Archive for the 'Second Amendment' Category

LA Times.

A conservative panel of federal judges ruled Monday that a 30-year ban on butterfly knives in Hawaii is unconstitutional under the U.S. Supreme Court’s new “history and tradition” standard for reviewing the legitimacy of gun and other weapons laws nationwide.

“Hawaii has not demonstrated that its ban on butterfly knives is consistent with this Nation’s historical tradition of regulating arms,” Judge Carlos Bea wrote for the unanimous three-judge panel of the U.S. 9th Circuit Court of Appeals.

The ruling, which may be appealed, has implications beyond Hawaii, including in California and other states that also ban or severely restrict butterfly knives, which have been targeted by lawmakers because they can be easily concealed and flipped open.

California bans “switchblades” — which include butterfly knives — when they have blades 2 or more inches in length. A separate lawsuit challenging that ban is pending.

The decision reflects the growing reach of the Supreme Court’s pro-gun rights decision last year in New York State Rifle & Pistol Assn. vs. Bruen, in which the nation’s highest court ruled that restrictions on people’s 2nd Amendment right to bear arms are constitutional only if they are deeply rooted in the nation’s history and tradition or analogous to some historical rule.

Since then, trial and appellate judges have found themselves sifting through century-old state statutes to determine the legality of hundreds of modern weapons restrictions in states all across the country — including on knives and billy clubs, assault weapons and ammunition magazines, and on the possession of guns by certain classes of people, including adults under 21 and people who are subject to restraining orders.

Bea wrote that Hawaii’s 1993 ban on butterfly knives did not meet the criteria because nothing like it existed around the historical benchmarks chosen by the Supreme Court as relevant for such analyses: 1791, when the 2nd Amendment was passed, or 1868, when the 14th Amendment was passed. The latter amendment prohibits states from depriving people of property without due process of law.

Although the Bruen decision specifically addressed firearm regulations, Bea wrote that was only because the case in Bruen was about gun regulations in New York. The same “framework” applies to knives, which are also “arms” under the 2nd Amendment, he said.

[ … ]

Adam Winkler, a UCLA law professor who focuses on 2nd Amendment law, said the 9th Circuit’s decision “is emblematic of what’s happening across the nation right now.

“Courts are striking down regulation of arms left and right.”

Winkler said the Supreme Court “has put states in the impossible position of showing that any law that regulates weapons for public safety [has] clear analogues in the 1700s and 1800s,” which he added “just leaves courts to draw analogies to laws that were designed for a different society.”

“It really makes no sense,” he said.

[ … ]

Hawaii put forward several such laws, dating back to 1837, including laws that banned or regulated bigger blades such as Bowie knives and “Arkansas Toothpicks,” daggers, brass knuckles, canes concealing swords and knotted ropes with metal weights at the end called “slung-shots.”

An 1837 law in Georgia — which the court called Hawaii’s “best historical analogue” — said no one shall “keep, or have about or on their person or elsewhere … Bowie, or any other kind of knives.”

Bea wrote that the Georgia law didn’t clearly include “pocketknives” — which in his decision would include butterfly knives — so it wasn’t necessarily relevant. And anyway, he wrote, “one solitary statute is not enough to demonstrate a tradition of an arms regulation.”

[ … ]

“The court has to provide more clarity and direction for the lower courts,” Winkler said, “because the Bruen test has proven absolutely unworkable and unpredictable.”

It makes no sense to fisk this decision completely because it’s the right decision.  However, I do have some thoughts on it.

First, men should be able to carry swords if they choose to.  Silly debates on the mechanical operation of knives makes these judges look like school children, and besides, none of them ever used a knife anyway unless it’s an electric powered knife for cutting turkey because their wife told them to.  Their wives could probably have done a better job of cutting the turkey.

Seriously, most of these judges are so effete that they wouldn’t know how to use fire starter, tie a bowline or taut line hitch, build a campfire, or be able to open a box with a knife without cutting themselves.  They certainly wouldn’t know how to operate a 1911, and yet they’re adjudicating laws for the rest of us.

