Assault weapons ban in Florida quashed by state Supreme Court

TALLAHASSEE — A proposal to ban assault weapons in Florida was rejected by the state Supreme Court on Thursday, with a majority of justices ruling that the proposal was misleading.

The proposal, spun out of the 2018 Parkland massacre, would have changed Florida’s Constitution to make it illegal for people to buy assault weapons or transfer those weapons to others.

In finding the proposal was misleading, a majority of justices took a narrow approach, honing in on just a few words at the end of the proposed ballot summary.

The ballot measure summary, which is limited to 75 words, states that the proposal “[e]xempts and requires registration of assault weapons lawfully possessed prior to this provision’s effective date.”

To the organizers, this wording meant that people currently owning assault weapons would be able to keep them if they registered the weapons. In the full text of the proposal, it clarifies that people can’t transfer those weapons to anyone.

The justices read the summary differently. To the 4-1 majority, the summary exempts the weapon itself. So, in theory, the weapon, if it’s registered, could be transferred to someone else.

But since their interpretation of the summary conflicts with the full text of the amendment, the measure itself is misleading, they said.

“Contrary to the ballot summary, the Initiative’s text exempts only ‘the person’s,’ meaning the current owner’s, possession of that assault weapon,” justices wrote.

Chief Justice Charles Canady and justices Ricky Polston, Alan Lawson and Carlos Muñiz were in the majority…………..

Lawyers for Attorney General Ashley Moody and the National Rifle Association had asked the Supreme Court to strike down the amendment. Moody called it “deceitful and misleading” last year because she said it could ban all sorts of weapons not typically considered assault rifles. Justices did not address that issue in their opinion.

The measure’s wording said the proposed amendment would have banned all “assault rifles,” which it defined 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 did not apply to handguns.

The opinion (PDF)

Florida, NRA will bypass mediation in challenge to Parkland gun law

The National Rifle Association and Florida officials will avoid mediation in a lawsuit challenging a 2018 state law that prevents people under age 21 from purchasing firearms, under an order issued this week by a federal judge.

The age restriction was included in a law passed in response to the Feb. 14, 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland. Nikolas Cruz, who was 19 at the time of the shooting, is accused of killing 14 students and three faculty members with a semi-automatic weapon at his former school.

The law raised the age from 18 to 21 to purchase “long guns,” such as rifles and shotguns. Federal law already banned licensed firearms dealers from selling handguns to people under 21, and the state law broadened that to also prevent private sales of handguns to people under 21, according to court documents.

The NRA challenged the law, alleging that the age restriction is an unconstitutional violation of people’s Second Amendment rights to “purchase firearms to defend themselves, their families, and their homes.”

Lawyers for Attorney General Ashley Moody argue that the law doesn’t violate the Second Amendment because, while people between 18 and 21 cannot purchase guns, they may still “keep and use” firearms “for any lawful purpose.”

Lawyers for Moody and the NRA filed a joint motion last week asking U.S. District Judge Mark Walker to allow them to sidestep court-ordered mediation, saying the process “would be fruitless.” The two sides’ positions “are not reconcilable, and no middle ground exists between them,” lawyers wrote in a joint motion “to abrogate” the mediation requirement.

“Accordingly, the issues involved in this case are not amenable to mediation. Mediation would not be a productive exercise, nor would it be a worthwhile use of the parties’, or the court’s, resources,” the lawyers wrote.

In Monday’s order granting the request, Walker wrote “this court finds good cause has been shown why the mediation requirement should be waived.”

A VICTORY FOR FOX NEWS — AND THE FIRST AMENDMENT.

It’s no secret that some groups on the left have long sought to silence Fox News. Media Matters for America raises $10,000,000 a year, mostly to bash Fox. The Obama administration once declared war on the network. Rival networks routinely attack. (Just so you know, I should note up front that I am a Fox News contributor.)

In recent weeks, Fox has faced another assault — and won. It happened in Washington State. A group called WASHLITE — the Washington League for Increased Transparency and Ethics — filed suit against Fox. The group alleged that Fox “willfully and maliciously engaged in a campaign of deception and omission regarding the danger of the international proliferation of the novel Coronavirus.” Fox’s reports, the suit alleged, were “deceptive because they caused consumers to fail to take appropriate action to protect themselves and others from the disease, mitigate its spread, and contributed to a public health crisis and a subsequent statewide shutdown causing damage to businesses and the loss of employment by persons located in Washington State.” The complaint added that “one member of WASHLITE has contracted the virus,” for which the group apparently blamed Fox. Therefore, WASHLITE somehow concluded that the network had violated the Washington State Consumer Protection Act.

washlite

It was all ridiculous, of course. For one thing, the suit grossly misrepresented Fox’s reporting. For another, WASHLITE’s claims were impossible to prove. And then the group came up with a crazy — and dangerous — theory that Fox, as a cable network, was somehow not entitled to the same First Amendment protections as a newspaper or a broadcast news network.

“These assertions do not hold up to scrutiny,” wrote Judge Brian McDonald. Even if WASHLITE’s characterization of Fox’s report was true — and it was not — Fox still enjoyed the free speech protections of other American media. “As the Supreme Court recognized, ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,'” McDonald wrote.

