Articles by Herschel Smith

Tenth Amendment Center.

On Wednesday, the Montana Senate gave final approval to a bill that would place a constitutional amendment on the ballot to remove a clause restricting concealed carry. The amendment would limit the state’s power to regulate the concealed carrying of firearms and also foster an environment hostile to federal gun control.

Rep. Casey Knudsen (R) introduced House Bill 551 (HB551) on Feb. 14. The bill concerns Article II, Section 12 of the state constitution, which reads:

Right to bear arms. The right of any person to keep and bear arms in defense of 19 his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be 20 called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons.”

HB551 would place an amendment on the ballot to remove “but nothing herein contained shall be held to permit the carrying of concealed weapons” from that section. It would also change the phrase “keep or bear arms” to “keep and bear arms.”

Passage of HB551 now places the proposed amendment on the ballot in the November 2024 general election.

On April 4, the House passed HB551 by a 65-33 vote. It then cleared the Senate 33-17, narrowly reaching the two-thirds majority necessary.

Montana legalized permitless carry in 2021. This constitutional amendment would make it more difficult for the state to repeal that law. More generally, it would set the stage to end any state regulation on concealed carry.

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Because it is a constitutional amendment, it will bypass the governor and now be sent to voters for approval in 2024.

Readers in Montana can weigh in with details, but I expect this to pass a voter referendum.

Montana – showing the rest of the states how to do it right.  Make it a constitutional amendment.

I didn’t respond to this comment at the time because I wanted it to “soak” a while first.  Here is Steve Kellmeyer’s comment on a previous post.

Shooting individual hogs is a VERY bad idea. The only way to eradicate feral hogs is to capture an entire SOUNDER, the whole thing, at one time. If you just kill individual hogs, they break into multiple sounders which all go their separate ways. You turn them into quicksilver and they spatter everywhere.

There are ways to catch whole sounders at once. Do that. You get more meat for the poor, you actually eradicate the population.

Steve isn’t a thinking man.  No one is going to “eradicate” the feral hog population.  Hear me now and hear me good.  Feral hogs are around for good.  They will not be eradicated.  Period.  Full stop.  But this comment goes further by asserting that “If you just kill individual hogs, they break into multiple sounders which all go their separate ways.”

Steve has never hunted hogs before.  That isn’t how any of this works.  Hogs sometimes travel in sounders, sometimes not.  Sometimes if there is a sounder, it might consist of a few hogs, mostly sows, but even sows run alone sometimes.  I’ve seen it.  Boars mostly run alone.  They may come back to a sounder from time to time for copious mating, but they don’t necessarily stick around other hogs all the time.  When you see hogs, you may see one, or you may see two, or you may see twenty at a time.  The boars that are alone aren’t in some sort of panic to get around a sounder because he loves his pigs.  Wildlife biologists are anthropomorphizing hog behavior.

They travel in the day, they travel in the night time hours.  They adapt and adjust rapidly, and no one tactic will be successful all the time and in all circumstances.  They feed in the day, they are nocturnal feeders.  They defy strict categorization, regardless of what “Steve” says.  Ask me how I know.  I know partly because I’m not a pointy head wildlife biologist who thinks he can write a journal article or be interviewed for the newspaper, or contract a hired hand, and make things okay.

That seems to be the way of things at the moment while time is ebbing away to cap their population.  Witness this article concerning Canada’s exploding feral hog population.

What Manitoba does have are provincial rules that allow wild pig hunting any time of year with no bag limit, or restriction on number of animals they take. In B.C., “hunting is the only control measure,” the Invasive Species Council wrote in 2019.  In Saskatchewan, although “wild boar may be shot by Saskatchewan residents without a licence to protect their property, hunting is not a recommended control measure,” Sharks explained in an email.

Alberta’s strategy incentivizes hunting directly, offering to pay hunters $75 per set of ears. The CBC reported last fall that zero kills had been made in the bounty program, but Brook is not a fan of the idea.

“I have been vocally saying that a bounty is a great option if you want more wild pigs. That is a fantastic strategy — if you want to double your pigs,” Brook said sarcastically.

He explains that research shows hunting actually accelerates the spread of wild pigs, as they flee to new areas to evade hunters.

Instead, the wildlife biologist recommends hiring a professional trapper.  Next up, this stupid article.

An open hunt intended to eradicate Alberta’s wild boar population may instead make the feral swine more elusive to bounty hunters, a researcher warns.

The province has placed a price on the heads of wild pigs — re-establishing a bounty program designed to root out stubborn populations of the invasive species.

The hunt must be carefully managed, said Ryan Brook, an associate professor in the agriculture department of the University of Saskatchewan and director of the Canada Wild Pig Research Project.