Next, notice the silly Adam Winkler and his hand wringing over this sort of thing.  He says, “impossible position of showing that any law that regulates weapons for public safety [has] clear analogues in the 1700s and 1800s,” [which he added] “just leaves courts to draw analogies to laws that were designed for a different society.  It really makes no sense.”

It makes perfect sense, and it’s clear enough to you and me.  Winkler just doesn’t like it.  He adds to our understanding of his frustration by emoting “the Bruen test has proven absolutely unworkable and unpredictable!”

The test is completely workable.  The test is to find analogues from the time of the signing of the constitution, or at the latest the lives of the founders (while they were still here on earth).  Can’t find an analogue?  Too bad.  You fail the test.  There is no reason to search any more.

There were no analogues on the carry of knives from the time of the founding.  Even as children the founders carried long guns to school with them to be able to hunt on the way to and from school to fill the dinner table.  And that stupid “analogue” on Bowie knives from 1837 from Georgia is no analogue at all.  It’s too late.

All this searching they’re doing is to try to force fit later laws and regulations into the framework of the Bruen test.  There was also no law or regulation of firearms serialization at the time of the founding either.  They can pull their hair out as far as I’m concerned.  In fact, the more time they waste on trying to convince the court that they’ve actually found something when the law is too late to meet the Bruen standard is time they don’t have to spend on wrecking the lives of other people.

The only downside for us is that this all slows the process down.  It would be better if they just gave up and understood that they can’t meet the Bruen test.  In absence of that, I’ll take a waste of their time.

Finally, why do writers go to silly men like Winkler to assess the facts of these cases, when they’ve got real scholars like David Kopel, Dave Hardy, Stephen Halbrook, Mark Smith and so many others?

Winkler doesn’t like the Bruen test.  That’s fine with me inasmuch as I don’t care what Winkler thinks.  That’s a much different thing than saying that it’s unworkable and unpredictable.  The test is entirely workable and quite predictable.  Winkler gets an ‘F’ from The Captain’s Journal on class participation today.

As you likely know, Justice Alito has given the federal government until Tuesday, or in other words, extended the stay on Judge’s Reed O’Conner’s vacatur of the new ATF rule to serialize incomplete lower receivers.  Of course, we don’t know where this is all headed.  The SCOTUS could remand this for decision consistent with Bruen, or sustain the vacatur for parties involved, or they have other options.  Since this emergency appeal by the DOJ has been accepted by the SCOTUS, doing nothing is now not possible.  They will do something, but we’ll have to wait until Tuesday to find out (or perhaps Wednesday).

Below, professor Mark Smith does a service by reviewing the history of firearms serialization in both the U.K and America.  There is basically no history of serialization in America, and certainly no history of requiring firearms to be serialized at the time of our founding.  In other words, there is no analogue law to which the DOJ and ATF can turn.  It isn’t enough to say that firearms loaned to the militia by the government were serialized.  That was for a different purpose, i.e., tracking government property.  The ATF rule pertains to privately owned firearms.

Watch all of Mark Smith’s presentation.  But before you get to that, remember that the founders toted long guns to school with them in order to hunt on the way to and from classes.  Those were either purchased from a smith (with no serialization) or self-made (of course, with no serialization).  The founders would have opposed such schema.

In 1 Samuel 13:19f, we read this.

Now no blacksmith could be found in all the land of Israel, because the Philistines said, “Otherwise the Hebrews will make swords or spears.” So all Israel went down to the Philistines, each to sharpen his plowshare, his mattock, his axe, and his hoe. The charge was two-thirds of a shekel for the plowshares, the mattocks, the forks, and the axes, and to fix the cattle goads.

