Our #2 Military Justice Story of 2015 was Government Bloopers.

Now the New York Times reports here that:

SUTHERLAND SPRINGS, Tex. — A day after a gunman massacred parishioners in a small Texas church, the Air Force admitted on Monday that it had failed to enter the man’s domestic violence court-martial into a federal database that could have blocked him from buying the rifle he used to kill 26 people.

Could is the wrong word. Should (as discussed here).

It won’t be long before the partisans add this to their list of reasons why commanders should be stripped of their convening authority, but I still blame the lawyers.

85 Responses to “Government bloopers redux”

  1. DCGoneGalt says:

    We need a law that makes it a law for the government to fill our forms correctly in order to enforce the law.

  2. Sgt Dad says:

    Deep Pocket doth admit liability, methinks.

  3. Less Concerned says:

    Cause felons are never in possession of weapons but always buy them from the gun store when they are …

  4. Cheap Seats says:

    Sgt Dad – not even close.  Sovereign immunity bars any negligence action, which is all that is admitted.

  5. jagaf says:

    Don’t we need a few more facts before blaming the lawyers? I.e. was the RRT properly accomplished and then action not taken by AFOSI or SFS to enter it into NCIC? Is JA supposed to wait a period of time and ask LE to query NCIC to check? And, in either case, if we want to blame anyone other than the specific individual whose duty it was to enter this into the system, is command not responsible for ensuring the processes under their purview are properly accomplished? To me this says next to nothing about the military justice system and everything about how byzantine, convoluted and anemic attempts at controlling access to firearms are in this country.

  6. Concerned Defender says:

    There is 1 person to blame here.  It’s the alleged shooter/murderer.  
    This is not the fault of lawyers, the Air Force, legislature, or “byzantine, convoluted and anemic attempts at controlling access to firearms are in this country” any more than Home Depot or Chevrolet is to blame for the truck used in the NYC murder last week.
    I’ll remind EVERY OFFICER, LAWYER, and SERVICE MEMBER reading this that your swore to uphold and defend the Constitution of the United States and the Bill of Rights.  Let me just refresh your memory.  Before we head down the silly path of more calls for gun control… this is an evil problem, not a law problem.
    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. Amendment 2.

  7. (Former) ArmyTC says:

    Isn’t this a corrections command function? How is it the lawyers’ fault?

  8. ResIpsaLoquitur says:

    My cynic sense says this will lead to a new annual training requirement starting next year.

  9. jagaf says:

    Things I learned from caaflog courtesy of CD today:
    1) UCI is bad…but not so much if “we all know [the accused] did it.”
    2) People going to church unarmed are failing in that they are not “taking responsibility for their own safety.”
    3) Exercising one’s 1st Amendment right to advocate a more restrictive reading of the 2nd Amendment violates the oath sworn by “EVERY OFFICER, LAWYER, and SERVICE MEMBER”…”to uphold and defend the Constitution of the United States and the Bill of Rights.”
    4) I need to drink more.

  10. Concerned Defender says:

    JAGAF said: …To me this says next to nothing about the military justice system and everything about how byzantine, convoluted and anemic attempts at controlling access to firearms are in this country.

    Eh, if you wear the uniform and want more gun control, you disgrace the uniform and our forefathers would roll in their graves over how embarrassing a Service Member is to want to naively further gun the very rights everyone before you fought and died for.  Low mental horsepower if you can’t grasp, “…shall not be infringed.”  Pretty straight forward concept and, combined with an oath, in direct conflict to any call for gun control.
    An oath isn’t to defend parts of the Constitution that you agree with.  Nor is it to denounce parts of it.  So, perhaps instead of calls to gut MY rights and the rights of others, you ought to just resign your commission and law license and stop acting in such a hypocritical fashion?
    Just because you can express an idea, doesn’t make it a sound one. 

  11. Zachary D Spilman says:

    Well, jagaf, Kelley went to court-martial in late-2012. 

    If the leaders of the Air Force legal community hadn’t spent 2013 making a mess of the AFCCA, and 2014 certifying practically every Government loss (but only the losses), while also insisting that a reservist can forge court-martial jurisdiction into existence, and 2015 flirting with contempt and whining about waiver, and 2016 fighting to prevent appellate defense counsel from reviewing sealed materials (and then getting the rules changed when it lost), then maybe, jagaf, I’d want more facts before blaming the lawyers.

    But considering that history (and those are just the things that came to mind when I thought about your comment), I’m comfortable with my assessment. 

  12. DCGoneGalt says:

    Zack:  Yeah, well, someone has to take every sex case to trial.  2/3 of those specs aren’t just going to acquit themselves.

  13. Tami a/k/a Princess Leia says:

    I think this is the fault of OSI.  They are the law enforcement agency, I believe it’s OSI’s job to enter the convictions into the NCIC.

  14. Tami a/k/a Princess Leia says:

    Hey, someone has to compete with Bergdahl for the top military justice story of 2017.

  15. jagaf says:

    Oh, boy; whenever I see ZS start a response with “Well, [insert name],” I always picture him reacting to the prior post like this. But seriously, that’s a wonderful, fully-hyperlinked destruction of the AFJAGC’s last few years and I won’t try to defend any of the things you briught up; however, I don’t see what they have to do with immediately blaming “the lawyers” for the present issue. IF the legal office failed to accurately reflect the convictions on the RRT and that error caused LE not to initiate the report, so be it and blame away; however, those facts have yet to be established as far as I’ve seen.

  16. President Commacho says:

    Me thinks a new candidate for president has emerged in this comment section. I can’t believe I can’t discuss gun laws without committing likely, treason. I’m assuming this logic applies to those other amendments as well. That should make con law a bit easier in the future. It’s been great being your president. 

