Category: Rights

Increasing Defendant’s Sentence Based on Lawful Gun Possession Is Forbidden

From Nelson v. State, decided today by the Florida Court of Appeal, in an opinion by Judge Jordan Pratt, joined by Judges Eric Eisnaugle and John Harris:

This appeal presents the question whether a trial court may rely on a defendant’s lawful firearm possession in sentencing him. We conclude that it may not. Courts deprive defendants of due process when they rely on uncharged and unproven conduct during sentencing, and this principle holds especially true where the uncharged conduct is the lawful exercise of a constitutional right….

Defendant had been convicted of selling marijuana and related charges. Then,

At the sentencing hearing, the court entertained argument from both Nelson and the State, with Nelson urging the court to impose 36 months, and the State urging the court to impose 87.23 months. During its argument, the State presented two photos of firearms found in Nelson’s home, noting that “a possible murder a couple of months ago that was probably related to the sale of cannabis” had occurred in Citrus County. However, the State did not argue that Nelson himself was in any way connected to the murder, and it conceded that it did not bring any firearm-related charges against him.

After hearing a brief rebuttal argument from Nelson’s counsel, the court announced his sentence. The court applied the discretionary trafficking enhancement and sentenced Nelson to 87.23 months of incarceration on counts 1 and 2 (to run concurrently).

Immediately after pronouncing this sentence, the court stated: “And what hurts you the most, Mr. Nelson, was … the photographs of the guns. They did not charge with those. I did not take that into account; but why you did this, I do not know.” The court then imposed three-year sentences on the remaining felony counts, with the sentences to run concurrently with the concurrent 87.23-month sentences….

Impermissible, the court said:

Trial courts generally enjoy wide discretion in sentencing convicted defendants within the range of sentences established by the Legislature. However, “an exception exists, when the trial court considers constitutionally impermissible factors in imposing a sentence.”

Reliance on constitutionally impermissible factors deprives a defendant of due process and therefore constitutes fundamental error. As relevant here, “[a] trial court’s consideration of unsubstantiated allegations of misconduct in sentencing constitutes a due process violation.”

In short, just as “[d]ue process prohibits an individual from being convicted of an uncharged crime,” it also prohibits him from being sentenced for one based on “unsubstantiated allegations.” [The court cites various Florida state precedents throughout this paragraph. -EV]

This basic principle of due process carries no less force when the uncharged conduct is the lawful exercise of a constitutional right. Both the Florida and federal constitutions guarantee the fundamental, preexisting right to keep and bear arms….

At sentencing, the State presented no evidence to establish that Nelson’s possession of firearms within his home contravened the law. The State did not claim that any law prohibited Nelson from possessing firearms at the time of his arrest, much less point to such a law that would pass muster under the Second Amendment. Nor did it charge him with any firearm-related offense.

The State introduced no evidence establishing that Nelson possessed his firearms within the home to further his illicit activities or for any other unlawful purpose. Indeed, at sentencing, the State affirmatively conceded that it had not charged Nelson with armed trafficking, as the firearms were not found near the cannabis. Moreover, Nelson had no prior convictions.

In short, not only did the State decline to charge Nelson with a firearm-related offense; the State failed to argue, much less establish by evidence, that his firearm possession constituted anything other than the lawful exercise of his constitutional right to keep and bear arms “in defense of hearth and home.” …

The court’s statements indicate that it may have relied upon Nelson’s lawful firearm possession in imposing his sentence, and the State has failed to carry its burden to show otherwise. By declaring that “the photographs of the guns” were “[w]hat hurts [Nelson] most,” the court suggested that it weighed Nelson’s lawful firearm possession against him.

At best, the State [in arguing that the court didn’t consider the lawful firearms possession] has shown that the court made two contradictory statements: one that it took the firearm possession into account, and one that it did not. That showing does not suffice. “[W]e cannot ignore the nature and extent of the trial court’s discussion of irrelevant and impermissible factors during the sentencing hearing.”

“Because the court’s comments could reasonably be construed as basing the sentence, at least in part, [on impermissible factors], and because we cannot say that the sentence would have been the same without the court’s impermissible consideration of [that factor],” we must “vacate appellant’s sentence and remand for resentencing before a different judge.”

If due process prohibits a trial court from relying on “uncharged and unproven crimes” when pronouncing a sentence, then, a fortiori, it prohibits a trial court from relying on the lawful exercise of a constitutional right. The State has failed to carry its burden to show that the sentencing court did not rely, at least in part, on Nelson’s lawful exercise of his constitutional right to keep and bear arms.