Substitute “leftist activists” for “society,” and that was the WASHLITE lawsuit. In the end, McDonald ruled that the scheme “runs afoul of the protections of the First Amendment.” The suit is another example of why the press — everyone in the press — has an interest in protecting the rights that protected Fox.

More and more it appears that Justice Roberts has taken the place of Justice Kennedy as the new ‘squish’ on the court. This does not bode well for any of the 2nd amendment cases awaiting a decision on whether to hear them or not, and probably is the reason that the court keeps kicking them down the road until Ginsburg or another of the Justices who are superannuated or suffering from chronic illnesses decided to retire, or simply doesn’t wake up one morning.


Supreme Court rejects challenge to limits on church services

WASHINGTON (AP) — A divided Supreme Court on Friday rejected an emergency appeal by a California church that challenged state limits on attendance at worship services that have been imposed to contain the spread of the coronavirus.

Over the dissent of the four more conservative justices, Chief Justice John Roberts joined the court’s four liberals in turning away a request from the South Bay United Pentecostal Church in Chula Vista, California, in the San Diego area.

The church argued that limits on how many people can attend their services violate constitutional guarantees of religious freedom and had been seeking an order in time for services on Sunday. The church said it has crowds of 200 to 300 people for its services.

Roberts wrote in brief opinion that the restriction allowing churches to reopen at 25% of their capacity, with no more than 100 worshipers at a time, “appear consistent” with the First Amendment. Roberts said similar or more severe limits apply to concerts, movies and sporting events “where large groups of people gather in close proximity for extended periods of time.”

Justice Brett Kavanaugh wrote in dissent that the restriction “discriminates against places of worship and in favor of comparable secular businesses. Such discrimination violates the First Amendment.” Kavanaugh pointed to supermarkets, restaurants, hair salons, cannabis dispensaries and other businesses that are not subject to the same restrictions.

Lower courts in California had previously turned down the churches’ requests.

The court also rejected an appeal from two churches in the Chicago area that objected to Gov. Jay Pritzker’s limit of 10 worshipers at religious services. Before the court acted, Pritzker modified the restrictions to allow for up to 100 people at a time. (so moot, so ‘whatever’ ed.) There were no recorded dissents.

Still in business: Judge rules Owosso barbershop can stay open

OWOSSO (WJRT) (05/11/2020) – A Shiawassee County Circuit Court judge has ruled in favor of Owosso barber Karl Manke, allowing him to stay open despite the executive orders barring shops like his from taking customers.

Owosso barber Karl Manke discusses a court ruling in his favor that allows him to remain open.
The judge denied a temporary restraining order on Monday that Michigan Attorney General Dana Nessel sought to close the barbershop, which is violating an order from Gov. Gretchen Whitmer.

Barbershops, hairstyling salons and spas all are deemed non-essential, so they aren’t allowed to operate during the coronavirus pandemic.

“Show the proof. Show that people are actually being harmed,” said attorney David Kallman, who is representing Manke.

The decision comes hours after Shiawassee County Sheriff Brian BeGole released a statement saying he would not enforce Whitmer’s executive orders.

Manke said the barbershop is his only source of income and he needed to reopen to survive. He has said three applications for unemployment benefits were not successful.

Manke, who has worked nearly 60 of his 77 years as a barber, said he hadn’t received a paycheck in six weeks before he decided to reopen last week.

DC Circuit Court Orders Sullivan to Respond to Flynn’s Appeal to Dismiss Case

The United States Court of Appeals for District of Columbia Circuit has ordered Judge Emmet Sullivan, who’s overseeing Lt. Gen. Michael Flynn’s case, to respond to his appeal to have him replaced and to dismiss the trial no later than June 1, according to a court document reviewed by SaraACarter.com.

Flynn filed a writ of mandamus to the court on Tuesday after Sullivan failed to comply with the Justice Department’s recommendation to dismiss the case in what Flynn’s defense attorney Sidney Powell described as politically motivated.

The D.C. Appeals Court has ‘ordered Judge Sullivan to respond to #Flynn Petition for Wirt of Mandamus by June 1,” tweeted Powell Thursday.

Supreme Court blocks House Dems’ efforts to get Mueller grand-jury info released

The Supreme Court temporarily denied a motion Wednesday from House Democrats to obtain grand-jury testimony and other documents from former Special Counsel Robert Mueller’s Russia investigation as they conduct what they’ve referred to as an “ongoing presidential impeachment investigation” into President Trump.

The court’s order kept undisclosed details from the probe into Russian interference in the 2016 presidential election out of the Democrats’ hands until at least early summer. Democrats have until June 1 to brief the court about whether the full case should be heard.

The Democrats had told the court Monday they were in an “ongoing presidential impeachment investigation” while arguing that Mueller’s now-completed Russia probe needed to be turned over as a result.

The [House Judiciary] Committee’s investigation did not cease with the conclusion of the impeachment trial,” the Democrats told the nine justices. “If this material reveals new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the articles adopted by the House, the committee will proceed accordingly — including, if necessary, by considering whether to recommend new articles of impeachment.”

