Duke University’s Arguments Against A Statutory Second Amendment

Herschel Smith · 22 May 2022 · 14 Comments

The Regulatory Review links a paper by Joseph Blocher of Duke University arguing against state preemption laws that prohibit more restrictive gun control statutes by cities and counties than instituted by the state itself.  The paper is entitled "Cities, Preemption, and the Statutory Second Amendment." He argues: As a practical matter, though, nothing has done more to shape contemporary gun regulation than state preemption laws, which fully or partially eliminate cities’ ability to…… [read more]

Hawaii And California Open Carry

BY Herschel Smith
1 month, 1 week ago

Dean Weingarten has an exposé on the status of Young v. Hawaii.  I knew this and had read the reports, but the interesting thing about this is that in the comments section, Charles Nichols drops by the make an extended comment.

I suspect that the Young v. Hawaii en banc panel would like to issue an opinion that says states can ban Open Carry in favor of concealed carry. However, there are a couple of jurisdictional problems with the en banc panel doing that.

The first is the Young v. Hawaii three-judge panel was bound by the Peruta v. San Diego en banc panel opinion and held that there is only a right to Open Carry. Neither side fled an en banc petition challenging either that holding of the three-judge panel opinion or the Peruta v. San Diego en banc panel opinion.

The State of Hawaii did file an en banc petition limited to the Open Carry holding of the three-judge panel, which was granted.

During the en banc oral argument, Mr. Young’s attorney (Alan Beck) was asked point blank if he was challenging the Peruta v. San Diego en banc opinion which held that there is no right to concealed carry. He said that he was not challenging Peruta v. San Diego, en banc.

Putting all of that together, the en banc panel does not have the jurisdiction to decide anything other than whether or not the denial of Mr. Young’s permit to openly carry a handgun violated the Second Amendment. And the en banc panel might not even decide that question because there were a couple of reasons given by the en banc panel, that were independent of the Second Amendment, for upholding the decision of the district court.

My California Open Carry lawsuit, Charles Nichols v. Gavin Newsom et al, does not challenge the Peruta v. San Diego en banc panel opinion either. My lawsuit is not limited to handguns. I challenge California’s bans on openly carrying loaded and unloaded rifles, shotguns, and handguns. I also challenge the license requirement.

My three-judge panel asked for supplemental briefing. The Young v. Hawaii en banc panel has not. Supplemental briefing was completed in my appeal on August 8th.

So if I read this right, Young was about open carry alone.  Peruta was about concealed carry alone.  The Nichols case is about open carry alone, and in California, not Hawaii (although presumably deciding for Nichols in California would be favorable to Young and vice versa).

The trouble is that Bruen didn’t decide open carry, and thus we are left with patchwork rulings and patchwork laws in states.

I continue to maintain that gentlemen, good citizens and men of fine upbringing don’t mind openly carrying their weapons in public.  It is for the good and peace of the country.

Fake Pastors Want To Repeal Mississippi Open Carry

BY Herschel Smith
1 month, 2 weeks ago

Source.

JACKSON, Miss. (WLBT) – Some of the state’s religious leaders are going beyond church policy and asking for action on gun control from lawmakers.

This resolution from the state’s largest African American denomination may seem like it blurs lines of politics and religion, but Dr. CJ Rhodes explains it this way.

“One way you can look at it is this is an act of pastoral care. We shepherd people in our pews and our communities that are impacted by this, not just in terms of their physical well-being but mental, spiritual, [and] social well-being,” described Rhodes, Third Vice President of the General Missionary Baptist State Convention of Mississippi.

The General Missionary Baptist State Convention of Mississippi wants lawmakers to repeal the state’s open carry laws.

“There are a lot of sane gun owners out there,” said Rhodes. “And of course, living in, you know, Jackson, you know, you got to make sure you got something out you sometimes. But the fact of the matter is, so many of our people are being terrorized in our communities. We’ve got to do something about that as well. So, yes, I understand the Second Amendment. I understand, you know, bearing arms, but we also need to make sure that we can ensure that folks feel safe in their communities.”

Regarding the bit in italics, what?  What did he say?  Does he even know?

However, the Mississippi Justice Institute says that’s a complicated request.

