Articles by Herschel Smith

News from Florida:

A group of open carry gun enthusiasts had a well-armed visit to Miami Beach on Saturday.

The group calling itself “Florida Carry” caused a disturbance when they showed up on the South Pointe Park Pier in June.

At that time, six members of the group startled fishermen and visitors, some of whom notified police.

Officers temporarily detained and disarmed the group, but determined that they were within their rights to carry weapons.

This time, the group announced it’s intention to show up at the pier on a Facebook page, and police were ready and accommodating.

The group walked to the pier and proceeded to fish, gathering several double-takes from other fishermen and tourists.

Open Carry Advocate Steven Merrette said, “This is our statement to come out here and try and educate not only the law enforcement officers but the general public as well. We are not the problem. We’re out here peacefully fishing, we’ve got our wives, our kids with us, we’re out here having a good time, nobody’s causing any problems.”

I support their efforts.  As I’ve said before, the shame must end.  I agree wholeheartedly with the notion of open carry to prove a point.  Other than that, we learn absolutely nothing interesting or actionable from this stupid report, except that the police are criminals.

It’s legal to open carry while fishing, and this wasn’t a Terry stop.  There was no suspicion of a crime, and the police didn’t need to detain the men and verify that they were within their rights.  Here’s a scoop, cops.  There is no law against it, so they were within their rights, just as much as walking down the street is within my rights, and you have no right to detain me for walking down the street.

As for disarming the men, I’ve pointed out before that this is the stupidest, most ridiculous, most unsafe act you can take.  Do … not .. touch .. another … man’s .. weapon.  If you do that, you are an imbecile, and your procedures are faulty.

So here’s a suggestion for the write of this silly article (” … and police were ready and accommodating”).  Find out and report for us what right the police had to detain and disarm the men, and give us the court precedents that support such action, if you can find any.  More to the point.  Give us court precedents that demonstrate that the police can detain you for no reason whatsoever?

Here’s another idea.  Give us the data on whether blood really runs in the streets like the wild, wild west in open carry states.  Or not.  Hey, “journalist.”  Do you even know how many states are open carry states?

Prior: Miami Beach Police Draw Down On, Detain, Disarm, And Throw Around Lawful Open Carriers

News from Texas:

PLANO (CBSDFW.COM) – A decorated Vietnam War hero from Plano is going to prison for a crime he committed decades ago.

Alfred Pick was sentenced by federal judge District Judge Marcia A. Crone to seven years in prison for a mistake he made nearly 40 years ago — buying a fully automatic gun that’s illegal for citizens to own. The rifle was similar to the one Pick had in the Army where he served as a lieutenant.

“This gun was very rare at that time it was rare to see one so he instantly had a connection to it,” said Pick’s attorney Ryne Sandel. “Over the course of his life he and his wife and collected about 14 weapons, many of them were collectors items.”

Pick lived in Plano’s Air Park neighborhood along with other pilots who enjoy a runway right outside their homes. The 70-year-old Vietnam veteran even served as the president of his homeowners association. Thus,  when the ATF raided his home last year it came as a shock to friends like Mark Shackelford.

“He’s always been a good person to me,” Shackelford said.

Shackelford learned later that authorities were looking for and seized an M14 rifle that Pick had bought at a Fort Worth gun show in the early eighties.

“He was a gun collector and it was probably the piece de resistance of his collection… he had shown it to me. I’ve never seen it taken it out of the case,” said Shackelford.

The raid and arrest on Pick’s Plano home came two weeks after his wife of 40 years died of cancer. They were using marijuana, which authorities found and added another criminal charge.

Friends of the vet showed up to support him after he pleaded guilty in a Plano federal courtroom and was sentenced to 87 months in prison by a judge.

“He’s had it all these years never robbed a bank or done anything with it,” said Shackelford. “Somebody that made one mistake and now 50 years later, he’s paying a really big price for it.”

