Archive for the 'Second Amendment' Category

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.

Professor Smith breaks this down for us.  It’s a lengthy but very good review.

Here is his recently published paper.  If you don’t want to read it and want the dime summary, here is his discussion.  BLUF: Semiautomatic firearms, including Ar-15s, cannot be banned under the constitution.

Source.

A 22-year old man from Becker, Minn., is facing two felonies for possessing privately made firearms lacking serial numbers in a case his mother called a gross abuse of Minnesota law.

Sara Forgues, the mother of Matthew “Walker” Anderson, spoke with Alpha News regarding her son’s distressing legal battle. The case has concerning implications for gun owners across Minnesota, she said.

According to Forgues, in May 2022, Anderson and a friend were target shooting on private property in Sherburne County. The incident prompted a complaint from a neighbor, leading to the intervention of local sheriff’s deputies.

The neighbor alleged that a bullet had struck his house, but Forgues said no evidence was found to support this claim.

The charging documents provide few details about the incident, saying that the neighbor “heard glass shatter” on the lower level of his home. Discovering a broken sliding glass door, “he believed [to be] from a gunshot,” the neighbor called the police.

Anderson fully cooperated with the deputy who arrived to inspect the shooting range. He and his friend agreed to show the deputy their firearms, which included Anderson’s privately made firearms that did not have serial numbers.

He was then detained for several hours and the firearms were confiscated. Anderson was told by the deputies that he would be charged with two felonies for possessing firearms without serial numbers.

Forgues explained that after they looked into the statute the deputies cited, they believed the charges would be dropped. The statute outlines felony charges for removing a serial number from a firearm or possessing a “firearm that is not identified by a serial number.”

However, Anderson’s attorney notes in legal filings that the federal law referenced in the state statute does not consider his privately made firearms to be firearms that require a serial number.

“Under the plain meaning of the statute, the rifles made and possessed by Anderson were not ‘firearms’ as contemplated in [the federal law] and thus no serial number was required,” his attorney said in court documents. “Federal law does not require serial numbers to be placed on personally manufactured firearms created for private use.”

Additionally, if state law actually does ban Anderson’s privately made firearms with no serial numbers, then it should be ruled unconstitutional, his attorney argued.

“Commercially manufactured or imported firearms were not required to have serial numbers until 1968 and personally manufactured firearms still do not require a serial number under federal law. There is no historical tradition or authority to ban possession of rifles and shotguns that are in common use and circulation that are suitable for civilian purposes and target shooting simply for not having a number engraved on the metal,” he said.

Rob Doar, senior vice president of government affairs with the Minnesota Gun Owners Caucus, said the legal issues are nuanced, but “essentially the prosecutor is taking a bad reading of poorly drafted legislation.”

“In a nutshell, 609.667 prohibits the possession of firearms that do not have a serial number. It defines a serial number by referencing federal law, the National Firearms Act,” Doar told Alpha News. “The clear intent of the statute is to prohibit possession of unserialized firearms that fall within the National Firearms Act regulations, for example, automatic weapons and short barrel rifles. Because these weapons are required to be registered at the federal level, they must possess a serial number. The federal government does not prohibit the manufacture of firearms for personal use, and creates zero requirements for serializing personally manufactured firearms.

“It cannot possibly be construed to extend beyond those types of firearms, because before 1968 firearms were not required to even have serial numbers, but there’s been no question that those are still legal to own today. In fact, the Minnesota DNR auctions off serial-less firearms every year,” he added.

Well, Minnesota.  Is anyone surprised?

The prosecutor is taking a bad reading of poorly drafted legislation.  You think?

Basically, the prosecutor is a bad and unscrupulous lawyer (but I repeat myself) and is using a clearly unconstitutional law to score political points at the expense of an innocent man.  We’ve seen this before (case in point, Kyle Rittenhouse).  There are many other thousands of such cases.

But via reddit/Firearms, consider this wise decision by Judge Joseph Goodwin, U.S. District Judge in WV.

