Archive for the 'Second Amendment' Category

The Walker Open Carry AR Case Is Accepted For Oral Argument At The Fourth Circuit

BY Herschel Smith
1 week, 4 days ago

West Virginia civil rights attorney.

Breaking news just this afternoon: the Walker case has been accepted for oral argument by the U.S. Fourth Circuit Court of Appeals, tentatively set for March 8 through March 12, 2021. This is the case with the video showing my client, Michael Walker, walking down the side of a public roadway in Putnam County, West Virginia, on his way coyote hunting. The video is at the link.

This is good news, being that we’re the ones appealing. Most appeals are decided with a written order and no oral argument. The ones with a good likelihood of success, or which are important issues of law, are generally set for oral argument.

I’ve been following this case for a while now, and the Fourth Circuit had better be consistent with their ruling in U.S. v. Nathaniel Black.  If they don’t, then they’re siding with a black man and leaving the white man at the mercy of tyrannical LEOs.

Yea, in Black, “Officer Strayer stated that although it is legal in North Carolina for a person to openly carry a firearm, in his years in the Eastway Division, he had never seen anyone do it.”

Well, officer Strayer is an idiot, poorly trained in the law, and lacks the temperament to be a LEO.  I live in N.C.  I see open carry all the time.  I do open carry.  I’ve seen kids open carry in uptown Charlotte before, walked right by them, nodded at them.  Strayer needs to get out more.

By the way, Mr. Walker was under absolutely no legal or moral obligation to provide the LEO with ID.  None.  He was under absolutely no legal or moral obligation to supply an answer for where he was going or what he was doing, or even why he was carrying a long gun.  None.

The only failure in this case was (a) the LEO who stopped him, and (b) the dispatcher who failed to fisk the caller to find out exactly what crime was being alleged.  They missed a great educational opportunity to teach the public the West Virginia law.

If they can’t do even that, then what good are they?  Why do they draw a paycheck?

Weak Gun Rights Tea

BY Herschel Smith
1 week, 4 days ago

Via David Codrea, this from Sonny Perdue.

With our rights at risk at the ballot box, Georgians must keep Sens. David Perdue and Kelly Loeffler in the Senate.

The left is out to make every lawful gun owner a radical when the opposite is true. We are normal Americans who enjoy the outdoors and want to protect our families. We saw this summer what happens when the left doesn’t get what they want, they resort to ransacking their neighborhoods and taking what isn’t theirs. Small business owners and property owners were the victims. We can’t let that happen again. They have the constitutional right to protect what is theirs.

And as an avid sportsman, I cannot imagine a Georgia where we cannot enjoy that outdoor bounty we are blessed with in this state. With the direction the radical Democrats are heading, if they win the Senate, who knows what kind of new restrictions our state’s sportsmen could be in store for. Georgia will start looking like California and it will take you months to get a gun if you’re lucky. The way it starts is with burdensome regulations on legal purchases and then it is slippery slope to outright bans like they tried in the past. Whether you’re more of a winged animal hunter or you enjoy sitting in a deer stand, spend some time thinking about what it would be for that right to be curtailed.

As any free market supporter knows, bans don’t do anything but hurt the people they are trying to protect. The Peach State has long been a place where legal, responsible gun owners have felt that their right to keep and bear arms under the Second Amendment was protected. Coupled with the fact that our state is unrivaled in its enthusiasm to help out the businesses that call Georgia home, it is no surprise that the firearms industry has given back to Georgians in terms of employment, tax dollars, and direct economic impact. This will all be erased if Perdue and Loeffler aren’t in the Senate.

The firearms community has been a staple for our economy for decades. Georgia is home to six major firearms manufacturers and thousands of small family-owned businesses.

Yea Sonny, one of those companies is Daniel Defense, and they sell guns that would be used to defy tyrants.  They can be used to hunt, but they can be used for other necessary things too.

What if, using your defense of sportsmen, someone argues to shut down Daniel Defense because their main staple isn’t seen out in the field hunting turkeys?

You’re going to have to do better than this, you see.  The second amendment isn’t at all about hunting.


BY Herschel Smith
4 weeks ago

Via reddit/firearms.

How 250K Veterans Lost Their 2nd Amendment And Might Not Know It

BY Herschel Smith
1 month, 1 week ago

It’s a terrible country that would do something like that to its warriors.  First of all they deploy them with tighter and stricter ROE than employed by American LEOs, and then when they get home from doing the country’s bidding, they ban them from owning firearms.