They were seeking testimony, transcripts and exhibits to look into the possible influence over decisions made in the prosecutions of longtime Trump adviser Roger Stone and former National Security Adviser Michael Flynn.

Stone was sentenced to three years in prison for obstructing Congress and other charges. The Justice Department moved to drop its case against Flynn after serious questions were raised about the nature of the investigation that led to his guilty plea of lying to the FBI.

The Trump administration has been reluctant to turn over further documents related to Mueller’s probe to House Democrats. DOJ officials said they turned over all relevant information, citing grand-jury rules for not providing unredacted material.

The agency argued that federal guidelines protected the secrecy of grand-jury materials and that the exception allowing the disclosure “preliminary to or in connection with a judicial proceeding” didn’t apply, especially given Trump’s acquittal by the Senate in an impeachment trial earlier this year.

Democrats said the preliminary impeachment hearings in the House constituted a pending judicial proceeding.

School District’s Fight For Armed Teachers Heads To OH Supreme Court

Officials in an Ohio school district are appealing a decision that struck down its policy of arming volunteer, trained teachers to carry firearms in the classroom, and the decision by the Ohio Supreme Court will have an impact on dozens of districts across the state.

The Madison School District in Butler County, Ohio first adopted a policy allowing for teachers to volunteer for training that would allow them to carry on school grounds as a first line of defense against an active shooter, but shortly thereafter, several parents filed suit with the help of Michael Bloomberg’s anti-gun legal firm, Everytown Law. A district judge upheld the policy, but earlier this year the 12th Appellate Court in Ohio ruled that armed teachers must have the same training as police officers before they can carry. Now the school district is appealing the decision to the state Supreme Court, and the case could upend existing policy in districts across the state if the Supreme Court upholds the appellate court’s decision.

The district filed the appeal to the high court Thursday and several other school districts and the Ohio Attorney General’s Office have filed briefs in support. They said “it would be difficult to argue that this case does not present issues of public or great general interest.”

“This is more than a picayune squabble about how much training should be required when a school district exercises its right under the authorizing statute,” attorneys for the district wrote. “As a practical matter, this decision eliminates the ability of a local board of education to decide that the best way to protect students and staff from a hostile actor is by allowing some staff to carry concealed weapons on school grounds.”

The brief by attorneys for Madison Schools argues that the 12th Appellate Court panel erroneously read Ohio law as requiring armed staff to undergo law enforcement training, and Sean Maloney, an Ohio attorney who’s part of the FASTER Ohio organization that has trained thousands of educators in the state, told Bearing Arms back in April that the state legislature has actually approved funding in recent years for the FASTER program. If lawmakers are approving money to provide training for armed teachers, clearly the legislature must believe that these school districts have the ability to set their own training requirements.

The state’s Attorney General agrees, and says if teachers are required to undergo hundreds of hours of law enforcement training, it will simply result in a ban on armed school staff.

In addition to arguing Gabbard’s attorneys and the 12th District Court misinterpreted laws governing armed staff, Attorney General Dave Yost’s staff said there are practical reasons the decision must be overturned. He said it would cost the district $7,265 to send a staffer through peace officer training at Butler Tech. Plus the program is eight hours a day, five days a week, it would take a little over eighteen weeks to complete.

“The reality is that few if any teachers or school administrators can train to become police officers while maintaining their day jobs,” the brief reads. “Thus, as a practical matter, the Twelfth District’s erroneous decision strips schools of an effective means they have to defend schoolchildren from a school shooting.”

I suspect that Everytown Law is going to have their rear ends handed to them by the Ohio Supreme Court on this issue, but if for some reason the state’s highest court upholds the lower court’s decision, expect a quick response from the legislature in the form of a bill making it crystal clear that school districts have the right and power to establish policies and procedures for armed school staff.

Judge Tosses Out Gov. Kate Brown’s Coronavirus Restrictions in Oregon

SALEM, Ore. (AP) — A judge in rural Oregon on Monday tossed out statewide coronavirus restrictions imposed by Democratic Gov. Kate Brown, saying she didn’t seek the Legislature’s approval to extend the stay-at-home orders beyond a 28-day limit.

Baker County Circuit Judge Matthew Shirtcliff issued his opinion in response to a lawsuit filed earlier this month by 10 churches around Oregon that argued the state’s social-distancing directives were unconstitutional.

Brown said she would immediately seek an emergency review by the Oregon Supreme Court. Her attorneys asked the judge to stay his ruling until the high court could review the case, but he declined.

The Supreme Court ruled on a second amendment case this morning involving mental health. The court granted cert then instructed the lower court to dismiss as moot Beers v Barr, Attorney General.

What that means is this; The case is moot as a matter of law as the ATF certified Pennsylvania’s mental health rights restoration program and Beers’ rights have been restored and he has been able to purchase a firearm.
So, with no “live controversy” there is nothing to decide.

