Yeah, a $150 million lawsuit tends to concentrate the corporate mind

McClatchy Moves to Dismiss Devin Nunes’ Lawsuit, but Judge Grants Him Discovery

The McClatchy Company, a news media company that is being sued for defamation by House Intelligence Committee Ranking Member Devin Nunes (R-CA), moved to dismiss the lawsuit in court on Wednesday, but the judge in the case rejected the request — an interim win for Nunes.

McClatchy filed a motion to dismiss Nunes’ complaint, which was filed in Virginia’s Sixteenth Judicial Court, arguing that the Delaware-based company does not fall under the jurisdiction of Virginia because it has no significant business in the state.

However, Judge Cheryl V. Higgins did not grant McClatchy’s motion to dismiss the case but has granted Nunes discovery on the question. That means that McClatchy must prove that it does not have significant ties to Virginia by answering questions and providing information on assertions from Nunes. Higgins said the court may have to hear witness testimony on the question as well.


So………..

Newspaper giant McClatchy files for bankruptcy

WASHINGTON — McClatchy, one of the nation’s largest newspaper publishers, filed for bankruptcy protection Thursday, another harbinger of America’s deepening local-news crisis.

The Chapter 11 filing will allow the Sacramento-based company to keep its 30 newspapers afloat while it reorganizes more than $700 million in debt, 60 percent of which would be eliminated. If the plan wins court approval, control of the 163-year-old family publisher would be turned over to hedge fund Chatham Asset Management, its largest creditor. The company has obtained $50 million in financing from Encina Business Credit to maintain operations while it undergoes bankruptcy proceedings.

On Point: Fix the Foreign Intelligence Surveillance Court, and Punish the Crooks Who Abused It

Two months have passed since Dec. 9, 2019, the day Justice Department inspector general Michael Horowitz exposed the profound damage done to a judicial institution vital to successfully defending America in a world of complex threats: the Foreign Intelligence Surveillance Court, or FISC.

The damage done to American public trust in the court is not incidental. Trust is a source of strength, among friends or in the world’s most powerful nation. Trust promotes cooperation, which enhances systemic strength. When trust disappears, expect discord seeding division and weakness.

The FISC was created to protect a citizen’s constitutional rights while permitting intelligence community surveillance of legitimate suspects. To protect necessary cloak-and-dagger secrets, the FISC meets in secret. A secret court in a free society requires two things: (1) legitimate existential threats to citizens and assets: (2) trust in security agency professionalism and integrity, and trust in the judgment of the court judges.

Unfortunately, the abuse of the FISC by corrupt members of U.S. security and legal agencies — specifically within the FBI and DOJ — may have squandered that trust forever. Evidence is emerging that other corrupt actors, perhaps in the CIA, conducted illegal surveillance.

With the documented abuse acknowledged, America needs an FISC-type legal tool to combat covert threats like terrorism, transnational crime and enemy espionage. Twenty-first-century digital and financial connectivity, and commercial jet transportation, reduce police and Pentagon response time.

A FISC with integrity must also protect an American citizen’s constitutional rights from crooks and crony government. Horowitz discovered premeditated fraud on the FISC by a DOJ attorney. In 2016, the attorney “altered” email from “the other U.S. government agency” (CIA) and submitted a fraudulent application for a warrant to the court. So the FISC approved the warrant.

The target: Carter Page, a Naval Academy graduate and a former Trump presidential campaign associate. Spying on Page — an innocent man — opened a door to spying on President Donald Trump.

Following Horowitz’s report, the FISC’s then-presiding judge, Rosemary Collyer, issued a public order regarding the Page application and the FBI’s lack of “candor”: “The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable. The FISC expects the government to provide complete and accurate information in every filing with the Court.”

Collyer should chastise herself as well. She and her colleagues failed to responsibly question the application. The FBI alleges a Naval Academy grad associated with a presidential campaign in an election year is a Russian asset? Judge, wake the hell up. Page was actually a CIA asset.

Trump administration Attorney General William Barr knows the court is a national security asset and wants to save it. On Feb. 6, he put his personal reputation on the line and issued a memo requiring the FBI to have him sign off on FISC applications. Harvard Law School professor Alan Dershowitz pegs the FISC’s structural weakness: Alleged perpetrators have no defender. So assign a lawyer to question government evidence.

To restore public trust, the individuals who abused the court must be investigated, arrested, tried, convicted and sent to prison. They committed an array of crimes — including criminal mishandling of classified material. The FISC is a classified court.

In the past, the public expected responsible reporters to scrutinize government operations. In the FISC saga, contemporary mainstream media served as a PR tool for crooked cops and spies. So-called elite press outfits like The New York Times and The Washington Post unquestioningly touted intelligence leaks that have proven to be false.

Though mainstream media outlets take scant notice, angry calls to disband the court have not faded. The decibels will increase when federal prosecutor John Durham’s investigation into the origins of the Russia collusion hoax becomes headline news.

I wager Durham will expose crony government at its worst — dirty government officials, bureaucrats and agents who are politically exploiting and criminally manipulating the U.S. national security structure to harm their political opponents.

We shall see.

 

Magazines over 10 rounds were well-known to the Founders
Third Circuit case challenges NJ magazine confiscation statute

Did the Framers of the Second Amendment consider the possibility that Americans might own firearms with a capacity greater than 10 rounds? Certainly yes. Such arms had been invented two centuries before the Second Amendment, and by 1791, repeating arms, including those capable of firing more than 10 rounds, were well-known in the United States. The history is explained in a Third Circuit amicus brief I coauthored last week.

Case background: In 2018, the New Jersey legislature prohibited the possession of magazines holding more than 10 rounds. The details of the statute are explained here by NJ firearms attorneys Scott Bach and Evan Nappen. The day the governor signed the legislation, the Association of New Jersey Rifle and Pistol Clubs sued the New Jersey Attorney General, asking for a preliminary injunction. District Court filings are available here. District Judge Peter G. Sheridan denied the preliminary injunction in September 2018. 2018 WL 4688345 (Sept. 28, 2018).

On expedited appeal, a 2-1  panel of the Third Circuit upheld the denial of the preliminary injunction in December 2018. 910 F.3d 106. Circuit Judge Patty Shwartz wrote the opinion, joined by Judge Joseph A. Greenaway, Jr. (Both are Obama appointees. Judge Shwartz’s seat was previously held by President’s Trump’s sister Marion Trump Barry; Judge Greenaway replaced Samuel Alito.) Judge Stephanos Bibas (former U. Penn. prof., appointed 2017 by Trump) dissented, writing “the majority’s version of intermediate scrutiny is too lax. It cannot fairly be called intermediate scrutiny at all. Intermediate scrutiny requires more concrete and specific proof before the government may restrict any constitutional right, period.” 910 F.3d at 133–34.

