Archive for the 'Second Amendment' Category

Found at Legal Insurrection.

This is a long read.  But if you’re interested in following the goings-on in his case, this is the longest, most detailed and best analysis I’ve found.

The case hasn’t started yet, but in effect, it has because these decisions will make or break the prosecution’s assault on Kyle.

UPDATE: Dean Weingarten has another analysis.

Jeff Knox at Ammoland.

But then Clement says this: “The state takes its revisionism so far as to claim there is no example in all Anglo American history of the carry rights petitioners seek. In fact, at least 43 states allow just that, while, as in Heller, only a few jurisdictions follow New York’s lead of presumptively denying a right that the Constitution guarantees to all…”

My complaint is that, if indeed “the Constitution guarantees to all,” this right, (which should be acknowledged to preexist the Constitution), then exercise of the right is not something which any state does, or can, “allow.” Those 43 states do not “allow” the exercise of the right to carry a handgun outside the home for self-defense. They recognize the right. They honor the right. They have laws that specifically avoid infringing on the right. But they most certainly don’t “allow” the exercise of the right.

[ … ]

I believe Clement received more credit in that case than was really due him though, as the case was built and brought by the Second Amendment Foundation, and argued by Alan Gura, who was also the lead attorney for Heller. In the eleventh hour, the NRA petitioned for and received permission to join the McDonald case, and the 30 minutes for oral arguments was divided down the middle. With Gura first arguing that the Court should apply the Second Amendment to the states under a proper reading of the 13th Amendment, correcting over a century of bad precedents going back to the post-Civil War Court. Clement, in his turn, argued the more conservative line, calling for the Court to apply the Second Amendment as a fundamental right under the Due Process Clause of the Fourteenth Amendment.

Because the Court chose to go with Clement’s remedy, rather than Gura’s, Clement was the one who got much of the credit, with some claiming that he “rescued” the case from Gura. I think that’s too generous to Clement, and far too dismissive of Gura. McDonald, like Heller, was Gura’s case. He put it together, led it through the courts, and convinced the Supreme Court to grant certiorari and hear the case. His push for the Court to reverse precedents, which virtually all constitutional scholars agree are erroneous and flawed, was worth trying. Gura knew that it was a long shot, so he had always taken a dual-pronged approach, arguing that the Court could either apply the Second Amendment to the states via a correct reading of the Thirteenth Amendment. Or they could take the less drastic route of accomplishing the same thing via the “incorporation doctrine” and the Fourteenth Amendment. Had the NRA and Clement not joined the case, Gura would certainly have argued both options during oral arguments – as he did in his briefs – and the Court would have reached the same conclusion they eventually did, via the “incorporation doctrine.”

Every time I’ve written on the Heller case, I’ve said it was a weak decision.  And I’ve always been right.  Now, this does not exonerate the idiots who wrote it for writing it the way they did (leaving open the question of whether the constitution recognizes the right to bear arms outside the home).  In fact it’s worse than that.  The Heller decision was a tip of the hat to the pampered beltway elitists and chattering class.

Heller offers a Second Amendment cleaned up so that it can safely be brought into the homes of affluent Washington suburbanites who would never dream of resistance-they have too much sunk into the system–but who might own a gun to protect themselves from the private dangers that, they believe, stalk around their doors at night. Scalia commonly touts his own judicial courage, his willingness to read the Constitution as it stands and let the chips fall where they may. But Heller is noteworthy for its cowardice.

So the Supreme Court bears blame, but then so does the lawyer who argued the way he did (Clement).  Rights come from the Almighty.  Any failure to ensconce our duties and rights clearly in His law-word insults the creator of the universe.

Ironically, I was just reading this discussion thread at reddit/Firearms where so-called Fudds are lampooned for their positions, e.g., “You guys with your AR-15s are always pushing things.  You’re going to make us all lose our rights.”  Listen. coward.  Your rights come from God, not man.  You cannot lose what God has granted.

All aspects and manifestations of God’s economy – Family, Church and State – must bend the knee to King Jesus, or they will not survive.  They will perish from the earth, and then suffer in eternity.

News from Florida.

Some top Florida Republican lawmakers have now said they would support constitutional carry legislation in the upcoming session.

The policy would allow all legal gun owners to carry firearms without a concealed weapons license.

