Archive for the 'Second Amendment' Category



The Militia Connection To The Second Amendment

BY Herschel Smith
1 week, 2 days ago

It’s entitled How Alexander Hamilton Solved America’s Gun Problem – 228 Years Ago.  I’ll only paste his conclusion.  You can read the rest for yourself.

The result of compulsory militia membership for gun owners is actual reform whose design originates directly from the framers of the Constitution. This reform adds oversight, training, and state regulation while keeping the federal government out (militias existing specifically as a check on federal power); preserving the right to keep firearms; contributing perhaps to the security of the United States in some presently unimaginable future conflict at home that involves enemy divisions and open warfare; and has a better chance of seeing law than does confiscation or a repeal of the right to bear arms.

There is the gist of it.  As I said, read the rest for the full argument.

But the argument fails the test of history and suffers from the obvious attempt to make a case where there is there none.  Remember that we’ve discussed this before, but just to rehearse, firearms ownership and use was ubiquitous in the colonies.

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.” In 1658 it required every householder to have a functioning firearm within his house and in 1673 its laws provided that a citizen who claimed he was too poor to purchase a firearm would have one purchased for him by the government, which would then require him to pay a reasonable price when able to do so. In Massachusetts, the first session of the legislature ordered that not only freemen, but also indentured servants own firearms and in 1644 it imposed a stern 6 shilling fine upon any citizen who was not armed.

When the British government began to increase its military presence in the colonies in the mid-eighteenth century, Massachusetts responded by calling upon its citizens to arm themselves in defense. One colonial newspaper argued that it was impossible to complain that this act was illegal since they were “British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights” while another argued that this “is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defense”. The newspaper cited Blackstone’s commentaries on the laws of England, which had listed the “having and using arms for self preservation and defense” among the “absolute rights of individuals.” The colonists felt they had an absolute right at common law to own firearms.

The notion that the rights to firearms ownership was granted by any government would have been considered ridiculous and dismissed in colonial times.  God grants rights – the state merely recognizes them, and if it doesn’t, the people have a right and duty under God to take action to ensure that the right is recognized.  There is so much more.

“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].”

We could continue but won’t for the sake of brevity.  The point is that firearms ownership is the presupposition to understanding the constitution, not the outcome, product or pronouncement.

The men who wrote it had just gotten finished with a war against their former king, using firearms they personally owned, and so the idea that they wouldn’t have understood the God-given right to oppose tyranny is absurd.  Moreover, their real concern within the context of the covenant they were producing in the constitution was that their newly formed federal government would become just like king George.

In order to prevent that possibility, they recognized the right of the states to be free of intervention by the federal government within the context of their men and armaments.  They only needed one reason to write those protections into the constitution, and this was it.  To them, it was the most important.

The constitution was not and is not a treatise on the entirety of the history of mankind and his rights.  It is a covenant between the states and the federal government, and between government and the people.

The author at The Week, David Brown, is correct to highlight the noted militia clause in the second amendment.  I wish more people would become aware of their history and heritage.  The militia needs to exist today, and for the very same reasons it did in the 1700s.

But David’s presuppositions led him astray.  He believes that a different rendering of the second amendment changes the well-documented, well-rehearsed, and well-established history upon which America was built.  So in conclusion, let’s pose two questions David could have asked, and give the correct answers to those questions.

First, “Is it important for men to own firearms to be able to answer the call to oppose tyranny, or in other words, does the militia have a valid role in today’s society?”  We may answer, yes, and in the superlative in today’s society.

Second, “Should compulsory militia membership be required as a precondition for firearms ownership?”  To which we may answer, the mere asking of the question betrays a fundamental misunderstanding of the source of our rights, the history of colonial America, God’s expectations for us, and the reasons for the Bill of Rights.

The question isn’t just answered with a ‘no’, it is completely irrelevant and immaterial.  It has nothing whatsoever to do with rights granted by the Almighty, or for that matter, the second amendment.

