Archive for the 'Second Amendment' Category

Mark Smith likes the notion of “in common use” from Heller. David Codrea points out some problems with it.

In fact, citizens reporting for militia duty were expected to bring weaponry suitable for battle, and in many cases, these men “outgunned the police,” especially when considering the standard issue for British troops was the Brown Bess musket, while patriots who owned them came equipped with more accurate and longer-range Kentucky/Pennsylvania rifles. Recall that the Founders considered the militia “necessary to the security of a free State,” and to expect their equipment would be inferior to that of attackers they were defending against would have been suicidally absurd.

The militia deployed with the intent to match and best a professional military threat. Its function was — and still is — to field citizen soldiers, and these citizens bore arms that were suitable for that purpose, “ordinary military equipment” intended to be taken into “common defense” battles.

Still, apparently believing he is making his case, Feldman continues offering pre-Bruen examples of infringements, in this case citing Antonin Scalia’s wholly uncalled-for concession that “Like most rights, the Second Amendment right is not unlimited. Miller’s holding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

[ … ]

… we ignore the first 13 words of the Second Amendment at our peril. Feldman takes full advantage of that, writing “Today, the Second Amendment applies to all weapons that ordinary people carry on an ordinary basis for self-defense … Logically, it should also exclude AR-15s, which are not commonly carried for self-defense.”

Logically it shouldn’t. But unfortunately for gun owners, too many influencers ostensibly on “our side” won’t explore the militia aspect …

David is correct, of course. “In common use” has nothing whatsoever to do with military utility, and machine guns should be covered under the second amendment for all men.

Scalia had to make the second amendment palatable for the inside-the-beltway types, as I’ve observed before.

Despite the Court’s confident pronouncement, it is not at all clear that the Second Amendment was meant to protect a personal right of self-defense. It is, however, crystal clear that the Amendment was meant to protect the right to keep and bear arms to resist tyranny-as the Heller Court itself concedes. Yet strangely, by the time the sixty-four-page opinion has wound to an end, the Court has purged the Amendment of its revolutionary quality. Justice Scalia’s opinion never hints that the right to resist tyranny might still be alive and well and relevant to the Amendment’s interpretation, and it lays down rules that will make the right a functional nullity.

As a result, the opinion has an odd quality. Justice Scalia insists that he is being true to the language and history of the Constitution. Yet by the close of the opinion, the purpose that clearly and plainly appears in the language and history-the right of resistance-has disappeared, but the right of self defense-which is much less clearly present, if present at all, in the language and history-has taken center stage.

[ … ]

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.

I have no problem at all making Heller about self defense – as long as it is understood holistically. That self defense should be about defense against individuals and state actors, whether foreign or domestic.

It’s not an either-or relationship. It’s a both-and relationship.

First, by FPC. Here is the Petition for Writ of Certiorari. The full case files can be found here.

Next, by the SAF.

Of course, if granted, these petitions will be combined.

Personally, I hope that FPC gets through the wall of refusal the supreme court has set up against hearing AWBs. I will never forgive Alan Gottlieb for his embracing of so-called “smart guns.”

First up, Mark Smith gives his take. Mark always seems optimistic about things, and I fear that he may be projecting his own knowledge and honesty onto the supreme court justices. In this particular analysis, he goes into great depth on the games played in the fourth circuit. As I’ve said before, I have as much use for the fourth circuit as I do my toe jam.

I predict that the supreme court will allow the fourth circuit to get away with the disrespect and malfeasance.

Next up, there is James Reeves. He points out that there are other cases of AWB that were fully finished in appellate court that the supreme court refused to take up.

Thus, James is in my camp. The supreme court is running from this issue, and they have been for years. They want the second amendment to be something other than amelioration of tyranny, something palatable to the inside-the-beltway types. Even Scalia wanted that and bowed to the demands of the libs on the court.

The only legitimate justice on the court right now is Clarence Thomas. There are two others that I can think of who would make great justices: James Ho, and Don Willett. Only addition of men like these can every possibly bring back the court to its roots.

Eating crumbs that fall from the master’s table, like a stray dog.

Source.