The constitutional carry legislation was filed by the Legislature’s most outspoken conservative member, Rep. Anthony Sabatini.

“Our very liberal Republican Speaker Chris Sprowls has gotten tens of thousands of emails from gun groups,” said Sabatini.

The policy is split into two bills.

The first would allow gun owners to carry concealed weapons without a license.

“You don’t have to go ask the government for permission,” said Sabatini.

The second would allow for open carry.

“You shouldn’t have the duty to hide your firearm if you’ve done nothing wrong,” said Sabatini.

Eskamani said she’s doubtful Sabatini’s bills will get a hearing, due to his strained relationship with the House speaker.

“Sabatini does not have a lot of leverage within the chamber,” said Eskamani.

But recently, top brass in the Senate indicated they would support constitutional carry legislation, including Senate Majority Leader Debbie Mayfield.

“I support constitutional carry. That is one of the things that we will probably be looking at this session because it is important,” said Mayfield in a legislative delegation meeting last week.

Florida GOP Chair and State Sen. Joe Gruters said he might support constitutional carry, but doesn’t want to see assault weapons openly carried on beaches.

“Because I think that would adversely impact Florida’s tourism economy,” said Gruters.

While there seems to be some support for constitutional carry legislation in the Senate, a bill hasn’t yet been filed in the chamber.

I predict it won’t go anywhere this session.  Florida has a horrible history on gun control.  But it will eventually pass in coming sessions with enough effort.

You know what would help the case?  If Governor Ron DeSantis went on record for his support for the measure, and even demanded a bill be brought to his desk for approval before any other bill would be considered by the governor.

I also predict he won’t do that.

News from South Carolina.

An ordinance restricting the open carry of firearms passed its first reading with the Anderson City Council on Monday night.

The ordinance would prohibit residents from openly carrying firearms during events that take place on public property. These events include protests, according to the officials.

The background for the ordinance states, “While the City recognizes and appreciates the First and Second Amendment rights of its citizens and visitors, the presence of firearms at protests can serve to escalate tensions.”

The council will discuss the amendment again before it becomes a part of the law.

There’s always an excuse, isn’t there?

“While the City recognizes and appreciates the First and Second Amendment rights of its citizens …”  No, of course it doesn’t.  Otherwise, they wouldn’t be debating the prohibition of open carry at events.  They always have to declare their support for your rights while they refuse to recognized them, don’t they?

As for the reason – “the presence of firearms at protests can serve to escalate tensions?”  They don’t believe that, otherwise they would be trying to ban concealed carry, because there is no difference between concealed and open carry except for the fact that the firearm can be seen with open carry.  The reality of the firearm is still there.

The good thing about the declaration of tyranny among the cities (Spartanburg, Greenville, Charleston, Columbia, and now Anderson have made it clear they intend to ban open carry) is that the tyrants self identify.

That’s good.  It gives patriots information on who to cast out of office next.

David Kopel writes at Reason explaining the 2A brief filed with the SCOTUS in the New York case.  It’s very good, but this part is worth lifting.

The king ordered London hostelers to tell their guests not to carry arms in London. According to the Ninth Circuit, this shows that arms carry restrictions “permeated public life.” To the contrary, the Feast of St. Thomas decree presumes that travelers will be carrying arms and will expect to continue carrying in London. The king ordered the hostelers to tell the visitors to pause their usual practices.

[ … ]

Whatever the English Bill of Rights protected, it was not good enough for Americans. James Madison’s notes for his speech introducing the Bill of Rights in Congress show that he regarded much of the English Bill of Rights as deficient, including the Protestants-only provision of the right to arms. St. George Tucker, William Rawle (author of an influential 1825 treatise on American constitutional law), and Joseph Story all denounced the English right to arms as feeble and as far inferior to the Second Amendment.

The second amendment also presumes that free men will bear arms, and in order to understand it, we must use that as a working assumption.  Nothing else will do.  The bearing of arms in colonial America was ubiquitous.

And yes, clearly, the founders felt the rights understood under English common law were inferior to what they understood under God.  Thus, the second amendment was crafted to ensure that the federal government stayed out of the business of dictating when or where to bear arms, or what kind of arms to bear.

How far we’ve fallen.

