Christmas is one of the biggest gun-buying occasions for Americans. We go over a few things to remember when gifting a gun for Christmas, and much more.

Co-host Derek DeBrosse is a licensed Ohio attorney with a firearms legal practice emphasizing in Gun Rights Restoration. Derek began his law practice immediately after law school in 2008 when he graduated from Regent University School of Law; Derek also holds a B.A. from The Ohio State University. Mr. DeBrosse’s practice not only focuses on rights restoration but also a variety of other firearm-related matters from NFA issues to FFL representation. Derek has represented individual, corporate, and grass-roots organizational firearm clients in both Federal and State court.

Co-host Stephen E. Palmer is a trusted Columbus criminal defense attorney of nearly 30 years. He has developed a distinctive approach to criminal defense work by making a sincere effort to know each of his clients on a personal level. Steve recognizes that no two cases are the same, and neither are his clients’ needs. He believes that criminal defense isn’t just about representing a client in court; it’s about helping clients craft solutions to their problems. Steve reaches solutions through careful contemplation of all facets of a client’s problems—not just the black-and-white legal issues.

Email us your questions at info@munitionsgroup.com.

Recorded at Channel 511, a production of 511 South High Media LLC.

Be sure to subscribe to the Munitions Law Group - Cheshire DeBrosse, P.C. YouTube Channel

Copyright 2024 Steve Palmer and Derek DeBrosse

Derek: That's right, Steve. I actually bought myself a gun recently. Got a PS 90. Ever heard of that gun?

Steve: I have not heard of a PS 90.

Derek: Yeah, it's like a space gun. I would best define this thing. It's a bull pup. It takes five seven by 28. Secret Service, I believe, carries that round in their pistol. Uh, version. I have that as well. It's a great guns armor piercing round. It's, uh, a smaller, like, five, five, six, kind of a mini five, five six. And, uh, I got that gun because my wife watches this show, Sister Wives, and the star, uh, of that show, Cody, he's, uh, a polygonist, what the show is about, and that's neither here nor there, but he's a gun guy, and for Christmas, his wives, I should say wives there's four of them bought him this gun. And I'm like, I need that gun. So I went out the next day and sold some guns to get this gun. So pick it up this week.

Steve: Yeah. So if any last minute, uh, gift, uh, buying, why not just go buy yourself a gun or buy your loved one a gun? And it's probably worthy of a discussion as to how you might actually do that. Can I just go buy a gun and give it to somebody?

Derek: Yeah, it's a really good question, actually. Um, gifting is actually a big area of what I do in my practice with gun, uh, owners. And there's something called a straw purchases where you purchase a gun for somebody else, complete the background check paperwork. It's a very serious crime. It's a felony, and people are prosecuted. There was a guy who went out of the Supreme Court about four or five years ago, was a cop, and his father wanted his son's discount. So what his son did is, uh, he took money from his father and went out and purchased this gun. And I don't know how the ETF found out, I can't remember, but they found out and they, uh, charged the guy with both of them, I think, with straw purchases, and went on the Supreme Court and said, yes, straw purchase, convicted. Um, so at the end of the day, you can gift a gun. It's got to be a bona fide gift, which means I can go in with my own money, buy this thing and give it to you, Steve, for Christmas?

Steve: Yes.

Derek: Completely legitimate, because I'm the actual purchaser and I'm giving it to you. But if you give me money and going to get the gun, that's a problem. If you look at some of these gun stores. Like, there's one in town, I won't name names, but in a less than reputable area of town right. If you stay there long enough, you'll see some people come in, usually younger people, and they'll be up to kind of looking, and the girlfriend will be next to the boyfriend. They'll pointing at guns, and they'll go back in the corner and you'll see him give her a lot of cash, and she goes up, and I want that gun. And if the dealer notices that, they should ask questions. Right. Why do you want that gun? What caliber is it?

Steve: Yeah. What about this gun are you so interested in?

Derek: Right. But that's a straw purchase. So, yes, you can gift guns. It is absolutely possible. Here's what I generally tell my clients is just get them a damn gift card. Give them a damn gift card.

Steve: It's probably easier. I've done it. I've given my wife a gun as a gift. It feels a little bit odd and just, uh, because you're filling all this paperwork, knowing you're going to give it as a gift. Uh, but I've always taken the position that, all right, I'm allowed to buy this thing. My wife is allowed to own this thing, and she could go buy it herself if she wanted to. And I'm not trying to accomplish anything unlawful. Uh, as long as I'm honest about that, I've always felt I'd be okay.

Derek: And when you're married, I could be wrong on this. I don't know of any cases where a husband and wife have been prosecuted for straw purchase. I think it'd be very difficult to prove when you're commingling so much of your income. Usually, uh, what they'll say a is, well, you gave this is not your money, this is someone else's money. You bought it for them, or something like that. But it can be done. You can gift guns. I think it's a lot safer just to buy a gift card.

Steve: Just to go buy the gift card. Yeah, that makes the most sense, I think. Anyway. So tis the season. If you're going to go buy a gun as a gift, maybe get the gift card. And here's the other thing about that. Somebody has purchased tried to purchase a gun for me before as a gift. And really, it's sort of like buying.

Derek: Uh.

