Articles by Herschel Smith

I dislike that the judge relied on the fact that no psychiatrist needs to be involved in the current New York law in order to seize firearms.  The mere word of another person can do it.  This law should have been overthrown because it’s clearly unconstitutional.  But turning to the neighborhood witch doctors for the infallible word on your state of mind is a bad idea for too many reasons to list, not the least of which is the fact that only God knows the heart of man.  Another problem is that one can trust due process only if they trust the process (this sounds like a tautology but it’s not).  The ‘due’ part of due process relies on the truthfulness and viability of the justice system to administer justice.  More often than not, justice is whatever wicked men want it to be.

But this is better than the alternative, which is that the law could have been found constitutional.

Gov. DeSantis just signed a bill that allows people to carry concealed weapons without a permit, making Florida the 26th state to allow permitless carry. We spoke to Florida @SheriffMina who said this won’t make his state safer — in fact, just the opposite. https://t.co/ZfmG8sXOCm pic.twitter.com/fW0Ap7eqrF

— The Problem With Jon Stewart (@TheProblem) April 3, 2023

I won’t ask a copy what he thinks because it doesn’t matter what he thinks.  He doesn’t determine my rights.

As for Jon Stewart (do you see the look of unction on his face?), he’s just a court jester wearing funny hats.  He’s not the serious person he wants to be.  It’s amusing, though, how easily alleged progressives flip to become totalitarians.  That’s because in fact they are totalitarians.

The children of hippies believe in the state as god because their parents believed in nothing.

Cry all you want, it’s now the law in Florida.  And open carry will happen eventually, so cops won’t have to wonder if there’s a gun stuck in the waist band for open carriers.  For everybody else, they should assume people are carrying.

That’s easy enough.  I’m glad I could be of help.

I have several remarks about the events depicted and discussed below, but make sure to watch the entire video.

First, none of this would happen if the cops involved – FedGov and local/county/state – didn’t want to engage in it.  In other words, they like beating people up.  There is no other explanation for this.  This is sociopathic behavior.

Second, the problem is exacerbated when local/county/state LEOs are deputized as agents of the federal government, whether FBI or Marshals Office or whatever.  Far from being protectors of rights and peace officers, as would need to be the case if the notion of second amendment sanctuaries means anything, it’s apparently too tempting when a local LEO hears the words “Deputized as a Federal Marshal.”  They can’t turn it down under their own volition.  They are in need of a body of laws and regulations on the local and state level telling them they cannot do that without state penalties.

Third, they should not be armed.  They have all proven much to contemptuous of rights and liberties, and much too dangerous, to walk around armed.  In the case of most LEOs, they are “armed to the terror of the public,” as contrasted with open carriers who obey the law, and act in a peaceful manner.

Fourth, whatever body of law that supports the notion of qualified immunity must be turned back.  It essentially means that LEOs, especially federally empowered LEOs, can violate constitutional liberties and rights with no remedy by those they have offended.  This is prima facie ridiculous, and certainly wasn’t envisioned by the founders.  The founders fought a war to stop this sort of thing and then prevent its recurrence.

Fifth, the FedGov has no business in local and state matters.  Fusion centers and joint operations task forces should be banned by law.

Via Instapundit, Judge Don Willett knows what’s what with this doctrine.

Today’s decision upholding qualified immunity is compelled by our controlling precedent. I write separately only to highlight newly published scholarship that paints the qualified-immunity doctrine as flawed— foundationally—from its inception.

For more than half a century, the Supreme Court has claimed that (1) certain common-law immunities existed when § 1983 was enacted in 1871,2 and (2) “no evidence” suggests that Congress meant to abrogate these immunities rather than incorporate them.3 But what if there were such evidence? Indeed, what if the Reconstruction Congress had explicitly stated—right there in the original statutory text—that it was nullifying all common-law defenses against § 1983 actions? That is, what if Congress’s literal language unequivocally negated the original interpretive premise for qualified immunity? Professor Alexander Reinert argues precisely this in his new article, Qualified Immunity’s Flawed Foundation—that courts have been construing the wrong version of § 1983 for virtually its entire legal life.

Wait, what?

[ … ]

In arguing that qualified immunity is flawed from the ground up, Professor Reinert poses a provocative question: “If a legislature enacts a statute, but no one bothers to read it, does it still have interpretive force?”9 It seems a tall order to square the modern qualified-immunity regime with Congress’s originally enacted language. But however seismic the implications of this lost-text research, “‘[a]s middle-management circuit judges,’ we cannot overrule the Supreme Court.”10 Only that Court can definitively grapple with § 1983’s enacted text and decide whether it means what it says—and what, if anything, that means for § 1983 immunity jurisprudence.