This is considered by commentators to be a great evil.  Matthew Henry comments, “See how politic the Philistines were when they had power; they not only prevented the people of Israel from making weapons of war, but obliged them to depend upon their enemies, even for instruments of husbandry. How impolitic Saul was, who did not, in the beginning of his reign, set himself to redress this. Want of true sense always accompanies want of grace. Sins which appear to us very little, have dangerous consequences. Miserable is a guilty, defenceless nation; much more those who are destitute of the whole armour of God.”  In Jamieson, Fausset and Brown, we read this.  “Now there was no smith found throughout … Israel—The country was in the lowest state of depression and degradation. The Philistines, after the great victory over the sons of Eli, had become the virtual masters of the land. Their policy in disarming the natives has been often followed in the East. For repairing any serious damage to their agricultural implements, they had to apply to the neighboring forts.”  John Gill remarks “this they did to prevent their having arms, and the use of them, that they might not rebel against them, and fight with them, and overcome them; it was a piece of policy to keep them subject to them.”

Subjection of others is always the goal.  As I’ve observed before, the desire to control others is the signal pathology of the wicked.  Men who would become the almighty desire to steal the power and authority of the most high God to themselves, and the result is always tyranny.  Those rulers are always fake, a ghost of righteousness, a phantom, unreal, a vapor in the wind.  There is nothing righteous about tyrannical rulers, but the history of tyranny is dark.  In the twentieth century, some 212,000,000 souls were lost at the hands of tyrannical governments across the globe.

The firearms serialization schema is sinful, and points to deeper problems of the soul among those who call for such control over other men.  Control over other men never leads to righteous results.

Never compromise with this wickedness.  Oppose it at every turn.  Take names and hold grudges.

Prior: The American Tradition of Self Made Arms

This slipped past me and I didn’t post on it, but the ATF frame and receiver rule has been vacated by judge Reed O’Connor.  More specifically, this is the Vanderstok, et. al., v. Garland case.

This mostly affects folks like Blackhawk Manufacturing, Polymer80, and so forth, who manufactured the 80% lowers.  But it’s a win for the 2A.

Here is the decision.

I’m willing to bet that the ATF will not appeal the decision, but we’ll wait and see.

Via WoG, Idaho Dispatch.

The Independence Day parade is back in the city of Boise.

The parade was gone for a few years. This year, a new group has come together to host the event.

The information about the event can be found on the new website, Idaho 4th of July Parade from Boise (boise4th.com)

Participants have been preparing their floats and entries for the event, which is now just a few days away. Dated June 27, but sent out June 28, just 6 days ahead of the festivities, an email landed in their inboxes that caused some to pause.

The organizers of the parade have decided to add an addendum to the rules that were originally sent to entrants. The text of the addendum reads,

“Additionally, in consultation with local public safety officials, the parade organizers add the following parade entry requirement which all entries must follow:

No open carry of weapons or firearms will be permitted. The only exception to this is sworn law enforcement officers, uniformed military Honor Guard personnel or those participating in an authorized armed Color Guard.

This additional parade entry requirement ensures the focus on the parade’s intent to safely celebrate our Nation’s founding. The parade organizers greatly appreciate your adherence to this amended entry requirement.”

Greg Pruett of the Idaho Second Amendment Alliance responded to the addendum email sent to parade participants by saying,

“Just as we anticipated, the Supreme Court’s decision to undermine the right to keep and bear arms on public property in Idaho has already begun. Of all the days for the organizers of the parade to put restrictions on the second amendment, it has to be on “Independence Day.” These restrictions by private organizations on public property is only going to get worse. How long before Mayor McLean decides that all Boise city parks will be ran by a nonprofit organization who will then ban firearms throughout the city. It’s coming, unless the legislature acts and fixes the problem.”

Pruett is referencing the Idaho Supreme Court decision that came out just days ago. Idaho Dispatch reported on that here: Breaking: ISAA Loses in Idaho Supreme Court, Calls For Special Session of the Idaho Legislature – Idaho Dispatch

Maybe the Idaho supreme court should read state law too.  Idaho is a preemption state.  Cities, town, townships, etc., cannot be more restrictive than state law.

Really folks.  This is Idaho.  Idaho.

Let me address the Louisville case second in reverse order from the appearance of the videos.  The second video is about a man being told what to do and how he can behave on his own property.  Vermont is a communist state, in case you were unaware.