After remand to the district court, the District Judge ruled that there was nothing more to do, since the Third Circuit majority had disposed of all issues. Plaintiffs disagreed, and the case has now returned to the Third Circuit for briefing.

Amici: The amici on the brief include seven professors who are experts in Second Amendment law: Royce Barondes (Missouri), Robert Cottrol (George Washington),
Nicholas Johnson (Fordham), Joyce Malcolm (George Mason), Joseph Olson (Mitchell Hamline), Glenn Reynolds (Tennessee), and Gregory Wallace (Campbell). Organization amici are the Firearms Policy Coalition, Firearms Policy Foundation, Madison Society Foundation, California Gun Rights Foundation, and Independence Institute (where I work). The lead attorney on the brief was Joseph Greenlee, joined by me and by Prof. George A. Mocsary (U. Wyo. law school). Some of the material in the brief is covered in more detail in my article The History of Firearms Magazines and of Magazine Prohibition, 78 Albany Law Review 849 (2015).

Earliest repeating arms:  repeater is a firearm that can fire more than one shot without having to be reloaded. The first known repeating firearms date back to between 1490 and 1530, with guns that fired 10 consecutive rounds. A 1580 gun could fire 16 shots. Once the user pressed the trigger, these guns would continue to fire until the ammunition was exhausted.

Seventeenth century: By the 1640s, major improvements in repeating arms had been developed. Now, the user could fire just one shot by pressing the trigger, and then fire more shots by pressing the trigger repeatedly. Danish rifles invented by Peter Kalthoff had ammunition capacities ranging from 6 to 30 rounds. During the seventeenth century, Kalthoff repeaters were copied by gunsmiths from London to Moscow.

At about the same time, the Lorenzoni revolver was invented in Italy, with a typical capacity of 7 shots. Like semiautomatic firearms (invented 1885), the Lorenzoni could self-reload. To fire the next shot, the user did not have to move a lever, bolt, or pump; the Lorenzoni could fire as fast the user could press the trigger–similar to modern revolvers or semiautomatics. The Lorenzoni was manufactured far and wide–including in New England. Famed diarist Samuel Pepys was much impressed with a demonstration he saw in London in 1664.

Early America: The Kalthoffs and Lorenzonis were not the only repeaters made during the century. For example, in the mid-1600s, some American repeaters were manufactured with revolving cylinders to hold the ammunition. Unlike the revolvers perfected by Samuel Colt in the 1830s, these revolvers required the user to rotate the cylinder by hand after each shot.

The French in North America had their own repeaters. For example, in 1690 the Comte de Frontenac “astonished the Iroquois with his three and five shot repeaters.” 1 Charles Winthrop Sawyer, Firearms in American History 29 (1910).

Eighteenth century: Before the industrial revolution, firearms manufacture was artisanal, with guns being made one at a time by gunsmiths. Repeating arms have more parts than single-shot guns, and the parts must fit more closely than in a single-shot. Accordingly, the necessary expertise and labor time to manufacture repeaters meant that repeaters were only affordable for the wealthier minority of the population.

Growing prosperity in the eighteenth century enabled more Americans to buy repeaters. Lorenzoni variants were popular, particularly 9 or 10 shot versions made by London gunsmith John Cookson, and by a New England gunsmith of the same name. In 1722, Boston gunsmith John Pim impressed some local Indians with an 11-shot repeater that he manufactured and sold. “[L]oaded but once,” it “was discharged eleven times following, with bullets, in the space of two minutes, each which went through a double door at fifty yards’ distance.” Samuel Niles, A Summary Historical Narrative of the Wars in New England, in Mass. Hist. Soc. Collections, 4th ser., vol. 5, at 347 (1837).

During the Revolution, inventor Joseph Belton demonstrated a 16 shot long gun. Witnesses, including Gen. Horatio Gates and scientist David Rittenhouse, were impressed, and the Continental Congress negotiated with Belton for a large order, but Belton wanted more money than Congress could afford.

Also during the Revolution, the British introduced their six-shot Ferguson Rifle (which might have made a difference in the war, if the British had manufactured enough of them) and the Nock Valley Gun (which shot seven rounds at once).

Early Republic: By the time the Second Amendment was ratified, the state-of-the-art
repeater was the Girandoni air rifle, which could shoot 21 or 22 rounds in .46 or .49 caliber. Although powered by compressed air, the Girandoni was ballistically equal
to a powder gun, and powerful enough to take an elk with a single shot. Many air guns of the time were equally powerful.

Originally invented for Austrian army sharpshooters, the Girandoni was manufactured in Russia, Germany, Switzerland, England–and Pennsylvania. Meriwether Lewis bought a Pennsylvania model, and carried on the Lewis and Clark Expedition. The gun is mentioned 22 times in Clark’s journal–usually in the context of the expedition showing off the gun to Indians, making the implicit point that the expedition could defend itself against a larger group.

Early nineteenth century: The 1820s brought a new type of repeaters: Isaiah Jennings’ 15-20 shot models, which were copied by Reuben Ellis for a military contract later in the decade.

Double-barreled guns (like today’s double-barreled shotguns) had long been popular, but the first repeating arms that could fire several shots and that were broadly affordable to the middle class were the pepperbox handguns of the 1830s. They held the ammunition in rotating barrels, one round per barrel. The most common pepperboxes held 4 to 8 rounds, while some held up to 24. The 12-shot Bennett and Haviland Rifle used a similar system.

Colonel Samuel Colt improved everything with his revolvers. Colt’s handguns only needed one barrel, while the ammunition was stored in a revolving cylinder.

Since the War of 1812, the federal armories at Springfield, Massachusetts, and Harpers Ferry, Virginia, had been working hard at learning how to mass produce firearms with interchangeable parts. The Springfield Armory worked closely with private entrepreneurs, gaining their knowledge and broadly disseminating its own knowledge. The federal armories became the foundation of “the American system of manufacture”–a term that caught on globally when Samuel Colt displayed his revolvers at the Crystal Palace Exhibition in London in 1853-54.

The government-led advances in firearms manufacturing helped made firearms, including repeaters, increasingly affordable. The American system of manufacture first spread from firearms to sewing machines and eventually to grain reapers, typewriters, bicycles, and automobiles. The prosperity created by the American system created a virtuous cycle in which Americans got richer and spent more money on manufactured goods, and the growing sales of the manufacturers led to improvements that continually increased quality and reduced price.

Mid-nineteenth century: By the 1850s, all sorts of repeating arms were being sold in America, including 21-round pinfire revolvers, 12 shot/6 chamber revolvers, the 15-round Hall rifle, the 38 or 60 shot Porter Rifles, and the 42 shot Ferris Wheel pistol.

