Duke University’s Arguments Against A Statutory Second Amendment

Herschel Smith · 22 May 2022 · 14 Comments

The Regulatory Review links a paper by Joseph Blocher of Duke University arguing against state preemption laws that prohibit more restrictive gun control statutes by cities and counties than instituted by the state itself.  The paper is entitled "Cities, Preemption, and the Statutory Second Amendment." He argues: As a practical matter, though, nothing has done more to shape contemporary gun regulation than state preemption laws, which fully or partially eliminate cities’ ability to…… [read more]

Universal Background Check And National Gun Registry

BY Herschel Smith
9 years, 6 months ago

I had previously said “Universal background checks have nothing whatsoever to do with keeping weapons out of the hands of criminals, or a reduction in violence of any sort.  The system, if set up, is a predecessor and necessary prerequisite to a national gun registry.”

Feinstein’s proposals:

The bill will exempt firearms used for hunting and will grandfather in guns and magazines owned before the law’s potential enactment. However, the grandfathered weapons will be logged in a national registry.

A national gun registry – it’s one of the touchstones of success for the statists.  And universal background checks and a national gun registry go together like a hand in a glove.  When they make laws they are looking long term.  In fact, take note of one part of her legislation.

The legislation being pushed by Feinstein — who has long history of calling for gun bans — would prohibit the sale, transfer, importation and manufacture of certain firearms.

Neocon Charles Krauthammer (no friend to the second amendment) theorized the approach for them.

It is simply crazy for a country as modern, industrial, advanced and now crowded as the United States to carry on its frontier infatuation with guns. Yes, we are a young country but the frontier has been closed for 100 years.

Ultimately, a civilized society must disarm its citizenry if it is to have a modicum of domestic tranquility of the kind enjoyed in sister democracies like Canada and Britain. Given the frontier history and individualist ideology of the United States, however, this will not come easily. It certainly cannot be done radically.

It will probably take one, maybe two generations. It might be 50 years before the United States gets to where Britain is today.

Passing a law like the assault weapons ban is a symbolic – purely symbolic – move in that direction. Its only real justification is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation. Its purpose is to spark debate, highlight the issue, make the case that the arms race between criminals and citizens is as dangerous as it is pointless.

De-escalation begins with a change in mentality. And that change in mentality starts with the symbolic yielding of certain types of weapons. The real steps, like the banning of handguns, will never occur unless this one is taken first, and even then not for decades.

What needs to happen before this change in mentality can occur? What must occur first – and this is where liberals are fighting the gun control issue from the wrong end – is a decrease in crime. So long as crime is ubiquitous, so long as Americans cannot entrust their personal safety to the authorities, they will never agree to disarm. There will be no gun control before there is real crime control.

Universal background checks and assault weapon bans are mere window dressing.  The goal is to desensitize the public and cause this to occur over one or two generations.  You can keep the rifle you just purchased.  But you must register it with the federal government and you cannot bequeath it to your children or grandchildren.  Thus do they wish to accomplish confiscation by means other than sending SWAT teams into your home.  The question is, will you let them?

The Gun Lobby, Or The Cross Lobby?

BY Herschel Smith
9 years, 6 months ago

Silly choice, it is.

As Sen. Dianne Feinstein D-Calif. opened her press conference on gun control today, she invited Dean of the National Cathedral Rev. Canon Gary Hall to offer a prayer.

Hall spoke briefly before the prayer, calling for Washington lawmakers to stop fearing the gun lobby and fulfill their “moral duty” to restrict guns.

“Everyone in this city seems to live in terror of the gun lobby,” Hall said. “But I believe that the gun lobby is no match for the cross lobby.”

Hall said that he could no longer justify a society that allowed ordinary citizens to keep and bear “assault weapons.”

“No longer justify” assault weapons.  Could you ever, Mr. Hall?  If so, why?  What was your reasoning back then when you could justify assault weapons?  Were you wrong then or are you wrong now?  Perhaps you could answer within the context of the Christian duty of self defense because of being created in God’s image.  Then tell me.  Do you really believe anything at all, or have you always been a political hack and sniveling lackey for those in power, willing to modify your beliefs based on the popular sentiment of the moment?