Steve: Maybe I'm trying to leave a good analogy because I'd rather go pick out the gun that I want than have you pick out a gun that you think I want, because mine are mostly hunting guns. And truthfully, uh, I have plenty. And, uh, there's, uh, a few little gaps in my collection, but I'm probably the best person to pick them out.

Steve: Yeah, he probably is. Here's another thing that's interesting, and I think we may have talked about this before, but it's worthy of discussion if I just give you a gun and say you and I are on a trip. I was on a hunting trip once in Iowa, and I almost did this unwittingly without knowing that there was a law against it. I was going to give my buddy a shotgun, say, Here you go. And he lived in a different state. And he was just going to take it, uh, and take it home as if it were his. Uh, and I found out I think I did some reading on it and I couldn't do it. It required an FFA to do that.

Derek: Were you actually transferring the gun or you just letting him borrow it?

Steve: No, I was going to give it to him. Okay.

Derek: Yeah. Because he's out of state.

Steve: He lived in a different state.

Derek: Yeah. It has to go through an NFL, generally speaking. But it's another state. Um, unless it's an inheritance. There's an exception if you're inheriting a gun. The executor. I always recommend the executor. Just do it through an NFL just to get the background check done.

Steve: Yes. So if you think that you can just gift a gun to somebody who lives in a different state, not so fast.

Steve: Yeah, but it's from discovery, though. So it gets a little sort of dicey on M when you start the clock.

Derek: Well, maybe I'd have to look at that. Federal regulation. Uh, that law again, I thought it was from the occurrence of the event, not from discovery of the government.

Steve: I, uh, guess you would know better than I would. In the criminal line of work, it's like you can't just claim statute of limitations if you have taken, uh, just because the crime hasn't been discovered, particularly if the criminal has taken steps to COVID up his tracks. So you don't get it both ways. In other words, I can't, uh, claim statute of limitations if I've tried to hide what I've done. Now, to some extent, um, if you haven't hidden what you've done, you've just done it and it's undiscovered. Uh, there's different issues on when the statute starts to toll or starts to, uh, tick. But, uh, either way, anytime you're doing it, here's a takeaway. Anytime you're doing some with guns, lookup what you're allowed to do and what you're not allowed to do, because it's not necessarily intuitive.

Derek: Right. And that's a good point. I appreciate you bringing it up. I have to have a call with this client soon and, uh, he didn't do anything to hide it. He just did it.

Steve: He just did it right.

Steve: Now, in my experience, look, I've done criminal defense now for 27 years. Uh, there's one exception, and it involves guns. Uh, most of the time, unless the government has another interest in going after you for something, they're not going to go after this regulatory ticket stuff. Now, the exception is guns. And sometimes the political winds are blowing in a certain direction and the government wants to look like they're taking strong action against firearms. And, uh, therefore, uh, allegedly, or at least as a stated purpose, trying to solve mass shootings or solve crimes. And, uh, therefore they're going to take some administrative or some rather regulatory type action just to look good. And this is the kind of virtue signaling criminal enforcement that gets really scary and really dangerous. And that probably brings us to the topic for today, the city of Columbus, right here in Ohio. I know our listeners span the globe, but right here in the city of Columbus, we have something very interesting going on where the city is trying to take action against firearms and regulate firearms. And there's lots of questions in this one. The action they're trying to take is sort of suspect on its face. But then there's issues going on about, um, uh, the constitutionality of it, not as a gun law, but rather as compared to what the state is doing. So you've got local city action that might conflict or actually does conflict with, uh, the state law. And, uh, the question, who reigns supreme in that situation irrespective of what the feds are doing?

Derek: I'll tried, Steve, to hold my motion back. Those of you who know me personally know that the redhead comes out. Redhead, um, uh, wanted to come out when I saw this. This is absolutely, 100% bar non politics. There's no way to slice this. You can't tell me it's about public safety. And if you tell me that and I tell you a boldfaced liar, it's absolutely what this is. This is bullshit.

Steve: Right?

Derek: It's bullshit.

Steve: We continue to have mass shootings, therefore we're going to pass this law that does nothing to prevent mass shooting.

Derek: Yeah, I'm looking at the law right now and let me just go ahead.

Steve: And read you tell us what the law is. So city of Columbus. The Columbus City Council passed a local law. So a city level law in the Columbus City code.

Steve: Yes.

Derek: It hasn't really panned out that way, but with this discussion for another day, we'll maybe do that another podcast, maybe do a Transportation of Guns podcast.

Steve: It's probably a good one.

Derek: Yes. Yeah. But anyhow, um, so that's preemption. So we've had that in Ohio, and what you need to know about it, it's been litigated. I've litigated this, uh, statute many, many times. Um, we've sued the city of Cleveland, the City of Oval, and City of Clyde, and the High Supreme Court has gotten this case at least twice, I believe, and they've always ruled that it's valid, it's a valid law. So there's a judge in town that basically, um, sat on a case for a year or two and finally, uh, came out and basically gutted, if you will, 9.68, or set it aside, I can't remember.