Here is a summary:

Beers was involuntarily committed to a psychiatric inpatient hospital in, 2005.
He had no further mental health issues, but was later denied a gun purchase, due to the mental health commitment.
He challenged federal law prohibiting the possession of firearms by anyone who has previously been adjudicated as mentally ill or committed to a mental institution, 18 U.S.C. 922(g)(4), arguing that, as applied to him, it violates the Second Amendment, claiming that, although he was previously involuntarily institutionalized, he has since been rehabilitated, which distinguishes his circumstances from those in the historically-barred class.

The Third Circuit rejected his arguments, noting that “the traditional justification for disarming mentally ill individuals was that they were considered dangerous to themselves and/or to the public at large. Courts are ill-equipped to determine whether any particular individual who was previously deemed mentally ill should have his firearm rights restore.”

The issue was that for anyone, previously mentally ill or convicted felon, to have their rights restored they must ask the Federal Government to restore those rights. However, congress hasn’t funded that program since the 1990’s. Instead, congress allows people to petition their state governments, but state mental heath programs must be certified by the feds and the Pennsylvania program hadn’t  been…yet.
In this case, Pennsylvania’s program was later certified, Beer’s rights were restored and later he actually had bought a gun.  So the case was moot.

But the Supreme’s didn’t just moot the case. They vacated the 3rd circuit’s ruling. “Courts are ill-equipped to determine whether any particular individual who was previously deemed mentally ill should have his firearm rights restore.

Now, that’s not a decision that means court are now ‘well-equipped’ it just means that the circuit’s ruling that court’s aren’t ‘well-equipped’ was trashed.
It’s not a clear win, but it did wipe out a bad circuit court ruling for RKBA.

FACING INJUNCTION, VENTURA COUNTY CAVES, RE-OPENS RETAIL GUN STORES

LOS ANGELES (May 15, 2020) — Just days before a hearing on a motion for preliminary injunction against orders banning gun stores from operating, lawyers for the County of Ventura, California, have filed documents with federal District Court Judge Consuelo B. Marshall saying the defendants, including the County, Sheriff Bill Ayub, and Dr. Robert Levin, the County’s Public Health Officer, have issued a new order to re-open firearm and ammunition dealers throughout the county.

Key filings in McDougall v. County of Ventura, including the County’s latest order, can be viewed or downloaded online at https://www.firearmspolicy.org/mcdougall.

Ronda N. Baldwin-Kennedy, an attorney for the plaintiffs, said that the County’s latest filing was a move to avoid losing the case early. “The defendants were obviously wrong on the law and had no constitutional support for their frivolous arguments, so it makes sense for them to change course now. We are delighted that this lawsuit moved the County to issue another order so that our clients and the people of Ventura County can exercise their constitutional rights.”

“The facts are that the Ventura County defendants made it a crime for individuals to patronize and operate firearm and ammunition retailers, and worse, these government officials banned travel for firearms and ammunition as ‘non-essential’. Those are precisely the kinds of actions our Constitution was designed to protect against, so we look forward to the next phase of litigation in this lawsuit,” said the plaintiffs’ co-counsel, attorney Raymond DiGuiseppe.

Ultimately, they have already admitted in court that they violated constitutionally enumerated rights,” noted FPC Director of Legal Strategy, Adam Kraut. “Especially because there may be a second or third wave of COVID-19, we will seek an injunction so that they cannot do this again, should cases spike.”

“This legal action was and remains about winning firearms freedom one lawsuit at a time,” explained SAF founder and Executive Vice President Alan M. Gottlieb. “The county choosing to re-open firearm and ammunition transactions rather than face our motion in court is a victory for gun owners and the Second Amendment.”

“Onerous California laws make access to operating gun stores a requirement to exercise your Second Amendment rights,” explained CGF Chairman Gene Hoffman. “The right to self-defense is only more important during times of crisis, so Ventura Health Officer Dr. Levin appropriately changed course and issued a new order. Just as we have required of governments around the nation, gun stores in Ventura are now able to re-open.”

The individuals in the case were backed and joined by Firearms Policy Coalition (FPC), Second Amendment Foundation (SAF), and California Gun Rights Foundation (CGF). Defendants in the case include Ventura County Sheriff William “Bill” Ayub, William T. Foley, the Director of the Ventura County Public Health Care Agency, Robert Levin, the Public Health Medical Director and Health Officer for Defendant County of Ventura, and the County of Ventura, California.

“County of Ventura officials were either outrageously ignorant or arrogant to think they had the authority to redline fundamental, individual rights,” said FPC President Brandon Combs. “They should remember that they are just local officials on a power trip, not dictators, and we will continue to seek justice for their abusive constitutional violations.”

Individual firearm or ammunition purchasers, retailers, and ranges affected by ‘stay-home’ or shutdown orders are encouraged to report their concerns and potential civil rights violations to FPC’s COVID-19 Issue Hotline at www.FPChotline.org.

Michigan Gov. Gretchen Whitmer Slapped With Lawsuit Over ‘Drastic’ Lockdown

Medical professionals and a patient in Michigan have filed a lawsuit against Democratic Gov. Gretchen Whitmer as the battles grow between her and those favoring relaxing the economic shutdown she has imposed in response to the coronavirus crisis.