And by the way, the justification for this is total horse shit.  Deployed soldiers and Marines have to have someone in charge of and responsible for fiduciary matters for them.  This is just how it works.

This is the ultimate betrayal by your country.  But on the bright side, while the country might not recognize your right to self defense, God never betrays you, and He is the source of your rights and duties, not the state.

Here is his article on the subject.

20 Million Modern Sporting Rifles and Counting

BY Herschel Smith
1 month, 3 weeks ago

American Rifleman.

The National Shooting Sports Foundation (NSSF) released the 2020 edition of its Firearm Production Report to members this month, and among its findings is the fact that civilian interest and ownership of modern sporting rifles continues to skyrocket. Since 1990, according to the study, an estimated 19.8 million have been manufactured and put into circulation.

Forty-eight percent of all firearms produced in the United States or imported in 2018 were modern sporting rifles. Despite the manufacturing focus, inventories remained low across the nation, and this year’s firearm sales pace has left many retailers without models to sell.

There are approximately 79.2 million rifle magazines capable of holding 30 or more rounds in circulation—nearly all of them modern sporting rifle versions. The potentially lifesaving advantage of not having to reload during a criminal encounter isn’t overlooked by pistol owners, either. Roughly 71.2 million handgun magazines capable of holding more than 10 cartridges are owned by enthusiasts today.

Lots of luck trying to confiscate all of those guns.  That’s an impossible task.

However, there’s something that bears repeating, and it’s a point of second amendment logic brought up by David Codrea a couple of days ago.

And as few “gunpundits” seem to see, no matter how long you give them, “in common use” is not about popularity. It is about “every terrible implement of the soldier,” that is, “ordinary military equipment” capable of enabling citizens to prevail in “common defense” battles.  Were it otherwise, withholding new technology from We the People would be all tyrants would need to keep it forever out of “common use.”

Make sure to ponder the point he’s making, and focus on the last sentence of his paragraph.  If “common use” had to do with popularity contests, then the whole edifice of the second amendment collapses.

A tyrannical government could (illegally) keep them from being produced for or distributed to the public, and then claim in court (or the court of public opinion) that although our standing army has such weaponry, since they are not in common use among the public (from which the militia comes), the second amendment doesn’t apply to those weapons.

This becomes a “de facto” argument (which is a formal logical fallacy) by themselves nefariously ensuring the preconditions for waiving and cessation of the right.

Never forget what the founders really intended, regardless of the machinations of the lawyers – and ignore the dense gun bloggers who fail to point these things out.

The Sorry State Of The Academy

BY Herschel Smith
2 months, 2 weeks ago

News from California.

“The very idea that somehow, the Constitution legitimates rebellion against a democratically-elected government is absurd on its face,” he said. “Certainly, protest and demonstration are very much protected by the First Amendment, but there is no constitutional right to intimidate someone with a threat of violence.”

This is Michael Latner, professor of political science at Cal Poly San Luis Obispo.

He says this about the very amendment to the constitution intended for the amelioration of tyranny, by the very fathers of the country who rebelled with arms against the tyrant and his sycophants who controlled them.

Thus you know that the academy has failed, and miserably so.

Or maybe they haven’t, and ignorance is the state they seek.

Judge Roger T. Benitez On Judicial Standing

BY Herschel Smith
2 months, 3 weeks ago

Dean Weingarten lifts some of the prose out of the most recent decision by Roger T. Benitez.  The case involves “A number of California residents, firearm businesses, special interest groups, foundations, and a political action committee [who] have organized to sue California AG Xavier Becerra et al, to challenge the constitutionality of California’s complex net of regulations for the ownership and use of various firearms the state deems to be “assault weapons.”

I would have suspected that if this case was appealed directly to the Supreme Court they would have found that there was no “standing” to sue if there was no arrest or loss of compensation.  In other words, I’m accustomed to seeing courts ignore such cases because of “standing.”