“The first problem I see is that these advocates would have in trying to do this is that the Mississippi Constitution, in fact, protects the right to openly carry a firearm,” said MJI Director Aaron Rice.

And right now, there’s not a process for a constitutional amendment to be filed. MJI Director Aaron Rice says the resolution raises a similar concern for him as the Jackson mayor’s attempted order to ban open carry during the pandemic.

“Which is to point out that there’s high violent crime, and then to kind of make a boogeyman of open carry laws and making no attempt to actually link that high rate of violence to the open carry laws,” noted Rice.

They’re fake pastors.  They should be teaching theology to their congregants.  Instead, rather than connecting even a single crime to open carry, they’re out in public making things up, which of course is called lying in the Holy Writ.

Rice is right.  Open carry is protected by the Mississippi constitution according to OpenCarry.org.  Specifically, the constitution says as follows.

The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the Legislature may regulate or forbid carrying concealed weapons.

Of course I don’t agree with regulating any carry at all, but if we’ve got to throw them a bone until passing constitutional carry, I’d actually prefer this scheme over regulating open carry.

As the saying goes, fine and well-ordered gentlemen openly display their weapons, while criminals hide them.

Dumb Arguments Against Open Carry

BY Herschel Smith
2 months, 2 weeks ago

Dan Reedy at Ammoland.

Recently while I was at Petco, a man walked in, and he was quite a sight to see. This man was in his late 50’s to early 60’s, in decent shape. He wore green Condor BDU pants bloused on his black 511 Tactical boots, a black 2A moto tee was tucked into his BDU pants. On his hip was an openly carried Springfield XDS, with extended magazine, jammed into a Serpa holster. He was buying some dog food.

Immediately after paying, his head dives into his smartphone like his neck is a wet noodle. I watch him as he exits, and he remains like this all the way until he gets into his new Chevy Colorado. The man is almost is (sic) struck by two vehicles on his way through the parking lot, with him completely oblivious to the world around him. Bad gun, bad holster, bad outfit, bad mindset. Classic. I’ve seen guys like him dozens of times and it’s always something painfully similar to this.

… open carry is often a sign of incompetence, and I almost exclusively advise people against the practice. I’ve never seen anyone publicly open carry with good equipment, nor with any serious amount of awareness or training.

[ … ]

Open carry doesn’t deter people from attacking cops, and they actually have some level of training to defend against that on top of holsters designed to defeat a gun grab. In addition to training and quality retention holsters, police can call for backup in a jam. I doubt many of you, if any, can say the same thing.

[ … ]

Open carry also presents issues outside of the gunfight. Now you’re alerting everyone to the presence of your firearm, threat or not. This means it is automatically in play in any defensive encounter, not something you can choose to reveal or continue hiding based on the situation at hand. With the gun openly displayed, you are now someone who can be dealt with quickly, instead of you waiting for your moment to counterattack.

[ … ]

Go get good training, read quality resources, and buy good equipment. If you don’t take my word for it, trust people like Greg Ellifritz, who has an awesome piece compiling over 60 recent examples of open carriers losing their guns or being killed due to carrying openly. He then goes on to link dozens of other articles where various experts like Massad Ayoob, Jeff Gonzales, and others give their opinions on the subject.

Dan has made about every mistake you can make in this article.  It’s difficult to know where to begin.

First of all, he displays a very off-putting and bigoted objection to the man’s chosen weapon, a Springfield Armory pistol.  I do not have a SA pistol, but I once did.  I traded it because I wanted a non-striker fired gun.  I only shoot hammer fired pistols.  But while I had it, it was reliable, accurate, trustworthy, and virtually indestructible.  You could have beaten it with a sledgehammer and it wouldn’t have changed a thing about its performance.  It would still be accurate and reliable.  I never had a failure in thousands of rounds.  His bigotry doesn’t do his argument any favors.  I hate it when others lampoon the possessions of others, whether weapons or something else.  I hate it.  He literally lost me with that statement.

Next, “open carry is often a sign of incompetence.”  He doesn’t really know that.  He just made it up.  This isn’t analysis, journalism, or anything else of value.