Third Circuit Breaks New Ground For The Second Amendment In New Jersey

BY Herschel Smith
1 week, 3 days ago

News from New Jersey.

On August 17, 2021, the U.S. Court of Appeals for the Third Circuit weighed in on the uncharted boundaries of rights afforded under the Second Amendment, namely whether restrictions on where citizens can purchase or practice with firearms implicate the right to bear arms, and whether zoning rules interfere with that right.

In a precedential decision that tracked historical frameworks and recent U.S. Supreme Court jurisprudence, the Third Circuit reversed a U.S. District Court ruling that dismissed a challenge to two zoning ordinances that limited the types of firearms with which one could practice at gun clubs and also limited for-profit ownership of such a facility. In doing so, the Third Circuit reinstated the lawsuit seeking an injunction against the enforcement of those two ordinances.

Although the Third Circuit’s opinion in Drummond v. Robinson Township stopped short of a general prohibition against such restrictions, it opened the door to challenges against anti-firearm zoning far wider than it had ever been opened before. Prior to the ruling, neither the Supreme Court nor the Third Circuit had confronted a Second Amendment claim challenging a restriction on firearms purchase or practice. The Third Circuit decided that if a zoning ordinance “has the effect of depriving would-be gun owners of the guns and skills commonly used for lawful purposes like self-defense in their homes,” it would likely be unconstitutional. Drawing comparisons to free speech legislation and prohibitions that were previously struck down in Chicago and the District of Columbia, the Third Circuit held that such an ordinance will only be valid if (1) it serves a “significant, substantial, or important” government interest, and (2) “the fit between the asserted interest and the challenged law” is reasonable and “does not burden more conduct than is reasonably necessary.”

Occasionally a court gets one right.

I still wouldn’t live in New Jersey.

Missouri Law Enforcement Weighs In The The New Second Amendment Preservation Law

BY Herschel Smith
2 weeks, 2 days ago

News from Missouri.

CAPE GIRARDEAU, Mo. (KFVS) – The Second Amendment Preservation Act became law over the weekend, one day after a Cole County judge threw out a legal challenge to it.

Now, a growing number of Heartland law enforcement leaders say this new law’s actually missing the mark, by benefiting the most violent criminals and putting your communities at risk.

Signed by current Republican Governor and former sheriff Mike Parson, the new law prohibits state and local cooperation with federal officials in any actions that violate a Missourian’s right to keep and bear arms.

“Well, very early on I was actually in favor of a large part of this,” said Sikeston Department of Public Safety Chief James McMillen. “Then we got into the details of this and, of course, I was like this is going to be a problem.”

Those details led us to sit down recently with McMillen, Dexter Police Chief Hank Trout, Poplar Bluff Police Chief Danny Whiteley, Butler County Prosecuting Attorney Kacey Proctor, Butler County Sheriff Mark Dobbs, Stoddard County Prosecuting Attorney Russ Oliver and Cape Girardeau Police Chief Wes Blair.

They are all do something even they did not expect, speak out against the Second Amendment Preservation Act.

“When I first read the legislation, I was concerned because it essentially says that we can’t cooperate with the federal government on anything that involves a gun,” Chief Blair said.

One of Blair’s officers showed us an AR-15 and a pistol Cape Girardeau police found on Gene Wren when they arrested him in November 2020.

Wren is now serving eight years in federal prison in a case worked by an officer Blair assigned to the ATF Task Force in 2017.

“And during that time, he was able to get 181 federal indictments on federal gun charges. Most of those would be felons in possession of guns.”

“I think that the average citizen thinks the federal agencies are kind of very far away and distant from us,” said Kacey Proctor. “The reality is I communicate with my counterpart in the federal system probably four or five times a week.”

Since I believe in neither your war on guns nor your war on drugs, this is a good thing, and cooperation with federal law enforcement is not.

I think the new law is working just about right.

New SC open carry law changes how law enforcement can approach someone with visible gun

BY Herschel Smith
1 month ago

News from South Carolina.

