Articles by Herschel Smith

Congratulations Trump.  Amy Coney Barrett votes with the communists.  Yet another failure.  You could have chosen Judge Don Willett instead.  This is on you.

LA Times.

A conservative panel of federal judges ruled Monday that a 30-year ban on butterfly knives in Hawaii is unconstitutional under the U.S. Supreme Court’s new “history and tradition” standard for reviewing the legitimacy of gun and other weapons laws nationwide.

“Hawaii has not demonstrated that its ban on butterfly knives is consistent with this Nation’s historical tradition of regulating arms,” Judge Carlos Bea wrote for the unanimous three-judge panel of the U.S. 9th Circuit Court of Appeals.

The ruling, which may be appealed, has implications beyond Hawaii, including in California and other states that also ban or severely restrict butterfly knives, which have been targeted by lawmakers because they can be easily concealed and flipped open.

California bans “switchblades” — which include butterfly knives — when they have blades 2 or more inches in length. A separate lawsuit challenging that ban is pending.

The decision reflects the growing reach of the Supreme Court’s pro-gun rights decision last year in New York State Rifle & Pistol Assn. vs. Bruen, in which the nation’s highest court ruled that restrictions on people’s 2nd Amendment right to bear arms are constitutional only if they are deeply rooted in the nation’s history and tradition or analogous to some historical rule.

Since then, trial and appellate judges have found themselves sifting through century-old state statutes to determine the legality of hundreds of modern weapons restrictions in states all across the country — including on knives and billy clubs, assault weapons and ammunition magazines, and on the possession of guns by certain classes of people, including adults under 21 and people who are subject to restraining orders.

Bea wrote that Hawaii’s 1993 ban on butterfly knives did not meet the criteria because nothing like it existed around the historical benchmarks chosen by the Supreme Court as relevant for such analyses: 1791, when the 2nd Amendment was passed, or 1868, when the 14th Amendment was passed. The latter amendment prohibits states from depriving people of property without due process of law.

Although the Bruen decision specifically addressed firearm regulations, Bea wrote that was only because the case in Bruen was about gun regulations in New York. The same “framework” applies to knives, which are also “arms” under the 2nd Amendment, he said.

[ … ]

Adam Winkler, a UCLA law professor who focuses on 2nd Amendment law, said the 9th Circuit’s decision “is emblematic of what’s happening across the nation right now.

“Courts are striking down regulation of arms left and right.”

Winkler said the Supreme Court “has put states in the impossible position of showing that any law that regulates weapons for public safety [has] clear analogues in the 1700s and 1800s,” which he added “just leaves courts to draw analogies to laws that were designed for a different society.”

“It really makes no sense,” he said.

[ … ]

Hawaii put forward several such laws, dating back to 1837, including laws that banned or regulated bigger blades such as Bowie knives and “Arkansas Toothpicks,” daggers, brass knuckles, canes concealing swords and knotted ropes with metal weights at the end called “slung-shots.”

An 1837 law in Georgia — which the court called Hawaii’s “best historical analogue” — said no one shall “keep, or have about or on their person or elsewhere … Bowie, or any other kind of knives.”

Bea wrote that the Georgia law didn’t clearly include “pocketknives” — which in his decision would include butterfly knives — so it wasn’t necessarily relevant. And anyway, he wrote, “one solitary statute is not enough to demonstrate a tradition of an arms regulation.”

[ … ]

“The court has to provide more clarity and direction for the lower courts,” Winkler said, “because the Bruen test has proven absolutely unworkable and unpredictable.”

It makes no sense to fisk this decision completely because it’s the right decision.  However, I do have some thoughts on it.

First, men should be able to carry swords if they choose to.  Silly debates on the mechanical operation of knives makes these judges look like school children, and besides, none of them ever used a knife anyway unless it’s an electric powered knife for cutting turkey because their wife told them to.  Their wives could probably have done a better job of cutting the turkey.