Now to the Louisville case.  The ban was ruled unconstitutional under state law, but that’s not what I wanted to observe here.  He goes to great lengths to expose this individual as an idiot for shooting warning shot into the air, and then again a second time, explaining that no one should ever do that and certainly no one who watches his channel.

Well, whatever.  I wasn’t there so I don’t know.  I would discourage random shooting into the air too, but would point out that a bullet will reach terminal velocity with no more increase after that.  I wonder what his viewers think happens when an object is thrown into the air?

Anyway, look at it from his perspective.  If he had been required to take a shot at a person to defend his life, he would have gotten a visit from the police, been handcuffed, spent some time in prison, and had to spend perhaps hundreds of thousands of dollars on a good defense attorney, and then still perhaps lost the case and spent the rest of his life in prison.  And no, being a member of USCCA doesn’t guarantee anything, even if you’re innocent.

As it is now, he is not in prison, no one was shot, no one is dead, and the court found in his favor over the charge of discharging a firearm within the city limits (preemption was the issue).

So who’s the idiot, again?

It would be nice if the justices saw Garland’s ploy for what it is, i.e., to amend the protocol in the NYSRPA v. Bruen case (analogue laws at the time of the founding as the only justification for a gun control law today).  Garland and the rest of the communists in NY, Illinois, Hawaii, Massachusetts, New Jersey and elsewhere utterly hate the Bruen decision. You see, they know the Bruen test should force them to lose the case, but they are going for the sympathy vote, and if they get it, the SCOTUS will have violated its on standard, thus modifying the Bruen protocol.

It would be nice if the SCOTUS didn’t just ignore the fact that Rahimi is a fairy bad actor and celebrate it as an example of constitutional protections for everyone, not just those whom the communists feel have good moral character.  That standard is malleable and will go to serve no one’s interests except for the communists.

But I doubt that all of the justices who voted in the affirmative for Bruen will find the same way in Rahimi.  I doubt that Roberts, Barrett and Cavanaugh will be on our side.

Mark Smith breaks the case down.

As you know the SCOTUS has granted certiorari to US versus Rahimi.  It’s interesting to see just how this debate is framed by the likes of Vox.

Last February, the far-right United States Court of Appeals for the Fifth Circuit held that a federal law prohibiting individuals from “possessing a firearm while under a domestic violence restraining order” is unconstitutional. On Friday, the Supreme Court announced that it will hear this case.

It is fairly likely that the justices will reverse the Fifth Circuit’s extraordinary decision — as many as six current members of the Court have signaled that, while some of them support an expansive reading of the Second Amendment right to bear arms, the Fifth Circuit’s decision in United States v. Rahimi goes too far. Justice Brett Kavanaugh has endorsed some prohibitions on gun possession by people who have not been convicted of a felony, including laws prohibiting people with serious mental illnesses from owning guns. Justice Amy Coney Barrett, meanwhile, wrote when she was still a lower court judge that “legislatures have the power to prohibit dangerous people from possessing guns.”

A more uncertain question is whether the Court will use the Rahimi case to impose some coherence on the incomprehensible approach to the Second Amendment that it announced just one year ago in New York State Rifle & Pistol Association v. Bruen (2022).

Bruen held that huge swaths of US gun laws must fall unless the government can prove that “the regulation is consistent with this Nation’s historical tradition of firearm regulation.” And it instructed judges to determine whether a particular challenged gun law is consistent with this tradition by searching for “historical analogies” in early American firearm regulations.

In practice, however, it is often impossible to draw precise analogies between today’s gun laws and those from two centuries ago, because both American society and firearms technology have changed so much since the Second Amendment was ratified.

[ … ]

Or consider, for that matter, the law at issue in Rahimi, which prohibits many individuals who are “subject to a court order” that restrains them from “harassing, stalking, or threatening an intimate partner” from possessing a gun. Notably, this law applies to individuals who have not yet been convicted of a crime, but who have had a court proceeding that determined they are a danger to their partner or their partner’s children.

The dummy who wrote this tripe for Vox has framed the question the wrong way.  I don’t know the likely outcome of the decision at the supreme court when they write it, but this isn’t the way it works.  Leaving aside the issue of whether this was a criminal or civil case (it was a civil case), there is the issue of how the retraining orders are typically issued.

