Archive for the 'Second Amendment' Category



Guns Aren’t A Bulwark Against Tyranny: The Rule Of Law Is

BY Herschel Smith
1 day, 14 hours ago

So says Michael Shermer of Skeptic magazine:

Gun-rights advocates also make the grandiose claim that gun ownership is a deterrent against tyrannical governments. Indeed, the wording of the Second Amendment makes this point explicitly: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” That may have made sense in the 1770s, when breech-loading flintlock muskets were the primary weapons tyrants used to conquer other peoples and subdue their own citizens who could, in turn, equalize the power equation by arming themselves with equivalent firepower. But that is no longer true.

If you think stock piling firearms from the local Guns and Guitars store, where the Las Vegas shooter purchased some of his many weapons, and dressing up in camouflage and body armor is going to protect you from an American military capable of delivering tanks and armored vehicles full Navy SEALs to your door, you’re delusional. The tragic incidents at Ruby Ridge, in Idaho, and Waco, Tex., in the 1990s, in which citizens armed to the teeth collided with government agencies and lost badly, is a case study for what would happen were the citizenry to rise up in violence against the state today.

Gun Rights Update In Delaware Courtesy Of The Delaware Supreme Court

BY Herschel Smith
1 day, 14 hours ago

I covered this earlier when it was argued before the Delaware Supreme Court.  Of course, the legal system in Delaware was arguing before the court that they couldn’t carry firearms.  This exchange followed in deliberations, and then I asked a pointed question.

Valihura also pressed Durstein about an individual’s right to carry a gun for self-defense, which he argued is less acute in a park tent or cabin than in a person’s home. Durstein said the trade-off for banning guns is a commitment by the state to provide law enforcement in state parks.

“Your own regs state that camping is at your own risk, state forests are a public use area and there are no after-hours, nighttime or weekend security,” Valihura noted.

With no evidentiary record to draw on, Justice James Vaughn also wondered about the protection being afforded park visitors.

“We have no idea how much police security is actually provided in these state parks, do we?” Vaughn asked. “I’ve been in them. Occasionally you’ll see a ranger go by, something like that, but I don’t seen any police presence in there.”

I posed this.

Why the hell does the legal system keep promulgating this idiotic myth that the police are there to protect anyone?  They aren’t, and they know it.  And the police know it.  The only people who don’t know it are the peasants who think the police will come to their rescue.

Remember.  In the 1981 decision in Warren v. District of Columbia the D.C. Court of Appeals concluded that it is a “fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen.”  In Castle Rock v. Gonzales (2005), the Supreme Court declined to expand any requirements for protection and ruled that the police cannot be sued for failure to protect individuals, even when restraining orders were in place.

Maybe the Supreme Court listened.

Delaware Supreme Court justices have ruled that a weapons ban in Delaware’s state parks and forests is unconstitutional.

As of 4 p.m. Thursday, it is now legal to bring firearms into state parks and forests. Since the 1960s, a ban on firearms has prohibited people, even those with a permit, to carry a concealed, deadly weapon on thousands of acres of state-owned parks.

A similar ban concerning state forests followed in the 1970s. Those rules did include exceptions for hunting, which did not apply to people carrying concealed weapons for self-defense.

Gun advocates who fought the ban are applauding the decision, which they say upholds a God-given right to bear arms.

“They did the right thing,” said Jeff Hague, one of several plaintiffs named in the lawsuit originally filed in Chancery Court in 2015. “This reaffirms the constitutional right that Delawareans have … to self-defense and the right to keep and bear arms, not just in hunting and fishing and sporting, but in defense of their family and home.”

Hague, who serves as the treasurer of the Bridgeville Rifle and Pistol Club and president of the Delaware State Sportsmen’s Association.

Who knows.  If I didn’t persuade them, I’m glad somebody did.

How We Got The Hughes Amendment

BY Herschel Smith
1 month, 2 weeks ago

KUOW.org:

Lawmakers on Capitol Hill have tried banning certain guns before. Nearly two decades ago, they barred the sale of semiautomatic assault weapons, only to let that law lapse 10 years later. But one gun ban has stayed on the books: a measure Congress passed a quarter-century ago making it illegal for civilians to buy or sell any machine gun made from that date forward. That legislation passed with the blessing of the National Rifle Association, which now opposes gun control measures.

