Attorney General candidate has come up with a clever way for more Gun Control

[Mosinshooter762]

Hello, I'm a new member of Pa FOA. I didn't see a new member area, so I figured I would write it here.

http://www.philly.com/dailynews/opin...EGULATION.html

A CLEVER END RUN ON GUN REGULATION

By JOHN M. MORGANELLI
AS A DISTRICT attorney for 16 years, I've supported the right to carry a concealed weapon with a permit and the right to use deadly force if necessary to protect one's life or the life of another.

And I've opposed misguided efforts to sue gun manufacturers and to require law-abiding citizens to register their guns with the government. But another fact is that, too often, criminals, mentally disturbed individuals and children come into possession of firearms, with tragic and devastating results.

We can take guns out of the hands of criminals, children and the mentally ill without disarming law-abiding citizens. It's no longer acceptable to fall back on the cliché that we don't have to do anything but enforce existing gun laws. The fact is we do enforce existing laws. Every day across the state, gun laws are enforced by D.A.s and police. But we need to do more - what we're doing isn't working. Every day, more police, children and others are killed or seriously injured by handguns in the hands of criminals, children and the mentally ill.

One of the ways to do this is to require that lost or stolen guns be reported to law enforcement within a reasonable amount of time of learning that a firearm is missing or misplaced.

A stolen or lost gun represents a danger to the community. These guns often end up in the hands of a criminal, a child or mentally ill person with devastating consequences. Law enforcement knows, too, that when a gun used in a crime is successfully traced back to the last person who legally owned it, that person frequently claims that the gun was lost or stolen.

In reality, that person is often a trafficker who sells guns to criminals or other people who can't lawfully own or possess a gun. Since there is no law requiring that a lost or stolen gun be reported, straw purchasers who sell guns illegally go unpunished.

Requiring lost or stolen guns be reported to law enforcement within a reasonable amount of time from having knowledge that a weapon is missing would assure that guns that are truly lost or stolen don't end up in the wrong hands. It also would begin to erode the criminal gun-traffickers' ability to evade detection and prosecution.

The state legislature recently tried but failed to pass such a law. Fortunately, there's another avenue to achieve this result.

Pennsylvania law gives the attorney general the power to adopt consumer-protection regulations that have the "force and effect of law." Pennsylvania law provides that the "Attorney General may adopt, after public hearing, such rules and regulations as may be necessary for the enforcement and administration of the Unfair Trade Practices and Consumer Protection Law (UTPCPL). Such rules and regulations when promulgated shall have the force and effect of law."

The courts have held that the attorney general has broad power to adopt consumer regulations to protect the public from both unfair and deceptive business practices.

The regulation of firearms as consumer products is consistent with the goals of the consumer-protection statutes. When guns are bought by traffickers for illegal resale, such action is deceptive and engaged in to evade the law.

When these same guns are used in a crime, and traced to their last owner (the gun trafficker), who now claims that his gun was lost or stolen, there is more deception.

It's clear that the attorney general can mandate that lost or stolen guns be reported to law enforcement within a reasonable time of learning about it through his power of issuing regulations. Other state attorneys general have acted successfully in using their regulatory power to address guns.

Such a requirement is not in any manner an infringement on the Second Amendment. It is also not making law-abiding citizens criminals. Every law-abiding citizen gun-owner I know wants to make sure that a lost or stolen gun does not end up in the wrong hands and already reports such matters to the police.

This requirement will only make it uncomfortable for those who sell their guns to criminals and then later claim that the gun was lost or stolen.

The attorney general should immediately begin the process to adopt regulations that would:

* Require retail gun dealers to inform purchasers of a handgun that there is a duty to report to law enforcement knowledge of a lost or stolen handgun within a reasonable amount of time of learning of it.

* Require retail gun dealers to inform purchasers of handguns that the gun cannot be loaned or given to another person or sold to a person not legally allowed to possess a gun.

* Require purchasers of handguns to agree to such requirements upon purchase of a handgun, with penalties for failure to do so. *

Northampton County D.A. John M. Morganelli is the Democratic candidate for state attorney general.

http://www.philly.com/dailynews/opin...EGULATION.html

[Philadelphia]

So this DA believes that the AG can single handedly adopt regulations with the force of law which directly contradict the state preemption law?

If this guy actually a lawyer?