If was a gambler, I would lay all of my money down on the SCOTUS not turning back such awful, wicked doctrine and qualified immunity.  Thus, the LEOs dispatched by the FedGov will become ever more hated, performing ever more cruel deeds as they see that they have no check on their behavior.

I had completely missed this significant case coming from U.S. District Court, Northern District of Indiana, South Bend Division.  It had to do with Mr. John Holden who, upon completion of his Form 4473 as it turns out, was under indictment at the time.  Being under indictment is not the same thing as being found guilty of a crime.  Furthermore, recall that the Fifth Circuit has dealt with a situation somewhat similar to this one.

Anyway, the judge makes this startling statement in the conclusion of the decision.

This opinion was drafted with an earnest hope that its author has misunderstood New York State Rifle v . Bruen, 142 S. Ct. 2111. If not, most of the body of law Congress has developed to protect both public safety and the right to bear arms might well be unconstitutional . For one constitutional reason or another, a similar fate has befallen several other laws that Congress adopted with beneficent purposes . But unlike those instances , the decimation of the nation’s gun laws would arise from an assumption that our leaders and ratifying legislators in the late 1700s didn’t foresee that their descendants might need a different relationship than the founders had between the federal government and the right to bear arms. Yet a glance at the Constitution they were amending shows that they could foresee the growth in population that would change the number of representatives to be elected ,that future members of Congress might need higher pay, and that future states might aspire to join the union.

The United States Constitution, as amended and as imperfect as itwas ,is the legacy ofthose eighteenth-century Americans ; it insults both that legacy and their memory to assume they were so short-sighted as to forbid the people, through their elected representatives, from regulatingguns in new ways.

The role ofa United States District Court is to apply the law as understood by the United States Supreme Court; today’s rulingrecognizes that role. But the author of this opinion retains hope that he hasn’t accurately grasped the Supreme Court’s understanding of the Second Amendment.

The court GRANTS Mr. Holden’s motion to withdraw guilty plea and GRANTS Mr. Holden’s motion to dismiss the indictment . Mr. Holden’s plea of guilty is WITHDRAWN and the indictment DISMISSED.

The Firth Circuit was unapologetic in their decision, whereas Judge Miller seems to be begging and pleading for his interpretation of Bruen to be shown incorrect.

I think his interpretation is correct, as much as he hates it.  On a positive note, it’s nice that he was honest in his stated loathing of the Bruen decision, while still coming to a constitutional decision.

Let’s say that, hypothetically, you have two rifles, a Marlin 45-70 and a Marlin 30-30.  I think both rifles are close enough in ballistics (even with the massive weight difference) that they can be considered together.  Neither rifle is considered a 400 yard rifle – they’re both effective at 0 – 200 yards or so, with the 45-70 drop more significant further out than the 30-30.  But let’s go ahead and lump the two cartridges together for the sake of argument.

You obviously don’t need a 4X24 scope, and besides, a good one with that power would cost too much for the rifle it would be mounted on to be worth it.

What power would you recommend?  What brand would you recommend?  Obviously, the stipulation is not breaking the bank (no Steiner, no Schmidt and Bender, etc.).  Also quite obviously, this would be best in a SFP scope.  Any shot requiring use of high magnification and subtensions is probably too far for those rifles.  Assume that the scope is for use within and zeroed at 100 yards, but used by folks with failing eyes.

Mark discusses strategy concerning future gun rights cases.

Here is the case.  It concerns mootness of the case because, presto, the licensing authority suddenly found it within themselves to issue permits, thus avoiding a judgment on the entire scheme.

GRNC.

Grass Roots North Carolina and gun rights supporters made history today. Senate Bill 41 cleared its final hurdle and will become law after both chambers of the North Carolina General Assembly voted to override Governor Roy Cooper’s veto. SB 41 is the first override of a Cooper veto since 2018 and the first-ever override of a vetoed gun bill in North Carolina.

SB 41 repeals North Carolina’s Jim Crow-era pistol purchase permit law and closes the loophole under which concealed carry has been prohibited in churches which sponsor schools, giving those churches the same protections that most NC churches have enjoyed since 1995.

Yesterday, SB 41 cleared the NC Senate in a party line vote of 30-19, giving Republicans the expected 6/10 supermajority to override Cooper’s veto.