In April 1986, after months of efforts, the NRA had finally rallied enough support in the Democratic-controlled House to force a bill onto the floor. The so-called Firearms Owners’ Protection Act would undo many of the provisions in the 1968 Gun Control Act, passed shortly after Robert Kennedy and Martin Luther King were shot dead.

But just as the bill was about to come to a final vote in that tumultuous House session, New Jersey Democrat William Hughes introduced an amendment. It would forbid the sale to civilians of all machine guns made after the law took effect.

There were enough Democrats to pass the amendment, so nobody objected when the presiding officer, New York Democrat Charles Rangel, called for a voice vote rather than a roll call vote on the machine gun ban.

Former NRA lobbyist Richard Feldman, who has since parted ways with the organization, tells NPR that Wayne LaPierre, currently NRA’s executive vice president, was willing to let the machine gun ban go forward if it meant the larger bill it was attached to would pass.

“I remember very well having dinner … with Wayne LaPierre on the big victory after it passed the House,” he says. “And we weren’t too concerned about the machine gun issue, but it came back to haunt Warren Cassidy.”

At the time, Cassidy headed the NRA’s lobby, the Institute for Legislative Action. He confirms now that LaPierre, who did not respond to a request for comment, pushed hard to let the machine gun ban stand.

“He said, ‘I want to do it. I think we have to do it.’ So I said yes, and that was the end of the story. It passed, and as we learned immediately, an element of NRA, a very vociferous element of NRA … determined that it just couldn’t be that way,” Cassidy says. “We couldn’t give an inch. I don’t think they ever forgave me for it.”

Gun laws expert Robert Spitzer of the State University of New York at Cortland says the bill President Reagan signed into law was more significant than it was perceived at the time.

“One can view the Congress’ action in 1986 to ban civilian possession of fully automatic weapons as something of a kind of a precedent that would open the door for restricting civilian access to semiautomatic, assault-style weapons,” Spitzer says.

Spitzer says a major reason the machine gun ban met so little resistance was a 1934 law passed a month after outlaws Bonnie Parker and Clyde Barrow were killed in a hail of machine gun bullets. It required machine gun owners to pay a hefty tax, be fingerprinted and be listed on a national registry.

As a result, he says, sales of machine guns plummeted.

“It is a good example of something that is little known, which is a gun control law that was pretty effective in keeping such weapons out of civilian hands,” he says. “So by 1986, when the provision was added to the Firearm Owners’ Protection Act to bar any newly produced fully automatic weapon from possession by civilians, it was really a fairly small step to make, because so few of them were in circulation to begin with.”

This piece is dated, but it makes sense to rehearse the facts every once in a while.  We have the Hughes amendment because the NRA wanted it.  And one particular foci was “sporting purposes.”

As I’ve said before, with friends like that, who needs enemies?

The Professor And Mr. Codrea

BY Herschel Smith
1 month, 2 weeks ago

David Codrea at Ammoland.

“Substantial numbers of constitutional scholars … believe that the Supreme Court’s 5-4 decision was wrong … and I am among the dissenters as well,” he discloses to no one’s surprise. “Even so, the Constitution has never been interpreted in a way that would give people the right to have firearms in their possession anywhere they want and for whatever reason they want.”

Here’s a news flash for you, genius.  You don’t get to dissent.  You’re not a justice on the Supreme Court.  You’re an ass-clown.

“Although the Supreme Court has never credited the ‘citizen uprising; theory of the Second Amendment, there are plenty of people who think that their arsenals are a bulwark against a tyrannical government,” Buchanan continues. “How they think they would win against the weaponry of the modern military is anyone’s guess, of course, but that is beside the point here.”

Well, it isn’t beside the point if you brought it up, and you did bring it up.  Since you brought it up, I get to call you an idiot.

There.  Enough of that and on to something I wanted to address as part of this piece.  One of the commenters writes this.

In a way Buchanan is right. The constitution is irrelevant as one’s right to self defense need not be codified by The State to be law. The problem again with people like Codrea is that they are binary Statists: Democrat/Republican, Legislation/No Legislation. Although you may think that Codrea gets it, he doesn’t. He mistakes legislation for law and can’t see freedom existing without the central state…which BTW “The State” and “Freedom” are mutually exclusive entities.