Assume, for example, that a law-abiding citizen purchases a firearm from a sporting goods store. At the time of the sale, that firearm complies with the commercial regulation that it bear a serial number. The law-abiding citizen takes the firearm home and removes the serial number. He has no ill intent and never takes any otherwise unlawful action with the firearm. Contrary to the Government’s argument that Section 922(k) does not amount to an “infringement” on the law-abiding citizen’s Second Amendment right, the practical application is that while the law-abiding citizen’s possession of the firearm was originally legal, it became illegal only because the serial number was removed. He could be prosecuted federally for his possession of it. That is the definition of an infringement on one’s right to possess a firearm.

The case against the innocent man from Minnesota will be dropped, or it will be appealed through the channels and eventually overturned, with the inferior courts spanked at some point in the process.

The prosecutor is advised to forget all about this and apologize for the trouble he caused.

On the larger issue of serial numbers, you’re aware why they case so much, yes?  You can’t have universal background checks without serial numbers.  The controllers are nothing is not and relentless good tacticians.

We have to be just as good and relentless.

Prior: The American Tradition of Self-Made Arms

Joseph Greenlee.

Since the earliest colonial days, Americans have been busily manufacturing and repairing arms. In the colonies, the ability to defend one’s home and community, hunt, fight wars, and ultimately win American independence depended largely on the ability to produce arms. For the newly independent nation, arms production was critical to repel invasions and insurrections, and eventually, to western expansion. The skill was always valued and in demand, and many Americans made their own arms rather than depend on others. Americans continued producing their own arms in the nineteenth and twentieth centuries, leading to some of the greatest technological breakthroughs in the history of firearms and ammunition. The freedom to build personal arms enabled innovations that allowed Americans to better defend themselves and their country than ever before. Meanwhile, restrictions on self-made arms have been rare throughout American history. All restrictions on arms built for personal use have emerged within the last decade, and from only a few states. While still uncommon, legislatures are increasingly targeting homemade arms due to the growing popularity of unfinished receivers and 3D-printed firearms.

[ … ]

Heller established several principles that support the right to build arms for personal use. First, under Heller, any analysis must start with the Second Amendment’s text, which protects the right to keep and bear arms and provides no reason to believe that people must buy the arms they wish to keep and bear. Second, Heller held that the Second Amendment protects the types of weapons that are commonly possessed for lawful purposes, regardless of how those arms are acquired. Third, Heller suggested, as lower courts have recognized, that the Second Amendment also protects the right to acquire arms, which includes building them personally. Fourth, history and tradition—which is used to inform the Amendment’s text under Heller—reveals that Americans have long enjoyed and depended on the unregulated right to build arms since the colonial days. In sum, the right to build arms for personal use is a right protected by the Second Amendment.

There’s a lot between the introduction and the conclusion statements and you’re welcome to read it at your leisure.  The founders would be appalled at the notion that the federal government has the right to regulate the making of arms.  They fought and some perished for the sake of living as free men, and that included the right to lack of interference in things that occupied them daily.

They would be even more appalled at the notion that unaccountable bureaucracies would have the authority to regulate such matters.  They said something about that, yes?  “He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.”

They only have that authority based on police powers, the power of confiscation, and the power of taxation, also all things the founder opposed for the federal authority, and things they do not because they have that right, but because no one has stopped them.

That’s the title at Slate, because Mark Joseph Stern thinks he has found out that progressive judges have finally found a use for the NYSRPA v. Bruen decision.  After a silly and emotional (and factually incorrect) diatribe against the Bruen decision, he says this.

What’s a progressive judge to do? Public defenders have already offered an answer: employ the Second Amendment in furtherance of progressive constitutional values like equal protection and the rights of criminal defendants. Because so many high-profile gun cases are manufactured by conservative activists—including this one—it’s easy to forget who’s really on the front lines of the Second Amendment revolution: criminal defense attorneys representing indigent clients charged with firearm offenses. (It’s telling that one Biden appointee who joined the majority in Range, Arianna Freeman, spent her entire legal career as a federal public defender.) Public defenders have a Sixth Amendment obligation to provide their clients with a zealous defense, which increasingly includes constitutional challenges to gun restrictions.

