending life and liberty," "protecting property," and
"pursuing and obtaining safety," any laws which interfere with the
people's rights to do these things are unconstitutional, and must be
rewritten so that they do not interfere with these rights of the people.

In addition, the California Government Code specifically relieves all
government entities and government employees from any responsibility
for failure to protect the public from crime:

             CALIFORNIA GOVERNMENT CODE ON OFFICIAL LIABILITY

FAILURE TO PROVIDE POLICE PROTECTION
     California Government Code, Section 845, states,
"Neither a public entity nor a public employee is liable for
failure to establish a police department or otherwise
provide police protection service or, if police protection
service is provided, for failure to provide sufficient
police protection service."

FAILURE TO MAKE ARREST OR TO RETAIN PERSON ARRESTED IN CUSTODY
     Section 846 states, "Neither a public entity nor a
public employee is liable for injury caused by the failure
to make an arrest or by the failure to retain an arrested
person in custody."

PAROLE OR RELEASE OF PRISONER; ESCAPE OF PRISONERS
     Section 845.8 states, "Neither a public entity nor a
public  employee is liable for (a) Any injury resulting from
determining whether to parole or release a prisoner or from
determining the terms and conditions of his parole or
release or from determining whether to revoke his parole or
release.  (b) Any injury caused by (1) An escaping or
escaped prisoner; (2) An escaping or escaped arrested
person; or (3) A person resisting arrest."

FAILURE TO PROVIDE PRISON, JAIL, OR CORRECTIONAL FACILITIES
     Section 845.2 states, "Except as provided in Chapter 2
(commencing with Section 830), neither a public entity nor a
public employee is liable for failure to provide a prison,
jail or penal or correctional facility, or, if such facility
is provided, for failure to provide sufficient equipment,
personnel, or facilities therein.

MAYORS, MEMBERS OF LOCAL PUBLIC ENTITIES, BOARDS, COMMISSIONS
AND ADVISORY BODIES NOT VICARIOUSLY LIABLE FOR INJURIES
CAUSED BY ANY PUBLIC ENTITY
     Section 820.9 states, "Members of city councils, mayors,
members of boards of supervisors, members of school boards,
members of governing boards of other local public entities,
members of locally appointed or elected advisory bodies are
not vicariously liable for injuries caused by the act or
omission of the public entity or advisory body.  Nothing
in this section exonerates a public official from liability
for injury caused by that individual's own wrongful conduct.
Nothing in this section affects the immunity of any other
public official."

So, under the current state of California law, there is both a
constitutional statement that the people have the rights (and
therefore primary responsibility) for "defending life and liberty,"
"protecting property," and "pursuing and obtaining safety," and --
contrary to the assertions of those who state public safety is
primarily the responsibility of police agencies -- the California
Government Code specifically absolves all police agencies of having
to answer legally for any failure to protect the public.

This is not just theoretical; it was proved when lawsuits filed
against the Los Angeles Police for retreating and failing to protect
the public during the Los Angeles riots were dismissed by the courts,
citing these provisions of the California Government Code.

This gives us a powerful argument for redirecting the prohibitions on
carrying and possessing firearms by the public so that only persons with
reckless or criminal intent are affected.  The California Constitution
creates a "rational purpose" argument for such legislation: to protect
the rights of the people, enable them to perform a constitutional
responsibility, and direct the penal code to its intended purpose.
>>> Continued to next message
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 þ OLX 2.1 TD þ Take the gun out of the CRIMINAL's cold, dead fingers!

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From: Neil Schulman #0 @176:700/11 via 176:400/0 PRNet
Re: CALIFORNIA CARRY      3/3
 
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>>> Continued from previous message
Public policy considerations -- citing the National Self-Defense Survey's
proof of 2.45 million private firearms defenses in the U.S. per year,
1.9 million of them with handguns and one-third of them away from home --
can also be brought into the debate at the appropriate time.

With all this in mind, here is the language I propose be added to
legislation pending in Sacramento:

"In order to comply with the intent of Article 1, Section 1 of the
Constitution of the State of California which states the inalienable
rights of the people to 'defend life and liberty,' 'protect property,'
and 'pursue and obtain safety,' conviction of California Penal Code
Sections 626.9, 12025, or 12031 shall require proof that the individual
charged with illegal possession or carrying of the firearm or weapon did
so in a manner to recklessly endanger the safety of others, or did so
with the specific intent to use that firearm or weapon in the commission
of a felony or violent misdemeanor."

I urge all firearms-rights activists to lobby their state senators and
assembly members to introduce this language into pending legislation,
and to pass it this session.

