Archive for the 'Second Amendment' Category

Baseball bats.

Not so sure that’s really a good idea.  I’d want a gun.

Not so much.

This morning the Supreme Court issued orders from the justices’ private conference last week. The justices did not add any cases to their merits docket for next term, nor did they seek the views of the federal government in any new cases. And perhaps most notably, the justices did not act on any of the Second Amendment cases that they have now considered at three consecutive conferences; somewhat unusually, the electronic dockets for those cases (see, for example, here) all indicated late last week – that is, before today’s order list was even released – that the cases had been relisted for the upcoming conference on Thursday, May 28.

The court also granted a motion to substitute Donna Stephens, the wife of Aimee Stephens, as the respondent in R.G. & G.R. Harris Funeral Homes v. EEOC, in which the justices are considering whether federal employment-discrimination laws protect transgender employees. Aimee Stephens died earlier this month of complications from kidney disease.

But we need to make sure that the rights of transgenders are considered.

Foxnews.

“I’m the number one supporter [on] radio and television, that I know of, [of the] First Amendment and the Second Amendment. Now, no one is a bigger defendant of the Second Amendment than yours truly,” Hannity said Monday night on his televison program.

“Everyone has the right to protest, protect themselves and try to get the country open,” the host said as video rolled of Thursday’s protest in Lansing. “This, with the militia look here, and these long guns, uh… no. Show of force is dangerous. That puts our police at risk. And by the way, your message will never be heard, whoever you people are.”

“No one should be attempting to intimidate officials with a show of force, and God forbid, something happens,” the host continued. “Then they’re going to go after all of us law-abiding Second Amendment people.”

Thus, he would have been against the intimidation of British troops in the war of independence.

Hannity speaks like one who is a GOP diehard, a run-of-the-mill “law and order” republican, not a patriot.

Josh Blackman writing at Reason.

Immediately after the case was decided, the Supreme Court distributed 6 Second Amendment cases for the May 1, 2020 conference (H/T to the Duke Center for Firearms Blog.)

1. Mance v. Barr (5th Circuit)—challenge to federal prohibition on out-of-state handgun purchases
2. Pena v. Horan (9th Circuit)—challenge to California’s prohibition on “unsafe” handguns (including “microstamping” requirement)
3. Gould v. Lipson (1st Circuit)—challenge to Massachusetts’s “may issue” conceal carry licensing regime
4. Rogers v. Grewal (3rd Circuit)—challenge to New Jersey’s “may issue” conceal carry licensing regime
5. Cheeseman v. Polillo (N.J. Supreme Court)— challenge to New Jersey’s “may issue” conceal carry licensing regime
6. Ciolek v. New Jersey (N.J. Supreme Court )—challenge to New Jersey’s “may issue” conceal carry licensing regime

This article was updated.

SCOTUSBlog located four more Second Amendment cases that were distributed for the 5/1/20 conference:

1. Worman v. Healey (1st Circuit)—challenge to Massachusetts ban on “assault weapons” and large-capacity magazines
2. Malpasso v. Pallozzi (4th Circuit)—challenge to Maryland’s “may issue” conceal carry license regime
3. Culp v. Raoul (7th Circuit)—Challenge to Illinois’s ban on allowing non-residents to apply for conceal carry license
4. Wilson v. Cook County (7th Circuit)—Challenge to Cook County’s ban on “assault weapons” and large-capacity magazines

So the game is up after this point and good men everywhere will have to conclude that the Supreme Court cares nothing for their second amendment rights.  That means no more claims that the courts will overturn infringements.  We’re on our own.

Here’s how we will know.  Four Justices clearly stated that the SCOTUS needs to take up a 2A case and stop the hemorrhaging.  Roberts said nothing of the sort.

If the four justices do not grant certiorari, that means they know that Roberts would not have gone along with the four on the given case, and the four will not risk an awful decision from the SCOTUS.  It’s better to leave the issue alone rather than risk diminution of rights.  It could be that Roberts was behind the curtain saying, “But wait, we have the perfect case coming up.  Let’s tackle more issues than the NY case brings up.”  But the throwdown between Alito and Roberts was so bitter it makes one think that this goes deeper than a chess match.

So we’ll all know very soon where ALL of the justices stand on gun rights.  This is a wonderful thing, yes?  Good times.