But the most successful developments began with a collaboration of Daniel Wesson (later, of Smith & Wesson) and Oliver Winchester. They combined the recently-invented metallic cartridge (which holds the bullet, gunpowder, and primer in a metal cylinder) with the lever action (in which the user reloads the next round of ammunition by pulling a lever up and down). The lever action had been invented centuries before in England, but was not broadly affordable until the American system of manufacture.

The first Wesson and Winchester gun was the 30-shot Volcanic Rifle; introduced in 1859, it had reliability problems. The problems were solved in the successor model, the 16 shot Henry Rifle of 1861, which could fire its full capacity in 11 seconds. By 1862, Union solders were using Henrys in the Civil War.

Then as now, repeaters make self-defense possible for an individual who is attacked by a group. One of he most famous testimonials for the Henry came from Captain James M. Wilson of the 12th Kentucky Cavalry, who used a Henry Rifle to kill seven of his Confederate neighbors who broke into his home and ambushed his family. Wilson praised the rifle’s 16-round capacity: “When attacked alone by seven guerillas I found it to be particularly useful not only in regard to its fatal precision, but also in the number of shots held in reserve for immediate action in case of an overwhelming force.” H.W.S. Cleveland, Hints to Riflemen 181 (1864).

By the time the Fourteenth Amendment was before Congress, the Henry had been improved into the Winchester Model 1866 rifle, which could hold up to 18 rounds, depending on caliber. It was a major commercial success, especially in the West. The Model 1866 was succeeded by the Model 1873, with capacity from 6 to 25. Both Winchesters have deservedly been called “the gun that won the West.” The Model 1892 (15 rounds) was a favorite of Annie Oakley, and, later, of John Wayne.

As an alternative to the lever action, the pump action (the user pushes and pulls a slide underneath the barrel to load the next round) came on the market in the last quarter of the century, most famously with the 15-round Colt Lightning of 1884.

The next year brought the first functional semiautomatic firearm, the Mannlicher Model 1885. Before the end of the century, numerous models of semiautomatic pistols were on the market; some of them had magazines over 10 rounds, such as the Luger M1899, with an optional 32 round magazine.

As always, repeaters were essential for defense against group attacks. That is why anti-lynching crusader Ida B. Wells and other civil rights activists urged black people to buy repeating rifles for defense against lynch mobs. For the same reason, the Florida legislature in 1893 enacted the first American controls on particular types of firearms, after a repeating rifle was used to deter a lynch mob.

Magazine controls: In the 1920s and early 1930s, alcohol prohibition gave a tremendous boost to organized crime and intergang warfare. Starting in 1927, six states enacted laws regarding ammunition capacity: Rhode Island, Michigan, Minnesota, Ohio, California, and Virginia. None of these laws banned possession; some required a license or registration, or banned in-state sales, or simply forbade altering a firearm to change its original capacity (while allowing purchase of manufactured firearms with any capacity). A 1932 congressional statute for the District of Columbia banned semiautomatic firearms with a capacity of over 12.

All of the state laws were later repealed. The Heller case suggested that “longstanding” gun control laws have a better chance to be found constitutional than novel laws; to be “longstanding,” a law must be “long” and “standing,” and none of the repealed state laws qualify, since they are no longer standing. 1 Shorter O.E.D. 1625 (1993) (“adj. Of long standing; that has existed a long time, not recent.”). No magazine ban currently in force is older than the 15-round limit enacted by New Jersey in 1990. And three decades is hardly enough to be longstanding, considering that DC’s 1975 handgun had been in effect for 33 years until the 2008 Heller decision.

In sum, guns with ammunition capacity greater than 10 rounds have existed since the sixteenth century, were well-known to the Founders (including the Continental Congress), and were mass market consumer items by the time of the Fourteenth Amendment. Although the Second Amendment’s protection is not limited only to the types of arms that existed in 1791, the Second Amendment does protect the types of arms that did exist in 1791, and those included arms with ammunition capacity greater than 10.

Maglula Sues Amazon

Very eeenteresting. But how do you keep a bond-fide retailer from selling them online on Amazon, or eBay? I know, the article says that Amazon removed all the advertisements, but how many of them were actually for counterfeit items? I know several stores have an online ‘storefront’ on both Amazon and eBay.

Maglula filed a lawsuit on Dec. 12, 2019 against Amazon.com, alleging the online goliath was engaged in, “… trademark counterfeiting, trademark infringement, copyright infringement and unfair competition under federal, state and/or common law arising from Defendants Amazon.com, Inc.’s, and Amazon Service, Inc.’s, (collectively ‘Amazon’) unauthorized use of Maglula’s trademarks and copyrights in connection with the advertising, distributing, displaying, offering for sale, and/or selling of unlicensed, infringing an/or counterfeits of Maglula’s innovative loaders and unloaders…”

Maglula is an Israel-based company, established in 2001, that specializes in convenient and reliable magazine-loading devices. Its UpLula has become one of the industry’s most popular accessories because of the pocket-sized item’s ability to reduce the effort and time required to fill or unload pistol magazines. Shooting Illustrated covered one of its most recent introductions tailored for bullpup fans; the Maglula Steyr AUG StripLULA Magazine Loader.

By Jan. 13, Amazon.com removed all of Maglula’s products and alleged counterfeits from its website, including the UpLula. The products do, however, remain for sale on some authorized online retailers with poor copies offered elsewhere. The firm asks customers to keep in mind, “Maglula Ltd. does not sell online. Please shop for genuine loaders at local gun shops and web-stores you trust, and from: Academy Sports + Outdoors, Bass Pro Shops, Brownells, Cabela’s, Cheaper Than Dirt, Dick’s Sporting Goods, Gander RV & Outdoors, Midway USA, Shop Ruger, Scheels, Sportsman’s Warehouse, [and] Turner’s Outdoorsman.”

Prior to the case the company warned on its website that, “Low-quality Chinese knockoffs of our patented UpLula universal pistol magazine loaders are often offered for sale on Amazon, eBay and elsewhere.” It recommends, “If you suspect receiving a knockoff loader, please take a few pictures of the packaging and loader and send it to info@maglula.com. We’ll let you know knockoff or genuine.” Photos of some of the counterfeits are also posted.

The problem’s not new or limited to the firearm industry. In 2016, for example, Apple filed a lawsuit [PDF] against Amazon.com that claimed, among other things, the company purchased 12 power adapters from the online goliath that, “…were identified in the Amazon.com listings as genuine Apple products, often using Apple’s copyrighted marketing images. Upon careful examination of the products, Apple determined that, although the products bore the Apple Marks and were sometimes in packaging bearing Apple’s copyrighted works, the products were not genuine Apple products at all, but were counterfeit.”

Official estimates in 2017 put the value of counterfeit product sales online annually at $1.7 trillion. Since 2000, seizures of contraband products by U.S. Customs and Border Protection have increased 1,000 percent.