“We will not disarm.” is a strong statement from a fellow who sees the State as the final arbiter of whether you can make a gun quiet. My inkling is that Codrea would be the first turn turn in his arms if the State mandated it.

Now David is a big boy and doesn’t need me to defend him, but I will anyway.  This commenter must not know David very well, or the concept of covenant.  We’ve discussed it many times before.  The Constitution (and BoR) is a covenant, bringing blessings and curses as corollaries to obedience and disobedience.

If we or the government fail to live by the covenant, the guilty party both (a) suffers in the here and now for it, partly in that the curses are invoked (in this case meaning that tyranny is held accountable, or at least it should be), and (b) God holds us all accountable for obedience to our covenantal obligations.  The WCF is very solemn on entry into oath and vows.  God knows everything we do and will hold us accountable.

It makes good sense for peaceable men to try to persuade others to live by their covenantal obligations.  That is certainly not the same thing as recognizing that our rights and obligations are ultimately rooted in God and His law-word, and the fact that we are made in His image.  Turning this truth into a simpleton’s statement on “binary statists” is stolid and unthoughtful.  I can’t stand unthoughtful men.

For heaven’s sake, turn on at least part of your brain before commenting.  Or have your first cup of coffee before typing.  Or something.

Gun Laws The Founding Fathers Loved

BY Herschel Smith
1 month, 3 weeks ago

Or so the author wants you to believe.

#1: Registration

Today American gun rights advocates typically oppose any form of registration – even though such schemes are common in every other industrial democracy – and typically argue that registration violates the Second Amendment. This claim is also hard to square with the history of the nation’s founding. All of the colonies – apart from Quaker-dominated Pennsylvania, the one colony in which religious pacifists blocked the creation of a militia – enrolled local citizens, white men between the ages of 16-60 in state-regulated militias. The colonies and then the newly independent states kept track of these privately owned weapons required for militia service. Men could be fined if they reported to a muster without a well-maintained weapon in working condition.

#2: Public carry

The modern gun rights movement has aggressively pursued the goal of expanding the right to carry firearms in public.

The American colonies inherited a variety of restrictions that evolved under English Common Law. In 18th-century England, armed travel was limited to a few well-defined occasions such as assisting justices of the peace and constables. Members of the upper classes also had a limited exception to travel with arms. Concealable weapons such as handguns were subject to even more stringent restrictions. The city of London banned public carry of these weapons entirely.

The American Revolution did not sweep away English common law. In fact, most colonies adopted common law as it had been interpreted in the colonies prior to independence, including the ban on traveling armed in populated areas. Thus, there was no general right of armed travel when the Second Amendment was adopted, and certainly no right to travel with concealed weapons. Such a right first emerged in the United States in the slave South decades after the Second Amendment was adopted. The market revolution of the early 19th century made cheap and reliable hand guns readily available. Southern murder rates soared as a result.

And so on his missive goes.  But equating the requirement to be an active member of the militia and registering your firearms with the central authority are most certainly not the same thing, he’s only pretending they are.  In fact, they have nothing whatsoever to do with each other.  He also includes the evidence he wants and excludes other evidence, like Adam Winkler who claims that the West had virtually ubiquitous gun control laws prohibiting men from carrying within the city limits, when in reality he can cite only a couple of examples of such control, one of which led to a shoot-out.  As for owning and carrying weapons, we all know how the colonists saw that.

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.

Seeing life in the Colonies any other way is simply make-believe.  Similarly, one particular Reddit/r/Firearms entry several days ago argued that the second amendment was basically all about the requirement to have formal, government-approved militias in order to put down potential challenges to the power of the government.  His self serving and pedantic title is “What was going on in America that caused the founding fathers to create the second amendment?”

The answer to this can be given in short order: the revolution.  The second amendment was written by men who risked their livelihoods, their wealth, their fortunes, their lives, and the lives of their families to overthrow the government under which they lived.  They used cannon when they had them, and would have been quite happy to have used semi- or fully-automatic weapons.  To argue differently is idiotic, with the founders who wrote the very amendment under debate having seen the bloodshed, lose of life, loss of limb, and pain they had witnessed during the war of independence.