  17. Concerned Defender says:

    Oath of Commissioned Officer.  “I [state your full name], having been appointed a (rank) in the United States Air Force, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter. So help me God (optional).”
    If you can’t support it, then resign and get out.  We need less people who take their oaths (and jobs) seriously.  Perhaps part of the bigger problem with our services as we see on the legal side, and this AF screwup to fail to report the conviction, and so forth.  Folks don’t take their jobs or oaths seriously. 
    Nowhere in that oath is supporting parts of it optional, or whittling away at parts of it suggested.  In fact, it is an act of treason since those attacking it are enemies.  If you don’t like it, then there is the door and you are UNFIT to defend it.  Plain and simple. 
    A typical state Oath of Office to be a lawyer:  That I will faithfully and honestly conduct myself in the office of an attorney in the courts of [XYZ state]; that I will observe and abide by the Rules of Professional Conduct approved by the Supreme Court of the State of Oregon; and that I will support the Constitution and laws of the United States and [XYZ state]. To the court, opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.
    Same assessment.  You cannot simultaneously support the Constitution, if you act to subvert it.  Time for you to find a new profession.

  18. Concerned Defender says:

    Correction, that should read:  We need MORE people who take their oaths (and jobs) seriously. 

  19. Mediocre DC says:

    Good grief, CD.  Take off your “Make America Great Again” cap and chill.  
    Anyone up for a game of pick your logical fallacy?

  20. Former. says:

    I sometimes wish I could be as certain about the legal meaning and applicability of Constitutional phrases as Concerned Defender appears to be.  On the other hand I’m happy to live in a fantasy world that is more complicated than that and which allows for discussion of a Constitution full of ideas in tension.

  21. AFDCAO says:

    CD’s position is ridiculous but it’s no different from ZS’s position.  So, any officer who disagreed with the plaintiffs in Heller was violating their oath of office and the entire AF trial and appellate division must be responsible for this mass murderer getting a gun because some of them took positions the courts (and ZS) disagreed with.  Bravo.  Now I remember why I stopped reading the comments on here.

  22. jagaf says:

    прости forgive me, CD. I have been made not understand you, but I now. You just want make honor for glorious Yankee American Constitution like me. I am be with you, Comrade, and glorious President Pu…Trump to make America again great! Guns, vodka mom, cavier apple pie and down with traitors!
    Lunch at Fancy Bear cafeteria tomorrow, Comrade?!?!

  23. Superior Officer says:

    Ok, I’ll play, for all the gun control advocates:  what law would you enact that would prevent this type of shooting?

  24. DCGoneGalt says:

    stewie, do you see what you’ve done?

  25. AdlawGuy says:

    The failure to report appears to be a straightforward case of poor administrative procedures.  The DD Form 2707-1 reports the result of trial and contains no blocks to indicate the convictions disqualify the service member from bearing arms.  Most disturbingly there is no block related to Lautenberg qualification.  The only indication the offenses are disqualifying is found in an obscure column that says DIBRS.  The DIBRS code is entered by the service’s police.  In the case of the Army that is the Provost Marshall.  The PMO also makes the NCIC entry.  This means our mighty defense department reduced Lautenberg reporting to a single point of failure.  The DD 2707-1 should be changed immediately to add a clear and unambiguous block that indicates the vital importance of a Lautenberg conviction.  Otherwise mistakes will continue as PMO/OSI/Navy clerks miss the importance of the codes they are punching in. There really is a pretty easy answer to this problem.

  26. AdlawGuy says:

    SuperiorOfficer, do you support taking the right to bear arms from those with Dishonorable Discharge?  If no, why?  If yes, should the same loss of rights flow from a BCD? 

  27. Isaac Kennen says:

    Concerned Defender said:

    Before we head down the silly path of more calls for gun control… this is an evil problem, not a law problem.
    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. Amendment 2.

    A person, in complete accord with their military commissioning oath, might read the Second Amendment and conclude that “more calls for gun control” are just the sort of regulation necessary to ensure “a well regulated militia.”
    At the least, denying Mr. Kelley access to an assault rifle would have done nothing to harm Texas’ interest in ensuring that the Texas State Guard (not to be confused with the Texas Army National Guard) remained “well regulated.”  

  28. Superior Officer says:

    AdlawGuy, no, I don’t support taking the right to bear arms for a DD or a BCD across the board, same as I don’t suppot the felon disqualifier as currently written.  I am not a right wing wackadoo that thinks we should all have nukes based on the 2d amendment, but I think taking someone’s right to bear arms should be tied to his offense, e.g., violent crime should disqualify you from having a gun.  Tax evasion, desertion, and other non-violent felonies should not take that right. 
    And, of course, my point in my original post is that there was a law/regulation in place that should have prevented this wacko from buying the gun, but a government functionary bureaucrat didn’t do his/her job and the paperwork was fouled up.  Same thing with the Dylann Roof case.  Surprise, surprise.  More law won’t fix that.  Just like the fact that this dude and other criminals can get a gun outside of legitimate channels.  In other words, wackos gonna wacko…

  29. DCGoneGalt says:

    Isaac:  The irony in calling for more laws is that if the government had enforced existing laws the killer wouldn’t have even had the weapon legally.  But even if the weapon he used was banned, he could/would have used another.  Pandora’s Box has been opened with semi-auto, high capacity mags.  They are out there and nothing short of confiscation will get rid of the majority of them.  And this ain’t Australia, confiscation would result in a shooting war.  I understand different readings of 2A but “reasonable regulations” are never the end point.  
    Reasonable compromise with unreasonable people (on either side) never ends the debate.  It just sets up the next step on the way to what one side views as idiocy or evil.  Neither side has the same values or factual premises on which their beliefs are situated so there’s not even a common ground for starting a debate.  There has been a secession of the heart and mind in this country from one another and it seems we merely tolerate each other.  But toleration disintegrates under stress and close contact.
    I’ll give you an example.  IMO, repealing DADT was reasonable.  Five years later, I was told that everyone must, under threat of EO-based admin action, indulge the belief of a man who incorrectly believes he’s a woman.  And anyone who pointed this out is correct but also a hateful bigot who is not fit to serve.
    You’re sharp and add value to military justice discussion.  I enjoy reading your thoughts.  So let’s get back to discussing military justice so we can at least tolerate each other.