Next, he makes a hero out of cops who have had all of this “training.”  My wife and I were eating a dinner recently when we saw a cop directing traffic in the adjacent road.  She had to ask me, “How did he pass the test to qualify as a cop, and how does he even move, much less run?”  Of course, he doesn’t.  He probably weighed 350 pounds.  I’ve had a police captain from a major city in the U.S. tell me that most carriers – concealed or open – can shoot better than cops.  Cops normally qualify once a year and never get range time in between.  I’ve had another police sergeant tell me that they shoot striker fired guns because he would never trust his people to de-cock a hammer.

Give me a break with all the super-cop talk.

Next, he cites “examples” of open carriers who have had their weapons taken from them.  Well, then get a retention holster and do better at situational awareness.  There are also downsides to concealed carry, from being slower to presentation, to sweating your weapon (there are many more not listed here).  It’s all just a choice.

Besides, as many instances of both open and concealed carry that happen in America every day, I doubt that this number of situations where a person has had their weapon taken from them even moves the needle in terms of a statistical analysis.  Put another way, this small number of instances would constitute a statistically insignificant metric and I’m not the least impressed by it.

Next, I object to the notion that as a Christian man, I have some sort of duty to be the last one shot at because I want to plan my attack while I see women and children gunned down.  That’s obscene.

Finally, he cites Massad Ayoob.  Yea, he also advises talking to cops without the presence of an attorney.  I do not read anything he has to say.

But I will remark that this guy gets my vote (if I was a citizen in Florida).

An Escambia County man running for a commissioner seat was arrested on July 4 after officers found him openly carrying a prohibited gun and waving at people on a street corner, according to officials with the Pensacola Police Department.

Officers said Stanley McDaniels, 39, was standing on the corner of Baylen Street and Main Street waving at people for just over five hours. When officers approached McDaniels, they saw that he had a black gun in the waistband of his pants. Officials told McDaniels open carry was not allowed in the state of Florida and asked if he had any identification. McDaniels then pulled out his Florida Conceal Carry Permit and showed officers.

Officers noticed that McDaniels was holding a pamphlet and, when asked what it was, McDaniels told officers it was the Constitution. One officer said while he was having a casual conversation with McDaniels, he talked about all the work he had done within the community. McDaniels also had a camera set up on a tripod filming and he allegedly said he was going to take it to the Supreme Court.

McDaniels is running as a Republican for the Escambia County Commissioner District 4 seat, according to the county’s website.

Officers ran McDaniels criminal history and it came up with no results. An officer then removed the gun from McDaniels waistband which turned out to be a Beretta M9 with nine rounds in the clip and one in the chamber. All of the gun-related items were turned into the property management as evidence.

I admire his courage to challenge the idiotic law against open carry in Florida.

As for whether you carry openly or conceal your firearms, I couldn’t care less.  Make your own choice.  Unlike the author at Ammoland, I wouldn’t presume to know your situation or try to tell you what to do.

The gun community has its controllers too, and I object to controllers.

Florida permitless carry bill coming next legislative session, top Republican says

BY Herschel Smith
3 months, 2 weeks ago

Source.

TALLAHASSEE — Incoming Florida House Speaker Paul Renner told a supporter his chamber would move a “constitutional carry” policy for gun owners in Florida in the next legislative session, according to a video surreptitiously recorded at a fundraising event last month and posted online.

In the video, which was filmed at a House GOP fundraising event in Ocala on May 17, a man pulls Renner aside and asks if expanding the right for Floridians to carry guns without permits would be a legislative priority.

“I can tell you, we’ll do it in the House,” Renner tells the man. “We need to work on the Senate a little bit.”

In an interview Wednesday, Renner said he didn’t know he was being recorded or who he was speaking with at the Ocala event, but confirmed the video’s authenticity. The Palm Coast Republican reaffirmed his support for “constitutional carry” legislation but said he didn’t call it a priority.

“The issue on constitutional carry is whether government should be playing a role in saying whether you can or can’t carry outside the home when you meet the basic requirements of being able to pass a background check,” he said.

In April, Gov. Ron DeSantis promised to deliver a bill allowing permitless carry before his time as governor was through. The support of Renner, who leads one of Florida’s two legislative bodies, would mean the policy would have significant momentum in the next legislative session.