Seriously, most of these judges are so effete that they wouldn’t know how to use fire starter, tie a bowline or taut line hitch, build a campfire, or be able to open a box with a knife without cutting themselves.  They certainly wouldn’t know how to operate a 1911, and yet they’re adjudicating laws for the rest of us.

Next, notice the silly Adam Winkler and his hand wringing over this sort of thing.  He says, “impossible position of showing that any law that regulates weapons for public safety [has] clear analogues in the 1700s and 1800s,” [which he added] “just leaves courts to draw analogies to laws that were designed for a different society.  It really makes no sense.”

It makes perfect sense, and it’s clear enough to you and me.  Winkler just doesn’t like it.  He adds to our understanding of his frustration by emoting “the Bruen test has proven absolutely unworkable and unpredictable!”

The test is completely workable.  The test is to find analogues from the time of the signing of the constitution, or at the latest the lives of the founders (while they were still here on earth).  Can’t find an analogue?  Too bad.  You fail the test.  There is no reason to search any more.

There were no analogues on the carry of knives from the time of the founding.  Even as children the founders carried long guns to school with them to be able to hunt on the way to and from school to fill the dinner table.  And that stupid “analogue” on Bowie knives from 1837 from Georgia is no analogue at all.  It’s too late.

All this searching they’re doing is to try to force fit later laws and regulations into the framework of the Bruen test.  There was also no law or regulation of firearms serialization at the time of the founding either.  They can pull their hair out as far as I’m concerned.  In fact, the more time they waste on trying to convince the court that they’ve actually found something when the law is too late to meet the Bruen standard is time they don’t have to spend on wrecking the lives of other people.

The only downside for us is that this all slows the process down.  It would be better if they just gave up and understood that they can’t meet the Bruen test.  In absence of that, I’ll take a waste of their time.

Finally, why do writers go to silly men like Winkler to assess the facts of these cases, when they’ve got real scholars like David Kopel, Dave Hardy, Stephen Halbrook, Mark Smith and so many others?

Winkler doesn’t like the Bruen test.  That’s fine with me inasmuch as I don’t care what Winkler thinks.  That’s a much different thing than saying that it’s unworkable and unpredictable.  The test is entirely workable and quite predictable.  Winkler gets an ‘F’ from The Captain’s Journal on class participation today.

As you likely know, Justice Alito has given the federal government until Tuesday, or in other words, extended the stay on Judge’s Reed O’Conner’s vacatur of the new ATF rule to serialize incomplete lower receivers.  Of course, we don’t know where this is all headed.  The SCOTUS could remand this for decision consistent with Bruen, or sustain the vacatur for parties involved, or they have other options.  Since this emergency appeal by the DOJ has been accepted by the SCOTUS, doing nothing is now not possible.  They will do something, but we’ll have to wait until Tuesday to find out (or perhaps Wednesday).

Below, professor Mark Smith does a service by reviewing the history of firearms serialization in both the U.K and America.  There is basically no history of serialization in America, and certainly no history of requiring firearms to be serialized at the time of our founding.  In other words, there is no analogue law to which the DOJ and ATF can turn.  It isn’t enough to say that firearms loaned to the militia by the government were serialized.  That was for a different purpose, i.e., tracking government property.  The ATF rule pertains to privately owned firearms.

Watch all of Mark Smith’s presentation.  But before you get to that, remember that the founders toted long guns to school with them in order to hunt on the way to and from classes.  Those were either purchased from a smith (with no serialization) or self-made (of course, with no serialization).  The founders would have opposed such schema.

In 1 Samuel 13:19f, we read this.

Now no blacksmith could be found in all the land of Israel, because the Philistines said, “Otherwise the Hebrews will make swords or spears.” So all Israel went down to the Philistines, each to sharpen his plowshare, his mattock, his axe, and his hoe. The charge was two-thirds of a shekel for the plowshares, the mattocks, the forks, and the axes, and to fix the cattle goads.

