Archive for the 'Second Amendment' Category

On Saturday evening my wife and I dined at a restaurant where a number of very old firearms were behind glass on the wall, from muskets to pistols of all sorts, including what I knew to be a “Sunday Gun.”  I joked to a fellow who happened to be in line behind me that the ATF wouldn’t like this gun.  He laughed and replied, “Yea, they would need to take that folding stock off of it to make them happy.”

The NFA was promulgated with pretentions of a so-called “war on crime.”  We’ve had a war on crime, a war on poverty, and a war on guns, and today we’re recapitulating the war on crime schtick.  Everyone wants to fight a war, or at least use war as an excuse to do what they otherwise may not get approval to do.

One must remember the nexus of hunting and conservation in the minds of the men who voted for the NFA, or at least recall how powerful the hunting and conservation lobby was even one hundred years ago.

William Hornaday, Director of NY Zoological Park, was the first to use the term “wildlife.”  His ideas were very influential, but also dovetailed with the ideas in vogue in the “gentleman hunt clubs” in America.  Read here, the more well-to-do as opposed to the “poors.”

In his seminal (but badly wrong as history shows) piece entitled Our Vanishing Wild Life – its Extermination and Preservation, he makes a number of bold assertions, and apparently had the support of a number of very influential hunting clubs.  These quotes would be anathema today – no one with any sense would go on record saying things like this.  So this is unadulterated and unvarnished history at its finest.

The “Sunday Gun.” —A new weapon of peculiar form and great deadliness to song birds, has recently come into use. Because of the manner of its use, it is known as the “Sunday gun.” It is specially adapted to concealment on the person. A man could go through a reception with one of these deadly weapons absolutely concealed under his dress coat! It is a weapon with two barrels, rifle and shot; and it enables the user to kill anything from a humming-bird up to a deer. What the shot-barrel can not kill, the rifle will. It is not a gun that any sportsman would own, save as a curiosity, or for target use.

The State Ornithologist of Massachusetts, Mr. E.H. Forbush, informs me that already the “Sunday gun” has become a scourge to the bird life of that state. Thousands of them are used by men and boys who live in cities and towns, and are able to get into the country only on Sundays. They conceal them under their coats, on Sunday mornings, go out into the country, and spend the day in shooting small birds and mammals. The dead birds are concealed in various pockets, the Sunday gun goes under the coat, and at nightfall the guerrilla rides back to the city with an innocent smile on his face, as if he had spent a day in harmless enjoyment of the beauties of nature.

The “Sunday gun” is on sale everywhere, and it is said to be in use both by American and Italian killers of song-birds. It weighs only two pounds, eight ounces, and its cost is so trifling that any guerrilla who wishes one can easily find the money for its purchase. There are in the United States at least a million men and boys quite mean enough to use this weapon on song-birds, swallows, woodpeckers, nuthatches, rabbits and squirrels, and like other criminals, hide both weapon and loot in their clothing. So long as this gun is in circulation, no small bird is safe, at any season, near any city or town.

Now, what are the People going to do about it?

Guns are cheap.  Guns are effective.  Those poors, including those awful Italians, will kill every last songbird among us.  Those who would do that are mean.  No bird is safe from these guerrillas.

Elsewhere he says this.

With the killing of robins, larks, blackbirds and cedar birds for food, the case is quite different. No white man calling himself a sportsman ever indulges in such low pastimes as the killing of such birds for food. That burden of disgrace rests upon the negroes and poor whites of the South; but at the same time, it is a shame that respectable white men sitting in state legislatures should deliberately enact laws permitting such disgraceful practices, or permit such disgraceful and ungentlemanly laws to remain in force!

Depression era poverty and starvation not withstanding, white men everywhere should be appalled at the idea that the poors are killing birds for food.  No self-respecting person would do that, at least, no one who calls himself a sportsman.

Elsewhere, this prediction shows the utter stupidity of most of the document.

At this date deer hunting is not permitted at any time in Indiana, Illinois, Iowa, Nebraska and Kansas,—where there are no wild deer; nor in Rhode Island, Connecticut, Delaware, Tennessee or Kentucky. The long close seasons in Massachusetts, Connecticut and southern New York have caused a great migration of deer into those once-depopulated regions,—in fact, right down to tide-water.