  30. Isaac Kennen says:

    DCGG, you said:

    Neither side has the same values or factual premises on which their beliefs are situated so there’s not even a common ground for starting a debate.  There has been a secession of the heart and mind in this country from one another and it seems we merely tolerate each other.  But toleration disintegrates under stress and close contact.

    I would posit that the super majority of us do have, at least, compatible values and factual premises on which our beliefs are situated. Its just that the folks from the opposing positions who are the most vocal are also the furthest apart. For example, a super majority of Americans support universal background checks. But those voices of moderation don’t receive nearly the attention – either in social media or traditional media – that some other voices receive. It leads us to believe we have no common ground, when I think that is likely not the case. 
    But, I digress. My point in posting actually wasn’t really to debate the Second Amendment. It was to posit that a person can have a different interpretation of the Amendment without having betrayed their commissioning oath. But, perhaps that was itself a bit of a digression from the OP.

  31. Vulture says:

    In a report dated 10 December 2010 of post-trial reviews to the Secretary of the Navy, Appendix K states in its introductory paragraph  “Our evaluation revealed process failures in virtually every segment of the post-trial process.”  Later it goes on to say “It is not uncommon for Court-Martial documents requiring action to be filed and forgotten.”  Source Hearing before the Subcommittee on Personnel.  Y 4.AR 5/3:S.HRG. 112-117
    This is why I think that United States v. Rodriquez, 67 M.J. 110 (C.A.A.F. 2009) and US v. Moss, and United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) are poorly decided.  Actually doing the job in front of you is first.  Putting the cast on lawyers over the rehabilitative ethic is next.  I’ve already chimed in on the reporting issue so that takes a distant last.

  32. Lone Bear says:

    Under the current system, you have to blame the Convening Authorities.  It is their job, and they have accountability.  You can’t blame the lawyers unless you give them the power and responsibility to act, and then you hold them accountable.  If it’s the lawyer’s fault, it’s really the Convening Authorities fault for either not listening to his lawyers or not holding them accountable for their failures. I’m not a big fan of blaming subordinates.

  33. TC says:

    Based on your logic, aren’t constitutional amendments themselves treasonous?  After all, they were changes to the original document, meaning that their drafters, and those that voted for them, didn’t fully support the constitution as it then appeared.  So looking at your argument, by supporting the 2nd Amendment, aren’t you the real traitor? 

  34. tinfoil wars says:

    Officers who disregard their oath are traitors. Except Bobby E. Lee. He gets a statue. 
    Can I interject some miljus into these comments? How many TDS attorneys are advising their clients about gun ownership and voting? Do we have a wave of Denedo-type cases waiting to jam up the system?

  35. AF Maj says:

    It was my practice and that of most of my peers to advise on Lautenberg because it would also come up in the context of ability to continue to serve. 

  36. stewie says:

    Some crazy pills being taken here…ZS is “blaming the lawyers” when there is no evidence the lawyers had anything to do with this particular screw-up, and CD is, well, CD.

  37. former af_dc says:

    Like AF Maj, it was also my practice to advise on the Lautenberg Amendment and how it would affect the future ability of an airman to serve.  It came up both when I was trial counsel and when I moved to defense.  I am certain Kelley would have been counseled on Lautenberg both by his dc at trial and upon his discharge, but shame on the USAF for not making sure his conviction got reported to the civilians. I am horrified that an administrative error caused this loser to be able to get his hands on weapons of mass destruction. At the same time, I just cannot imagine why ANYONE needs those sorts of weapons.  I get rifles.  I guess I even get handguns, though personally I don’t love them (a relative of mine was accidentally killed by someone else with a handgun). But why does anyone need something that mimics an M-16? And if you buy the idea that 2A guarantees an individual right to be armed, rather than a right for the states to arm their own militia, I don’t see how you get to “Everybody has the right to an AR.”  We don’t let people have tommy guns. We restrict the sale of hollow point bullets. We don’t let people buy grenade launchers.  The Second Amendment is not absolute. So why do we let folks have assault rifles? I genuinely don’t understand it.

  38. (Former) ArmyTC says:

    Things I learned about concerned defender after a few years of reading his posts:
    – Every rape victim ever is a liar ans should be prosecuted for lying, as should their SVCs
    – Bergdahl is a traitor and should have been punished based solely on CD’s feelings, without regard to evidence at trial
    – Trial counsel, chief of justice, judges, and SJA’s who don’t subscribe to his world view should be disbarred
    – Anyone who disagrees with his interpretation of the constitution is also a traitor
    – Taking the oath of office requires that all officers set aside their opinions and become members of a sycophantic cult based solely on his perception of what the oath says
    Goodness I hope you’re never in charge of anything important.