The new Open Carry law went into effect in South Carolina on Aug. 15, which means people can now legally have their handguns visible, as long as they have a concealed weapons permit.

South Carolina law enforcement officers now have to think twice before approaching someone carrying a handgun.

That’s because before the new Open Carry law, police could approach anyone who had a visible handgun in public areas because it was illegal.

Myrtle Beach Police Captain Eric DiLorenzo said there are now other factors to consider before stopping someone with a visible handgun.

For example, police would have to consider if there’s a threat to the public or probable cause.

A visible weapon with no other factors present does not give police the right to detain someone,” said Capt. DiLorenzo.

Yes, and a thousand times yes.  This is correct.  S.C. has no stop and identify statute, and simply detaining someone for doing something legal runs afoul of the concept of a “Terry Stop.”

It sounds like someone has been reading TCJ.  And let’s hope he and all other CLEOs are training their folks just like this.

SC law change means guns, weapons still allowed at hotels — even if hotel says ‘no’

BY Herschel Smith
1 month ago

News from South Carolina.

In hotels, though, gun owners will have additional rights, and will likely be allowed to carry their weapons into the hotel and up to their rooms, regardless of what hotel owners say.

As it should be.  If I stay on a hotel, it is my home for the night.  I have as much God-given right to self defense there as anywhere else.

But there’s something more interesting in this article.  The author cites 707 Gun Shop owner Robert Battista in the caption to a video saying “Robert Battista, 707 Gun Shop owner, is opposed to a law allowing anyone to buy and openly carry a weapon in South Carolina.”

So I figured that Robert is either an idiot (it has never been the case that anyone can purchase a firearm) and allowed himself to be used by the media, or friendly to tyrants.

Listen to the video.  It’s worse than that.  First of all, he isn’t in favor of constitutional carry, but prefers what he calls “national carry” where every state is the same and it’s all controlled by the FedGov.  So he isn’t just friendly with tyrants, he is a tyrant himself.

Second, he lies about S.C.  He says it is a tourist state.  That’s not correct at all.  Myrtle Beach may be a tourist destination (a poor one at that), but the upper part of the state has the largest inland port in the Southeast, and the scale of the industrial production between Greenville, S.C., and Charlotte, N.C., would stagger anyone.

Third, he says that it’s going to be a “law enforcement nightmare” if S.C. passes constitutional carry.  This, despite the fact that in the 22 other states that passed constitutional carry haven’t experienced a nightmare, and blood isn’t running in the streets.  He’s lying.  He isn’t just fabulating or exaggerating, he’s lying.

Fourth, he lies again and says that the people who want constitutional carry are the people who can’t pass the background check.  What a liar, and what an idiot.  You can’t purchase without filling out Form 4473 (unfortunately), and the people who are pushing constitutional carry are patriots like you and me.

He wants the schema where you just have to ask the government for the permit.  “All you have to do is ask,” he says.

His accent gives him away.  He’s not a native South Carolinian.  He’s from out of state.  Go home, tyrant.  And to any readers in his area, never visit his store.

Two Hawaii Gun Regulations Struck Down

BY Herschel Smith
1 month ago

Via David Codrea, this summary at Reason.

The Government has failed to show that there is a reasonable fit between their stated objective of promoting public safety and the 10-day permit use period imposed by HRS § 134-2(e). The 10-day permit use period for handguns does not survive intermediate scrutiny….

[As to the 5-day inspection period requirement], the Government [again] wholly fails to demonstrate how the in-person inspection and registration requirement furthers these interests. It merely states that “ensuring that the registration information is accurate, ensuring that the firearm complies with Hawaii law, and confirming the identity of the firearm can be easily accomplished simply by bringing the firearm to the registration for inspection.”

This bald statement is not enough to meet the Government’s burden. “To survive intermediate scrutiny, the defendants must show ‘reasonable inferences based on substantial evidence’ that the statutes are substantially related to the governmental interest.” Here, the Government has provided no evidence whatsoever in support of its position. The Government has provided no legislative history speaking to the legislature’s reasons for amending the statute. It has not shown that inaccurate registration was a problem affecting public safety (or even a problem at all) prior to enactment of the 2020 in-person inspection and registration requirement, nor has it provided any studies, examples from other jurisdictions, or any other type of evidence suggesting that an in-person inspection and registration requirement would ameliorate such a problem.