Guns And Religion

When Christians Discuss Guns

Christians, The Second Amendment And They Duty Of Self Defense

Guns And Religion

BY Herschel Smith
9 years, 6 months ago

Sam Rocha writes a scholarly commentary on guns and religion for us.

During Obama’s first go-round in 2008, there was a big flare-up surrounding his comment about rural voters bitterly clinging to guns or religion. It was the equivalent of Romney’s inelegant 47% remark from this past fiasco election.

I’ve already gone on the record about guns here: “Those Immune to Violence Arm and Disarm.” I hope I made myself clear. I am not impressed or persuaded by either side of the Newtown-fueled gun aftermath. I wrote, “I don’t have any solutions because I remain unconvinced that we have truly understood the problem — gun advocates and apologists alike be damned.”

Well there you go.  Mr. Rocha weighs in on people he has never met, for whom he has no responsibility, and over whom he has no authority, and places himself in the position of God.  He tells them to be damned.  The balance of the commentary is as puerile as the preceding.

The Twitter and Facebook noise has simmered down on one side of the issue (with a few annoying and predictable exceptions). There are no more breast-beating choirs demanding that we melt all guns or insisting that gun ownership makes you a serial killer or a Republican.

While this herd has apparently calmed down and moved to other pastures, there is a disturbing stream of meme’s and other social media apologetics on behalf of guns and against gun control.

Look: I don’t want to embarrass anybody and I am not trying to be nasty about this. I understand that it’s easy to get caught up in something like this amidst the new media flurry. I got rather carried away with Notre Dame football this season and we all saw how that turned out. Oh boy. How embarrassing!

Don’t worry about embarrassing people, Sam.  You’re embarrassing only yourself.  But it would pay to read a little more.  The chorus of voices calling for the heads of gun owners is only growing as the statists demand more powerful totalitarians to rule us.  That you don’t know this shows you’re ill-informed.  Finally, this.

What is perhaps more disturbing is the second point that Obama got wrong: it is not an either/or between guns or religion. It has become a both/and. There are many people—who I won’t single-out here—who equivocate their guns and their religion, together. And I don’t mean “the religion of guns” or the “state religion of gun ownership” or something clever and esoteric like that. What I mean is that there are creepy, growing signs that some people are beginning to get too close to being comfortable with something like this:

Then Sam graces us with this picture.

Continuing, he says “The prevailing argument seems to be that owning a gun is a God given right.”  Concluding, he says “Cling to love.”  Very well.  You go right ahead, Sam.  I’ll keep my guns, and you cling to love the next time someone invades your home and rapes your wife and you can’t stop them.  And as for owning a gun being a God-given right, that’s the only correct thing you said in the whole commentary, even if by accident to ridicule it.

Look, I simply cannot deal with every stupid commentary that comes out from a “Christian” perspective on firearms.  But Sam would do well to do just a little research before writing drivel like this.  Despite what he has seen in schoolroom pictures, Jesus was not a pacifist, Bohemian hippy.  He was God.  He is the scarlet thread running through the Scriptures.  He didn’t come to demolish the law.  He fulfilled the ceremonial law, and emphasized the moral law.  He lived a blameless life and died for the sins of His people.  Everything in His life was oriented towards this end.  His teachings were consistent with Old Testament law and the New Testament apostles.  There isn’t anything inconsistent.

Therefore, laws on honoring the image of God in man and self defense are still valid and binding.  As I have observed before:

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.

Back to the beginning of this silly commentary, Sam gives us this horrible cartoon.

Jesus has no trigger discipline.  Ridiculous … and sacreligious.  The commentary states no particular problem, poses no solution, and goes nowhere, with the addition of some stupid cartoons.  So why did Sam write it to begin with?  I don’t know.  But perhaps Sam should do some study prior to writing again.


