Articles by Herschel Smith

New Featured Article.  Duke University’s Arguments Against A Statutory Second Amendment.

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Views from Florida.

I have yet to see any compelling evidence that tourism has suffered in the 25 states that have enacted constitutional carry. And, as I recall, the policies of deregulation, low taxes and letting free people make their own decisions have actually significantly boosted tourism and permanent migration to places like Texas and our beautiful Florida.

Lastly, just to highlight the popularity of constitutional carry, not one of the 25 states with the policy on its books has even held a hearing, let alone a vote, to repeal its law.

That’s what they argued in South Carolina too.  Tourism around Charleston will be affected.  It wasn’t true.  It was always a lie.

I can assure you, as a resident of an open carry state, no one cares, or if they do, they get used to it.

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 regulate guns at the local level. Although the claim is admittedly hard to prove, it is likely that these preemption laws—nearly all of which were adopted in the past forty years—have kept more gun regulations off the books in the past two decades than has the Second Amendment in more than two centuries (including in the nearly 1,500 cases filed since Heller). In effect, preemption laws restrict gun laws in precisely the places—cities—where they are most viable16 and provide broader protection for the right to keep and bear arms than the Constitution has ever done.

Further, he remarks:

… some states have enacted strict prohibitions. These laws, which Blocher deems “unmistakably partisan,” attach penalties to local attempts to regulate. Republican-controlled legislatures have enacted statutes that threaten local officials with fines, loss of funds, and removal from office. In Florida, for example, local leaders who impermissibly regulate firearms can face a $5,000 fine and personal liability for up to $100,000 in damages.

As long as the law encourages increased liberty, we like state preemption laws.  They are a good thing, and they will continue to expand to other states where they don’t currently exist.  This blog is well known as devoted second amendment absolutists, and so when someone proposes a scholarly fisking of our doctrines, we take notice.  He cites Heller’s “approval of longstanding forms of gun regulation” (page 17) and flatly states that local ordinances are “entitled to some respect, either for its own sake or as a proxy for collective wisdom.”  Collective wisdom has nothing whatsoever to do with God-given rights, nor the rights recognized in the constitution.

To begin with, we have long held that Heller was a weak decision.

Heller offers a Second Amendment cleaned up so that it can safely be brought into the homes of affluent Washington suburbanites who would never dream of resistance-they have too much sunk into the system–but who might own a gun to protect themselves from the private dangers that, they believe, stalk around their doors at night. Scalia commonly touts his own judicial courage, his willingness to read the Constitution as it stands and let the chips fall where they may. But Heller is noteworthy for its cowardice.

The common formula for absolving Scalia of problems and weakness in Heller is to claim that it was the best he could get out of the court, or otherwise, it was the beginning of a development in legal doctrine, the balance of which had to be developed and applied in lower courts before it could be carried any further.  But it is still noteworthy that neither Heller nor McDonald recognized the right to self defense with weapons outside the home.

Also, note that the term “recognized” is used above.  Rights are God-given, and the constitution on this paradigm is a covenant between government and the people, not a source of rights.  Since Scalia supplies a tip-of-the-hat to some gun control laws (he doesn’t mention which, how many, what locations, or anything else) this has in turn supplied 2A detractors with a never ending fountain of replenishment to attack the 2A any time and everywhere they can.  Even the author made hay of this on page 21 when he stated that “Heller itself indicates that concealed carrying of firearms is not even covered by the Second Amendment.”

But regardless of the fact that we see weakness in Heller, Mr. Blocher’s claims fall short.  The legal community is reading too much Stanley Fish and Jacques Derrida today and not enough history.  They have forgotten how to argue and craft rhetoric.  The best and most defensible way to read the 2A is to remember the lives of the men who wrote it.

