Category: Rights

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.

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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Second Amendment Roundup: Concessions by the Government in the Rahimi Oral Argument
Misdemeanants don’t fall within the “not law-abiding” category.

In the November 7 oral argument in U.S. v. Rahimi, the government conceded the fundamental difference between felonies and misdemeanors, which criminal defense and pro-gun attorneys will find useful.  Also, direct references were made by some Justices to the issue of non-violent felons who are not dangerous.  And on the separate state-law issue of whether administrative officials may have discretion to deny the right to bear arms, the government conceded that they do not.

Recall that under N.Y. State Rifle & Pistol Ass’n v. Bruen, a person who is among “the people” has Second Amendment rights, and conduct covered by the plain text of that Amendment is presumptively protected unless the state can satisfy its burden (yes, it’s the government’s burden) to demonstrate that the current gun control regulation is similar to valid historical analogue laws. In Rahimi, the issue is whether any Founding-era analogue laws exist to justify the federal gun ban against persons under a domestic violence restraining order (DVRO).

To uphold the ban, the government relies on laws that punished affrays, including the brandishing of weapons to terrify others, and laws that required persons who did so to find sureties to keep the peace.  Such laws are not “historical twins” to today’s DVRO laws but are argued to be close enough.

A significant concession arising in the arguments would have jumped out at any member of the criminal defense bar, although it was not on the exact issue before the Court. The United States had argued in its briefs that persons who are not “law-abiding, responsible citizens” may be disarmed. Solicitor General Elizabeth Prelogar began her argument by saying that not being “law-abiding” means having “committed serious crimes defined by the felony-level punishment that can attach to those crimes.”  Not being “responsible” “applies to those whose possession of firearms would pose an unusual danger.”

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A Reversal in Rahimi Will Be Tougher to Write Than Critics Admit
Courts are “not insensitive to domestic violence” but are “sensitive to the constitutional rights of the accused.

The conventional wisdom is that the Supreme Court will certainly reverse the Fifth Circuit in Rahimi. Indeed I’ve voiced that position myself several times, especially in light of a potential grant in Range. (The New York Times picked up Justice Barrett’s question). But let me challenge that conventional wisdom: an opinion reversing Rahimi will be tougher to write than most critics will admit.

Let’s start with a premise: Rahimi was a faithful application of Bruen. Efforts to “clarify” Bruen are really an attempt to rewrite the precedent. I don’t think anyone seriously doubts this premise. Now the reason why the Court may “clarify” Bruen is because certain members of the Court don’t like the results that it yields: namely, that a dangerous person like Rahimi can possess a firearm. Again, the correctness of the Bruen precedent should be able to stand without regard to how it may be applied in future cases. But that’s where we are. Some members of the Court who profess to be originalists are still motivated by consequentialism. And these concerns came out loud and clear during oral argument.

Still, there is a long time between November and June. A majority opinion has to be written. And that opinion will have to navigate an issue that didn’t get much attention during oral argument: what other constitutional rights should dangerous people lose? Certainly this case can’t just be about guns.

One of my first published articles, The Constitutionality of Social Cost, was published in the Harvard Journal of Law & Public Policy in 2011. I had started thinking about the topic in 2009, before McDonald v. Chicago was decided. The basic premise of my article was that there are many dangerous rights, and the Second Amendment was not an outlier. Here is a snippet from the introduction:

Although the Second Amendment has been singled out from its brethren in the Bill of Rights as the most dangerous right, it is not the only dangerous right. The Supreme Court has developed over a century of jurisprudence to deal with forms of liberty that yield negative externalities.

The right to speak freely is balanced with the possible harm that can result from people preaching hate, violence, intolerance, and even fomenting revolution. The freedom of the press permits the media to report on matters that may harm national security. The freedom of association allows people to congregate to advocate for certain types of violence.

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures enables the possession of the fruits and instrumentalities of crime with impunity. Inculpatory evidence seized in violation of this right is generally inadmissible during trial, permitting crimes to go unpunished.