  39. Navy LCDR says:

    What makes an “assault rifle” an assault rifle?  Assault rifle is a misnomer.  When media portrays “assault rifles” they essentially mean it is ‘scary’ looking.  former af_dc…what is your proposal then?  What aspect of the AR15 do you want banned?  Is it because it is semi-automatic?  If so, is the recommendation to ban semi-automatic firearms?  The vast majority of handguns and revolvers are semi-automatic.  There are .22 rifles (an extremely small caliber round) that is semi-automatic.  Banning semi-automatic would ban the Ruger .22 long rifle and basically all revolvers.  When you say the AR-15 “mimics” an M-16, that is a fallacy.  An M-16 is fully automatic; an AR-15 is not.  An AR-15 is a far far cry from a “tommy gun” and a grenade launcher.
    Weapons that “mimic” an M-16 are already banned.  Absent some very very limited exceptions, as most of us probably learned after the Vegas incident, it is already illegal to own a fully automatic firearm.  At the end of the day, the Texas tragedy was due to a bad guy who was allowed to purchase a firearm from an FFL dealer because the government failed to implement the law it had already passed.  It was a good guy with a legally purchased AR-15 that put a stop to it.
    I can’t believe I am getting involved in this conversation but it is the widespread ignorance of firearms by non-firearm owners that help inflame this debate.

  40. Navy LCDR says:

    For instance, is this an Assault Rifle: http://www.ruger.com/products/sr22Rifle/models.html
    If so, you are saying this is an Assault Rifle: http://www.ruger.com/products/1022Carbine/models.html
    One is scary looking, and the other is not.  They are both semi-automatic and fire .22LR. 
    Okay, back to lurking in the caaflog corner.

  41. AF Maj says:

    FWIW, I believe the liability on providing this information will fall upon Air Force Security Forces Command and perhaps the brig that housed Kelley.  It has always been my understanding that SF Command are the parties responsible for forwarding this information. 

  42. DCGoneGalt says:

    Lautenberg is definitely something to advise clients on for continued service . . . but isn’t a kick out the door inevitable anyway?  It was more important to explain the consequences of it once someone is out . . . assuming the post-trial docs were filled out correctly.  In my experience, clients didn’t seem to care about Lautenberg, they cared about felony status and avoiding a punitive (esp. if they had completed a term of enlistment). 
    Is Lautenberg ever mentioned in a Care inquiry during the discussion of the meaning and effect of a plea?  I do not recall it ever being discussed.  Should it be, like sex offender registration?

  43. AF Maj says:

    I never saw Lautenberg discussed during the Care, but it couldn’t hurt.  I don’t think there’s any case law suggesting that it must be (as with SORNA and deportation).  One issue that I have with Denedo is that I’ve never understood the limits of what collateral consequences must be discussed and which ones can be passed over.  For example, some states have drug dealer registration.  Does that require explanation, too?
    It was my experience, though, that clients wanted to know why they would be kicked for Lautenberg offenses, which was my segue to discussing the larger implications for gun ownership.  But I agree, they usually were more concerned about felony status and punitive discharge.

  44. DCGoneGalt says:

    Hah, is there a drug dealer offender database?  I thought that was called Craigslist.

  45. Concerned Defender says:

    It is absolutely a good practice to advise clients on the impacts of Lautenberg, and the general effects of a Federal Conviction and/or a DD with regard to gun and voting rights.  Although advice on this will tend to offer some generalisms much like the S.O. registry advice.  Some implications may vary by state interpretation of the crime, but just be aware.  These things definitely should be part of any care inquiry and sentencing advice.
    @ NavyLCDR – thank you for factually explaining the difference to the “service members” here who embarrassingly and apparently might not know which end to point at the bad guy.  Bravo.
    @ Anyone who talks about gun control – please spare yourself the humiliation and at least understand what makes an “assault weapon.”  Because nobody on the pro-2A side (you know, the Bill of Rights) will even listen to you when you say “Tommy gun” and “Grenade launcher” and “Assault weapon” when you can’t even point to what they do.
    @ Former Army TC – the fact you think the Constitution and BoR is a syncophantic cult means I really hope you no longer wear any military uniform or practice law in any jurisdiction.   You are a disgrace to both professions.  I cannot believe folks might have put you in charge of anything important if you fail the fundamental oath; and you were a bloody Trial Counsel apparently!  Disgraceful.  [How would folks react in the office if you secretly pledged to want to eliminate the 4th or 14th or 1st Amendments?]  I would never want to serve with or know that folks like you serve if your mission is to subvert the Constitution and BoR.  
    @ Stewie, back at ya.  :)
    @ Former AFDC – I think we saw on Sunday why people do in fact need AR15s.  When the wolves come for your community/family/you, you need a way to fight back.  Wolves will always have illegal weapons or run in packs.  When you are outgunned and/or outnumbered, you need the best tool available.  The AR15 (or AK47, or similar) are in fact among the best tools available.  The hero on Sunday used an AR15 to accurately and at range shoot and injure the murdering wolf.  In an interview, the hero Mr. Willeford (an NRA instructor) explained how access to his AR15 probably saved lives and prevented the murderer from escaping and killing more people. He was able to deliver powerful, accurate, sustained fire from a distance to injure him and interrupt his escape and future attacks.   Around the nation, in homes like mine, these weapons stand ready for defense of home and people.   That is “why” folks have these.  
    EXCLUSIVE: Texas Massacre Hero, Stephen Willeford, Describes Stopping Gunmanhttps://youtu.be/B4HEchh0XD8?t=184
    I’ll remind the anti-gunners on this forum that evil will strike with any available weapons so calls to disarm the population are foolish, fruitless, and counter-productive.  France boasts two of the worst single incidents of terrorism attacks in modern history.  In the most gun-free of places, terrorists got AK47s and grenades and injured/murdered hundreds and in Nice a terrorist used a box truck to run down and murder 80 and injure dozens more.  And, lest anyone think bad guys aren’t creative, 9/11/01 was used with improvised weapons and some creative planning; box cutters on airplanes. 
    It is disgraceful that folks wearing a military uniform don’t understand the history of our nation and the fight for liberty and defeating tyranny.  And around the globe, it is governments who have committed the most murder of humans – measured in hundreds of millions – generally with armed armies against unarmed populations.  I assume most here are lawyers or military members.  You really should learn some military and global history and look at what “gun control” always results in… a disarmed and helpless population almost universally enslaved by their own governments by folks like Stalin, Mao, Pot, Hitler, Hussein, and so forth across the globe.
    We have thousands of laws and more laws do absolutely zero to thwart evil people because they just operate outside the law or around the law.  That should be fairly obvious.  It’s sad that “educated” or “intelligent” people don’t get it.  Chicago boasts among the most gun control in the nation – and it boasts ~2 gun homicides per day with stolen and straw purchased guns by gangs.  In criminal interviews I’ve seen, they laugh at gun control and they want disarmed citizens because armed civilians are an occupational hazard to them.  They would far prefer to break into your home if they know you are an unarmed snowflake and not an armed sheepdog.  
    Not one law would have stopped any of the mass shootings here, as evidenced that total bans on weapons don’t stop them around the world or in anti-gun areas of the US… 

