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]

Virginia Sheriffs On 2A Sanctuaries

BY Herschel Smith
2 years, 7 months ago

Be careful what you ascribe to county Sheriffs and just how much faith you place in them.  These statements ring troubling.

Nelson County Sheriff David Hill said to him, the Constitution is the Constitution.

“As a constitutional officer — as sheriff — I’m here to protect the rights of citizens against things like unlawful search and seizure. State and federal agencies don’t come in unless we ask them to. As far as sanctuaries; the individual has the right to bear arms. As long as they have proper credentials, then that’s fine. Our office isn’t going to knock on doors and we aren’t going to allow people to come in and round up firearms and what have you. If [the individual is] mentally competent and not a felon, there shouldn’t be a problem. As long as the Constitution reads the way I read it, we’re going to be okay,” Hill said.

Hill said he believes any changes on the state level are to ensure the safety of everyone and shouldn’t impact those who should be able to have guns.

He’s surely lying or very misguided if he says that changes on the state level are to “ensure the safety of everyone and shouldn’t impact those who should be able to have guns.”

He’s surely got to know better.  He must know the true nature of the controllers, and he has surely seen the proposed laws outlawing modern sporting rifles, a feature of discussion in virtually every resolution I’ve seen (with citizens defending their right to own such weapons).  If by “who should be able to have guns” he means bolt action rifles, that won’t be good enough.  And if he means that as long as the FedGov or state doesn’t red flag someone or put them on a prohibited list then he’ll let them exercise their rights, that won’t be good enough.  He has surely read the proposed laws and seen the debates.  He’s troubled because the times are troubled, and he’s currently riding the fence.  He doesn’t know what to do, and thus reverts back to the “wait and see” approach.  The controllers aren’t backing down, and this is going to happen.  Wait and see means don’t bother me with this right now.

He finishes up with this.  “That’s the ultimate goal to keep guns away from felons and those with mental disabilities. They want to put up safeguards to keep people safe. But coming in and taking all firearms? That’s not going to happen,” Hill said.  So, he support red flag laws.

Appomattox Sheriff-elect Donald Simpson said the laws people are voicing their concerns over have yet to pass and so he’ll have to “wait and see if they are voted on.”

“Then, we’ll have to look at these laws in cooperation with the commonwealth’s attorney. Personally I’m in support of the Second Amendment and will not be enforcing any unconstitutional laws,” Simpson said.

Simpson said there are hundreds if not thousands of law-abiding citizens in Appomattox, but he believes, should some of the proposed legislation pass, they would “instantly become felons.” Simpson said for him, he feels much of the proposed legislation is unconstitutional and currently isn’t sure how his department would work with the Virginia State Police if legislation is passed.

“It’s territory we have never been in before; certainly not in my career,” Simpson said.

“Wait and see.”  “Unconstitutional laws.”  But what will you do when this happens, as it surely will?  What will you do when a judge declares that what the Virginia controllers do is constitutional, as some judge surely will?  “Isn’t sure how his department would work with the Virginia State Police.”

This is the best part.  He will be expected to cooperate fully, and according to the controllers, nothing short of this is acceptable.

Folks, in between now and just a few weeks, men will have to steel and resolve themselves and reach some point of cognitive rest on these issues.  Time is short, too short for “wait and see.”  These are issues of morality, scruples and character.  It doesn’t take bad laws to declare your county a 2A sanctuary, as we’ve seen in some counties already.  These are decisions you make long, long beforehand based on world and life view, not pragmatic concerns.

These men need to be replaced with someone who believes in something.  There are perhaps others like them in Virginia.

NRA Statement On Second Amendment Sanctuaries

BY Herschel Smith
2 years, 7 months ago


As the Nation’s oldest civil rights organization, we recognize civic engagement as a virtue not a vice. Liberty is reliant upon the participation of free people, and this includes the vast number of  citizens and communities who are lawfully exercising their rights under the First Amendment to defend their freedoms under the Second. It is the tyrannical nature of politicians that triggers sanctuary, not the other way around. The NRA has steadfastly defended freedom for nearly 150 years, and we have no intention of suppressing virtuous voices against governmental oppression—censoring is what our opponents do.