Today, trophy bucks are routinely hunted in many of those states, because modern game management techniques managed by the states (not the federal government) are smarter than the author of this ridiculous screed.

Finally, he doesn’t like semiautomatic firearms of any sort and recommends their outlaw.

The sole and dominant thought of many gunmakers is to make the very deadliest guns that human skill can invent, sell them as fast as possible, and declare dividends on their stock. The Remington, Winchester, Marlin, Stevens and Union Companies are engaged in a mad race to see who can turn out the deadliest guns, and the most of them. On the market to-day there are five pump-guns, that fire six shots each, in about six seconds, without removal from the shoulder, by the quick sliding of a sleeve under the barrel, that ejects the empty shell and inserts a loaded one. There are two automatics that fire five shots each in five seconds or less, by five pulls on the trigger! The autoloading gun is reloaded and cocked again wholly by its own recoil. Now, if these are not machine guns, what are they?

His “model law” includes these words.

It shall be unlawful to use in hunting or shooting birds or animals of any kind, any automatic or repeating shot gun or pump gun, or any shot-gun holding more than two cartridges at one time, or that may be fired more than twice without removal from the shoulder for reloading.

Ah, the venerable over-under, still a very nice option for bird hunting, but in his world, the only permitted weapon for such pastimes.

You get the main points being made here.  The NFA and GCA didn’t outlaw machine guns, they just capped the number in circulation and ran their price up to where only the monied can purchase them.  You see, the poors don’t deserve them, any more than they deserve to feed their families by shooting the “songbirds.”  Men of good name and admirable and fine upbringing don’t do things like that in the hunting clubs.

This sort of rejection of modern firearms has carried through until recently with the likes of Jim Zumbo and David Petzal, who wanted to outlaw the use of the AR platform for hunting.  Never mind that in some cases it’s the best option (hogs are resilient animals and need more than a single shot to bring them down if you want to save meat).

So, while powerful men still want you to believe that they are in a war on crime, there are undercurrents which have been with us a long time concerning money, power and connections, that have guided decisions in this area of law.

Source.

EVANSVILLE, Ind. (WFIE) – In the state of Indiana, gun owners no longer need any sort of permit to carry a handgun while in public spaces. For less than a year, this has been the case after the state removed the requirement for handgun permits, and some in law enforcement aren’t happy about the change.

Before the Indiana state legislature officially removed the requirement for handgun permits, many in law enforcement weren’t convinced.

“I, along with most of my other law enforcement colleagues, were very apprehensive about this,” said Vanderburgh County Sheriff Noah Robinson.

Before the change, a gun owner looking to have a gun in public had to go to their local sheriff’s office or police department for the application and eventually, the Indiana State Police would say either yes or no.

Sheriff Robinson says this gave law enforcement valuable information. Without it, it raises more questions as they try to determine if a suspicious person with a gun is allowed to have it.

“Before, that determination was made in a quiet office over a period of weeks where someone would investigate your background and make that determination,” said Robinson. “We now have to do that on the side of the road. It’s not practical.”

The law doesn’t allow violent felons to have handguns in public, but that doesn’t always apply to those with patterns of violent behavior or mental instability who wouldn’t have been approved for a handgun permit.

“I think it decreases public safety, I think it decreases officer safety, and time will tell whether that’s borne out or not,” said Robinson.

Sheriff Robinson says permits were also valuable when they found people doing things they shouldn’t and they found a gun on them. When other charges didn’t apply, having the gun meant they could arrest the person and take and gun away.

It was also an additional source of information for them when approaching people.

“To have had the information and had that taken away from us is frustrating, because it took a system that wasn’t broken and broke it,” said Robinson.

Or perhaps this made an unconstitutional system finally constitutional.  Everything depends on perspective, yes?

This is a remarkable set of admissions from a CLEO.  They want decisions about your God-given rights to be made in a quiet room with no one watching over their shoulder and no recourse for faulty decisions that infringe on your rights.  He said so.

Also, note the use he sees in the permitting scheme.  For conditions where “other charges didn’t apply,” he could always get his man with a weapons charge.  But what does this mean – other charges didn’t apply?  It means, I take it, that the alleged perpetrator wasn’t really guilty of the crime for which he had been accused.  The LEOs are thus the judiciary in this circumstance.  He’s really guilty of doing something we don’t want, but we can’t prove it beyond as reasonable doubt.  But we can surely prove he was carrying a weapon, so there, perp.  Take that.