These are all attacks on our rights, taking for form of scholarship.  But scholarship it isn’t, and the weakest thing about all of it is that they are only hastening the very apocalypse they fear.  For our rights don’t come from the constitution, but from the Almighty.  Their attack on the constitution is an attach on the agreement which binds us, not the source of our rights.  By attacking the agreement, they are saying they no longer intend to honor the agreement.  The constitution is a covenant, with blessings and curses as corollaries.  Obedience and honoring of said covenant brings peace, violation of it brings violence, destruction and death.

Men don’t get to decide to dishonor our rights with impunity.  God has a say in this matter, and when He speaks, it is done.

National Review On Bump Stocks And Fourth Generation Warfare

BY Herschel Smith
2 months ago

Reading National Review Online has become drudgery, with their never-Trumpism and pseudo-progressivism just remarkably wearisome.  Most times I almost can’t stand it.  But occasionally something comes across my desk that needs to be addressed.

Beltway boob Robert Verbruggen waxes know-nothing on bump stocks.

There is no good reason to make fully automatic weapons or their equivalents generally available to the public. The Second Amendment doesn’t require it: The Supreme Court’s Heller ruling took care to explain why it didn’t apply to weapons that are “dangerous or unusual” or not in “common use,” including “M-16 rifles and the like.” This is strongly supported by previous Supreme Court precedent (the “common use” standard comes from 1939’s U.S. v. Miller). It is also consistent with history: The Heller Court explained that there is a strong tradition of prohibiting the carrying of especially dangerous weapons, and that “the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.” There may be an argument that the Court got it wrong — that the people are to be allowed any kind of firearm that exists, all the better for resisting tyranny — but few constitutional rights are so broad in scope as to completely override any threat to public safety they pose. And, if nothing else, imposing such a broad interpretation is a good way to get the Second Amendment repealed.

Self-defense is not a compelling reason for bump stocks to be easily available, either. Outside of a war zone, one would not fire a fully automatic weapon at an intruder indoors or carry one in the streets late at night. Full autos are also not hunting weapons, or tools suited to pinpoint-accurate target shooting. About all that can be said for them is that they’re fun to shoot, at least for those who can afford the copious amounts of ammunition they burn at dramatically reduced accuracy. That would be enough if the case against them were weak, but it’s not. Weapons equipped with these devices let off far more rounds, far more quickly, than do the semiautomatic weapons commonly used for hunting and self-defense. Unleashed on a crowd, even from hundreds of yards away, they can produce unprecedented casualties.

The second amendment was written by men who risked their livelihoods, their wealth, their fortunes, their lives, and the lives of their families to overthrow the government under which they lived.  They used cannon when they had them, and would have been quite happy to have used semi- or fully-automatic weapons.  To argue differently is idiotic, with the founders who wrote the very amendment under debate having seen the bloodshed, lose of life, loss of limb, and pain they had witnessed during the war of independence.

Public safety wasn’t the apex of their concerns, and in addition to being a war against England, the war of independence was a civil war.  In fact, it was primarily a civil war, and would have been over in a month had all of the colonists been patriots.  As far as the “unprecedented casualties, if the shooter could have gotten fertilizer byproducts into the hotel – and one may conclude that he could have given the large cache of weapons and ammunition we carried to his rooms – he could have caused significant casualties, and even more than his shooting if he had been able to get explosives and shrapnel under the stage or in or near the concert that night.  Moreover, I have argued and will continue to argue that if he had used semi-automatic fire and aimed with good optics, the casualty count could have been much higher.  So others argue as well who know more than I do.

What if the Fedgov going to do, outlaw fertilizer?  Bump fire stocks can be mimicked with rubber bands, a fact that beltway boob apparently doesn’t know since he likely doesn’t even know anyone who owns a gun, much less make it to the flyover states to learn about the people anywhere besides the beltway.  Are we going to outlaw rubber bands too?  Dismissing rubber bands, since that is a silly alternative to either slide fire stocks or fully automatic, is he going to outlaw people like Jerry Miculek who can fire (accurately, mind you) virtually as fast as fully automatic with his finger?  Many professional 3-gun competitors can do that.