Steve: 9.68 is the number designation for the state, the state law that seeks, or at least ostensibly, ah, on its face, preempts the field. So the state writes a law that says, we're the ones, we're the state. The state of Ohio has the sole and exclusive authority to pass regulations in this area, and it's called preempting the field. So basically what that means is, like Derek said, we're not going to have a bunch of inconsistent, uh, local and state level, uh, laws. So if I'm driving, like you said, if I'm driving through the city of Columbus, I'm following Cincinnati's law. But then when I get through some little township, I've got a different law, and then I get to the city of Columbus, then I've got this absurd law, I mean, this next law that we're talking about. And then I've got, uh, to go up to Cleveland. They got their own law. So Columbus the city, the state of Ohio through nine six eight, has preempted the field. They said we're the only ones that can write law on this, so all you local boys just stand down. We got it in a very crude way.

Derek: Yes, that's accurate. That's one for our listeners. That's what they need to understand.

Steve: That's what they need to understand.

Derek: I mean, when we sued Cleveland, I remember they had, uh, you know what was interesting? I disagreed with this decision, but it was upheld. They passed identical laws, and we said it's preempted. You can't do it, you can't do it. But we lost that argument, which whatever, it's fine.

Steve: Because you were arguing sort of on the narrow constitutional or the broader constitutional issue. But they were saying, yeah, it's no harm, no foul, because it's the same, essentially.

Steve: So there's a local judge that declared parts of 9.68 unconstitutional. So the law that would have preempted the field and given the state exclusive jurisdiction over this, some local judge says.

Derek: Net either set it aside or deemed it uncond. I can't remember which state execution of it stayed. It something like that. But nevertheless, he gutted it. So then the city council was like, all right, green light. Let's go, boys. Let's go in, draft some nonsense. Let's get our political cronies involved. Let's get our votes up. Because we need more of that. Because the city is doing so well right now, by the way, politically.

Steve: Yeah, if we had some more regulation.

Derek: We need more of that because the economy is doing well, the crime rates are going down. Tongue in cheek, obviously, um, sarcasm there. But nevertheless, this is what they pass. I'm going to read you just really two main components that I think is really problematic. And one deals with what they call large capacity magazines. I don't know why they arbitrarily get to decide 30 rounds is large, but that's what they get to decide. I would call it standard capacity. Um, but nevertheless, um, basically what it does is it defines large capacity magazines as 30 rounds or more. But what's interesting about the law let me read it to you. Let me find it here. Forgive me, I just had it and my finger moved. It on my phone. But this is what it says. No person shall knowingly possess, purchase, keep, for sale, offer, or expose for sale, transfer, distribute, or import a large capacity magazine. Clear violation of 9.68. When you read 9.68. Only the state can cover, uh, the, uh, procurement, the storage, the, um, uh, transfer, uh, it uses all these different adjectives, these operative, uh, words in 9.68, what the local, uh, officials can't do. I don't think it preempts the use of guns. I think you could have zoning ordinances and noises and stuff like that, but nevertheless, so that's what it says. And then it actually has exceptions to this law. And this is what Steve and I were talking about before we got on the podcast. Um, this shows how I love it when anti gun people write gun laws.

Steve: Uh, it's the most fascinating thing.

Derek: There's a great little clip of Tucker Carlson years ago interviewing a Democratic congresswoman. Uh, and he asked her what a barrel shroud was. And she's like, It's a thing that goes over the shoulder. And we're like, what? He's like, no, it's not even but.

Steve: Then it doesn't matter if we hate all guns. Yeah.

Steve: Yes. It exempting the person or the M magic to have any gun registered under the National Firearms Act or the gun in question.

Derek: But you can't register a magazine in the NFA. It's not possible. So it has to mean it has to mean the firearms. So if I have a suppressor and I own a 50 round magazine, I'm good.

Steve: You're good. Even if it doesn't fit that gun in theory.

Derek: And I'm sure that's not what they meant.

Steve: No, it's just poorly written because they.

Derek: Don'T understand gun law at all.

Steve: Uh, and the other part of that is well, keep going. I mean, there's more to this. That's right.

Derek: That's one absurd. And I've never seen the next thing ever in my career, almost 15 years of practice, I've never seen an alternative statute. You heard that, right? An alternative this is what the title of this section says alternate Large Capacity Magazine Provision if the ORC section 9.68 is reinstated. So they basically say, hey, if the courts rule against us, we're going to redefine large capacity magazine to mean 100 rounds. It's still a damn violation.

Steve: That's still a violation.

Derek: So they're trying to, like, have to, uh, eat their cake and have it too. And it just doesn't work. I mean, it's just so infuriating that they're wasting my tax paying dollars on this nonsense. That doesn't do anything.

Steve: It is virtue signaling nonsense because they know that they can't do it and they're doing it anyway to look good. And they're doing it with these sort of broad brushed, uh, statements like, whereas there are ongoing mass shootings, we're going to pass the law.

Derek: You know, I've litigated against the Brady camp. They do that crap too. They'll put in this complaint, all this nonsense, feel good garbage. It has nothing to do with the law.

Steve: Right. It is not linked up. It is not connected at all. So assuming this, let's, uh, just take it in their little, uh, perfect world that this law stays, uh, in effect, remains in effect, and is valid. Like they've criminalized. And by the way, we're not talking I think one more, but I'll back up a little bit. We're not talking on NFA guns. We're not talking about the AR 15. You bought it at a local gun shop. You're talking about a very specific gun. So if you have a 30 round magazine and an AR 15, you violate this law. If you're in the city of Columbus yeah.