More than 40 years ago, Pick was awarded the military’s third highest honor, the Silver Star, after more than 100 combat missions and for a short time he was a POW.

Factors that his friends and attorney say should have led to a lighter sentence.

“He’s a really remarkable man to be honest,” said Sandel. “I do think it’s unfortunate for a gentleman like Alfred that’s had such an outstanding life to have it mired at the age of 70 by this federal felony.”

“The man is a Silver Star winner, he saved lives, he took care of his wife, he’s been in custody for a year, I would think that when a man turned 70 and is an American hero you don’t destroy the rest of his life for one mistake,” said Shackelford.

Some Vietnam vets in Plano were not as sympathetic.

They said Pick should’ve known better especially since the serial number on the rifle was scratched out.

I say auto-sear rather than machine gun because the only difference between this and the one that you perhaps have in your gun safe if a small piece of metal called an auto-sear.

Hey, he can have one if he’s doing his killing for the FedGov.  If not, he’s just a peasant.  As for those other Vietnam Vets who weren’t sympathetic, they still belong working go FedGov.  That’s where their heart is, so why consort with the peasants?

As for the ATF, boy, I’m glad sure they are Johnny on the spot.  I feel better and safer that they have this guy behind bars.  I’m just glad they went home safe at the end of their shift.

Via reader and TCJ reporter Fred Tippens.

“The Wall Street Journal has been writing stories about various regulatory proposals and is preparing a story about a rule pending at the Bureau of Alcohol, Tobacco and Firearms at the U.S. Justice Department.

We are working with a national public research firm to help us collect information using an online survey format that should take you less than 5 minutes to complete.

Your identity, including your name and email address, will be kept confidential unless you indicate otherwise. Your answers will only be used in potential news stories when combined with other participants. At the end of the questionnaire, you will be asked if you are willing to be contacted by a reporter for The Wall Street Journal to discuss your answers further or use your name with a story.

To help us, click here [https://grimaldisurveys.cmail20.com/t/d-l-nqlha-jlidthdyud-t/], which will take you to the survey, being conducted for The Wall Street Journal by Mercury Analytics, a national public opinion research firm. Alternatively, you can go to this web address,

http://www.masurveys.com/wsj_2763?ID=7242155329

Thank you very much.

James V. Grimaldi
Senior Writer
THE WALL STREET JOURNAL
O: +1 202 862-6665
E: james.grimaldi@wsj.com“

I also got this tip from another reader.  This is odd.  I didn’t get such an email and I made a comments.

But there is the contact information if you wish to contribute to it.  It won’t do any good.  The collectivists have made their mind up, and the constitution stop mattering a long time ago.

News from Delaware:

A Delaware judge has once again found that parts of the state’s latest attempt to regulate firearms on public lands are unconstitutional.

In a years-long legal battle, two Delaware sports groups and individual gun owners have repeatedly challenged the state Department of Natural Resources and Environmental Control and Department of Agriculture’s regulations limiting weapons in state parks, forests and wildlife areas.

“We saw an agency … doing things we felt were not constitutional, and we called them on it,” said Jeffrey Hague, president of the Delaware State Sportsmen’s Association. “We were vindicated in a couple of court decisions … that what the agencies were doing was overreach.”

A Kent County Superior Court Judge’s ruling last week again supported claims that parts of a partial weapons ban were unlawful.

For decades, firearms — as well as slingshots and archery equipment — were banned in a slew of public places such as campgrounds, with the exception of areas used for hunting.

Gun advocates like Hague argued that meant people who wanted to camp in Delaware’s parks or visit the beach would have to give up their right to bear arms or find themselves breaking the law.

Late last year, the Delaware Supreme Court shot down those bans, ruling that they were unconstitutional. State agencies responded by issuing emergency regulations because without them, they argued, “firearms would essentially be unregulated.”

Shortly after that ruling, the state adopted revised versions of those emergency rules to prohibit the open carry of firearms in certain public places such as lodges and gathering spots within state parks or forests.