 

McConnell Triumphant: Immediately After Impeachment Acquittal Files Cloture On More Judges To Remake Judiciary

On Wednesday, Senate Majority Leader Mitch McConnell wasted no time after the Senate acquitted President Trump in his impeachment trail, immediately filing cloture on a number of judges as he continued his relentless march toward remaking America’s judiciary with a conservative bent.

The judges included
Andrew Lynn Brasher to be U.S. Circuit Judge for the Eleventh Circuit,
Joshua M. Kindred to be U.S. District Judge for the District of Alaska,
Matthew Thomas Schelp to be U.S. District Judge for the Eastern District of Missouri,
John Fitzgerald Kness to be U.S. District Judge for the Northern District of Illinois, and
Philip M. Halpern to be U.S. District Judge for the Southern District of New York.

In March 2019, Politico reported that McConnell was intent on moving as quickly as he could to get conservative judges confirmed:

The Senate is on track to confirm the 34th Circuit Court judge of Trump’s presidency in the next week and the GOP has three more ready for floor action; that would give Trump roughly 20 percent of the Circuit Court seats in the country after just two years in office. At this rate, McConnell and Trump could leave few, if any, vacancies there for a potential Democratic president in 2021.

Even more alarming for Democrats, the GOP is also preparing to pull the trigger on the “nuclear option” and change Senate rules once again with a simple majority to allow much quicker confirmation of lower court judges in the coming months. …

Trump currently has 128 District Court vacancies to fill, and each one can take multiple days under current rules if any senator demands a delay; if Republicans change the rules, Trump could conceivably fill most of those over the next 20 months.

Speaking with radio host Hugh Hewitt in December, McConnell stated:

Just to put it in perspective, President Obama appointed 55 Circuit judges in 8 years. President Trump with our Senate confirmation has done 50 in 3 years. So the pace is dramatic. What these men and women have in common is they’re all young, they’re all smart. A heavy percentage of them have been Supreme Court clerks. They’ll be on the court for a very long time, and what they have in common is what Justice Scalia used to say – the job of a judge is to follow the law and the Constitution.

You would think that wouldn’t be such a quaint notion, but among Democratic appointees, that’s been their approach. President Obama tipped his hand when he said he wanted to appoint judges who had empathy. Well, that’s great if you’re the litigant for whom the judge has empathy, not so good if you aren’t.

Florida justices skeptical of proposed assault weapons ban
One of the justices called one of the provisions “prohibitively misleading.”

TALLAHASSEE — Florida Supreme Court justices on Tuesday cast a skeptical eye on a constitutional amendment banning assault weapons, with the chief justice calling part of it “prohibitively misleading.”

The proposed amendment, drafted after the 2018 Parkland massacre, would outlaw a variety of weapons and require current owners to register them with the state. Organizers missed the deadline to go before voters this fall and they’re now aiming for 2022.

Lawyers for Attorney General Ashley Moody and the National Rifle Association argued Tuesday that the amendment is overly broad and applies to far more weapons than AR-15s and other semi-automatic rifles, which the public commonly views as “assault weapons.”

NRA attorney George Levesque said the ban could even apply to even pellet guns and paintball guns.

“The average voter is not going to appreciate that and they’re going to be confused by that,” Levesque said.

But justices largely glossed over those arguments, focusing instead on one particular sentence in the ballot summary.

The sentence says the amendment “exempts and requires registration of assault weapons lawfully possessed prior to this provision’s effective date.”

The lawyer who crafted that language, Jon Mills, said it meant that current owners of assault weapons were exempt from the ban, but that they had to register their weapons. When the person died, they could not hand them down to a family member or anyone else. The weapon would have be turned over to authorities.

But Chief Justice Charles Canady read it differently. The sentence, he said, says the weapon itself is exempt from the ban, he said, meaning that the weapon could be transferred to another person after the ban takes effect.

“I don’t know how anybody could get an idea from that that when the person who possessed it trundles off this earth, then all of a sudden that weapon becomes illegal and is no longer exempt,” Canady said. “If it means that, if I’m reading it correctly, then that is prohibitively misleading.”

Mills said that interpretation was “completely nonsensical,” noting that if that were true, the amendment would allow someone to buy up thousands of assault weapons before the ban takes effect, then sell them after it takes effect.

“It says what it says,” Canady responded. “I didn’t write this.”

Before constitutional amendments go before voters, justices have to decide whether the proposals deal with only a single subject and has a fair ballot summary. If justices decide the summary is misleading, organizers would have to start over.

The amendment would ban all “assault rifles,” which it defines as “semiautomatic rifles and shotguns capable of holding more than 10 rounds of ammunition at once, either in fixed or detachable magazine, or any other ammunition-feeding device.” It does not apply to handguns.

“It seems to me that the chief purpose of this amendment is to eliminate long guns in the State of Florida within a generation,” Justice Ricky Polston said.

Mills said that it only applies to semi-automatic long guns. Bolt-action rifles, which require the user to pull a lever in between each shot, would be permitted.

The committee gathering signatures for the amendment is Ban Assault Weapons Now, whose chairwoman, Gail Schwartz, lost her nephew, Alex Schachter, in the 2018 Parkland massacre. The gunman was wielding an AR-15-style rifle.

SAF CHALLENGE TO ILL. NON-RESIDENT CCW PROHIBITION GETS BACKING FROM STATE AG’s

BELLEVUE, WA – Eighteen state attorneys general have joined in an amicus brief to the U.S. Supreme Court supporting a Second Amendment Foundation petition for writ of certiorari seeking high court review in the case of Culp v. Raoul, which challenges the refusal by Illinois to take applications from non-residents for an Illinois carry license.

Plaintiffs are asking the Court to determine “Whether the Second Amendment right to keep and bear arms requires that the State of Illinois allow qualified non-residents to apply for an Illinois concealed carry license.” SAF is joined by the Illinois State Rifle Association, Illinois Carry and several private citizens. They are represented by attorney David G. Sigale of Wheaton.

The amicus brief, submitted by Missouri Attorney General Eric S. Schmitt, is joined by attorneys general from Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and West Virginia.

While Illinois statute says the State Police “shall by rule allow for nonresident license applications from any state or territory of the United States with laws related to firearm ownership, possession, and carrying, that are substantially similar to the requirements to obtain a license” in Illinois.

“However,” the petition for review says, “that right to concealed carry is denied, in a discriminatory and arbitrary manner, to the law-abiding and qualified persons in 45 states, who are prohibited from even applying for an Illinois concealed carry license (“CCL”), regardless of their qualifications. Therefore, Illinois’s prohibition on virtually all non-residents obtaining a concealed carry license for self-defense violates the Petitioners’ rights under the Second Amendment.”