My own son Daniel has said to me many times that he never needed automatic capabilities in the Marines (he was a SAW gunner, but carried an M4 on occasion).  The Marines had shot so many rounds down range, and in close quarters battle training, that they could put three rounds into an enemy as fast as the three-round burst on the M4.  Beltway boob is just looking for someone or something to blame, and it doesn’t bother me one bit that the progressives are after my rights.  My rights come from God, not the second amendment, and I’ll defend them as such.

Now on to a more daffy commentary today at NR by Michael Brendan Dougherty.

Alert readers (and listeners) will know that on a philosophical level, I’m a squish on the gun stuff. I find it embarrassing that the United States is “exceptional” in the amount of violence its people inflict on one another, and themselves, with handguns. And I’m skeptical about the utility of an unqualified right to acquire weapons of such lethality. My colleague Kevin Williamson says that the right to bear arms makes us citizens and not subjects. And I agree, up to a point …

[ … ]

Sometimes people put Schermer’s argument more baldly. They ask something like this: “Do you really think Bubba in camo gear hiding in the forest is going to take on the U.S. military? The U.S. military has nuclear weapons!”

Who exactly do you think has stymied the U.S. in Afghanistan for 16 years? The Taliban is made up of Afghan Bubbas. The Taliban doesn’t need to defeat nuclear weapons, though they are humiliating a nuclear power for the second time in history. They use a mix of Kalashnikovs and WWII-era bolt-action rifles. Determined insurgencies are really difficult to fight, even if they are only armed with Enfield rifles and you can target them with a TOW missiles system that can spot a cat in the dark from two miles away. In Iraq, expensive tanks were destroyed with simple improvised explosives.

He goes on to discuss the moral costs of such warfare against its own citizens.  But this all misses the point, and while the U.S. military goes about its business preparing for fifth generation warfare, they do so because they haven’t learned how to win fourth generation warfare and are planning their next engagement being a near-peer.

Do you suppose this would look like great land armies getting into formation at the edges of great fields of battle and marching towards each other?  What do you think such a messy civil war in America would look like?  Bubba would be wearing a Ghillie suit, shooting a bolt action rifle, or a modern sporting rifle, and after the shot you will never hear from him again – until the next one.  And you’ll never catch him.  Police will have to decide what side to take, and if they take the wrong one, they will be dealt with in the middle of the night when they take their dogs out to pee in the backyard.

Insurgent will be mixed with progressive statist, and there will be no SEAL teams or nuclear weapons to which you can turn because you won’t know one from another.  There will be nowhere to target a nuclear weapon, and nowhere for a SEAL team to raid.  All of their close quarters battle preparations will be for naught when their own families are in peril due to civil warfare.  These aren’t Afghan tribesmen you’re dealing with.  These are engineers, mechanics, fabricators and welders, chemists, and the world’s best machinists.  If you think Afghanistan was rough, wait to see what civil war would look like in America.

If you have ever said something like, “You can’t win because the government has a land army and nuclear weapons,” here is the moral of the story for you.  You are an idiot.  You haven’t thought through this well enough, and you need to see the second amendment for what it really is.  It is the best guarantor of peace because tyranny is mutually assured destruction.  The statists know that, or else America will suffer the consequences.

However, given the insular life of the metro-riders inside the beltway, I wouldn’t expect anything else out of National Review.  Behind, out of touch, and out of commission.

Australian Authorities Punish Man For Defending His Family

BY Herschel Smith
2 months, 1 week ago

NRA-ILA:

At 3 a.m. on September 14, David Dunstan was alerted to a suspicious noise on his Bungowannah, NSW farm where he lives with his wife and three children. When he went outside his house to investigate the disturbance, Dunston came upon a man armed with a piece of wood and a knife.

Concerned for his family’s safety, Dunstan, a licensed gun owner, retrieved a .22-caliber rifle from a locked gun cabinet, and without loading it, confronted the trespasser. Describing his mindset to the Herald Sun, Dunstan said, “I went into protection mode … I yelled out to Andrea (his wife) to get the key to the gun cupboard.” Dunstan then used the unloaded rifle to detain the knife-wielding man until police could arrive. Police later determined that the trespasser had attempted to enter a child’s bedroom at another home before going to the Dunstan property.