This is considered by commentators to be a great evil.  Matthew Henry comments, “See how politic the Philistines were when they had power; they not only prevented the people of Israel from making weapons of war, but obliged them to depend upon their enemies, even for instruments of husbandry. How impolitic Saul was, who did not, in the beginning of his reign, set himself to redress this. Want of true sense always accompanies want of grace. Sins which appear to us very little, have dangerous consequences. Miserable is a guilty, defenceless nation; much more those who are destitute of the whole armour of God.”  In Jamieson, Fausset and Brown, we read this.  “Now there was no smith found throughout … Israel—The country was in the lowest state of depression and degradation. The Philistines, after the great victory over the sons of Eli, had become the virtual masters of the land. Their policy in disarming the natives has been often followed in the East. For repairing any serious damage to their agricultural implements, they had to apply to the neighboring forts.”  John Gill remarks “this they did to prevent their having arms, and the use of them, that they might not rebel against them, and fight with them, and overcome them; it was a piece of policy to keep them subject to them.”

Subjection of others is always the goal.  As I’ve observed before, the desire to control others is the signal pathology of the wicked.  Men who would become the almighty desire to steal the power and authority of the most high God to themselves, and the result is always tyranny.  Those rulers are always fake, a ghost of righteousness, a phantom, unreal, a vapor in the wind.  There is nothing righteous about tyrannical rulers, but the history of tyranny is dark.  In the twentieth century, some 212,000,000 souls were lost at the hands of tyrannical governments across the globe.

The firearms serialization schema is sinful, and points to deeper problems of the soul among those who call for such control over other men.  Control over other men never leads to righteous results.

Never compromise with this wickedness.  Oppose it at every turn.  Take names and hold grudges.

Prior: The American Tradition of Self Made Arms

Source.

FARGO, N.D. (Valley News Live) – Fargo is suing the state of North Dakota over a new law that bans zoning ordinances related to guns and ammunition, continuing a clash over local gun control.

The state’s biggest city has an ordinance that bans people from selling guns and ammunition out of their homes. The Republican-controlled Legislature passed a law this year that limits cities and counties from regulating guns and ammunition. The law, which took effect Tuesday, also voids existing, related ordinances.

The city’s lawsuit says the “stakes are much higher” and gets at whether the Legislature can “strip away” Fargo’s home rule powers. Fargo voters approved a home rule charter in 1970 that gave the city commission certain powers, including the power to zone public and private property.

“As it relates to this present action, the North Dakota legislative assembly is upset that the City of Fargo has exercised its home rule powers to prohibit the residents of the City of Fargo – and no one else – from the home occupation of selling firearms and ammunition and the production of ammunition for sale,” the lawsuit states. “Effectively, the City of Fargo does not want its residents to utilize their homes in residential areas as gun stores.”

The city successfully challenged a similar law two years ago.

North Dakota Attorney General Drew Wrigley told The Associated Press his office will evaluate the complaint. Fargo city spokesperson Gregg Schildberger said the City Commission will discuss the lawsuit on Monday during a regular meeting.

Bill sponsor and Republican state Rep. Ben Koppelman told a state Senate panel in April that the issue came to greater attention in 2016 when, because of the ordinance, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives refused to renew the federal firearms licenses of Fargo dtealers who sold out of their homes.

“What is at issue is whether we want local governments creating gun control or whether we want gun regulations to remain a state-controlled issue,” Koppelman said in April. “Without this bill and in light of the (2021) court opinion, I think local political subdivisions could propose all sorts of local gun control, and based on the anti-gun track record of the City of Fargo Commission, I think we could expect it.”

It’s difficult for me to ascertain where this is for ND and the city of Fargo.  I’m not sure if the article is implying a likelihood of success because of prior protocol (lack of a preemption law), or screwed up judges.

In any case, it’s difficult for me to see any option other than ND law overriding Fargo ordinances.  Cities seem to always be a hotbed of controllers, Karens and HOA committees who like to tell other people what to do.