Current Florida law requires handgun owners to obtain a license to carry their weapons in most public places. Open carry of weapons is mostly prohibited: Florida’s licenses only allow gun owners to carry guns concealed on their person. In order to get a concealed carry permit, a handgun owner has to take a training class that includes instruction involving the live firing of a loaded gun.

In other states, “constitutional carry” has allowed gun owners to carry their weapon without a permit — and thus without going through that training. Supporters call the policy “constitutional carry” because they argue the Second Amendment’s guarantee of the right to bear arms means Americans should be able to carry without the regulatory burden of obtaining a permit.

[ … ]

Passidomo on Wednesday pointed to Florida’s red flag law as a good balance between Second Amendment rights and protecting communities and schools. That law allows law enforcement to petition for a risk protection order if they believe someone is a danger to themselves or others. If a judge approves the order, firearms are removed from a person’s home. The process allows the person given the order to oppose it in court.

Luis Valdes, Florida state director for Gun Owners of America, who posted the clip of Renner to YouTube, said he planned to push for a permitless carry policy this legislative session. Valdes believes Passidomo will come around eventually.

“She is right now kind of being a little bit squishy on the issue, but I think with a little bit of political education, she would push the bill,” Valdes said in an interview Thursday.

For fighting the good fight in Florida for open carry, I recommend The Armed Fisherman.

And while some may disagree, I think this is the wrong order.  Florida police are far too arrogant and need their comeuppance.  We need to see people openly carrying in Florida.

When people get accustomed to seeing men carry weapons, and seeing that the sky doesn’t fall, then proceed to constitutional carry next.

I would be most dissatisfied with constitutional carry passed without open carry.

Where are the strong men in Florida?  Why is there no push to see this happen?  Florida apparently wants to be like Hawaii, New York, New Jersey, Illinois and Massachusetts.

Let’s make Florida the ‘Gunshine State’

BY Herschel Smith
4 months, 1 week ago

Views from Florida.

I have yet to see any compelling evidence that tourism has suffered in the 25 states that have enacted constitutional carry. And, as I recall, the policies of deregulation, low taxes and letting free people make their own decisions have actually significantly boosted tourism and permanent migration to places like Texas and our beautiful Florida.

Lastly, just to highlight the popularity of constitutional carry, not one of the 25 states with the policy on its books has even held a hearing, let alone a vote, to repeal its law.

That’s what they argued in South Carolina too.  Tourism around Charleston will be affected.  It wasn’t true.  It was always a lie.

I can assure you, as a resident of an open carry state, no one cares, or if they do, they get used to it.

Is Carrying A Gun Provocation To Be Attacked?

BY Herschel Smith
5 months, 1 week ago

Dean Weingarten.

The Left has been floating the idea that mere possession of a weapon is a provocation. They contend the sight of someone in possession of a weapon is sufficient provocation for a person to attack the person who possesses the weapon.

This creates a bizarre world where mere open possession of a weapon is sufficient to justify a deadly attack on the possessor.

[ … ]

In a sane world, carrying a weapon is not a provocation to be attacked. The Left has worked hard to make it a provocation, in law.

[ … ]

The concept that an openly armed person is a provocation to attack appears to flow from a simple premise on the left: A person doing something a leftist does not like is a provocation to attack them. It is part of the broader philosophical abandonment of the rule of law.

Evidence for this theory exists in the left’s theory of speech from any opponent. Speech from an opponent is considered to be violent, and worthy of attack. Violence, from the left, on the other hand, is considered to be speech.

When leftists surround a car and beat on it; that is not provocation; when leftists shoot at people; it is not provocation; when people the left does not agree with, display weapons; that is considered a provocation by the left.

This is a retreat to tribalism by the Left: Those who agree with us are people; those who disagree with us are the enemy.

A person who is driving a vehicle is behind the wheel of a weapon of mass destruction.  Therefore, you are justified in killing them.

It sounds stupid, doesn’t it?

That’s because it is stupid.

In the comments on person writes “I don’t believe in open carry” because it might tempt a bold criminal to snatch your piece.

There is nothing to believe or disbelieve.  It’s a practice, not a proposition.  It would have been correct to say he doesn’t practice it.  To which we might respond, so be it.  We won’t require it.  Do as you wish.

