Walkabout In The Weminuche Wilderness

Herschel Smith · 05 Aug 2018 · 41 Comments

"There are no socialists in the bush" - HPS All of my physical training only barely prepared me for the difficulty of the Weminuche Wilderness (pronounced with the "e" silent).  It's National Forest land, not National Park.  The Department of Agriculture no longer prints maps of the area, so we relied on NatGeo for the map, and it's good, but not perfect. We have a lot of ground to cover, including traveling with firearms, the modification I made to one of my guns for the trip, the actors…… [read more]

New York Just Won’t Give Up Trying To Get SCOTUS To Dismiss Gun Rights Case

BY Herschel Smith
4 months ago

Amy Howe:

Earlier this month, New York City sent a letter to Scott Harris, the clerk of the Supreme Court, to inform the justices that a challenge to the city’s ban on transporting guns outside the city limits is moot – that is, no longer a live controversy. The Supreme Court did not accept the letter, perhaps because the challengers in the case objected. The challengers argued (among other things) that the letter was “premature” because the developments that the city cited as rendering the case moot had not yet gone into effect. With changes to both state and city laws now in place, the city returned to the court today, urging the justices to remove the case from their docket for the upcoming term.

Changes to the city’s rules, the city explained, will allow licensed gun owners to transport their guns to, among other places, second homes and shooting ranges outside New York City. Those rules went into effect on July 21. And on July 16, the city continued, New York Governor Andrew Cuomo signed a bill that changes state laws to allow licensed gun owners to transport their handguns to other places – again, such as second homes, shooting ranges and shooting competitions – where they are legally allowed to have them.

These developments, the city told the court again today, mean that the case is moot. The challengers, the city reasoned, had asked only for the “modest ability to transport their licensed firearms, unloaded and locked away separate from ammunition, to a shooting range or second home outside city limits” – which they now are able to do, the city stressed. The case should therefore be dismissed as moot or, at the very least, be sent back for the lower courts to decide whether it is moot.

I’m not sure I completely understand this.  Amy’s publication date for this post is July 22, the same evening I’m writing this.

We’ve already covered the NYC argument to the Supreme Court, as well as the response letter by Paul Clement.  Is there yet another letter from NYC to the Supreme Court after Clement’s response, and if so, it doesn’t seem to be linked at Amy’s place?

At any rate, if I interpret this correctly, NYC just won’t give up making stupid arguments.  Quite obviously, they’re afraid of what comes next.

Paul Clement Responds To New York

BY Herschel Smith
4 months, 2 weeks ago

To The Supreme Court.

There are, after all, substantial reasons to doubt that these ever-evolving developments will actually moot this case, as it is not at all clear that the City has foresworn the power to control where its residents may transport their duly licensed handguns or that there are no continuing effects from past violations of licensing restrictions that the City has consistently maintained are consistent with the Second Amendment. As for the state legislation to which respondents point, it is not even clear that it will ever take effect, rendering the question of what effect, if any, it will have on petitioners’ claims manifestly unripe.

Moreover, a party asserting that its own actions have mooted a case has “the ‘heavy burden of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up again.” Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000) (alteration in original) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). That heavy burden should be heavier still where, as here, a defendant’s about-face is unabashedly motivated by a desire to deprive this Court of jurisdiction to review the defendant’s actions. See Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012) (“Such postcertiorari maneuvers designed to insulate a decision from review by this Court must be viewed with a critical eye.”). There are particularly strong reasons to doubt the sincerity of any claim that the City has forever changed its errant ways here given respondents’ declaration that they have no intention of taking any position before this Court on the constitutionality of the rules that they have changed. Indeed, the procedural irregularity of respondents’ actions to date makes plain that their goal is not just to try to moot this case, but to do everything they can to avoid ever having to take a definitive position on those issues. It is hard to understand why respondents are so reluctant to take any position on the questions on which this Court granted certiorari if they have no intention of resuming the challenged conduct or materially similar conduct in the future.

