Archive for the 'Second Amendment' Category

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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

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.

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Let’s face it: Many armed Americans are deathly — and irrationally — afraid of others. And so they have become a menace to the rest of us.

According to a 2021 Gallup Poll, as many as 88 percent of gun owners are apparently terrified of being harmed, since they say the guns are for self-defense.

His link is used to justify his assertion that gun owners are “apparently terrified of being harmed,” but the link doesn’t say anything of the sort.  The link is a rundown of how many weapons have been purchased for self defense.  He just inferred that last overly-emotional part.  Normally, good writers don’t do things like that.  I’d probably respond that gun owners are the least scared of all home owners, given that they have means of self defense.

Yet very, very few gun owners end up defending themselves and their families from the sort of random crime they fear. According to The Trace, fewer than 3 percent of gun owners ever use a weapon in self-defense, and apparently some of those involve misrepresentation of what actually happened in order to paint the shooter in a good light.

Of course, the media — especially, but certainly not only, the likes of Fox — have played a large role in convincing an element of our society that they are in constant mortal danger. It’s totally false, but if all you do all day is consume random horror stories, your grip on reality becomes distorted. That is one reason for the current insanity, and we in the media need to acknowledge that and fight against it.

And of course the GOP probably would not hold any significant power in this country if they did not psychologically terrorize their base.

That metric doesn’t include harm that didn’t obtain because of the very fact that the potential victim had a weapon.  But it doesn’t matter.  Would it make any difference if the value was in reality 0.00005%?  Does Mr. Russ Baker have health insurance?  If so, why?  Does he have life insurance?  If so, why?  Does he have fire insurance?  If so, why?

He’s got it all wrong on the GOP, whose hold on power in Washington, along with the democrats, constituting the uniparty, is the subject of loathing and hatred among most conservative voters who believe they are cowards and sellouts.  He imagines that conservatives are led by leaders who tell them what to think, sort of like collectivist voters.

Just to round out the most recent toll, we had a shooting in North Carolina. Some children were playing in the street when their basketball rolled into a man’s yard. When they tried to retrieve the ball, a 24-year-old man went into his house, got his gun and came out firing indiscriminately at various people, wounding some only slightly, but a father and his six-year-old daughter were seriously injured. The shooter ran away and is being sought. And two teenage cheerleaders were shot when one accidentally tried to open the door of the wrong car in a Texas parking lot.

With such horrific assaults, our entire society is endangered — as is our mental wellbeing.

The other day, I was speaking with a doctor — Black, as that seems to matter to gun owners, many of whom apparently have a statistically unrealistic fear of Black people coming to harm them — and she said to me, “I can’t believe that the only solution is to train our kids like they’re going to die — which causes anxiety and depression.” She mentioned the incalculable toll on upcoming generations, who are basically told to prepare for gun violence at any time.

The racial component is undeniable, although gun violence affects all races as both perpetrators and victims. In the Kansas City incident, the shooter was white, and the victim was Black. In upstate New York, both the shooter and the victims were white. In the Texas parking lot, the shooter was Hispanic, the victims, white. In North Carolina, the shooter was Black, the victims, white.

Meanwhile, one of our editors at WhoWhatWhy said he loves to swim but goes to the neighborhood pool with what he knows is a statistically irrational concern that it might be the next “cool” target. He wanted to write about the psychology of his fear of an unlikely event with catastrophic consequences, but is concerned that it might “inspire” someone to target a pool.

What?

That’s one oddball string of words.  The shooter in N.C. was black, shooting a white kid for retrieving a ball in his yard.  But this example leads into a yelling session how race matters mostly to white people, I think.  And then tells me that I should care about his doctor being black.  Why I should care about him or his doctor is quite beyond me.

I simply cannot parse the word salad well enough to offer intelligent commentary, especially on the last paragraph.  But I leave it to you to ask the question, “Was this writer drinking when he wrote this?”  This is some of the most stilted, horrible writing I’ve ever witnessed.

We all feel this mounting dread, yet the Republican Party keeps making it easier for people to buy deadly weaponry, and the Democratic Party and many gun reform advocates still propose only marginally ameliorative measures, like more effective registration and so forth.

How on earth is the republican party making it easier for people to buy deadly weaponry?  Tell me one thing they’ve done for the second amendment in the last forty years?  Is hearing protection like suppressors off the NFA?  Nope.  Have they been true to their calling and appointed only judges who honor the second amendment?  Nope.

I think what Mr. Baker probably should have meant is that the supreme court is increasingly siding with the founders in Heller, McDonald, Caetano and Bruen (I know, they waffled on a number of things, but they’re gradually coming around, and eventually we may rid ourselves of the “common use” test and replace it with outright respect for the 2A).  So Mr. Baker might have pointed the finger at the founders, knowing that the supreme court would strike down most or all of the gun control measures he wants to see passed.  Surely he isn’t stupid enough to believe that if Congress passes an AWB, it would stand when the supreme court hears it?  There are some 30 – 40 million ARs in use for lawful purposes.  Under Heller, if a firearm is in common use for lawful purposes, it cannot be banned.  Heller dealt with the keeping part of the RKBA, Bruen dealt with the bearing part of RKBA.  Full stop.  End of discussion.  I’d call 40 million common use.