Sporadic hunting will make the animals harder to track, Brook said. Wild boar quickly learn to disperse and evade threats — and will pass these tricks onto their young.

They already know those lessons, Ryan, and if they don’t, they’ll learn them in a single day when your local trapper puts out corn feeders and drops cages on them.  I could go on and on with these articles, but you get the picture.  Some of them want to hire professional “sharpshooters,” as if he can do something that a hunter can’t or his shot won’t scatter a sounder while a hunter’s shot will (by the way, neither will happen).  They want to use tactics that will be equally found out and learned by the hogs.  Additionally, those methods are affecting the known, visible hog population, not the ones we know are there but not cataloged by the pointy head wildlife biologists.

I repeat, feral hogs won’t be eradicated.  It’s not going to happen.  It’s far too late for that.  These hog cages dropping on corn feeders require expensive material and construction, cameras, people watching and patterning them, and they’re good for about as long as one or two catches, and then it’s over.  The hogs won’t come back after investing weeks of patterning the hogs and ensuring that they are healthy with good food.  And the trappers charge a lot of money.  Besides, this video shows what happens fairly well – the catch of this massive operation is about 50 hogs with two cages.

There are more than 1.5 million feral hogs in Texas alone.  That estimate is probably very low.  At 1.5 million hogs, 50 per massive nighttime operation, and assuming 10 such catches per night over the state (consider the cost of an operation like that), it would take 3000 days or 8.22 years to make your way through the population assuming no reproduction at all.

Do you see the scope of the problem?

So follow the pointy head wildlife biologist’s advice and trap if that’s what you want to do.  Also, hunt them, individually and collectively, alone and in sounders.  Don’t poison them as I’ve seen some idiots suggest because that poison will make its way into the ecosystem.  That may be the dumbest solution I’ve seen floated.

But to assert that killing a hog will make the problem worse is the most asinine advice I’ve witnessed.  Feral hogs don’t fit neatly into your Aristotelian categories.  Your error is in trying to categorize them at all.  Don’t categorize them – kill them.

They don’t do what you would predict, and they won’t do what you want.  If you want to cap the feral hog population, do everything possible to kill as many as you can by any means you can wherever and whenever you can.  Hunters are not the problem and the solution isn’t another tax and public works project.

Got it?

In another very interesting and insightful video, Mark makes a very good case for the reason and justification for the supreme court having accepted this case with one justice recusing herself in the case.

He predicts the end of the Chevron doctrine within a year.  I hope so.  The deep state needs to take a very large blow to their authority.  I don’t even believe the three-letter agencies have a constitutional right to exist.

His show-and-tell on hammer fall between single action and double action is interesting.

I know that Colt reduced the spring coefficient on the design, leading to some degree of concern over light primer strikes.

But I haven’t seen this with any ammunition except poorer quality (or in his case, exotic hand loads).

Comments on this are always welcome if you have experience with the new Colt Python.

Eugene Volokh.

The case arose before Bruen, when New York required a showing of special need to get a license to carry a gun for self-defense. The petitioner had argued that she needed a gun because she and her husband would often carry substantial sums of cash for business, but the New York licensing authorities responded that she “failed to explain why her stated self-defense needs were not already adequately and independently addressed by her husband’s recent acquisition of an unrestricted concealed carry license.”

The New York intermediate appellate court rejected that logic (Matter of DiPerna-Gillen v. Ryba, decided Thursday in an opinion by Justice Stan Prizker, joined by Presiding Justice Elizabeth Garry and Justices Michael Lynch, Molly Reynolds Fitzgerald and Eddie McShan). The court’s main point was that, given the decision in Bruen, which came down while the appeal was pending, petitioner had a constitutionally protected right to carry, even without a showing of special need.

What a bunch of jerks.  They would force the husband to accompany the wife everywhere she went in order to obtain means of self defense, which might be a good idea at times, but comports more with Islamic culture than it does with Christianity.

Reddit/Firearms has an interesting discussion thread on shooting stances.  I think the prevailing wisdom is that you use what’s best for you, and I concur with that.  This string of comments was particularly interesting.

Quick breakdown that most don’t know… (isocoles ISN’T the only way to shoot… and currently it’s mostly done wrong)

This is going to be long and I apologize.There are 3 basic shooting stances -Weaver Chapman and isosceles. Most people think that the stance is based on foot placement,. It isn’t. It is actually based on upper body, and arm position.

Weaver was a big strong muscular guy, who bent his elbows pulled the gun in close and shot almost perpendicular to his target. Weaver IS categorized by bent elbows and pure muscle control. It requires a push/pull between the firing and support hand to create stability.