A lot of cops are liars, and the media is their willing partners in that enterprise (or too stupid to call them out).

Referring to statistics released by SLED in June and confirmed by the FBI this month, Keel cited a 51% increase in homicides statewide the past five years, including a 25% surge in 2020.

“It’s important that our legislative priorities reflect this, and we take immediate legislative steps to stem the violence,” Keel said, noting state and local law enforcement agencies said the measure would allow them to arrest more felons illegally carrying firearms.

Keel’s comments echo Columbia Police Chief Skip Holbrook’s letter to legislators in February that suggested “commonsense solutions” to reconcile variations in state and federal code.

For instance, Holbrook wrote, a conviction for strong arm robbery doesn’t preclude a South Carolinian from legally owning a firearm although the individual cannot legally purchase one under federal law.

Felons who violate South Carolina’s 2010 law can be charged with illegal possession with a maximum punishment of a $2,000 fine and/or up to five years in prison. Law enforcement officials want escalator tiers to increase penalties for repeated violations.

This information is just not true.

SECTION 16-23-500. Unlawful possession of a firearm by a person convicted of violent offense; confiscation; return of firearm to innocent owner.

(A) It is unlawful for a person who has been convicted of a violent crime, as defined by Section 16-1-60, that is classified as a felony offense, to possess a firearm or ammunition within this State.

(B) A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be fined not more than two thousand dollars or imprisoned not more than five years, or both.

And the chief of SLED worded his speechery to neatly avoid telling lies overt like Holbrook did.  He’s just not telling the whole truth – and your mother would have called that a lie too.

You see, he uses words like “the measure would allow them to arrest more felons illegally carrying firearms.”  What does he mean by this, that it would be more illegal to be a violent felon in possession of a firearm?  No, that’s not a rational position to take.  There is no such thing as more illegal.  He just made that up.

What he means is that SLED can go on boy’s outings with FedGov (ATF, FBI) to make arrests, bust down doors, etc., and feel all manly while they “get some,” if there is a hint from an AFT agent that there may be a firearm in the hands of a felon which SLED didn’t know about.

You see how he did that?  “Arrest more felons.”

The chief of SLED wants to partner with FedGov, the entire point of which second amendment sanctuary laws are in place to prevent.

Because illegal firearms may one day be a rifle with a brace, or an AR-15, or a pistol with a magazine capacity of more than ten rounds, or any semiautomatic firearm.

Constitutionalists in South Carolina have a problem on their hands, namely, law enforcement.

And rather than focus on anything South Carolina law enforcement says, the legislature should go ahead and pass second amendment sanctuary laws that prevents their own LEOs from working with FedGov, and maybe even give it more teeth, where their own LEOs arrest FedGov agents for infringements on the 2A.

Law enforcement should be your servants, not your rulers.

Via WRSA, genocide requires unarmed victims.

There is always a precursor to tyranny.  Armed men are citizens.  Unarmed men are slaves.

It’s entitled How Alexander Hamilton Solved America’s Gun Problem – 228 Years Ago.  I’ll only paste his conclusion.  You can read the rest for yourself.

The result of compulsory militia membership for gun owners is actual reform whose design originates directly from the framers of the Constitution. This reform adds oversight, training, and state regulation while keeping the federal government out (militias existing specifically as a check on federal power); preserving the right to keep firearms; contributing perhaps to the security of the United States in some presently unimaginable future conflict at home that involves enemy divisions and open warfare; and has a better chance of seeing law than does confiscation or a repeal of the right to bear arms.

There is the gist of it.  As I said, read the rest for the full argument.

But the argument fails the test of history and suffers from the obvious attempt to make a case where there is there none.  Remember that we’ve discussed this before, but just to rehearse, firearms ownership and use was ubiquitous in the colonies.

In the colonies, availability of hunting and need for defense led to armament statues comparable to those of the early Saxon times. In 1623, Virginia forbade its colonists to travel unless they were “well armed”; in 1631 it required colonists to engage in target practice on Sunday and to “bring their peeces to church.” In 1658 it required every householder to have a functioning firearm within his house and in 1673 its laws provided that a citizen who claimed he was too poor to purchase a firearm would have one purchased for him by the government, which would then require him to pay a reasonable price when able to do so. In Massachusetts, the first session of the legislature ordered that not only freemen, but also indentured servants own firearms and in 1644 it imposed a stern 6 shilling fine upon any citizen who was not armed.

