Articles by Herschel Smith

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.

David Codrea:

In addition to conditions like narcissim, psychopathy, delusional disorder and sadism, the killers share “a burning need for recognition in the form of fame or infamy, and anger that this recognition, this entitlement has been denied to him.”

[ … ]

“Armed individuals and out-of uniform LEOs have a reasonably good track record for stopping mass shooting attempts …”

Very well.  But I’m of the school of thought that says these “conditions” are spiritual ailments, and that they are a function of the spiritual condition of America.

And I’m of the school of thought that says the it’s not only a reasonably good track record, but the only such remedy that can be applied quickly.

I also second the comment by one reader who says he’s glad Hardy is on our side.  Me too.

This is a pregnant bit of video and requires some unpacking to do it justice.  Many things were said, and left unsaid.

I will not ally myself with Antifa, for they run contrary to everything I believe, want to change America for the worse, and want to use firearms to thwart my liberties.  I will not arm my enemy or teach him to fight.

I also will not, for example, support unlimited immigration since I know that in the main, Latinos and Hispanics vote progressive and favor draconian gun controls.  I will not change my mind because of “the sky is falling” panic attacks about possibly losing my rights if I don’t make friends with those who would oppose me.  Peace at any cost isn’t peace, it’s just temporary cessation of conflict, and the necessity of compromise means you lost.

As for the LGBT community, if I meet a member of that community who persuades me that she or he will never vote or work in any way, shape or form, to thwart my rights – and that includes the right not to bake them a cake – I won’t oppose their RKBA.  But I don’t join clubs.  I’m not entirely sure what Larry means when he implies that I should welcome someone into my community.  My community is where I live, and those with whom I run.

I am not fearful over my potential loss of rights.  My rights come from God, and God alone.  The Almighty has issued the decrees from which flow the right and duty of self defense, defense of home and hearth, and the amelioration of tyranny.  Loss of recognition of the second amendment, to which I’ve repeatedly referred as a covenant with blessings for obedience and curses for breakage, doesn’t mean I lose a right.  It means war has been declared and sides are forming.

I will always attempt to persuade those who do not see things my way to change their minds.  There is one of the reasons I write.  In that persuasion, I will include the RKBA, personal morality, philosophy, and theology.  I can walk and chew gum at the same time, and I will not compromise the very elements of my world and life view which I believe undergird and give foundation to the RKBA.  In other words, siding with an ostensibly opposing community because they might be able to be persuaded on one element, only to jettison that agreement when times get tough because it fundamentally differs from the balance of their world view, isn’t wise or effective.  I see all of life as connected, a function of our noetic structure that includes judgments on the truth value of propositions, theories of knowledge, beliefs in the foundations of social order, how we determine right and wrong, and ultimacy.

Only the Christian world and life view can birth, support and sustain liberty on a long term basis.  American is where it is now, collapsing under the weight of the trivial, obscene and ridiculous, because of this truth.  Trying to agree on the RKBA when the foundation is falling is like throwing a cup of water on a structure that has almost burned to the ground.

Finally, Larry’s analogy is utter nonsense.  It doesn’t surprise me at all that the old guard NRA believed that civilians shouldn’t be unholstering pistols under any condition.  That Ken Hackathorn tried to introduce the NRA to IPSC and the NRA refused only demonstrates my points.  The NRA refused to acknowledge God-given rights.  God will not bless them long term.  They will eventually go down in history as brief a footnote.  Mr. Vickers has his analogy exactly backwards.

I shouldn’t change my world and life view or compromise with people who would eventually undermine my liberties.  We’re not like the NRA in his analogy, we’re like Hackathorn.  The IPSC won, as will we.  God is on our side, and I’m not worried.  I will not be found among the hand-wringers, clinging to whatever little morsel of agreement I can get wherever I can find it.

Well, more than mud.  Sand, dirt, water and mud.

It did well.  I knew it would before I watched the video.  It’s a fine gun, based on my experience.  Tim Harmsen does a good job with the video.

David Codrea:

The walk commenced with troopers leading the way, crossing the street to enter the main campus. There, “counterprotestors” began converging, walking quickly, looking for all the world like stalking predators preparing to attack. I saw black hoodies and bandanas. The troopers picked up the pace.

Funny that.  When I’m openly carrying, no one has ever rushed up to me wearing a hoodie or bandana.  This would be the wrong place for that anyway.  This is not welcome terrain for such foolishness.  Something might go down that’s not to your liking.

David did a nice job of covering the event.