The experiment has been tried, the casualties have been counted.

The money quote, the greatest quote of all time is this, straight from the decision made by this good judge.

Law-abiding citizens are imbued with the unalienable right to keep and bear firearms along with the ammunition to make their firearms work. That a majority today may wish it were otherwise, does not change the Constitutional right. It never has. California has tried its unprecedented experiment. The casualties suffered by law abiding citizens have been counted. Presently, California and many other states sit in isolation under pandemic-inspired stay-at-home orders. Schools, parks, beaches, and countless non-essential businesses are closed. Courts are limping by while police make arrests for only the more serious crimes. Maintaining Second Amendment rights are especially important in times like these. Keeping vigilant is necessary in both bad times and good, for if we let these rights lapse in the good times, they might never be recovered in time to resist the next appearance of criminals, terrorists, or tyrants.

Good man.  God has His eye on you.

UPDATE:

I’ve already had to burn one annoyingly stupid comment on the fire today.  Let’s expand just a bit.

Do I really believe that the Ninth Circuit is going to let this stand?  Am I that stupid?

Or is my point something else?  Perhaps a man did something noteworthy.  The judge is a good man, obviously, not perfect, but clear-headed and committed to liberty.  Those are strong words, not the weak tea we see even from SCOTUS.

Character is forged in fire, not easy times.  It’s also revealed that way.  This is a memorable quote – something to remember when times aren’t so good.  It’s also a decision that will forever mark him out, and pit him against the Ninth Circuit, and one that will also engender even more hatred for the Ninth Circuit, whether California changes or not.

This isn’t about a court decision.  It’s about the evolution of a culture, the bifurcation of its people, the positioning of sides, what a man did in these times, and what it revealed about his soul.

Perhaps something big will come of it, like being appointed to the Ninth Circuit in the future.  Or perhaps something even bigger will come of it, such as God remembering his actions.

In an Amicus Brief submitted to the United States District Court for the Southern District of California, Miller versus Becerra, the Giffords Law Center and associated attorneys make the following argument.

Such combat-style features distinguish military rifles and their semi-automatic counterparts from standard sporting rifles, and are not “merely cosmetic”—they “serve specific, combat-functional ends.” H. Rep. No. 103-489, at 18. The Regulated Assault Rifles include features that enhance ammunition capacity, concealability, stability, and control, making it easier for shooters to fire accurately without sacrificing rate of fire. The “net effect of these military combat features is a capability for lethality—more wounds, more serious, in more victims—far beyond that of other firearms in general, including other semiautomatic guns.” Id. In fact, semi-automatic firing of militarystyle weapons like the Regulated Assault Rifles is in many ways more effective than automatic firing of the same weapons because they allow for more accuracy without substantially sacrificing rate of fire. Department of the Army, supra, at 7–12 (stating that “rapid semiautomatic fire” is “[t]he most accurate technique of placing a large volume of fire on poorly defined targets or target areas such as short exposure, multiple, or moving targets”).

This is a remarkable quote, and similar in intent and import to September 2019 testimony before the U.S. House by a Giffords Senior Policy Advisor.  One might get the impression that the Giffords Center opposes semiautomatic rifles but has lost interest in fully automatic weapons.  Of course, this would be wrong.

Banning modifications like bump stocks is a key element of the bill to address the 1October mass shooting. Bump stocks are specialized rifle stocks that allow shooters to simulate automatic fire without compromising accuracy. Bump stocks allow a person to hold a finger steady, and simply “bump” the gun against his or her shoulder back into the trigger. The person does not have to pull the trigger each time. Bump firing is the act of using the recoil of a semi-automatic firearm to fire shots in rapid succession to simulate a fully automatic rate of fire.

In fact, their press release on the D.C. Circuit Court of Appeals ruling on bump stocks explains their view of bump stocks being a serious threat to public safety precisely because they say it mimics fully automatic fire.

So Giffords opposes semi-automatic gun ownership because it is “more effective than automatic firing of the same weapons because they allow for more accuracy without substantially sacrificing rate of fire.”  On the other hand, bump stocks are a “serious threat to public safety” precisely because, according to Giffords, it mimics fully automatic fire.