I have in on good authority that in legal circles, they call that the “slamma-jamma body-cramma.”

Prior: New York City Lawyers Argue To The Supreme Court That It Should Dismiss Case Against City’s Weapon Transportation Ban.

New York City Lawyers Argue To The Supreme Court That It Should Dismiss Case Against City’s Weapon Transportation Ban

BY Herschel Smith
4 months, 2 weeks ago

Daily Caller:

The Supreme Court should dismiss a challenge to New York City’s gun transportation ban because a new ordinance will moot the case, city lawyers told the justices Wednesday.

The ordinance and a newly enacted state law will give the plaintiffs who challenged the transportation ban everything they have sought in court, making dismissal the appropriate course, city lawyers wrote in a letter to the high court.

The new city regulation gives petitioners everything they have sought in this lawsuit,” assistant corporation counsel Richard Dearing wrote. “The new state law, upon signature by the governor, will make the case doubly moot.”

If the case is not dismissed, the city will continue arguing the dispute is moot in a legal brief due Aug. 5. They will not address the merits of the controversy, Dearing wrote.

If, however, this Court prefers to allow briefing (and potentially oral argument) to play out, respondents will file a brief on the designated due date maintaining in greater detail that the case is moot,” the letter reads.

Respondents do not intend to address whether the Constitution entitles petitioners (or any other residents of New York City with premises licenses) to transport their handguns from their homes in the city to second homes, or to firing ranges or shooting competitions beyond municipal borders, where they have a legal right to possess them. Respondents no longer have any stake in that legal question,” it adds.

It’s men like this who give other lawyers a bad name and reputation.

Essentially, they have presumed to boss the Supreme Court around, and told them that the case should be dismissed because it is moot, but if the case isn’t dismissed, they’ll just argue extensively in front of the court, attempting to embarrass everyone there, that the case is moot.

Not only that, they’ve conceded absolutely nothing, except what the petitioners ask for.  They didn’t concede that the constitution has any bearing on this, and they won’t argue the case on those merits.

Take note of the legal tricks and shenanigans here.  If the Supreme Court decides that the constitution does have bearing, and that they do in fact have a right under the constitution to what they asked for in their petition, New York lawyers can respond by saying that the Supreme Court case is and was un-argued.  The Supreme Court decided something that wasn’t asked, something the SCOTUS really doesn’t like to do.  Now, the court can do just that, but my bet is that they won’t, not with Roberts at the helm.

They’re taking their ball and going home because they’re bitches.

Because We Can’t Have People Defending Their Lives In Our State

BY Herschel Smith
5 months, 3 weeks ago

News from New York:

A 64-year-old New York state man who was arrested for possession of an illegal handgun after he fatally shot a pair of prowlers rooting through his home Tuesday afternoon reportedly told the district attorney the weapon he used in self-defense was his dead father’s and he forgot to register it.

Ronald A. Stolarczyk was charged with felony possession of an illegal handgun, New York State Police said in a news release.

At about 2:40 p.m., officials say Stolarczyk interrupted a man and woman burglarizing his home in Deerfield, New York, located about four hours north of New York City. Stolarczyk then shot the two suspects, according to police.

But the 64-year-old was later arrested after authorities said they determined the handgun used in the shooting was illegally owned.

One of the alleged burglars, identified by state police as 57-year-old Patricia Anne Talerico of Utica, was pronounced dead at the scene. The second alleged intruder, her nephew, 27-year-old Nicholas Talerico of Utica, was transported to a hospital and died of his injuries.

“The word that we had originally was a possible home invasion, possible suspect running at large,” New York State Police Trooper Jack Keller told WSYR-TV. “We were able to quickly identify who those people were identified as…but also we were able to determine quickly that there was no one else and the public was not in danger at all.”

Police said they found items belonging to Stolarczyk at Nicolas Talerico’s home, indicating he may have burglarized his home before, WCSI reported. It’s unclear if Stolarczyk knew him.

