Irresponsible Gun Owner of the Day: Gene Schenberg

1. In college, I used a bb gun with a scope to kill them. Little bastards were eating thru the ceiling drywall from the attack, and my landlord wouldn’t listen to me that there were squirrels. There is a particular sound a female in heat makes, and it is amazing to see how the males peek their head out of the hole they used to enter the apt building to seek said female out. My shots were less than 3 feet. After I killed about 5 of them (leaving the bodies on a below neighbor’s patio, suddenly, the landlord fixed the hole and eliminated the problem.

2. So in short, he’s a lousy shot, and the only reason this is an issue is because he peppered his neighbor’s house. I don’t know what’s worse, that this guy can’t shoot a fuzzy tailed rat inside of 50 yards, or that unconstitutional legislation was enacted based on the non-violent actions of one person that didn’t result in anyone being injured. Actually, strike that, I do very well know what’s worse, and someone needs to heat up the tar.

   Protip for Schenberg: Use a PCP large caliber air rifle. .22 or better. They’re quiet, accurate, and if you miss a critter that can fill a 4x scope entirely at back yard ranges, you’re officially useless.

   • I can’t see why it’s unconstitutional. Exactly what provision of the constitution would this violate? Surely not the right to keep and bear arms- there’s nothing there about the right to shoot where- and whatever you please.

3. Please do not shoot the little critters! Give them a heavy stipend so they don’t have to eat through people’s roofs, provide them with birth control devices so they do not overpopulate, educate their offspring for free, and I’m thinking that some kind of Acorn Card that they could redeem at the local tree farm would be really helpful.

   • That’s all well and good until someone surreptitiously records the nut-gathering operations…

   • Acorn. Hmm. Now where have I heard that word before…

4. Squirrels SUCK!!!!

5. This is a good example of why airguns are often banned by municipalities. Many attempt to ban them for indoor use as well!

   Also airgun darts are meant for dartboards and other porous materials. They’re basically a novelty and have to be shot from a smoothbore. I’m surprised that they’re even made any longer. So I think that it’s safe to assume that this guy wasnt’ competent to be shooting at anything, much less squirrels.

6. NR – The constitutional issue arises from the Missouri Constitution, not the U.S. Constitution. Article I, section 23 of the Missouri Constitution reads:
   “The right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned.”

   The proposed ordinance does not limit itself to taking potshots at Chuckles the Squirrel – it forbids discharging any firearm or projectile weapon in defense of crops or other property, including one’s home. A more limited ordinance could possibly be compatible with the Missouri Constitution, but the one they’ve proposed explicitly denies a citizen’s right to protect their home and property.

7. I love when people go squirrel hunting with the tube up and the bullets whistle down around me.

8. I was at that meeting and the darts we’re 5 years old and haven’t been used since 2006. They know this but continue to parade these rusty things around to cloud the real issue which is they (the City Council) are voting to remove our Constitutional rights on firearm usage. The real truth about guns is that if you live in Chesterfield and want to be able to protect your home, lives, property, etc. you should go to the next City Council meeting and sign a speakers card and speak out against this injustice and vote out any of these pin heads that continue to erode our rights!

9. Thank you for the excellent article. Gun safety is something all gun owners should be concerned about, and in neighborhoods with houses on less than a quarter acre of yard, proper gun safety means public safety.

   As a lifetime NRA member, I spent an hour on the phone with an attorney at the NRA, and spent another hour speaking with Gene Schemberg’s attorney, David Roland, from the Freedom Center of Missouri. The attorney at the NRA agreed that the ordinance amendment, in any of it’s proposed versions, is passable and would likely not ever be overturned in state court. They did not agree that it was a violation of the Missouri Constitution nor a violation of the U.S. Constitution’s 2nd Amendment.

   Upon sharing their logic with David Roland, he had no immediate firm response. There is a long list of Missouri cities that have the same, or more strict ordinances on the books.