That’s why New York City’s public defenders filed a brief in Bruen urging the Supreme Court to strike down nearly all limitations on public carry. And it’s why the 3^rd Circuit’s top public defenders—Freeman’s former colleagues—filed a similar brief in Range attacking the federal felon-in-possession ban. The Supreme Court’s Second Amendment decisions all envision “law-abiding, responsible citizens” who seek to protect themselves and their families from violence. But in the real world, the people who have the most to gain from these rulings are criminal defendants facing down years or decades in prison. Recent decisions establishing a right to scratch out a gun’s serial number and purchase a firearm while under indictment or restraining order all arose out of criminal prosecutions, not NRA-backed test cases.

Like a growing number of public defenders, liberal judges like Freeman, Ambro, Greenaway, and Montgomery-Reeves may think that the Second Amendment can be repurposed as a weapon against over-policing and mass incarceration. If upheld by the Supreme Court, Range will certainly be a boon to the criminal defense bar, as well as a source of immense confusion for prosecutors. The majority’s standard is extraordinarily vague: It acknowledges that some people may be disarmed for committing a felony, but a person “like Range” could not. How can judges tell when someone falls on Range’s side of the line? The majority didn’t say. In 2019, then-Judge Amy Coney Barrett took a stab at a clearer standard, asserting that only “dangerous” and “violent felons” may be disarmed. But which crimes count as “violent”? Is selling or using cocaine “violent”? How about possessing child pornography? Drunk driving? Burglary? Harassment? In a 2015 decision, the Supreme Court found it impossible to give the term “violent felony” a “principled and objective” standard. Why should courts have any more luck today?

This uncertainty would force prosecutors to think twice before bringing felon-in-possession charges, asking first whether they could persuade a court that the defendant is sufficiently “dangerous” or “violent” or “non-law-abiding” to justify disarmament. And from a criminal justice reform perspective, that’s not necessarily a bad thing. Plenty of left-leaning commentators have argued that the felon-in-possession ban is disproportionately enforced against people of color, contributing to mass incarceration and persecution of minority communities. For many progressives, these problems raise concerns about equal protection, unlawful policing, and unconstitutional sentences. But this Supreme Court doesn’t see them that way; it cares far more about gun rights than traditional civil rights, such as basic civic equality of Black Americans. So progressive judges may instead seek to use the Second Amendment as a stand-in for constitutional principles that SCOTUS has abandoned.

That’s a lot to unpack and I haven’t the time to fisk it all.  He makes many mistakes, including the assumption that the NRA is a gun rights organization.  As we’ve pointed out many times before, they were in favor of NFA, GCA, the completely unconstitutional Hughes Amendment, the original AWB, the bump stock ban, red flag laws, and a host of other liberty-infringing laws and regulations.  The sooner we can move the NRA out of the way, the sooner we can begin to restore our liberties.  Because pols turn to them for views and approval, they are like a ball and chain attached to us.

Other false assumptions might be that advocates of liberty would somehow be opposed to a turnaround in mass incarceration and over-policing.  Look no further than this web site for advocacy of this recent third circuit ruling, including your truly and all of the commenters.  And even a cursory look at our police category proves that we are against over-policing.  The writer is confusing lovers of liberty with the advocacy of modern incarnation and reflexive “conservative” cop-advocacy.  Here, think Bill Barr, who defended Lon Horiuchi.

His is a very dated view.  He lumps us in with folks who think nothing like us.  I don’t believe in incarceration as it is currently conceived anyway, i.e., as effectual for redemptive and rehabilitative purposes.  Put simply, I don’t believe in imprisonment.  Per the Biblical paradigm, I believe in slavery to pay debts, and capital punishment for capital crimes such as rape, kidnapping and murder.  There is absolutely no good reason, and by the way, no Biblical justification, for charging a man with the carry of a weapon if he commits some other crime, regardless of whether he had approval from a state permitting schema.  Charge him for the crime he committed, not ownership of weapons.  If you wonder what modern gun owners think about this view, look to the guys at Reddit/Firearms, who completely support this decision as do we.  Gun control laws are infringements – full stop.

But that’s not the end of the conversation, you see.  Because if by over-policing the writer at Slate means the arrest of the Antifa protesters in Portland, Seattle, Charlotte, Atlanta, and elsewhere, we disagree with him.  More to the point, liberty means the right to defend yourself and your loved ones.  It means the right to shoot people who endanger your life and the lives of your loved ones.  As I have told my wide when she had to drive in Charlotte several years ago when this was all going down, if you’re on John Belk Freeway (I-277) and Antifa protesters block the way and start beating on cars (like they did at least once), run them over, and kill them if you must.