Why doesn't the AG adopt a regulation that denies probation and parole to violent scuzzballs as part of consumer protection? How about completely reworking the statutory mandatory minimums to double all of them as part of consumer protection? I'm a consumer and that would help protect me.

While the AG is at it, how about if he adopts a regulation appointing himself as governor as a matter of consumer protection? This DA has lost his mind. If his interpretation were correct, we would have no need for an elected general assembly as whatever the general assembly might or might not do, the AG could change everything by simply adopting a regulation. Stupid.

[IV_Warrior]

Requiring lost or stolen guns be reported to law enforcement within a reasonable amount of time from having knowledge that a weapon is missing would assure that guns that are truly lost or stolen don't end up in the wrong hands.

No, it wouldn't. A lost or stolen gun is still going to end up in the same place, just if it's found being used in a crime, it'll already show up as being reported lost/stolen. Requiring people to report a gun lost/stolen ISN'T going to change where it ultimately ends up.

It also would begin to erode the criminal gun-traffickers' ability to evade detection and prosecution.

It also can't do this. When the cops show up at the house of the last legal purchaser, all they have to do is say "My gun's in the bedroom closet" (or where ever) and then go check. Come out and say, it's not there, someone must have stolen it. The police have no honest way of saying that the person didn't JUST find out that the gun was lost/stolen, so their time frame to report it starts RIGHT THEN.

As we all know, a law requiring people to report lost/stolen firearms DOES NOTHING TO PREVENT CRIME. It's just another "feel good" thing for politicians to claim they're doing, and another step toward the anti's goal of banning firearms, period.

[Skullz]

I live in Northampton County. For the most part, Mr. Morganelli has been on the side of law abiding citizens when discussing gun rights, etc.

This Op Ed piece is a way to garner votes, for sure. He is looking to get the Philly area and demoncrat strongholds behind him.

All that said, I tried to find a way to contact him, and could only come up with his PAC. I composed a direct and pointed message indicating the offensiveness of his opinion, both in terms of criminalizing a victim of theft or burglary, but more so on his stance that the power of the AG would allow him to contradict the PA constitution and UFA.

I also told him that I would continue to follow his campaign and urged him to retract his opinion, and perhaps opine on violent criminals serving their entire sentence. If he does not change his stance on this issue, I will work to make sure his campaign is not successful.

[LittleRedToyota]

So this DA believes that the AG can single handedly adopt regulations with the force of law which directly contradict the state preemption law?

i vehemently disagree with what the guy is proposing to do, but it is not a violation of the state preemption law.

the state preemption law states very specifically who it applies to (counties, municipalities, and townships)...and the AG is not on the list.

If this guy actually a lawyer?

sounds to me like he is...and a rather smart and creative one at that.

This DA has lost his mind. If his interpretation were correct, we would have no need for an elected general assembly as whatever the general assembly might or might not do, the AG could change everything by simply adopting a regulation. Stupid.

actually, the truth is that AGs and other non-legislative bodies/people at both the state adn federal level have *a lot* of power to essentially make their own laws. they are given this power by other laws passed by the appropriate legislatures.

the federal drug schedules are a great example. new drugs can be made illegal just by being added to a schedule...and congress is not involved at all in controlling what drugs are on the schedules (and the ultimate decision is made by an adminstrator at the DEA).

note: i find all of this to be a horrific miscarriage of justice and subversion of the constitution, so don't think i am defending any of it...but that is the way it is.

[Skullz]

I received a response from John Morganelli... and replied in kind.

John,

I sincerely appreciate your speedy response. I will look forward to you explaining in more detail how you propose your solution to work.

I find two glaring issues with your response, however.

"WHEN THEY BECOME AWARE OF IT " How is this enforceable? I admit it differs from the 72 hour period that was proposed in Harrisburg, but I just can't see how it's enforceable.

"not the gun owner who does the right thing." Law abiding gun owners have already done the right thing. We have passed the PICS / NICS check. We have never been convicted of a violent crime, etc. It's not much of a leap that a law abiding gun owner would already contact the police in the case of a burglary - or even a lost gun - because we already do the right thing. How does this law affect the criminal elemet, already operating outside the law? Besides, according to the US supreme court in US vs. Haynes (1968) criminals are exempt from a law like this, as it violates their 5th amendment rights.