Derek: If you as a listener asking, I wonder if I have an NFA gun? You don't have one. You don't have you know you have one because it takes a year to get the permission from the ATF.

Steve: It's not the same as signing the paperwork when you buy a gun in the gunshot?

Derek: No. You have to go through a year long paperwork process. You have to pay a tax. You get what's called a tax stamp. You don't know what that is. You don't have an NFA gun. And if you do, then it's probably not registered and it's a felony.

Steve: Yeah. So this doesn't apply to you. In other words, exempt do not apply to you. So this means that if I go into, uh, cabelas or I go into dix, where you can just in any normal day, you go in and there's a whole rack full of different 30 round magazines that fit AR 15s as.

Derek: A standard, uh, not a dix anymore. They want the road of wokeism.

Steve: Yeah, they quote woke up, uh, and fell down. But anyway, so Cabela's you could or advances you could or any number of gunshots. You could go and say, oh, I'm going to get these, uh, magpie, or whatever the brand is. 30, uh, Round Club or magazines, they're saying now, that's against the law in the city of Columbus.

Derek: That's right. And it's punishable 180 days in jail.

Steve: So go to jail for having those. So if you took, uh, the time to have a bunch of magazines that you fill up and keep loaded so when you go to the range, all you got to do is just pop them in. It's a crime.

Derek: And if you think you're going to get sympathy from the bend in city of Columbus, uh, good luck.

Steve: Good luck on that one.

Derek: This city has changed dramatically in the.

Steve: Last ten years, and it doesn't I didn't hear any language about, uh, retroactivity. So I don't know if it applies to somebody or whether there's a grandfather clause about those who already own them. So right now there's open questions about if this law takes effect, how many people become overnight criminals. And, uh, that's the danger of this nonsense. The other parts of the law that bug me, frankly, and this is more of my broader problem with criminal laws is that they've outlawed, uh, they had a bunch of stupid language in there about if you leave a gun around and it's accessible to kids, uh, and it's used for this or that.

Derek: Yeah, there's some language in that.

Steve: They're redefining what is already a crime and making it a crime again. So it already is a crime if you leave your gun around and somebody and a kid picks it up and you should reasonably foresee that and uses it, uh, um, and, uh, shoot somebody or does something with it. But guess what? You're already subject to prosecution. We don't need laws to tell us that, uh, that's against the law.

Derek: I defended that case. That very fact pattern I defended it was, uh, what they charged him with. It was some sort of negligence, negligent homicide.

Steve: Endangerment child endangerment homicide. I see. And I don't need the government to tell me not to leave my loaded gun on the coffee table so my four year old can pick it up and shoot his brother.

Derek: It's just exhausting to have to even think and talk about these nonsensical discussions. But this is what the city wants. So they're going to take your tax dollars, they're going to pay lawyers like me when they lose.

Steve: They're get to Virtue Signal for a little while, though. So they get to have a day in the sun.

Derek: They get what they want because they're selfish. They don't care about the citizens.

Steve: They really don't. You could say, well, what do we care if they just pass more dumb laws? Just add dumb laws to the books. Well, every time you pass a law like this, every time, this is sort of pseudo regulatory. So it's going to therefore create its own need for a regulatory structure. There will be people hired to, uh, some administrative form agency of government to do something to enforce this law. It's just going to cost time, it's going to cost money. It's not necessary at all. Everything they're talking about, at least irrespective of these, uh, magazines, which they're not allowed to do, this, um, everything they're talking about is already prohibited.

Derek: Well, it's your freedom. I mean, you just keep giving them a bite of the cake, they're going.

Steve: To have the whole damn cake sooner or later.

Derek: And then you have nothing. You have no freedom left.

Steve: Or if, uh, it's always done in the name of righteousness on this particular thing. So, yes, but this is such a serious problem with guns that we have to do and take the other side for a second. And, uh, it caused me equal consternation when, uh, after 911, all of a sudden I had to go through the functional, um, equivalent of a strip search to get on an airplane. And it's all the same virtue signaling. It's like the terrorists are not taking AR 15s through the metal detectors to get on the plane. So your tube of toothpaste, it's like you're not the one that's doing it, but it looks good and it makes people feel good. It's like, uh, a surgical master. The same kind of thing. Uh, this kind of government mandated nonsense makes everybody think that they're quote, doing something. And my next pet peeve, if anybody's listening to anything I've ever said here's this all the time, quote, well, we have to do something. Which is the same as admitting that what you're about to do isn't going to solve any problem whatsoever, but you're going to act like it does because you want to be able to say that you tried to do something.

Derek: Right? Well, the good news is this. Let's talk about the good news. Dave Yoast, our Attorney General. No, Dave. Great guy. Um, maybe I'm just saying that because he's like minded, I don't know.

Steve: But I do genuinely think he's a conservative and. He's a constitutional conservative in a lot of ways.

Derek: Yeah. And I know that this was giving him a lot of heartburn, and so they filed, uh, off a temporary restraining order, and they won they filed it in Fairfield County. The city sits in Fairfield County, and they were successful in that. So it's been stayed for the time being. And look, I remember when we went after Cleveland for this nonsense, they had that minor being near guns law, and I believe we got that ruled unconstitutional. This is part of this is almost identical. I believe it was Supreme Court. Again, I have to go back in my files and look at those cases a long time ago, but these issues have been handled before, and I'm confident that, uh, the state of Ohio will prevail in this.