Accordingly, we vacate Nelson’s sentences, remand these cases for resentencing, and direct the Chief Judge of the Circuit Court to reassign the cases to a different judge for the resentencing.

Victoria E. Hatfield O’Brien Hatfield Reese, P.A.) represents Nelson.

The essence of constitutionalism in a democracy is not merely to shape and condition the nature of majorities, but also to stipulate that certain things are impermissible, no matter how large and fervent a majority might want them.
— George Will

The Supreme Court weighed in on that many 80 ago:
West Virginia State Board of Education v. Barnette

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Nebraska Bill Would Ban State Enforcement of Most Federal Gun Control

LINCOLN, Neb. (Jan. 3, 2024) – A Nebraska bill would end state and local enforcement of many federal acts that infringe on the right to keep and bear arms within the state.

Sen. Steve Halloran introduced Legislature Bill 194 (LB194) last year and it has been carried over for the 2024 session. Titled the “Second Amendment Preservation Act,” the bill would prohibit state agencies and law enforcement officers from willfully enforcing a federal statute, order, rule, or regulation purporting to regulate a firearm, a firearm accessory, or firearm ammunition that “does not exist under the laws of this state,” except to comply with an order of a court.

The proposed law would also bar any Nebraska government entity from utilizing assets, state funds, or funds allocated by the state to engage in any activity that aids a federal agency, federal agent, or corporation providing services to the federal government in the enforcement of the same.

State or local agents guilty of violating the act would be subject to civil penalties of up to $3,000 on the first offense and class I misdemeanor charges on a second offense. Local governments or agencies found guilty of violating the law would lose grant funds in the following fiscal year.

LB194 is similar to a law passed in Arizona during the 2021 legislative session.

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Continued Massacres of Christians in Nigeria Ensured by Citizen Disarmament

“A never-ending massacre of Christians being ‘killed for sport’ is reportedly happening in Nigeria, yet the world appears to be largely deaf to the matter,” Fox News reported Saturday. “More than 52,000 Christians ‘have been butchered or hacked to death for being Christians’ since 2009 in Nigeria, according to Intersociety, a civil society group based in Onitsha.”

“Christians are killed for sport, especially Christian children,” Rev. Johnnie Moore, a former commissioner for the United States Commission on International Religious Freedom, and president of the Congress of Christian Leaders told Fox. “Entire villages are burnt and pillaged. Thousands of churches have been destroyed. Children and women are hunted.

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Left-wing activists sue to change public policy where their candidates cannot win

EXCLUSIVE — Left-wing activist organizations are at the forefront of shaping public policy through lawsuits in places where their aligned political candidates are unlikely to win.

A new Alliance for Consumers report obtained by the Washington Examiner shows how groups such as the anti-gun Everytown for Gun Safety or climate change activist group EarthRights International sue companies to advance their policy preferences to circumvent the legislative process.

These organizations often represent local governments in “public nuisance” lawsuits, which are used to claim that the public is generally harmed by the existence of something, such as tobacco, in order to obtain favorable public policy outcomes and massive settlements.

“Public nuisance lawsuits have almost nothing to do with helping consumers, but a lot to do with pushing a left-wing agenda,” Alliance for Consumers executive director O.H. Skinner told the Washington Examiner. “There’s been growing attention to the political donations that these lawsuits help drive toward left-wing candidates.

“More attention needs to be paid to the public interest groups and shadowy nonprofit funding networks, like Arabella Advisors, who staff, finance, and promote these cases,” Skinner continued. “That is what we have done with this report, and we think it illustrates clearly what these lawsuits are really about and why they are a threat.”

The report, which Alliance for Consumers sent to every Republican governor in America on Wednesday, highlights several organizations involved with public nuisance claims that are aimed at altering or circumventing the policy decisions made by those elected to decide them.

Everytown for Gun Safety, a group founded by former New York City mayor Michael Bloomberg to limit gun rights, has been active in trying to change public policy on guns, including by using its Victory Fund to start a “Demand a Seat” initiative to get its trained activists to run for political office. This year, the group boasted that 17 of its candidates won elections in Virginia alone.

The group launched Everytown Law to focus on being “the largest and most experienced team of litigators in the country dedicated to advancing gun safety in the courts and through the civil and criminal justice systems.”

