Articles by Herschel Smith

Ted Bromund:

The Sessions memo was backed up in January 2018 by a new Department of Justice policy that “prohibits the use of agency guidance documents in affirmative civil litigation in a manner that would convert such guidance into binding rules of conduct.” The ATF understood these directives to mean that it had to stop issuing public, industry-wide guidance or opinions—the very documents that could ensure uniform compliance in industry with existing regulations. When this author reached out to ATF for comment, the ATF stated that it was of course abiding by the former Attorney General’s memo, and that “we do not interpret the law.”

As a result of its understanding, the ATF now operates almost exclusively by private letters. It has not published a ruling on firearms or explosives since July 2017, and its only notifications on proposed rule-making since December 2017 relate to the politically-charged (and politically-motivated) pursuit of bump stocks.

This was not the outcome the Sessions memo envisaged. The memo makes it clear that “not every agency action is required to undergo notice-and-comment rulemaking…. [A]gencies may use guidance and similar documents to educate regulated parties through plain-language restatements of existing legal requirements or provide non-binding advice on technical issues.” The point of the memo was to prevent department rule-makers from using public guidance documents to evade the rulemaking process, not to stop them from issuing any public guidance at all. Education is not interpretation.

The ATF’s approach means that each industry member that asks a question about how to apply or interpret the rules gets its own private answer, an answer that none of its competitors knows about and which does not serve as a legal precedent. It means that no one in the industry has any certainty, not even the firm that asked the question in the first place, because the ATF can always change a decision it made in a private “no-action” letter later on. And it means that the ATF has almost complete discretion in how it regulates, because it is creating no precedents.

According to Jared Febbroriello, a lawyer working with firearms and defense companies “It is disconcerting that any agency that is tasked with interpreting the law might seek to restrict the public’s ability to access their interpretations but given the potential for criminal prosecution and the heightened risk for the loss of life, liberty and property that is associated with firearms one would think that ATF would be embracing complete transparency. Sadly, they are not.”

I do not thing any such stupid thing.  The administrative state won’t do anything in the interest of America or her citizens.  It exists wholly to serve itself.

The ATF does this sort of thing because there is a such a thing as the administrative state to begin with, but also, because Jeff Sessions is a crap-weasel of mammoth proportions who did nothing of any lasting value and lacked the guts to reign in the worst offenders.

And then again, we cannot exonerate the legislative branch who allows all of this, not the president who [a] agrees with it all, [b] lacks the guts to shut it down, [c] pretends it isn’t occurring, [d] claims that it cannot be stopped, or [e] secretly wants to use that administrative state to accomplish what no one else will despite what he tells the voters (e.g., the bump stock ban).

Radley Balko:

Last fall, I published an investigation into the way the Little Rock Police Department has been serving its drug warrants. The piece explored three general allegations: First, the LRPD has been serving drugs warrants with extraordinarily powerful explosives that other SWAT veterans told me are wholly inappropriate.

Second, there’s irrefutable video evidence that one LRPD informant and his police handlers were misleading about their investigation into a man named Roderick Talley. There’s also persuasive evidence that they did the same in other cases as well.

Finally, when I reviewed nearly 100 drug warrants from the past several years, I noticed that nearly all of them were for no-knock raids. To get a no-knock warrant, the police must provide specific evidence that the suspect is dangerous, or a threat to destroy evidence if police were to observe the knock-and-announce rule. The LRPD officers were offering no such evidence. Instead, they were using boilerplate language about how all drug suspects are dangerous and/or a threat to destroy evidence. The Supreme Court has explicitly ruled that such boilerplate language is not sufficient. Therefore, every one of these raids was illegal. Worse yet, Little Rock judges were signing off on these warrants, in spite of the law.

I’ll have a post soon laying out what has happened in Little Rock since we published that report. But over the weekend, I received a document that adds a bit more to the original story. It’s a page from a 2014 LRPD report about a drug raid. The raid in question was a no-knock raid that was served by the city’s SWAT team. In this particular case, the report says the suspect was known to have possessed firearms in the past, though it isn’t clear whether that information was conveyed in the search warrant. It also includes the broad statement that “many times guns and violence are associated with narcotics.”

But one line seems particularly significant: “It is a mandate from the Office of the Chief of Police that the SWAT team execute all search warrants.”

First of all, I don’t agree with the notion that the potential to destroy evidence is a reason for an armed raid.  Evidence isn’t that important.  Second, I don’t agree with the so-called war on drugs.  Third, I don’t agree with SWAT raids in general when good investigative and detective works will suffice.  Make the arrests when the folks come out to go grocery shopping, idiots.