That road is like a moat.  It’s walled on both sides for miles, and the only opportunity for egress to protect your life is finding one of the few exits and getting out of the city.  Liberty doesn’t mean allowing communists agitators to rape you, kidnap you, steal from you or damage your property, or take your life.  It means defending against all of that, including with weapons of your choice.

Mr. Stern is a controller and finds it so remarkable that mass incarceration might suffer a blow from this decision that it’s worth an article.  Join the club, Mark, albeit a bit late.  I don’t believe men should go to prison for ownership of weapons either.  We don’t like the controllers any more than you do.  But be careful what you wish for.  When I say we don’t like the controllers, that also means we don’t like their agitators and instigators and believe we have rights against their methods and intentions – without interference from the controllers.

It’s fascinating to me that this country is finally figuring out what the second amendment is all about.

Decision.

The material facts are undisputed. In 1995, Range pleaded guilty in the Court of Common Pleas of Lancaster County to one count of making a false statement to obtain food stamps in violation of Pennsylvania law. See 62 Pa. Stat. Ann. § 481(a). In those days, Range was earning between $9.00 and $9.50 an hour as he and his wife struggled to raise three young children on $300 per week. Range’s wife prepared an application for food stamps that understated Range’s income, which she and Range signed. Though he did not recall reviewing the application, Range accepted full responsibility for the misrepresentation. Range was sentenced to three years’ probation, which he completed without incident. He also paid $2,458 in restitution, $288.29 in costs, and a $100 fine. Other than his 1995 conviction, Range’s criminal history is limited to minor traffic and parking infractions and a summary offense for fishing without a license. When Range pleaded guilty in 1995, his conviction was classified as a Pennsylvania misdemeanor punishable by up to five years’ imprisonment. That conviction precludes Range from possessing a firearm because federal law generally makes it “unlawful for any person . . . who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year” to “possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(1).

[ … ]

… the phrase “law-abiding, responsible citizens” is as expansive as it is vague. Who are “law-abiding” citizens in this context? Does it exclude those who have committed summary offenses or petty misdemeanors, which typically result in a ticket and a small fine? No. We are confident that the Supreme Court’s references to “law-abiding, responsible citizens” do not mean that every American who gets a traffic ticket is no longer among “the people” protected by the Second Amendment. Perhaps, then, the category refers only to those who commit “real crimes” like felonies or felony-equivalents? At English common law, felonies were so serious they were punishable by estate forfeiture and even death. 4 William Blackstone, Commentaries on the Laws of England 54 (1769). But today, felonies include a wide swath of crimes, some of which seem minor.5 And some misdemeanors seem serious.6 As the Supreme Court noted recently: “a felon is not always more dangerous than a misdemeanant.” Lange v. California, 141 S. Ct. 2011, 2020 (2021) (cleaned up). As for the modifier “responsible,” it serves only to undermine the Government’s argument because it renders the category hopelessly vague. In our Republic of over 330 million people, Americans have widely divergent ideas about what is required for one to be considered a “responsible” citizen. At root, the Government’s claim that only “law-abiding, responsible citizens” are protected by the Second Amendment devolves authority to legislators to decide whom to exclude from “the people.” We reject that approach because such “extreme deference gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label.” Folajtar, 980 F.3d at 912 (Bibas, J., dissenting). And that deference would contravene Heller’s reasoning that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” 554 U.S. at 636; see also Bruen, 142 S. Ct. at 2131 (warning against “judicial deference to legislative interest balancing”). In sum, we reject the Government’s contention that only “law-abiding, responsible citizens” are counted among “the people” protected by the Second Amendment. Heller and its progeny lead us to conclude that Bryan Range remains among “the people” despite his 1995 false statement conviction.

That he made a false statement in order to obtain food stamps is an absurd reason to effect a prohibition on firearms ownership. We in America suffer from death by a thousand cuts.  It was reversed like it should have been by the Third Circuit.