Everytown has been active in filing lawsuits against gun manufacturers for “contributing to the violent crime epidemic,” as it did when representing Kansas City, Missouri, in a public nuisance complaint in 2020 against the Nevada-based Jimenez Arms and other manufacturers and distributors.

It also represented the city of Chicago when it sued an Indiana gun store because its sales of firearms have “created, exacerbated, and sustained a public nuisance that causes harm to the health, safety, and well-being of Chicago residents.”

The legal wing of the activist organization also trains government lawyers on how to defend limitations to the Second Amendment, and it files direct challenges to laws protecting the right to own and use guns, such as Stand Your Ground laws, which offer some protection for the use of lethal force in self-defense.

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GIBBON, GUNS AND GOVERNMENT

In the course of writing Decline and Fall of the Roman Empire, Edward Gibbon encountered Mohammed, who pursued the Jews with “implacable hatred” to the end of his life. The historian also called out Theodoric the Great, the Ostrogoth king who invaded Italy in 488 AD and “condescended to disarm the unwarlike natives of Italy, interdicting all weapons of offence, and excepting only a small knife for domestic use.” Call it an early display of the totalitarian mindset.

Wherever they hold sway, modern totalitarians disarm the people of firearms and ammunition. For details, see Gun Control in the Third Reich: Disarming Jews and “Enemies of the State,” by Stephen Halbrook. Hitler’s National Socialists used the registration records of the Weimar Republic to identify and disarm gun owners.

As Halbrook shows in Gun Control in Nazi-Occupied France: Tyranny and Resistance, the Nazis confiscated all firearms, even antique hunting rifles. That left the people vulnerable to wholesale slaughter. On June 10, 1944, four days after D-Day, troops of the 4th SS Panzer Regiment surrounded the village of Oradour-sur-Glane in central France. The attackers killed 245 women and 207 children, including six below the age of six months.

The 196 men killed included seven Jewish refugees from other parts of France. Of the 648 people murdered in the village, only 50 could be identified. The Nazis locked the women and children in the village church, shot indiscriminately, and set the victims on fire. The rest of the village was then looted and set ablaze.

As the late P.J. O’Rourke explained, this is what happens when those with all the power have all the guns. And to paraphrase inspector Claude Lebel (Michael Lonsdale) in The Day of the Jackal, be in no doubt that this is what the Biden Junta wants.

At every mass shooting, the default government response is to blame guns and make it more difficult for law-abiding citizens to exercise their constitutional right to keep and bear arms. This does not apply, however, to Muslim jihadists like “Soldier of Allah” Maj. Nidal Hasan. At Ford Hood in 2009 Hasan gunned down 13 unarmed American soldiers, including Pvt. Francheska Velez, who was pregnant. Hasan wounded more than 30 others, including Sgt. Alonzo Lunsford, who took seven bullets from the jihadist.

According to the composite character president David Garrow described in Rising Star: The Making of Barack Obama, this was “workplace violence,” not terrorism or even “gun violence,” and the mass murderer Hasan got better medical treatment than his victims. In 2014, Lunsford sought to explain his plight to the president, who declined to meet with him. The composite character did not proclaim Islamic terrorist attacks in 2015 at San Bernardino (14 dead) and Orlando in 2016, (49 dead) as cases of “gun violence.”

Of all the various forms of government in the world, wrote Gibbon, “an hereditary monarchy seems to present the fairest scope for ridicule.” The buffoonish Biden channels Obama, but the Delaware Democrat shapes up worse. On September 1, 2022, backdropped in red light with Marines at the ready, Biden targeted those who want the nation to be great as the primary threat to America. Biden’s FBI openly follows suit and in August the FBI killed Craig Robertson, a 75-year-old woodworker, for threats he had allegedly posted online.

Recall the Ruby Ridge siege of 1992, when the FBI deployed massive military force against a single family, and FBI sniper Lon Horiuchi shot dead Vicki Weaver as she held her infant daughter. That case prompted Senate hearings, but so far nothing on Robertson. Biden’s FBI shoots first and avoids questions later, so an escalation of deadly violence is not out of the question. Christmas 2023 may well be joyous, but 2024 shapes up as the year of living dangerously.

The Great Legal War Over Your Freedom

Since the U.S. Supreme Court decided New York State Rifle & Pistol Association v. Bruen in 2022, the lower courts have been either trying to apply, or to resist, its directive to decide the validity of restrictions on the basis of the text of the Second Amendment and historical analogues from the time of the Founding. According to the ruling, an activity is presumed to be protected if it involves keeping and bearing arms by the people. The burden is then on the government to find historical precedents to show that a restriction is part of the nation’s history and tradition.