Stolarczyk was arrested and charged with criminal possession of a firearm and was transported to the Oneida County Jail, where he’s awaiting centralized arraignment, according to state police.

The District Attorney’s office and police continue to investigate Stolarczyk and the potential motive of the burglars.

Because the only people made in God’s image in New York are law enforcement officers, we can’t let you do that.  You’re the real criminal here, and not only that, we will investigate you until we find a motive behind this that justifies the home invasion.

Just because.  Suck it.  They don’t call us controllers for nothing, capisce?

Fearing Supreme Court Loss, New York Tries to Make Gun Case Vanish

BY Herschel Smith
5 months, 3 weeks ago

The New York Times:

A couple of weeks ago, the New York Police Department held an unusual public hearing. Its purpose was to make a Supreme Court case disappear.

In January, the court agreed to hear a Second Amendment challenge to a New York City gun regulation. The city, fearing a loss that would endanger gun control laws across the nation, responded by moving to change the regulation. The idea was to make the case moot.

The move required seeking comments from the public, in writing and at the hearing. Gun rights advocates were not happy.

“This law should not be changed,” Hallet Bruestle wrote in a comment submitted before the hearing. “Not because it is a good law; it is blatantly unconstitutional. No, it should not be changed since this is a clear tactic to try to moot the Scotus case that is specifically looking into this law.”

David Enlow made a similar point. “This is a very transparent attempt,” he wrote, “to move the goal post in the recent Supreme Court case.”

The regulation allows residents with so-called premises licenses to take their guns to one of seven shooting ranges in the city. But it prohibits them from taking their guns to second homes and shooting ranges outside the city, even when the guns are unloaded and locked in containers separate from ammunition.

The city’s proposed changes, likely to take effect in a month or so, would remove those restrictions. Whether they would also end the case is another matter.

Until the Supreme Court agreed to hear the dispute, the city had defended the regulation vigorously and successfully, winning in two lower courts. In inviting public comments on the proposed changes, the Police Department said it continued to believe the regulation “furthers an important public-safety interest.”

Still, the city seems determined to give the plaintiffs — three city residents and the New York State Rifle and Pistol Association — everything they had sued for. The plaintiffs, in turn, do not seem to want to take yes for an answer.

Move the goal posts, make it moot, and avoid an even bigger loss.  At least that’s what the controllers in New York are thinking.  Never allowing the free exercise of God-given rights is apparently their duty as they see it, regardless of their oath upon swearing in.  But the NYT writer, Adam Liptak, expands the discussion in history to one that is near and dear to our hearts.

There is a precedent for the city’s strategy, from a surprising source. The National Rifle Association tried a similar tactic in connection with the 2008 Supreme Court case that ended up revolutionizing Second Amendment law, District of Columbia v. Heller.

The N.R.A. was initially skittish about the case, which was brought by a scrappy group of libertarian lawyers led by Robert A. Levy.

“The N.R.A.’s interference in this process set us back and almost killed the case,” Mr. Levy said in 2007. “It was a very acrimonious relationship.”

As Mr. Levy and his colleagues were persuading a federal appeals court to strike down part of Washington’s tough gun control law, the N.R.A. tried to short-circuit the case.

“The N.R.A.’s next step was to renew its lobbying effort in Congress to repeal the D.C. gun ban,” Mr. Levy wrote in 2008 in a Federalist Society publication. “Ordinarily that would have been a good thing, but not this time.”

“Repealing D.C.’s ban would have rendered the Heller litigation moot,” he wrote. “After all, no one can challenge a law that no longer exists.”

Only an intensive countereffort kept the case alive, Mr. Levy wrote.

“After expending considerable time and energy in the halls of Congress, we were able, with help, to frustrate congressional consideration of the N.R.A.-sponsored bill,” he wrote.

The N.R.A. came around in the end. In the Supreme Court, it supported the suit, working closely with the lawyers who had brought it.

The NRA only “came around” because they couldn’t stop what was happening despite their best efforts.  Now this is interesting, yes?  The hand-wringers will claim that losing Heller would have been more harmful than any potential gain from a win.  Thus, the best strategy to avoid losing is never to enter the field of battle in the first place.