As for whether someone is carrying a weapon, his officers should always assume that is the case.  It’s the case with permitted carriers, and it’s the case with criminals who never obeyed the law anyway.  So what’s changed?

Nothing.  And he can’t point to blood running in the streets because of permitless carry because it hasn’t happened.

The sky is falling.  But not really.

Source.

Under the majority’s rule, the defendant wins by default whenever the government fails to prove that a statute unambiguously criminalizes the defendant’s conduct.

Um, yes.  And so what’s wrong with this?  Why wouldn’t any grammar school child come to the same conclusion?  A fortiori, why wouldn’t any educated lawyer come to the same conclusion?

Why would this only have to come from the majority’s rule?  Why isn’t it prima facie obvious to anyone with two brain cells?

It’s effective immediately.  Folks like Rock River Arms and Springfield Armory who ensconce in Illinois now cannot even sell to customers in their own home state.  It’s too bad they didn’t ride the “Gun Valley Moves South” train when it left the station.  I know the gun community.  Some will be reluctant to buy from a manufacturer who cannot even sell their products to folks in their own state.  By the way, Colorado is effectively doing the same thing.

The list of guns citizen in Illinois cannot have is long.  Very long.  You cannot even own tactical shotguns under the new law as best as I read it (I did note that they didn’t specifically mention the Beretta 1301, although I’ll also mention that the new law “strengthens the assault weapons ban by also allowing Illinois State Police to update the list as needed,” Welch said”).  So the ban includes whatever the cops want it to include.

Also, they are preempting the SCOTUS decision on Terry Stops: “If police stop a car driven by a semiautomatic gun owner, they can instantly check to ensure its legally owned.”  What sense this makes one can only guess – if a gun owner has registered the weapon why wouldn’t it be assumed that it’s a “legally owned weapon?”

Also, it’s back to the way it was before Bruen – you cannot have that gun with you (you know, the only ones left not on the list) when you leave home.  You cannot carry it on your person.  So, it’s all the rage now for the communist states to pretend that Bruen doesn’t exist and that the supreme court never spoke to the matter.

I have supreme confidence that this law will be adjudicated, and I expect this law to be struck down, but I’m not sure how long it will be before that happens.  In the mean time, they want citizens to register their guns if they are “grandfathered in.”  Some Sheriffs have said they will not comply, dozens and dozens, somewhere around 70 at last count.

But what does this mean?  Here is one clue.

But that’s not good enough.  Merely refusing to assist the state police isn’t doing anyone any good.  For this to have teeth the Sheriffs would need to ensure that not only were they constitutional Sheriffs, but their deputies were constitutional deputies as well, and that the city and township PDs agreed with this stance.  Those are the preconditions for success.

That would all lead to the next necessary step, which would be a threat to arrest any state police who came into their counties to enforce the new law, and the stomach to follow through with it.  Finally, if those counties have militia to whom the Sheriff could go for assistance, that may prove to be necessary as well.

Do any of the Sheriffs have the stomach for this?  I seriously doubt it.  I’ve said before, nullification laws or threats are dangerous for the citizens if they aren’t serious and don’t carry both the threat and reality of force behind them.  If they are weighty and enforced, they serve as a check on centralized power and authority to infringe on God-given rights.

Illinois is just at the beginning of this whole affair.  Chicago has decided the way it will be for everyone else in their state.  Whether the balance of the state lets it stand will be up to them.

Seen here.

Plaintiffs have demonstrated a probability of success on the merits of their Second Amendment challenge to the relevant provisions of Chapter 131 Section 7(a), which criminalizes carrying handguns in certain “sensitive places,” subparts 12 (public libraries or museums), 15 (bars, restaurants, and where alcohol is served), 17 (entertainment facilities), and 24 (private property), as well as section 7(b)’s ban on functional firearms in vehicles. The State may regulate conduct squarely protected by the Second Amendment only if supported by a historical tradition of firearm regulation. Here, Plaintiffs have shown that Defendants will not be able to demonstrate a history of firearm regulation to support any of the challenged provisions. The deprivation of Plaintiffs’ Second Amendment rights, as the holders of valid permits from the State to conceal carry handguns, constitutes irreparable injury, and neither the State nor the public has an interest in enforcing unconstitutional laws. Accordingly, good cause exists, and the Court will grant the motion for temporary restraints. An accompanying order of today’s date shall issue.