When Christians Discuss Guns

Christians, The Second Amendment And The Duty Of Self Defense

Gun Free Zones

BY Herschel Smith
9 years, 6 months ago

Yesterday when the most recent shooting occurred in Texas, I remarked to a co-worker:

What’s the common element in all of these mass shootings?  Think about it.  A mall, schools, movie theaters and churches.  These are all “gun free” zones.  But they aren’t really gun free, because only the law-abiding citizens obey the law, and if you’re going to commit mass murder you are by the very definition NOT a law abiding citizen.  Laws stipulating gun free zones are by their very nature ineffective and impotent.  Get rid of the gun free zones and the calculus will change.

So David Codrea weighs in on this as well.

A shooting at a Houston college has left at least three people injured and at least one suspect in custody, The New York Times and other media sources reported today.

“Officials at the North Harris campus of Lone Star College announced an evacuation at 12:52 p.m. on its Web site, citing an incident involving ‘a couple of armed suspects,’” the report elaborated.

The suspects were in violation of Lone Star College policy and the law.

It is the policy of this System to prohibit the carrying of firearms, knives and clubs onto any of the System’s facilities,” the college’s weapons policy states. “The possession of firearms, illegal knives and prohibited knives on System facilities including parking areas and publicly accessed facilities is a violation of criminal law and Board policies. This prohibition includes licensed concealed handguns except as otherwise allowed by state law.

“Persons who violate the law and these policies will be subject to serious consequences, including referral for criminal prosecution, dismissal from school or discharge of employment,” the policy warns.

Read the rest of his report at Examiner.  Chance Ballew also weighs in with his characteristically accurate single line summary.

What? No Love For Shotguns?

BY Herschel Smith
9 years, 6 months ago

Field and Stream:

I heard the following story at SHOT from a friend in the industry:

A man walked into a gunstore looking for 5.56 ammo for his AR. As is not uncommon these days, the store was out.

“How about that box of ammo there? I’ll take it,” said the customer, pointing to a lone box of .416 Rigby on the nearly empty shelf.

“Do you have a .416 Rigby rifle?” asked the clerk.

“Nope,” said the man, reaching for his wallet. “I’ll take it anyway.”

Whether the story is true as in “it actually happened” I don’t know, but it rings true enough. There are lots of stories of people going to gunstores with $1,200 in their pocket looking for an AR. When they can’t find one they just buy a gun – any gun – a bolt action, a muzzleloader, whatever.

My local store has been out of Ruger 10/22 rimfires for months and can’t get more. There was a lone pink-stocked ugly duckling of a 10/22 that remained unsold after all the others were gone, but someone probably realized they could put an aftermarket stock on it and snapped it up. Or maybe they painted it or are just shooting it in the pink. Who knows?

The unfortunate thing from my point of view is, aside from guns for 3-gun, home defense and zombie shooting*, shotguns are not getting much love in this current buying frenzy. I did find enough to fill a gallery we’ll be posting soon, but rifles and handguns are where it’s at these days, sad to say. 

One commenter says “That’s because the nimrods out there buying ARs and high cap pistols don’t know much about home defense. If they did they would buy a short barreled shot gun and load it up with 00 buck. one of the very best home defense guns out there. This is just the start of what is to come. With all these dumbshits out there buying guns and have no idea how to use them. No training, no nothing !! BTW did any one see how high the prices are going?? Gun stores are making money by the handfuls, so thank-you Mr president.”

Well, yes, but also no.  The commenter isn’t aware of or doesn’t care to acknowledge that the AR is a legitimate home defense weapon.  But besides that, I’m not so sure about the author’s thesis.  If there was “no love for shotguns,” they should be more available than there are and still be about the same price.

A couple of months ago I stopped by Shooter’s Express in Belmont, N.C., to do some range practice with my daughter.  I had been looking for the best price on a Mossberg 930 SPX.  I found it at Shooter’s, for $620.  I was tempted to put down some money right then and get this on layaway.  But, I reasoned, it’ll be there in a month or two.