The Fifth Circuit Court of Appeals applied Bruen to the federal ban on gun possession by a person subject to a domestic violence restraining order (DVRO) and found it to violate the Second Amendment. State DVROs are often issued with little pretense of an adversary hearing or are mutually agreed upon in divorces without knowledge that it evokes a federal gun ban.

The Supreme Court agreed to hear the case, U.S. v. Rahimi, and a barrage of amicus briefs have been filed on both sides. Mr. Rahimi faces several state charges involving actual violence, dwarfing the federal possession charge. The amicus brief of the National Rifle Association put it this way: “Rahimi should not only lose his Second Amendment liberties, but he should also lose all of his liberties—if the allegations against him are ultimately proven true with sufficient due process. But constitutional safeguards cannot be set aside to obtain those ends.”

Consider the supposed historical analogues cited by Biden’s Justice Department and its amici—discriminatory laws disarming Catholics, slaves and “tramps”; confiscation of arms by oppressive British monarchs and by our own patriots in the American Revolution (there was a war going on, after all); and wholly irrelevant laws against gun sales to children and intoxicated persons. The Court heard oral arguments in the case on Nov. 7, 2023.

The Third Circuit, in Range v. Merrick Garland, held the federal ban on gun possession by felons to be unconstitutional as applied to a person convicted of a minor, non-violent offense.  Again, no laws in the Founding era disarmed persons who were not dangerous. The government is asking the Supreme Court to hear that case after it decides Rahimi.

When it decided Bruen, the Supreme Court directed the Fourth Circuit to reconsider its upholding of Maryland’s “assault weapon” ban in Bianchi v. Frosh. That court had held that ordinary AR-15 semi-automatic rifles are not really different from machineguns and are “weapons of war most useful in military service,” even though no military force in the world issues them as service rifles.

The Fourth Circuit got right on it, holding its oral argument on Dec. 6, 2022. A year later, crickets. Still no decision. Is it really so hard to apply Bruen’s simple tests, or would the court not like the result?

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Barrasso: The Second Amendment is Freedom’s Safeguard

WASHINGTON D.C. — U.S. Senator John Barrasso (R-WY), chairman of the Senate Republican Conference, today blocked an attempt by Senate Majority Leader Chuck Schumer to ban so-called “assault weapons.” Senator Barrasso spoke on the Senate floor on the need protect Americans’ Second Amendment rights.

“Almost every single page of this bill adds new restrictions and new burdens on people who follow the law. It tells you what you can buy and what you cannot buy. It bans more than 205 popular rifles, shotguns, and pistols by name. I oppose any policies that jeopardize the Second Amendment rights of the people of Wyoming and across the country,” Sen. John Barrasso Wednesday on Senate Floor.

Excerpts from Sen. Barrasso’s remarks follow:

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Judge Declares Most of California’s New ‘Gun-Free Zones’ Can’t Be Enforced

U.S. District Judge Roger Benitez isn’t the only Second Amendment “saint” in California who miraculously adheres to the text, tradition, and history of the right to keep and bear arms. Judge Cormac Carney has delivered a stern rebuke of his own to state lawmakers who imposed a host of new “sensitive places” where lawful concealed carry is forbidden, granting an injunction against their enforcement just a little more than a week before the state’s carry-killer legislation known as SB 2 is set to take effect.

In a 43-page opinion handed down late Wednesday, Carney described SB 2 as “repugnant to the Second Amendment, and openly defiant of the Supreme Court.” The law “turns nearly every public place in California into a ‘sensitive place,’” according to Carney, “effectively abolishing the Second Amendment rights of law-abiding and exceptionally qualified citizens to be armed and to defend themselves in public.”