Gun advocates again turned to the courts to challenge the state’s authority and rulemaking, which had established “designated areas” within public lands where firearms were prohibited.

The agencies published maps of these areas, and included the caveat that people licensed to carry a concealed deadly weapon and former or current police officers were exempt from the rule as long as they could prove their gun-bearing rights.

The lawsuit was filed by the Delaware State Sportsmen’s Association, the local affiliate of the National Rifle Association, the Bridgeville Rifle & Pistol Club, and club member John Sylvester against the state Department of Natural Resources and Environmental Control and the state Department of Agriculture and those agencies’ secretaries in late May. It also sought clarity on the new rules.

The plaintiffs contended in the lawsuit that the revised ban, which essentially sets designated gun-free zones in state parks, forests and wildlife areas, is at odds with both the Delaware and United States constitutions.

Kent County Superior Court Judge Jeffrey J. Clark’s ruling last week, based on a line-by-line review of the partial gun ban, concluded that certain aspects — including the need to show proof of the right to carry a weapon — were unlawful.

Clark invalidated the inclusion of camping areas and lodges within the designated areas that prohibit firearms, the requirement that former or current law enforcement and concealed carry permit holders show documented proof of their right, and the requirement to show proof of identification.

The remainder of the revised regulations on firearms and weapons in state parks, forests and wildlife areas will remain in effect.

Francis Pileggi, a Wilmington attorney who has been working this case since the first lawsuit was filed in 2015, said it was only challenging parts of the new rules, but they largely won their case.

He said the biggest issue was to ensure peoples’ right to bear arms in their dwelling — whether that be a home, vacation rental or, in this case, a campsite — is upheld.

He said this case also was helpful in providing the court’s interpretation of the rules, which he said were not easily understood in some cases. For instance, it seemed that the designated areas were full gun-free zones; the court interpreted them to mean open carry is not permitted in those areas.

Recall I said that “they will never upbraid another branch of government, law or regulation in front of the peasants?”  I guess I was wrong.  The judge could have gone further, but this is a big win for gun rights in Delaware.

Statist get slammed, statist find another way to control, statist gets slammed again.  But if history is any indication, they’ll have to go back to court again, or simply ignore the regulations.  Maybe it’s time for an open carry event in Delaware state parks, yes?

10th Circuit:

Cox and Kettler argue that the NFA exceeds Congress’s power. We agree with the government, though: the NFA is a valid exercise of Congress’s taxing power, as well as its authority to enact any laws “necessary and proper” to carry out that power. U.S. Const. art. I, § 8, cls. 1, 18.

Among other enumerated powers, Article I of the Constitution gives Congress the “Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States,” id. cl. 1, and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Power[],” id. cl. 18.

And on its face, the NFA is a taxing scheme. The statute collects occupational and excise taxes from businesses and transactions involving listed firearms—which include short-barreled rifles, silencers, and destructive devices. See 26 U.S.C. § 5845(a) (defining “firearm”). Importers, manufacturers, and dealers of these firearms must pay a yearly tax of $500 to $1,000. Id. § 5801. And each time one of these firearms is made or transferred, the statute levies a $200 tax. Id. § 5811 (“Transfer tax”); id. § 5821 (“Making tax”).

But the NFA does more than lay taxes. To carry out the taxing scheme, it also mandates the registration of every importer, manufacturer, and dealer, see id. § 5802, and of every firearm made, see id. § 5822, or transferred, see id. § 5812. And to ensure compliance, the statute has teeth: the failure to abide by any of its rules is a crime punishable by up to ten years in prison (or a fine, or both). Id. §§ 5861 (“Prohibited acts”), 5871 (“Penalties”).