And he should respond, “It’s a free country, and you do as you wish too.”

Constitutional Carry In Florida And Alabama

BY Herschel Smith
9 months, 1 week ago

Florida.

Some top Florida Republican lawmakers have now said they would support constitutional carry legislation in the upcoming session.

The policy would allow all legal gun owners to carry firearms without a concealed weapons license.

The constitutional carry legislation was filed by the Legislature’s most outspoken conservative member, Rep. Anthony Sabatini.

“Our very liberal Republican Speaker Chris Sprowls has gotten tens of thousands of emails from gun groups,” said Sabatini.

The policy is split into two bills.

The first would allow gun owners to carry concealed weapons without a license.

“You don’t have to go ask the government for permission,” said Sabatini.

The second would allow for open carry.

Please tell me that open carry will pass, and that I don’t have to watch any more idiotic police antics with cops showing their ass to everybody when guys open carry while fishing?  Please?

Alabama.

A southwest Alabama sheriff and a state House member are again jousting over whether the state should abolish permits to carry concealed handguns.

AL.com reports that Mobile County Sheriff Sam Cochran spoke before the Mobile County Commission last week endorsing a resolution to keep permits. But state Rep. Shane Stringer, a Citronelle Republican who plans to sponsor a bill in next year’s legislative session abolishing the state’s permit requirement, urged commissioners to reject the resolution. A vote on the resolution could come Dec. 28.

Stringer is a former Mobile County sheriff’s captain who was fired by Cochran because the two disagree on gun permits. Stringer argues for “constitutional carry,” the view that the Second Amendment to the U.S. Constitution bars states from requiring permits or collecting fees for people to carry guns.

Remember Sheriff Sam Cochran (aka, Boss Hogg) who literally fired Stringer for having different political views?  Yes, that Boss Hogg.

To the folks in Mobile County.  Please tell me you’re going to find a way to get rid of that tyrannical goober you have for Sheriff.  Please?

David French On Open Carry

BY Herschel Smith
10 months, 1 week ago

Seen at TTAG.

What a foppish, effete, dainty man.  He and Robert Bateman may want to meet and have some egg plant and bean sprouts together.

I was sitting in a casual seafood restaurant on the Eastern Shore of Virginia not long ago. It is a place well known for the quality of their crab and inshore fish. It was early on a quiet Sunday morning. The brunch hour approached and, more importantly, we were hungry. We were passing the Delmarva Peninsula at the time, an area I know well from my youth. My wife sat opposite me across a plain varnished pinewood table and my baby daughter sat in a high-seat next to me. Three tables of this roughly sixty-table restaurant were filled.

As we ate, looking over the beautiful waters at the Island House Restaurant in Wachapreague, I noticed over my wife’s shoulder the large man sitting in the table next to ours. It is not all that often that I notice people significantly larger than I am, but this guy qualified enough so that one could not help but look when he got up a few feet away. Going I know not where, I also noticed something else, the obvious presence of a concealed weapon at his hip, nominally, loosely “concealed” beneath his oversized T-shirt.

Really? A gun, at Sunday Brunch? Are you seriously that afraid of the 75-year-old farming couple, the only other people in the restaurant, who probably raised the daughter who babysat you 30 years ago? Or is it the middle-class transient family of three, with the baby, us, who frighten you? I mean, really, there were eight people in that restaurant at the time.

Then, over the next hour, as the 30 or-so retirees and perhaps 20 more obviously in for a post-Church-service special Sunday Brunch folks came in, I came to realize how absolutely delusional the fellow must be. What kind of idiot carries a gun in a family restaurant for family brunch? Well, that would be one of the folks influenced by the NRA-approved “Molon Labe” movement.

He can’t even hide his disdain for the man, not even as it pertains to his weight.  Of course, he didn’t have the guts to tell the man he thought he was fat, nor to ask him why he openly carries.

I have always believed, and continue to, that gentlemen carry their weapons openly.  The founders and their sons did, with John Adams carrying a rifle to shoot squirrels on the way to school in the morning.