Chapman came along and modified the weaver stance by introducing a locked-out firing-hand elbow. Chapman is also called the “modified weaver” – typically standing about forty five degrees off of target. If the solid firing arm increases structural support and management, While the bent support arm adds stability. While there is still a push/ pull, the pull creates structure by locking the firing arm.

Traditional isosceles is just that – an isoscoles triangle. Both elbows locked out, your shoulder width acts as the base of the Triangle. As soon as you bend your elbows, you have taken the structure out of the isosceles stance, and you are essentially in a weaver stance (this is the current “isoscoles”- because traditional isoscoles is REALLY rough on the elbows). Isosceles came to prominence in the heyday of early shooting competitions, and more importantly with the advent of body armor. If you stand sideways in a traditional weaver or chapman stance the hole in your body armor is now facing toward your potential threat.

Sorry, long answer to a short question..There are benefits to all three stances, but no one is perfect. Each do certain things better than the others. Each have their positives and drawbacks. They all hold a place.

If i were to take a long pistol shot… it would be in a Chapman stance…

If i was clearing a house/ doorway/etc it would most likely be in weaver …

Wearing body armor… lean toward isoscoles.

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I was recently informed that weaver is the way it is because he had an issue with his left shoulder and was doing his best with what he had. Otherwise he’d have shot isosceles.

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factual. he had to change so he slapped his name on it to create branding and keep making money as an instructor.

Some call it Chapman, some call it Modified Weaver.  I prefer Modified Weaver.  It’s still the Weaver stance, just slightly altered.  Pew Pew Tactical has pictures of the stances.  I prefer the Isosceles stances, except for hard hitting cartridges like the .44 magnum, which are too much for the hands when the elbows aren’t helping to absorb recoil as a shock absorber.

I think the method taught throughout the military now is Isosceles due to the presentation of unprotected body (lacking armor) that any other stance causes.  Aggressive plates-forward, it’s called.

Source.

SPRINGFIELD, Ill. — A federal judge in East St. Louis issued an order Friday blocking enforcement of Illinois’ ban on assault weapons and high-capacity magazines until a lawsuit challenging the law is resolved.

Judge Stephen P. McGlynn, of the Southern District of Illinois, said the law known as the Protect Illinois Communities Act, or PICA, is likely to be found unconstitutional when the case goes to trial and the plaintiffs in the consolidated cases will suffer harms without a preliminary injunction to block its enforcement.

In a 29-page opinion, McGlynn acknowledged that the law was passed in the wake of a mass shooting at an Independence Day parade in Highland Park last year. But he said the “senseless crimes of a relative few” cannot be used to justify abridging the constitutional rights of law-abiding citizens.

That’s the so-called “heckler’s veto” which we discussed just recently.  These legal doctrines do matter.

“More specifically, can PICA be harmonized with the Second Amendment of the United States Constitution and with Bruen?” McGlynn asked rhetorically in the opinion. “That is the issue before this Court. The simple answer at this stage in the proceedings is ‘likely no.'”

McGlynn’s decision came less than a week after another federal judge, Lindsay Jenkins, of the Northern District of Illinois, reached an opposite conclusion and denied a motion to halt enforcement of the law. Plaintiffs in that case have indicated they intend to appeal to the Seventh Circuit Court of Appeals.

This will likely go to the seventh circuit to rectify the split, and all bets are off there.  But the seventh circuit will block the law, in which case it’s either over or it may go to the supreme court, or they will uphold the law, in which case it will certainly go to the supreme court.

Judge Benitez hasn’t issued his ruling for California as of this writing, but there isn’t much doubt as to what he will do.  In the end, these will likely go to the supreme court, with the decision based on Heller, which stipulates that if a weapon is in common use for lawful purposes, it cannot be banned.  Heller doesn’t say if a weapon is in common use for self defense it cannot be banned.  It says “for lawful purposes.”  If there are thirty million ARs and AKs in America and they are all being used to adorn fire place mantles, that’s common use.

Here is Judge Stephen P. McGlynn’s ruling.  Here are some takeaways from the ruling.

The prefatory clause of the Second Amendment states, “[a] well-regulated Militia, being necessary to the security of a free State . . . .” The prefatory clause “announces a purpose” for the operative clause but “does not limit [it].” Id. Meaning that there “must be a link between the state purpose and command” but that the scope of the operative clause remains unchanged by the prefatory language. See Id. As the Supreme Court noted, the operative clause of the Second Amendment creates an individual right. See Id. at 598. Thus, logic demands that there be a link between an individual right to keep and bear arms and the prefatory clause. The link is clear, “to prevent elimination of the militia.” Id. at 599. During the founding era, “[i]t was understood across the political spectrum that the right . . . might be necessary to oppose an oppressive military force if the constitutional order broke down.” Id. Therefore, although “most undoubtedly thought [the Second Amendment] even more important for self-defense and hunting” the additional purpose of securing the ability of the citizenry to oppose an oppressive military, should the need arise, cannot be overlooked. See Id.