To some extent this has proven to be correct, only in that Heller hasn’t brought much in terms of recognition of the free exercise of gun rights.  There are still “may issue” states, and the notion of getting a carry permit in Hawaii is absurd.  Heller was so weak that the Supreme Court needed yet another similar to it (i.e., McDonald) that has also been simply ignored by the city of Chicago.

While every Podunk, no-name judge in America seems to think s/he can boss the federal executive around concerning immigration, and the administration kowtows to their demands, the rest of America seems to ignore the courts when it doesn’t like the outcome (e.g., Heller, McDonald).

On the other hand, losing Heller wouldn’t have been that big of a deal in my estimation, first of all because it has been mostly ignored by the lower and appeals courts, and second because states could still decide to honor our God-given RKBA regardless of whether the FedGov saw it the same way.  Open carry was allowed in North Carolina before Heller, and South Carolina was a shall issue state before either Heller or McDonald.

The hand-wringers might also claim that the NYT is only reporting this way to aid and assist the downfall of the NRA.  The more controversy that can be generated, it might be claimed, the more financial trouble the NRA will have.  Or so goes the thinking.

But when the smoke dissipates and you think about this clearly, the writer is only reporting the facts.  They are all out there for everyone to see.  The NRA either [a] didn’t actually want Heller to be argued before the Supreme Court, or [b] was so afraid of a loss that they took the strategy to stay off of the field of battle – retreat and give up before the battle even starts.

Is this the kind of organization that deserves your money?

Fortunately, it might not be that easy for New York.

The question of whether the changes to the city’s gun regulation will make the case moot is a hard one. The city lost an initial skirmish at the court last month when the justices turned down its request to suspend the filing of briefs while changes to the regulation were considered.

The plaintiffs opposed that request. “To state the obvious, a proposed amendment is not law,” they wrote.

The changes to the regulations will happen soon enough, though, and the Supreme Court will then have to consider whether there is anything left to decide.

The court has said the “voluntary cessation” of government policies does not make cases moot if the government remains free to reinstate them after the cases are dismissed. But formal changes in laws may be a different matter.

To hear the plaintiffs tell it, the court should not reward cynical gamesmanship.

“The proposed rule making,” they wrote, “appears to be the product not of a change of heart, but rather of a carefully calculated effort to frustrate this court’s review.”

This is actually good reporting.  I’ve come to expect far less from the NYT.

Yet Another Gun Arrest Of An Out-Of-Stater In The Great Northeast

BY Herschel Smith
1 year, 9 months ago

David Codrea:

Yet another citizen is facing criminal charges for not realizing that gun laws vary from state to state.  Hayley Leach, a Colorado woman, was arrested when she attempted to check her gun in at Albany Airport for her return flight home, News 10 ABC reported.

[ … ]

It’s reminiscent of earlier similar cases, including that of Donna Marie Gracey, the Florida woman with a concealed carry permit who was arrested last month for having it in New Jersey, or the ordeals of Shaneen Allen and others. None of them had criminal intent.

I don’t fly to states where I can’t carry a gun.  I don’t visit them in any way, including driving to or through them.  I try not to send my money there either (Kimber, S&W, Mossberg, etc., are you listening carefully to what I’m saying?).  In fact, I will not even get on board a flight where it’s possible that I’ll have a layover or exigent landing for weather or some other reason in a state where I can’t carry a firearm.

You shouldn’t either.

By the way, you are aware, aren’t you, that the great land of gun control, New Jersey, has a sordid and wretched  history with hitmen, and a not so great history of allowing people to defend themselves from such people?

Guess that gun control stuff hasn’t worked out so well after all.