“1. John Adams John Adams, as a 9-or-10-year-old schoolboy, carried a gun daily so that he could go hunting after class. 3 DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS 257-59 (1961). 2. Patrick Henry Patrick Henry would “walk to court, his musket slung over his shoulder to pick off small game.” Harlow Giles Unger, LION OF LIBERTY: PATRICK HENRY AND THE CALL TO A NEW NATION 30 (2010). 3. Daniel Boone “When Daniel was almost thirteen he was given his first firearm, a ‘short rifle gun, with which he roamed the nearby Flying Hills, the Oley Hills, and the Neversink Mountains.’ ” Robert Morgan, BOONE 14 (2007). 4. Meriwether Lewis Meriwether Lewis’s neighbor Thomas Jefferson observed that young Lewis “when only eight years of age . . . habitually went out, in the dead of night, alone with his dogs, into the forest to hunt the raccoon & opossum.” 8 WRITINGS OF THOMAS JEFFERSON, at 482.  5. Thomas Jefferson Thomas Jefferson himself carried as a lad. “When he was ten he was given a gun by his father and sent into the forest alone in order to develop self-reliance.” 1 Dumas Malone, JEFFERSON AND HIS TIME: JEFFERSON THE VIRGINIAN 46 (1948). As an adult, Jefferson wrote about a holster he made for one of his Turkish pistols, “having used it daily while I had a horse who would stand fire,” and he noted another holster he made “to hang them [the Turkish pistols] at the side of my carriage for road use.” 10 THE PAPERS OF THOMAS JEFFERSON, RETIREMENT SERIES 320-21 (2004). Jefferson advised his fifteen-yearold nephew to “[l]et your gun therefore be the constant companion of your walks.” 8 THE PAPERS OF THOMAS JEFFERSON 407 (2004). 6. James Monroe Every day, “[w]ell before dawn, James left for school, carrying his books under one arm with his powder horn under the other and his musket slung across his back.” Tim McGrath, JAMES MONROE: A LIFE 9 (2020). 7. Ira and Ethan Allen Ira and Ethan Allen regularly carried multiple arms at once. For example, in 1772 Ira, Ethan, and a cousin went to purchase land near New York’s border “armed with holsters and pistols, a good case [pair] of pistols each in our pockets, with each a good hanger [sword].”

One might argue that John Adams’ school and the local “court” were as sensitive as schools of today, and not only were firearms openly carried, there was no concept of “sensitive places.”  Moreover, “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.”

Firearms were ubiquitous in Colonial times, and there was no need for an amendment which stated so or justified the right of men to own their “peeces.”  The second amendment was written to address a single issue – that of federal interference with the militia.  It would be quite an absurd proposition to claim that the very men who used their own “peeces” to go to war against their sovereign to ameliorate tyranny would see what they had written any other way than the right of men to live in liberty, and the right of combat to make that happen if necessary.

Hunting, self defense, and defense of home and hearth are certainly rights in God’s economy, but those are assumed as the presupposition, the axiomatic irreducible, for the second amendment to make any sense at all.  Before one even gets to the incorporation doctrine under the 14th amendment, there is no recognition of these facts by the author.

What does the author do then?  He focuses on various and sundry local problems like violence in Chicago.

Still, it is true that some of the regulations which have been held to violate the post-Heller Second Amendment are local and that stringent preemption laws might have kept them off the books in the first place. Chicago’s handgun ban is, of course, an obvious example. The fact that such laws have been struck down in court, however, suggests that preemption laws—if justified as a necessary protection for Heller’s right—are a solution in search of a problem.

Note his twisted logic.  We need local gun control because of violence in the inner city.  Local gun control is good.  State preemption laws prevent this sort of gun control.  Such local gun control has been struck down in court before, so state preemption laws are unnecessary (a “solution in search of a problem”).

That silly train of logic is offered up for a city where firearms carry is still illegal, hasn’t been struck down in court, and that infringement isn’t being prevented by state preemption.  Mr. Blocher needs to find a good course in formal and modal logic at Duke and sit for some training.

Never mind that his focus is on gun control, when he never even asks the question, “How could John Adams carry his “peece” to school with him and there was no violence, and we can’t get a handle on gangland?”  He never asks root cause questions such as, “Have we created this problem ourselves by government programs eviscerating the family unit?  Will we ever end the violence with gun control if access to firearms isn’t the cause of the problems?”

But the biggest leap in legal logic is found on page 17.

One obvious reason for the traditional variation is that the costs and benefits of guns vary by location. In crowded urban areas, the externalities of gun use (and misuse) are higher. In rural areas, there are more opportunities for traditionally lawful purposes like recreation and hunting, and police response times tend to be longer, thus arguably increasing the utility of a gun for self-defense.

And on page 23, he states the following.

One of the ripple effects of broad preemption laws might be to dampen the use of local law to establish a duty of care.

There is no “duty of care” and the author knows this.  This isn’t merely an error – it’s an intended oversight because the consequences of admitting the truth are lethal to his arguments.  Nor is there a duty of police protection, and likewise, the author knows this as well.  See the following.