In absence of concrete evidence, the only support that the Government offers is conjecture. Defendant asserts that in-person inspection and registration promotes public safety by requiring that the police directly inspect the serial number on the gun itself, rather than the number as reported by the buyer and (separately) by the seller on the permit. Specifically, the Government speculates that “[s]ome people might innocently make mistakes in transcribing serial numbers or other identifying information” or may be unaware that their gun’s identifying marks or other attributes have been impermissibly altered. And, the Government hypothesizes, individuals may not be aware of these errors or inconsistencies until they bring their firearm to the police station to have it physically inspected. But this hypothetical falls short under intermediate scrutiny. To meet its burden, the Government must “present some meaningful evidence, not mere assertions, to justify its predictive judgments.”

Thus, it once again appears that the Government’s only permissible argument is that common sense shows the law is reasonably related to its interest in promoting public safety. But the notion that in-person inspection and registration promotes public safety is not a matter of common sense. First, as stated above, in the absence of any evidence to that end, it is not a common-sense conclusion that mistakes in registration were a problem prior to enactment of the  in-person inspection and registration requirement. Indeed, there is redundancy built into the registration process even without the in-person requirement—both the firearm seller and buyer must provide the serial number and other identifying information about the firearm. As Plaintiffs point out, “it strains credulity that both a firearms store and a buyer would both fail to properly transcribe numbers or realize” that the gun has been impermissibly altered.

Second, as the D.C. Circuit pointed out in Heller v. District of Columbia (D.C. Cir. 2015), requiring individuals to bring firearms into the police station for in-person inspection and registration may “more likely be a threat to public safety [because] there is a risk that the gun may be stolen en route or that the would-be registrant may be arrested or even shot by a police officer seeing a ‘man with a gun.'” While these possibilities—like the Government’s hypothetical about mistaken transcription—are no more than conjecture, they demonstrate that it is not a simple matter of common sense that in-person inspection and registration promotes public safety.

Finally, it is again worth noting that Hawaii is the only state in the country to require in-person inspection and registration of firearms. As in the case of the 10-day permit use period, if it were truly a matter of common sense that in-person inspection and registration promoted public safety—or that misidentification in the absence of in-person inspection and registration was a problem—one would expect additional states to maintain similar requirements. The Government has failed to show that the in-person inspection and registration requirement is reasonably tailored to a significant, substantial, or important government interest. HRS § 134-3(c)’s in-person inspection and registration requirement does not survive intermediate scrutiny.

Reason ends with this: “Congratulations to Alan Beck and Stephen D. Stamboulieh, who represented the challengers.”

Stephen Stamboulieh is a friend of TCJ and I would like to say congratulations.  I’ve held for a long time now that the fertile soil for gun rights – and recognition of all God-given rights for that matter – is local and state.  The rapid expansion of open and constitutional carry across America has demonstrated this axiom right.

“We’re Not Going To Investigate Something That’s Not A Crime”

BY Herschel Smith
1 month ago

News and views from South Carolina.

“For the law-abiding Concealed Weapon Permit owner, today is a very significant day because they can decide whether they want to carry open or concealed,” said Kershaw County Sheriff Lee Boan.

[ … ]

As valid CWP owners choose to open carry, Sheriff Boan is making sure his officers and dispatch personnel are trained to respond.

“When you get that call that somebody’s walking down the road or parking lot or something openly carrying a firearm, that’s not a crime. That’s not a crime,” said Boan. “We’re not going to investigate something that’s not a crime.”

What?

Has he been reading TCJ?  Because that sounds like something I’ve said many times before.  Yes, I’m sure of it.  Many times.