Regards,

Seth

On Mon, May 19, 2008 at 8:30 PM, <bd3301@aol.com> wrote:

Mr. S

Thanks for getting in touch with me. I respect your opinion. However, I don't agree with you that requiring gun owners to report that their weapon is lost or stolen WHEN THEY BECOME AWARE OF IT turns law abiding citizens into criminals. When a gun is lost or stolen, it means it is in the hands of someoone who should not have it. Law enforcement can help track it down before it becomes used in a crime or a kid accidentally kills himself or others. Only gun traffickers dont report these guns lost or stolen, and that is who will be affected by this-- not the gun owner who does the right thing.

But, I respect your view. By the way, I also have advocated abolishing parole for violent criminals. Take care. John
-----Original Message-----
From: s
To: BD3301@aol.com
Sent: Mon, 19 May 2008 8:14 pm
Subject: A Message from Seth

*************************************************

Query:Mr. Morganelli,

Even though I have only been a resident of Northampton County for under
two years, I have normally been impressed and proud of the stances on
legal issues that you've made public.

That pride ended today when i read your opinion piece "A Clever End Run on
Gun Regulation" published on Philly.com.

It is offensive that you would look to criminalize victims by instituting
a mandatory stolen or lost gun law. It is more offensive that you would
use the position of AG to circumvent the PA constitution and Uniform
Firearms Act, directly contradicting state preemption.

This measure was soundly defeated in the legislature recently, as it
should have been.

It is an unenforceable, feel good law that will do nothing to stem the
tide of criminals trafficking illegal guns, and using those illegal guns
for committing crimes.

A lost or stolen gun is still going to end up in the same place, just if
it's found being used in a crime, it'll already show up as being reported
lost/stolen. Requiring people to report a gun lost/stolen ISN'T going to
change where it ultimately ends up.

This proposal is unenforceable. The police have no honest way of saying
that the person didn't JUST find out that the gun was lost/stolen, so
their time frame to report it starts RIGHT THEN.

I urge you to retract much of what you opined in your article. Maybe you
could suggest keeping violent criminals in prison for the duration of
their sentence? If the early release and probation programs were not in
place, the recent shooting of the office in Philadelphia would not have
occurred.

I hope that this message reaches you, as I was unable to find another way
to contact you directly.

Regards,

Seth

[Philadelphia]

actually, the truth is that AGs and other non-legislative bodies/people at both the state adn federal level have *a lot* of power to essentially make their own laws. they are given this power by other laws passed by the appropriate legislatures.

Exactly, and it is also hornbook law that when the legislature delegates rulemaking authority, the rules made must be within the scope of that authority and the legislation ltself must set forth the general criteria to be used to guide the rules.

The DA's argument assumes almost limitless rulemaking power of the AG, to essentially legislate anything under the guise of consumer protection. That's not how it works, as indicated in my other examples.

the federal drug schedules are a great example. new drugs can be made illegal just by being added to a schedule...and congress is not involved at all in controlling what drugs are on the schedules (and the ultimate decision is made by an adminstrator at the DEA).

That is a good example. The scope is limited and the discretion guided. Can the DEA add guns to the list of federal drug schedules and outlaw them too as illegal drugs? Of course not. They can try (as this DA is urging the AG do) but it will fail. It's also not true that the DEA can add any compound to the list of prohibited compounds. There are criteria to be used. If there were none, asperin (or better yet Tylenol (r)) could be added as a prohibited compound and there would be nothing anyone could do about it. That's not the case.

note: i find all of this to be a horrific miscarriage of justice and subversion of the constitution, so don't think i am defending any of it...but that is the way it is.

PA still follows its constitution. If you look at the relatively recent case challenging the new casino law which allowed the board to make regs concerning casino siting without stautory language to guide the agency's use of its discretion, that portion of the statute was stricken as unconstitutional. If under the AG's grant of power, the AG can make regulations specifying with force of law what to do if your gun is stolen under the guise of consumer protection, that grant of unbridled power in the consumer protection law would likewise be found unconstutional.

The DA's interpretation is to allow the AG to basically make any law at all in under the guise of consumer protection. The AG does not have that power and if the legislature did hand it to him in that fashion it violates separation of powers.

[Mosinshooter762]

Exactly, and it is also hornbook law that when the legislature delegates rulemaking authority, the rules made must be within the scope of that authority and the legislation ltself must set forth the general criteria to be used to guide the rules.