The Supreme Court addressed Congress’s taxing-clause authority to enact the NFA eighty-one years ago, when a firearms dealer indicted for failing to pay the (then $200) annual dealer tax challenged the statute’s constitutional basis with an argument similar to Cox and Kettler’s. See United States v. Sonzinsky, 300 U.S. 506, 511 (1937). The dealer conceded that the taxing power allowed Congress to tax firearms dealers, yet he “insist[ed]” that the tax at issue was “not a true tax, but a penalty imposed for the purpose of suppressing traffic in a certain noxious type of firearms.” Id. at 512. But the Constitution, according to the dealer, had reserved regulation of these firearms to the states, not to the federal government. Id. He concluded that the NFA revealed its “penal and prohibitive character” by cumulatively taxing importers, manufacturers, dealers, and transferors. Id.

The Supreme Court rejected the dealer’s challenge, refusing to conclude that the NFA—on its face a taxing measure—exceeded congressional power “by virtue of its deterrent effect on the activities taxed.” Id. at 513–14. “Every tax is in some measure regulatory,” explained the Court, and “a tax is not any the less a tax because it has a regulatory effect.” Id. at 513. Unlike the child-labor tax struck down in the Child Labor Tax Case, the NFA tax wasn’t “a penalty resorted to as a means of enforcing [other] regulations.”

Read the whole thing.  The black robed tyrants conclude that merely taxing something means that Congress has the right to regulate something as long as the regulation comes with an attendant tax.

Given this, all the FedGov has to do is place a federal tax – direct or excise – on ammunition of $1000 per round, and to the tenth circuit this would be within the bounds of the constitution, even though the constitution explicitly says that “Congress shall make no law …”

As I’ve said, don’t look to the tyrants to protect your rights.  They are all in bed together, even if there is internecine warfare within the government to see who comes out on top of the totem pole.  When threatened, they band together like the communists they are.

They may renew their struggle later, but they will never upbraid another branch of government, law or regulation in front of the peasants.  That might lead to revolt.

David Codrea:

These are non-negotiable terms of surrender, dictated by a “pro-gun” president, a “pro-gun” attorney general, and enabled by our “gun rights leaders.” Obey or be destroyed. Or as men standing on a green were reportedly ordered: “Throw down your arms, ye villains, ye Rebels, Disperse!”

If Trump and Sessions can get away with this naked, weasel-worded usurpation, guess what the Democrats will be able to pull, especially if enough feckless Republicans take the fire out of core supporter’s bellies and majorities flip.

Yea, I recall initially supporting someone else for President (before it came down to just two).  What a shame we had the choice of bad and worse

It’s not a trick question.  Nothing.

This summer, bassoonist Eric Barga drove to Covenant Presbyterian Church in Springfield, Ohio, after a day of teaching at his old school, Kenton Ride High School.

Eric was half an hour early for bell choir practice. To pass the time, he pulled out his custom-made Fox 610 red maple bassoon, sat down on the boot of his car and started playing some scales.

Seven minutes later, Springfield police received a 911 call, saying there was a white male in a jacket and jeans sitting on the back of his car by the church holding what looked like a long rifle.

Five minutes later, two police vehicles arrived on the scene.

“They didn’t immediately approach me,” Eric told Springfield News. “I saw a big police van roll up really slowly. I wasn’t concerned that I was doing anything wrong.”

Eric wondered if someone had made a noise complaint about him. The idea that someone might have mistaken his bassoon for a rifle, he said: “never crossed my mind”.

“In the right kind of light, it looks like a bazooka,” he said, “but I don’t think it was the right kind of light.”

The officers approached him.

“At this point, I realise they’re confronting me. I put on a little dopey smile and said, ‘Did somebody call the cops on me?’

“I didn’t really feel threatened. “I don’t get nervous. Years of music school (performance) beats that out of you.”

By the time the officers got to Eric’s car, they had realised the gun was in fact a musical instrument and were laughing. They even asked Eric: “Is that a bassoon or an oboe?”

Eric treated the officers to a bit of Mozart’s Bassoon Concerto before they left him to his practice.