Their lawsuit in federal court comes at a time when Ms. Whitmer continues to engage in a public spat with a 77-year-old barber, who has defied various orders and as of Thursday morning continued to cut hair at his Owosso shop.

The plaintiffs allege in federal court that Ms. Whitmer’s “drastic, unprecedented [and] unilateral executive actions” to cease economic activity that her office deemed nonessential were based on “grossly inaccurate” models that no longer apply and therefore should be lifted.

Federal Judge Blocks NC Governor’s Restrictions on Religious Services

A federal judge’s order Saturday allows North Carolina religious leaders to open their doors to their congregations, in spite of the governor’s warning that they risk spreading coronavirus.

Gov. Roy Cooper said he wouldn’t appeal the ruling blocking his restrictions on indoor religious services.

Saturday’s order pointed out that while only up to 10 people are allowed inside for religious services under Cooper’s stay-at-home order, that same standard doesn’t apply to other entities, such as businesses that are limited to 50% capacity, and funeral services, which allow up to 50 people.

Lawsuit Filed Over DOJ’s Second Amendment FOIA Foot-dragging

A lawsuit was filed Thursday by Stamboulieh Law, PLLC, in the United States District Court for the District of Columbia against the Department of Justice. The complaint, filed on behalf of this correspondent, was made necessary due to the DOJ’s failure to turn over records relating to a Freedom of Information Act (FOIA) request seeking documentation of department actions in defense of the Second Amendment.

That requested documentation included:

  • Any and all Statements of Interest filed in lawsuits dealing with and/or related to the Second Amendment to the United States Constitution; and
  • Any and all documents and records related to enforcement of the Second Amendment via 34 U.S.C. § 12601; and
  • Any and all documents and records related to deliberations or discussions, including emails, correspondence or memoranda, related to protecting and defending the Second Amendment.

The reason behind the FOIA request was because of a Statement of Interest representing the United States filed by the DOJ in a First Amendment case decrying preconditions to exercising that right.

“Such extreme preconditions to speech might not be out of place in Oceania, the fictional dystopian superstate in George Orwell’s Nineteen Eighty-Four,” the government’s statement asserted. “The First Amendment to the United States Constitution, however, ensures that preconditions like these have no place in the United States of America.”

“But ‘preconditions like these’ have a place in the United States of America when it comes to the right of the people to keep and bear arms?” this column asked in January. “So they’ll go after violations for other rights, but where the Second Amendment is concerned, state entities can do as they please without fear of federal checks? Even though infringements directly affect the ‘security of a free State’ by disarming the citizen Militia?”

The DOJ statement elaborated on its powers to correct infringements:

“The United States further states that the Attorney General enforces 34 U.S.C. § 12601 ‘which provides in relevant part that governmental authorities and their agents may not ‘engage in a pattern or practice by law enforcement officers… that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States’ and that the Attorney General ‘may in a civil action obtain the appropriate equitable and declaratory relief to eliminate the pattern or practice.’”

That’s appropriate. We hear the term “law enforcement” all the time. Considering the whole reason we have the Constitution in the first place (as articulated in its Preamble), we hear far too little about rights enforcement. Has DOJ ever issued statements or published documents related to the Second Amendment comparable to what it has done on the First? If the answer is “No,” what does that tell us?

It’s too bad the department that penned those fine words decrying preconditions doesn’t seem to want to let us hear more, at least as far as the right to keep and bear arms is concerned. Attorney General William Barr is certainly not shy about enforcing gun laws. So why does his DOJ appear so reluctant to enforce “gun rights”?

DOJ’s required-by-law time period to comply with the FOA request has expired, as has the extended time period it requested. Expecting the nation’s top law enforcement agency to comply with the nation’s laws hardly seems out of line, so this action has unfortunately been made necessary by their own inaction.

And if it was a matter of COVID-19 putting a delay on things, all they had to do was ask. We’re not trying to be unreasonable – it’s not like anybody is going to get rich on having court costs covered — and this litigation would not have been necessary in the first place had the DOJ simply done its job.

We seek information “We the People” have a right to know, and to expect an accounting of themselves by our supposed “public servants.” In response, government attorneys have instead gone on the offense with arrogant dismissals:

“In short, there is a tangled web of connections between a small cadre of firearms activists and their efforts to recover fees through largely unsuccessful FOIA litigation.”

I realize none of us are self-important beltway trough-feeders with virtually unlimited access to other people’s money, but we’ll see about that. We did OK forcing the government to cough up court-martial records on the Texas church shooter and we’re taking our chances here.

Our complaint follows:

 

The common consensus is that Scalia’s obiter dicta in Heller was because Kennedy, as the then ‘squish’, needed to be schmoozed by some ‘wriggle room’ language to get him to sign onto the decision.


The Supreme Court’s ‘Dangerous And Unusual’ Error Is Worse Than Michigan’s Rifle-Carrying Protestors
Contrary to the Supreme Court’s claim in District of Columbia v. Heller, the term ‘dangerous and unusual weapons’ has historically not been applied to weapons themselves, but to carrying them in an intimidating manner.