‘Murica.  Land of liberty.  And a standing army violating the fourth amendment.  Just how those patriots envisioned it when they fought and bled for freedom.

David Codrea:

Likewise, the Codrea Plaintiffs-Appellants (No. 18-cv-3086 (D.D.C.) in their Motion for a Preliminary Injunction (Doc. 5-1, p. 24), Reply Brief (Doc. 18, p. 17), and Principal Brief before this Court (p. 29), requested a “systemwide preliminary injunction.”

Good.  The stupid way the court works the stay would only have been good for the specific plaintiff.

We shouldn’t even be here.  Thanks Trump.  And NRA (who gave you the original idea and cover for it).

Dean Weingarten at Ammoland.

In January 2018, I published some original research on the efficacy of pistols in stopping bear attacks. It started with this observation, on the Internet, and in print, many people claim that pistols lack efficacy in defending against bear attacks. Here is an example that occurred on freerepublic.com:

“Actually, there are legions of people who have been badly mauled after using a handgun on a bear. Even some of the vaunted magnums.”

OK, give us a few examples. As you claim “legions”, it should not be too hard.

I never received a response. I believe the claim was made in good faith. There has been much conjecture about the lack of efficacy of pistols for defense against bears. A little searching will find a plethora of fantasy, fiction, mythology, and electrons sprayed about the supposed lack.

In the original article, there were 37 instances of bear attacks where people attempted to defend themselves or others from a bear or bears, with a pistol.

Of the 37 attacks, there was only one failure, giving a success rate of 97%.

The criteria for inclusion in this study is a pistol had to be fired to defend against a bear or bears. If a pistol was not fired, the incident was not included. If the use of the pistol stopped the attack, it was a success whether the bear was killed immediately, or left the scene, as long as it stopped attacking.

All methods of defense against bears have similar problems of access. A handgun or bear spray in a pack, or a rifle slung over the shoulder without a round in the chamber, should not be counted as a use of the method to defend against bears.  All of the methods can be carried for easy access. It is not a fault of the method if the user did not have them available for use, or if the attack was too quick to allow use.

I and colleagues have searched for instances where  pistols were used to defend against bears.  By the time of the original article I and my associates found 37 instances which were fairly easily confirmed.

Our renewed efforts have found another 26 instances. The earliest happened in 1936, the latest mere months ago. The incidents are heavily weighted toward the present.  The ability to publish and search for these incidents has increased over the years. In addition to the pistol defenses, there are two new instances where pistols were used in combination with rifles, one where a pistol was used on an aggressive bear hit by a vehicle, two examples where pistols were present but not used, one indeterminate case, and two examples of unconfirmed incidents.

Both bear and human populations have increased.  Reliable and powerful pistols have become more popular, legal, and commonly carried.

The 63 cases include three that meet the criteria for failure. That translates to a success rate of 95%. You need not rely on my judgement or that of my colleagues. Read of the successes and failures for yourself. Make your own judgements. Some links may not work. Sources on the Internet often go dead after a few years.

What a great article and stellar research.  Make sure to go look at his data.  It includes cartridges all the way from .22LR to the big bore rounds.

News from New Zealand.

“We’ll be working with everyone to take those firearms off them and into a place of safekeeping,” he told media this afternoon.

“The first step is to do it voluntarily, we’ll then be working to ascertain if they haven’t complied and those people will be in all likelihood prosecuted,” Mr Bush said.

There were about 250,000 firearm holders in New Zealand, he said. People wishing to surrender their firearms must first contact police – either online or by phoning at 0800 311 311.

Referring to CCTV footage of the mosque attacks, Mr Bush said: I’ve seen that footage. It’s really disturbing. I don’t think that kind of thing should be in the public domain.”

Yea, I’ll bet you don’t.  There appears to be problems with it too numerous to catalog.  But as to confiscations, how is that going to happen?

“New Zealand is at a considerable disadvantage to countries that have had registries, because there’s no way of tracing the firearms because they don’t know who’s got them,” Mr. Alpers said. “We’re relying entirely on the honesty of the gun owner to turn it in.”

And there you have it.  That’s the value of a registry to the communists.

Stupid human tricks:

The commandant of the Marines has warned the Pentagon that deployments to the southwest border and funding transfers under the president’s emergency declaration, among other unexpected demands, have posed “unacceptable risk to Marine Corps combat readiness and solvency.”

Here’s another view from a former Marine who did a MEU after a combat tour in Iraq.  A MEU is the most ridiculous waste of time and money on earth, with the need for massive refueling, resupply, mail drop, force protection, and repair, all while at sea.  This, for the sole purpose of floating around the Gulf and “training” with incompetent troops who can’t even come close to holding their own with the USMC.