So has America reached the stage of being worthy of ridicule?  I’m asking.  Readers can weigh in.  I know the country has in the main succumbed to the obscene, but now it looks like the three stooges.  Because I think we’re there.  We’ve finally arrived.

Here are a few observations.

First, he’s right, music performance school beats the nerves out of you.  My son, Joseph, is Concertmaster of the Austin Lyric Opera and a member of the Austin Symphony, has appeared on Austin City Limits (twice), has played with Peter Gabriel, recorded for Christopher Cross and many others.  You have to lasso your nerves to do that sort of thing.  He handled it like a champion.

Second, Americans need to take music lessons.  All Americans.  And no, rap and modern teen pop doesn’t count.  To mistake a Bassoon for a long gun is a sign that someone needs to learn the musical instruments.  You know those piano lessons your mom wanted you to take as a child, and that caused rebellion in the ranks?  Yea, those lessons.  They did you good, and you should have finished them.  And you should learn to play a string or wind instrument too.  It creates an appreciation for art, for the good things in life, for the beautiful, the exquisite, and the majestic.  It also constructs the neural networks to understand math.  Music students have an easier time with math.  My son has his own studio, and many of his students are Asian.  It’s virtually expected that Asian kids will learn music.  American kids are learning teen pop and rap.

Third, Americans need to learn firearms.  A Bassoon doesn’t look like a long gun.  A long gun doesn’t look like a Bassoon.  If I have to say any more about that, it’s time wasted on imbeciles.  And knowing how to handle firearms and being ready to use them is the surest, quickest way to handle active shooter threats, as opposed to hiding under desks and throwing potted plants as suggested by the Department of Homeland Security.

I mean, how cool would it be to do math, play a musical instrument and handle an active shooter in the same day?  You would certainly go to bed that night confident in your station in life.

News from Utah:

SALT LAKE CITY — Should police officers have to prove to a court that they are, in fact, acting as police officers every time they brandish their guns while performing their duties?

Paul Cassell, a University of Utah law professor and former federal judge, believes that’s the broader issue the justices of the Utah Supreme Court are currently deciding. And that decision could affect Utah law enforcers statewide, even those in uniform and on duty, he contends.

On Friday, attorneys arguing the case of former Unified police officer Lance Bess went before the state’s highest court to make their arguments.

On Sept. 3, 2015, Bess, 36, of West Jordan, was duck hunting while off duty with a group of people at the Bear River Bird Refuge. Another group of hunters was nearby. But one of the hunters in the other group was inexperienced, according to court documents.

At one point, that inexperienced hunter fired several shots at a duck without regard to his backstop. Those shots came close to Bess’ group.

Unsure what was happening and why his group was being shot at, Bess unholstered his police service weapon and held it by his knee. He also had his hunting shotgun over his arm as he approached the other group that had fired toward them.

Bess angrily yelled at the hunters, using expletives, as he came upon them.

According to a Box Elder County Sheriff’s Office report, members of that group said they asked Bess multiple times to put his gun away as they tried to explain that the shots were a mistake and that they felt threatened by him.

When a deputy responded to the scene, he told Bess he shouldn’t have unholstered his gun.

“I explained that I understood things where he works are a bit more crazy, in our area we deal with these things differently,” the deputy wrote in the report.

The deputy noted that because five to 10 minutes had passed from the time Bess’ group was shot at until Bess confronted them, the imminent danger had passed and Bess did not need to draw his gun.

Because of that, Bess was charged and in May 2017, the officer was convicted in 1st District Court of threatening to use a dangerous weapon during a fight, a class A misdemeanor. Judge Brandon Maynard ordered Bess to serve two days in jail, in addition to probation. Bess has since served his jail time.

Because of the conviction, Bess resigned from his certified law enforcement position at the Unified Police Department, but he was later hired back as a civilian employee. He then appealed his conviction, asking it be thrown out and he be given a new trial.