Likewise, a violation of a person’s Miranda rights renders certain confessions—even an uncoerced inculpatory confession—inadmissible. Procedural rights during the criminal trial—including the right to grand jury indictment, the right against self‐incrimination, the right against double jeopardy, the right of compulsory process, the right of confrontation, the right of a speedy and public trial, and the right of trial by jury—all make the prosecution of culpable defendants significantly harder.

The Due Process Clause, which imposes limitations on all government actions, places the burden of proof beyond a reasonable doubt on the prosecution. The right to non‐excessive bail and reasonable fines make it easier for suspects to avoid prison during prosecutions and may allow them to abscond before trial.

The right against cruel and unusual punishments removes certain forms of retribution from the quiver of the state, thereby limiting the range of punishments for those found guilty of a crime. The right of habeas corpus ensures that a person—however dangerous—cannot be detained indefinitely without proper procedures.

Liberty’s harm to society takes many forms—not just from the exercise of the right to keep and bear arms. These precedents show how the Court balances freedom and the harm that may result from its exercise. Although a “primary concern of every government [is] a concern for the safety and indeed the lives of its citizens,” this concern is not constitutionally sacrosanct.

Not much has changed since I wrote these words more than a decade ago. The Supreme Court, often with lopsided majorities, protects the constitutional rights of very dangerous people. Yet when it comes to the Second Amendment, it’s as if all of these precedents vanish.

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How to Fix Damage Done to 2nd Amendment by Joe Biden

The Biden-Harris administration has done more harm to the Second Amendment than all previous administrations combined. Biden and his unelected, behind-the-scenes shot-callers have been methodical in their multifaceted war on our civil rights.

The next administration — if it’s one that actually respects the law and its citizens — will have a lot of work to do to restore the Second Amendment to what the Framers had in mind. It will be a daunting task. The Biden-Harris administration has hammered law-abiding Americans with dozens of infringements — aided and abetting by the legacy media and a variety of anti-civil rights groups, some of which received taxpayer dollars.

What follows is a list of suggestions for how to restore our civil rights. The list is neither complete nor comprehensive. It’s more of a starting point and, unlike the Constitution, a living document. It includes actions that can be taken immediately and long-term goals that may require Congressional support.

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Analysis: ‘One Weird Trick’ to Uphold Gun Restrictions Returns to Federal Court

particularly flimsy legal theory has reappeared in federal Second Amendment litigation.

On Monday, US District Judge John L. Kane upheld Colorado’s three-day waiting period for gun purchases. He ruled the sales restriction didn’t violate the Second Amendment. His reasoning? The Second Amendment doesn’t actually protect gun sales at all.

“After examining the language of the Second Amendment using the Supreme Court’s analysis in Heller, I find, for the purposes of Plaintiffs’ Motion, that the plain text does not cover the waiting period required by the Act,” he wrote in Rocky Mountain Gun Owners v. Polis. “This conclusion is bolstered by the fact that the Act is a regulation on the commercial sale of firearms and thus is presumptively permissible.”

Judge Kane, a Jimmy Carter appointee, said the state’s restriction passes the Second Amendment test established in the Supreme Court’s New York State Rifle and Pistol Association v. Bruen decision by effectively short-circuiting it. Instead of examining the historical record for analogs to the modern waiting period, he argued that was unnecessary because the “right to keep and bear arms” doesn’t directly mention a right to buy, make, or sell them.

“From this reading of the plain text, it is clear the relevant conduct impacted by the waiting period—the receipt of a paid-for firearm without delay—is not covered,” he wrote. “Still, Plaintiffs attempt to equate the words ‘obtain’ and ‘possess.’ But these terms are not equivalent. To ‘keep,’ under the definitions provided in Heller, meant to retain an object one already possessed. It did not mean to receive a newly paid-for item, and it certainly did not mean to receive that item without delay. Likewise, ‘hav[ing] weapons’ indicates the weapons are already in one’s possession, not that one is receiving them.”

As I said when a judge in the Ninth Circuit employed the same logic to uphold a homemade gun ban last year, this is like a “one weird trick that plaintiffs hate” theory of Bruen. There’s no need to perform the analysis the Supreme Court requires if you cut the case off before it even really begins.