I’ll Live In Gun Control New York When Hell Freezes Over

BY Herschel Smith
5 years, 8 months ago

The Week:

Or, as one member of the range put it, “When it comes to gun laws, there’s the whole country, and then there’s New York.” While that may be a slight exaggeration, New York is indeed the polar opposite of lax states like Utah, Alaska, and Arizona, and is arguably the toughest in the country to own a gun. Here, no one is actually entitled to possess a firearm, at least not until the police give the go-ahead.

“Your right can never be taken away from you,” continued Leung, “but your privilege can be revoked at any given time. The NYPD is the licensing entity. They can add any kinds of stipulations they want. And they don’t have to explain why.”

It makes sense to keep guns on a short leash, Leung acknowledges, because “you want people to realize this is not a toy …

As we were talking, a middle-aged man in a grey suit who was carrying a black plastic case sat down at the table next to us. He unlocked it, removed a 9mm Beretta and nonchalantly placed the pistol on the table. Then he took out a box of bullets and started loading them into a magazine, one by one.

First a comment about putting a “box of bullets” on the table and filling his magazine.  They weren’t “bullets,” they were cartridges.  Second, this is extremely bad form.  No magazines get loaded until on range, with weapons pointed downrange.  This is true of everywhere I shoot, many places.  They have no concept of range safety.

Second, this range owner is a sad testimony to the mentality of pitiful New Yorkers who unwisely rely on the police for protection they cannot (and have no intention to) provide.  The police have usurped God’s authority, who commands the ability of self defense and defense of the little ones.

If the police have usurped God’s authority, the people have abdicated their responsibility and duty before the Almighty.  They will answer for that one awful day, along with collectivists who put them in that position to begin with.  Evil with the one doesn’t obviate the other.  I’m sorry for my New York readers who are good, honest folk and who don’t live in NYC.  But if you’re like this range owner, you deserve everything you get.

Hell will freeze over before I ever abdicate my God-given rights to own guns to a cop or judge.  Oh, and since I haven’t mentioned it in a few weeks, to Remington, Kimber and any other gun manufacturer in the empire state: why are you still there?

What will it take with you?  My most recent rifle purchase was a Winchester Model 70 rather than a Remington 700.  My Model 70 will be made right down the road from me in Columbia, S.C.

Embarrassments Of The New York SAFE Act Gun Ban Legal Ruling

BY Herschel Smith
5 years, 10 months ago

We’ve already discussed a couple of horrible embarrassments uncovered in the ruling on the New York SAFE Act gun ban recently issued by Judge Skretny, but more on that in a moment.

My brother Keith is a graduate of Emory Law School and practicing attorney in Georgia, and clerked for a federal judge.  I know that he has fealty to scholarship and takes his commitment to study, hard work and defensible and logical prose very seriously.  That said, lawyers take it on the chin, and properly so, and my brother once told me the best lawyer joke I ever heard (“99.99% of all lawyers give the rest of us a bad name”).  We’ll come back to this later.

David Codrea is covering John Lott’s analysis of the ruling by Judge Skretny, and has some excerpts and observations that warrant our attention.

“The decision relied heavily on testimony by George Mason University criminology professor Chris Koper, who argued ‘that the criminal use of assault weapons declined after the federal assault-weapons ban was enacted in 1994, independently of trends in gun crime,’” Lott wrote. “But Koper’s two studies on the 1994 federal assault-weapons ban don’t support his claims.”

They state:

“[T]he evidence is not strong enough for us to conclude that there was any meaningful effect [of the weapons ban],” the initial study reported.

“[W]e cannot clearly credit the ban with any of the nation’s recent drop in gun violence,” the second study concluded. “And, indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence.”

John Lott and I had an odd run-in several months ago, and he has with Mike Vanderboegh as well.  But not being trifling or holding grudges, let’s observe that Lott’s analysis is important.  So one important feature of the analysis is that the very studies cited by the Judge do not bear out the claims.  But then there is this gem.  The ruling also cites the online magazine Mother Jones.  Just so that you heard that, let’s repeat it.  Judge Skretny’s ruling uses information from … Mother … Jones!

