Florida Gun Law Settlement and Future

Well, alrighty again, welcome back once again to the Gatowski files starring our very own Steven Ngotowski. Stephen is the founder, owner, and editor in chief over at the Reload dot com check it out. There is a hyperlink in the description. Do consider getting a membership. Stephen does rely on his membership dues to fund his important work. Stephen. How are you my friend? I'm doing alright. How are you? Not too bad. It is a sunny sunny day here in Lovely ChuSung. We had our first monsoon action of the season. Excuse me, june fifteenth is the official start of monsoon season, which I adore. I'm becoming an old retired guy who loves watching storms in the summertime. My son, I fulfilled my destiny as the old guy watching storms in the summertime. So it's exciting over here in Arizona. I know it's not a big deal back east, but I grew up , you know, in the DC area watching thunderstorms roll in every afternoon and then I spent twenty two years in San Diego and I think I saw two thunderstorms the entire not exaggerating, two thunderstorms in twenty two years, so I'm happy to be here. How , it's been it's been pretty nice most of the time out here lately. It's early part of the summer. You know how it is here in the DC metro where it gets insanely humid and then it's very unpleasant to be any outside at all at any times. But the humidity has been fairly low. I'm even wearing jeans now in the middle of summer because it's only going to be in the seventies , but it's been good top off the Jeep weather, which me and my wife really enjoy that so been happy for it and only a couple downpours in the last couple weeks. So . The big UFC event was not far from you. You were in Northern Virginia. Did you have any blue angels fly over your house by any chance last night? Not that I noticed, but I think there was also an air show out in Ocean City , Maryland as well. So a lot of flyby stuff going on in Air Unuses. My old stomping grounds. I was a seasonal cop there back in the mid nineties. So yeah, that was a lot of fun. All right, moving on, folks who don't want to hear about the weather, I guess. So they want to hear about this is not a weather podcast. That's right. Weather, sports, whatever you need. So we're going to talk today , at least in part about a member newsletter over at the Reload, authored by Steven Gotowski. The headline of which is should DUIs equal disarmament one top court thinks so that top court being I think it's believe it's the Supreme Court of the State of Washington . The question being and I think it's a good question to ponder , should somebody with multiple DUIs , so arguably somebody who can't be trusted with a car to not drive it while impaired be trusted with firearms . And I think it's a question that should be asked. I think it's a fair question. And Washington State in a five decision says no, Stephen, tell us about it . Yeah. So this is one of those post brewin decisions, even though it's a state court decision, a lot of it's sort of paralleled with the federal jurisprudence on the Second Amendment . But it's one of those post bruin decisions where lower courts are trying to figure out exactly who can be disarmed, like who the government can take guns away from under the Second Amendment with out infringing on the Second Amendment. And here the law involved is a state law that says if you have more than if you have two or more DUI convictions over the last seven years then you lose your gun rights. At least during that seven year period, I believe. But that was challenged by two people in Washington and made it all the way up to their state supreme court, which, as you mentioned, ruled in favor of the law, said this law is constitutional , that it does fit within the historical tradition as required under B ruin of Firearms regulations. And so therefore it doesn't violate the Second Amendment. And just to give you a key quote here from the ruling where they reference Rahimi. We've talked about Rahimi a number of times, a Supreme Court case from a couple years ago where the court upheld the federal ban on possessing firearms or like acquiring new firearms, I think is what it is. But either way , there's a ban on firearms ownership by those who were subject to domestic violence restrainers. The Supreme Court upheld that federal prohibition eight to one. And that was kind of that's the only case they've done to date. We were actually going to get some new Second Amendment cases from the Supreme Court here either this Thursday like or next Thursday were coming up at the end of the second it's coming up at the end of the Supreme Court term where they're sitting on two second amendment cases they haven't released yet, but one of those does deal with the Hamani deals with the weed weed smoker and that prohibition in federal law. But right now, the only guidance we have is from Rahimi, where the court upheld eight to one the domestic violence restraining order gun ban and said, Yes, this particular guy Rahimi, who had this record established in court that he had, you know, threatened the mother of his children and he'd had a record of violence established in this case and he had this domestic violence restraining order. And so yes, he could be disarmed because he's dangerous meets the standard Bruin . And so that's the only time the Supreme Court to this point has weighed in on who can be disarmed . But instead of whether it can be banned like handguns in Heller or what the process can be for issuing concealed carry licenses like in Bruin. But back to the Washington State Supreme Court, this is what they ruled the majority. This is Justice Gonzales writing for the majority. He said, quote, While the individualized findings in Rahimi supported disarmament in a civil restraining order proceeding, unconnected to a criminal charge. That is not the backdrop we have here. Instead, in post conviction cases like the ones now before us , courts must first determine whether the