Steve: Well, what about so, as I promised, there's different levels of interesting analysis. To the extent this is interesting to anybody but us. Uh, you have this notion of the state has already acted, therefore the city cannot. And then the other part of this is, while you've got a court in Fairfield County saying, yeah, you tried, but we are going to issue an injunction for now. We're going to say for now, you can't even enforce this law. So it's just held in advance. Nobody can enforce it. So never fear. You can still go buy a 30.

Derek: Round until the trial happens.

Steve: Until the trial happens, which it'll never happen, because summary judgment summary judgment will occur, and it's all over. But what about the federal law, Derek? What about the notion that, uh, can the city of Columbus just ban a 30 round magazine without running afoul of federal law? Or really, I should say, the Second Amendment?

Derek: Well, it's a very interesting question. That's a very complicated question, Steve, because of the brewing decision. I mean, 30 round magazine was beyond it didn't exist in the founding of this country. They just weren't around, to my knowledge. They weren't. So I'm not a historian, but I don't believe they were.

Steve: Uh, no, we had muskets.

Derek: Yeah, they had one round. Yeah, right. So I guess it's a historical analysis, and you'd have to find some analogy, historically, to make your argument either way, I suppose, whether or not you can regulate this. And I don't think there was any laws regulating the capacity of a firearm back then, to my knowledge. Again, I'm not a historian, so I think that, uh, after Bruin that came out in June, that Supreme Court decision that said, look, a, uh, law is only constitutional if it passes. I'm going to just paraphrase historical muster. Then that's the analysis.

Steve: Yeah. We have to look at historical Text analysis. Historical Textual analysis to see can we find some basis in this law? Uh, to go all the way back and I don't see how they're going to find it, but we're going to see a lot of litigation like this with cities around the country sort of passing, uh, these gun restrictions, and they're going to start to float up to the Supreme Court level.

Derek: Here's what's what the listeners do. If you're in Columbus, you need to call your city council person. And I'm just as guilty as everybody else. I never called my city when I lived in the city. I don't live in the city anymore, but I never called my city council person or anybody on the council. You should make your voice known. If you're upset about this, you need to let them know that.

Steve: Yeah. Uh, it's sort of the same thing in another context. Uh, the city did something else recently. They banned or outlawed flavored, uh, tobacco and vape in the city of Columbia.

Derek: I didn't know that.

Steve: And they did it under this nonsense notion that it has a disparate impact on, um, minorities. As if somehow, if you happen to be a minority, you're not smart enough to know what, uh, you can't make your own decision about whether you should be ingesting flavored alcohol, patronizing, or menthol cigarettes, which, uh, apparently the black community likes more than the white community, or whatever it is. And these people on the city council are saying this crap. They're telling somebody in the, quote, community that we know better than you what you should be smoking, what you should be ingesting, how many rounds in the magazine that you are buying, should have, and we know better than you, and we're going to tell you because you're not smart enough to make those decisions on your own. It's infuriating it's absolutely maddening. So I agree. Call your city councilman and say, what the frick are you doing? I don't need your help. Thank you. Why don't you pick up the trash on the streets? Why don't you make sure the trains run on time?

Derek: I will say this, obviously, because we have a national audience, not to say where I live, but I no longer live in the cesspool of the city of Columbus.

Steve: Well, in the same city where I had this come up. I own a building here, and I had this come up recently where there was just every morning, there's trash on my stoop every morning there's trash on.

Derek: My homeless people sleeping outside my office.

Steve: And it just is, uh, it's gotten worse. It's not always been this way.

Derek: No.

Steve: And you would you would ask it sort of makes us ask, how does this happen? And it happens because it's tolerated.

Derek: Right.

Steve: And as soon as it's tolerated, it will continue. And, uh, you're not going to legislate away human, uh, nature by calling it a crime to leave your gun on a coffee table unsafely. The jackass who does that will still do that.

Speaker B: What I find interesting, Steve, is that crime is up. Right? We have the regulations, not more and more break ins. People are getting more and more upset. But we want to restrict your ability to protect yourself.

Steve: Well, we say, here's what's interesting. Statistically, crime is up. And they're writing new criminal laws to prevent people from committing more crimes, which is going to cause the opposite, right. Because statistically, if you put more laws in the books and there's going to be more prosecutions under new laws, it's going to look like there's more crime. It's the same act. So you're shooting yourself in the political foot. But you're right. You're passing laws to prevent us from protecting ourselves against criminals when crime is up. Um, and do you really think that the criminal who is in possession of a 30 round magazine, who has this plan to go shoot up a school or shoot up the city council members or do something, is going to say, oh, you know what? This is against the law in the city of Columbus. We better get rid of our 30 round magazines. We're not going to use that to commit this crime today. Or the jackass would say, oh, gosh, I didn't know I shouldn't leave my loaded gun where my toddler is hanging out. I never thought of that. Thank you, city. Now I know I won't do that.

Speaker B: I go to rob a bank with a gun. Oh, shucks, I got a sign but a turnaround. They got me good.