I support this preemption law as long as the state of ND honors the rights under the 2A.  I oppose any preemption law from a state that strips away rights under the 2A.

I see nothing inconsistent with my position.  Always press towards maximum liberty as long as property rights and noise ordinances aren’t infringed.

Virtually every copper bullet we’ve seen tested performed magnificently.  They seem to hold together well (they don’t explode in tissue), and they have good expansion.  Thus, they appear to be very good hunting bullets.

Source.

A federal judge on Thursday rejected a gun rights group’s challenge to an assault weapons ban the state of Connecticut adopted after a gunman in 2012 killed 20 children and six educators at Sandy Hook Elementary School in Newtown.

The National Association for Gun Rights (NAGR) filed a lawsuit in September, arguing the 2013 ban violated the right to bear arms under the U.S. Constitution’s Second Amendment, citing a major U.S. Supreme Court ruling last year that expanded gun rights.

That decision, New York State Rifle & Pistol Association v. Bruen, was issued by the court’s 6-3 conservative majority and held the Second Amendment protects a person’s right to carry a handgun in public for self-defense.

The decision also announced a new test to assess the legality of gun restrictions, saying they must be “consistent with this nation’s historical tradition of firearm regulation.” NAGR said Connecticut’s law failed to meet that standard.

But U.S. District Judge Janet Bond Arterton in New Haven in a 74-page ruling rejected those claims, saying the group failed to establish that assault weapons and large capacity magazines are commonly bought and used for self-defense.

She got the test wrong.  The test is “for lawful purposes.”

Here is the decision.

Defendants have submitted persuasive evidence that assault weapons and LCMs are more often sought out for their militaristic characteristics than for self-defense, that these characteristics make the weapons disproportionately dangerous to the public based on their increased capacity for lethality, and that assault weapons and LCMs are more often used in crimes and mass shootings than in self-defense. Defendants also show through the submission of historically analogous statutes and expert declarations that when a modern innovation in firearm technology results in a particular type of weapon or method of carrying being utilized for unlawful purposes to terrorize and endanger the public, the Nation has a longstanding history and tradition of regulating those aspects of the weapons or manners of carry that correlate with rising firearm violence.

[ … ]

Heller explained that it was not “permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed” because the handgun was the “quintessential self-defense weapon,” “possessing characteristics making it well-suited for self-defense.” Id. at 629. “Whatever the reason,” Heller found, “handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” Id. at 629.

Bruen, perhaps recognizing the shortcomings of a purely statistical inquiry into possession, avoided that pitfall by framing the relevant inquiry as being whether the weapons are “‘in common use’ today for self-defense.” Bruen, 142 S. Ct. at 2134 (emphasis added); see also Heller, 554 U.S. at 594 (discussing the origins of the pre-existing right codified by the Second Amendment as the “right of self-preservation” permitting a citizen to “repel force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.”)

Now, go see Bruen pages 39 and 43.  Her legal clerk got the test wrong.  It’s for lawful purposes.  She also spends significant time exploring whether, in her opinion, the “unprecedented societal concern” associated with ARs.  So she does the balancing test associated with tiers of scrutiny that Bruen specifically disallowed.

And while we’re at it, the very section of Heller she quoted above dealt with handguns because ownership of long guns was already accepted, while handguns were disallowed.  The supreme court wasn’t stipulating what firearms may be owned.

Finally, this literally ignorant prose.

Unlike the broader category of handguns at issue in Heller and Bruen, the record developed here demonstrates that assault weapons and LCMs are suboptimal for self-defense.

So the old battle ax is now an expert in self defense!

Tell her Stephen Bayezes says hello.

This will be overturned, or remanded for reconsideration in light of whatever case they take up (perhaps the Illinois case).

UPDATE: Mark Smith provides a quick analysis.

These folks never stop do they?  They’re pulling out all the stops.  Fortunately, GOA is ready to take the first shot at them.