On Oct. 8, the justices will take up a dispute over ghost guns — firearms that can be assembled and lack serial numbers. It will be the second day for the justices after they return from a three-month recess to kick off the 2024-25 term.

The Biden administration asked the justices to review a case in which a federal appeals court struck down a regulation governing the sale of kits to make ghost guns, saying it stretched the definition of “firearm” found in the Gun Control Act of 1968.

Justice Department lawyers say ghost guns have turned into an end-run around federal gun control laws, allowing “anyone with access to the internet to anonymously buy a parts kit or partially complete frame or receiver that can be assembled into a working firearm in as little as 20 minutes.”

Gun rights advocates say if the government wants to regulate the sale of ghost guns, it must pass a new law, arguing the feds can’t stretch the 1968 legislation that far.

TTAG is also covering this.

The case, VanDerStok v. Garland, challenges the Department of Justice’s 2022 Final Rule that redefined important legal terms dealing with guns, including “firearm,” “receiver” and “frame,” making the longstanding American tradition of building personal firearms pretty much a thing of the past. Back in April, the court voted 4-3 to consider the challenge.

At issue is whether the DOJ and Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) overstepped their bounds in promulgating the Final Rule. Plaintiffs in the case argue that the rule is just another example of the bureaucrat-run agencies ignoring the Administrative Procedures Act (APA) and overstepping their bounds by making laws instead of enforcing them.

That was, in fact, what the Fifth Circuit Court of Appeals unanimously ruled last November, upholding an earlier district court decision on the matter. In the ruling, Judge Kurt Engelhardt, who wrote the majority opinion, agreed in no uncertain terms that ATF overstepped its bounds in making the Final Rule.

“ATF, in promulgating its Final Rule, attempted to take on the mantle of Congress to ‘do something’ with respect to gun control,” Judge Engelhardt, a Donald Trump nominee, wrote in the opinion. “But it is not the province of an executive agency to write laws for our nation. That vital duty, for better or for worse, lies solely with the legislature.”

The sad thing about all of this is that the judgment was made purely on procedural grounds. The FedGov violated the rules for promulgating new rules.

But the core issue here is the constitutionality of the FedGov regulating the self-manufacture of firearms to begin with. Self-manufacturing of firearms has a very long and respected tradition in America. And so it should remain. The founders wouldn’t have countenanced a law that forbade firearms manufacture and sales without the government knowing and approving.

If the supreme court refuses to tackle the issue of constitutionality, it will leave the door open to future attempt by Congress to pass such a law. This would then need yet another challenge in court, one much less likely to succeed than VanDerStok.

Here is his paper at the Harvard Journal of Law and Public Policy.

Here is him explaining it in summary fashion.

The Reload.

In its first official platform since 2016, the Grand Old Party (GOP) slashed all mention of its gun policy positions.

The Republican National Committee (RNC) Platform Committee voted 84-to-18 on Monday to adopt the new 2024 platform language after skipping the process entirely in 2020. The finalized document leans into former President Donald Trump’s “America First” outlook and parrots many of his stances on issues ranging from immigration to trade. However, it also minimized the party’s emphasis on gun policy compared to its previous platform.

The entire platform discusses gun rights just once, in a preamble statement about the party’s dedication to defending “our fundamental freedoms, including freedom of speech, freedom of religion, and the right to keep and bear arms.” The final product omits any discussion of tangible gun policy ideas.

The Republican Party platform’s downplaying of Second Amendment issues comes as the gun-rights movement finds itself in a precarious position politically. As guns have become increasingly polarized along party lines, gun-rights supporters have found themselves reliant on Republicans for political support. President Joe Biden has made gun control a fixture of his tenure in office and is already campaigning on even more sweeping proposals, including a ban on sales of the popular AR-15, in a potential second term. At the same time, while the GOP’s current standard-bearer has continued to seek the support of the National Rifle Association and make promises in speeches to the group, he has been fickle on gun policy at times. His felony convictions also mean he can no longer legally own or possess firearms.

The 2024 platform’s cursory discussion of gun policy priorities marks a significant departure from the party’s 2016 platform. The party previously dedicated an entire section to the Second Amendment. In it, the GOP listed specific pro-gun policies it wanted to enact, as well as gun-control measures it opposed.