  46. stewie says:

    My biggest (only) hope for you CD is that you find a way to distill your crazy into fewer words.

  47. Mediocre DC says:

    @Navy LCDR Wrong.  This is what inflames the debate “it is the widespread ignorance of firearms by non-firearm owners that help inflame this debate.”  The inability to engage in civil discourse about an issue because the other side is apparently too “ignorant” to understand.  Good thing you came out of the corner to grace us with your wisdom.   

  48. Navy LCDR says:

    My response to Former af_dc was much more civil than your snark and sarcasm.  You mock me by saying it is a good thing I came out of my corner to grace the blog with my wisdom yet my argument in opposition to former af_dc’s emotional argument is factually based.  He, and many others, state ‘assault rifles’ should be banned yet don’t understand or state what an assault rifle is.  His argument is even contradictarry; he first states, ‘I get rifles,’ but then rails against ‘assault rifles’ but never explains what makes the ‘assault rifle’ ripe for further regulation.  There is no explanation what he considers a ‘rifle’ and what he considers an ‘assault rifle.’  My last sentence may have been a little inflammatory, but the gist of the argument remains the same.  I’m all for a civil discourse, but it doesn’t help when people don’t understand the firearms they are attempting to regulate or ban.  If the analogy was tax reform, I think you would agree that argument in favor of or opposition to tax reform would be less than helpful if the person doesn’t understand taxes.  The same holds true for firearms. The only difference is firearms cause a much more emotional response, and rightly so.  That doesn’t make emotional arguments effective, however. 

  49. stewie says:

    Of course Navy LCDR you could have asked him what he meant, in an attempt to engage in meaningful dialogue. Maybe he could have explained in a way that made sense practically even if technically inaccurate. But you didn’t choose to do that. He may simply mean “I get weapons with certain limitations” but not other weapons. I don’t know, what I do know is that what you did is a common tactic to shut down debate/discussion. Get technical and then claim folks don’t know anything about weapons and thus can’t talk about it.
    So let me be clear. Short of a handgun or shotgun, I don’t see any reason why folks need any other type of weapon. I don’t see a reason why people need bump stocks. I don’t see a reason why folks need magazines that hold more than a single digit number of rounds. I see zero evidence that the Founders could  have conceived of the type of weapons we have today, and that they somehow magically spoke to them and meant to include them. But that’s the fiction of original intent isn’t it?
    Proclaiming one side “emotional” while you try to shut down discussion with technical dismissals is not particularly an effective form of argument either. But I’m sure it feels…emotionally satisfying.

  50. jagaf says:

    @Navy LCDR, since you seem to want someone to start the bidding, I’ll bite.
    For long-guns: ban sale of new semiautomatic rifles, carbines, and shotguns. (If you can’t shoot straight enough to defend your home with a 12 gauge pump, you probably shouldn’t be trusted with a weapon anyway.) Institute buy-back programs and require registartion of those already in circulation and back-ground checks for those who want to purchase existing weapons. Heavily tax the sale of .223/5.56×45, 7.62×51 and 7.62x 39 ammunition in the same way we do alcohol and cigarettes.
    For handguns, limit magazine capacity to single digits for new manufacture. Buy-back and registration and checks before any resale. Again, heavily tax 9×19, .45 ACP, 38 Sp, 357 mag and a few other of the most common calibers.
    Require completion of weapons handling/safety courses on a regular, recurring basis for anyone who wants to own a firearm. 
    These seem draconian? Only because of where our curent discourse is; they’d still permit greater ownership of weapons than in most of our peer nations and not impede sportsmen from hunting or folks having weapons at home for self-defense. Nor would they in any way prevent ‘free states’ from maintaining “well-regulated” militias to mainintain their collective “security.”   

  51. Navy LCDR says:

    I don’t quite understand how I am shutting down discourse.  If you scroll up, I literally asked clarifying questions.  The discussion did not center on magazines and bump stocks; it centered on ‘assault rifles.’  He argued assault rifles should be banned, I asked what he meant by assault rifles.  The argument literally equated AR-15 semi automatic rifles with grenade launchers and ‘Tommy guns.’  He then equated them with mimicking M-16s which is a fallacy.  No one reasonable argues that there cannot be limits placed on firearms.  Of course there are and that is a good thing.  Don’t lump me in with CD (no offense, CD, and thanks for the ‘bravo’) but CD is at least right that citing grenade launchers and tommy guns in an argument on gun control isn’t exactly the strongest argument.
    I also find it interesting that two people who encourage civil debate end their posts by mocking and making personal attacks.  I went back and re-read my posts and they come across fairly reasonable and polite.  Stewie (and as a long time lurker you are usually fairly reasonable) and mediocre’s post are far less polite.  