“Though it leads with a recognition of the primacy of Bruen’s ‘plain text’ point, [the plaintiff] seeks in its opening brief to jump ahead in the analysis to a historical/tradition assessment (and to jump ahead in Bruen to that decision’s discussion of how to conduct such an assessment),” Judge George H. Wu wrote in his ruling rejecting a request for a preliminary injunction against California’s ban on unserialized homemade guns. “But it has effectively attempted to avoid the necessary threshold consideration – does the ‘Second Amendment’s plain text’ cover the issue here? No, it plainly does not. AB 1621 has nothing to do with ‘keep[ing]’ or ‘bear[ing]’ arms.”

There has been a lot of disagreement among the lower court as to how best to implement the Bruen test. Judges have come down on different sides of whether the same restrictions have relevantly similar historical analogues. That disagreement will likely continue until the Supreme Court steps in and further clarifies how lower courts should carry out its test–a process it’s expected to start in its current case United States v. Rahimi.

But the idea that the Second Amendment guarantees the right to keep and bear arms but not the right to make or acquire arms isn’t likely to be part of that clarification. It’s simply too cute by half. The argument makes you wonder what exactly Judge Kane and Wu think the point of protecting keeping and bearing arms is if the government can simply ban their manufacture or sale.

Judge Kane seemed to realize this because he did go through an attempt to do the actual Bruen analysis. He ruled that the law would still stand even if the Second Amendment protects sales. He argued colonial-era laws that disarmed intoxicated people were relevantly similar to the waiting period because both aimed at “preventing impulsive acts of firearm violence.”

“These measures are sufficient to show that our Nation had a historical tradition of regulating the carrying and use of firearms by intoxicated individuals,” Judge Kane wrote. “Plaintiffs do not seem to dispute this determination, but instead focus on whether those regulations are ‘relevantly similar’ to the Waiting-Period Act. For the purposes of this proceeding, I hold that they are.”

That line of argument doesn’t seem much more likely to persuade the Supreme Court–if it ever makes it that far up the ladder. But it at least engages with the test the Court handed down. The idea that the Second Amendment provides no protection at all to the act of acquiring arms is little more than an attempt to hand wave away Bruen.

And on the other hand, there’s a subset of people who understand that when SCOTUS restores fundamental rights as they should be, they follow right along, like they should.
Now, I don’t advise cheating Uncle, or driving while intoxicated, but goobermint needs to stop with restricting rights by any piddly means it can devise.

Judge Nixes Lifetime Gun Ban for Non-Violent Misdemeanor Offense

In a case very reminiscent of Range v. Garland, in which the Third Circuit Court of Appeals ruled that Bryan Range’s conviction for lying about his income on a food stamp application decades ago should not have resulted in a lifetime prohibition on keeping or bearing arms, a federal judge in Pennsylvania has ruled that a man’s 2005 DUI arrest and conviction on misdemeanor charges cannot disqualify him from exercising his Second Amendment rights.

Though Edward Williams was convicted of a misdemeanor offense, it was also a crime punishable by up to five years in prison. Williams didn’t serve any time behind bars, however. Instead, he was sentenced to 90 days of house arrest and ordered to receive treatment for drug and alcohol abuse. Since the potential sentence was more than a year in prison, however, the misdemeanor conviction meant that Williams was considered a prohibited person going forward, and he was no longer allowed to possess or purchase a firearm.

Williams first tried challenging the statute in question back in 2017 and was denied, but applied for a re-hearing after the Supreme Court issued its decision in Bruen last year. This time around, in a case argued by 2A attorney Joshua Prince and supported by the Firearms Policy Coalition,  U.S. District Judge John M. Younge applied the Court’s text, history, and tradition test to the Williams case, as well as the Third Circuit’s decision in Range v. Garland, and found that Williams cannot be denied access to his right to keep and bear arms as a result of a non-violent misdemeanor conviction, even if it was punishable by years behind bars.

The Government has not met its burden in proving that the prohibition on Plaintiff’s possession of a firearm due to his DUI conviction is consistent with historical firearms regulations.

Finding a historical tradition of similar firearms regulations “requires that the government identify a well-established and representative historical analogue, not a historical twin.”