“We’re grateful to the 18 attorneys general for joining the amicus, on behalf of the residents of their respective states,” said SAF founder and Executive Vice President Alan M. Gottlieb. “The right to bear arms does not end at the Illinois state line, and untold numbers of citizens from other states have occasion to travel to or through Illinois and they should not be expected to leave their right of self- defense at the border.”

INJUNCTION GRANTED AGAINST PENNSYLVANIA STATE POLICE’S POLICY RELATING TO “PARTIALLY-MANUFACTURED FRAMES AND RECEIVERS”

Today, Chief Counsel Joshua Prince of the Firearms Industry Consulting Group and Attorney Adam Kraut, Director of Legal Strategy at Firearms Policy Coalition, were successful in the case of Landmark Firearms, LLC, et al. v. Evanchick, 694 M.D. 2019, in obtaining an injunction against the Pennsylvania State Police’s implementation and enforcement of its “policy” regarding what it refers to both as “partially-manufactured frames and receivers” and “80% receivers.”

In a 17 page decision, Commonwealth Court Judge Kevin Brobson found that the Pennsylvania State Police, in implementing and enforcing its policy, violated the due process rights of Pennsylvania residents and businesses, as well as, businesses from other states. Specifically, the Court declared

With respect to Petitioners’ due process claim in Count III and their claim in Count IV that the PSP Letter is void on the ground of vagueness, however, the Court concludes Petitioners have demonstrated a substantial legal question.

The Court continued on to specifically declare

The Court agrees with Petitioners that there is a substantial legal question as to whether PSP’s new policy regarding partially manufactured receivers is impermissibly vague.

As the Court explained

The term frame or receiver is not defined in the UFA, PSP has not promulgated any regulations to define what constitutes a frame or receiver, and PSP is no longer following the ATF’s lead regarding what constitutes the frame or receiver of a weapon. Rather than clarify, the new PSP policy adds confusion by introducing a new term” partially manufactured receiver”-and a new form-Form SP 4-121-into the mix of gun regulations without an explanatory bridge tying them back to the UFA.
Guidance to the firearms industry and the public on this change in policy is critical. The only document that currently sets forth PSP’s change in interpretation is the PSP Letter. That letter merely sets forth the blanket statement that partially manufactured receivers are considered firearms with respect to certain sections of the UFA, without providing a definition of the term partially manufactured receiver; a description or examples of the products that PSP believes, under its new interpretation, fall within the sweep of the statutory definition of firearm; or any guidance as to how this new term will be interpreted and applied by PSP going forward. The mere mention of the AG Opinion is not enough to provide fair notice or warning to the public as to how sellers or purchasers of this undefined class of unfinished receivers may comply with the UFA and avoid criminal prosecution. Due process demands more.

All of this-(1) PSP’s failure to explain how its new policy on partially manufactured frames or receivers differs from its prior policy and that of the ATF, such that those subject to the UFA have fair notice of PSP’s change in policy; (2) PSP’s failure to tether its new policy to the text of the UFA, particularly the term “frame or receiver” in the relevant definition of firearm; (3) the introduction of a new term, partially manufactured receiver, as opposed to simply defining what a “frame or receiver” is under the UFA as including what PSP now seeks to capture; and ( 4) the deployment of a new form to be used with respect only to sales/transfers of a subclass of firearms, which lacks any level of specificity, where PSP regulations provide for a specific form to be used in all firearms transactions under the UFA sows confusion within the industry and the public.

Thereafter, the Court acknowledged that the PSP’s “Policy” constitutes per se irreparable harm, that an injunction returns the parties to the status quo, and that the “public policy of this Commonwealth does not favor such vague laws.”

As such, the Court issued the following Order:

AND NOW, this 31st day of January, 2020, Petitioners’ Application for Relief in the Nature of a Preliminary Injunction is GRANTED. Colonel Robert Evanchick, Commissioner of the Pennsylvania State Police (PSP), and his agents, servants and officers, are enjoined from implementing or enforcing PSP’s new policy addressed to partially manufactured receivers, as currently set forth in PSP’s Letter of January 9, 2020, until final disposition of the Petition for Review, including appeals.

As specified in the Order, the preliminary injunction will not issue until we pay a $100.00 cost bond, which will be paid on Monday.

The forgoing bringing this to mind:

A 9th Circuit dissent by Judge Alex Kozinski:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that “persons, houses, papers, and effects” also means public telephone booths, see Katz v. United States, 389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases —or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.

Neil Gorsuch Issues rebuke to Activist Judges and Nationwide Injunctions

Apropos of the previous item about immigration:

In the 5-4 decision allowing the rule to go into effect, Justice Gorsuch issued a concurring opinion rebuking activist judges and their rush to apply “nationwide injunctions” against Trump administration policies. Edited for easier reading and deleting some case cites

JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, concurring in the grant of stay.
On October 10, 2018, the Department of Homeland Security began a rulemaking process to define the term “public charge,” as it is used in the Nation’s immigration laws.
Approximately 10 months and 266,000 comments later, the agency issued a final rule.
Litigation swiftly followed, with a number of States, organizations, and individual plaintiffs variously alleging that the new definition violates the Constitution, the Administrative Procedure Act, and the immigration laws themselves. These plaintiffs have urged courts to enjoin the rule’s enforcement not only as it concurring to them, or even to some definable group having something to do with their claimed injury, but as it applies to anyone.

These efforts have met with mixed results.

The Northern District of California ordered the government not to enforce the new rule within a hodge-podge of jurisdictions—California, Oregon, Maine, Pennsylvania, and the District of Columbia.
The Eastern District of Washington entered a similar order, but went much farther geographically, enjoining the government from enforcing its rule globally.
But both of those orders were soon stayed by the Ninth Circuit which, in a 59-page opinion, determined the government was likely to succeed on the merits.
Meanwhile, across the country, the District of Maryland entered its own universal injunction, only to have that one stayed by the Fourth Circuit.
And while all these developments were unfolding on the coasts, the Northern District of Illinois was busy fashioning its own injunction, this one limited to enforcement within the State of Illinois.

If all of this is confusing, don’t worry, because none of it matters much at this point.

Despite the fluid state of things—some interim wins for the government over here, some preliminary relief for plaintiffs over there—we now have an injunction to rule them all: the one before us, in which a single judge in New York enjoined the government from applying the new definition to anyone, without regard to geography or participation in this or any other lawsuit.

The Second Circuit declined to stay this particular universal injunction, and so now, after so many trips up and down and around the judicial map, the government brings its well-rehearsed arguments here.
Today the Court (rightly) grants a stay, allowing the government to pursue (for now) its policy everywhere save Illinois.
But, in light of all that’s come before, it would be delusional to think that one stay today suffices to remedy the problem.
The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them.
Whether framed as injunctions of “nationwide,” “universal,” or “cosmic” scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.
Equitable remedies, like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit. When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place.
But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III………….