Why is he looking to mankind as his savior anyway?  And the worst of the worst of the dregs of society at that, i.e., beltway politicians.  What sort of sad existence obtains in life when a man has to turn to other men as his savior?  What sort of dark clouds engulf a man who believes that a body of pit vipers, gargoyles and demons will save him?  From what does he need to be saved?  Has he given that question much thought?

If others won’t say it, I will: We do not need 400 million guns in our society — and there are very strong reasons to get rid of almost all of them. None will actually defend us against our military or other militaries. Guns in the hands of untrained, unvetted, potentially irresponsible users do much more harm than good. Period

[ … ]

Obviously, law enforcement, the US military, and members of those “well-regulated” militias would be exempted.

We could start with something like this: Civilians have three months to surrender (for generous buyback with full amnesty) every assault weapon (AR-15, AK-47, Kalashnikov, etc.) in their possession. After that, anyone convicted of possession receives a mandatory sentence of 20 years in federal prison.

So there you go.  Mr. Baker isn’t against guns.  He’s very much in favor of guns – just not in your hands.  He advocates that government have a monopoly on power.  But he ignores that in the twentieth century alone, mass shootings at the hands of the state have caused at least 170 millions deaths.  Or maybe he doesn’t really ignore it.  Maybe Mr. Baker is okay with mass deaths as long as it is all inflicted by agents of the state.  Perhaps he even prefers to see mass shootings as long as they are approved by the very people who stand to benefit from those shootings by the concentration of power in a single body of horrible people.

As to that little thing about “None will actually defend us against our military or other militaries,” that’s amusing.  Try telling that to the guys who fought and lost in Vietnam, Iraq and Afghanistan, the last example where goat herders ran the most powerful country on earth out of their land – not once, but twice, once with the Soviet Union and then with the U.S.

He isn’t interested in the second amendment because he doesn’t see the constitution as a covenant between men, with blessings for obedience and curses for breakage.

He may find out soon enough though.

I assume Mr. Baker will be among that crowd that confiscates all of those ARs and AKs?  Have you volunteered to lead the stack into the first house, Russ?  Or, like a coward, are you volunteering others to do this dirty work for you?

This decision by a federal district judge justifies a magazine capacity ban in D.C.  In it he plays word games, kicks the can down the road, ignores the very real issue of multi-man home invasions, ignores the very real involvement of the second amendment in the militia and amelioration of tyranny, misapplies Heller, and uses historical analogues that are too late to be useful (from the 1800s).

This federal district judge in Illinois seems not to like magazine capacity bans very much and himself makes arguments against them in the very case he is presiding.

Prediction: there will be split in the district courts, and in the appeals courts.  So-called “assault weapon” bans (which are simply bans against semiautomatic firearms) and magazine capacity bans will end up at the supreme court because of the splits.

UPDATE: Zelman Partisans observes the following.

Oddly, Contreras cites HELLER in making that point. I can’t find that argument in HELLER, which was largely about whether non- military weapons could be regulated, and how, but there is this.

It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large.

Rather the opposite of Contreras’ weasel-wording, eh?

Via Ken.  Yes.  As I said, the ruling plays word games.  I suspect those word games will come to an abrupt end at the supreme court.

Epoch Times.

Texas secretly gives its citizens’ incomes to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Documents show this has led to at least one person being monitored by the feds without a warrant through the federal gun background check system. The Texas Workforce Commission (TWC) told The Epoch Times that it has written contracts with ATF  for “sharing income information” for criminal investigations. The revelation may lead to oversight by the legislature.

Texas state Rep. Briscoe Cain, a Republican, is “deeply troubled” about this coordination with the state’s unemployment agency and federal government.

“My office will be looking into whether the Texas Workforce Commission is assisting the ATF in the Biden Administration’s mission to violate the constitutional rights of law-abiding Texans,” Cain told The Epoch Times after reviewing the emails obtained by Gun Owners of America (GOA) as part of its ongoing FOIA lawsuit.

This is the third part in an exclusive Epoch Times series on the ATF giving information on innocent suspects to the Federal Bureau of Investigation (FBI) for daily monitoring through the National Instant Criminal Background Check System (NICS). The FBI uses NICS as a database of people who are prohibited from possessing or buying guns.

In one of the documents, an ATF agent emailed the FBI that a person suspected of straw purchasing or firearms trafficking needed to be put into the gun background check database. The agent wrote that “per TWC,” the man’s “reported wage earnings with the State of Texas do not appear to supply the financial means to afford the firearms purchased.”

Isn’t that nice?  The FedGov is making decisions on what you have the money to purchase based on income level.  Here is the kicker.

A spokeswoman for TWC said in a statement: “Federal and State law provides a path for sharing income information with a federal governmental agency if the federal agency can establish a purpose that is permissible under law and enters into a written agreement which sets forth legal requirements regarding allowable use and protection of the information.” She also said a warrant to release salary information is not required by law.