Reading legal arguments can be a bit frustrating and even a bit perplexing unless one learns to jettison the laws of logic.  Typical arguments on behalf of a client might be one attempt at persuasion to the court, supplemented by another that argues on behalf of a client using exactly the opposite set of presuppositions.  The hope is that the court buys one of the arguments, even if it rejects the other(s).  It can lead one to question whether the attorneys really believe the proffered arguments when they are inherently contradictory.

This approach seems to be present in the Giffords presentations.  Given that, the next step is to ask what Giffords actually wants?  The answer seems to be nothing other than complete disarmament.  They don’t approve of semiautomatic guns.  They don’t approve of fully automatic guns.  They don’t approve of handguns, they want universal background checks, and they support red flag laws.  The only entity in this calculus who gets the monopoly of violence is the state itself.

It’s appropriate at this point to rehearse the rights in the covenant called the constitution as a means for understanding what the founders intended.

Here is a selection of quotes pertaining to the second amendment.

George Mason — “I ask, sir, what is the militia? It is the whole people, except for a few public officials.” (Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788)

Alexander Hamilton — Writing in Federalist 28, he explained that the chief reason for being sure the people are armed is so they have the power to repel a tyranny::

If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.

James Madison — Writing in Federalist 46, explained that the Constitution hedges in “the advantage of being armed, which the Americans possess over the people of almost every other nation.”

Joseph Story — Associate Justice from 1811-1845, he wrote, “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” (Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.)

Here is a selection of relevant court cases:

“The Second Amendment protects an individual’s right to possess a firearm, unconnected with service in a militia, for traditionally lawful purposes” (District of Columbia v. Heller, 554 U.S. 570)

The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding, and that this Second Amendment right is fully applicable to the States. (Caetano v. Massachusetts, 577 U.S. 2016)

The Second Amendment protects the right of individual citizens to own the military arms required to maintain a militia to defend against invasion or tyranny. (United States v. Miller, 307 U.S. 174)

The Second Amendment was incorporated against state and local governments, through the Due Process Clause of the Fourteenth Amendment. (McDonald v. City of Chicago, 561 U.S. 742)

An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed. (Norton v. Shelby County, 118 U.S. 425)

Congress does not have the power to pass laws that override the Constitution. (Marbury v. Madison, 5 U.S. 137)

It is unconstitutional to require a precondition on the exercising of a right. (Guinn v US 1915, Lane v Wilson 1939)

It is unconstitutional to require a license (government permission) to exercise a right. (Murdock v PA 1943, Lowell v City of Griffin 1939, Freedman v MD 1965, Near v MN 1931, Miranda v AZ 1966)

If the State converts a right into a privilege, the citizen can ignore the license and fee and engage in the right with impunity. (Shuttlesworth v. City of Birmingham, Alabama, 373 U.S. 262).

It is unconstitutional to delay the exercising of a right. (Org. for a Better Austin v Keefe 1971)

It is unconstitutional to charge a fee for the exercising of a right. (Harper v Virginia Board of Elections 1966)

It is unconstitutional to register (record in a government database) the exercising of a right. (Thomas v Collins 1945, Lamont v Postmaster General 1965, Haynes v US 1968)

Here is a good discussion of the cultural milieu at the time of the war of independence.

In early 1775, tensions between Great Britain and the American colonies were reaching the breaking point. The previous October, King George III had forbidden the import of arms and ammunition into the colonies, a decision which the Americans interpreted as a plan to disarm and enslave them. Kopel, How the British Gun Control Program Precipitated the American Revolution, 38 Charleston Law Review 283 (2012).

Without formal legal authorization, even from the Continental Congress, Americans began to form independent militias, outside the traditional chain of command of the royal governors. In February 1775, George Washington and George Mason organized the Fairfax Independent Militia Company.

According to Mason’s Fairfax County Militia Plan for Embodying the People, “a well regulated Militia, composed of the Gentlemen, Freeholders, and other Freemen” was needed to defend “our ancient Laws & Liberty” from the Redcoats. “And we do each of us, for ourselves respectively, promise and engage to keep a good Fire-lock in proper Order, & to furnish Ourselves as soon as possible with, & always keep by us, one Pound of Gunpowder, four Pounds of Lead, one Dozen Gun Flints, & a pair of Bullet-Moulds, with a Cartouch [cartridge] Box, or powder-horn, and Bag for Balls.” 1 The Papers of George Mason 210-11, 215-16 (Robert A. Rutland ed., 1970). Similar militias were being formed all over the American colonies, with no formal authorization and no chain of command to the established government. The legal bases of the militias were the natural rights of self-defense and self-government.