Castle Rock v. Gonzalez

Warren v. District of Columbia

DeShaney v. Winnebago County

No trained attorney is ignorant of these things.  The courts have repeatedly ruled that the police cannot be there all of the time, are under no legal obligation to respond in any certain time frame, and are under no duty to protect citizens (notwithstanding contractual obligations such as witness protection).

Throughout the paper the author speaks from the perspective of public safety without addressing the overarching concern of individual safety, security and right of self defense.  He also doesn’t address the fundamental basis of the second amendment as the surety against tyranny.

It may be a nit, but it’s worth mentioning.  There are silly remarks cited by the author that significantly detract from the intended seriousness of this paper (page 18).

… as Professor Richard Briffault has noted: if “the fifty states are laboratories for public policy formation, then surely the 3,000 counties and 15,000 municipalities provide logarithmically more opportunities for innovation, experimentation, and reform.”

There is nothing about this that is logarithmic.  Even without granting any validity to the assumption that experimentation with rights is a good thing, we observe that each county or city is an uncorrelated variable.  This isn’t like a deck of cards that can be arranged in many different sequences (52!), or 52 factorial.  This is linear, not logarithmic.

We started saying that we always look up when someone comes along claiming a scholarly analysis of the 2A.  This author apparently thinks he succeeded.  He did not.  He belongs in the department of sociology rather than law.

Finally, the author has turned the ideas of the founders on its head.  Liberty means the right of local tyrants to enact stricter and stricter laws on its people because the smallest locale is the laboratory of democracy.  Experimentation is a good thing, according to him.  It was against such local tyranny that the founders went to war, and it was against such local tyranny that Heller and McDonald were written, however weak we see them.

NPR.

When an 18-year-old man stepped into a Buffalo grocery store last Saturday with an AR-15-style rifle, the store’s security guard tried to stop the shooting by firing his own weapon back at the shooter.

But the security guard’s fire was stopped by the shooter’s body armor, authorities say. Then, the shooter shot and killed the guard, Aaron Salter.

“The security guard that was killed was a retired Buffalo police lieutenant. [He] engaged the shooter, who was wearing tactical gear and body armor. [He] did shoot and hit the suspect, but it did not penetrate the body armor,” said Buffalo Mayor Byron Brown in an interview with NPR.

The Buffalo shooter’s decision to wear body armor makes him the latest mass shooter in recent years to do so, following high-profile cases in Colorado, Texas and California.

In the U.S., body armor is subject to far fewer restrictions nationwide than guns. Its use in mass shootings has ticked up in recent years, experts say, raising questions about the equipment’s accessibility and fears about the deadliness of such shootings, if police are unable to use deadly force to stop them.

The only purchase limitation in most of the U.S. is a federal ban on possession of body armor by people convicted of violent felonies. Connecticut restricts body armor sales further by requiring sales to be face-to-face transactions.

In a sharp contrast with firearms, no states require background checks, permits or registration.

Some retailers decline to sell to civilians. But others sell products to anyone who will purchase it.

Cheap vests run from about $200 to $300. At the highest end, body armor and ceramic plates can be very expensive, as much as thousands of dollars for a complete set.

You expected it to happen, yes?  Tell me you knew this was coming.  Breathless panic and outrage.  There is all goes again – calls among the offended to regulate body armor.

Body armor could be nothing more than a steel plate worn with a rope around your neck, and you have as much right to own it as anyone else.

Even if the only use it ever actually gets is family drills when the father sends his wife and children into a closet with a shotgun while he confronts an intruder, that’s good enough and the potential for a home invasion justifies its ownership and use.

A defense of love.

A dog in Northern California was critically injured earlier this week after saving its owner from an attacking mountain lion. The dog is still recovering from its injuries, according to a recent Instagram post, and the California Department of Fish and Wildlife says that wildlife officers are still working to trap the lion.

Erin Wilson and her Belgian Malinois, Eva, were walking along the Trinity River near the White Bar picnic area on Monday afternoon when the big cat attacked, jumping on the woman from behind and scratching her left shoulder. Eva, who was out in front, heard Wilson scream, and the dog immediately jumped in to defend Wilson.

“I think it’s safe to assume that dog probably saved her life,” CDFW’s Patrick Foy said in an interview with the Sacramento Bee.