J. Neil Schulman

    Reply to:
 J. Neil Schulman
 Mail:                 P.O. Box 94, Long Beach, CA 90801-0094
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"Mr. Schulman's book is the most cogent explanation of the
gun issue I have yet read. He presents the assault on the Second
Amendment in frighteningly clear terms. Even the extremists who
would ban firearms will learn from his lucid prose."
 --Charlton Heston

"Schulman has truly changed my mind on guns and self defense."
 -- Dennis Prager, KABC Radio

"Schulman shoots down all of the tired old anti-gun arguments and
explains clearly why "gun owners are morally, historically,
legally, and politically justified in their choice to be armed."
This book is entertaining as well as informative and should be a
part of every gun owner's library. ...  Buy an extra copy for your
congressman."
 --Bill O'Brien, GUNS & AMMO

             THREE STARS FROM THE LA DAILY NEWS!!!
"Schulman delivers a message likely to enrage those who
campaign against handguns ... Just as surely, his point of
view is certain to please Second Amendment fundamentalists,
who crusade for the right to bear arms, as well as
delighting anti-government iconoclasts ... But for readers
in the middle ground on the gun-control debate, Schulman
presents a thought-provoking and refreshingly broad
discussion of issues that too often receive shallow treatment
in mass media reports about gun-control proposals. ... Readers
who haven't staked out a position on either side of the gun
debate will find this volume provides some eye-popping
reasons to evaluate or reconsider the assertions they hear
on the topic."
 --Mike Comeaux, Staff Writer, LOS ANGELES DAILY NEWS

"Schulman's reasoning powers are superb, and he uses them to
cut through the bunk that clouds the issue. ... Just like a
good handgun, STOPPING POWER will disable the adversary,
hopefully for good.  Buy it."
 --AID & ABET POLICE NEWSLETTER

"A vastly entertaining book that clarifies the real issues and
blows the opposition away like a Vulcan cannon.  As a successful
screen and SF writer, Schulman has produced what may be the most
powerful (and readable) gun rights book yet."
 --LANCER MILITARIA

"A great book for converting anti-gunners to pro-gunners.  He
provides practical and Constitutional arguments that are hard
to refute and he takes what the anti-gunners have been
spouting and examines all of their flaws.  Schulman brings
the Second Amendment into the 20th Century and provides
strong arguments for its relevance today that is stronger
than when it was included in the Bill of Rights.  Must
reading."
 -- AMERICAN FIREARMS INDUSTRY

"Gives you the ammunition that you need to effectively debate
and talk intelligently about the attack on our Second Amendment
rights in everyday language ... The book is thoroughly
researched ... Once you have read this book and feel the way
that I do about its content, then order a second and a third
copy either for your public library, as a gift for a friend,
or for your club legislative director.  Help spread the word,
the facts, the truth."
 --John C. Krull, THE NEW GUN WEEK

"[STOPPING POWER] should take its place as one of the most
convenient and readable arguments for firearms rights on the
market.  The most delightful thing about this book -- besides
the frequent humor and often hilarious sarcasm -- is the utterly
unapologetic attitude Schulman takes toward the right to keep
and bear arms.  Some Second Amendment activists mumble about
hunting and sportsmen and traditions, while endorsing
compromises that are put forward as just a little harmless
regulation.  Schulman comes right out and says that the right to
keep and bear arms has to do with protecting yourself from
criminals because you can't count on the cops, and protecting a
free society from a potentially tyrannical government. ...
Whatever your position on this issue, you'll enjoy Neil's
pungent and stylish writing."
 -- Alan Bock, ORANGE COUNTY REGISTER

"His research is impeccable. Nobody expresses the other side
better than the author of STOPPING POWER, J. Neil Schulman."
 --Michael Jackson, KABC Radio

"Always eloquent.  Always well-reasoned.  And dammit, always
stirring.  This is down in the trenches stuff, real argument
and debate.  It is the fevered journalism of a man in mid-crusade.
A man fighting a war for independence we should all be up to
our hips in right now."
 --Wally Conger, OUT OF STEP



 STOPPING POWER: Why 70 Million Americans Own Guns
 by J. Neil Schulman

 Foreword by Criminologist and Civil-Rights
 Lawyer Don B. Kates, Jr.
 Published by Synapse--CenturioN
 Price: $22.95 USA / $29.95 Canada
 ISBN: 1-882639-03-0
 Hardcover, 288 pages

Post as filename: CALCARRY.TXT
---
 ~ OLX 2.1 TD ~ Take the gun out of the CRIMINAL's cold, dead fingers!
---
 þ OLX 2.1 TD þ Take the gun out of the CRIMINAL's cold, dead fingers!

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