   It is a shame that Gene has created a situation that makes his neighbors feel unsafe, and more of a shame that he was not willing to be a good neighbor and cooperate in order to diffuse the situation. Since the issue is now in the hands of City Council, we can expect a common sense public safety amendment to be passed. I support this amendment, as it will not infringe upon our rights, but will address a legitimate public safety concern that has been raised by our good citizens.

   I am disappointed by Councilman Barry Flaschsbart’s continued opposition to this amendment, and his apparent desire to represent the interests only of his good friend, Gene Schemberg, rather than the good citizens of Chesterfield, Ward 1. This is just one of many reasons I have launched a campaign for City Council and hope to unseat Barry in the April 3rd election. Chesterfield deserves accessible representation that is concerned with public safety and continued economic growth.

   David Arbogast
   http://www.DavidArbogast.com/

   • Respectfully, Mr. Arbogast, I remember our conversation quite differently. As an initial matter, the Freedom Center of Missouri does not represent Mr. Shenberg and has never claimed to. Secondly, my immediate and firm response was that it is blatantly unconstitutional under Article I, section 23, of the Missouri Constitution for a municipality to pass an ordinance that purports to forbid a citizen from discharging a weapon in defense of their property. In fact, I think this provision to be exceptionally clear when it states that “the right of every citizen to keep and bear arms in defense of his home, person and property… shall not be questioned.” Specifically, I disputed your contention that this provision would not justify a property owner’s firing a weapon at someone attempting to steal their car, making specific reference to the problem of horse thievery at the time this constitutional provision was first adopted in 1875 and suggesting that stealing a car was analogous to the theft of a horse. Will today’s courts enforce this constitutional right? Perhaps we shall have to see – but I have never suggested that the Missouri Constitution is in any way ambiguous on this point.

     Where I have equivocated on this issue is whether the city can comply with the constitution’s restrictions by limiting the ordinance’s scope to firing weapons at animals. If you will remember, I stated that the real question is whether taking potshots at animals in one’s backyard can be considered “defending” one’s property. I believe that the City might constitutionally be able to prohibit shooting squirrels, rodents, and other small animals unless they are in the act of damaging or posing an imminent threat of harm to one’s property, but I do not agree that the constitution permits the City to ban shooting animals actively damaging one’s property, no matter how small the animal might be. As a result, it continues to be the Freedom Center’s position that the now-amended ordinance still has constitutional deficiencies that ought to be remedied.

10. Thanks for your comment, Mr. Roland. You have restated your position as clearly as I recall from that evening. However, the conversation I was referring to is not the one you addressed. As I explained, the NRA attorney suggested that the ordinance amendment would pass and most likely would not be overturned because the risk to a home from a squirrel does not justify the risk to a human from a stray bullet. To this specific point, we really had no further debate, although I do think the remainder of our conversation was quite stimulating.

    I certainly agree with you that one of the questions at hand is whether taking potshots at animals in one’s backyard can be considered “defending” one’s property. A squirrel that isn’t causing harm would seem to have something in common with a person who isn’t causing harm, no? If we were dealing with folks shooting squirrels only in the act, there may be a different conversation occuring, but that is not the case.

    Mr. Roland, are you aware of any city in Missouri where a similar ordinance has been overturned by the State? There are, in fact, many other cities in Missouri with ordinances far more restrictive and to my knowledge, none have been overturned. Has the Freedom Center been involved in similar actions in those cities as well? Or do you represent a specific interest here in the city of Chesterfield?

    Another question, for conversation’s sake… What is your opinion on the application of Trespass to the finding of a neighbor’s bullets or blowgun darts in one’s yard?

    • Mr. Arbogast,

      As I made plain in my comments to the City Council last week, one of the Freedom Center’s supporters brought our attention to the proposed ordinance because it was such a blatant violation of the Missouri Constitution. Prior to that time we had no occasion to consider similar ordinances across the state – and, in fact, Missouri courts have also not had occasion to consider those other ordinances. Now that I am aware that other cities prohibit the use of firearms in defense of one’s home, the Freedom Center will carefully evaluate the advisability of initiating litigation to remedy these constitutional violations in the future.

