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]

Paul Harrell: Can a Hot Barrel Affect Velocity and Accuracy? (Part 2)

BY Herschel Smith
1 year, 3 months ago

Court Rules A Bump Stock Is Not A Machine Gun

BY Herschel Smith
1 year, 3 months ago

GOA.

Springfield, VA – Today, the U.S. Court of Appeals for the Sixth Circuit reversed the district court’s decision, which had denied GOA’s motion for a preliminary injunction on bump stocks. Gun Owners of America is seeking an injunction to prevent ATF from implementing a final rule incorrectly classifying bump stocks as machineguns under federal law.

This case was brought by Gun Owners of America (GOA), Gun Owners Foundation (GOF), the Virginia Citizens Defense League (VCDL), Matt Watkins, Tim Harmsen of the Military Arms Channel, and GOA’s Texas Director, Rachel Malone.

Dave Hardy has additional details.

“Notwithstanding the ATF’s frequent reversals on major policy issues, we understand that the Court would consider the bureaucrats at the ATF as experts in firearms technology. But that technical knowledge is inapposite to the question of what should be criminally punished and what should not.”

“Consistent with our precedent and mandated by separation-of-powers and fair-notice concerns, we hold that an administering agency’s interpretation of a criminal statute is not entitled to Chevron deference. Consequently, the district court erred by finding that the ATF’s Final Rule, which interpreted the meaning of a machine gun as defined in 26 U.S.C. § 5845(b), was entitled to Chevron deference. And because we find that “single function of the trigger” refers to the mechanical process of the trigger, we further hold that a bump stock cannot be classified as a machine gun because a bump stock does not enable a semiautomatic firearm to fire more than one shot each time the trigger is pulled. Accordingly, we find that Plaintiffs-Appellants are likely to prevail on the merits and that that their motion for an injunction should have been granted.”

Here is the ruling.  Occasionally a court gets it right.  One may suppose that the DoJ/ATF knew the weakness of using executive orders to supplant federal law.  Any case that has hinged on ownership of a bump stock should now be appealed.

Sonia Sotomayor Questions Warrantless Gun Seizure in Big Fourth Amendment Case

BY Herschel Smith
1 year, 3 months ago

Reason.

The U.S. Supreme Court heard oral arguments this week in a case that asks whether the Fourth Amendment’s usual warrant requirement should be waived when the police conduct a warrantless home search while carrying out a so-called “community caretaker” function, such as when the cops perform a “wellness check” on a potentially troubled or injured person. Justice Sonia Sotomayor, one of the Court’s biggest Fourth Amendment hawks, raised a few objections to giving the cops that much leeway to enter the home without a warrant.

The case is Caniglia v. Strom. In 2015, Rhode Island police paid a “well call” on 68-year-old Edward Caniglia after his wife reported to authorities that he might be suicidal. The couple had gotten into a fight the night before and she had left to sleep elsewhere. When she couldn’t reach him the next morning, she called the cops. The officers who visited the house had Caniglia taken to the hospital in an ambulance, where he was examined by a nurse and a social worker and discharged the same day. In the meantime, the police entered Caniglia’s home without a warrant and seized his handguns. The case centers on Caniglia’s claim that the warrantless search and seizure violated his Fourth Amendment rights.

The U.S. Court of Appeals for the 1st Circuit ruled in the favor of the officers in 2020, holding that the “community caretaking” exception to the Fourth Amendment was sufficient to cover the matter at issue. The community caretaking doctrine, the 1st Circuit maintained, “is designed to give police elbow room to take appropriate action.”

Sotomayor took issue with the lower court’s judgment. “I am deeply concerned about the 1st Circuit’s claim that there is no requirement that officers must select the least intrusive means of fulfilling community caretaking responsibilities,” she told Marc Desisto, the attorney representing the Rhode Island officers and their superiors. For example, “why couldn’t they ask the wife” for permission before entering the house? Why didn’t the officers speak to a social worker or a psychiatrist? “How do we limit [the police] from substituting their own” judgment in such matters? Sotomayor demanded. “In this situation, there was no immediate danger,” she said, yet the police “decided on their own to go in and seize the gun.”