It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice.
As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions.
Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence.

This is not normal.

Universal injunctions have little basis in traditional equitable practice. Their use has proliferated only in very recent years.
And they hardly seem an innovation we should rush to embrace. By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions.

The traditional system of lower courts issuing interlocutory relief limited to the parties at hand may require litigants and courts to tolerate interim uncertainty about a rule’s final fate and proceed more slowly until this Court speaks in a case of its own. But that system encourages multiple judges and multiple circuits to weigh in only after careful deliberation, a process that permits the airing of competing views that aids this Court’s own decision making process.

The rise of nationwide injunctions may just be a sign of our impatient times.
But good judicial decisions are usually tempered by older virtues.
Nor do the costs of nationwide injunctions end there.
There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal.
Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide.

The risk of winning conflicting nationwide injunctions is real too.
And the stakes are asymmetric.
If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94- to-0 win in the district courts into a 12-to-0 victory in the courts of appeal.
A single loss and the policy goes on ice— possibly for good, or just as possibly for some indeterminate period of time until another court jumps in to grant a stay.
And all that can repeat, ad infinitum, until either one side gives up or this Court grants certiorari.

What in this gamesmanship and chaos can we be proud of?

I concur in the Court’s decision to issue a stay. But I hope, too, that we might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.

Supreme Court Allows Trump Admin to Implement ‘Public Charge’ Test for Immigrants

In other words, if you’re coming to this country and immigration can tell you’re going to instantly go on welfare because you don’t even have a job lined up, you don’t come in.

The Supreme Court ruled on Monday to approve the Trump administration’s “public charge” rule for new immigrants.

The justices approved the rule by a vote of 5-4 along ideological lines.
[so what else is new?]

“Public charge” has in recent years been defined as a person dependent on cash assistance programs. The Trump administration updated the definition in August 2019 to include people likely to require non-cash government benefits, and sought to implement a policy limiting the number of new immigrants who would require government assistance such as food stamps or Medicaid.

Lower courts have repeatedly blocked the new policy from going into effect. In early January the Second Circuit U.S. Court of Appeals implemented a nationwide injunction against the policy, which Monday’s Supreme Court decision overrules.

“Throughout our history, self-reliance has been a core principle in America,” then-acting director of U.S. Customs and Immigration Services Ken Cuccinelli said at a 2019 press conference regarding the new policy. “The virtues of perseverance, hard work, and self-sufficiency laid the foundation of our nation and have defined generations of immigrants seeking opportunity in the United States.”

Harvard Law Students Avoid Applying For Clerkships With Trump-Appointed Judges.

The is a very good thing as it will reduce inequality in the legal profession by providing opportunities for those law students outside the cesspools of elitism. Cutting off their supercilious noses to spite their faces is never boring.

Boston Globe, Some Harvard Law School Students Are Avoiding Applying to Clerkships With Trump-Appointed Judges:

Used to be that the promise of earning a sterling line on a resume and connections to stars of the legal profession was enough to lure Harvard law students to federal clerkships.

But recently, when Harvard Law School was urging its students to apply to work for one of President Trump’s newly appointed judges, it felt the need to offer further incentives: “Next to Lake Tahoe and great skiing!” the job alert read.

But that apparently wasn’t enough. Two days later, in mid-December, the law school again nudged its students to apply for clerkships with federal judges, noting that some judges, including two Trump appointees, had received no Harvard applications — calling them “wasted opportunities.”

As Trump reshapes the federal judiciary with staunch conservatives and controversial picks, some Harvard Law School students appear to be thinking twice about applying for clerk jobs with them, and passing up what are generally considered plum positions. …

[S]ome legal scholars worry that the reluctance of students at one of the nation’s premier law schools to clerk for Trump-appointed judges, first reported by Bloomberg Law, could further polarize the legal profession and do the country more harm than good. …

For law students, clerking for a federal or even state judge has traditionally been a way to fast-track their careers and boost their salaries. Nearly 90 of Harvard’s 570 graduates in 2018 had federal clerkships. Students apply months or even years ahead for the competitive, one-year positions. …

But as more Trump judges take the bench — he has already overseen the confirmation of 50 appellate court judges, more than any president in recent memory at this point in his term — law school students who are gay or have had abortions may have serious conflicts working with judges who have been vocally opposed to those issues, Leah Litman, a law professor at the University of Michigan who previously clerked for Supreme Court Justice Anthony Kennedy, wrote recently in a blog post.

Virginia Supreme Court Denies VCDL, GOA Request for Injunction to Block Gun Ban

Virginia’s highest court on Friday upheld a ban on firearms at a pro-gun rally in the state’s capital next week, an event that authorities feared could erupt in violence at the hands of armed extremists.

Gov. Ralph Northam earlier this week declared a state of emergency and issued an executive order banning all weapons from the Capitol grounds in Richmond, saying the state had received credible threats of “armed militia groups storming our Capitol” during an annual gun-rights rally scheduled for Monday.

https://twitter.com/gmoomaw/status/1218316512546689026

Appeals Court Throws Out Climate Change Lawsuit

The Ninth Circuit Court of Appeals did no favors for the climate alarmism movement this afternoon, after the panel of judges in San Francisco threw out a lawsuit against the government based on climate change.

The suit was filed in 2015 by a group of young climate alarmists, insisting that the government is solely responsible for creating climate change via cooperating with the fossil fuel industry. The suit claims that the government turned a blind eye to the potential for damage via carbon emissions. Lawyers serving both Presidents Obama and Trump asserted that the government is not at fault because a livable climate is not guaranteed in the Constitution.

Circuit court judges Mary H. Murguia and Andrew D. Hurwitz and District Judge Josephine L. Staton heard the case. In a rare moment of constitutional textualism by the Ninth Circuit, the trio of Obama nominees affirmed in a 2-1 vote that it was not the duty of the court to craft climate change policy, or to tell the legislative branch how to go about making laws.

“The plaintiffs claim that the government has violated their constitutional rights, including a claimed right under the Due Process Clause of the Fifth Amendment to a ‘climate system capable of sustaining human life.’ The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to ‘phase out fossil fuel emissions and draw down excess atmospheric CO2.’ Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government,” Judge Hurwitz wrote in the majority opinion.

Dissenting in the decision is District Judge Josephine L. Staton, who claims that this case could be in the scope of the judiciary:

“My colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary. Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction. So viewed, plaintiffs’ claims adhere to a judicially administrable standard. And considering plaintiffs seek no less than to forestall the Nation’s demise, even a partial and temporary reprieve would constitute meaningful redress. Such relief, much like the desegregation orders and statewide prison injunctions the Supreme Court has sanctioned, would vindicate plaintiffs’ constitutional rights without exceeding the Judiciary’s province,” Staton wrote.