Carney ruled in favor of the gun owners and Second Amendment organizations who brought the May v. Bonta and Carralerro v. Bonta litigation on every one of their challenges; granting an injunction against the following “gun-free zones” established under SB 2:

  • Hospitals, mental health facilities, nursing homes, medical offices, urgent care facilities, and other places where medical services are customarily provided,
  • Public transportation
  • Establishments where “intoxicating liquor” is sold for consumption on the premises
  • Public gatherings and special events
  • Playgrounds and private youth centers
  • Parks and athletic facilities
  • Department of Parks and Recreation and Department of Fish and Wildlife property, except hunting areas,
  • Casinos and gambling establishments
  • Public libraries, zoos, and museums
  • Places of worship
  • Financial institutions
  • Privately-owned businesses open to the public
  • Parking areas (including those adjacent to “sensitive places” not challenged by the plaintiffs)

This is the post-Bruen carry decision that gun owners have been waiting for. Carney didn’t try to play philosophical games or stretch historical analogues to the point of silliness in order to uphold these “gun-free zones.” Instead, he did exactly what the Supreme Court has instructed judges to do: look at the text of the Second Amendment, as well as the history and tradition of the right to keep and bear arms when determining whether a modern gun control restriction fits within that national tradition.

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Bill to Ban Gun CAD Files Nears Vote In The Senate

A bill to ban computer-aided design (CAD) gun file sharing could be voted on in the United States Senate any day.

The bill reads: “It shall be unlawful for any person to intentionally distribute, over the internet or by means of the World Wide Web, digital instructions in the form of Computer Aided Design files or other code that can automatically program a 3-dimensional printer or similar device to produce a firearm or complete a firearm from an unfinished frame or receiver.”

Senate Bill 1819 is known as the 3D Printed Gun Safety Act and was introduced by Senator Edward Markey (D-MA) and co-sponsored by 28 other Democrats, including Chuck Schumer (D-NY), Cory Booker (D-NJ), Chris Murphy (D-CT), and the late Dianne Feinstein (D-CA). It also has support from most of the other Democrats in the Senate.

“Let me be clear: We aren’t just talking about water pistols here,” said Co-sponsor Senate Kristin Gillibrand (D-NY). “We’re talking about real, fully operational semi-automatic firearms like AR-15 rifles and Beretta M9 handguns. Because many of the 3D printed guns are made of plastic, they can bypass metal detectors commonly used at…secure public areas. People are going into these public spaces and using these ghost guns to commit crimes, and law enforcement is finding it more and more difficult to stop them.”

The bill will prevent the sharing of gun CAD, which is hosted on sites such as Defense Distributed’s Def CAD website. The CAD files let anyone with a 3D printer print a firearm receiver. The affordability of 3D Printers that can be purchased for as little as a few hundred dollars has led to an explosion of DIY gun builders that design and print firearms. The 3D print revolution has made gun laws obsolete.

Due to the lack of action in Congress, President Joe Biden ordered the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to issue a rule banning 80% kits and changed the classification of unfinished frames to be considered firearms. The ATF rule change did not address the 3D printing of guns.

Some states have proposed radical laws to try to cut down on the printing of firearms. New York has proposed a law that would require background checks to buy a 3D printer. Anyone the government prohibits from owning firearms would also be prevented from acquiring a 3D printer.

The proposed federal law raises constitutional questions beyond just the Second Amendment. Many believe that computer code is protected speech, and this law would run afoul of the First Amendment. Many books and resources exist that teach people how to make drugs and bombs, like the Anarchist Cookbook. Some in the gun community reason if that is protected by freedom of speech, then computer code that allows someone to make a gun must also be covered by the First Amendment.

A companion bill in the House of Representatives is currently in the House Judiciary. The House bill is expected to fail due to a lack of support from Republicans. It is doubtful that the Senate bill will have enough votes for a supermajority, but the Democrats have been able to pressure the Republicans into passing anti-gun bills such as the Bi-Partisan Safer Communities Act (BSCA).

Now New York demonstrates link between Second Amendment, other liberties

Last Tuesday, we criticized developments in Flagstaff, Arizona, where local officials seem to be allergic to the idea that gun shop owners, gun owners and people who champion the Second Amendment deserve to be afforded equality before the law and before the practices of the government entrusted to serve the interests of all its constituents.

Instead, leaders of Flagstaff were walking away from advertising revenue for displays at the city’s airport because of fears the courts might expect them to allow a gun shop the same opportunity to advertise as any other business.

Unfortunately a similar case has popped up closer to home — the American Civil Liberties Union will represent the National Rifle Association in a lawsuit contesting New York state’s Department of Financial Services is targeting the lobbying group with a campaign of harassment, discouraging banks and insurers from doing business with the NRA to punish the NRA for its advocacy.

“The government can’t blacklist an advocacy group because of its viewpoint,” the ACLU correctly notes, according to an article in The Hill.com, a Washington, D.C.-based newspaper.

As we alluded to about a week ago, many advocates for the Second Amendment’s right to keep and bear arms explicitly cite fears that without an armed populace, the government will trample the broader array of rights individuals are given by God.