From the order:

It has long been the case that a plaintiff possesses Article III standing to bring a pre-enforcement challenge to a state statute which regulates the exercise of a federal constitutional right and threatens a criminal penalty. “When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he ‘should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.’” Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979) (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)). “[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459 (1974). “In Virginia v. American Booksellers Assn. Inc., 484 U.S. 383 (1988), we held that booksellers could seek preenforcement review of a law making it a crime to ‘knowingly display for commercial purpose’ material that is ‘harmful to juveniles’ as defined by the statute.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 160 (2014). Of course, “[s]uch challenges can proceed only when the plaintiff ‘faces a realistic danger of sustaining a direct injury as a result of the law’s operation or enforcement.’” Skyline Wesleyan Church v. California Dep’t of Managed Health Care, 968 F.3d 738 (9th Cir. 2020) (citations omitted). But the simple continued existence of the criminal penalty provision together with an absence of a defendant’s disavowal of prosecution satisfies the requirement of a credible threat of prosecution. Susan B. Anthony List, 573 U.S. at 164 (threat of future enforcement of the false statement statute is substantial with history of past enforcement).

The bar for standing is not particularly high. For example, organizations that have been “perceptibly impaired” by a government rule “in their ability to perform the services they were formed to provide” is sufficient for organizational standing. E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1266–67 (9th Cir. 2020) (“The Organizations are not required to demonstrate some threshold magnitude of their injuries; one less client that they may have had but-for the Rule’s issuance is enough. In other words, plaintiffs who suffer concrete, redressable harms that amount to pennies are still entitled to relief.”). An organization has standing to sue on behalf of its members when “the interests it seeks to protect are germane to the organization’s purpose.” Sierra Club v. Trump, 963 F.3d 874, 883 (9th Cir. 2020) (also noting individual’s standing to challenge border wall construction based on: “concern[] that the wall ‘would disrupt the desert views and inhibit him from fully appreciating the area,’ and that the additional presence of U.S. Customs and Border Protection agents ‘would further diminish his enjoyment of these areas’ and ‘deter him from further exploring certain areas’ [while] worrie[d] that ‘construction and maintenance of the border wall will limit or entirely cut off his access to fishing spots’ along the border, where he has fished for more than 50 years.”).

Good.  This is a decent decision by a man with honor.  Maybe this case will appear before the Ninth Circuit and force them to make a decision, and then perhaps it will get a hearing before the Supreme Court.

What, You Mean The Communists Don’t Get To Go Judge Shopping To Defend Gun Control In California?

BY Herschel Smith
2 months, 4 weeks ago

Fox News.

A U.S. District Judge in San Diego who has issued rulings in two separate lawsuits challenging California’s strict gun control measures will take up another weapons-related case on Monday, sparking criticism from gun-control groups who pro-gun advocates have been given an unfair advantage.

Judge Roger Benitez has twice ruled in favor of gun rights: in a case that challenged California’s ban of high-capacity magazines, and another case mandating background checks for buying ammunition, the San Diego Union-Tribune reported.

On Monday, he will oversee a case challenging several state laws regulating and defining assault weapons. He is overseeing another case challenging the state’s prohibition on owning batons, billy clubs, and blackjacks.

As a federal judge, Benitez’s rulings affect broad swaths of the west and could have broader implications for the rest of the country should the U.S. Supreme Court – now on the very of a solid 6-3 conservative majority – take up a major Second Amendment case.

Gun control groups have questioned how Benitez, a pro-Second Amendment judge, has been able to see so many cases involving gun rights. Their scrutiny has drawn attention to an obscure “related case” rule that allows one party in a lawsuit to file cases in certain districts if the issues at hand involve “the same or substantially identical questions of law” as those in another case.

All federal courts have this rule. But San Diego is unique in that an opposing side in a case cannot challenge or object to the transfer. Gun control groups maintain that this allows gun rights organizations to go judge shopping: knowing that they will have a more favorable ruling with Benitez than virtually any other federal judge in California. Gun rights groups have disputed this, pointing out that they have other Second Amendment cases in other jurisdictions.

So 2A groups followed the rules, actually get a constitutional judge, and the communists are livid that they don’t get to tinker with the process themselves.

How sad for them.  Poor babies.  They do it when it pleases them, and complain when lawyers seek the best remedy for their enemies by finding a judge who happens to respect God-given rights.

Color me unmoved.

Every Other Terrible Implement Of The Soldier

BY Herschel Smith
3 months ago

David Codrea.