Right.  One of the worst decisions in recent memory.  The last time I checked they were asking around $1000 for this same shotgun (it’s probably gone today).  And as for availability, there isn’t a semi-automatic shotgun within 100 miles of here (I say 100 miles because I haven’t been beyond that).  None.  Not even at the best gun shops.

I might go to the upcoming gun show to see what’s there, but you know how that goes.  Ninety nine out of one hundred shows are worthless, and you have to have money anyway.  I’m tapped out.  But I still want my Mossberg 930.  I really do.  The only way I’ll ever have a Benelli is if they give me one for doing a review for them.  This blog has a page rank of five.  If it was ten, maybe I’d stand a chance at that.

Guns Tags:

Sheriffs, Legislators, Moral Decisions And Guns

BY Herschel Smith
9 years, 6 months ago

We previously discussed Sheriffs making moral, rather than self-preserving, decisions concerning the recent threats of unconstitutional gun controls by the federal government.  Sheriff Peyman is an example for others to follow, as are many other Sheriffs.  In Arizona:

“Out of 200 sheriffs with whom I’ve met, I’ve only had one give me a wishy-washy answer. That one said he would try to take the federal government to court,” Mack said. “Most of them have said they would lay down their lives first rather than allow any more federal control. They also said they would do everything they could to stop gun control and gun confiscation.”

From Oregon to Mississippi, Sheriffs are going on record saying “don’t tread on our people.”  Of particular note is this letter from the Utah Sheriff’s association.

We respect the office of the President of the United States of America.  But, make no mistake, as the duly-elected sheriffs of our respective counties, we will enforce the rights guaranteed to our citizens by the constitution.  No federal official will be permitted to descend upon constituents and take from them what the Bill of Rights – in particular Amendment II – has given to them.  We, like you, swore a solemn oath to protect and defend the Constitution of the United States, and we are prepared to trade our lives for the preservation of its traditional interpretation.”

This is a powerful note from honorable men, the only problem to my thinking being that the constitution didn’t give me the rights enumerated therein.  God did, and the founders recognized and codified them.

There are also legislators who have submited bills within their respective states making it a crime to enforce [upcoming] federal gun control.  The most recent example is in Arizona.

With the threat of new federal gun control laws and regulations looming, a state legislator wants to provide legal cover for Arizonans who do not want to obey them – and penalize federal officials who try to enforce them.

The proposal by Rep. Steve Smith, R-Maricopa, makes it illegal for any public servant to enforce “any act, law, statute, rule or regulation” of the federal government relating to personal firearms or accessories within the boundaries of Arizona. It defines public servants to include not just state and local employees but also legislators, judges, jurors, witnesses and consultants who perform government functions.

Well enough.  But then the equivocation begins.

Smith conceded in a conflict between federal and state laws, the federal is likely to prevail. Where he said his measure may be more effective is on any action the president takes on his own.

Obama announced he is issuing executive orders dealing with background checks, doing studies on gun violence and taking steps toward what could be new safety standards for weapons. Smith said in those cases, were the president is acting on his own with no specific law backing his position, a state law would have more effect.

No, no, no.  Listen to me, boys and girls.  The legislators needs to reach a moral decision point just like the Sheriffs have.  This isn’t a game, and the Sheriffs have said that they will lay down their very lives.  Don’t pass laws that you aren’t willing to enforce by the power of the state police and national guard if necessary.  If you don’t want to put DHS agents in the state penitentiary, then don’t waste your time.  You will leave yourselves with no moral authority whatsoever with the federal government or your own constituency.  You will look like cowards, and maybe you are.  Leave the moral tests to the real men and stay out of the way.  Courtroom brinksmanship is for the faint of heart.

In the mean time, Sheriffs in North Carolina have some soul searching to do in light of the leadership shown around the country by other Sheriffs.

Hundreds of people met Wednesday evening to talk passionately about the Second Amendment and their rights to bear arms.