We understand many people feel these fears are overblown, perhaps even paranoid.

But we also cannot think of any way advocates could make the case that these fears are not overblown and are in fact quite reasonable better themselves than what the governments of Flagstaff and now New York state are doing.

In Flagstaff and throughout New York state, people who presumably wish the broader public to believe that the debate over the right to own firearms is about public safety and not about liberty are conspiring to deny their skeptics the right to advertise in a forum available to other constituents and to orchestrate punishment for exercising First Amendment rights in tandem with the banking and insurance sectors.

As much as some people may wish we could cordon off the Second Amendment from the more comprehensive need to preserve individual right, it is the very actions of those people who demonstrate that the violation of the Second Amendment will require violations of nearly all of our cherished, God-given liberties enshrined in the Bill of Rights.

Benjamin Franklin, on Monday, September 17, 1787, the last day of the Constitutional Convention.

“ I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise.

It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error.

Steele, a Protestant, in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain french lady, who in a dispute with her sister, said “I don’t know how it happens, Sister but I meet with no body but myself, that’s always in the right — Il n’y a que moi qui a toujours raison.”

In these sentiments, Sir, I agree to this Constitution, with all its faults, if they are such; because I think a General Government necessary for us, and there is no form of government, but what may be a blessing to the people if well administered; and believe further, that this is likely to be well administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other. …..”

Spike Cohen:
Ben Franklin straight up warned us, at the Constitutional Convention, that this government will end in despotism if we tolerate it……. And here we are.

It’s Not Just the Second Amendment Anti-Gunners Oppose

I’ve long argued that our gun rights were included in the Bill of Rights as an insurance policy, one meant to make absolutely certain we could fight back against tyranny if our free speech or freedom to worship as we choose were to be stripped from us.

And, to be fair, we do see more restrictions of freedom of speech and things of that sort in countries that have already eliminated people’s ability to arm themselves effectively.

Here in the US, our anti-gun crowd says they respect our right to keep and bear arms, they just want some “common sense” gun control.

That’s hard to believe when it’s clear they don’t even respect freedom of speech.

Two gun control groups on Wednesday came out in favor of moderating “hate speech” on social media in a brief filed with the Supreme Court in a pending First Amendment case, alleging that it poses “a real-world threat to our democracy.”

Giffords Law Center and Brady Center to Prevent Gun Violence filed an amicus brief in a challenge brought by NetChoice against Texas and Florida laws intended to prevent viewpoint censorship online. The groups didn’t speak to the constitutionality of the laws but wrote to warn the justices that social media companies “have a role to play” in protecting individuals from “hate-motivated gun violence.”

“Across social media platforms, hate speech has been tolerated, fostered, and even promoted,” they wrote. “In a time of increasing political strife, online hate speech presents a real-world threat to our democracy and to the lives of every human being in America.”

The brief notes Americans report “disturbingly high levels of online harassment and hate speech targeting their race, ethnicity, religion, gender identity, sexual orientation, or disability.”

The brief later argues that hate speech can “chill” free speech.

“Social media companies have resisted regulation or content moderation on the theory that such efforts would stifle the marketplace of ideas and infringe the free-speech rights of their users,” they wrote. “And yet, by fostering and promoting hate speech across their platforms, social media companies have in fact often chilled free speech and other protected First Amendment activities, both online and in the real world.”

The problem with this, of course, is that these groups routinely pretend that opposition to their gun control schemes is racist, thus making it entirely possible to argue that opposition to gun control is, in fact, a type of hate speech.

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The FBI Stole Millions From Individuals Who Were Not Charged With a Crime – the Victims Are Suing

An FBI raid on private safe deposit boxes has triggered a significant legal battle over civil asset forfeiture and the lengths to which federal authorities can use the practice, which has often been referred to as “Policing for Profit.”

The outcome of the court proceedings could turn this into a landmark case that helps to further define the parameters in which federal law enforcement can use the controversial procedure.

FBI agents cataloged Cartier bracelets, Rolex watches and stacks of cash as they combed through safe deposit boxes seized from a Beverly Hills business accused of money laundering. But the owners of many of those boxes were not accused of any crimes.

After hearing arguments from both sides Thursday, a panel of judges from the 9th Circuit Court of Appeals will decide whether the sweeping raid violated customers’ Fourth Amendment rights.