Speaker A: Sorry. Let me go back and get a different weapon. I can't use this one to commit this crime. It's nonsense. It is absolute absurdity. And it's only done so the city council can say we quote, are at least doing something. We got to do something.

Speaker B: Be genuine. Just try to ban guns. At least you can make a colorable argument there. That it'll. Prevent shootings. You can't with this, there's just no colorable argument.

Speaker A: No, you can't do it because the guns already exist. The magazines already exist. Calling it like a super crime is not going to change the fact that people are going to do it anyway. I think in a lot of ways, as so goes local politics, so goes the country. I mean, I think you can look at this sort of as a launching pad for the rest of the country. This crap is happening around the country where you have cities virtue signaling local governments, virtue signaling against, uh, things like guns because it looks good politically. Or maybe they really believe this nonsense. But, uh, eventually this is what gets filtered up to the US. Uh, Supreme Court to decide what's the.

Speaker A: Yeah.

Speaker B: It wasn't predominant. It was like 50 50. It was a nice place to live. It's just completely the opposite today.

Speaker A: It is totally flipped. And I'm not saying that just because you're one political bent versus the other. It's going to turn the city to crap. I'm just saying the city is turning to crap, and whoever's in charge right now needs to do something to change it. And if you think if you're going to blame everybody but your own policies, then that perhaps is where the logic gets irrational.

Speaker B: I think that's a good point. The same as, uh, I don't like living in Columbus now. I wouldn't want to live in my hometown, which is deep, deep Trump country. You get into that bubble where you think one way and it's just not healthy. It's good to have a counterbalance, an exchange of ideas, and it doesn't exist anymore.

Speaker A: And beware of anything the government ever does. I don't care who's in charge. I say that all the time.

Speaker B: I was in a debate back after the Sandy Hook shooting on campus. It was on like, ten TV news, local news, and I remember there was an audience member that there was a proposal that there should be a law that allows ATF to have administrative agents come into your house and check your storage of guns. And they said, well, why don't you agree with that? Because I'm like, when has the government ever done anything efficiently or proper? It doesn't get done and I get, no way, no way.

Speaker A: Well, um, it's such an interesting point because whenever I hear people talk about gun control, I often default to that argument. I'm just like, all right, so as soon as you say you have to have this or you're not allowed to have this as far as guns go, then there's going to have to be an administrative enforcement body that is created. The brown shirts. These are Hitler's Brown shirts. These are the people that don't really you don't elect them. They're appointed bureaucrats. They're bureaucrats. And they're going to be given authority to do things like violate the Fourth Amendment under the good cause of gun control. And they're going to knock on your door and they're going to come in your door and people say, Well, I don't have anything to hide. I'll let them in. Yeah, but what if they're not honest? What if they are corrupt? What if they have an agenda that isn't consistent with what you consider to be a fair enforcement of the regulations? Now you've got a problem. You've let Buford pusser in the door and it's corrupt. And the problem with this is all government becomes corrupt. It has to. And you could say, well, why have any government? Because you need it. So you have these two competing interests. Uh, all government becomes corrupt and you need government. So these geniuses a couple of hundred years ago figured out a way to deal with this. You have checks and balances within the government to prevent that from happening. Or if it does become corrupt, there's a way to deal with it. And the more power, the more administrative power you give our government, the less ability you have naturally to ferret out the corruptness. So don't think that your people that support you right now are all good. And even if they are, don't think that the people that they appoint to follow them or to enforce their regulations are all going to be good, because they're not. They're going to be human. And they have the same original flaws that we all have.

Speaker B: Yeah. And you're already seeing a big migration of, uh, uh, wealthy, educated people that value their freedom. I left the city. I'm part of that. You don't live in the city either.

Speaker A: It's what happens. People leave the city. So think about that. They're going to start putting the yoke of regulation on businesses, on things like buying guns. You could say, well, who's going to care? Who's going to really leave? Because they can't buy a 30 round magazine in the city of Columbus. What if one business is gone? So one gun shop leaves, and that one gun shop then paid rent at a storefront. Um, employees had employees who families who paid employment taxes. You have sales taxes. You have, um, a presence in the community where you could go and interact with people. So instead, it gets driven online where there's far more ability, uh, for corruptness than at your local gun shop. So, uh, there's, I guess, an aftershock of things that can happen that you don't, uh, well, unintended consequences is what.

Speaker B: We'Re seeing that with the oldest gun companies in the country, in the world, in some instances, they were all up in Northeast New York and Connecticut and moving down to Tennessee.

Speaker A: Yeah, they're gone.

Speaker B: They're leaving because they can't deal with the regulation. And those families up there are leaving. Their consumer tax dollars are leaving because they're leaving to follow their job.

Speaker A: Well, all right, enough of, uh, our rant here. All of us know that we have something. We didn't do it last week because we got tied up, or last time because we got caught up on a different discussion. But we have this thing called the Ammo Can. And you would ask, what the hell is the Ammo Can? Well, it's a place you put your ammo. But for us, it's a place where we store the questions. So people submit us a question. And right now, Derek, you get lots of questions still on your YouTube channel. The website for Munitions podcast here is close. We're getting it built. It'll be rolled out. But, um, uh, we're getting the YouTube questions into the Ammo can when we pull one out and answer it. And since it's Christmas time, um, and we've talked about buying the gift of guns for your, uh, friends and your family, um, we have a caller questioner, somebody who wrote in who had a question. I'm not going to use names, but they want to know if they can buy a flamethrower. Which you sort of laugh, like, who the hell needs a flamethrower? But it's funny because I've actually had this case come up where somebody called me, uh, their flamethrower got seized by local law enforcement and it became this thing, were they allowed to have a flamethrower or not? And it wasn't so obvious.