Now there’s a perfect example of a crap-for-brains ‘activist judge’ for ya, if there ever was one.

The Ninth Circuit correctly decided this case; indeed, it is not the role of the judiciary to legislate or to instruct the legislative branch how to do so. Ruling in favor of the plaintiffs in this case would have set a dangerous precedent, and today is a good day for the adherence to one of our most fundamental principles: separation of powers.

Florida Carry Wins Lawsuit Against Broward County

FLORIDA CARRY PRESS RELEASE
January 14, 2019
FOR IMMEDIATE RELEASE
FLORIDA CARRY WINS LAWSUIT AGAINST BROWARD COUNTY FOR BLATANT VIOLATIONS OF FLORIDA’S LAW THAT PREEMPTS LOCAL GUN CONTROL
Tallahassee, FL – Florida Carry, Inc. has emerged victorious in their lawsuit against Broward County and County Administrator Bertha Henry in which they sought a permanent injunction to protect the rights of law abiding gun owners from the county’s multiple illegal ordinances that burden nearly all aspects of firearms ownership, use, transfer, and possession.
“Broward County has ignored repeated attempts since 2011 by Florida Carry to gain its compliance with state law and left us with no choice but to file this case,” said Florida Carry Executive Director Sean Caranna. “Let this case serve as proof that when local officials refuse to stop breaking the law in order to deny the rights of Floridians, Florida Carry will act to demand that people’s rights be protected.”
Since 1987 the Florida Legislature has preempted firearms law and issued state-wide licenses to carry for self-defense. Florida Carry has prompted the repeal of anti-gun ordinances and regulations in over 200 Florida jurisdictions, including municipalities, counties, colleges and state agencies. “Usually the jurisdiction is responsive to our notification that there is a problem and no lawsuit is necessary,” noted Caranna. “Unfortunately, that was not the case with Broward County.”
In his ruling Judge Carlos Rodriguez granted Florida Carry’s request for summary judgement and permanently enjoined Broward County from enforcing their illegal gun laws. Florida Carry was also awarded reimbursement of legal fees.
Florida Carry won a similar case against the University of North Florida (UNF) in 2011. In Florida Carry v. UNF the First District Court of Appeal ruled that “The legislature’s primacy in firearms regulation derives directly from the Florida Constitution… Indeed, the legislature has reserved for itself the whole field of firearms regulation in section 790.33(1)…”
“It is a rare and unfortunate circumstance when local government leaders decide to willfully break state law, despite the personal penalties. When local officials are willing to knowingly violate the law in order to suppress the rights of law-abiding gun owners, they can expect that we’re going to make them pay for it.”

FISA Court Selects Lawyer Who Vehemently Denied FBI Misled FISA To Oversee FBI Reforms.

Looks like a brazen attempt at a cover-up with a upraised middle finger pointed right at us.

The Foreign Intelligence Surveillance Court has triggered a wave of condemnations over the selection of David Kris, to oversee reforms of the FBI FISA process. Foreign Intelligence Surveillance Court (FISC) presiding Judge James Boasberg, left, appointed Kris, a lawyer that the Washington Post describes as “highly controversial.

Critics have objected that Kris writes for Lawfare, a legal site widely criticized by conservative lawyers for its left-oriented, anti-Trump positions, as well as shows like Rachel Maddow on MSNBC. That objection strikes me as attenuated and unfair. The more serious allegations however is that Kris was one of the most public advocates for rejecting allegations of FBI abuse. In a city where you can throw a stick and hit ten lawyers, FISC went to someone who insisted that allegations of abuse were nonsense and should be rejected. If the court was seeking to assure the public, it has added a new controversy for those who see a “deep state” response to reforms.

Kris served under the Obama Administration and was assistant attorney general for the DOJ’s National Security Division. He served as an associate deputy attorney general under George W. Bush from 2000 to 2003.

Kris  was one of the loudest critics of the Nunes memo which mirrored some of the findings of the Inspector General’s report: “The Nunes memo was dishonest. And if it is allowed to stand, we risk significant collateral damage to essential elements of our democracy.” He specifically denied the claim that he FBI misled the court about Christopher Steele – a claim that has now been proven to be true.

Kris also maintained that “These applications already substantially undermine the president’s narrative and that of his proxies, and it seems to me very likely that if we get below the tip of the iceberg and into the submerged parts and more is revealed, it’s going to get worse, not better. And it would potentially be dangerous to disclose additional information because some of this relates to ongoing investigations.”

He has also been a prominent critic of President Trump, claiming on Twitter that the “walls” were “closing in” on the President.

Amid the Trump-Russia investigation, Kris had written that Republicans had “falsely accused” the FBI of misleading the FISC in its wiretap applications to spy on the Trump campaign. He stated that “an allegation that was all but debunked by the special counsel’s report and the inspector general’s report,” the Daily Caller noted.

Brookings Institution, which supports LawFare, has been font for experts declaring proven crimes and impeachable acts by Trump. I have often disagreed with the analysis offered by Brookings experts in these controversies. Yet, while I strongly disagree with a great deal of Kris’ analysis, much of that analysis is substantive and interesting. However, there are also these troubling and sweeping statements on the very merits of the dispute over FISA. I was particularly concerned with a March 1, 2018 essay for Lawfare, where Kris dismisses questions raised over the handling of the Carter Page investigation. I have written about the problems in that investigation, including a recent column where I called for an apology for Page over his abuse in the FISA system. Kris was one of those assuring the public that Page was clearly a legitimate target: “It’s disturbing that Page met that legal standard and that there was probable cause to conclude he was a Russian agent.” Those abuses (long denied by Kris) are at the heart of the reforms.

Given those positions, it is curious that Judge James Boasberg thought that he was the best lawyer to assure the public that reforms would be faithfully and thoroughly carried out.

The Supreme Court’s Failure to Defend Heller Has Created The Situation in Virginia

Why does it seem that liberal extremists are pursuing new infringements on gun rights seemingly unchecked? Why do we have an escalated situation in Virginia where liberal politicians seek to further infringe the Second Amendment rights of its citizens, threatening imprisonment and even violence against Constitutional gun owners who have committed no crimes?

This is due to a failure of our system of checks and balances. Due to a failure of the courts to deal with a barrage of important Second Amendment cases over the last ten years, we are perilously off balance.

In 2008, we had the epic Heller decision, and the subsequent McDonald decision in 2010, which applied Heller to the states. In the more than 10 years since those decisions were handed down, we have seen relentless encroachments on Second Amendment rights by extreme anti-rights fanatics.

When will it ever end? When will the Supreme Court make it end?

The response by gun rights supporters to these continued, ongoing infringements has been appropriate: seek redress using the three branches of government. Specifically, file lawsuit after lawsuit begging the Judiciary to enforce Heller’s holdings on concepts like individual rights and common-use.