A modern regulation that would not have been contemplated during the Founding Era can be found relevantly similar to then-existing regulations by considering “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.

That federal law has, over the past century, allowed for the disarmament of certain types of convicted criminals does not satisfy the constitutional issues raised by applying Section 922(g)(1) to all convictions punishable by more than a year of imprisonment.

Instead, the Court must consider more longstanding limitations on firearm possession to “demarcat[e] the scope of [the] constitutional right.”

The historical firearms regulations provided by the Government are not sufficiently analogous to the case considered here to satisfy its burden.

Younge noted that while he remains “quite concerned about the prospect of granting access to firearms to persons who have demonstrably abused alcohol”, he remains unconvinced that “the general dangerousness of drunk driving and of combining firearm use and alcohol consumption establishes that DUIs must therefore be considered sufficiently analogous to historical examples of ‘dangerous’ conduct that have previously served as grounds for disarmament.”

Younge acknowledged the government’s citing of laws that prohibited the carrying of firearms while intoxicated, but argued that none of those regulations “allude to disarmament lasting beyond the individual’s state of intoxication, and none provided for permanent disarmament, as Section 922(g)(1) does.”

I agree with Younge that drunk driving is a serious concern, and not something that should be easily dismissed, but the fact is that Williams wasn’t barred forevermore from getting behind the wheel of a car because of his misdemeanor conviction. He can obtain a driver’s license and purchase a vehicle despite his DUI conviction that’s now nearly 20 years old, but he can’t legally purchase or possess a firearm. That’s a punishment that doesn’t fit the crime, as far as I’m concerned.

I’m sure the DOJ will appeal this case to the Third Circuit, but given their decision in Range it’s unlikely that Merrick Garland is going to get the response he’s looking for from the appellate court. By the time Williams v. Garland gets to SCOTUS the justices will have had a chance to weigh in on Bryan Range’s case, and if the Court does adopt a “dangerousness” standard for depriving individuals of their Second Amendment rights in Rahimi, then both Range and Williams have an excellent chance of having the lower court decisions in their favor approved by a majority of Supreme Court justices as well.

And With That Remark, Nikki Haley Just Went Full Totalitarian

The explosion of antisemitism has been something of a shock. Not that it never went away or didn’t exist, but the viciousness of it all has been jarring. It’s one thing to peddle the age-old stereotypes about Jewish control of the media and finance. It’s another thing to outright call for all Jews to die. The Left used to hide their true intent regarding Israel with political-based language. The ‘we’re not antisemitic; we’re anti-Zionist’ was a big talking point from this group.

It’s a nasty pot of brew brewing for quite some time, and it’s not just an American thing. The British Labour Party under Jeremy Corbyn was rife with antisemites; Corbyn couldn’t denounce Hamas as a terror group recently. Yet, if there’s one thing we know that won’t work in snuffing out vicious antisemitism and calls for Jewish genocide on social media, it’s to censor it like Oceania’s Thought Police.

Former South Carolina Gov. Nikki Haley, a hopeless 2024 candidate, suggested a new protocol that is downright Orwellian. It also might not be legal. For starters, she wants everyone on social media to be verified; no anonymous accounts can be permitted to use these platforms. She bypasses the legal debate by saying this is a national security issue.

Look, I can’t stand these pro-Hamas clowns either. But this would be a massive propaganda win for the terrorists. It’s what they want us to do, Nikki. We also don’t need to drive these people underground, some of whom will be top recruits in carrying out terrorist attacks.

Using social media has been essential in exposing antisemites recently, so I say fight fire with fire. They’re the ones losing their jobs right now.

 

If past history is any indicator, a reprogramming of car computer software for this will just be added on the list of services hackers have.

Massie: Vehicle Kill Switch Amendment Foreshadows Greater Danger to Guns

“The federal government has mandated that all vehicles sold after 2026 must have a kill switch that can disable your vehicle based on your driving performance,” Rep. Thomas Massie “tweeted” Wednesday. “My amendment to defund that unconstitutional mandate failed tonight.”