      In the meantime, the fact that unconstitutional ordinances have thus far gone unchallenged in no way excuses the Chesterfield City Council to perpetrate its own violation of the Constitution. The Freedom Center will continue to advise the City Council as to restrictions it may lawfully impose and those it may not lawfully impose, and it reserves the option to act on behalf of Chesterfield residents if the City Council adopts an unconstitutional ordinance.

      Regarding your follow-up question, I do believe that a property owner may have a private cause of action for trespass or nuisance if they can prove that a neighbor is responsible for sending pellets or darts onto their property. As I believe I mentioned in my testimony before the City Council, the English common law system developed in large part to adjudicate precisely this sort of dispute among neighbors and to ensure that one who is injured or inconvenienced by another’s action may be assured compensation for that injury.

11. Mr. Roland, I appreciate your response to my question. I have wondered why trespass or nuisance was not raised initially.

    I am also intrigued that the Freedom Center appears to be at odds with the NRA on this issue.

    As you probably know, State law prohibits the discharge of a firearm within 100 yards of any occupied schoolhouse, courthouse, or church building. Assuming a person’s property is under siege by small rodents within this distance, is it the position of the Freedom Center that this State law is unconstitutional?

    • Mr. Arbogast,

      The Freedom Center is in no way affiliated with the NRA. As such, I cannot speculate as to why a representative of the NRA would have an inadequate understanding of Missouri constitutional law other than to say that the NRA has its area of expertise, and we have ours. If anyone from the NRA is interested in understanding the Freedom Center’s position on the Missouri Constitution, I’d be happy to bring them up to speed.

      In order to answer your most recent question, you need to understand the difference between laws that are “facially unconstitutional” and laws that may have some constitutional applications, but may be unconstitutional in certain other applications. The original version of Bill 2868 was facially unconstitutional because it flatly prohibited discharging a projectile weapon in defense of one’s home or property. In contrast to the Chesterfield ordinance as originally proposed, the state law you referenced does not necessarily prevent the discharge of a firearm in defense of one’s home, person, or property, and so it is not susceptible to a facial constitutional challenge. It is, however potentially susceptible to an “as applied” constitutional challenge in the event that prosecuting authorities attempt to apply the law against someone who was merely trying to defend their home, person, or property.

12. Mr. Roland.

    Your position on the original amendment is irrelevant at this time. Let’s discuss the current proposal, as we both know that revisions are quite common during this process. We should also agree that the proposed amendment certainly does not in any way infringe upon a person’s right to use deadly force to defend their self or their family. And in fact, the current proposal is limited to restricting the shooting of squirrels, birds, and other small animals in defense of one’s property on lots less than 10 acres. It also does not forbid an individual from defending their property.

    As a lifetime NRA member concerned with the protection of our freedoms, I am surprised you did not reach out to the NRA at all during the formation of your opinion. Their involvement in similar scenarios suggests they have the experience and knowledge to provide valuable opinion; the very reason I took it upon myself to contact them, and three other attorneys, in an effort to understand your position. Is the opinion of the Freedom Center shared with any others, or should it be considered to be the exclusive position of the Freedom Center and the “one concerned supporter” you claim to represent?

13. Of the five attorneys I contacted, you are the only one who appears to accept no provision for the representation of public safety interest in your position. In fact, you appear to agree wholeheartedly that the best approach is to prosecute a person for negligence after they’ve accidentally shot and/or killed a neighbor.

    The state law I mentioned is not facially unconstitutional. State vs. Richard (2009) as support. Laws exist that regulate the possession, and discharge of firearms, even in defense of one’s property, without violating the State Constitution. You did not disagree with me, Mr. Roland that shooting a person walking down the sidewalk with your TV will land you in prison, despite the apparent protection of property.