I had not run across this before, likely due to the fact that it says nothing.

Can you imagine a more tepid, frightened, worthless statement by anyone on 2A sanctuaries?

Perhaps if they had made a stronger statement, Wayne would have to leave his Dallas mansion and come to Virginia and be a part of the movement.  He might not get to use his perks if he actually had to do something like this.

And notice carefully how no one in the MSM has been able to say that this is some sort of NRA-led rebellion, because clearly it isn’t.  They’re sticking their finger in the wind to see how all of this settles out.  If it succeeds, they’ll try to take credit for it.

Carrying Concealed Not Legal Grounds To Stop And Search A Person In PA

BY Herschel Smith
2 years, 7 months ago

Dean Weingarten writing at Ammoland.

At about 2:30 in the morning of 28 June, 2014, Michael Hicks was at a convenience store in Allentown, Pennsylvania. Hicks had a valid concealed carry permit, and had a handgun in an outside the waistband holster, concealed by his shirt.

Open carry is generally legal in Pennsylvania, but it is not legal to open carry in a vehicle. This limits the practicality of open carry on a regular basis.

Video surveillance of the scene showed Hicks adjusting his shirt, briefly allowing the handgun to be seen before approaching the convenience store. Hicks goes about his business, but minutes later is stopped by police. The Supreme Court of Pennsylvania watched the surveillance video and described what happened …

Stop right there.  A law that indicates open carry is legal except in a vehicle is the stupidest law I’ve ever heard.  In North Carolina they want all firearms to be visible (e.g., laid out on car seats in plain view so they can see them).  In South Carolina they want them hidden so that … who knows, they can’t see risks, or some horseshit reason.  The cops across American can’t even get their story straight.

The Pennsylvania Supreme Court found that Hicks Fourth Amendment rights had been violated, and there was no legitimate reason for the police to stop him that early morning in June.

[ … ]

The United States Supreme Court denied certiorari on 9 December 2019.

Then there is this extremely important bit of explanation.

For several decades, there has been an assumption in law enforcement circles, backed up by court decisions, that merely the suspicion of a person carrying a concealed weapon was sufficient to allow for a “stop and frisk” of that person.

Law enforcement agencies generally preferred to have that power. I was taught, decades ago, somewhat informally, to always stop and search a suspect if I thought they might have a concealed weapon. I was told, by the officer who was teaching me, that “he had never heard of a judge who threw out the evidence if a weapon was found”.

Well, they were all taught wrong.  Obeying the law is not reason enough to stop a man (i.e., it isn’t a so-called “Terry Stop”), and if you stop a man who you think might be carrying a weapon, you don’t really know, in which case his fourth amendment rights have been violated.

For the hundredth time, this has been dealt with by the Fourth Circuit in the case of Nathaniel Black, who did happen to be wanted for a crime, but who was openly carrying and stopped for that specific reason by the Charlotte-Mecklenburg police department.  Open carry is legal in North Carolina.

The Fourth Circuit reached the right conclusion, to wit, Mr. Black’s rights had been violated because he wasn’t doing anything illegal.  It’s high time that police academies start to teach the truth to cops and it’s also high time police departments fill their ranks with thinking men.

Listen, if you’re too much of a dolt to learn and understand the law, or to question idiots who are teaching you falsehoods in the academy, turn in your badge and service weapon and go dig ditches or shovel gravel.

The Pennsylvania Supreme Court reached the right conclusion.  I guess even a blind squirrel finds nuts from time to time.

Wake County Sheriff Takes Over Gun Range Originally Chartered For Public Use

BY Herschel Smith
2 years, 7 months ago

David Codrea.

“The Wake County Range (the Firearms Education and Training Center), built for use by Wake County citizens is now being closed to the public, effective January 15, 2020,” Grassroots North Carolina alerted its members Friday. “This comes as a huge surprise as Sheriff Baker, who manages the range through contractors he hires, gave no advanced warning of this decision. There was no public discussion, no prior announcement—not a thing.”

Per The News & Observer, “The Wake County Sheriff’s Office ended its contract with Range Safety Management (RSM) LLC.” The sheriff’s state reasoning, a “lack of profitability and a review that fees and funds collected … were not accounted for accurately,” speaks more to mismanagement than anything else. If there are issues, why is it not in the public interest to openly discuss them and to consider temporary and long-term solutions?