The Utah Court of Appeals agreed the case should be sent to the Utah Supreme Court for consideration.

A key issue the Supreme Court must decide is whether the jury in Bess’ original trial was given proper instructions in a timely manner. Cassell said it was important for the jury to know that a police officer is expected, and authorized, to perform police officer duties even when not officially on duty.

When jurors were given preliminary instructions at the start of the trial in this case, that part was left out, Cassell said. It wasn’t until final jury instructions were given — after witnesses had been called to the stand — that jurors were told to consider the expectations of an off-duty officer.

“The problem was that they weren’t told during the three-day trial to be listening for the defenses as they were being presented,” Cassell said. “They didn’t know up front that a police officer performing his duties is entitled to brandish a firearm. They weren’t told that at the beginning, so as a result the trial was fundamentally unfair.

Good Lord.

So let’s cover some facts.  He wasn’t performing any duties as a LEO.  He was pissed off, and so he unholstered his weapon.  Second, he had no right to go up to anyone brandishing a weapon.  He could have been shot, and he should have been shot.  This pissed off hot head actually came upon some folks who were acting fairly reasonably and stated, as they should have, that they “felt threatened.”

Third, they had no way of knowing that this person was a LEO.  I can claim that too, and it would be a lie.  Many people lie, and some people dress like LEOs as they invade homes.  No one has to believe the assertion that the person in front of them is a LEO.  Fourth, he chose to use expletives, he didn’t have to do that.  That was voluntary, no necessary or an essential part of the event that day.

Finally, should police officers have to prove to a court that they are “performing their duties?”  Yes, among other things.  They should have to prove they are LEOs, that they have enough sense to have a weapon, that they aren’t a danger to those around them, that they acted constitutionally, that they didn’t violate any laws, that they applied the law without prejudice or bias, and a whole host of other things, and I’d prefer to see them prove these things every second of every day.

News from Arkansas:

BERRYVILLE — High-end gun-maker Nighthawk Custom is expanding, adding 4,000 square feet to its work space to improve efficiency and productivity.

The new building, which sits near the company’s current facility, will house about 20 Nighthawk gunsmiths and about 10 support employees. Nelson Davis, chief operating officer for Nighthawk, said the new space will streamline the process of making custom firearms and is the gun-maker’s first stab at lean manufacturing, a system to minimize waste without affecting productivity.

The cost of the expansion is in the neighborhood of $750,000. The company plans to move workers into the new space in November with the area fully integrated by the end of the year. The company received a $125,000 Community Development Block Grant through the Arkansas Economic Development Commission for new equipment that will be part of the expansion.

Nighthawk employs about 55 workers and has been building 1911-style pistols and other custom firearms since 2004. The company offers several pistol models that are further customized based on customer specifications with a starting price tag of about $3,500.

Davis said the current layout isolates gunsmiths and requires them to go through a maze of hallways and offices as they build pistols, which adds for wasted time, miscommunication and general inefficiency. The new facility built with the input of Nighthawk’s employees, will have an open floor plan with the gunsmiths working in close proximity to one another and with support staff close at hand.

So apparently they’ve done a time-motion study and figured out that they can do more if they redesign the workspace.  Good.  I don’t have a Nighthawk 1911 (because they haven’t sent me one for free to review), but I do hope they are able to do this without reliance upon the large banks that can call in notes at any time, or going public with stock or other ownership.

I hope they don’t make the same mistake some of the large gun manufacturers have made.

News from Oregon:

Officers have observed people possessing hard-knuckled gloves, firearms, knives and batons at today’s demonstration. For the safety of the community and participants and based on behavior observed, weapons may be confiscated.

But unconstitutional, yes?  Where in the bill of rights does it give anyone the authority to confiscate weapons if they deem that possessing them may be unsafe?  And unsafe for whom?

But don’t look for any DA to take the police to court over this, or any judge to side with gun owners.  The DAs, judges and cops are all on the same side.