  52. Concerned Defender says:

    @ Stewie – since you like dispensing personal attacks so much, your lack of understanding of history and the purpose of the BoR is staggering.  So sit down and let the adults have a discussion please. 
    1. The BoR is based on timeless principles.  Surely our forefathers did not envision the internet, email, modern ink pens, typewriters, tweets, computers, Iphones, satelites, and such.  Yet the 1A is just as relevant today as ever, protecting same.  Surely our forefathers did not envision encrypted computer files, or the Cloud, or cars, but the 4A is just as relevant today as ever, protecting same.  So your argument that the 2A protects only muskets is asinine and demonstrates one of the core fundamental flaws with your type of mentality.  Do you really  think our forefathers did not envision inventions and tech improvements?
    2.  Such an argument that the 2A is meant to protect only muskets of the era is equally alarming in that it lacks any comprehension of the purpose.  Do you really  think any standing army of civilians today would be at all relevant with muskets?  
    3.  Your lack of gun design history is also staggering, making you ineligible to discuss this topic without some education.  Gun design history includes designs for semi-automatic and fully automatic firearms predating the Constitution and BoR (1791).  Weapons of the era (both actual and designs) included “grape shot” (akin to modern shotguns), the Kalthoff repeater (~1650s), Girandoni Meriwether repeater (1750s), and the Belton rapid fire flintlock (1770s) presented to Congress in 1777 to name a few.  
    It is so overwhelmingly clear that the BoR protects the modern advances in firearm technology that to argue otherwise simply displays a total lack of authenticity in that position.  That’s why folks on the gun control side are not taken seriously. 
    Oh, and Heller v. DC pretty much establishes the individual right argument so let’s not bother with that nonsense. 

  53. Concerned Defender says:

    @ JAGAF.  Please resign your commission.  You have no business wearing the uniform of a military officer.  
    Your nonsense notions of magazine capacity, registration, and so forth are feel good snowflake policies that literally do zero to address the problem.  It’s akin to amputating the arm of a patient sick with the flu.  The fact your logic equates the problem with an odd solution is troubling at best and subverting the BoR at worst.  
    You don’t seem to grasp the 2A whatsoever, nor understand the law in Heller or McDonald.  
    I would be very troubled to serve with you, or have you as my lawyer, and do not think you are fit to serve in the military in any capacity with such a lack of understanding of the document you swore your life to protect and defend from DOMESTIC and FOREIGN enemies; hint – you don’t seem to be a friend to the 2A. 
    You also don’t seem to have any adult grasp on crime statistics, criminal behavior, and how they operate, and how they ignore laws anyway.  All your proposed measures would do is to hassle gun owners and reduce legit gun ownership by making it harder with more arbitrary fees and penalties.  It would  have zero impact on crime.  I present the 1994-2004 “Assault Weapon Ban.”  FBI studies showed no impact on violent crime. And it sunset.  
    According to the FBI from 2007-2011, murderers used hands and feet by a 2-1 ratio over rifles in committing murders and knives were in about a 5-1 ratio over rifles.  So, is your  proposal to next include banning hands and feet and pointy sticks?
    Again, the gun control folks really have no credibility on the topic because of fundamental errors in logic and understanding of the issue and crime data.

  54. jagaf says:

    @CD, I will kindly decline your invitation to resign my commission; I seem to recall swearing to support and defend the Constitution, not a particular interpretation of it. To get to the most important thing upfront, I’m going to henceforth refere to you as “CDe,” in reference to the 6490.04 process that I think may be of great benefit to you.
    CDe, I know this will be pointless, but I do respect the second amendment and am a gun owner myself. I love taking my mini-14 out, and I’d hate to part with it, but I would do so if required, though what I proposed would not require it. I subscribe to the interpretation of the second amendment that has governed for most of US history: i.e. that it protects a collective, rather than individual, right tied to a states ability to call upon a militia in time of need. As I think I’ve made clear, I do not favor a ban on all private ownership of weapons, but I do support far more restrictive measures on the kinds of weapons that keep ending up killing large numbers of Americans in short spaces of time.
    And, CDe, is “we can’t pass a law because criminals won’t follow it” a winning argument? We don’t seem to follow that (rather anarchic) idea in any other sphere. If that’s the answer, why have any laws at all?

  55. Concerned Defender says:

    JAGAF – your “collective” ownership interpretation is also badly off the mark.  Americans have owned INDIVIDUALLY purchased and stored guns across America since before, during, and after the inception of our nation.  There is no town armory.  There is no city purchasing and storing of guns for the civilians.  And until very recently, with the exception of “reasonable” gun control measures which serve as further encroachments, there were not widespread calls for prohibitions on common guns and all their working components like ammo and mags.  
    Your oath is not one of “respect” and you obviously don’t “get” it anyway.  Yours is a notion of continual and unreasonable encroachments which erode the 2A until it is literally toothless and meaningless.  
    In what other area of life are your oaths not taken seriously?  Do you openly disagree about your marital oath of fidelity?  If you don’t have the moral or intellectual courage to resign your commission, perhaps let some like me help you.  Just let me know who your boss is and I’ll gladly forward your anti 2A subversive views to him and the Wing Commander and we’ll let nature take its course.  I’m sure they will support your views on disarming Americans…
    And since you detest guns so, please dispose of your Mini14 since you don’t really need it.  Ironically, it operates in an identical fashion as the AR15 (magazine capacity, semi-auto, .223 caliber…).   The weapon of choice for Michael Platt in the 1986 shootout with the FBI. 

  56. DCGoneGalt says:

    Well, this was productive.  

  57. TC says:

    How can an amendment be literally toothless?

  58. TC says:

    On second though, I take it back.  Amendments literally have no teeth.  CD just made his first ever salient point.