The county commission’s response was initially tepid and noncommittal, even though GRNC asserted a letter it issued “makes it clear that they were not involved in the Sheriff’s decision, and suggested his decision may have been rash.” WRAL.com now reports “County Manager David Ellis informed the sheriff that the county would take over control of the facility.” What Ellis means by “find[ing] a balance between public and law enforcement use” remains to be defined.

It is Wake County, after all, one of the two centers of progressive thought in North Carolina (Charlotte being the other one).  Without Wake and Mecklenburg counties, North Carolina would be solidly red and an easy win for conservative and libertarian candidates.

But this one hits hard, as it was originally chartered for public use.  Now, the Sheriff has claimed sole ownership and use of it.

Brock Townsend has written a letter to the Wake County Commissioners.

The citizenry must be allowed access their own facility, which was originally chartered for public use. I’m demanding that this be rectified as soon as possible, and that a full explanation of how this happened in the first place be provided.
I will be monitoring your actions on this important matter through alerts from Grass Roots North Carolina.

So this is how it’s going to be.  Attacks against our God-given rights nationally and locally, with a new attack virtually every breath we take.

Very well.  Queue up the war.  Politicians and peace officers serve at the behest of the people, and the people can throw them out.  Or do you not see yourself as a peace officer, Sheriff Baker?  Let’s start there.  Are you a constitutional Sheriff and a peace officer, or are you a law enforcement officer?  Your answer to that question will tell us everything we need to know about you.

Which is it?  We’re waiting.

21 State Attorneys General Ask Supreme Court to Void Maryland Gun Law

BY Herschel Smith
2 years, 7 months ago

Epoch Times.

A coalition of 21 state attorneys general is asking the Supreme Court to strike down a Maryland law that denies concealed carry permits unless applicants can convince local officials they have a “good and substantial reason” to be granted one by local authorities.

West Virginia Attorney General Patrick Morrisey, a Republican, and the other state officials filed a friend-of-the-court brief with the Supreme Court Dec. 18 in a case cited as Malpasso v. Pallozzi. Morrisey and the others want to expand the scope of protection afforded to gun-ownership rights after the high court ruled in District of Columbia v. Heller (2010), that the right to possess a firearm is an individual right, and in McDonald v. Chicago (2012), that the right of an individual to “keep and bear arms” applies to the states.

Apart from West Virginia, the other states that participated in the brief are Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, and Utah.

The question former U.S. Solicitor General Paul Clement, a veteran of Second Amendment battles, put before the court in the petition for certiorari filed Sept. 26, is, “Whether the Second Amendment allows the government to prohibit typical, law-abiding citizens from carrying handguns outside the home for self defense in any manner.”

This is a good case in light of the machinations New York just went through to avoid Supreme Court review.  This is an excellent case.

Here’s a prediction.  Roberts will prevent this from ever reaching the SCOTUS.  Good job, W.  That’s a valueless man you’ve got there, just like you.

This Will Not End Well For China

BY Herschel Smith
2 years, 7 months ago

Via Insty, this ridiculous news from China.

China will rewrite the Bible and Quran to ‘reflect socialist values’ amid crackdown on the country’s religious groups, a report has revealed.

New editions must not contain any content that goes against the beliefs of the Communist Party, according to a top party official. Paragraphs deemed wrong by the censors will be amended or re-translated.

Though the Bible and Quran were not mentioned specifically, the party called for a ‘comprehensive evaluation of the existing religious classics aiming at contents which do not conform to the progress of the times’.

The order was given in November during a meeting held by the Committee for Ethnic and Religious Affairs of the National Committee of the Chinese People’s Political Consultative Conference, which oversees the ethnic and religious matters in China.

What the Mohammedans think is irrelevant since the Qu’ran is false.  But as for the Bible, this is serious business for China.  They are about to step into forbidden territory, more forbidden than just about any other.

The apostle says this.  “I testify to everyone who hears the words of the prophecy of this book: if anyone adds to them, God will add to him the plagues which are written in this book; and if anyone takes away from the words of the book of this prophecy, God will take away his part from the tree of life and from the holy city, which are written in this book.”