They’ve been caught and they’re proud of their cooperation with the FedGov.  Proud of it.

The road to disempowering the FedGov starts right there in your own city, county and state.  I don’t want to hear another word about how big Texas is, how they are a 2A sanctuary, and how they respect gun rights, until they clean house and get rid of the controllers in their own midst.  Next up should be passing state laws against this sort of thing, with heavy penalties for violation (such as prison time).

Oh, and where is the governor in this?  Someone near him should ask him if he supports the actions of his employees in cooperating with unconstitutional infringements of the second amendment.

Source.

LINCOLN, Neb. (KLKN) – Nebraska’s permitless concealed carry bill will be heading to Gov. Jim Pillen’s desk.

On Wednesday, state senators voted 33-14 to pass Legislative Bill 77, which would allow Nebraskans to carry a concealed handgun without a permit.

State Sen. Tom Brewer, who introduced the bill, says the measure guarantees the right to bear arms in Nebraska.

“What we do in this body sometimes is trying to follow through with the will of the people and give them the rights that they have in the Constitution,” Brewer said. “And sometimes we go out of the way and twist those rights and keep people from having them, and I think (the concealed carry permit) is a case of that.”

In previous legislative sessions, Brewer has made the bill a top priority.

Early on in the final reading, State Sen. Jane Raybould filed a motion to place the measure back into the Judiciary Committee.  That motion failed 5-40.

“This bill is not ready for us to pass or approve,” she said. “There is way too much at stake.”

Opponents of the bill, including Lincoln Police Chief Teresa Ewins, have said the proposed law could put lives at risk.

“You have heard from law enforcement and the chiefs of police on how insistent they are to keep concealed carry permits in place for the protection of their officers and communities, and how important it is to kill this bill,” Raybould said.

Lincoln Police released a statement after the vote:

“The chief is disappointed in the legislature’s decision because the most important factor in making these decisions should be public safety and the men and women who serve our community.”

Of course the police are against it.  Blood will run in the streets.  Except it never happens.  Someone ought to tell these idiots to put up or shut up, proving that blood will run in the streets based on other constitutional carry states.  And notice that she puts the alleged safety of officers above constitutionally guaranteed rights.  Of course she does.

Nebraska is already an open carry state, so they did this the right way.  Florida is too scared of falling support for tourism to let that one go.  The “only ones” are the only ones who can carry openly.

Source.

“A big problem with gun owners is they say, ‘Well, you know, what these people wanna do sounds reasonable, but it’s a slippery slope. How do I know what will be limited?’ And I argue that we outta just put it all up for referendums, let people vote on it,” Clinton said, citing some of the pro-choice successes seen in Michigan and elsewhere after the Supreme Court’s overturning of Roe v. Wade. “Then neighbors have to talk to neighbors, they have to treat each other like people.”

Says the man who left a trail of bodies a mile long on his way to the largest drug dealer in Arkansas, and in the end the presidency.

So here is the interpretation of the words of the master manipulator.  Let’s get boobs to do our bidding for us.  I can manipulate them into doing virtually anything.  After they’ve forced weapons out of the hands of the troublemakers, then we won’t have to manipulate people any more.  We can just force them to do what we want – after all, we’ll be the only ones with the guns.

No thanks.  Try again.  That doesn’t work for me because it doesn’t work for God.  I follow Him, not flim-flam artists like you.

Tenth Amendment Center.

RALEIGH, N.C. (April 10, 2023) – A bill introduced in the North Carolina House would prohibit financial institutions operating in the state from using a credit card merchant code to track the purchases of firearms and ammunition.

Rep. Reece Pyrtle (R) and 19 Republican cosponsors introduced House Bill 564 (H564) on April 4. The proposed law would ban financial institutions from using a firearms code in connection with a payment card transaction involving a firearm retailer in North Carolina.

The bill would also prohibit a financial institution from knowingly maintaining a record of individuals residing in this State who own firearms.

NC wouldn’t be the first state to do this.  This is a good move, and I suspect being outlawed from operation in various states, or at least sending the state AG to court against you for violation of state laws, is a real bummer for the progressive banks and a wet blanket on their plans.

Of course, goober Roy Cooper will veto the bill, and the House and Senate will have to override the veto to make this law just like they did with ridding us of the ridiculous CLEO handgun permitting and taxation scheme.

Goober Cooper can’t go away fast enough.  I hope NC voters are embarrassed at having elected that idiot to office, along with his wife (who famously flipped a bird at a school child).  Both of them are obscene, low class people.

Tench Coxe, delegate to the continental congress.

The power of the sword, say the minority…, is in the hands of Congress. My friends and countrymen, it is not so, for the powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans.

Notice that whatever the minority was saying, whether it be that the right of military weaponry was limited to the state, or that the continental congress should be in control of the militia, or whatever else, they were in the minority.  The minority.

This is the context when the second amendment was ratified.  End of discussion.  This allows for no control over weaponry owned and used by the common man because common men are the soldiers, using every terrible implement in order to ameliorate tyranny.

He should know.  He was there.  21st century progressives were not.