It is for defense against tyranny that the Second Amendment protects the right to keep and bear arms and, as the late Jeff Cooper observed in The Art Of The Rifle, “a citizenry armed with rifles simply cannot be tyrannized.” Cooper wrote, “there are more good men than evil, and while the latter cannot be persuaded to the path of righteousness by propaganda, they can certainly be corrected by good men with rifles.” Cooper, a Marine who, as a civilian, developed the modern technique of defensive pistol shooting, knew the difference between a rifle and a handgun.

Not everyone does. On April 30th, among the hundreds who protested in Lansing against Gov. Gretchen Whitmer’s lockdown order related to the most recent virus from communist China, a few carried rifles. They did so prematurely. Whatever may be said about Whitmer’s order, it does not constitute tyranny, as indicated by the facts that people were able to protest freely, Whitmer’s order is being challenged in court, and an effort to recall Whitmer is underway.

Nor does Whitmer’s order threaten to render people defenseless against tyranny, as did General Gage’s effort of April 19, 1775, as do semi-automatic firearm bans imposed by Democrats in several states, as did the Canadian Liberal Party’s recent ban on 1,400 makes and models of firearms, and as the Supreme Court’s decision in District of Columbia v. Heller (2008) may, for reasons explained herein.

The late baseball legend Yogi Berra once said “you can observe a lot by just watching.” Had the rifle-carriers remembered that wisdom, they would have noticed that the proverbial 99.9 percent of protestors—some of whom likely carried concealed handguns for self-defense as they would any other day—left their rifles at home.

Holding the solution inherent in the Second Amendment in reserve, the majority of protestors exercised rights protected by the U.S. constitution’s First Amendment and by the Michigan constitution’s analogous provision, “The people have the right peaceably to assemble, to consult for the common good, to instruct their representatives and to petition the government for redress of grievances.”

The majority of protestors understood intuitively what the Framers of our Bill of Rights did in part because of their familiarity with William Blackstone’s Commentaries On The Laws Of England, of which the section pertinent in this instance reads: “To vindicate (the “absolute” rights of personal security, personal liberty, and private property), when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence.”

Emphasis on the word “lastly.” The right to arms, protected by U.S. and Michigan constitutions, is the right that protects all other rights. However, it is to be exercised for that purpose as a last resort or in the most egregious of acute circumstances, not when there is no threat to life or serious threat to liberty, and certainly not when a lesser threat—such as a temporary lockdown order—can be dealt with through the normal political and legal processes.

Semi-Automatic Rifles Are Not ‘Dangerous And Unusual’
Though the few who carried rifles at the Lansing protest did so prematurely, they did not, as one TV talk show host claimed, threaten law enforcement officers or anyone else. An armed threat is illegal and would have resulted in an arrest, and no such arrest has been reported. The distinction between merely possessing a firearm and using it in a threatening manner should be obvious to everyone. However, in District of Columbia v. Heller (2008) the Supreme Court ignored the distinction to justify banning one type of firearm, a mistake Democrats hope the Court will repeat when it hears a case challenging a ban on semi-automatics.

Heller correctly observed that the Second Amendment protects an entirely fundamental, individual right “to possess and carry weapons in case of confrontation,” including “all instruments that constitute bearable arms,” and concluded, therefore, that the District’s ban on the possession of handguns was unconstitutional. However, as I explained here and here, the Court additionally opined, contradictorily and incorrectly, that the right to arms is limited to those that are “in common use” and, therefore, the federal law that prohibits the private possession of a fully-automatic firearm manufactured after May 19, 1986—an arguably uncommon type of firearm, in part because of that law—is not unconstitutional.

The Court arrived at that conclusion by mischaracterizing its decision in U.S. v. Miller (1939) and by claiming that the ban on fully-automatic firearms “is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”

However, as America’s leading Second Amendment historian, attorney Stephen Halbrook, explained in ‘Going Armed With Dangerous And Unusual Weapons To The Terror Of The People: How The Common Law Distinguished The Peaceable Keep And Bearing Of Arms, weapons have not generally been considered “dangerous and unusual” in and of themselves, nor if they have been carried in a peaceable manner, but rather if they have been carried in a manner apt to terrify people. As an early example, Halbrook noted, “it was an offense under the (English) Statute of Northampton (1328) to go or ride armed in a manner that creates an affray or terror to the (King’s) subjects. It was not an offense simply to carry arms in a peaceable manner.”

Courts in this country have held essentially the same view. For example, in State v. Huntley (1843), the Supreme Court of North Carolina explained, “the carrying of a gun, per se, constitutes no offense. For any lawful purpose . . . the citizen is at perfect liberty to carry his gun. It is the wicked purpose, and the mischievous result, which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm a peaceful people.”

Cases challenging state bans on semi-automatic firearms have been appealed to the Supreme Court of the United States, and Democrats working toward civilian disarmament hope to prevail in part by characterizing semi-automatics as “dangerous and unusual” even when they are kept and borne in a peaceful manner, and even though they are owned by millions of Americans.