Speaker B: All right, so I've researched this extensively. Um, I will say that I, uh, can own one. I have a license from a sheriff to own one. Um, but here's the deal. Um, what is a flamethrower? So we have to go back to the ORC and look at the weapons control definition.

Speaker A: ORC is the high revised I'm sorry.

Speaker B: The high revised Ohio law defines a term called dangerous ordinance. And in that let's back let's say why is Dangerous Orange important? Because civilians can't own it in Ohio unless it's registered with the sheriff. Or the National Firearms Transaction Registry. Right. The NFA registry that we were talking about previously.

Speaker A: Um, if you don't know what that is, you're not on it.

Speaker B: Right, exactly. Machine guns, short rail rifles, all that stuff. So it's either on that registry, you get a license from the share for $50, uh, on a BSSA one form, if everybody is wondering about that form. So canoe and dangerous orange. Dangerous Orange includes, and I'm paraphrasing this steep, so forgive me, I don't have the exact wording in the higher revised code, but it basically says that any, um, incendiary device, um, that's designed or can be redesigned or something like that to cause damage to people or property, I believe. So. Um, if you go to, like, uh, I have one of those dragons breast flamethrowers that attaches to a propicane to melt ice on my farm and to brush clean and things like that, that's not designed to cause damage to somebody's property, to people. But there's a company, a few companies now that are selling these flamethrowers that they say are designed for entertainment purposes. Um, but they put a shark face on it, or they'll put a skull on it or teeth on it to make it look kind of cool. Good luck selling that to a jury. Because if I try to tell the jury that this thing is not designed to cause damage to people or property, I think it's a harder sell than something that's more milk toast and looks more utilitarian. So it's really a gray issue when you look at it.

Speaker A: This uh, might see my spidey, my criminal defense spidey sense is like, off the radar right now. Because when you have a definition like that, where it's designed to cause damage to people or property and I get it. We're paraphrasing.

Speaker B: It's not, uh I'm going to bring it up.

Speaker A: Yeah, we'll bring it up. But what they're doing is they are attributing criminality to the intent of the designer, um, or maybe how it is adopted for use by the end user. So if I happen to have a flamethrower that looks really scary, that has a skull and crossbones on it that says, uh, uh, kill them all and let God sort them out on this side of it, uh, what's the language?

Speaker B: Uh, so dangerous ordinance includes incendiary device, which means any fire, bomb, and any device designed or specially adapted to cause physical harm to persons or property by means of fire and consisting of an incendiary substance or agency in a means to ignite. It very broad.

Speaker A: It's really broad. So what you're talking about a flamethrower that is used to clear foliage? I mean, that's property. So that theoretically fits within that definition. So, uh, many gun issues are fascinating to me because they implicate so many different areas of the law. Ah. Like, if you just said to Joe Blow on the street, should you be allowed to have a flamethrower? They would probably think like, no, what the hell do you need a flamethrower for?

Speaker B: Right?

Speaker A: Well, what about Farmer Bob, who has to clean up ravine once a year? Would you rather him using cancer, um, causing chemicals?

Speaker B: Right. I use it all the time on my farm all the time.

Speaker A: Right. And people have controlled burns. They do this kind of stuff.

Speaker B: Um, I actually use the one I actually have one with a shark skull on it. I actually use it on the farm, believe it or not. So I could make a legitimate argument. But you're leaving that up to a jury or worse.

Speaker A: Or worse, you're leaving it up to the discretion of local law enforcement who will decide whether your possession of that violates, uh, that law. And how will they decide? By whether they charge you or not.

Speaker B: Right. I had a dealer, um, he's a client of mine, a friend of mine. I went in just years ago. When I bought mine, I bought it from him. And, uh, I didn't buy it from until I had a license from the sheriff to get it. But I said, hey, uh, I don't think you can have these. What do you mean? I'm like, look at the law. So we called the company, like, oh, we didn't design it to do that. And I'm like, it doesn't matter what they say. It's what you can prove. And when you present it so comically with a face painted onto the thing.

Speaker A: Uh, like, what you design it for. If I'm defending that case, I would call in the owner of the company and say, all right, so is this designed in order to kill people?

Speaker B: They say no.

Speaker A: No. Why did you put a skull in crossbow? Well, to sell it.

Speaker B: Right.

Speaker A: To whom? Farmers who need to clear foliage. There's a disconnect. It shows you the absurdity of how the law is written, because this is like anything else. When people say, well, we got to do something about these guns, about these assault weapons, I always ask people, and I'm just a dummy. I mean, I'm just a guy who likes to ask questions. I'm like, all right, what's an assault weapon? Well, you know. And I'm like, no, I don't know. What is it? Well, it's one of those, um, the, uh, AR stands for assault rifle, which it doesn't, right. And that's an assault. I was like, well, what about my semi automatic shotgun that holds eight rounds in it, that I can just go shoot, bang, bang, bang, bang, bang. Is that an assault weapon? Well, it might be, and I'll show it to him. It's like, no, that's not an assault weapon. But then I show my AR, or maybe a single shotgun that looks like an AR 15. Is that an assault? And no, that's not.