The DA's argument assumes almost limitless rulemaking power of the AG, to essentially legislate anything under the guise of consumer protection. That's not how it works, as indicated in my other examples.



That is a good example. The scope is limited and the discretion guided. Can the DEA add guns to the list of federal drug schedules and outlaw them too as illegal drugs? Of course not. They can try (as this DA is urging the AG do) but it will fail. It's also not true that the DEA can add any compound to the list of prohibited compounds. There are criteria to be used. If there were none, asperin (or better yet Tylenol (r)) could be added as a prohibited compound and there would be nothing anyone could do about it. That's not the case.



PA still follows its constitution. If you look at the relatively recent case challenging the new casino law which allowed the board to make regs concerning casino siting without stautory language to guide the agency's use of its discretion, that portion of the statute was stricken as unconstitutional. If under the AG's grant of power, the AG can make regulations specifying with force of law what to do if your gun is stolen under the guise of consumer protection, that grant of unbridled power in the consumer protection law would likewise be found unconstutional.

The DA's interpretation is to allow the AG to basically make any law at all in under the guise of consumer protection. The AG does not have that power and if the legislature did hand it to him in that fashion it violates separation of powers.

He must honestly believe that he can act as the General Assembly. Then when you challenge the constitutionality of it watch him throw on a black robe, and claim judicial powers. This guy is starting to sound like an Ed Rendell in the making.

[shooter357]

John Moganelli is a great DA. He has performed his job magnificantly over the years. But, I don't see him doing a better job than Tom Corbett. Morganelli's stance on firearms is a little to liberal for my taste.

[LittleRedToyota]

The DA's argument assumes almost limitless rulemaking power of the AG, to essentially legislate anything under the guise of consumer protection. That's not how it works, as indicated in my other examples.

i hope you are right. you have much more faith in our courts than i do.

after all, the PA supreme court has made some very interesting "interpretations" in the past...like saying the PSP sales data basie does not fit the definition of "any registry" and somehow does not violate the law about having to destroy those records.

The scope is limited and the discretion guided. Can the DEA add guns to the list of federal drug schedules and outlaw them too as illegal drugs? Of course not. They can try (as this DA is urging the AG do) but it will fail.

again, you have more faith in our courts than i do. and, again, i hope you are right. i don't see the courts seeing what this guy wants to do as being analogous to adding guns to a federal drug schedule. i'm afraid they will apply the same lack of logic they have applied in other cases (like the PSP registry case) and agree with this guy's logic.

It's also not true that the DEA can add any compound to the list of prohibited compounds. There are criteria to be used. If there were none, asperin (or better yet Tylenol (r)) could be added as a prohibited compound and there would be nothing anyone could do about it. That's not the case.

actually, it is the case. the DEA does have to take input from other entities, but they do not have to listen to it. plus, all those criteria are subjective and need not be based on sound objective science. (the fact that marijuana is a schedule 1 drug is evidence of this.)

the DEA could put acetaminophen on the list. of course, the makers of tylenol have enough money and clout to prevent that from happening. and, it already has an accepted track record of medical usefulness.

a more realistic example would be if someone who did not have the resources of a major pharmaceutical company developed some new drug that could replace acetaminophen. this new drug could easily end up on schedule 1. all the DEA (with the help of the makers of tylenol) would do is make sure there was never any government accepted research done showing it was medically useful...then claim it has a high potential for abuse. and presto...the new drug is schedule 1 and will never get a fair trial.

but all that is getting off track.

PA still follows its constitution.

sometimes. of course, the right of the citizens to bear arms is questioned all the time...and the PA supreme court allows it...so they certainly don't follow that part of the state constitution.

If you look at the relatively recent case challenging the new casino law which allowed the board to make regs concerning casino siting without stautory language to guide the agency's use of its discretion, that portion of the statute was stricken as unconstitutional.

well, that is certainly a ray of hope.

The DA's interpretation is to allow the AG to basically make any law at all in under the guise of consumer protection. The AG does not have that power and if the legislature did hand it to him in that fashion it violates separation of powers.

i agree completely that it violates the separation of powers. again, though, i have much less faith in our courts than you do.

there are just too many examples of both the PA supreme court and SCOTUS completely disregarding what the relevant constitution actually says. there are also examples of the PA supreme court completely disregarding what the PA UFA says.

so, i have no faith that they would shoot this idea down.

but, again, i hope you are right, and i am wrong.