Quite obviously, I don’t concur with the notion of anyone as “community caretaker.”  The community doesn’t need a nanny.

But at least she is giving guff to the notion of limitless search and seizure.  Why aren’t the other justices doing that?  The entire first circuit court of appeals should have been brought in naked to the proceedings, beaten senseless, and then put in stocks in the community square for siding with the police for such a communist undertaking as that.

The Ninth Circuit On The Right To Bear Arms

BY Herschel Smith
1 year, 3 months ago

Courthouse News Service.

Americans have no right to carry guns in public, a divided en banc Ninth Circuit panel ruled Wednesday, reversing a prior Ninth Circuit decision that struck down a Hawaii firearm restriction as unconstitutional.

“There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment,” U.S. Circuit Judge Jay Bybee, a George W. Bush appointee, wrote for the majority of an 11-judge panel in a 127-page opinion.

Looking back on 700 years of legal history dating back to 14th century England, seven judges in the majority found “overwhelming evidence” that the law has never given people “an unfettered right to carry weapons in public spaces.”

The seven-judge majority traced legal texts and laws back to 1348 when the English parliament enacted the statute of Northampton, which banned carrying weapons in fairs or markets or before the King’s justices. It also cited multiple laws from colonial and pre-Civil War America in which states and colonies restricted the possession of weapons in public places.

“The Second Amendment did not contradict the fundamental principle that the government assumes primary responsibility for defending persons who enter our public spaces,” Bybee wrote. “The states do not violate the Second Amendment by asserting their longstanding English and American rights to prohibit certain weapons from entering those public spaces as means of providing ‘domestic tranquility’ and forestalling ‘domestic violence.’”

Writing for the dissent, Senior U.S. Circuit Judge Diarmuid O’Scannlain, a Ronald Reagan appointee, said the majority failed to properly interpret the U.S. Supreme Court’s 2008 decision in District of Columba v. Heller, which overturned Washington D.C.’s total ban on handguns and a requirement that rifles and shotguns be kept unloaded and disassembled or bound by a trigger-lock device.

“The Second Amendment’s text, history, and structure, and the Supreme Court’s reasoning in Heller, all point squarely to the same conclusion: Armed self-defense in public is at the very core of the Second Amendment right,” O’Scannlain wrote.

What they failed to get is God’s laws.  And so just like that, they declared God’s Holy Scriptures outmoded and irrelevant.

I’ll briefly make another observation.  I consider citations of British laws irrelevant and even ridiculous.  Judges who do that forget that we fought a war over the concept of rights, and forged a new covenant with the body politic based on winning that war.

I couldn’t possibly care any less about old British standards, morays or rules.

How to Choose the Right Handgun Red Dot Mounting System

BY Herschel Smith
1 year, 3 months ago

Shooting Illustrated.

You can also purchase a new slide or have a current one machined to anchor without adapter intervention. Rival Arms, a Texas-based firm with an enviable reputation for that service, explained, “We offer two different optic cuts, RMR and DOC. The RMR cut, as you can imagine, is the same optic cut as the Trijicon RMR sight and will also work with other optics that follow this footprint (Trijicon SRO, Holosun 507c, Swampfox Kingslayer, TruGlo TRU-Tec Micro RMR variant, etc.). The DOC refers to Docter Optic footprint/setscrew pattern, which is compatible with the following popular sights: Vortex Viper [and] Venom, Burris FastFire, etc.”

I’ve noticed that this is beginning to be a real problem in the gun industry, i.e., choosing the right mounting option for pistol sights.

Here is another interesting article, more detailed and much more technical, entitled Footprints/Mounting Standards on Red Dot Sights.  I catalog this sort of thing just for you, the reader.

You’re welcome.  Enjoy.  Share thoughts.

Bill to preempt any federal gun restrictions through SC’s ‘unorganized militia’ advances

BY Herschel Smith
1 year, 3 months ago

News from South Carolina.