Earlier we learned from Kurt Hofmann that there is logical contradiction in the ruling.  The very logical process the Judge uses to deem the magazine cartridge limit in the SAFE law “arbitrary” isn’t applied to the guns themselves, and should have been.  Furthermore, we’ve seen that the Judge Skretny’s ruling invokes the ridiculous and laughable notion of spray firing from the hip (for semiautomatic weapons, no less) to rule pistol grips on long guns to be legitimately within the sweep of the law, ignoring (or simply not learning) that no one, not military or civilian, spray fires from the hip, and such a practice would not only be the most ineffective thing a rogue shooter could do, it would get you permanently kicked out of every range in America, and for very good reason.

So the list of silly, ridiculous, sophomoric stunts in the ruling is growing.  First, there is the notion of pistol grips and spray firing from the hip; second, the failure to consistently apply the same logic to guns as he does magazines; third, misinterpretation of the very studies he cites to support his conclusions.  Finally, the use of anything from Mother Jones in a legal ruling certainly must be a tacit admission of bankruptcy of thought and ability to do analysis (and for the record, even with my admittedly incomplete assessment of mass shootings, I do take issue with the completeness of the Mother Jones assessment which leaves out the Hartford Beer Distributors shooting, the Geneva County massacre, the Texas Tower shooting [Charles Whitman, who used bolt action long guns] due to the dates of inclusion, and others).

The ruling is quickly becoming a laughingstock.  I am wondering if these Judges just turn over their hardest work to juvenile clerks who get their news from Jon Stewart, Daily Kos and Mother Jones?  So returning to the joke my brother told me, there is sometimes profound truth in humor, no?

Related:

Guns And The Mentally Ill: A Professional Assessment

New York, Pistol Grips And Spray Firing

Kurt Hofmann, In Upholding NY’s SAFE Act, Judge Makes Surprising Inadvertent Admission

David Codrea, Federal Judge Upholding SAFE Act Gun Ban Relied On Unsupported Assumptions

U.S. Judge Upholds New York Gun Law

BY Herschel Smith
5 years, 10 months ago

NYT:

A federal judge ruled on Tuesday that New York’s strict new gun laws, including an expanded ban on assault weapons, were constitutional, but struck down a provision forbidding gun owners to load more than seven rounds into a magazine.

The ruling offered a victory to gun control advocates at the end of a year in which efforts to pass new legislation on the federal level suffered a high-profile defeat in Congress, although some new restrictions were approved in state capitals.

The judge, William M. Skretny of Federal District Court in Buffalo, said expanded bans on assault weapons and high-capacity magazines were legally sound because they served to “further the state’s important interest in public safety.”

Mike Vanderboegh is also covering this.  I’ve told you guys before – really, I’ve told you before – that it is a mistake to look to federal courts and the Second Amendment to protect your rights at the state level.  It’s the wrong strategy.  All politics is local, and that includes gun politics.

Kurt Homfmann resolves to be a gun criminal.  What will the gun owners of New York do?

Victims Of The New York Gun Ban

BY Herschel Smith
6 years, 8 months ago

In what will surely be many to come, the New York gun ban has claimed its first victim.

It was only a matter of time before New York’s draconian new gun law, the obscenely misnamed “SAFE Act,” claimed its first victim Since the oppressive new law was forced through with such haste (and “under a veil of secrecy in the dark of night,” as the NRA put it), and signed by Governor Cuomo (who is already scrambling to change this “Most Stupid Gun Law Ever Made“) into law immediately (because the required three-day public comment period apparently frightened supporters of the law), it ends up not having been much time for that first victim.

Our alleged “gun criminal” is Benjamin M. Wassell, and his supposed “crime” is selling both an AR-15 pattern rifle and a (similar, but larger) AR-10 pattern rifle, both of which had supposedly been upgraded by Mr. Wassell with such now-verboten “assault features” as a pistol grip …

Read it all at Examiner.  The question now is what will New Yorkers do?  You know, the riflemen?  You have a fellow rifleman who has been charged under the new communist law, so what will you do now?


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