legislation may disarm a category of people without an individualized assessment of each person's dangerousness based on the type of conviction at issue. And so there he's talking Rahimi was an as applied challenge. It was all about whether Rahimi himself was dangerous This law just disarms anyone with a DUI conviction. Doesn't require courts to go in and determine on a case by case basis , whether or not the person can be disarmed, it's categorical . And they pointed to a number of historical regulations that existed around the founding period . And essentially said these collection of laws justifies Washington's new law. And it's another quote from Gonzales that says t,aking together our nation's history of limiting the firearms rights of those who have been convicted of serious crimes and those who have a history of dangerous use of intoxicants such as repeatedly drinking or repeatedly driving while under the influence is sufficient justification for the regulation here. We hold that the state has shown its law s temporary disarmament of recidivist drunk drivers is consistent with the nation's historical tradition of disarming groups of people presenting a special danger of misuse . And so essentially upheld this law. They said even though it kind of gets at this question that we've seen a lot in the lower courts post Bruin , which is when is somebody dangerous enough to be disarmed under the Second Amendment , do they actually have to commit, for instance, a violent crime, a serious violent crime, like a violent felony , or can somebody be dangerous based on their convictions they have, even when those convictions are for non violent offenses like for instance a DUI or multiple DUIs in this case or drug dealing is another one we've seen come up you know even if there's no record of violent crime , we've seen judges , the lower courts uphold the prohibition on felons as it relates to somebody convicted of drug dealing, for instance . But we've also seen courts go different ways. Drug users, for instance , is another one where we've seen dichotomy over that. Drug using is not violent in its and of nature of the conviction, but can lead to a higher propensity for violence, things of that nature. We've seen these arguments kind of play out. And so this is another one where these judges are saying, while these people don't have a violent record, they do have a record that indicates they may be dangerous and apparently too dangerous to own a gun. Yeah, I would also add this is an anecdotal, right? I don't have numbers to back this up. But if you ask any state trooper or anyone who any officer of any department or deputy of any department who works traffic to get two DUIs in seven years doesn't mean you drove drunk twice in seven years. It means you got caught twice in seven years . And the number of times you have to have driven drunk to get caught twice in seven years is a lot. I mean, that means you're doing it with some frequency, almost certainly. I guess I have a little bit of a hard time figuring out how I feel about this one because honestly, John Korea likes to say that drunk driving is like almost like walking around with a loaded gun, shooting it off in various directions and it might may or may not hit someone because it is a very dangerous activity. And in this day and age , and again, I'm not sure how I feel about this particular story or this decision by the court. In this day and age, especially if you live in any kind of metropolitan area, it is the most preventable thing in the world driving drunk because there's, you know, there's there's Uber, there's LIFT, there's the there's the metro, there's a subway, there's taxis, there's people to call. And you know, it just seems like the easiest thing to avoid doing Is this the sort of thing this decision is that might make it to a higher court at some point? Is what are the odds of that, Steven? It's possible. You could the defendants here could or I guess they're plaintiffs. They're challenging this law. They're not necessarily challenging their their convictions and their DUIs. They're challenging the law in Washington State as a violation of their Second Amendment rights. And so once you've been to the state supreme court, there is an avenue to go up to the U. S. Supreme Court at that point. So it's possible they'll appeal . Whether or not the Supreme Court would have interest is another thing. They haven't yeah we just don't. We don't know at this point what they might do, but I will say that there's just to give people the other side of the argument here. We have seen disagreements on this exact question , both obviously there were four dissenters in this case and I'll read quote from them. But first there's also a twenty twenty three ruling in the third circuit by US district judge John Milton Yunge . I'm sure that's not how you pronounce that, but I apologize to the judge where he held that the felony gun ban at the federal level was unconstitutional as applied to somebody with a DUI conviction . So to give you an idea of why, I'll just read a quote, key quote from that ruling . Then Judge Yong says why OU NG E . So I guess young, right? It should be young with an E on the end of it. I don't know. Really the E throws me off a lot. But anyway, they should have an easy to spell and pronounce name like Katowski . But here's here's where the judge said quote, The court finds the government's argument that section nine hundred and twenty two G one, which is the federal felony prohibition on gun ownership can be appropriately applied to plaintiff because of historical regulations on the possession of a firearm by a presently intoxicated person unavailing. So the government was arguing that if you look at the historical tradition, there are a number of laws from the founding era where that barred people from having guns while they were actually drunk while they were intoxicated . And the government was trying to say that that's an appropriate analog for banning people