Persuaded by Henry’s eloquence, the Virginia Convention formed a committee—including Patrick Henry, Richard Henry Lee, George Washington, and Thomas Jefferson—”to prepare a plan for the embodying, arming, and disciplining such a number of men as may be sufficient” to defend the commonwealth. The Convention urged “that every Man be provided with a good Rifle” and “that every Horseman be provided . . . with Pistols and Holsters, a Carbine, or other Firelock.” (“Firelock” was a synonym for “flintlock,” the most common firearms of the time.) Journal of Proceedings of Convention Held at Richmond 10-11 (1775).When the Virginia militiamen assembled a few weeks later, many wore canvas hunting shirts adorned with the motto from the conclusion of Henry’s speech: “Liberty or Death.” Henry Mayer, A Son of Thunder: Patrick Henry and the American Revolution 251 (1991).

And as I have stated about this, ” … promise and engage to keep a good Fire-lock in proper Order, & to furnish Ourselves as soon as possible with, & always keep by us, one Pound of Gunpowder, four Pounds of Lead, one Dozen Gun Flints, & a pair of Bullet-Moulds, with a Cartouch [cartridge] Box, or powder-horn, and Bag for Balls” – is what well regulated means.  It means, simply, regulated firearms, or in other words, properly functioning and well stocked and supplied.  Powder and shot available, sights adjusted, and in working order.”

Even before that in American history, the notion that weaponry would be controlled by persons other than citizens would have been anathema.  This explains how men saw their ownership of guns.

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.

Thus the Giffords view of the state having a monopoly of violence runs exactly counter to the constitution. Since the constitution is a covenant between men, with blessings and curses recognized by God, the real question is what does the Almighty say about all of this?  Or in other words, is the covenant between men we call the constitution based on righteousness as outlined in Holy law?

We’ve discussed before that God expects men to be capable of self defense, and in fact makes it a duty of men.

God has laid the expectations at the feet of heads of families that they protect, provide for and defend their families and protect and defend their countries.  Little ones cannot do so, and rely solely on those who bore them.  God no more loves the willing neglect of their safety than He loves child abuse.  He no more appreciates the willingness to ignore the sanctity of our own lives than He approves of the abuse of our own bodies and souls.  God hasn’t called us to save the society by sacrificing our children or ourselves to robbers, home invaders, rapists or murderers. Self defense – and defense of the little ones – goes well beyond a right.  It is a duty based on the idea that man is made in God’s image.  It is His expectation that we do the utmost to preserve and defend ourselves when in danger, for it is He who is sovereign and who gives life, and He doesn’t expect us to be dismissive or cavalier about its loss.

…

If you believe that it is your Christian duty to allow your children to be harmed by evil-doers (and you actually allow it to happen) because you think Christ was a pacifist, you are no better than a child abuser or pedophile.

…

God demands violence as a response to threats on our person because of the fact that man is created in God’s image and life is to be preserved.  It is our solemn duty.

…

I am afraid there have been too many centuries of bad teaching endured by the church, but it makes sense to keep trying.  As I’ve explained before, the simplest and most compelling case for self defense lies in the decalogue.  Thou shall not murder means thou shall protect life.

…

If you’re willing to sacrifice the safety and health of your wife or children to the evils of abuse, kidnapping, sexual predation or death, God isn’t impressed with your fake morality.  Capable of stopping it and choosing not to, you’re no better than a child molester, and I wouldn’t allow you even to be around my grandchildren.

Indeed, all gun control is wicked.  The Bible does contain a few direct references to weapons control. There were many times throughout Israel’s history that it rebelled against God (in fact, it happened all the time). To mock His people back into submission to His Law, the Lord would often use wicked neighbors to punish Israel’s rebellion. Most notable were the Philistines and the Babylonians. 1 Samuel 13:19-22 relates the story: “Not a blacksmith could be found in the whole land of Israel, because the Philistines had said, “Otherwise the Hebrews will make swords or spears!” So all Israel went down to the Philistines to have their plowshares, mattocks, axes, and sickles sharpened…So on the day of battle not a soldier with Saul and Jonathan had a sword or spear in this hand; only Saul and his son Jonathan had them.” Nebuchadnezzar king of Babylon also removed all of the craftsmen from Israel during the Babylonian captivity (2 Kings 24:14). Both of these administrations were considered exceedingly wicked including their acts of weapons control.