“We support firearm reciprocity legislation to recognize the right of law-abiding Americans to carry firearms to protect themselves and their families in all 50 states,” the 2016 document reads. “We support constitutional carry statutes and salute the states that have passed them.”

“We oppose ill-conceived laws that would restrict magazine capacity or ban the sale of the most popular and common modern rifle,” the section continues. “We also oppose any effort to deprive individuals of their right to keep and bear arms without due process of law. We condemn frivolous lawsuits against gun manufacturers and the current Administration’s illegal harassment of firearm dealers. We oppose federal licensing or registration of law-abiding gun owners, registration of ammunition, and restoration of the ill-fated Clinton gun ban.”

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The Trump campaign celebrated the final draft of the platform and emphasized the former President’s personal influence on its contents.

This is excellent reporting and a very informed writeup at The Reload.

They’ve also dropped their vocal support of pro-life policies.

I’m not making this up. It’s in the platform. Of all the people the GOP cannot afford to lose, gun owners are at the top of the list. But this is a “win at all costs” platform focused on soccer moms in the suburbs.

Combine that with support for the bump stock ban, red flag laws, alignment with the ill-fated and obscene NRA, and the GOP has miles to go before they can make up for this failure.

Of course, it’s not as if Cornyn or Tillis paid any attention to the last platform.

Here is Mark Smith on the recent bump stock ban decision.

Here is Stephen Halbrook’s article in Reason. I haven’t read the comments – I never do at Reason because it’s made up mostly of arrogant and argumentative communists who think they know more than they do.

In recent news, the senate took up this matter.

Senate Republicans blocked Majority Leader Chuck Schumer’s (D-N.Y.) attempt to move forward legislation to ban bump stocks, reigniting a pre-election messaging battle over gun control measures.

Why it matters: The Supreme Court’s decision to toss a Trump-era ban on bump stocks has given Schumer an opening to put some of the chamber’s Republicans in the position of defending the gun attachment, which was used in the deadliest mass shooting in U.S. history.

 Sen. Martin Heinrich (D-N.M.) asked senators for unanimous consent Tuesday afternoon to pass a bill that would ban bump stocks, but Sen. Pete Ricketts (R-Neb.) objected, thwarting the effort.

The bipartisan bill had little chance of passing the chamber and was instead introduced to force Republicans to reject it.

I would have proudly rejected it and explained to my constituency why I did so. I would have run on that rejection. The senate republicans had better reject it.

James Reeves runs it down for you. We’ll have to wait and see.

This is just another front in the battle between controllers and free men.

The fight never stops. The controllers will never rest.

Source.

Rep. McClintock directly asked ATF Director Steven Dettelbach, “What do you think is the purpose of the Second Amendment?” Dettelbach responded, emphasizing that the Second Amendment, like all amendments, is meant to protect fundamental rights of Americans, including the right to bear arms.

Perhaps it’s my aging years, perhaps it’s just being crotchety.  After all, Statler and Waldorf are my role models. I don’t know. But I hate it when people use the phrase “begging the question” as a replacement for “Well, that leads me to ask another question,” or “The next sensible question is [so-and-so].”

No. Don’t do that.

Begging the question is a formal logical fallacy of assuming the consequent. In other words, all immediate inferences or syllogisms have presuppositions (or axiomatic irreducibles), and another proposition that follows (or perhaps multiple other propositions that follow). If you can prove (or think you can prove) your presupposition, it isn’t a presupposition. It isn’t your starting point in your system of philosophy and logic. Presuppositions are not amenable to proof.

Begging the question has to do with reasoning in a circle and saying nothing. It isn’t quite what philosophers call self referential incoherence, which is a proposition that refutes itself, but in saying nothing, Dettelbach is very close.

You see, when asked about the raison d’etre for the second amendment, which pertains to the right to keep and bear arms (RKBA), he responded that it exists to protect the RKBA.

He knows the real reason, i.e., the second amendment exists as a bulwark against tyranny. But given his task master(s), he can’t say that. Dettelbach does appear to me to be a particularly ignorant man, but he knows enough to know that he said nothing to the congressman.

And the congressman apparently let him get away with it.