who have DUI convictions from felony DUI convictions in the federal case from owning guns. And the state court, Virginia or sorry, the Washington State Supreme Court also used this history . They argued it was analogous to Washington state's law. Here this federal judge said that's not convincing and I'll continue the quote here. It says , The government points to several regulations permitting the disarmament of drunk or intoxicated persons . None of these regulations allude to disarmment lasting beyond the individual's state of intoxication and none provided for permanent disarmament as section nine hundred and twenty two G one does. Certainly, this court agrees that using a firearm while intoxicated is dangerous, but historical regulations which momentarily disarm certain individuals for temporary mental incapacity cannot be considered similar to the section the sanction of permanent disarmament for past DUI convictions. This is a little bit different than what the state law does. This is about felony VUI conviction . And it's under the federal system right now, obviously we've talked as well in the past about how the DOJ is working on a rights restoration process, a new rights rest prorcessiction . But practically speaking right now, if you become a felon, there's no way to get your gun rights back . And so that's why he's talking about this permanent difference. That's another thing that's a little bit different from the state law. The state law is only temporary . It's a seven year prohibition essentially. But it's still the same core laws and tradition that we're talking about here. And you have these two courts that come down on completely opposite ends . And then additionally, the dissenters in the Washington State Supreme Court case had , you know, a similar line of reasoning. This is from Justice Hallen Whitner who, was joined by three other justices on the Washington Supreme Court, she said, quote, McClellan and Holloway, those are the guys who challenged this were both convicted of having two or more DUIs, neither individual carried f irearms or committed violent acts. A DUI recidivist certainly may be dangerous, however the dangerous conduct addressed in Rahimi had a historical analogue of the Second Amendment right to keep and bear arms for self defense , there no' suchs histor ical analog for driving under the influence . So that's basically what they're saying go on to say that ruin requires both the how and why of historical regulations to be similar to match the modern regulation . And Justice Whitner said quote, We are not asked to decide whether mixing alcohol and firearms is dang erous. It clearly is , but that is not the case before us. Early laws aimed to prevent harm caused by current intoxication, like DUI laws required refraining from driving and only until a person was no longer intoxicated . While early alcohol and firearm laws focused on controlling the threat of imminent harm by forbidding access to weapons over a very short period , the Washington state law restricts access to firearms for five years without finding that the individual possesses or would pose a credible threat to the physical safety of another . So that's the other side of the argument . You have judges coming down on either side of this question and you know, it's interesting. We have a bit more, obviously, detail over at the reload in this piece by Jake, but that gives you, I think, a pretty good understanding of the bas ics of what's going on here. Yeah, for sure. The only exception as I alluded to in our pre brief would be Doc Holiday, who if he was drunk in seeing double, he has two guns. One for each of you. Anyway, if you don't get that reference , you miss the best Western movie of all time, other than unforgiving. Anyway, story for a different time. Thank you for that Steven. And one more story I did want to touch on actually involved you guys touched on in your podcast. By the way, if you missed out on the reload podcast, I highly recommend you check that out. You can get that both in audio and video form, Steven. If I'm not mistaken. That's correct. Yeah, you just search for the weekly reload podcast. It should come up on any podcasting app or on YouTube as well. I know like some of the podcasts that I enjoy political and I like car podcasts, gun podcasts, comic big in a comedy. A lot of them will do this thing where they're like, if you like this, like you know, have a society, you'll love this . So if you like the Gutowski files, you will genuinely will love their weekly reloads. You should check that out for sure. You had a guest on recently to talk about some goings on in Florida, which I think is pretty interesting. Talk to us about that. Yeah, we had Matt La Roscia on our podcast for the interview podcast. We do the we do a news update that's kind of closer to what we're doing here at the Gikowski files, but then we do an interview podcast where we bring on a guest and get their view of some whatever. The big story the week is usually and this week it was this settlement with Florida their waiting periods . Florida requires, actually it's in their state constitution, requires a waiting period for all gun sales . And after Parkland they passed they expanded that from like three days and only applied to like handguns at the time and then expanded it to up to five days and it applied to all gun sales. Now there was an exception for people who have concealed carry permits, but they also made themselves a permitless carry state. So a lot of people, even if they're carrying, not necessarily going to get the permit anymore. Regardless, Matt and the National Rifle Association and a group called Mountain States filed suit against Florida in state court over this actually I apologize, I believe it was in federal court over the waiting period law claiming it's a violation of the Second Amendment, that there, as we just sort of discussed with the DUI cases, that there is no historical tradition of waiting periods, especially