“I think the public sees this and recognizes that this is just a total abuse of people’s constitutional rights,” Institute for Justice senior attorney Rob Johnson told Fox News, adding that he felt “extremely optimistic” about the panel’s forthcoming decision.

On March 22, 2021, the FBI seized around 1,400 safe deposit boxes from U.S. Private Vaults, a Beverly Hills–based company that, according to court documents, was regularly used by “unsavory characters to store criminal proceeds.”

Agents took about $86 million in cash from the boxes, as well as a trove of jewelry, gold bars and coins, silver and other valuables. In May of that year, the FBI “commenced administrative forfeiture proceedings” against an unspecified number of the boxes, according to court documents.

The procedure the FBI used to seize this property is known as civil asset forfeiture, which empowers local, state, and federal governments to take a citizen’s property if they suspect that it has been used to commit a crime. In many states and at the federal level, one does not have to be convicted – or even charged – with a crime for officers to seize the property.

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Apple Reveals Governments Use App Notifications to Surveil Users

In a chilling revelation that feels all too familiar, Apple has confirmed that governments are using push notifications for the surveillance of users — an imposition on personal freedoms and a glaring example of state overreach.

This unsettling news was disclosed in response to Senator Ron Wyden’s urgent communication to the Department of Justice. Wyden highlighted that foreign officials have been pressuring technology companies for data to track smartphones via apps that send notifications.

These apps, he noted, put tech companies in a pivotal role to assist in governmental monitoring of app usage.

Senator Wyden urged the Department of Justice to alter or revoke any existing policies that restrict public discourse on the surveillance of push notifications.

In a reaction to this, Apple stated to Reuters that Wyden’s letter presented them with an opportunity to divulge more information about government monitoring of push notifications. The tech giant clarified, “In this case, the federal government prohibited us from sharing any information. Now that this method has become public we are updating our transparency reporting to detail these kinds of requests.”

The letter from Wyden reportedly stemmed from a “tip” about this surveillance activity. An informed source confirmed that both foreign and US agencies have been requesting metadata related to notifications from Apple and Google. This metadata has been allegedly used to link anonymous messaging app users to specific accounts on these platforms.

While the source, speaking to Reuters, did not specify which governments were involved, they characterized them as “democracies allied to the United States” and were uncertain about the duration of these requests.

“In this case, the federal government prohibited us from sharing any information,” Apple said in a statement. “Now that this method has become public we are updating our transparency reporting to detail these kinds of requests.”

Apple, meanwhile, has advised app developers to refrain from including sensitive data in notifications and to encrypt any data before it is incorporated into a notification payload.

However, this relies on the developers’ initiative. Importantly, metadata such as the frequency and origin of notifications remains unencrypted, potentially offering insights into users’ app activities to those who can access this data.

The news, which is hardly unexpected yet nonetheless deeply troubling, underscores the precarious path we seem to be treading, one that veers ominously towards policies that infringe on civil liberties.

The key cog in a functioning democracy, our judicial system, and its informed oversight exists precisely to prevent such oversteps. It endows a suspected individual with the crucial right to mount a robust defense against unwarranted infiltration by the state government. Alarmingly, the situation at hand eerily mirrors scenarios where private entities and individuals are strong-armed into being active partners in such covert operations, all the while being legally bound to cryptic silence.

Speaker Mike Johnson Tables Move to Slip Deep State Reauthorization in Defense Bill
Speaker Mike Johnson (R-LA) on Tuesday reportedly tabled a move to slip a deep state reauthorization into a defense bill.

“BREAKING NEWS —@SpeakerJohnson has nixed an extension of FISA authority as part of the NDAA,” Punchbowl News’s Jake Sherman wrote.

As Breitbart News has reported, Johnson and other congressional leaders have wanted to temporarily reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) in the National Defense Authorization Act (NDAA). Section 702 is a controversial government surveillance law, and the proposed move received strong backlash from 54 bipartisan House lawmakers and House Judiciary Committee Chairman Jim Jordan (R-OH).

“Keeping FISA out of the NDAA is a victory for the American people who demand the end of warrantless government surveillance. I applaud Speaker Johnson’s decision to not cave to the Biden admin, Christopher Wray, and the entire intel community,” Rep. Warren Davidson (R-OH) told Breitbart News in a written statement.

At one point, Johnson’s office refused to confirm to Breitbart News Rep. Matt Gaetz’s (R-FL) claim that there would be no reauthorization, temporary or otherwise, of Section 702.