    For conversation purposes, I would draw your attention to MO statute 571.155. 1: A municipality may regulate, by order or ordinance, the shooting of pneumatic guns within its boundaries when the municipality is, in the opinion of the governing body, so heavily populated that such conduct is dangerous to the inhabitants thereof…

    In Chesterfield, a pellet gun is a firearm. If the amendment specifically prohibited the discharge of pneumatic guns at squirrels, would your position change? And if so, do you feel it is the intent of this statute to allow municipalities to ban the discharge of a pellet gun in the name of public safety, while preventing them from regulating the discharge of high power hunting rifles or assault rifles for the same purpose? To that end, if the individuals in question were shooting squirrels in their populated neighborhood of 1/4 acre backyards, with rapid fire from an AK47 assault rifle, would you be as forward with your opinion that it is their right to do so, and the exercise of that right in no way infringes upon the rights of others? Do you feel that the application of deadly force is proportionally acceptable, given the obvious risk of life to the surrounding neighbors?

14. Of the five attorneys I contacted, you are the only one who appears to accept no provision for the representation of public safety interest in your position. In fact, you appear to agree wholeheartedly that the best approach is to prosecute a person for negligence after they’ve accidentally shot and/or killed a neighbor.

    And you did not disagree with me, Mr. Roland that shooting a person walking down the sidewalk with your TV will land you in prison, despite the apparent protection of property.

    For conversation, I would draw your attention to MO statute 571.155. 1: A municipality may regulate, by order or ordinance, the shooting of pneumatic guns within its boundaries when the municipality…

    In Chesterfield, a pellet gun is a firearm. If the amendment specifically prohibited the discharge of pneumatic guns at squirrels, would your position change? And if so, do you feel it is the intent of this statute to allow municipalities to ban the discharge of a pellet gun in the name of public safety, while preventing them from regulating the discharge of high power hunting rifles or assault rifles for the same purpose? To that end, if the individuals in question were shooting squirrels in their populated neighborhood of 1/4 acre backyards, with rapid fire from an AK47 assault rifle, would you be as forward with your opinion that it is their right to do so, and the exercise of that right in no way infringes upon the rights of others? Do you feel that the application of deadly force is proportionally acceptable, given the obvious risk of life to the surrounding neighbors?

    • Mr. Arbogast,

      What question, precisely, did you ask those five attorneys, and what level of study have they given this matter? Have they studied the background of this constitutional provision, or were they just guessing at how judges might think about this ordinance?

      Not that it matters, but my opinion on the proper understanding and application of the constitution is shared by the attorneys who litigated (and won) both the DC gun ban case and the Chicago gun ban case at the U.S. Supreme Court. More importantly, it also appears to be the opinion of a significant majority of the Chesterfield residents who spoke out at last week’s council meeting.

      The critical problem with the proposal as amended is that it still attempts to condition one’s right to bear arms in defense of one’s home or property. You’re allowed to do so – but only as long as rodents or small birds are not the creatures causing or threatening to cause the damage. If you can point to any part of Article I, section 23, that allows the government to impose such a condition on one’s right to protect their home or property, I’m open to hearing it. In the meantime, I think we should assume that the Constitution means precisely what it says.

      Contrary to your assertion, I have never suggested that “the best approach is to prosecute a person for negligence after they’ve accidentally shot and/or killed a neighbor” – and for the record, it is quite irresponsible to put such words in another’s mouth. My position has been and continues to be that Article I, section 23, permits the government to pursue criminal charges against a citizen who discharges a weapon negligently or recklessly, even if they were attempting to defend their home, person, or property. But the government may not constitutionally prohibit citizens from firing the weapon if the shooter’s purpose is to defend their home, person, or property. Responding to a specific question about what I would say to “little Johnny’s parents” if “little Johnny” had been struck by a projectile negligently fired by a neighbor, I said they should “sue him for everything he’s worth” and that our court system was designed to address such tragic situations.