At some point during the battle, the mountain lion bit into the dog’s head and wouldn’t let go. After multiple attempts to get the cat off her dog, Wilson ran up to the highway to get a telescoping baton from her to car to use as a weapon. She was also able to recruit some additional help as she waved down a passerby, Sharon Houston, who was driving down CA-229 at the time.

“About 2:45 p.m., I was driving on 299 from the coast to Weaverville when I saw a woman trying to wave someone down,” Houston told the Redheaded Blackbelt, a local media outlet that originally broke the story on Tuesday. “She was frantic about it.”

After hearing what happened, Houston decided to help. Wilson had an extendable baton, and Houston had a portion of PVC pipe and some pepper spray. They found the lion, which had the dog by the neck at that point, and they began hitting it repeatedly.

“I thought, ‘Here we go,'” Houston said. “So, I started hitting it on the head, trying to get it to let go…I was just trying to get that thing away.” They eventually managed to free the dog, which ran toward the highway.

“[The mountain lion] swiped at us and bared its teeth,” Houston said. “I opened up my pepper spray and just hosed its face. It was the longest 5 to 10 seconds…I begged, ‘Please work, please work, please work.”

” … the dog immediately jumped in to defend Wilson.”  Of course she did.  “I think it’s safe to assume that dog probably saved her life.”  Of course she did.

A pistol would have worked better to get rid of the cat.

The Blaze.

A sheriff in Florida applauded a motorcyclist for ending a road rage incident by pulling a gun on a knife-wielding driver.

The alarming confrontation was caught on video by the motorcyclist’s wife.

The video shows a man with a knife threatening the motorcyclist before trying to slash him once.

At that point, the motorcyclist reached into his vest, pulled a pistol out and pointed it at the driver.

The driver called the police to report the man for pulling a gun on him, but police found that he had a concealed carry permit for the pistol. The victim told police that he had been cut off by the driver in a silver Toyota Tacoma.

“Traffic disagreements should never result in violence in our streets. In this particular incident, the video captured by the victim’s wife clearly shows that her husband’s life was threatened. I applaud the way the motorcyclist handled this situation,” said Flagler County Sheriff Rick Staly in a statement.

“After his life was clearly threatened, he lawfully defended himself and then de-escalated the situation,” added Staly. “The offender is lucky he was not shot.”

Staly said after viewing the video of the incident that they arrested the knife-wielding suspect, who was identified as 50-year-old Rafael Vincent Rivera.

Rivera was charged with aggravated assault with a deadly weapon and booked him at the Sheriff Perry Hall Inmate Detention Facility.

You big dummy.  Spend a few years in the state penitentiary to cool off some.

The only thing I would have done differently is back away from the confrontation as quickly as possible.

At Outdoor Life.

I’m not sure these are the best, and the prices are stunning in some cases.  They range from $2000 in some instances up to $3200 for the Zeiss.  It’s just not clear to me who would drop $3200 on a scope like that except professional shooters in the military (e.g., Army snipers).

Some expected names like Leupold (and whatever model they have up there will doubtless be discontinued within a year), and Athlon.

Some unexpected omissions.  Why wouldn’t they include Arken Optics give the features and reasonable price?

What do readers think?  Would you spend $3200 on optics for a hunting rifle or carbine?

The best deal I ever got on a scope was when Gander Mountain was closing their store in my town.  They wanted big parking lots to compete with Bass Pro Shop for selling RVs.

The last days of the store they had everything for 50% off (not including firearms, which were 15% off sticker).  I also used a membership from a friend which gave me another 10%.

I picked up a Nikon Black FX1000 FFP 6-24×50 for $190.  It was a deal too good to pass up.

News from the bush.

A hiker called his wife to say he was lost. Then he and his dog vanished, Arizona police said.

Donald Hayes, 74, of Prescott Valley was last seen on Mingus Mountain on Friday, May 13, the Yavapai County Sheriff’s Office said. He called his wife that afternoon to tell her that he and his dog, Ranger, were lost.

“Forest Patrol was able to contact Mr. Hayes Friday around 2 p.m. on his cell phone but he stated that he did not want to wait for a rescue and that he was ‘continuing down a ravine,’” the sheriff’s office said in a news release.

Hayes told Forest Patrol he didn’t know what ravine he was going into, but he thought he was traveling northwest. At the time, he had food and water with him, and he told rescuers he would turn his phone off to preserve its battery.

That was the last communication with Hayes. Deputies tried to track Hayes’ phone, but efforts were unsuccessful.