  59. jagaf says:

    @CDe, I appreciate the compliment, but I certainly am not claiming ownership of the collective interpretation of the 2A. Check out the link for a pretty good history. SCOTUS has spoken for now and so there is a recognized individual right; I don’t dispute that. But even Heller recognizes that the right is not unfettered, as you seem to be somewhat zanily arguing. I’ll ask you directly: should I be able to buy a M249? A Mk 19? A B57 nuclear bomb? All are “arms” and so if your answer to all of those is yes, then you are logically consistant, but insane. If no to any of them, you recognize that a line has to be drawn somewhere and we are negotiating, but now you have betrayed your oath. Put it another way, what if a case comes before SCOTUS, overturns Heller, and adopts a collective view; if you don’t aggresively support that interpretation, are you now a traitor? Do you not understand why posters, not just me, think what you’re saying is a little out there?
    As to supervisors and commanders, thanks very much, but I like my relative anonymity to comment on all manner of things, including things much closer to my day-to-day work than the appropriate interpretation of parts of the Bill of Rights. I am curious though: assuming you remain on AD, would you take up your own offer/challenge?
    Finally, I don’t detest guns as I’ve said. I enjoy shooting. I don’t enjoy seeing kids shot at school or in church. If my having to go to a class once a year and pay more for ammunition, things not that different than what I have to do to drive a car, will reduce the number killed when some disaffected nut decides to go on a spree, but has to work a bolt action rifle vs. handle a 30 rd magazine, I’m more than okay with that.   

  60. Tami a/k/a Princess Leia says:

    When it comes to gun ownership, no one ever “needs” an “excessive” quantify of any handguns.  But then it’s rarely about “need,” it’s about a “want.”  There are plenty of people who own an excessive number of guns for the sake of collecting them.  Or maybe preparing for a zombie apocalypse, which apparently is of concern.  http://www.blackfive.net/main/2012/10/usmc-and-navy-training-for-the-zombie-apocolypse-for-realz.html
    Why not get back to the real issue at hand, which is what happened that some one, or some multitude of people, dropped the ball on getting Kelley’s conviction in the national database?  Don’t devolve into a heated emotional debate over the 2nd Amendment, gun ownership, and gun control, because that’s exactly what Shrillibrand wants you to do.

  61. Superior Officer says:

    My oh my.  I love these threads that truly expose who the bedwetting liberals really are.  Some of these gun ban/gun registration proposals would make even Chuck Schumer blush.  Far left wackadoos wearing a uniform…scary thought.  Nut up, nancies.  Don’t be so afraid.

  62. K fischer says:

    I got my first AR15 last year.  I like the way it operates since I was trained on it, and I shot a buck on opening day this year.  I have a couple of handguns and a Mossberg 12 gauge with an 18 inch barrel with birdshot for home defense.  I’m selling some of my other guns because I don’t need them.  I’ve hunted with a shotgun for a while now, but the range is not as good and the exit wound of a slug comes  out like a 50 cal round.  I like to shoot the deer in the neck to save the ribs, so I need accuracy.  I make an excellent rosemary and shallot encrusted rack of venison.  Plus, they are easy to clean.  Ever take a pump action completely apart and clean it?  It is a chore putting it back together.
    But the 2d Amendment is not about the right to hunt or the right to defend your home, although those are ancillary benefits.  It is to maintain a free state through a well regulated militia.  And things are great now, but what happens if an EMP takes out all the great electronics our military uses to protect our free state?  It will break down to the State and local government to maintain the security of a free state.  What happens if we get invaded?  I’m getting kind of old, but I would like to defend this nation against an invading Army and not with a musket.  
    And if anyone says that there is no way that would happen, you probably thought that we would never have a President named Trump.  I mean there is no way he could bet HRC, right? 

  63. Ganthet says:

    @K fisher – So your primary argument about going along with CD’s (and others) unhinged interpretation of the 2nd Amendment is “Because of the documentary ‘Red Dawn'”?  Sure, we could save tens of thousands of lives lost due to gun violence (including suicide) a year if we more strictly regulate firearm possession, but then how would we fight the aliens when they invade to steal our precious bodily fluids?  I’m pretty sure if China, the only country whose military would even remotely one day be capable of a cross-ocean invasion like you imagine, would probably try to invade Australia over America, given Australia’s ~25 million population and relative proximity over America’s ~340 million population and relative distance.  But the fact that Australia largely prohibited private ownership of firearms doesn’t make it more likely that China is going to invade any time soon. 

  64. Concerned Defender says:


  65. Mediocre DC says:

    Good Lord…a citation to Tucker Carlson.  We have reached rock bottom.

  66. DCGoneGalt says:

    It’s time for CAAFLOG and Life Jeopardy.
    A:  Money, sex, religion, politics.
    Q:  What are four ways to ruin a conversation and remind you why you’re not a people person.

  67. AF Maj says:

    @DCGG… that is one to remember! 

  68. Superior Officer says:

    Ganthet, gun control to prevent suicides is one of the dumbest arguments I’ve ever heard, even for a far-left fringe liberal wackadoo.  But keep making those bullshit points and further marginalizing yourself and others like you.  Meanwhile, those of us who live in the real world will have a rational debate.  But, newsflash, you libs are gonna have a real hard time with this one until you can get the 2d amendment repealed.  I know guns scare you and all, but they ain’t going anywhere anytime soon.  Deal with it.  As harsh as it may sound to you, I’d rather live in a free country with as little government intrusion as possible into my daily life/choices…novel thought, I know.

  69. The Silver Fox says:

    Zachary D. Spilman:  “Failure to report the outcome of criminal cases was 79 percent in the Army and 50 percent in the Air Force, the report said. In the Navy, it was 94 percent.” 
    Nevermind that AFLOA/JAJG isn’t responsible for reporting criminal offenses in the Air Force and that its litigation positions have nothing at all to do with the issue you referenced above (i.e., “Government Bloopers”) or your invective comment–what’s the Marine Corps/Navy excuse for failing to report its convictions 94% of the time?  Or, would you guys like to continue your irrelevant exegesis on the Second Amendment?