[ … ]

When law enforcement came to Dunstan’s farm to investigate the incident, police confiscated the rifle he used to defend his family, along with two others. Upset, Dunstan told the Herald Sun, “What are you supposed to do if someone was breaking into your house… I don’t know what, as a law-abiding citizen of Australia, we’re supposed to do?” Dunston went on to say, “The police have handled this the wrong way (and) I can’t get an answer out of them.” 

Lamenting the lack of respect for armed self-defense in Australia, Dunstan told Yahoo7 News, “You go and break into someone’s house you can be expected to either get arrested, shot or you could be maybe killed… And until that happens this sort of stuff keeps going on.”

Gun rights advocate and Liberal Democratic Senator for New South Wales David Leyonhjelm has come to Dunstan’s defense. In an interview with Yahoo7 News, Sen. Leyonhjelm said, “Dave was defending his family against a threat. He did what any normal father would do.”

Speaking with the Border Mail, Dunstan remarked, “I just don’t know what I should have done, what would have been the right way to do it.” Sadly, in the Land Down Under there doesn’t seem to be a “right way” for the law-abiding to fight back against criminal violence.

Thanks to the NRA writers for bringing this to our attention.  This is what it looks like with state monopoly on violence at the worst inflection point, the extremum.

A man must allow a criminal to violate his home and property, harm his children, and potentially rape his wife of even kill his family members because only law enforcement is allowed to have firearms.

A government that abuses its people and violates or gives up that “mandate of heaven,” as Mike Vanderboegh used to call it, must confiscate weapons because of that fear.  Confiscation of weapons cannot admit to any stipulation or suffer any exception.  Weapons means all weapons, for any purpose at all.

Having no weapons means that a man cannot perform his God-given duty of defense of family.  Thus, you cannot allow the state to confiscate weapons, no matter how much they fear you and want you disarmed.

Brits Versus Guns

BY Herschel Smith
4 months ago

Charles C.W. Cooke:

Is it cherished in Britain, a nation that has been on the front lines of late? In this area, no, it is not. I traveled back to my home country just after the latest terror attack to cover the recent elections. While there, I put Noble’s idea to my family and friends, and was met with the sort of incredulous, mouth-agape reaction that I’d expect if I had suggested invading Norway with just a pocket square for protection. “If these attacks become quotidian,” I asked, “do you think that the British will need to rethink guns?” The answers: No, no, no, no and no. Indeed, my interlocutors could scarcely have been more emphatic if I’d advised them to buy a fighter jet.

The British, to put it lightly, do not like guns. They don’t want guns. And, in all likelihood, they’re not going to change their minds on that point. Americans who are wondering if the Brits are on the verge of a sea change here should understand this: They’re not. Not even close. Culture matters, and the United Kingdom has shifted on this. In 1688, the right to bear arms was cherished; today, it is seen as a relic. Were a politician to run on the promise of liberalizing the gun laws, he would lose—badly. This is, to borrow a line from Monty Python, a dead parrot.

Well, that’s too bad.  Then they will suffer under the yoke of violence and Islamic Sharia.  There can be no other end for them.  Keep a stiff upper lip, Brits.  It’s the English way.

As for Charles, he wants liberty, he wants the lack of such a yoke of bondage, but since he doesn’t understand where America’s freedom comes from, he will never really understand guns or their availability in the U.S.  You see, Americans retain the right to replace their government, by force if necessary.  This comes from the Calvinian concept of covenant, passed through to the pastors, thinkers and other men who risked their lives, families and wealth to secure their liberty from a tyrant.  I’ve discussed this in great detail before, and so I won’t rehearse it again here.  But suffice it to say that God gives me rights and duties, not any piece of parchment.  That piece of parchment represents the agreement of the government to live in accordance with said stipulations, just as do I.

The reason for my reticence on Charles?  He is an atheist.

Analysis of Wrenn v. District Of Columbia

BY Herschel Smith
4 months, 1 week ago

Via Dave Hardy, this analysis comes from Joseph Blocher.

