Archive for the 'Second Amendment' Category

The Sorry State Of The Academy

BY Herschel Smith
1 day, 4 hours 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
4 days, 9 hours 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
1 week, 4 days 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
2 weeks, 3 days 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 weeks, 4 days 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.

Kyle Rittenhouse – The Truth in 11 Minutes

BY Herschel Smith
1 month, 1 week ago

Via WRSA, this video is highly worth watching.  I had sent a note to Attorney John Pierce advising him that he needed to hire a very good media firm to capture all of the media before it was gone, and build it together into a true narrative to combat the lies.  It looks like he took my advice.

Cops: “Oh No, The Men Want To Form A Militia!”

BY Herschel Smith
1 month, 1 week ago

News from Pennsylvania.

A meeting of “like-minded and able-bodied” lovers of “freedom” and “the 2nd Amendment” from Mountain Top has been canceled after police raised concerns about what sounded like the formation of a militia.

Police spoke to the organizer of the event Tuesday morning about their concerns based on a newspaper notice announcing the event and the man agreed to cancel the Sept. 29 meeting, Wright Twp. Police Chief Royce Engler said.

“He was originally going to start a crime watch program. But the way that was worded, it didn’t sound like it was going to be a crime watch to us,” Engler said. “So we put a stop to that.”

The notice was published in the free Mountain Peaks Newspaper’s Sept. 17-30 edition.

Addressed to “all Mountain Top residents ages 21 to 65,” the notice urged interested parties to sign up at the banquet room at King’s Ristorante and Pizzeria at 49 S. Mountain Blvd. the night of Sept. 29.

Are you concerned about violence in the streets, mob rule, public safety, family safety, destruction of property and these things coming to our community?” the notice says. “Do you love America, God, and the 2nd Amendment? Support our police and want a safe community for your children and family to live in? Do you love American freedom as we have known it? If you are like-minded and able bodied, please join this cause in a proactive approach forming a Mountain Top Watch community to prepare for the unthinkable, which has already become a reality in many cities.”

Fairview Twp. police Chief Phil Holbrook said he had concerns about the wording of the notice and that he felt it sent the wrong message.

“He originally approached us about starting a crime watch, and we were all for that. A crime watch is a good thing, a good idea. The way he worded things, it obviously got a lot of people concerned and upset,” Holbrook said. “I think he just worded it wrong. From everything he said, I don’t think he was looking to start anything like a militia, or do anything like that. I think he just maybe worded it a little aggressively.”

The announcement of a Mountain Top Watch organization comes as a group of local youths has been working to hold a Black Lives Matter rally on the mountain.

Engler said he suspects the group’s formation was motivated by the rally, which has been in the planning stages for weeks.

Rally organizer Thomas Beurmann, 18, of Rice Twp., said he took the notice as a call to arms and a threat against his group’s efforts.

“It definitely seemed scary,” he said. “People (on Facebook) are saying that if something happens they’re going to go out with their guns and protect businesses and stuff, so just to see that it’s being organized was definitely a little scary.”

There are a number of significant failings here.  First of all, under 10 US Code 246, the militia exists, has a right to such, is legal, and the police chief had absolutely no right to interfere.

Second, the organizer had no right to back down because of this interference.  Third, the organizer should never have gone to the police to begin with.  It’s none of their business.

Fourth, I want to know what it means to have “put a stop” to the meetup.  What did the police chief do?  Is there a potential lawsuit here?

Fifth, given prog police chiefs like this, probably with “we’re special because we’re the police” officers working for him, any militia in this area should work more discretely and clandestinely.

Finally, give how spooked the people in this area are from mild-mannered wording like this man used, they’re light years from being prepared for what’s coming their direction.

In the 20th century, far more people were murdered by genocidal governments than by armed criminals

BY Herschel Smith
1 month, 1 week ago

David Kopel.

International homicide statistics usually only count murders by individuals or small groups. A serial killer may murder two dozen people over the course of many years. A mass shooter may murder dozens at once. Those who use explosives or arson sometimes kill even more. But even in the aggregate, individual criminals or criminal gangs perpetrate vastly less homicide than do criminal governments.