The NC House then fast-tracked the bill, taking it up as its first order of business this morning. Clearly, Speaker Tim Moore was in no mood to permit grandstanding by anti-gun Democrats as Rules Chair Rep. Destin Hall immediately offered a motion to “move the previous question,” a procedural maneuver that closes all debate and forces an immediate vote on the bill. With all House Republicans voting for the bill, SB 41 passed the House by a vote of 71-45, narrowly exceeding the necessary 6/10 supermajority.

It should be noted that Rep. Michael Wray (D- Halifax, Northampton, Warren), who was a co-sponsor of a similar bill and had voted for SB 41 the first time, apparently did not vote. It is not clear whether that was due to a deal with Republicans, or whether he sold out Second Amendment supporters. However, Rep. Shelly Willingham (D-Bertie, Edgecombe, Martin), who voted for SB 41 last time, reneged on his public statement that he would not change his position on the override. By voting “no” on the SB 41 override, he clearly betrayed gun rights supporters. Also unknown as of this writing is whether the other three Democrats who did not vote were present in the chamber.

AP reports it this way.

Moore used parliamentary maneuvers Wednesday to block floor debate before the vote, causing frustration among Democrats.

Cooper, who is term-limited from seeking reelection next year, criticized the the move by House leadership, saying in a tweet that arguments to uphold his veto would have been “too compelling for them to hear.”

In North Carolina, supposedly free men must turn over their information to the CLEO (Chief Law Enforcement Officer) for approval to purchase a handgun.  The investigation (and information you must turn over) to obtain a concealed handgun permit includes: a full background check, fingerprints, and full medical records.  They contact area hospitals to ensure you haven’t had admissions for mental health or substance abuse.

The investigation if you don’t have a concealed handgun permit is substantially the same as with one, it’s just that you must obtain a permit for every handgun purchase, with a fee to the county each time you apply.  The permitting scheme for a single purchase apparently goes a bit quicker than a concealed handgun permit, but both can take very long (months, and in some cases almost years when the CLEO claims to be “backed up” like the communist Sheriff of Mecklenburg County).

It’s quite the tax collecting scheme, to be sure.

That’s all done away with now.  It’s gone.  Effective immediately.

Finally.

Without that albatross hanging on us, and with both states now being legal to openly carry, NC and SC gun laws are similar.  Here’s an exception: Open carry is legal in NC without a permit, and in SC, one needs his permit.  Also in SC, the legislature is considering permitless carry.

In neither state, as of today, must a CLEO approve a gun purchase.

Goober Roy Cooper can suck on it.

My regular readers know that in these parts, we speak the names of John Moses Browning and Eugene Stoner with hushed reverence.  As an engineer, I have a special appreciation for fine engineering as was performed by both of these men, as well as by Jim Sullivan.

There have been indications in the past that Eugene Stoner’s family was opposed to civilian ownership of the very weapon he designed and built.  This article points to that.

“Our father, Eugene Stoner, designed the AR-15 and subsequent M-16 as a military weapon to give our soldiers an advantage over the AK-47,” the Stoner family told NBC News late Wednesday. “He died long before any mass shootings occurred. But, we do think he would have been horrified and sickened as anyone, if not more by these events.”

But their comments add unprecedented context to their father’s creation, shedding new light on his intentions and adding firepower to the effort to ban weapons like the AR-15. The comments could also bolster a groundbreaking new lawsuit, which argues that the weapon is a tool of war — never intended for civilians.

Eugene Stoner would have agreed, his family said.

Of course, this is supposition and hearsay, with his family attempting to leverage the reputation of their father for their own political ends.  But you see why nerves are sometimes a bit on edge when someone like Reed Knight speaks about these issues.  Reed knew him better than virtually anyone else and worked with him at KAC before Stoner passed away.

Along with (on the same day as) the shooting in Tennessee, no less than four hit pieces came out in the legacy media on the AR-15.  It’s not my intent to rehearse the details of the shooting (nor to tackle every hit piece).  That has been done elsewhere, from the rapid response of the police (versus in Uvalde), to the need to harden schools, and finally to the fact that she chose this school because it was a soft location whereas other potential targets had too much security.

My intention is to fisk one of the hit pieces from The Washington Post.  In this piece, Mr. Knight is quoted.

Eugene Stoner, a World War II veteran who invented the AR-15 in the late 1950s while working at Armalite, a small engineering firm in Hollywood, had no interest in civilians using his invention, said C. Reed Knight, who owns a Florida gunmaking company and considers Stoner his mentor.

“He looked at this thing as only for the military side of the house,” Knight said. Stoner, who died in 1997, thought his invention was past its prime by the mid-1990s, Knight said. He added that Stoner would have been horrified by the idea that “he invented the tool of all this carnage in the schools.”