Several teams of rescuers, search dogs and a helicopter crew have scoured the area looking for Hayes. Officials did not find the missing hiker as of Sunday, May 15. His car, however, was still at the trailhead.

“Mr. Hayes is a white male with salt and pepper hair, green eyes, is 6 feet tall and approximately 156 pounds,” deputies said. “He was last seen wearing nylon beige pants, a gray sweatshirt, white t-shirt, and a white visor. Ranger is a black and white Labrador.”

Mingus Mountain is about 100 miles north of Phoenix.

I’ve hiked near this area before (about 40 miles from there near the red rock area).  It’s remote.  I’m usually in favor of movement rather than sitting still and hoping someone finds and rescues you.

However, in this case he had actually made contact with both his wife and the Forest Patrol.  He began movement and then turned off the only means of tracking his movement.

It would have been better to ask the authorities to use cell towers to triangulate on his location and stay put.  To save battery power, he could have agreed to certain times he would turn on his phone (like every two hours for ten minutes).

He apparently had food and water, and he could have used his surroundings to make a debris hut for protection from the elements.  His dog was at least some protection from mountain lions.

In the bush, panic is your enemy.  It clouds judgment, it causes hyperventilation, it dehydrates, it dumps adrenalin into your system, it kills.

He chose poorly.

As many readers noticed, TCJ was down for a while.  The system has been rebooted, and the web site will be a little snappier for readers (i.e., quicker to load).

It’s been upgraded.  That’s good for readers.  Unfortunately, the hosting is more expensive too.

It would be less expensive (or free) to go with blogspot, typepad or some other hosting service, but frankly I’d shut down before doing that.  I won’t be told what I can and can’t write.

News & views.

The Violence Policy Center (VPC) today released a new slide show of firearms industry ads and catalog images exposing the common themes that gunmakers use in their marketing of militarized weapons such as the Bushmaster XM-15 assault rifle used in the mass shooting this past weekend at a Tops supermarket in Buffalo, New York.

In the introduction to the three-part slide show, the VPC explains, “Militarization dominates the public face of today’s gun industry, whether in magazine ads, manufacturer catalogs and websites, or the content of firearm magazines that cater to gun owners. In these outlets, three themes are consistently found”—

• Language and images that equate military-bred weaponry as the virtual embodiment of freedom. In this context, gun owners are often portrayed as brave men (and it is almost always men) standing alone, a front-line force against oppression, often from the government. Some companies harken back to the era of the Founding Fathers, encouraging these gun buyers to view themselves as modern-day patriots.
• The use of terms and images drawn from military or law enforcement extolling the virtues of the potential gun buyer, including hero. These descriptions are supplemented by words such as “bravery,” “honor,” and similar terms to describe an undefined “mission.” The accompanying images most often feature users outfitted in military-style gear.
• Language and images touting that the guns being sold are identical, or virtually identical, to the weapons carried and used by law enforcement or the military. Many manufacturers highlight the military and/or law enforcement pedigree of their firearms. Often, the only difference is that the weapons sold to civilians are semiautomatic, firing one bullet per trigger pull, as opposed to being able to fire in burst or fully automatic mode.

This is almost amusing due to its ignorance.

First of all, I reject out of hand the notion that something that’s military is somehow bad.  I do so for very good reasons that the VPC refuses to acknowledge.

Second, having watched hundreds of people – many of whom are new gun owners – purchase firearms over the last several years, I will observer that they tend to purchase the less expensive firearms, not the more expensive (which would be the corollary to highly marketed “military” firearms).

Third, women tend to seek out the simpler firearms, which tend to be wheel guns, or in other cases, subcompacts (for hiding in purses).  A full size pistol or rifle wouldn’t have impressed them.

Fourth, true gun guys aren’t impressed by sales pitches.  For example, videos like this one or this one don’t in the least make me want drop a wad of cash on the new Sig squad rifle.  I have no desire to own that weapon, nor to shoot ceramic cartridges.  Let it prove itself in a half century of war.  I’d rather have a lever action Marlin 30-30.

Fifth, the AR style platform is still so highly regarded and sought after because Eugene Stoner engineered it so well, not because of marketing.  If firearms manufacturers are spending a ton of money on marketing, they’d do better to improve their QA.  Parts failures and lack of 1 MOA shooting make it to the forums and cause users to pan the weapon.  Advertising gimmicks don’t matter.

They’re looking for a boogieman in the dark, and finding one every time they bump into a lamp.