Johnson said that they would allow for the different Section 702 fixes to be considered on the House floor:

During a closed-door conference meeting on Tuesday, Johnson said that he could bring Jordan’s and Turner’s two competing bills up for a vote in a rare procedural gambit known as “King of the Hill” if there isn’t a consensus over Section 702, according to two Republicans in the room.

Under that gambit, leadership can bring competing proposals to the floor as amendments, and whichever proposal is the last one that comes up for a vote and still gets a majority is the one that gets adopted. It allows leadership to try to influence the outcome by putting its preferred proposal last.

As recently as Tuesday, Sen. Ron Wyden (D-OR), who cosponsored the Government Surveillance Reform Act with Sen. Mike Lee (R-UT) to rein in Section 702, opposed an extension in the NDAA.

“We’re going the distance with reform. Business as usual is not going to be acceptable. When I started, it was pretty lonely. You could have meetings about 702 reform operations in a couple of phone booths. And I’m looking around now and I’m seeing a lot of allies,” Wyden said, noting that he does not see how a clean authorization could have been possible with the strong bipartisan opposition to such a move.

As Johnson and other congressional leaders no longer wish to include Section 702 in the NDAA debate, the Judiciary Committee will now consider the merits of their proposal to rein in the controversial surveillance law.

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Quip O’ The Day
“Ooh no, not their performance reviews!!!! The horror!”

 

#2A INFRINGEMENT AND ANCILLARY RIGHTS.

This is correct. And this is a good moment for a quick teaching point. If you look at the Founding era dictionaries SCOTUS in Heller used to define the 2A terms, and then you look at the definition of “to infringe” in those same dictionaries… the phrase means “to hinder or destroy.”

Given that definition of “to infringe” from Samuel Johnson/Noah Webster (both founding era lexicographers, i.e., dictionary makers), ask yourself this….. does restricting or banning the ability to acquire an “arm” constitute something that would “hinder” the “right to keep and bear arms”?

Obviously yes because any restrictions on the ability to ACQUIRE AN ARM necessarily HINDERS our ability to keep and bear arms. Thus, restrictions, bans or limitations on the right to acquire arms (ghost gun rules, home-made gun rules, waiting periods, etc.), are an hindrance and thus constitute an INFRINGEMENT.

Well, I personally don’t hardly believe anything the goobermint says.

BLUF
“The manipulation of statistics to create a narrative ultimately scares people. Whether the goal is for ratings or more gun control, it pushes people, especially women and mothers, to fear guns,” said Miller. “And that just isn’t right.”

We Can’t Believe These Agencies
Too often, the U.S. government skews statistics on gun use to push false narratives.

While Americans are frequently confronted with stories centered on guns being used to take lives, few are aware that many more humans are likely saved by firearms every year. A key reason for this lack of understanding is unreliable federal crime data—data that has too often been skewed by anti-gun politics.

As currently defined by the FBI, active-shooter incidents involve individuals who kill or attempt to kill people in a populated, public place, even if only one shot is fired or the intended target is not struck. Shootings that are related to other criminal activities, such as robberies or drug-turf wars, are not included in the FBI’s “Active Shooter Incident” reports.

But, according to economist John Lott, there was an abundance of cases missing or misidentified by the FBI, and while the FBI acknowledged errors, the Bureau failed to update the reports for accuracy purposes. Lott is the president and founder of the Crime Prevention Research Center (CPRC), and also worked in the U.S. Department of Justice (DOJ) up until January 2021 as senior advisor for research and statistics evalutating the FBI’s reports.

“The FBI continues to report that armed citizens stopped only 14 of the 302 active shooter incidents that it identified for the period 2014-2022. The correct rate is almost eight times higher. And if we limit the discussion to places where permit holders were allowed to carry, the rate is eleven times higher,” wrote Lott. He further noted, “[O]ut of 440 active shooter incidents from 2014 to 2022, an armed citizen stopped 157. We also found that the FBI had misidentified five cases, usually because the person who stopped the attack was incorrectly identified as a security guard.”

He also emphasized that while the FBI claims that just 4.6% of active murderers were halted by law-abiding citizens carrying guns, his research found that the figure was at least 35.7%. A false statistic—like this 4.6%—misleads people and can prevent good policies from being passed.

Indeed, without reliable crime data, it is impossible to have a fair “gun-control” debate, and yet the FBI continues to depend upon minimal data sets to reach conclusions meant to encapsulate the entire country.

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