Speaker B: Or that is it's nonsense.

Speaker A: It it it's like people don't know. And and when you don't have a common definitional structure for these kind of terms, it's impossible to write constitutional criminal laws prohibiting them.

Speaker A: Of the Ruger 1022 that your great great grandfather maybe not that many great, but your great grandfather would have the old 1022 sitting, uh, by the door.

Speaker B: The only difference is caliber. I mean, there's other guns. Uh, I can't think of them off the top of my head. There's one made by Ruger, and I can't think of it. But there's other guns that don't look like AR 15s that are bigger calibers.

Speaker A: Well, sure.

Speaker B: 30 cows, you know, things like that.

Speaker A: You can have a, um, Browning has a couple semiautomatic rifles. I know Benelli is making a semiautomatic rifle that looks like a hunting rifle, but it'll shoot a high caliber round. It'll shoot a 308, uh, in quick order. And you would say, what do you need?

Speaker B: Aruga many 30. And you look at that gun, it looks like a hunting rifle, but it takes a 30 california you can put a 30 round magazine in thing, you know.

Speaker A: No, it's it's and you it's all it's getting regulated on how they look and how people feel. That is not a permissible way to write criminal law. So back to my area of expertise. If you're going to write a criminal law, it has to be defined in terms that an ordinary reasonable person can understand and it can't apply or outlaw things that are otherwise lawful behavior. So you have to really start taking this stuff apart whenever you decide, quote, we need to just do something.

Speaker B: So our answer to the Mokan question.

Speaker A: Is maybe like so many other things in law and guns and criminal defense.

Speaker B: I, uh, would say definitely, if you can get a license from the sheriff.

Speaker A: Let's give him the good advice, which would be if you want to own a flamethrower and if you want to buy it for your loved one at Christmas time, which I highly encourage it, uh, follow the law. You should call Derek de Brass over at Municipal Law Group and get some help. And I mean that because it's way too easy to step into a snake pit.

Speaker B: And I know this is usually folks are on guns, but just so we're clear, flamethrowers are generally not regulated by the federal government. They are not firearms. You can have them shipped to your door. Um, but you in Ohio because it's so gray, would encourage you to try to get permission from your county sheriff, unless you're buying the one from Lowe's or something that's more innocuous.

Speaker A: So the one that does the same thing but doesn't have the shark skull on it to make it look really.

Speaker B: Dangerous, it's more of like a wand than a gun because they design the one with the sharks gun is more of like a gun. It's got a trigger and the other one's got more of like a handle, that sort of thing.

Speaker A: Right. So you can do the same thing with it, cause equal damage.

Speaker B: Right. The scary features on flamethrowers is the new debate now, right?

Speaker A: We're going to regulate really, really scary flamethrowers, but not the ones you can buy at Lowe's and Home Depot because those are for the farmers.

Speaker B: I mean, I could do a hell of a lot more damage with a flamethrower than a gun, probably.

Speaker A: Well, think about that. Um, if you're going to ban a 30 round magazine in the city of Columbus, but then go to rural King and permit people to buy essentially a flamethrower, it's like they're going to go into a movie theater with a flamethrower.

Speaker B: You like the whole place on fire, right?

Speaker A: You think that's better?

Speaker B: You kill dozens of people.

Speaker A: So maybe we need to outlaw arson by flamethrower.

Speaker B: Crazy.

Speaker A: Except it's already a crime.

Speaker B: Uh, personally, I don't know. I don't have a dog in that fight. Whether or not flamethrower should be legal or not, I use them for practical purposes.

Speaker A: The only dog I have in that fight is the government lever of power that is, uh, to regulate. I agree with you. And how does that same lever get applied somewhere else? And that's how I always look at it. What's the power lever, and is it constitutional? And am I afraid they're going to use the same power level to do something that we don't like?

Speaker B: Question for another day is a flamethrower protected by the Second Amendment? Is that an arm? We'll discuss it another day.

Speaker A: We'll discuss that another we'll talk about.

Speaker B: Numb chucks and katana blades and all.

Speaker A: Kinds of things, right in, uh, pocket knives. The laws on that have changed recently.

Speaker B: Yeah, we'll talk about that. That's a good one for next time.

Speaker A: Uh, there's some stuff coming. So anyway, Christmas is right around the corner. Uh, uh, if you don't have all your Christmas shopping done, uh, now you know what you need to do to go buy somebody a gift, a firearm gift. Right from the horse's mouth, right from the Munitions podcast mouth with Derek De Brass and Steve Palmer. Derek, you got your law firm, munitions, um, law group.

Speaker B: How do they get a hold of munitionsgroup.com? Just look us up on YouTube. Munitions Group. Um, we are moving our offices out to Dublin, Ohio, out of Columbus, as you've heard. Not very happy with the city right now. It's that is happening, but, uh, just want to wish everybody a Merry Christmas. Um, it's just a great time. Spend it with your family, enjoy each other. Uh, and as always, be safe and carry on.

Speaker A: All right? Until next time. This is the Munitions Podcast signing off.