Which I have always maintained.  The prefatory clause is sufficient but not necessary, or sufficient but not comprehensive.

The second section of the operative clause, “Keep and Bear Arms,” defines the substance of the right held by “the people.” Id. The Heller Court first turned to what constitutes “arms” and found that “arms” were understood, near the time of the ratification of the Second Amendment, to mean any weapon or thing that could be used for either offense or defense. See Id. The Court specifically noted that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Id. at 582. Finally, the Court turned to the meaning of “keep” and “bear.” Id. at 582-92. These words are understood, in light of founding era history, to mean to “have” and to “carry” respectively. See Id. at 582-84. In sum, the operative clause of the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” Id. at 592.

Yes, although the supreme court dealt specifically with the “keeping” part of the RKBA in Heller, and the “bearing” part in Bruen.

… in the years following Heller and McDonald, the Courts of Appeals analyzed the Second Amendment under a two-step test. See Id. at 2126. The first step included an analysis to determine if “the original scope of the right based on its historical meaning.” Id. The second step was a balancing test of either intermediate scrutiny or strict scrutiny depending on “[i]f a ‘core’ Second Amendment right is burdened.” See Id. (quoting Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017) (en banc)).

The Bruen Court firmly rejected this two-step framework, concluding that “[d]espite the popularity of this two-step approach, it is one step too many.”

Bruen once and for all ended “interest balancing” for the RKBA.  It’s over and done with, and should more cases appear before the Supreme Court where interest balancing has occurred, they will be dealt a blow.

He goes on to deal with magazines, and many other important things.  I’m disappointed that Judge Benitez hasn’t issued his ruling, for I expect it to be a good one.  However, this is an excellent ruling for the RKBA.

Here is Mark Smith celebrating the victory.

Prior:

Sixth Circuit Strikes Down Bump Stock Ban

Hundreds more in the Second Amendment Category

I won’t rehearse the history of Matt Hoover and CRS Firearms.  I think most of you know it anyway.  I also won’t rehearse my love for logic.  Most of you know that anyway.  Mark does a nice job of finding a very relevant legal precedent that should have been applied before the idiots at the DOJ and ATF ever brought him to trial.

The ATF was never able to demonstrate that what Matt helped to sell could ever work, or did ever work.  It was a collector’s item, and nothing more.  Anway, here is the relevant part from the court case.

Hypotheticals further illustrate the weakness of this methodology. A mouse is not an “elephant” solely because it has three characteristics that are common to known elephants: a tail, gray skin, and four legs. A child’s bike is not a “motorcycle” solely because it has three characteristics common to known motorcycles: two rubber tires, handlebars, and a leather seat. And a Bud Light is not “Single-Malt Scotch,” just because it is frequently  served in a glass container, contains alcohol, and is available for purchase at a tavern. To close with a firearm-related example: a hockey puck is not a “rubber bullet,” just because it has rounded sides, is made of vulcanized rubber, and is capable of causing injury when launched at high speeds. Learning that one object has three characteristics in common with some category may not be very helpful in determining whether the object in question belongs in that category.

I love the judge’s use of logic.  All law school graduates should be required to take multiple courses in Aristotelian (or classic) logic, and furthermore, logic should be an integral part of the BAR exam. I’ve read books on logic. Why shouldn’t a lawyer be required to do the same thing?

Be the smartest guy in the room.  Always catch Mark’s videos.  They are legal classes in 12 – 15 minutes. And you don’t have to pay law school tuition for them.

Always remember that you have Trump to thank for the bump stock ban, and the corollary empowered ATF making law out of whole cloth.

Just today, the Sixth Circuit struck down the bump stock ban.  Two of the judges decided in favor of the plaintiffs because of the doctrine of lenity.  I disagree with that.  I think the law is very clear and adding a piece of plastic to a rifle doesn’t convert it to a machine gun under the statutory language.  The third judge said it better.

But I would go further. As explained by Judge Murphy in Gun Owners of America, Inc. v. Garland, the best reading of the statute is that Congress never gave the ATF “the power to expand the law banning machine guns through [the] legislative shortcut” of the ATF’s rule at issue in this appeal, see Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (the Rule). See 19 F.4th at 910 (Murphy, J., dissenting). Simply put, under the statute as it currently reads, the addition of a bump stock to a rifle clearly does not make it a machinegun.

26 U.S.C. § 5845(b). Under this definition, a bump stock cannot be a machinegun part because a bump stock by itself cannot increase the rate of fire of a rifle, nor does it change the mechanics of a “single function of the trigger.”

Here is Mark Smith celebrating the victory.