This is what the Commandant calls combat “readiness.”  All the while, an invasion is occurring on our Southern border, and even the troops deployed there can’t lift a finger to stop it since they are not on patrol or under arming orders.

Hey.  At least the corporations get low paid workers whose medical care can be sloughed off on the taxpayers, and the democrats get voters.  So the elitists are happy.

From our friends at reddit/firearms.  He says feel free to copy and paste, and he’s clearly set it out there for the good of mankind.  Thus, I reproduce it entirely.

Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.

• Tench Coxe, A friend of James Madison and himself a Delegate to the Continental Congress, writing in support of the Madison’s first draft of the Bill of Rights, 1789.

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.

• James Madison, Federalist No. 46, January 29, 1788

A militia when properly formed are in fact the people themselves…and include, according to the past and general usuage of the states, all men capable of bearing arms…  “To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.

• Richard Henry Lee, Federal Farmer No. 18, January 25, 1788

The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

• Joseph Story, Commentaries on the Constitution of the United States, 1833

The founders were big believers in natural rights. The Bill of Rights did not grant us any rights, it recognized preexisting inalienable rights. The Supreme Court confirmed this way back in 1876:

The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. [READ THAT LAST SENTENCE TWICE] The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress

• United States v. Cruikshank.

It is both an individual and collective right. Find me one founder quote saying the 2A ONLY protects state militias. I’ll wait.

News from Connecticut:

Sen. Gennaro Bizzarro, R-New Britain, said he really “struggled” with his vote, but decided to vote yes.

“I sleep with my gun at my side,” Bizzarro said, to protect his family from any possible intruders. But, in the end, he went along with the majority and voted yes.

[ … ]

While also praising Kristin Song for her advocacy on behalf of her son, Sen. Rob Sampson, R-Wolcott said the bill has “one flaw.”

He said that flaw was “you must secure guns in a certain way.”

“I don’t believe we have a right to tell people what they should in their own homes,” Sampson said, adding in their own homes is what a gun owner’s right to “choose their own method” to secure a gun.

So what are you going to do, Bizzarro?  Abdicate your manly, God-given responsibilities to protect and defend your family because a bunch of nanny-state collectivists want you to be neutered?

And Rob, there’s more than one flaw in this legislation.

Who’s left – some folks from Ruger, Mossberg and Colt?  Get out.  Now.  You’re several years too late, perhaps, but late is better than never.  Never will be deadly.  Especially since you can see the future of firearms manufacturers who are left there.

I know my readers.  And I know why you come to TCJ.  You come here because this is the only place you can find the kind of scholarship you seek.  Here you can get everything from epistemology and ethics, to sectional density and ballistic coefficient.  If I can’t give it to you all the time, the commenters will. Give yourself and me a pat on the back.

It’s in that spirit that I offer up this worthy viewing for the day.  Language warning.

Via David Codrea, news from Colorado:

It’s not even the law yet, but state Attorney General Phil Weiser is already telling sheriffs to resign if they follow locals laws passed in 26 counties that declared themselves 2nd Amendment sanctuaries.

But wait, there’s more.

Weiser blinked.

He also said this during his testimony in favor of the bill at a state Senate committee meeting:

“Any commission that says ‘I don’t want my sheriff upholding an unconstitutional law,’ they’re on solid ground,” Weiser said, adding that he expects the question to go before a court.

But Weiser, whose job it is to defend Colorado statutes, says he believes that if the red flag bill becomes law as expected and is challenged, it will be found to be constitutional and therefore must be enforced.

So county commissions passing the sanctuary laws and the sheriff’s following that order, are totally within the law to thumb their nose once the state bill becomes law, Weiser concedes.

And the bill is certain to become law, once it skips through a second state Senate panel and floor passage, and Gov. Polis signs it.

But the sheriffs have wiggle room until the constitutionality is tested in what could be a lengthy court battle.

I’m not certain he has the authority to demand enforcement of anything, much less something that runs so afoul of the constitution.  Exactly how he would enforce his edict that Sheriffs enforce red flag laws isn’t clear because he doesn’t say.

What is he going to do – send the state police after Sheriffs in 2A sanctuary counties?  LEO versus LEO?  What is he going to do if Sheriffs completely ignore the edicts of a judge – send state police after Sheriffs?  LEO versus LEO?  Frankly, he sounds like a lawyer that’s gotten a little too big for his britches.  He needs to be knocked down a notch or three.