When the British government began to increase its military presence in the colonies in the mid-eighteenth century, Massachusetts responded by calling upon its citizens to arm themselves in defense. One colonial newspaper argued that it was impossible to complain that this act was illegal since they were “British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights” while another argued that this “is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defense”. The newspaper cited Blackstone’s commentaries on the laws of England, which had listed the “having and using arms for self preservation and defense” among the “absolute rights of individuals.” The colonists felt they had an absolute right at common law to own firearms.

The notion that the rights to firearms ownership was granted by any government would have been considered ridiculous and dismissed in colonial times.  God grants rights – the state merely recognizes them, and if it doesn’t, the people have a right and duty under God to take action to ensure that the right is recognized.  There is so much more.

“1. John Adams John Adams, as a 9-or-10-year-old schoolboy, carried a gun daily so that he could go hunting after class. 3 DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS 257-59 (1961). 2. Patrick Henry Patrick Henry would “walk to court, his musket slung over his shoulder to pick off small game.” Harlow Giles Unger, LION OF LIBERTY: PATRICK HENRY AND THE CALL TO A NEW NATION 30 (2010). 3. Daniel Boone “When Daniel was almost thirteen he was given his first firearm, a ‘short rifle gun, with which he roamed the nearby Flying Hills, the Oley Hills, and the Neversink Mountains.’ ” Robert Morgan, BOONE 14 (2007). 4. Meriwether Lewis Meriwether Lewis’s neighbor Thomas Jefferson observed that young Lewis “when only eight years of age . . . habitually went out, in the dead of night, alone with his dogs, into the forest to hunt the raccoon & opossum.” 8 WRITINGS OF THOMAS JEFFERSON, at 482.  5. Thomas Jefferson Thomas Jefferson himself carried as a lad. “When he was ten he was given a gun by his father and sent into the forest alone in order to develop self-reliance.” 1 Dumas Malone, JEFFERSON AND HIS TIME: JEFFERSON THE VIRGINIAN 46 (1948). As an adult, Jefferson wrote about a holster he made for one of his Turkish pistols, “having used it daily while I had a horse who would stand fire,” and he noted another holster he made “to hang them [the Turkish pistols] at the side of my carriage for road use.” 10 THE PAPERS OF THOMAS JEFFERSON, RETIREMENT SERIES 320-21 (2004). Jefferson advised his fifteen-yearold nephew to “[l]et your gun therefore be the constant companion of your walks.” 8 THE PAPERS OF THOMAS JEFFERSON 407 (2004). 6. James Monroe Every day, “[w]ell before dawn, James left for school, carrying his books under one arm with his powder horn under the other and his musket slung across his back.” Tim McGrath, JAMES MONROE: A LIFE 9 (2020). 7. Ira and Ethan Allen Ira and Ethan Allen regularly carried multiple arms at once. For example, in 1772 Ira, Ethan, and a cousin went to purchase land near New York’s border “armed with holsters and pistols, a good case [pair] of pistols each in our pockets, with each a good hanger [sword].”

We could continue but won’t for the sake of brevity.  The point is that firearms ownership is the presupposition to understanding the constitution, not the outcome, product or pronouncement.

The men who wrote it had just gotten finished with a war against their former king, using firearms they personally owned, and so the idea that they wouldn’t have understood the God-given right to oppose tyranny is absurd.  Moreover, their real concern within the context of the covenant they were producing in the constitution was that their newly formed federal government would become just like king George.

In order to prevent that possibility, they recognized the right of the states to be free of intervention by the federal government within the context of their men and armaments.  They only needed one reason to write those protections into the constitution, and this was it.  To them, it was the most important.

The constitution was not and is not a treatise on the entirety of the history of mankind and his rights.  It is a covenant between the states and the federal government, and between government and the people.

The author at The Week, David Brown, is correct to highlight the noted militia clause in the second amendment.  I wish more people would become aware of their history and heritage.  The militia needs to exist today, and for the very same reasons it did in the 1700s.

But David’s presuppositions led him astray.  He believes that a different rendering of the second amendment changes the well-documented, well-rehearsed, and well-established history upon which America was built.  So in conclusion, let’s pose two questions David could have asked, and give the correct answers to those questions.