Nonetheless, even though they’re “right,” NRA is burying the larger picture by omitting the core purpose of the Second Amendment in its moral and legal arguments. They are ignoring our God-given given right to defend ourselves, our families, and our liberty against tyranny, and our ability to do so with what Continental Congress delegate Tench Coxe called “the sword and every other terrible implement of the soldier.” He and the other Founders considered that “the birthright of an American,” and leaving that contention, and “the Militia of the several States” out of the argument, gives those who would deny our rights all the wiggle room they need to weasel-word their way into whatever infringements they usurp the power to impose.

The second amendment is about the amelioration of tyranny.  It is about defense of home and hearth, both individual and corporate.  For that, we have a God-given right to the sword and every other terrible implement of the soldier.

As an aside, David links this piece entitled “Assault Weapon Lethality.”  The author relies on field reports of soldiers using green tip ammunition (62-gr. steel core), of which it is well known now that while it was deployed because of the tendency for rounds to ricochet off of windshields, having a tendency to ice-pick through targets rather than fragment.

He also relies on a few anecdotes rather than the holistic report of the Stoner system of arms and the 5.56mm (which has killed hundreds of thousands of enemy fighters).  He tries (but fails) to properly engage issues of accuracy, failing to understand that it’s much more difficult to get a semi-automatic rifle to shoot less than about 0.5 – 1 MOA than it is a bolt action rifle.  The comparison he makes between bolt actions and AR-15s is stilted and ill-conceived.

He makes entirely the wrong argument concerning distance shooting, stating that in effect the narrow, light design of the bullet (low sectional density, although he doesn’t use that term) makes it less able to be effected by the air, but in fact the light design also makes it a 400 – 500 meter weapon (because with long distance shooting, it’s effected by air more than heavier bullets).  Then again, it was designed to be a 400 – 500 meter weapon, with crew-served weapons assuming the burden of making some 80 – 90% of kills in previous wars.

He fails to address the fact that some of these many shots on enemy fighters might have been misses, and also fails to address the fact that fully automatic fire has been done away with in favor of 3 round bursts (and my son has told me they never used select fire anyway).  That’s reserved for the M249.  The M4 was never designed to be an area suppression weapon.

I could go on.  I’m a fan of the Stoner system, but whether you are or not isn’t really relevant to this assessment.  Technically, I find the paper to be a poor attempt to engage the technical aspects of shooting, gunsmithing, ballistics, the effect of twist rate in barrel design, the introduction of 75 – 77 grain bullets (or return to 55 gr. and away from the 62 gr.), the effect of barrel length changes (unfortunately, the decrease in length to 10.5″ and even less), the effect of hydrostatic shock, and issues of warfare.

But it’s linked, so read it if you want.  I missed this paper when it came out.  We’ve addressed small caliber lethality before.  It’s probably best if law professors stay way from engineering.

The bottom line is that arguing against the effectiveness of any given gun (even if it’s incorrect) is the wrong way to argue for access to it by the American public.

As to what constitutes a “weapon of war,” everything does.  I can supply documented evidence of the use of bolt action rifles, shotguns (Benelli M4s by the Marine Corps in Now Zad, Afghanistan), explosives, mines, bombs, gas, balloons, pigeons, knives, swords, bows and arrows, pistols, revolvers, sticks, rocks and spears.

What else is there?  I’m sure readers could add to this list.  The argument is retarded.

The Right To Armed Self-Defense In The Light Of Law Enforcement Abdication

BY Herschel Smith
3 months, 1 week ago

David Bernstein, University Professor and Executive Director, Liberty & Law Center, Antonin Scalia Law School, George Mason University, has a paper on this very subject.

In it, he begins well enough.

The individual right to keep and bear arms has two primary rationales. The first is to provide citizens with a means to oppose tyrannical government. The second is to provide citizens with a means to defend themselves, their loved ones, and their property from criminal aggression.

I would argue that criminal aggression envelopes both of the above two rationales, personal self defense and defense against tyranny.  Family, home and hearth need protection against both, and that was the cultural milieu within which men had and carried arms in colonial America, and in which the second amendment was crafted.  But a careful reading of Heller doesn’t exactly bring that point out.  In fact, while he uses the Heller ruling in the paper, the right to overthrow a tyrannical government really isn’t the core of Scalia’s arguments.  If it was, Scalia would have argued differently, and argued for more weaponry in the hands of the citizenry, and finally, argued against one of his core principles in the ruling.  One of his core principles is that the ruling doesn’t negate or find unconstitutional all gun control.  In fact, many traditional gun laws are left alone, untouched, and simply go without discussion other than to note that the ruling leave them alone.