The effects of Bruen continue to be felt.  This is the right decision.  These courts all know that they can be disciplined by the Supreme Court.

But this is just the beginning.  There will be hundreds more where necessary.  I predict the gun control laws will continue to fall, including AWB, magazine capacity limits, showing good character, ad numerous permitting schemes.

Furthermore, I expect constitutional carry to come up again in the South Carolina legislature.  I also expect constitutional carry to pass in Florida because they’ve committed to it on video now.  If this doesn’t include open carry then it will be a failure.

It’s good to see this one go down in the flames it should.  Trump and the ATF should be ashamed.  But I suspect both would defend it to this day and beyond.

Stephen Stamboulieh sends this my way a couple of days ago, but since then it has been covered by others (e.g., see Reason here and here, and reddit/Firearms here and here, and also, never forget the NRA’s position on bump stocks).

This is a very well-written and well-researched opinion and points out the distinction between a function of the trigger and function of the shooter.

Here is the opinion.

BLUF:

1. A bump stock does not turn a semiautomatic firearm into a machine gun by the statutory definition of machine gun.
2. Even if the Fifth Circuit is wrong, the ATF lacked the authority to make this change.
3. We have no business deferring to the authority of the federal regulators to make this determination since there is no lack of clarity on this issue.  The issue is perfectly clear – a rifle outfitted with a bump stock is not a machine gun.

Elsewhere, the ATF is becoming tepid over their upcoming rulemaking on unserialized firearms.

Yet the move, which the Justice Department described as a clarification of the regulation, is not without risk. Because the rule was created through executive action, rather than a statute validated by Congress, it has given companies confidence that they can keep selling individual gun parts.

Administration officials, speaking on condition of anonymity because they were not authorized to publicly discuss possible litigation, said the new guidance would almost certainly be challenged in federal court on the grounds that it violates the Gun Control Act of 1968, which allows people to build firearms for their personal use without submitting to background checks or applying serial numbers.

Their upcoming rulemaking on unserialized firearms not only violates prior statutory law, it now suffers from the Fifth Circuit decision on bump stocks, which says that the ATF lacked the authority to inflict this new regulation on the American public.

Queue up the same thing for unserialized firearms.  And a thousand other lawsuits.

The only problem with the Fifth Circuit decision is that it applies only to states controlled by the Fifth Circuit.

Tenth Amendment Center.

Del. Bill Wiley (R) prefiled HB 1420 (HB1420) on Dec. 13. The legislation amends existing state law regarding prohibited concealed weapons to include the following:

For the sole purpose of carrying a concealed handgun, any person who carries a handgun anywhere he may lawfully carry a handgun openly within the Commonwealth and who is otherwise qualified under this article to obtain a concealed handgun permit. Such person shall not be required to meet the requirements of subsection B of § 18.2-308.02 or subsection B of § 18.2-308.06, as applicable, to carry a concealed handgun under this subdivision.

Currently, Virginia gun owners must apply to a city or county circuit court for a permit in order to conceal carry it in public under most circumstances.

Just like in my home state of North Carolina except it’s the CLEO who must approve.  Furthermore, purchasing a handgun requires a permit from the CLEO (of course, a CHP suffices for the five years it’s valid).  We’re an oddball state I must say.  I can’t recall the last time the voters handed the legislature to democrats, if ever since I’ve lived here.

But the legislature has to fight the governor’s mansion for just about everything.  I’m not sure of the makeup of the Virginia legislature, but I’d like to see them move forward while Youngkin is governor of the state.

If I have any readers in Virginia, please keep us posted on progress, and if possible, supply me with the email address of Mr. Wiley so I can stay in touch with him on this issue.

Prior: Virginia lawmakers could consider repeal of state gun laws

Surprising no one, if you haven’t been following the NY case of Ivan Antonyuk v. NY, the state of NY still hasn’t accepted Bruen, and won’t until the SCOTUS slaps them down again.  The federal district court ruled in favor of Antonyuk in a lengthy and well crafted decision that issued a stay on the recently enacted NY law, only to be blocked and held in abatement by the 2nd Circuit by a three-judge panel who said nothing about the merits of the decision.  The 2nd circuit overrode the district court decision with only a few cursory sentences.