Three local sheriffs, including Wake County’s Donnie Harrison, took part in the minutemen’s discussions in Zebulon. The meeting came just hours after President Obama unveiled his gun control plans.

A boiling point in the meeting came about midway through. When dozens inside and dozens more outside of the Fargo Cattle Company Steakhouse bristled about a possibility that the federal government could violate their Second Amendment rights.

“I don’t think that was answered correctly, or really answered at all,” said Wake County resident Jamie Miller.

“What we didn’t hear is that it doesn’t matter what they say, we’re not going to come and get your guns,” said Wayne County resident Adam Drissel.

What those in attendance heard repeatedly from Sheriffs Jerry Jones, Carey Winders and Donnie Harrison, respectively from Franklin, Wayne and Wake counties, was very similar.

“I’ll quit first, but nobody’s going to take your guns,” said Harrison.

“I don’t see any sheriff going house to house taking weapons,” said Winders. “Folks, there’s more people here than I got deputies. I’m going to tell you that.”

[ … ]

Each sheriff pledged to uphold the U.S. Constitution, but stopped short of addressing a hypothetical scenario. Instead, they urged the gun advocates to take their passions to lawmakers.

Take note of the reasoning: ” … there’s more people here than I got deputies.”  This is entirely a pragmatic demurral.  It sounds as if some of the Sheriffs should join the ranks of the politicians and leave the work of men to the men.

As I said, moral decision points.  When it comes down to your jobs, your safety, your livelihood and your wellbeing, what will you do?

Gun Ranting

BY Herschel Smith
9 years, 6 months ago

Fluffington Post:

If you hoard weapons for the express purpose of overturning the elected administration, then you are many things. A patriot isn’t one of them. Blind adherence to a single amendment does not make you a champion of the Constitution itself. Violent intent towards the duly-elected government does not make you a friend to the nation. There is in fact an accurate word for this species of plotting: treason.

Yes, I know — it’s a matter of arming civilians against tyranny. That in itself is not a monstrous concept, and you find something of that in the Founders’ fear of a standing army, and hence in the Second Amendment itself.

Note, however: you don’t get to define “tyrant” any which way you’d like. John Wilkes Booth, for example, clearly thought that Abraham Lincoln fit the description. After shooting the president, he famously announced: “sic semper tyrannis” (“thus always to tyrants”). Hence, he was simply exercising his constitutional rights, right?

Sadly for Booth, Americans did not much agree with his assessment of Lincoln. Booth saw himself as ridding the nation of a tyrant, but the nation mostly saw him as the treasonous assassin of their elected leader. See how this works? It’s all a matter of perspective, isn’t it.

Ignore the example he uses and everything else he says, and focus on his argument.  The popular vote determines the public good.  Or, might makes right.  It’s an appeal to authority, with the authority being determined in the voting booth.  It’s a form of the genetic fallacy.

Well, speaking of perspective, I have my weapons for a great multitude of reasons rather than for one express reason.  I guess that exempts me from his charges of treason.  As for being unpatriotic, regardless of who is in office or what the particular policy being debated, it seems terribly wrong to tell me that my rights are subject to a popular vote and that my perspective must be subservient to the poll.  If so, then they aren’t “rights” by any measure of the word.

The NRA On Universal Background Checks

BY Herschel Smith
9 years, 6 months ago

Kurt Hofmann:

Back in December, St. Louis Gun Rights Examiner predicted that a private sales ban is the most likely federal infringement on that which shall not be infringed–far easier to pass than banning so-called “assault weapons” (gun banner-speak for “regime change rifles“) or “high capacity” magazines (gun banner-speak for “standard capacity magazines”) will be.

If anything about that assessment has changed, the difference is that it looks still more accurate now. In that article, we noted that even many supposedly “pro-gun” Republicans have historically supported private sales bans even before the Sandy Hook atrocity created an anti-gun feeding frenzy that has terrified many of gun rights advocates’ less stalwart “allies” in Congress.