Welcome the plagues, Chinese.  You’re going to wish you hadn’t done this.

Merry Christmas 2019

BY Herschel Smith
2 years, 7 months ago

“And she will bear a Son; and you shall call His name Jesus, for it is He who will save His people from their sins.  Now all this took place that what was spoken by the Lord through the prophet might be fulfilled, saying, ‘Behold, the virgin shall be with child, and shall bear a Son, and they shall call His name Immanuel,’ which translated means, ‘God with us’.” (Matthew 1:21-23).

From an earlier post, “Don’t Google the history of Christmas.  Google will return all manner of bunk.  Here is your source.  When I studied church history, historical theology and systematic theology under Dr. C. Gregg Singer, who was one of the foremost church historians of his era, he relied heavily on Philip Schaff, “History of the Christian Church,” all 8 Volumes.  Oh, he used hundreds or thousands of other sources, some primary, some secondary.  But Schaff was the authority.  So be it for me too.

In Volume III, Schaff outlines the history of the celebration of the incarnation in the early Christian church.  I’ll let you read it for the details, but around the time of the Council of Nicea (325 A.D.), where the deity of Christ and the trinity was affirmed by Athanasius and the church council conta the heretic Arius, Christmas was being celebrated by the churches as a festival of food and gifts.

If you celebrate Christmas with feasting, the giving of alms, and the giving of presents to children, you stand squarely on the shoulders of the church fathers circa two millennia ago.  Enjoy it, Remember what you’re celebrating.

The manifestation of the deity, God with us.  That’s what you celebrate.  Do it well.  Have a great festival.”

For a bit of Christmas music, I chose The King’s Brass, a wonderful group under the direction of Tim Zimmerman (who also arranges music for them), and with whom I’ve had the chance to play trombone (albeit only for a couple of songs, and when the players were different)

How To Get Your County 2A Sanctuary Movement Started And Passed

BY Herschel Smith
2 years, 7 months ago

Second Amendment Sanctuaries Are A Legal Fiction That Jeopardize Public Safety

BY Herschel Smith
2 years, 7 months ago

So says Chelsea Parsons, vice president for Gun Violence Prevention at the Center for American Progress in Washington.

There is no such thing as a “Second Amendment sanctuary.” This concept is a legal fiction adopted by a small minority of local leaders to undermine normal democratic processes and override the will of a majority of a state’s voters.

Any resolution enacted by a local governing body that attempts to pick and choose which state laws apply in a particular jurisdiction is at best a symbolic gesture akin to a protest sign. At worst, these resolutions undermine duly enacted state laws and jeopardize public safety.

Although declarations by local legislative bodies that certain gun laws do not apply have no legal effect, they still have the potential to jeopardize community safety. The kinds of gun laws targeted by these resolutions — laws such as universal background checks, safe storage requirements and extreme risk protection orders — are designed to prevent shootings by addressing different aspects of the gun violence problem.

So-called “Second Amendment sanctuary” resolutions undermine these crucial laws by tacitly (or in some cases explicitly) encouraging residents to violate them. This impedes the implementation of these laws and prevents them from having their full protective effect.

For example, state laws requiring universal background checks for all gun sales are designed to prevent people who are prohibited from gun possession from having an easy channel to buy guns. If a county resolution explicitly states or implicitly suggests that a universal background check law does not apply in a particular county, residents may rely on that resolution to sell guns without a background check in violation of that law.

Notice the hysterical verbiage.  I still think the controllers are deeply conflicted.  On the one hand, they are null and void, to no effect, irrelevant, will do nothing at all to stop the implementation of the law, but are also chilling, dangerous, and will jeopardize public safety.

They are conflicted because they simply cannot imagine ordinary folks defying unconstitutional laws.  Creatures of the state, they are, and as long as a black robed tyrant declares an edict, or a bad law gets passed, they are perfectly willing to obey and demand fealty from others.

But ordinary folk often have morals and scruples that are not malleable to fad of the day, unlike this woman.  She is scared of what may come, as are the politicians in Virginia.  There is no other reason to get opinions issued by the state AG, write ridiculous missives like this one, and bow their chest out about using the national guard.