Bernstein notes what the minority thought about the ruling.

The majority and dissent clashed over whether the right to self-defense with firearms is anachronistic in modern times, when police forces are expected to enforce law and order. The majority observed that although some “[u]ndoubtedly some think that the Second Amendment is outmoded in a society … where well-trained police forces provide personal security,” it was “not the role of th[e] Court to pronounce the … Amendment extinct.” The dissenting Justices, by contrast, asserted that the midnineteenth-century “development of modern urban police departments, by diminishing the need to keep loaded guns nearby in case of intruders, … ha[s] moved any … right” to armed home defense “even further away from the heart of the Amendment’s more basic protective ends.”

Readers know that we’ve addressed this issue many times before.  The minority report is a lie, and they know it.  Police do not have the responsibility to supply protection of anyone or anything, from life to property.  This is so commonly known now that it’s amazing that we have to repeat it.  See, for example, the following decisions.

Castle Rock v. Gonzalez

Warren v. District of Columbia

DeShaney v. Winnebago County

Bernstein continues with his study demonstrating that stand downs of police across the nation in the face of Antifa/BLM riots has cast new light on the necessity of armed self defense.  If the police aren’t there to do it, it’s necessary to do it ourselves.

But given the fact that the police aren’t responsible to do it, we were always responsible to do it ourselves, and the minority in Heller knew that.  Everyone who knows the law knows that.

But this still misses the primary point.  Bernstein later quotes a LEO writing at Daily Kos.

Another Daily Kos op-ed, this one by a former police officer, likewise argued that the “right to Bear Arms … became outdated and irrelevant once the country actually had a well-regulated militia,” which today is the National Guard; “Not only does the United States have a ‘well organized militia’ but every inch of the United States is protected by a police or sheriffs department.”

And now we’re to the primary point.  When the police think this way, they have become the agents of tyranny that Bernstein suggests necessitates the need for the second amendment to begin with.

They aren’t there to supply protection – the courts have repeatedly told us that.  But what they can do is extinguish your right of armed self defense, something we have seen many times in the past few months where police arrested people who engaged in that very thing rather than target the rioters.  We argue that this itself is tyranny.

For this reason, and more, I have always held that Heller was a very weak decision.  Arguing that armed self defense is protected under the second amendment games itself with silly arguments about the role of the police.  The discussion itself becomes a subterfuge and misdirect.  Heller was an odd opinion for the simple reason that it buries the real intent of the second amendment.

Despite the Court’s confident pronouncement, it is not at all clear that the Second Amendment was meant to protect a personal right of self-defense. It is, however, crystal clear that the Amendment was meant to protect the right to keep and bear arms to resist tyranny-as the Heller Court itself concedes. Yet strangely, by the time the sixty-four-page opinion has wound to an end, the Court has purged the Amendment of its revolutionary quality. Justice Scalia’s opinion never hints that the right to resist tyranny might still be alive and well and relevant to the Amendment’s interpretation, and it lays down rules that will make the right a functional nullity.

As a result, the opinion has an odd quality. Justice Scalia insists that he is being true to the language and history of the Constitution. Yet by the close of the opinion, the purpose that clearly and plainly appears in the language and history-the right of resistance-has disappeared, but the right of self defense-which is much less clearly present, if present at all, in the language and history-has taken center stage.

[ … ]

Heller offers a Second Amendment cleaned up so that it can safely be brought into the homes of affluent Washington suburbanites who would never dream of resistance-they have too much sunk into the system–but who might own a gun to protect themselves from the private dangers that, they believe, stalk around their doors at night. Scalia commonly touts his own judicial courage, his willingness to read the Constitution as it stands and let the chips fall where they may. But Heller is noteworthy for its cowardice.

Only when the second amendment is seen as protection against and amelioration of tyranny does it take on the life it should.

Armed self defense, against aggressors both individual and collective, is a God given right, and even duty.  It is merely recognized in the constitution, a covenant document and contract with the people.  Honoring that covenant brings blessings, breakage of the covenant brings curses of all kinds.

King George found out well what kind of curses it might bring.  The American war of independence was known in royal circles as being a “Presbyterian rebellion.”  He found out that he wasn’t the author of rights.  That domain belongs to the Almighty.

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