      Regarding our conversation about the outer edges of the right to defend one’s property, I agreed that one did not have a right to kill someone carrying their stolen TV down the street – but I did not agree that the TV’s owner had no right to use a firearm to stop the thief. There is, in fact, some Missouri caselaw on this issue, in which the Missouri Supreme Court clarified that one “had the right to repel with force the removal of his fence, as this was a forcible trespass and an invasion of his property rights,” but that this could not justify killing the offender. The central question is not whether the individual has a right to defend their property – “he has a right to use as much force as is necessary to prevent [his property’s] forcible or illegal removal” – but whether the degree of force used in the defense of property proves to be excessive. Where small animals are causing damage to one’s property, it is eminently reasonable to use a pellet gun to end that threat. While the General Assembly and local governments may impose certain restrictions on pellet guns, including punishments for their negligent or reckless use, the Missouri Constitution does not permit either the General Assembly or local governments to prohibit their reasonable use in defense of one’s property. One wonders why the Chesterfield City Council has not simply proposed a restriction against the shooting of rodents and small birds unless those animals are in the act of damaging or posing an immediate threat of harm to one’s home or property. This elegant solution would make clear that a property owner cannot simply take potshots at small animals in their yard, while still preserving the constitutional right to shoot animals that are causing damage.

      As a closing thought, I’d like you to ponder that the threat of a government willing to disregard aspects of the Constitution that it finds inconvenient is a far clearer and more present danger than your imagined horror of madmen firing automatic assault rifles at squirrels in residential neighborhoods.

15. [[What question, precisely, did you ask those five attorneys]]
    For a discussion on the constitutionality of the proposed amendment based on a copy of the amendment, and your argument as outlined in your email and document. Perhaps you question the NRA’s experience and competence in this matter.

    The DC gun ban case and the Chicago gun ban cases were great victories for Americans, but are simply not related to this issue.

    A majority of attendees at last week’s meeting shared your feelings. However, many of them were not Chesterfield citizens and based on community feedback, it was not a representative opinion. And I can honestly say that after direct conversations with individuals I met, walking door to door.

    [[I have never suggested that “the best approach is to prosecute a person for negligence after they’ve accidentally shot and/or killed a neighbor”…
    …what I would say to “little Johnny’s parents” if “little Johnny” had been struck by a projectile negligently fired by a neighbor, … “sue him for everything he’s worth” and that our court system was designed to address such tragic situations.]]
    Your point (and your position) I feel, are clear.

    Your point about using a firearm, sans discharge, to stop theft is irrelevant.
    The proposed amendment addresses discharge, not brandishing.

    [[Where small animals are causing damage to one’s property, it is eminently reasonable to use a pellet gun to end that threat]]
    In your personal opinion. Not the opinion of the NRA or Mr. Schemberg’s neighbors. A pellet gun is classified as a firearm in Chesterfield. Thus your attempt to trivialize my example of using an AK47 by calling it an “imagined horror” is inconsistent with your own argument. In essence, your argument justifies the use of an AK47 or a .50BMG rifle to be used to protect a home from squirrels in a crowded neighborhood. And lest we forget, larger caliber weapon discharge is also being addressed with this amendment.

    [[… but whether the degree of force used in the defense of property proves to be excessive.]]
    The risk to neighbors introduced by the discharge of a firearm within the neighborhood when compared to the risk to one’s home introduced by squirrel behavior is the basis for determining that the force is inappropriate – as suggested by the NRA.

    The MO Const. states “all persons are created equal and are entitled to equal rights and opportunities under the law; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design.” The people of Chesterfield have a right to feel reasonably safe in their own homes and yards without the need to wear bullet proof vests, ballistic glasses, hearing protection, or blaze-orange clothing. It is the responsibility of the City to provide reasonable measures to protect public safety.

    Gene Schenberg has acted irresponsibly, as stated by Dan Zimmerman. And his good friend, Councilman Barry Flaschbart, is not doing the citizens any favors by resisting this common sense public safety amendment.