“Here is the roll call,” Massie added, linking to the House Clerk’s “Final Vote Results” for his Part B Amendment No. 60 to H R 4820, the “Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2024.” 19 Republicans joined 210 Democrats to defeat Massie’s amendment:

Gus Bilirakis (FL), Brian Fitzpatrick (PA), Mike Carey (OH), Chuck Fleischmann (TN), Andrew Garbarino (NY), Mike Garcia (CA), Garret Graves (LA), John Joyce (PA), Thomas Kean, Jr. (NJ), Kevin Kiley (CA), Young Kim (CA), David Kustoff (TN), Mike Lawler (NY), Nancy Mace (SC), Michael McCaul (TX), Zach Nunn (IA), María Elvira Salazar (FL), Chris Smith (NJ), and Glenn Thompson (PA).

Still, this must be a tempest in a teapot, right? After all, didn’t a January USA Today Fact Check conclude, “No, there’s no vehicle ‘kill switch’ in Biden’s 2021 infrastructure bill”? And it then followed up that headline with denial after denial until buried near the end of the piece came a curious admission:

“Whether or not the technology will become a part of the infrastructure bill’s final rule remains to be seen…”

Massie followed up his tweet by addressing the USA Today denials with a copy of the Infrastructure Investment and Jobs Act with an entry in the “Definitions” section circled:

The term “advanced drunk and impaired driving prevention technology means a system that … can … passively monitor the performance of the driver of a motor vehicle to accurately identify whether that driver may be impaired; and… prevent or limit motor vehicle operation if an impairment is detected…”

Besides, the technology to remotely disable cars has been in development for years. From a 2010 report:

“If you’re crawling through traffic in 2025 and approach a traffic light, IBM hopes it will be able to take control of your car. And according to the patent, you won’t be able to go again until it lets you. …With a laptop and customized software called CarShark, the researchers disabled the brakes of a regular family car and switched its engine off – while it was moving.”

And to show the incremental moves in development:

“In 2008, it became mandatory for all American cars to be fitted with CAN (Controller Area Network), a standard protocol for enabling all the car’s electronics to talk to each other, so there’s one part of the puzzle in place.”

OK, fine, but what does any of this have to do with guns?

But perhaps the most immediate and insidious threat we face from technology comes under the guise of “safety— for the children,” so-called “smart guns” under development and soon to be required in a state near you. Because…they’re also lobbying for another technology they developed to be required on cars— a “shutoff switch” that police can activate by remote control, making the rest of us pay for the infinitesimal fraction of drivers who lead them on car chases.

As writer Vin Suprynowicz warns (and I and some others independently predicted), this technology could be used by the police as “an `electronic master key’ to `disable’ any `smart guns’ in the house,” and be used as a pretext to “ban the manufacture of any gun that ISN’T a `smart gun’.”

So police can turn guns fitted with one “off” and incapable of firing—and that could be mandated. Anybody doubt it will be if remote shutoff technology becomes widespread?

But the legal landscape has changed, some may argue. Such a move would surely fail under the Heller and Bruen tests. No?

First, look at the “rules” that ATF and edicts Democrat strongholds have passed that are obviously nothing more than in-your-face challenges to the Supreme Court on devices, semi-autos, magazines, “sensitive areas,” prior restraints and denials of due process—look at how they have virtually unlimited war chests of tax plunder to drag complaints on for years. Then pray the Republicans don’t blow it in ’24 and enable a Democrat president and majority to alter the composition of the court and achieve whatever reversals and outcomes they desire.

Back to the list of Republicans who voted against Massie’s amendment, and there are enough that they could have turned it: We see some familiar names, like Brian Fitzpatrick, Giffords’ poster Vichycon who never saw a gun he didn’t want to grab. We see others, like Gus Bilirakis, assigned an A-rating by NRA-PVF along with the assurance that he’s “a staunch defender of the Second Amendment and has earned your vote by protecting your fundamental right to self-defense from those who attempt to eradicate it!” Then there are the “moderates” from states like New York and California whose endless “compromises in the spirit of bipartisanship” exemplify the reason why so many refer to the GOP as “the Stupid Party.”

If you see your representative siding with the Democrats (or is one of the five Republicans who did not vote), what would it hurt to take the amount of time it takes to post a comment here and contact them to ask, “What the hell?”