In reviewing those bans, the Court should heed Justice Brett Kavanaugh’s recent suggestion that its errant rulings may warrant correction when they are “egregiously wrong” and have had “real-world effects on the citizenry.” Heller’s “dangerous and unusual” error surely fits that description.

Gun Group Sues NJ To Reopen Outdoor Shooting Ranges

1. This lawsuit challenges Defendants’ actions mandating and enforcing the closure of all outdoor firearm training ranges in the State. This action effectively bans typical, law-abiding
citizens in the State of New Jersey from exercising their constitutional right to practice with firearms to gain and maintain proficiency in firearms use.

2. Prohibiting training with firearms is akin to prohibiting the exercise of Second Amendment rights altogether. “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective.”

3. Despite the centrality of range-training to the exercise of Second Amendment rights, Governor Murphy has, since March 21, 2020, banned that activity throughout the State of New Jersey with the stroke of a pen, effectively preventing New Jersey’s citizens from obtaining or maintaining their proficiency in firearms use. Governor Murphy’s ban is flatly contrary to the Second Amendment.

4. The existence of the COVID-19 pandemic does not justify Governor Murphy’s actions. Plaintiffs recognize that the pandemic presents significant and urgent problems for state officials seeking to ensure the safety and well-being of citizens of New Jersey. But the State’s untenable regulatory choices refute any assertion that COVID-19 requires New Jersey to shut down all outdoor gun ranges…………….

I’m sorry, Congresscritters, there is no ‘reform’ possible that will guarantee that another administration as corrupt as Obama’s was will not be able to abuse the power this court has. A-B-O-L-I-S-H  It, now.


FISA reform to hit the Senate floor: Here’s what to know

bipartisan bill passed by the House in March that seeks to reform the secret Foreign Intelligence Surveillance Act (FISA) court process will hit the Senate floor Tuesday.

The FISC will face more oversight 

The new legislation requires the attorney general to personally sign off on surveilling government officials.

Attorney General Bill Barr said in March he supported the passage of the FISA bill, saying it “will protect against abuse and misuse in the future.”

The Foreign Intelligence Surveillance Court (FISC) was created for use by federal law enforcement and intelligence agencies to request surveillance warrants against foreign spies inside the U.S.

The FBI obtained a FISA warrant to surveil former Trump campaign adviser Carter, accused by the Steele dossier of having ties to Russia. A Justice Department assessment released by the FISC in January revealed that at least two of the FBI’s surveillance applications to secretly monitor former Trump campaign adviser Carter Page lacked probable cause.

Horowitz’s FISA report revealed there were at least 17 “significant inaccuracies and omissions” in the Page FISA applications.

The June 2017 Page FISA warrant renewal, which was one of two deemed invalid by the DOJ, was approved by then-Acting FBI Director (and now CNN contributor) Andrew McCabe, as well as former Deputy Attorney General Rod Rosenstein. The April 2017 warrant renewal was approved by then-FBI Director James Comey.

The bill will also expand when FISA judges should appoint an outsider to critique the government’s position. Currently, judges are only to do so when addressing a novel and significant question of interpreting surveillance law.

Section 215 extended but reined in 

A controversial portion of the FBI’s surveillance powers, known as Section 215, gave the government broad powers to demand “business records” from companies in the name of national security investigations.

The new legislation allows obtaining business records to continue but bans using a business records order to collect information like cell phone data that in a criminal investigation requires a warrant, which has a higher legal standard.

The National Security Agency (NSA) previously used Section 215 to collect bulk phone data records, which was highly controversial. In recent years, the bulk metadata collection was outlawed and a narrowly tailored program was allowed, but now that program would be officially ended under the legislation.

Some surveillance measures will be reauthorized

The House bill reauthorizes a program dealing with “roving” wiretaps, permitting surveillance on subjects even after they’ve changed phones.

It will also reauthorize a program allowing for the surveillance of “lone wolf” suspects, those who have no connection to a known terrorist group.

Stricter penalties for abusing the FISC process for political purposes

False declarations before FISC or other FISA abuses, including engaging in electronic surveillance without authorization, disclosing or using information obtained by e-surveillance without authorization, will now have a penalty of up to eight years in prison, up from five.

The bill has a section stipulating the penalty also applies to “an employee, officer, or contractor of the United States Government [who] intentionally discloses an application, or classified information contained therein, for an order under any title of this Act to any person not entitled to receive classified information.”

The bill has bipartisan support, but some vocal opposition 

USA Freedom Reauthorization Act passed by a 278-136 vote in House. It brought together the staunchest President Trump supporters like Reps. Devin Nunes, R-Calif., and Jim Jordan, R-Ohio, and some of his fiercest critics like Reps. Jerrold Nadler, D-N.Y., and Adam Schiff, D-Calif., who wanted improvements to protect Americans’ privacy and safeguard against surveillance abuses.

Some senators are undecided on the bill, and others oppose it. Sen. Rand Paul, R-Ky., opposes the bill, but has proposed an amendment. “None of the reforms prevent secret FISA court from abusing the rights of Americans. None of the reforms prevent a President of either party from a politically motivated investigation. Big Disappointment!” Paul tweeted in March. Sen. Mike Lee, R-Utah, called on the president to veto the bill if it passes as it stands. He too has proposed an amendment.