John Calvin’s comments on this subject.  We do not need to prove that when a good thing is commanded, the evil thing that conflicts with it is forbidden.  There is no one who doesn’t concede this.  That the opposite duties are enjoined when evil things are forbidden will also be willingly admitted in common judgment.  Indeed, it is commonplace that when virtues are commended, their opposing vices are condemned.  But we demand something more than what these phrases commonly signify.  For by the virtue of contrary to the vice, men usually mean abstinence from that vice.  We say that the virtue goes beyond this to contrary duties and deeds.  Therefore in this commandment, “You shall not kill,” men’s common sense will see only that we must abstain from wronging anyone or desiring to do so.  Besides this, it contains, I say, the requirement that we give our neighbor’s life all the help we can … the purpose of the commandment always discloses to us whatever it there enjoins or forbids us to do” (Institutes of the Christian Religion, Vol. 1, Book 2, Chapter viii, Part 9).

Defense isn’t just against individuals who would endanger and oppress, but of groups of men as well, that is, the state.  Protection against tyranny is as much self defense as preventing or responding to a home invasion by criminals.

In summary, the Giffords Law Center is making arguments that not only contradict their own prior arguments and positions, demonstrating malfeasance and dishonesty in their intentions, but they make arguments that contradict the law of God.  Their arguments are anti-Christian.

Second Amendment Daily.

Boise, ID–When it all hits the fan, we might just head to Idaho.  Long known as a solid Second Amendment state, Idaho just raised the bar.

Idaho Governor Brad Little has signed a bill into law that extends the right of Constitutional Carry to all American citizens.  The law goes into effect on July 1st, 2020.  This means that gun owners don’t have to be residents of Idaho to exercise the right to concealed carry in the state.

This move was spearheaded by the Idaho Second Amendment Alliance, the biggest and most powerful gun group in the state.  Headed by Iraqi war veteran Greg Pruett, the organization has a no-holds-barred approach that has forced the conversation on guns to the right for years.

If you think .gov can’t focus on anything else amid the Covid-19 panic, think again.  Idaho did it.

Say, how’s that South Carolina constitutional carry / open carry thing coming?  Has it been derailed for yet another legislative session by the progs and their panty waist republican slave boys in South Carolina?

Ammoland.com.

While the news is filled with gloom and doom over Coronavirus scares, some good news came out of the West Virginia earlier today. WV Governor Jim Justice signed a bill that reinforces the state’s preemption law. Senate Bill 96 is part of a concerted effort by pro-gun politicians in WV to prevent anti-gun municipalities from passing anti-gun local ordinances that could restrict the rights of WV citizens.

The wording of Senate Bill 96 is very encompassing and deliberate. This is ideal for any legislation dealing with fundamental human rights as it helps prevent future politicians from resticting those rights by playing on the ambiguity them.

Well good.  But we’re not finished yet.  Not even nearly.

What about HB 4168?  I see the governor hasn’t signed it yet.  In fact, it isn’t clear to me that anything at all has been done with it since introduction.

What gives?  Why won’t WV legislators support gun rights?

USA Carry.

In what the Dallas Police Department is calling an expansion of alternate reporting methods, they are amending their response protocols to limit officer contact with the public for non-emergency and property-related offenses. They say that this will not affect their responses to crimes against persons and other “High Priority Calls”.

Instead of officer responses, victims are being asked to use the Dallas Online Reporting System and click on the “File a Police Report Online” tab. The Dept says that an investigation will be conducted just as if an officer had taken the report at the scene.

Among the low-level crimes affected are Burglary of a Motor Vehicle, Criminal Mischief, Reckless Damage, Shoplifting, Property Theft (Auto Accessories), and similar.

As a reminder to regular readers, and a brief primer for new readers, the police are under no legal obligation to protect anyone.

Castle Rock v. Gonzalez

Warren v. District of Columbia

DeShaney v. Winnebago County

For home invasions, I cannot offer legal advice, but it’s not a safe bet that the invaders are only there to steal property.

And just a reminder – never talk to the police.  That’s your lawyer’s job.