not waiting periods as a sort of cooldown mechanism, right? Which is how they're often sold. Although initially , waiting periods happened when in the nineteen nineties after the Brady Act, when they first implemented the background check system , waiting periods were kind of put in place to allow law enforcement to complete the background check. Obviously , that was quickly made redundant because the background check, as the name implies , is meant to be instant and is nearly instant for most people most of the time. The National Instant Criminal Background Check System, right? That's what the FBI , that's what they call it, that's what they run . Anyway , the argument is this is unconstitutional under Second Amendment to make people wait to obtain firearms . And so they filed suit. And the interesting thing here is they didn't win in court necessarily in the sense that they went to have a hearing and each side offered their defense and then a judge decided between them. Instead, what's happened is the Florida att orney general who's tasked with defending Florida's laws in court, including its gun laws . He's a Republican named James Ruthmeier, I believe is how you pronounce it, although again I'm probably mispronouncing it as I want to do. Either way, he instead of defending the law, he didn't respond to the complaint with an actual defense. He never he never tried to put up a defense of the waiting periods. Instead he argued he eventually offered an agreement to Matt and the NRA which effectively says we agree that this law is unconstitutional. We can't think of a viable defense of its constitutional . So we're going to offer this judgment that says , you know, we can't enforce the law. And it wasn't just to be fair, it wasn't just the attorney general we get into this little bit on the show, a little more, a lot more detail actually. You know, we talked more about it now in the interview podcast. But it was it was the Republican attorney general , which this has become something of a trend for him, and I'll talk about that in a second, but it was also all of the essentially local prosecutors in Florida signed on to this agreement that they would not enforce the waiting periods anymore if the judge accepts this resolution between the two parties , which is still not certain. We don't know if the judge is going to do that . So it's not this isn't an effect yet. You can't go to your local gun dealer in Florida and walk out the same day with the gun outside of the exceptions that exist . But it seems likely to conclude that way. Both parties agree that this law is unconstitutional and that therefore the local law enforcement in Florida can't enforce it. So all that's left is essentially for the judge to accept agreement between two sides . However, you know, there are it's possible that he might not do that. He might because the Attorney general has decided he can't defend the law, which is not unheard of but also not a common practice , sometimes judges will allow somebody else to though sometimes they'll appoint somebody else to argue to defend the wall in court and sometimes they'll allow somebody who's, you know, an interested party in some way to intervene to defend the wall on behalf of the state and if the attorney general doesn't you know is refusing to do that or I think he can even force the attorney general to defend the law if he wants to. The federal judges have quite a bit of all judges have quite a bit of leeway in some of these things. But you know, the it still seems like probably the most straightforward and likely outcome is that he's just going to accept this agreement between the two sides and this law is going to go away . But this has been, as I mentioned earlier, a bit of a trend for the Florida AG. There was a case recently. I don't remember if we talked about it on our show, but they There's some Gun Rights Acts that filed suit against Florida's open carry ban and they won at the lower level of the state courts in one of the districts there. And because of how the Florida 's system works, and Matt gets into this a little more in the show, but effectively the judge agreed to or effectively the AG agreed not to fight the lawsuit anymore and that the ruling in that district would apply to all districts. And so essentially he agreed to a settlement that would make up and carryg alille in Florida . And so he's kind of been doing this now sort of the second instance where he has effectively undone some of Florida's gun laws on his own in, you know by either declining to defend them you know accepting a ruling against them without trying to appeal it . Very good. So I just want to point out to everyone that my new favorite thing in the whole world is people coming from all over the world to the United States, to the World Cup and seeing how awesome America is. If you haven't seen this on social media, I think this is turning me around on social med ia . French people , British people, Japanese people , coming and seeing Costco and Buckies. It's just it's made my heart sing. It's my summer anthem this year and it's maybe very happy. I just wanted to point that out. That's going to be it for this week. Steven, could you possibly think of a secret word folks can leave in their five star rating and review to let us know they made it all the way to the end this week . Um let's see, how about dangerousness? Dangerousness the core of the first story we were talking about. Very good, dangerousness . It is. Folks, thank you so much for watching on the app. If you're doing that, I really appreciate it. Do me a favor, go to the reload, consider getting a membership. Do check out the weekly reload podcast. There's two of them. Correct, Stephen. Yes. There's a news update and the regular one. Consider getting a membership over at the reload. It's good stuff over there. Nobody is doing exactly what Steven is doing and I appreciate it. Steven. My friend, as always, you have the last word. Absolutely. Gay birds