A Statehouse proposal aimed at ensuring South Carolinians can keep their weapons no matter what gun-control measures the White House or Congress might take won early backing in the state Senate.

The bill attempts to buffer any future federal gun restrictions by classifying all guns and bullets legally owned by South Carolinians as weaponry of the state’s unorganized militia.

A 2-1 vote March 23 sent the bill to the Senate’s full Veterans’ Services Committee.

State Sen. Kevin Johnson, D-Manning, who cast the lone “no” vote, called the proposal unnecessary nonsense.

The measure, sponsored by Travelers Rest Republican Sen. Tom Corbin, adds language to an obscure 1881 state law regarding South Carolina’s “unorganized militia” — to which all “able-bodied” citizens over age 17 automatically belong.

The governor has the authority to assemble that militia in times of war, rebellion or insurrection, though that’s never happened.

There likely hasn’t been a militia fighting in South Carolina “since Francis Marion and the swamp foxes were shooting at the British” in 1781 during the American Revolution, Corbin told reporters after the hearing.

Corbin sees his proposal, coming some 240 years after those swamp skirmishes, as a way of ensuring South Carolina’s guns are never confiscated.

It would give the state’s “militia” members the right to buy and possess all types of firearms, ammunitions and their components — including magazines and clips — that were legal as of Dec. 30.

“At the end of the day, a federal government cannot disarm a state standing army,” Corbin told the subcommittee.

I’ve bolded the objectionable part of the article, but you already know that.  Only God gives rights, and only God can take them away.

If this has a chance of passing, then please go for it.  On the other hand, if this dog won’t hunt in a short session, then it may be another poison pill, or something to grab attention away from the need to pass open carry.

As for open carry, it appears that the bill stipulates barrel length, so the open carry of long guns may have been made illegal in S.C. with the open carry bill.

Again, it may be imperfect, but problems with it may be able to be fixed in the future.  If those problems can be ironed out in committee between the House and Senate, then do so.

Time is short, so get open carry done.  Focus on constitutional carry next session.

You Choose The Weapon

BY Herschel Smith
1 year, 3 months ago

This is an interesting game he sets up.  I do think he’s tilted the choice by stipulating an optic on one of the rifles, but be that as it may, I would still make my choice, and it would be some combination of the two.

The L1A1 should be in the hands of one DM, while on the other hand, if your enemy is the size you think he is, you’d better be able to lay down good, rapid, accurate fires.  For that, nothing else will do except the M-16.  Everyone else in the small unit gets an M-16.

J.R.R. Tolkien On The Desire To Control Other People

BY Herschel Smith
1 year, 3 months ago

Via WRSA, this Tolkien quote was visible, but the complete quote is as follows.

“the most improper job of any man, even saints (who at any rate were at least unwilling to take it on), is bossing other men. Not one in a million is fit for it, and least of all those who seek the opportunity.”

Prior:

The Worship Of The State Is The Worship Of Force

The Desire To Control Others Is The Signal Pathology Of The Wicked

Should You Dimple the Barrel for the Gas Block?

BY Herschel Smith
1 year, 3 months ago

Readers are invited to weigh in on what they do.

Harrisonburg Police Officer Shot By Another Officer Attempting To Shoot A Cow

BY Herschel Smith
1 year, 3 months ago

News.

A Harrisonburg police officer was shot in a friendly fire incident as officers tried to deal with an escaped cow in the city Saturday night, according to Daily-News Record sources.

An officer attempted to fire at the animal, which had escaped a livestock auction site, and struck another officer, according to sources.

HPD Lt. Pete Ritchie said the incident is under investigation by the Professional Standards Unit and the Major Crimes Unit, which is standard when an officer discharges a firearm.

Ritchie said the HPD officer was struck once. He could not say how many shots were fired and if the officer was injured due to friendly fire, but he said the incident did take place after HPD officers took over the situation involving the cow.

This tweet sums it up well.

Good grief.  Backstop.  It’s not just for noobs.

“You’re never in more danger than when the police are around” – HPS.


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