Unfortunately, the Judiciary has repeatedly ignored these petitions for redress—a complete and dangerous failure to enforce the provisions enumerated in the Heller decision. The results have been a painful, unconstitutional existence for those of us in states like New Jersey and, most recently, it has brought Virginia to the edge of chaos.

This judicial hibernation, combined with the limitless funding of special interest groups and individuals like gun control sugar daddy Michael Bloomberg’s funding of Moms Demand Action and Everytown, has resulted in a highly explosive situation.

Since 2014, the Supreme Court of the United States has declined the opportunity to grant several petitions for certiorari.

In 2014, the Court denied the petition in a New Jersey case asking the critical question of whether or not the Second Amendment applies outside the home. See Drake v. Filko. In 2017, the petition for cert was denied in Peruta v. San Diego.

These denials have resulted in terrible consequences. They have provided liberal, anti-gun rights extremists an unfettered highway to infringement.

On the micro level, in the repeated failure to act swiftly in upholding the Second Amendment, the Supreme Court itself has placed citizens like New Jerseyians (who are automatically denied a right to carry) in danger of criminal activity and terror, such as we saw in the recent Texas church shooting.

The Court’s failure to act has also placed us in danger on the macro level, such as in Virginia where politicians have threatened to use the National Guard against the state’s citizens and to jail those who have committed no crimes.

The Court must act soon. It is abundantly clear, despite a dearth of reporting by the mainstream media, that complete civilian disarmament is the end goal. Americans will not allow them to succeed.

an individual right

This point: “….all nine of them agreed that the right was one held by individuals, not “the militia” is little reported on because it does not fit the controller’s fantasies. The difference among the justices was when the right was “in effect”. The majority held that people retained the right to exercise it at all times, not just while acting as a militia. The minority -wrongly and stupidly – believed that the individual right only pertained to service while serving in the militia.

Carrying Concealed Not Legal Grounds to Stop and Search a Person in PA

U.S.A. –-(Ammoland.com)- At about 2:30 in the morning of 28 June, 2014, Michael Hicks was at a convenience store in Allentown, Pennsylvania. Hicks had a valid concealed carry permit, and had a handgun in an outside the waistband holster, concealed by his shirt.

Open carry is generally legal in Pennsylvania, but it is not legal to open carry in a vehicle. This limits the practicality of open carry on a regular basis.

Video surveillance of the scene showed Hicks adjusting his shirt, briefly allowing the handgun to be seen before approaching the convenience store. Hicks goes about his business, but minutes later is stopped by police. The Supreme Court of Pennsylvania watched the surveillance video and described what happened:

Hicks arrives at the Pace Mart at 2:31 a.m.and parks his vehicle at a gas pump. A second, unidentified individual already was parked at an adjacent gas pump. The individual clearly recognizes Hicks as an acquaintance, and approaches Hicks’ vehicle to greet him. Hicks exits his vehicle, and his firearm becomes visible, albeit barely. Hicks either is holstering the firearm or adjusting his garments around it when the second individual reaches Hicks’ driver’s side door, which is still open.The individual greets Hicks, and the two men shake hands with a brief, one-armed embrace.Hicks does not appear to gesture or point to the firearm, and he does not remove it from his waistband at any point.Hicks begins to walk toward the convenience store, continuing to adjust the position of the handgun, which becomes more clearly visible for a moment. Thereafter, the handgun is holstered outside Hicks’ waistband and covered by his shirt, but its outline remains visible. Hicks enters the store, exits a short time later, then returns to the gas pump, where he begins to fuel his vehicle. Hicks speaks briefly to a third, unidentified individual while he pumps gas. Hicks then reenters his vehicle and begins to pull away from the gas pump. Moments later, numerous marked police vehicles intercept Hicks’ vehicle with their lights flashing.

Even viewing all of the evidence in the light most favorable to the Commonwealth, there exists no basis for a finding that Hicks was engaged in any manner of criminal conduct.There was no indication or apparent threat of violence, and no information suggesting that Hicks engaged in any type of confrontation with another individual, physical, verbal, or otherwise. Neither the camera operator’s report nor the police radio dispatch suggest anything of the sort. Indeed, “[t]he video from the camera clearly shows the firearm concealed in [Hicks’] waistband and that, despite the hour, there are a number of individuals at this location.” Brief for Commonwealth at 16. However, significantly, no individual expresses any visible indication of alarm at Hicks’ presence, his possession of his firearm, or the manner in which he carried it. Rather, the video depicts patrons of a gas station going about their business, at least two of whom engage in seemingly friendly interactions with Hicks.

The Pennsylvania Supreme Court found that Hicks Fourth Amendment rights had been violated, and there was no legitimate reason for the police to stop him that early morning in June.

Michael Hicks was deprived of the protections of the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution, and the evidence derivative of his seizure should have been suppressed.

The Pennsylvania Supreme Court opinion was decided on 31 May, 2019. The State of Pennsylvania applied to the U.S. Supreme Court to appeal the decision on 27 September 2019.  The United States Supreme Court formally declined to hear the case. The Court declines to hear cases by declining a writ of certiorari.

The United States Supreme Court denied certiorari on 9 December 2019.

19-426 PENNSYLVANIA V. HICKS, MICHAEL J. 

The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is denied.

For several decades, there has been an assumption in law enforcement circles, backed up by court decisions, that merely the suspicion of a person carrying a concealed weapon was sufficient to allow for a “stop and frisk” of that person.

Law enforcement agencies generally preferred to have that power. I was taught, decades ago, somewhat informally, to always stop and search a suspect if I thought they might have a concealed weapon. I was told, by the officer who was teaching me, that “he had never heard of a judge who threw out the evidence if a weapon was found”.

With the success of the concealed carry movement in partially restoring Second Amendment rights, we are seeing a reversal of that policy. The reason is simple: concealed carry is becoming common and accepted.

In this case, Hicks was and is a black man. Skin color was not a part of the legal case.  It is part of the social construct. This case shows black people have the same legal rights as others. More and more black people are exercising their Second Amendment rights. The exercise of Second Amendment rights is a key indicator of equal treatment under the law.

One of the findings of the infamous Dred Scott case was that black people could not be considered citizens, because if they were, they would be allowed to keep and carry weapons wherever they went. This case shows black people in Pennsylvania have reached a close approximation of the ability to keep and carry arms wherever they go.

When the Supreme Court refuses to grant certiorari in a case, it does not mean the Supreme Court necessarily agrees with the outcome of the case in the lower court. It means the case will only apply in the jurisdiction of the lower court.  It is an indication the Court does not place a high priority on reversing the decision of the lower court.

In Pennsylvania, police no longer have the legal ability to stop people and search them, simply because they have been noticed to be carrying a concealed weapon.