    My prediction is that the amendment will pass, and it will not be overturned.
    And my guess is that privately, you agree.

    Thank you for the discussion.

16. For the record, seven Chesterfield residents spoke against the ordinance in addition to four other opponents from nearby cities. Harvey Rosenberg is the only Chesterfield resident that I recall speaking in favor of it. Fox 2 in St. Louis ran a survey about this issue in connection with the story it aired on January 9 – I believe 86% of those responding opposed the ordinance. It is my understanding that the vast majority of emails sent to the council members have also been opposed to the proposal; I am planning to submit a Sunshine law request for copies of all emails the council has received on this issue so we can precisely quantify the level of public opposition. Of course, I imagine that the ultimate test of public opinion will be the upcoming election for which you have declared.

    Your statements have given me no reason to believe that whoever you have consulted on the question of Article I, section 23 has any expertise in the matter that would cause me to second-guess my own carefully developed opinion. If you’d care to identify those you have consulted, perhaps we can invite them into the dialogue so they can speak for themselves. In the meantime, I have not been impressed with the way you have attempted to put words in my mouth and I suspect that they might feel similarly misrepresented if they reviewed your comments in this thread.

    I also see that you have, regrettably, bought into Mr. Heggie’s argument that the right to “keep and bear” arms does not mean that one has the right to actually fire them. Any self-proclaimed life-long member of the NRA should be embarrassed to be associated with such an idea. If you actually read the case to which I referenced, you would see that the Missouri Supreme Court was not drawing a line between “brandishing” a weapon and pulling the trigger, but rather between the firing of a weapon to dissuade or disable one threatening your property and the firing of a weapon to kill that person.

    The primary responsibility of all elected officials in Missouri is to uphold the Constitution. That certain officials would pervert their office by attempting to deprive the Constitution of its intended meaning is precisely the reason the Founders insisted that citizens be permitted to keep and bear arms in the first place. I have suggested a way that the City Council could address its asserted concern while still preserving the citizens’ rights to protect their property from harm. If a majority of the Council lacks the wisdom to follow this route, those members will have to hope not only that the voters will agree with that decision, but that the voters will also be satisfied with funding the City’s legal defense of their unconstitutional action.

17. Actually, it was you who nuanced Mr. Heggie’s argument in our disucssion, and it was I who suggested it was irrelevent. The proposed amendment address discharge, as I clearly stated. Well educated and responsible gun owners and hunters have worked to understand and abide by gun ordinances for many years. For you to suggest that an NRA member would be embarassed to be associated with the idea that those laws have meaning and purpose beyond your interpretation of the Constitution is simply a matter of opinion we can easily disregard.

    Of couse, the vast majority of time taken at the council meeting during public comments, was taken by you. And I’m assuming, please correct me if I’m wrong, that you are not a citizen of Chesterfield.

    You continue to completely ignore the comparitive levels of threat introduced by squirrels and by firearms, although I suspect you will give it plenty of thought in the near future. If you do file your “sunshine” request, I hope you find what you are looking for, but doubt you’ll find a public comment that makes a convincing legal argument. What you certainly will find, is that you are costing the city of Chesterfield financial expense, and if you lead the attempt to overturn such an amendment, you will be burning the time and resources that should be devoted to the citizens of Chesterfield. As you have failed to mention any other firm or attorney that agrees with your seemingly personal opinion, I wonder how far your confidence extends in this matter, and how much is a front. The city has obtained council in the matter. I have also spoken with attorneys. The public speakers at the Council Meeting were speaking of personal opinion and feeling. Certainly, if you could win your case in Chesterfield, you could launch cases in nearly every city throughout Missouri, and then move on to States with similar constitutional clauses. I doubt very much you feel your case is this strong. And I am curious if your involvement is pro-bono, or if the “concerned supporter” is actually paying you to fight their fight. You appear to have a noble cause, and I commend you on that. But in the end, just like every other public safety ordinance related to firearms in the State of Missouri, I believe this one will stand.