In Europe in the 20th century, governments killed about 87.1 million victims, according to research by the late University of Hawaii political scientist R.J. Rummel. That figure does not include combat deaths, such as in World War I or II. It includes only the murder of civilians, from 61.9 million killed by the Soviet Union to 20.9 million killed by Germany. Over the long run, one’s risk of being murdered is much lower in the United States than in Europe. It’s no surprise that migration between the two has always been very heavily in one direction!

[ … ]

Rummel found that the less free the government, the more likely it is to perpetrate domestic mass murder. Totalitarian regimes perpetrate by far the most; authoritarian regimes less so; and democratic ones least of all. Indeed, no democratic government has committed large-scale murder against a population that was able to vote.

[ … ]

In 1942, Adolf Hitler explained the necessity of disarming his victims: “The most foolish mistake we could possibly make would be to allow the subjugated races to possess arms. History shows that all conquerors who have allowed their subjugated races to carry arms have prepared their own downfall by so doing. Indeed, I would go so far as to say that the supply of arms to the underdogs is a sine qua non for the overthrow of any sovereignty. So let’s not have any native militia or native police.”

Dave is following up what I’ve seen him write (and I’ve linked) elsewhere.  But all of this stands to be repeated, over and over again.

The God-given right to bear arms is about self defense and defense of home, hearth and property.  Defense from thieves, invaders and tyrannical governments.

Comments Of The Day

BY Herschel Smith
1 month, 2 weeks ago

First, from 41mag.

Civilians will be facing multiple concurrent threats if the satanists in bLM keep their kinetic activities going. Spicey times are here. Larger capacity is more benefitting in our regards than caliber size. The satanists aren’t doing their work solo.

Second, Matt Bracken.

Here is the link to my hour guest-hosting the Alex Jones Show on Sep 10, 2020.

I read my AmPart piece on armed community defense at the beginning.


In it, I strongly suggest that arsonists should be shot on sight.

Here is the original column in American Partisan:


Armed Citizens Must Defend Their Communities

BY Herschel Smith
1 month, 2 weeks ago

Matt Bracken.

So let me be very clear: if Democrat Party governors, mayors and DAs have hamstrung their police for political reasons, and won’t allow them to protect the lives and property of their local citizens using all required force, abandoning their primary mission in order to bow to the ABR mob, then it is time for their undefended citizens to apply the clear intent of the Second Amendment. There should be deep regret about the abandonment of the Rule of Law by the Democrat Party political ruling class, but there should be no moral quibbles or hesitation by American citizens concerning the legitimacy of armed community self defense, in the absence of expected law enforcement protection.

Therefore, it is my carefully considered opinion that black-clad and masked ABR mobs, rampaging and terrorizing innocent citizens under the cover of darkness in the style of the KKK of old, may morally and ethically be taken under preemptive fire by armed citizens at any level necessary to drive them out of their peaceful neighborhoods and away from their businesses, before the terrorists can reach their targets and throw their Molotov cocktails and other explosive and incendiary devices.

I agree with all of this, for reasons not mentioned.

First, in today’s America, I believe in the right of lethal action to defend property.  In OT times, robbers became slaves to the ones from whom they stole, until they paid back the debt in multiples.  Failure to honor that obligation of debt would get the robbers thrown into a pit at the edge of town and rocked to death.

Today in America, the FedGov sees debts as to society, and the offended never gets relief.  Insurance doesn’t even come close.  The laws and rules under which we currently live were intended for people who no longer exist.

Second, and perhaps most important, I would turn you to an article I wrote in which I cataloged an elderly couple whose home had been invaded, and after plundering the home, the invaders doused the couple with gasoline and set them on fire, killing both of them.  I won’t bother to find the link.

You cannot entrust your safety to an assumption.  You do not know the intent of the invaders, and maybe they don’t even know their intent.

Third, even if the rioters don’t intend to douse you with gasoline and set you on fire, there can be unintended consequences and collateral damage.  It’s extremely dangerous to have rioters and looters rampaging through neighborhoods.

Regardless of intent (which can’t be known anyway), women and children can perish.  Men cannot allow that to happen.  Men cannot allow increased danger to come to their loved ones if they can stop it.

Having said all of that, be careful.  Your enemy isn’t just Antifa/BLM.  Your enemy is the state as well, who will prosecute you for self defense.  They did with Kyle Rittenhouse, and they did with the McCloskeys.  They’ll do it to you too.

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