Good on him.  Instruct your 911 operators to ask the right questions: “Is he brandishing a weapon or is it holstered?”  “Is he threatening anyone with a weapon?”  “No, we won’t send a patrol to respond.  He isn’t breaking any laws.  Open carry is legal in South Carolina.  Good bye.”

This is the best way to save time and avoid wasteful encounters.

Lowcountry deputies preparing for open carry law changes

BY Herschel Smith
1 month ago

News from lower state South Carolina.

BEAUFORT COUNTY, S.C. (WTOC) – On Aug. 15, a new law will go into place that will allow those with the proper permits to open carry handguns in South Carolina.

The Beaufort County sheriff was very clear that he does not believe the new open carry law will directly correlate to an increase of gun violence in the county. He did acknowledge though, that this is a change that will take time for everybody to get used to.

“There’s going to be a training curve through this and there’s going to be mistakes made. There’s going to be mistakes made by those who are carrying an open carry weapon and there’s going to be mistakes made by law enforcement officers,” Sheriff P.J. Tanner said.

The sheriff went on to explain that he doesn’t believe this will be as common in the Lowcountry as it will be elsewhere in the state.

“Currently, we’re on Hilton Head Island. I don’t know that we’ll see that big of an issue here on Hilton Head, but I think there are other areas of South Carolina that I think open carry is going to be trendy and I think people will take advantage of it,” Sheriff Tanner said.

He went on to explain that the law does have some benefits, including allowing officers to see someone’s weapon immediately on approach.

Ooo … “trendy.”  “Issue.”  “Take advantage of it.”

Here’s what needs to happen with law enforcement.  Ignore it.  It isn’t trendy.  It’s a God-given right, finally recognized by the tyrants in South Carolina.

Educate your 911 operators to tell callers that this is within the law and no LEO will be sent out to stop peaceable men.  Don’t make “mistakes.”  Just ignore it.  Cops in North Carolina do.  That’s how you keep from making mistakes.

The Fourth Amendment Forbids Handcuffing Someone Just Because He Has A Gun And Gun Permit

BY Herschel Smith
1 month, 1 week ago

Reason.

“[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden … if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and that the suspect may gain immediate control of weapons.” …

On this record, no reasonable officer could conclude that Plaintiff posed a meaningful threat of being “armed and dangerous” simply because he disclosed that he had a pistol and a license to possess it. Any contrary holding would make it practically impossible for the lawful owner of a firearm to maintain a Fourth Amendment right to privacy in his or her automobile.

Well, right.  The judge happened to get this one right – this time.

I have an idea how to help cops get it right all the time.  Do away with the stupid permitting scheme and adopt constitutional carry.  Make it clear in the law that cops have no right to infringe upon your right to be armed, anywhere, anytime, and for any reason.

U.S. District Judge Roger T. Benitez

BY Herschel Smith
1 month, 1 week ago

News from Santa Cruz.

A gun owner himself, Benitez has made rulings that have taken aim at California’s decades-old attempts by lawmakers and voters to toughen gun laws. He deemed the state’s assault-weapon ban — signed into law in 1989 by Republican Gov. George Deukmejian — a “failed experiment.”

California’s assault-weapon ban violates the 2nd Amendment in part because militias could be forced to settle for “less than ideal” weapons rather than the “ideal” AR-15 rifle, Benitez wrote. (“That may not be a severe burden today when the need for the militia is improbable,” he wrote. “One could say the same thing about the improbable need for insurance policies.”)

“That was a new and deeply disturbing line of thinking,” said Ari Freilich, the California policy director for the Giffords Law Center. Benitez, he said, seemed to suggest that the 2nd Amendment protects the right of “average people in a civilian militia to make war against their government.”

“If we take that seriously, then there’s no limiting principle on the types of firearms that people should be allowed to possess, including tanks, anti-aircraft missiles and machine guns,” Freilich said.

New, he says.  Perhaps he could go back in time a bit and recall what the founders did to King George.  And then ponder the fact that the very second amendment he’s calling unserious was written by men who had just made war on their government.


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