    With regards to impressing you, I care little. I stated my opinion and you felt the need to begin a debate with me, even though your initial ascertion that I recalled the conversation incorrectly was in fact, wrong.

    And to make that point as obvious as possible, I have made the same statement in every single post on this web site, and even with all our debate, you simply have still not responded to that issue.

    Have a good night, Dave. You are a good debater. Should you choose to push the issue, the courts will make the legality of the amendment clear. Just try not to cost us Chesterfield citizens too much in your attempt to validate your opinion. (You might consider consulting with the NRA or a few other attorneys first.)

18. Mr. Arbogast,

    I just got off the phone with the NRA’s national office. While they were aware of this issue in Chesterfield, they have no record of speaking with you and they have not taken any position on the proposed change to Chesterfield’s ordinances, much less granted the proposed change the NRA’s blessing. In fact, the representatives to whom I spoke shared my concern about an ordinance that would condition one’s right to protect their home or property and advised me to contact the NRA’s Civil Rights Defense Fund for assistance in funding a lawsuit to have the revised ordinance invalidated, if it is passed.

    If you care to identify the attorneys that you claim have endorsed restricting a citizen’s constitutional right to discharge a firearm in defense of their property, I’d be happy to discuss the matter with them as well. I imagine the folks at the NRA’s national office would also have a keen interest in knowing the name of the NRA attorney who (allegedly) said that this ordinance is constitutional.

19. sure, thing. Just pass me the name of your contact and I will contact the NRA-ILA tomorrow to inquire about the record of my call.

20. Well, Mr. Roland… since you did not give me the name of your contact so that I could address the situation appropriately, I will not give you a name either. I received an email response from the NRA today at 9:28am that addresses my contact from last week, and explained the discrepancy to my satisfaction. There certainly is a record of my call, and after providing them with only my name, they were able to clarify the situation to my satisfaction. I have it in writing. Perhaps the individual you spoke with does not have the access or resources necessary to retrieve the record of my call. For your sake, I hope that isn’t a reflection on their ability to offer legal advice.

    Mr. Roland. I have all the confidence I need that the ordinance will not be overturned if amended. There are many good ways to spend the Chesterfield taxpayer’s money. This is not one of them. If you challenge the amendment after it is passed, it will be known what expense you have created for the city of Chesterfield. If a provision exists to recover court costs from your organization, I imagine the city will do just that. When the amendment is not overturned, I’m sure most of our citizens who are paying attention will think twice before approaching the company that you and your wife run for any service.

    I hope you have fun discussing this issue with the NRA’s Civil Rights Defense Fund. If you need a supporter for your cause, might I suggest Barry Flachsbart’s friend, Gene Schemberg. He has a reputation among many as being rather litigious, and of course, is the most well-known individual discharging firearms to the dismay of his neighbors.

    While I will continue to disagree with you on this matter, I meant what I said about your cause appearing noble. I imagine that you and I probably agree on a wide variety of issues and viewpoints. But not this one. I am well aware of the common attorney mantra of “last word wins,” so I will graciously give you the last word in this discussion and hope that pleases you. The final word will come in court, if you choose to pursue the issue.

    Good day.
    David Arbogast

    • Mr. Arbogast,

      I believe the young lady I spoke with at the NRA headquarters was named Jill, although I cannot recall for sure. The gentleman I spoke with today was Whit O’Daniel. Incidentally, he did remember speaking to you, although he said that he had told you that the NRA would not take any position on this matter and offered a rather colorful description of anyone who would suggest that the NRA might approve of an ordinance that prohibits citizens from firing a weapon in defense of their property.

      I have never doubted your confidence, Mr. Arbogast. I am, unfortunately, all-too-well acquainted with government officials (and would-be government officials) who have immeasurable confidence that the Constitution must mean something quite different from what it says. What I doubt is your reason for that confidence. You say you’ve spoken to attorneys about this matter, but you haven’t identified who they are or why their opinions should carry any weight. And, unfortunately, judging from the way you have misrepresented my own words and the way that Mr. O’Daniel feels like you have misrepresented his, I really need to hear these alleged legal opinions from the horses’ mouths because I cannot simply take your word for it.