They ought to be scared.  Via WRSA, Aesop drops a wet blanket on their plans.

Tell us how many divisions the Nazis needed to garrison unarmed populations, and then tell us what the numbers would be against a population that bought more guns than the U.S., Russian, Chinese, and NATO armies have, combined, in just last year alone, and every year since they’ve kept stats?

If I’m a betting man, I like the odds in favor of Team Partisan.

It’s worse than that, really.  The statists cannot count on law enforcement or the NG.  This report today from Law Enforcement Today is a remarkable catalog of just where we were and where we’ve come.

Law Enforcement Today received many military member responses to this threat, saying they, too, would not enforce these proposed unconstitutional laws.  It boils down to this:  Politicians insisting on law enforcement and military to strip people of their rights for political gain are asking for civil war.

[ … ]

Law Enforcement Today has found itself unexpectedly in the middle of this battle – and we’re proudly on the side of Sheriff Jenkins.

[ … ]

That’s why we’ve covered the growing number of people who tell us they’re joining the militia.  Because they aren’t just the traditional “three percenters”.  They are cops – both active and retired.  They are veterans …

[ … ]

The first article we dropped about the growing militias was on Monday.  Within two hours, we were hit with several massive cyber attacks.  The same happened following articles on Tuesday and on Wednesday.

[ … ]

While Virginia is turning into a whole different kind of “battleground state”, we’re receiving messages from people in Washington, Oregon, Arizona, New Mexico, and California saying their own militias are exploding in numbers.

And at the same time, lawmakers are looking into what they can do to stop it… and they’re starting to receive media backing.

[ … ]

Thus, if anyone from the state tries to remove the Sheriff from their elected office because they refuse to enforce unjust laws, those state officials will be faced with a lawful militia composed of citizens within the state.

The county is taking their militia element very seriously as the new ordinance calls for concealed weapons training for any resident of the county that can lawfully own a gun.

There is much more at the link.  Read it all.  This is exactly what scares the controllers, and there is valid reason for that fear.

In spite of the fact that the controllers are calling for CWII, they persist, and yet will be surprised and appalled at the war they have fomented.

But if there is to be war because they demand that there be so, then the warriors must be resolved, well armed and prepared.

To the controllers: there is still time to back out of this, if you’re smart.  You will not win this, and it will be awful.

350 Legend Ammunition

BY Herschel Smith
2 years, 7 months ago

Reader and commenter Sanders said this.

I picked up some 145 gr. Winchester White Box at Cabela’s the other day for $10/20. There have been some tests posted online of different loadings. One that was pretty impressive was a test in water jugs using 148 gr. Hornady XTP .357 bullets. It pretty much just exploded in the water jugs due to the higher velocity.

The other tricky thing about this round is the bullet sizes. SAAMI says it should be .355 to .357. Pulled factory ammo is all listed as .357, but actual measurements are showing they are using .355, or 9mm. The best options for hunting bullets are in the .358 range, but I guess those have to be resized down to .357 or they won’t chamber. Also, using Winchester brass, if you use a .357, you won’t be able to chamber the round. But, Starline brass is thinner and works with .357.

Many folks have gone ahead and just re-barreled to .358 so they could use the greater range of available bullets in that size.

So, you see there are still a lot of bugs for reloaders to work out on this round. It will be fun to see what folks come up with.

Funny how this dovetails together with what I found out.  I have been looking into purchasing a 350 Legend upper, and one manufacturer told me this.

Accuracy is, at this time, very ammunition dependent.  While the ammo is supposed to be .357 diameter. The ammo makers are using pretty much everything that they can fit in the case….for instance, one manufacturer says that while .357 is the call out, they are allowing a -.003 tolerance.  This seems to be so they can load cheaper and more prolific .355 bullets.  But that doesn’t necessarily work the best with the spec bore diameter.

We’re getting our best groups with handloads.  With factory ammo, at this time, we’re in the same 1.5-2MOA range as an average.

Eventually the ammo makers will sort it out and get their loads to match the round’s potential, but until that happens, I think that is as good as it’s going to be with production ammo.

That’s good enough at 0 – 150 yards for hog hunting.  But I expect that as time goes by, the ammunition quality issue will sort itself out.

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