Second Amendment battles after Heller have generally been fought along two dimensions: the scope of the Amendment’s coverage, and the degree of protection it accords to the people, arms, and activities that it covers. In important respects, the panel decision in Wrenn departs from most other circuits on both of those dimensions.

Courts have overwhelmingly held or, or at least assumed, that the Second Amendment has some application outside the home. The panel decision follows that trend. Even Judge Karen Henderson’s dissenting opinion assumes that the right to keep and bear arms extends outside the home.

From there, however, the panel opinion breaks new ground, concluding that Second Amendment must have the same application outside the home as it does inside it. The majority reaches this conclusion based largely on its belief that the rights to “keep” and “bear” are “Constitutional twin[s],” and exist “on par.” Because they are both fundamental, the court treats the right to bear arms outside the home nearly identically to the right to keep arms inside it, despite the fact that Heller said the right to armed self defense is “most acute” in the home and weapons have always been regulated more strictly in public, especially in urban areas.

This doctrinal conclusion will surely be contested.  But even if the two rights are separate and fundamental, it does not follow as a matter of law that they must be subject to the same doctrinal tests. The constitution protects lots of fundamental rights, but uses a wide range of legal tests: strict scrutiny, intermediate scrutiny, undue burdens, and the like.

What’s most striking about the panel opinion, however, is the short shrift it gives to the governmental interest in regulation. The motion at issue sought a preliminary injunction, but the panel remanded with instructions to enter permanent injunctions against the proper reason restriction “regardless of its precise benefits.” To find a law—which, again, was nota complete ban—categorically unconstitutional without even considering the government’s asserted interest, is a remarkable step.

The panel’s refusal to permit evidence on the constitutionality of the law makes it impossible to actually answer the questions that the panel opinion itself raises: Whether DC residents retain adequate alternative methods of self-defense, for example. An affirmative answer to that question would support the law’s constitutionality, but would require some consideration of evidence.

More fundamentally, the panel’s approach threatens to inexorably expand Second Amendment rights, erasing at each step the qualifications built into the step before. Heller itself was deeply conflicted about how to incorporate the history of gun regulation, and the historical evidence about the extent of that regulation has only grown since then—a fact that should be particularly important to those who care about original public meaning. Likewise, courts before Heller upheld a wide variety of gun regulations, on a wide range of theories. The panel opinion, however, disregards a great many such cases on the basis that they were decided at a time (i.e., prior to 2008) when the overwhelming constitutional consensus was that the Second Amendment did not protect a right to keep and bear arms for private purposes.

Read the rest of his insightful analysis.

I’ve always said that Heller was a weak decision in that it didn’t fully recognize the right of self defense outside the home, and have said so many times.  Perhaps it’s all Scalia could get out of the majority in his Heller decision.

Either way, the appeals court is doing the heavy lifting for the now-deceased Scalia.  It’s almost like they read the part about “shall not be infringed,” yes?

Open Carry Of Knives And Swords In Texas

BY Herschel Smith
5 months ago

ABC13.com:

In less than two months, Texas will enact a new open carry law for knives and swords.

Last week, Gov. Greg Abbott signed House Bill 1935 into law.

Starting Sept. 1, it will be legal for adults in Texas to open carry knives, daggers and swords.

The law bans long knives from being carried into schools, colleges, churches and bars.

Read more about House Bill 1935 here.

Well good, but only sort of.  As I’ve pointed out, every man carries a knife everywhere.  Or at least he should.  But what’s up with this continued prohibition of knives into places of worship?  As if somehow one is safe from wicked men who would do harm while they are worshipping.

In fact, if you ponder for a moment what’s happening in most Christian worship services, you are likely at your most vulnerable, both you and your family.  You are in a crowd, there is limited ingress and egress, your attention is focused somewhere else other than threat assessment, and so on.

It’s the same silliness that pervades lawmakers’ prohibition of guns in worship.  Ignore it, and while open carry of guns is now legal in Texas, we need to continue to make changes in the law obviating the requirement to have a permit at all, and minimizing the number of businesses that post against open carry (I know, I made a recent visit to Texas).  It’s especially bad in Austin.

There is more work to do.  In the mean time, if you live in Texas, carry a large fixed blade knife with you (like a Ka-Bar) and send me a picture whenever this becomes legal.  Or before.


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