The Senate will debate three amendments to the bill: the Paul amendment advocating for the privacy rights of Americans, the Lee-Leahy amendment focused on Amicus reforms and exculpatory evidence that would strengthen the role of outside advisors and the Daines-Wyden amendment that would prevent law enforcement from obtaining Internet browsing and search data history.

Gun group fires lawsuit at Nikki Fried over concealed permits
[Florida] Agriculture Commissioner called Young Americans for Liberty ‘obscure right-wing fringe’

The gun-rights group Young Americans for Liberty sued Agriculture Commissioner Nikki Fried claiming she’s depriving Floridians of their rights. The suit aims to lift a suspension of online concealed weapons permit applications.

“Nikki Fried thinks that your right to self-defense is negotiable. She’s wrong,” said Cliff Maloney, YAL President. “This is a blatant disregard for the rule of law, and I will not idly sit by while Nikki Fried uses this crisis to enact her gun-grabbing agenda. I encourage all Americans to join this fight for our rights. We either believe in liberty in times of crisis or we do not believe in liberty at all.”……….

“Commissioner Fried has not restricted processing of concealed weapons license applications; on the contrary, our department has processed more than 54,000 concealed weapons license applications since March 1, with an average review time of just 1 to 2 days,” said Franco Ripple, Fried’s Communications Director.

“Despite misinformation from special interest groups, we are continuing to process both new applications and renewals timely, and Commissioner Fried has also issued emergency orders extending expiring licenses by 90 days.”

Maloney’s group threatened litigation over the issue last month, saying the lone Democrat on Florida’s Cabinet was stalling with applications. The activist criticized her then for finding time to hold fundraisers but not to find a workaround on the fingerprint issue with online users.

Fried has since cited the potential lawsuit in a mass email to supporters. She suggested at the time she was simply following procedures that fell by the wayside with past Agriculture Commissioners. Former Commissioner Adam Putnam’s office notoriously stopped conducting proper background checks on such permits for a year because of a technical issue.

Supreme Court declines to lift Pennsylvania order closing non-essential businesses

The Supreme Court on Wednesday declined to lift an executive order by Pennsylvania Gov. Tom Wolf that mandated all non-essential business close in order to prevent the spread of COVID-19.

A conservative political action committee and a group of businesses petitioned the Supreme Court to remove the executive order, saying it “has and is continuing to cause irreparable harm.”

The Supreme Court denied the request without comment and there were no known dissents.

Wolf’s order mandated all non-life-sustaining businesses temporarily close while those that remain open were ordered to comply with social distancing standards.

The businesses filed an emergency request with the Pennsylvania Supreme Court, alleging the order was unconstitutional.

The state court denied the request, leading the businesses to call on the U.S. Supreme Court to review the lower court’s decision. The plaintiffs said the order “permits the continued closure of petitioners and tens of thousands of other businesses across Pennsylvania and as such constitutes severe, immediate and ongoing deprivation of their rights under the U.S. Constitution.”

Pennsylvania’s attorney general, Josh Shapiro, filed a response to the justices earlier this week urging the Supreme Court not to intervene.

“Applicants seek to upend the status quo and force Pennsylvania to prematurely reopen all businesses locations, regardless of public health data and contrary to the phased reopening currently underway based on that data,” Shapiro wrote.

The court ruled along ideological (that is, political) lines


Court Denies Trump’s Bid To Block Immigrants Who Can’t Afford Health Care

An appeals court on Monday blocked the Trump administration’s request to allow for a ban on immigrants who don’t have health care or otherwise cannot afford health care expenses.

The Ninth Circuit Court of Appeals rejected the White House’s motion for a stay of a court order that prevents the administration from enforcing its proclamation. The divided panel found that the administration does not have “limitless power” to deny immigrants based on their economic standing.

“[T]he government’s claim of harm in the form of costs to healthcare providers and taxpayers by uninsured immigrants was not supported by the record, and the court was not required to accept the Proclamation’s conclusory findings as true,” the 97-page ruling stated.

The appeals panel went on to say that the administration failed to demonstrate irreparable harm absent a stay and that harm is “purely monetary.”

As for the order itself, the panel deemed that the plaintiffs would likely succeed in their claim that the order conflicts with the Violence Against Women Act, the Immigration and Nationality Act (INA), Obamacare, and the “public charge” provision within the INA.

The Trump administration first introduced the directive — Presidential Proclamation No. 9945, or the “Suspension of Entry of Immigrants Who Will Financially Burden the United States Health Care System” — in October 2019. The order would’ve essentially prohibited the entry of any immigrants applying for visas unless they prove they can obtain health insurance within 30 days of entering the U.S. or otherwise indicate they can afford their own medical care.

However, the order was immediately challenged in court by opponents of the president’s immigration agenda………….

The panel was divided along ideological lines.

Chief Judge Sidney Thomas and Judge Marsha Berzon, both appointees of President Bill Clinton, wrote the majority opinion, and Judge Daniel Bress, a Trump appointee, wrote the dissent.