They don’t decide the case before it’s tried.  That would violate due process rights.  So courts don’t simply restrain the offending party (whomever that is – that is yet to be determined because the case hasn’t been adjudicated).  Restraining orders are issued for both parties.  The fifth circuit spoke directly to that issue.

But “[t]hese judicial assessments have often led to the issuance of unmerited mutual restraining orders, namely in situations where one party is the abuser and the other party is a victim.” Id. (emphasis added). As a result, “both parties are restrained even if only one is an abuser.” Id. at 1055 (emphasis added). See also Elizabeth Topliffe, Why Civil Protection Orders Are Effective Remedies for Domestic Violence but Mutual Protective Orders Are Not, 67 Ind. L.J. 1039, 1055–56 (1992) (“[J]udges often issue a mutual protection order without any request from the respondent or his lawyer. . . . [J]udges and lawyers . . . may be tempted to resort to mutual protective orders frequently. However, when they do this in cases where there truly is one victim and one batterer, they ignore some of the real difficulties of mutual protection orders.”). See generally David Hirschel, Nat’l Criminal Justice Reference Serv., Domestic Violence Cases: What Research Shows About Arrest and Dual Arrest Rates (2008).

The net result of all this is profoundly perverse, because it means that § 922(g)(8) effectively disarms victims of domestic violence. What’s worse, victims of domestic violence may even be put in greater danger than before. Abusers may know or assume that their victims are law-abiding citizens who will comply with their legal obligation not to arm themselves in self-defense due to § 922(g)(8). Abusers might even remind their victims of the existence of § 922(g)(8) and the entry of a mutual protective order to taunt and subdue their victims. Meanwhile, the abusers are criminals who have already demonstrated that they have zero propensity to obey the dictates of criminal statutes. As a result, § 922(g)(8) effectively empowers and enables abusers by guaranteeing that their victims will be unable to fight back.

Perverse indeed.  But the controller who wrote this silly commentary doesn’t care about a victim’s right to fight back and duty to self defense because controllers hate people, themselves included.

So if the supreme court falls for this and curtails 2A rights, they’ve fallen victim themselves to the treacherous behavior of the thug AG for this administration.

FPC.

FORT WORTH, TX (June 30, 2023) – Today, Firearms Policy Coalition (FPC) and FPC Action Foundation (FPCAF) announced that a federal judge has granted summary judgment for the plaintiffs in VanDerStok v. Garland, vacating the ATF’s “frame or receiver” rule and preventing the federal government from enforcing it. The opinion can be viewed at FPCLegal.org.

“This case presents the question of whether the federal government may lawfully regulate partially manufactured firearm components, related firearm products, and other tools and materials in keeping with the Gun Control Act of 1968,” wrote Federal District Court Judge Reed O’Connor in his Order. “Because the Court concludes that the government cannot regulate those items without violating federal law, the Court holds that the government’s recently enacted Final Rule… is unlawful agency action taken in excess of the ATF’s statutory jurisdiction. On this basis, the Court vacates the Final Rule.”

“We’re thrilled to see the Court agree that ATF’s Frame or Receiver Rule exceeds the agency’s congressionally limited authority,” said Cody J. Wisniewski, FPCAF’s Senior Attorney for Constitutional Litigation and FPC’s counsel in this case. “With this decision, the Court has properly struck down ATF’s Rule and ensured that it cannot enforce that which it never had the authority to publish in the first place.”

“This is a monumental victory against the tyrannical ATF. Firearms Policy Coalition and FPC Law have argued that this rogue agency has unlawfully attacked gun owners in this latest round of ‘rulemaking’ and we are grateful to see the Court agree,” said Richard Thomson, FPC’s Vice President of Communications. “We will not stop, however, with this latest victory. FPC and FPC Law will continue to bring these cases to put a stop to the immoral and unconstitutional actions of the disarmament regime.”

Winning is fun!

First up is professor Smith, and then we go on to pistol braces in Texas.