The Antonyuk case was appealed directly to the supreme court, with Sotomayor demanding that NY reply.  They did with this brief.  In it, the state of NY insults the SCOTUS and tells them they aren’t needed.

NY to the Supreme Court

Friend of TCJ Stephen Stamboulieh, a terrific attorney, genuinely good man and defender of liberty, issued his reply, and it’s a wonderful thing to behold.

Stamboulieh to the Supreme Court in Response to NY

As Gandalf the Grey said (before he became Gandalf the White), “Until at last I smote my enemy and threw down his ruin upon the mountainside.”

This may not be over so the conclusory sentiment may be wrong, but may Stephen be victorious over his enemies and throw down their ruin upon the mountainside.

Recall that previous jerk in the Governor’s mansion in Virginia?  Yea, him.  Well, they may undo some of the bad he did in Virginia, and I expect Youngkin to sign such a bill if it can pass through the legislature.

House Bill 1428, pre-filed by Republican Del. Dave LaRock and state Sens. Amanda Chase and Frank M. Ruff, seeks to repeal an existing Virginia law that makes it unlawful for individuals to carry certain loaded semi-automatic center-fire rifles, pistols or shotguns on public streets, roads, alleys, sidewalks, public right-of-ways, public parks or “any other place of whatever nature that is open to the public” in certain parts of the state.

The existing law applies to the cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond and Virginia Beach and the counties of Arlington, Fairfax, Henrico, Loudoun and Prince William. The provisions in the law do not apply to law enforcement officers and licensed security guards, people with a valid concealed handgun permit or those engaged in lawful hunting or recreational shooting at established ranges.

LaRock also pre-filed House Bill 1427 earlier this month, which would remove a locality’s authority to prohibit the possession or carrying firearms in public parks and community centers owned by the locality, as well as public streets, alleys and sidewalks.

I’m glad I found this out – occasionally I’m in Virginia and thought that open carry was legal.  But yea, I can’t imagine the people in Prince William being okay with open carry.  Maybe if Virginia repeals this stupidity, it will be easier on open carriers as well as folks who don’t want to run afoul of the law depending on where they can’t carry.

Stephen Halbrook at Reason.

“Not wanting to itself cherry pick the history,” Judge Reeves concludes, “the Court now asks the parties whether it should appoint a historian to serve as a consulting expert in this matter. … This Court is acquainted with the historical record only as it is filtered through decisions of the Supreme Court and the Courts of Appeals.” Those decisions would be a good start, except that he seems to think that the Supreme Court got it wrong.

[ … ]

Judge Roger Benitez expressed skepticism about “experts” in a hearing on December 12 in Duncan v. Bonta, the California magazine ban case that Bruen remanded for reconsideration. The historical documents that matter are enacted laws, ordinances, regulations, and the like. He ordered the State to prepare an Excel spreadsheet of the laws they consider to be historical analogues to present-day magazine bans, including dates of enactment and repeal and any judicial decisions on their constitutionality. The plaintiffs could then file a rebuttal.

[ … ]

Perhaps we need a reminder from Chief Justice John Marshall in Marbury v. Madison (1803): “It is emphatically the province and duty of the Judicial Department to say what the law is.” Judges may not defer to “experts” to advise what the law is. “Do your job,” as New England Patriots head coach Bill Belichick famously said.

Yea, I read that dummy’s statements when he made them.  He sounded like a second grader trying to write coherent sentences.  By contrast, Judge Roger Benitez is both a scholar and historian, but the thing that makes his decisions on the second amendment right is that they are right.

Do we appoint historians as experts in second amendment cases?  No.  Historians are biased too, and many reach the wrong conclusions.  Everyone takes his pre-theoretical commitments to his work, or his axiomatic irreducibles.  I don’t trust historians in general any more than I trust judges, especially as “educated” by modern universities.

We decide second amendment cases per the words of the second amendment, noting the milieu in which it was written, and remembering how idiotic it would have been for them to have just gotten finished fighting a revolution against King George with weapons they owned – risking their lives, families and fortunes – and then turned around and inflicted their own people with gun control laws.