  70. stewie says:

    DCGG, says the guy who brings up transgender stuff.  Just sayin’.
    NAVYLCDR, where did I get any less polite than you? You could someone else’s arguments “emotional” and effectively “ignorant.” Point to where my response to you was more impolite than that.

  71. former af_dc says:

    To the original point, the responsibility to inform the feds that Kelley shouldn’t be anywhere near weapons was on AFOSI, which screwed the pooch here. No evidence that “the lawyers”, as ZS calls them, were responsible.

  72. Tomi L says:

    Concerned Defender,
    It is so refreshing to hear someone finally standing up to the liberal snowflakes on this blog. Thank you for your service!

  73. John Marshall says:

    Zach, your analysis is predominantly objective, reasoned, and helpful.  But drawing a link between “government bloopers” and a tragedy without any clear causative link is beneath you.  The claim appears to be a generic assertion that if some gov’t lawyers weren’t so busy taking appellate positions that a reasonable observer might question, then a mass shooting might have been prevented.  That’s pretty inflammatory, and not clearly based on the true facts, e.g., as The Silver Fox points out, the apparent reality that the Air Force lawyers you criticized aren’t responsible for reporting criminal convictions.  You, sir, are a scholar, a patriot, and an skilled advocate.  I humbly, but emphatically, suggest caution.

  74. DCGoneGalt says:

    stewie:  Yes, that situation is the point at which I honestly feel like Walter Sobchak screaming “Has the whole world gone crazy?  MARK IT ZERO!”  

  75. jagaf says:


    DCGoneGalt says:
    November 6, 2017 at 7:23 PM  

    We need a law that makes it a law for the government to fill our forms correctly in order to enforce the law.

    @DCGG, looks like you might get your wish.

  76. jagaf says:


    DCGoneGalt says:
    November 6, 2017 at 7:23 PM  

    We need a law that makes it a law for the government to fill our forms correctly in order to enforce the law.

    @DCGG, looks like you might get your wish now.

  77. jagaf says:

    Apologies for the duplicate.

  78. Zachary D Spilman says:

    Among my list of priorities for the Air Force JAG Corps in 2013 and beyond (other than ensuring that court-martial convictions were properly processed and reported), I neglected to mention that on January 9, 2013, while Kelley was still in post-trial confinement, we noted (here) that:

    the Air Force JAG Corps has designated 60 judge advocates as Special Victims’ Counsel.  These lawyers will enter into attorney-client relationships with military members and adult dependants who report that they are victims of sexual offenses.  The program will launch on 28 January.

    Congress later codified the SVC program in 10 U.S.C. § 1044e (discussed here).

  79. DCGoneGalt says:

    jagaf:  Apparently the Congressional version of the Make-A-Wish Foundation doesn’t have a radar for sarcasm.

  80. jagaf says:

    Interesting response, ZS. Now I would never claim to be as sharp as you and thus I’m sure I’m off base, but some silly person might think that bringing up the SVC program (which my unscientific observation would suggest a majority of caaflog posters are not fans of) at this point in the conversation looks a suspiciously like a sly bit of a diversion away from the seeming consensus that “the lawyers” had nothing to do with Kelley not being entered in NCIC as they neither have access to NCIC nor control over AFOSI’s implementation of AFOSI’s requirements.

  81. Zachary D Spilman says:

    It’s a totally fair response – and criticism of my opinion – to say that the JAG has no responsibility here, jagaf.

    I, however, don’t agree.

  82. stewie says:

    What if we get invaded? That’s why we have a military. What if the national military “goes down?” That’s why we State national guards and air guards.
    The Bill of Rights wasn’t written to protect individual citizens. It was built to protect the States from the Feds. The prevailing thought was that the States would look out for individual rights. Of course, that was proven wrong as the States routinely did everything the BOR forbid the Feds from doing (double jeopardy, tortured confessions, no proper representation, etc). It took 100-150 years and selective incorporation to apply the BOR to the States as well.
    So with that fact in place, it’s pretty clear that the 2nd Amendment was concerned with the STATE’s ability to protect itself from the Federal Government, not John Q. Public’s right. We have national guards for that purpose. Back then, there was nothing like that. And if you wanted a State force, you needed to recruit citizens, and those citizens needed to bring their muskets. State’s don’t have to do that anymore, and the Founders had no idea that things like an AR-15 or bump stocks or automatic firing where hundreds of rounds could be fired in a minute was even a possibility. Yet we operate under the fiction that they did, and they really really wanted to make sure that we could have all those things.
    Getting back to the government bloopers part. There’s no evidence the lawyers did anything wrong here. Someone did. But “blaming the lawyers” is based on nothing in this case. Blame the clerk who inevitably didn’t click the right button or check the right block.
    Admittedly, “blame the clerks” doesn’t have quite the same ring to it.

  83. former af_dc says:

    I’d further add that, back when I was trial counsel, I hated AFOSI, and as a defense counsel, I loved them — because they were constantly screwing up. Messing up rights advisements, fouling up evidence, and generally making sure that as a TC I had to cover for them and as a DC I could exploit their missteps.  Trust me, a lot of AFJAG sweat and tears have been expended on trying to fix AFOSI already.  If the lawyers could have fixed that organization, they would have done so already.

  84. stewie says:

    OK ZS, why don’t you agree? Why do “the lawyers” have responsibility here? Specifically.

  85. Vulture says:

    One possible starting point to blame the lawyers might be US v. Butler.  here  I’d start with the lawyer in the black robe.