I figured that this was a response to a very specific chronological question, and so I contacted Mr. Knight for clarification.  He graciously allowed me to spend some time with him over the telephone.  Since there is no transcript (I didn’t do this interview via email), I’ll try faithfully to reproduce some of the things he conveyed to me.  You’ll have to trust that I got it right.

First of all, Reed began a rundown of the history of Eugene’s work on the AR platform.  I knew all of this anyway, but it was nice to here Mr. Knight reminisce about his relationship and Eugene’s work.  He began in the late 1950s on the design.  It is of course correct to say that Eugene didn’t design the rifle for civilian use, since his work was targeted towards the military, and it was a military contract under which he worked.  He was paid to work on a rifle for the military.

There is a great gulf between saying that his work was done for, and financially supported by, the U.S. military, and asserting that civilians shouldn’t own the rifle, or that Eugene would have been opposed to such ownership.  That’s what’s being implied in The Washington Post.  Both Mr. Knight and I agreed on this point, and Mr. Knight made it clear that he was answering a very specific question on chronology, not politics or liberty and rights.

As an editorial point, I’ll observe that what Mr. Reed stated to me and what I recalled as the next events dovetail together.  Eugene sold the patent for the AR platform rifle to Colt in the early to mid 1960s.  Reed said to me, “… and colt immediately wanted to market the rifle in the civilian community, which of course is their right.”

Also as an editorial point, for more evidence of both the timeline here, and ATF malfeasance, my friend and colleague David Codrea sent me this article (which I had read before but forgot), in which Len Savage worked with Stephen Stamboulieh to obtain original classification letters through FOIA.  The results are interesting.

“Colt sent a pilot model rifle (serial no. GX4968) to the BATF for civilian sale approval on Oct. 23, 1963. It was approved on Dec. 10, 1963, and sales of the ‘Model R6000 Colt AR-15 SP1 Sporter Rifle’ began on Jan 2, 1964,” one critic of the article contended. “The M16 wasn’t issued to infantry units until 1965 (as the XM16E1), wasn’t standardized as the M16A1 until 1967, and didn’t officially replace the M14 until 1969.”

Civilians had this rifle before the troops in the field did.

“There are several things that are interesting,” Savage told AmmoLand News about the classification letter. “One, it shows pre-Gun Control Act ATF policy on the AR-15 system,” He noted. “It also shows why the most likely reason an AR lower is considered a ‘frame or receiver’ is that from 1962-1968 Colt marked the lower receivers with the information (flat surface as the upper is round). Meaning the regulatory scheme used by ATF  1968 to present is based on what Colt marked pre-1968 and not the statute. Willfully and knowingly.”

“Len hit the nail on the head,” Stamboulieh weighed in. “The current notice of proposed rule-making reads as if there was just no way the ATF could have known that the AR-15 split modular design was a thing. Back in 1968, the agency promulgated the definition of frame or receiver, post-dating the classification letter of the AR15, and that shows why they should have originally known what they were making a definition for.”

He and Savage also cleared up a point of potential confusion on why the classification letter refers to the AR-15 as an “automatic rifle.”

“It is because (my thoughts) that they sent two rifles,” Stamboulieh offered. “One was an automatic rifle, and the other was the modified rifle made to be not a machinegun (a semi-automatic version). So the ATF said, yes, this modified ‘automatic rifle’ is not a firearm under the NFA (therefore, not a machinegun and in other words, a semi-auto).”

“Bingo!” Savage replied. “They sent an ‘Unserviceable’ M16 so ATF could compare it and the new rifle and were told it was still considered an MG even if unserviceable since it was not properly destroyed. I laughed when Colt was told ‘file a Form 2’ in order to get it back… Wonder if it is still in National Firearms Collection?”

“In 1968 firearms industry terminology ‘automatic rifle’ means the same as ‘auto-loading rifle,’ i.e., a rifle that loads itself for the next shot,” he recalled. “Even in 1979-1980 when I took my hunters’ safety course the State of Michigan used the two terms interchangeably throughout the course.”

Thanks to David for reminding me of this article, and to Len and Stephen for the work on the FOIA.

Returning to Reed Knight, I continued with him on what Eugene thought about firearms ownership by civilians.  He told me that Eugene had a large collection of firearms and was a strong supporter of the second amendment.  Just to close the loop on all of this, I asked Reed if he believed that the rifle he currently builds at Knight’s Armament should be prohibited from civilian ownership?

I was met with an unequivocal ‘NO’.  He did opt to clarify that he firmly believes that, but most of the work they do at KAC is for the military since they focus their efforts on military contracts.  But that doesn’t change his beliefs about and support for the 2A.