Since then, NRA president David Keene has made clear that the NRA is quite willing to trade Americans’ right to privately buy and sell firearms for . . . well, really for nothing but perhaps a bit of a delay before the gun prohibitionists renew their push to eviscerate every other aspect of the Constitutionally guaranteed, fundamental human right of the individual to keep and bear arms. The Hill, in an article titled “NRA chief ‘generally supportive’ of strong background checks” has video of Keene appearing on CBS This Morning, where he discussed the NRA’s surrender terms:

Read the rest at Examiner.  No, no, no, and a thousand times no.  The NRA cannot cave on this issue.  Ignore the claptrap about “caring for the children” and “making sure that weapons don’t fall into the hands of criminals.”  It’s all a ruse designed by the anti-gun lobby.  Universal background checks have nothing whatsoever to do with keeping weapons out of the hands of criminals, or a reduction in violence of any sort.  The system, if set up, is a predecessor and necessary prerequisite to a national gun registry.  This is evil to its very core.

So the next time you hear this claptrap, if it comes from ignorant people, educate them.  If it comes from people who know better, call them a liar.  If it comes from the NRA, tell them that they’re cowards and do not represent your interests.  And then tell them that you want to see them thrown out on their heads so that they can be replaced with people who honor the second amendment.

No surrender, no retreat.  Not … one … inch.

Prior: Against Universal Background Checks

Range Practice

BY Herschel Smith
9 years, 6 months ago

Last Carbine magazine of the day, 50 feet, rapid fire, nine of fifteen shots in a one inch diameter circle.

Guns Tags:

Against Universal Background Checks

BY Herschel Smith
9 years, 6 months ago

It might have been part of his overall plan.  Mr. Obama has succeeded in spinning things up to the point that if he trots out anything less that full blown gun confiscation, people will say, “Oh thank God.  We can live with what he’s proposing.”

But be careful what you wish for.  The proposal that stands the best chance of passing happens to be the most insidious.

Hours before President Barack Obama’s official swearing-in to a second term, top Democrats predicted a victory for the broadest component of the White House’s push to change the nation’s gun laws.

During an interview on NBC’s “Meet the Press,” Sen. Chuck Schumer, N.Y., called legislation to institute universal background checks for gun buyers “the sweet spot.”

“In terms of actually making us safer and having a good chance of passing, this is it,” Schumer said on Sunday.

“I think you’re going to see [the very likelihood] in the next week or two a proposal that has broad support for universal background checks,” he added.

We’ve dealt with this issue before, how the phrase “gun show loophole” is a disingenuous invention of the gun control lobby, and how it would turn grandpa into a felon if he gifts his grandson with a .22 rifle under the Christmas tree.

Take careful note that there will be no more sales of firearms between hunting buddies, and no more exchange of guns between friends in church or at work, without paying a transfer fee to a federal firearms license.

It has been observed that a universal background check may be unenforceable.

There are 300 million guns currently in circulation and the federal government doesn’t have any data on who owns what. There’s no national registry for guns. All the federal trace data shows is who originally bought the gun from a licensed dealer.

“So let’s say a universal background check law passes and a gun I bought back in 2008 shows up on a Chicago crime scene a month from now,” says Ludwig. “The police show up at my door and ask who I sold it to. I say I sold it before the [universal background check] passed and at that time I wasn’t required to ask any questions.” There would be no way for police to know if he had complied with the law or not.

Relying on the notion that the federal government cannot ascertain whether you’re a felon because they lack the data is a horrible way to proceed.  Besides, as gun serial numbers are tracked by manufacturers, time goes by, and guns gradually go out of circulation, all it takes is a few executive orders to nationalize an electronic database of information from form 4473’s, and presto, there you have a national gun registry.

I firmly and unapologetically believe that all federal laws and regulations concerning firearms are unconstitutional.  But even if you don’t, and if you don’t fight the universal background check, remember the times.

Mr. Obama may very well get his desire for anti-gun legacy, and it may come as a Trojan horse, promising safety and security, but bringing onerous federal control that affects generations to come.

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