First, “Is it important for men to own firearms to be able to answer the call to oppose tyranny, or in other words, does the militia have a valid role in today’s society?”  We may answer, yes, and in the superlative in today’s society.

Second, “Should compulsory militia membership be required as a precondition for firearms ownership?”  To which we may answer, the mere asking of the question betrays a fundamental misunderstanding of the source of our rights, the history of colonial America, God’s expectations for us, and the reasons for the Bill of Rights.

The question isn’t just answered with a ‘no’, it is completely irrelevant and immaterial.  It has nothing whatsoever to do with rights granted by the Almighty, or for that matter, the second amendment.

News from New Jersey.

On August 17, 2021, the U.S. Court of Appeals for the Third Circuit weighed in on the uncharted boundaries of rights afforded under the Second Amendment, namely whether restrictions on where citizens can purchase or practice with firearms implicate the right to bear arms, and whether zoning rules interfere with that right.

In a precedential decision that tracked historical frameworks and recent U.S. Supreme Court jurisprudence, the Third Circuit reversed a U.S. District Court ruling that dismissed a challenge to two zoning ordinances that limited the types of firearms with which one could practice at gun clubs and also limited for-profit ownership of such a facility. In doing so, the Third Circuit reinstated the lawsuit seeking an injunction against the enforcement of those two ordinances.

Although the Third Circuit’s opinion in Drummond v. Robinson Township stopped short of a general prohibition against such restrictions, it opened the door to challenges against anti-firearm zoning far wider than it had ever been opened before. Prior to the ruling, neither the Supreme Court nor the Third Circuit had confronted a Second Amendment claim challenging a restriction on firearms purchase or practice. The Third Circuit decided that if a zoning ordinance “has the effect of depriving would-be gun owners of the guns and skills commonly used for lawful purposes like self-defense in their homes,” it would likely be unconstitutional. Drawing comparisons to free speech legislation and prohibitions that were previously struck down in Chicago and the District of Columbia, the Third Circuit held that such an ordinance will only be valid if (1) it serves a “significant, substantial, or important” government interest, and (2) “the fit between the asserted interest and the challenged law” is reasonable and “does not burden more conduct than is reasonably necessary.”

Occasionally a court gets one right.

I still wouldn’t live in New Jersey.

News from Missouri.

CAPE GIRARDEAU, Mo. (KFVS) – The Second Amendment Preservation Act became law over the weekend, one day after a Cole County judge threw out a legal challenge to it.

Now, a growing number of Heartland law enforcement leaders say this new law’s actually missing the mark, by benefiting the most violent criminals and putting your communities at risk.

Signed by current Republican Governor and former sheriff Mike Parson, the new law prohibits state and local cooperation with federal officials in any actions that violate a Missourian’s right to keep and bear arms.

“Well, very early on I was actually in favor of a large part of this,” said Sikeston Department of Public Safety Chief James McMillen. “Then we got into the details of this and, of course, I was like this is going to be a problem.”

Those details led us to sit down recently with McMillen, Dexter Police Chief Hank Trout, Poplar Bluff Police Chief Danny Whiteley, Butler County Prosecuting Attorney Kacey Proctor, Butler County Sheriff Mark Dobbs, Stoddard County Prosecuting Attorney Russ Oliver and Cape Girardeau Police Chief Wes Blair.

They are all do something even they did not expect, speak out against the Second Amendment Preservation Act.

“When I first read the legislation, I was concerned because it essentially says that we can’t cooperate with the federal government on anything that involves a gun,” Chief Blair said.

One of Blair’s officers showed us an AR-15 and a pistol Cape Girardeau police found on Gene Wren when they arrested him in November 2020.

Wren is now serving eight years in federal prison in a case worked by an officer Blair assigned to the ATF Task Force in 2017.

“And during that time, he was able to get 181 federal indictments on federal gun charges. Most of those would be felons in possession of guns.”

“I think that the average citizen thinks the federal agencies are kind of very far away and distant from us,” said Kacey Proctor. “The reality is I communicate with my counterpart in the federal system probably four or five times a week.”

Since I believe in neither your war on guns nor your war on drugs, this is a good thing, and cooperation with federal law enforcement is not.

I think the new law is working just about right.