Reed went on to discuss the current state of affairs concerning schools, shootings, etc.  We both believe in firmer security including armed resource officers and armed teachers, and he mentioned cultural changes that might have led to the situation we see today, including video games (I don’t happen to agree with that assessment concerning FPS gaming), unaddressed mental health issues, and other things.  I mentioned that my own readers might strongly add spiritual and moral problems as the primary cause, and he agreed with me that those issues play a role.

I’ll close my interview report by conveying two quotes by Reed: “I can’t blame the thieving that goes on in the jewelry store on the hammer that broke the glass.”  “It’s terrible to piss on Eugene’s grave because of what evil people do.”

That’s common sense, but not so common today.

I’ll also leave a few more editorial remarks.  If we’re going to consider chronology, it’s a fact that the Remington .223 was designed before the NATO 5.56mm, and in fact, Eugene based the 5.56mm on the .223, making a few minor changes to the casing before adoption as the standard NATO round.  So civilians had both the cartridge and the gun before the U.S. military did.  I won’t go into detail on the minor differences between the .223 and 5.56mm cartridge.  That’s not within the scope of this article.

I’m left wondering how writers like Philip Bump continue to be employed, who stated flatly that …

It is estimated that there are 20 million AR-15-style rifles in the United States at this point — a powerful, deadly type of weapon that didn’t exist as a consumer product two decades ago.

First, I think this estimate is quite low.  But note that he puts the commercial availability as 2023 – 20 = 2003.  How on earth do these writers get paid unless the pay master knows they’re writing pure bunk and wants it that way?

Now, one might criticize Mr. Knight for even agreeing to interviewed by The Washington Post.  But that’s his business, not mine.  But it must be noted that there are two ways to write things: truthfully and with the complete story, or twisted so that every remark, every comment, every [partial]fact, every half-truth, and every quote feeds a narrative, that narrative being the one the publisher wants to push.

That’s what you see when you read The Washington Post and similar publications.  Legacy media indeed.  I repeat: there is a world of difference between making observations and statements in response to questions of chronology (even if the writer is too stupid to know that’s what the question and answer is really about), and world and life views concerning liberties and rights.  It’s easy enough to string hearsay together with false implications of chronology and make a narrative.  It appears to be much harder to tell the truth.

I’ll say the same thing I did to Reed Knight.  Over these pages, we value the truth above all else.

Well, Delaware.  And well, Obama appointee.

If you live in Delaware … why?

This man is an idiot … or just dishonest.  He considers himself to be better than you.

One of the several AR-15 hit pieces today was published by The Washington Post.  It’s full of the usual blather (except for one interview I hope I get to conduct tomorrow), but this one revelation stood out to me.

Shortly after Parkland, President Donald Trump repeatedly floated the idea of supporting a new assault weapons ban.

He mentioned it on live television to one of the Senate’s most vocal gun-control backers, Sen. Dianne Feinstein (D-Calif.), and in a private meeting with Parkland families. His comments rattled NRA officials and some of his own advisers.

NRA representatives later warned Trump against taking action. “They came up here and said to him, the base is going to blow you up,” according to a former official who sat in during a series of meetings with the NRA. They, like others interviewed for this article, spoke on the condition of anonymity to discuss private interactions.

But Trump kept coming back to the idea, according to several former administration officials.

In the summer of 2019, after back-to-back mass shootings in Dayton, Ohio, and El Paso involving an AR-15-style pistol and an AKM-style rifle, Trump told aides that he wanted to ban AR-15s, according to people present for the statements.

“I don’t know why anyone needs an AR-15,” Trump told aides as he flew on Marine One to the White House in August 2019, according to a person who heard his comments.

As one former official put it in describing the real estate developer turned politician, “His reflexes were a New York liberal on guns. He doesn’t have knee-jerk conservative reflexes.”

But Trump was also petrified of the NRA and others taking him on, former advisers said, and heard from a number of advisers that it would be unpopular. Trump ultimately stopped entertaining the idea of working with Democrats on gun control later that year, when he was caught in a scandal over his now-infamous phone call with Ukraine’s president.

“F— it, I’m not going to work with them on anything. They’re f—ing impeaching me,” Trump said in one Oval Office meeting, according to a participant.

There’s your gun rights president.  Never forget he said that.  And never forget he supported red flag laws (with “due process” coming after the fact), and the bump stock ban, what has turned out to be an awful precedent for the current ATF shenanigans and malfeasance literally making law over pistol braces.

Never forget these things.