      In the meantime, I’ve shown my cards. I am one of an incredibly small number of attorneys who focuses exclusively on constitutional issues – and the even smaller number of which who have built a comprehensive expertise in the Missouri Constitution. Not that I needed to, but (as I have already pointed out) I also sought input from the three legal masterminds (http://www.cato.org/pub_display.php?pub_id=9693) the nation can thank for the Heller and McDonald cases. Two of these gentlemen are former colleagues and personal friends of mine and, while you might dismiss their expertise on these matters, I suspect that most attorneys with even a passing familiarity with gun rights issues would be inclined to offer their opinions a little respect. Additionally, anyone who wants to hear me explain my legal opinion on this matter can go to the Freedom Center’s website (www.mofreedom.org) and see the letter I wrote to the Chesterfield City Council and hear my discussion with the Council – they can judge for themselves whether the City Attorney or I demonstrated a better understanding of the constitutional issue in dispute. They can also hear for themselves the City Attorney’s mind-boggling, indefensible suggestion that the right to “bear arms” does not include the right to “discharge” those arms – no need to take my word for it, the evidence is right there on the internet (http://www.thisiswrong.net/Heggie.mp3).

      Perhaps more important than the relative merits of expertise and eloquence, however, is the fact that I have presented you (and the sitting council members) with an alternative that should address the City’s concerns without violating citizens’ right to defend their property. Specifically, the City should leave unchanged the part of the current ordinance that permits the discharge of firearms where necessary to protect life, livestock, crops, or other property – but the City could clarify that this exception only applies in circumstances where a person or animal is actively harming, or posing an immediate threat of harm to persons, livestock, crops, or other property. It could also clarify that the degree of force used in the protection of persons, livestock, crops, or other property must be in proportion to the nature of the threat, meaning that one cannot shoot to kill someone who is stealing a garden gnome and one cannot use a high-powered rifle to kill squirrels. Properly worded, I believe an ordinance along these lines would significantly dissuade citizens from taking potshots at any rodents or small birds in their backyard while at the same time preserving their constitutional right to use a reasonable amount of force to end legitimate threats to their property.

      One of the frustrating things about the work that I do is the recognition that government officials frequently have the best of intentions – and sometimes they even have laudable goals, like making sure that yahoos aren’t firing high powered rifles in the direction of their neighbors – but they lack the patience and imagination to come up with solutions that will be both effective and consistent with the Constitution. I fear that too many of them have been infected with the dangerous fiction that lawmakers’ good intentions are more important than the rights the people tried to preserve to themselves in the Constitution. Mr. Arbogast, if, as you suggest, some part of you finds anything “noble” about the work I’m trying to do with the Freedom Center, I hope you will not fall prey to the laziness and the hubris that leads some government officials to parse away our constitutional freedoms. You can be better than that, and you can become an example for others who aspire to elected office. The Freedom Center exists, in part, to be a resource to help those officials with a desire to find constitutional ways to accomplish legislative goals. But, to paraphrase Ronald Reagan, if we can’t make them see the light, we’ll make them feel the heat.

      I’ve outlined how the Chesterfield City Council can resolve the constitutional issue with their proposed ordinance. If you think it’s inadequate for some reason, I’m open to further discussion that might address any lingering concerns. In the meantime, I believe that pressing forward with the current proposal would really not be in anyone’s best interests.

21. Mistruths deserve a response.

    [[way that Mr. O’Daniel feels like you have misrepresented his]]

    I can state unequivocally that I have never had a conversation with any gentleman at the NRA named O’Daniel, and thus have not, and could not have misrepresented his words.

    I also never challenged the intent of the Constitution.

    Misreprentation, indeed.

    Good Day.

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