I’m guessing our buddy Stephen Stamboulieh will be busy for a while on this.

BREAKING: Reports suggest @JoeBiden’s Backdoor Universal Background (Registration) Checks to be published soon.

Gun Owners of America will be filing a lawsuit to block this unconstitutional rule ASAP.

for details ⤵ pic.twitter.com/sxiAM3RaAw

— Gun Owners of America (@GunOwners) August 1, 2023

I guess he’s pretty excited to get into the outdoors.  I am too when I’m couped up, as I am working behind a computer building physics models all day.

Ken likes to do a good morning post.  This can be my goodnight post.

Well that’s a big flock of chickens. I’m guessing that daddy coming home means feed time. Since these are free range chickens, I’m wondering how he keeps the hawks away unless there’s a few roosters in that flock (but more than one rooster will cause problems).

@chelseamyers613 #chicken #chickenarmy #tinyraptors ♬ original sound – Chelsea Myers

I don’t know how this guy got a cam attached to an eagle, but these views are amazing.

Okay, well now I do know how he got these shots.

From a reader, GP.

On Saturday, trying to do the right thing led to Republican Rep. Ronny Jackson of Texas being put in handcuffs and briefly detained.

The incident happened at the White Deer Rodeo in the town of White Deer about 40 miles from Amarillo, according to the Texas Tribune.

A statement from Jackson’s office said he was attending the rodeo when he was “summoned by someone in the crowd to assist a 15-year-old girl who was having a medical emergency nearby.”

The statement that Jackson, who was a White House doctor for former President Barack Obama, was informed by a relative that the girl needed help in addition to the assistance being provided because “no uniformed EMS providers on the scene at the time.”

“While assessing the patient in a very loud and chaotic environment, confusion developed with law enforcement on the scene and Dr. Jackson was briefly detained and was actually prevented from further assisting the patient,” the statement continued.

“He was immediately released as soon as law enforcement realized that he, as a medical professional, was tending to the young girl’s medical emergency.”

The statement noted said Jackson was “in the stands during the entire rodeo, in full view of the assembled crowd, and was not drinking.”

It sounds like a boilerplate statement from a chief cop concerning a screwup, yes?  Wait.  It gets much worse.

In a Facebook post in which she referred to Jackson as “ER DR” (which he is professionally), Linda Dianne Shouse gave her summation of the incident.

“I have never been more disappointed in our Rescue Team!!! I got called to render aide to my 15 year old cousin that was unresponsive at the White Deer Rodeo tonight!! She is not from here and was seen at the ER last night as she was told for dehydration and anemia!! I assessed her and she was NOT dehydrated! She was responsive to my voice but not aware of her surroundings. Respirations in the 40s. As I assessed her I noticed she looked as tho it was hypoglycemic episode,” she wrote.

“My cousin who is a BSN in a trauma hospital, myself and an ER DR were working on her. Had her responsive to her whereabouts! ER Dr agreed with me that she was seizing due to possible hypoglycemia. Sheriff’s department put a blood pressure monitor on her below her waist. I rose it to heart level and as she is awake and respirations are slowing down I placed a small piece of gum in a ball UNDER her tongue to give her some sugar. (Better than nothing).”

“Deputys screamed at me and not listening to any thing US medical Professionals had to say, they punched me in my chest and forced me back with a palm to my face as well causing me to fall backwards!! ER Dr was thrown to the grown and ARRESTED!!! I am beside myself!! Prayers for Bailey!!!!!” she concluded.

They’re all blessed to be alive.  It’s a wonder the cops didn’t discharge firearms at everyone around them.

You’re never in more danger than when the cops are around, and no situation is so bad that it cannot be made worse by the presence of the police.

That’s the good part.  The unfortunate part is that they remanded the case back to district court to determine the scope of relief (to whom this decision applies).

I do like Don Willett’s concurrence.  I’ve followed him for quite a while.  I wish he had been chosen for supreme court rather than Barrett.  Or Kavanaugh.