Criminals try to hide their weapons.  As for everybody else, it’s all psychological.  The fact that a weapon isn’t in plain view doesn’t mean it isn’t there.  Notice that Bateman begins with his disdain for open carry (or loosely concealed, as he called it), and then to the fact that he had a firearm at all.

It isn’t really open carry to which they object – it’s carry at all.  They don’t want you armed.  As for French, well, it’s David French.  What do you expect?  Realistically, though, he should replace “designed to be menacing” with “he obviously hates IWB carry and sweating and corroding his weapon.”

Sometimes a rose is just a rose.

South Carolina Tyrants Self Identify

BY Herschel Smith
11 months, 3 weeks ago

News from South Carolina.

An ordinance restricting the open carry of firearms passed its first reading with the Anderson City Council on Monday night.

The ordinance would prohibit residents from openly carrying firearms during events that take place on public property. These events include protests, according to the officials.

The background for the ordinance states, “While the City recognizes and appreciates the First and Second Amendment rights of its citizens and visitors, the presence of firearms at protests can serve to escalate tensions.”

The council will discuss the amendment again before it becomes a part of the law.

There’s always an excuse, isn’t there?

“While the City recognizes and appreciates the First and Second Amendment rights of its citizens …”  No, of course it doesn’t.  Otherwise, they wouldn’t be debating the prohibition of open carry at events.  They always have to declare their support for your rights while they refuse to recognized them, don’t they?

As for the reason – “the presence of firearms at protests can serve to escalate tensions?”  They don’t believe that, otherwise they would be trying to ban concealed carry, because there is no difference between concealed and open carry except for the fact that the firearm can be seen with open carry.  The reality of the firearm is still there.

The good thing about the declaration of tyranny among the cities (Spartanburg, Greenville, Charleston, Columbia, and now Anderson have made it clear they intend to ban open carry) is that the tyrants self identify.

That’s good.  It gives patriots information on who to cast out of office next.

South Carolina Cities Prohibit Open Carry During Permitted Events

BY Herschel Smith
1 year ago

It’s all the rage.

First, to no one’s surprise, Columbia did it.

The city of Columbia has banned openly carrying guns during events, such as festivals and parades, in the wake of a recent state law.

City officials approved a measure Sept. 7 to banning the open carry of firearms during permitted city events and from carrying a gun of any kind into city buildings or facilities without permission from the city manager or police chief.

Next up, Greenville.

The city may ban guns from being carried openly at events and by people picketing after South Carolina changed its law to allow open carry of firearms.

On the first of two readings, and without public discussion, City Council voted 7-0 to ban open carry of firearms at permitted public events like Fall for Greenville and Saturday Market or by individuals seeking to protest. It still must pass a second vote.

Ah, Fall for Greenville where all the crappy hot dog vendors get to sell their awful food.

Finally, Spartanburg has had its first reading of the same sort of statute.

SPARTANBURG, S.C. (WSPA) – Spartanburg City Council has moved ahead on the first reading for a ban on openly carrying a gun at city-permitted events in Spartanburg.

During the first reading of the ordinance at Monday evening’s city council meeting, council members voted unanimously to prohibit the open carrying of firearms during city-permitted events on public property.

Councilwoman Erica Brown told 7 News, the ban applies to citywide-permitted events, like festivals and protests. Council is able to do this through a clause in the Open Carry with Training Act.

Brown said the vote couldn’t be timelier.

“Unless you’ve been living under a rock, you would see that the City of Spartanburg has had quite a bit of gun violence as of late,” said Spartanburg City Councilwoman, Erica Brown.

Kyle Marlow is passionate about guns. He told us, especially using them safely. In fact, he calls himself a Second Amendment advocate.

“South Carolina is doing it the right way. It’s an Open Carry with Training law so they still have to go through all that training and background checks,” said Manager at T & K Outdoors, Kyle Marlow.

But with that being said, he told us he understands the intent behind the ban for protests.

“Just encourage all these people to follow all laws, whether that’s in the city, state or federal level,” Marlow told us.

In spite of his slow venture towards freedom, Kyle Marlow loves his enslavement.  Open carry with permit – still a government permission slip.  Open carry, except when we say not to.

We in N.C. don’t have much room to talk.  We’re under the same restrictions concerning permitted events.  Here’s one solution.  Don’t go to permitted events.


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