Category: Goobermint

The 2nd Amendment’s Misconstrued ‘Militia’
What so many people get so wrong

America’s latest episode of mass homicide has sparked renewed advocacy for restrictions on gun ownership. Once again, the accompanying debate has many gun control advocates claiming the Second Amendment’s reference to a “well regulated militia” narrows the amendment’s scope if not rendering it altogether moot.

Before we examine those claims, it’s important to ensure readers have a proper general understanding of the Bill of Rights. Contrary to common misperception, these amendments do not bestow privileges upon American citizens. Rather, they are primarily a set of prohibitions against the government infringing on pre-existing human rights all people have.

That’s evident in the language. For example, the First Amendment begins “Congress shall make no law…” This amendment isn’t awarding citizens the rights of religion, speech and assembly — it’s outlawing the government’s thwarting of those innate and universal human rights.

Similarly, the Fourth Amendment asserts that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Again, the authors are not granting those rights, they are protecting them.

When the Bill of Rights was proposed, some feared the enumeration of a handful of rights could be misinterpreted as providing a comprehensive catalogue — and thus empowering the government to infringe on human rights not specified. That’s why they included the Ninth Amendment, asserting that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

“Amendment II. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

With that understanding of the Bill of Rights in mind, we see that, via the Second Amendment, the founders explicitly asserted that there is a “right of the people to keep and bear arms.”

What about that reference to “a well regulated militia”? As we set out to scrutinize the phrase, let’s first observe that the Second Amendment contains two distinct components serving two different purposes:

  • An operative clause that sets out a specific prohibition against the government’s infringement on a right: …the right of the people to keep and bear Arms, shall not be infringed.
  • A prefatory clause that announces a purpose: A well regulated Militia, being necessary to the security of a free State…

Positioned in the prefatory clause, the “well regulated Militia” reference merely serves to provide a rationale — and not necessarily the only rationale — for the operative clause that follows.

While the Second Amendment stands apart from the others in the Bill of Rights by having a prefatory clause, such clauses were common in state constitutions of the era.

Prefatory clauses were used to help “sell” amendments to those being asked to approve them. In this case, the authors were pointing to the necessity of an armed populace as the well from which militias are drawn — militias seen as a vital safeguard against the federal government they were creating.

In particular, America’s founders were wary of the federal government’s potential to create a standing army that could be used to destroy state sovereignty and individual liberties. Seeking to “sell” the amendment to drafting committees and state ratifying conventions, it made sense for the authors to highlight the link between militias and the people’s right to bear arms.

Given their purpose — that is, to cite one or more of many possible rationales — prefatory clauses don’t rightly constrain operative clauses, particularly one as explicit as the Second Amendment’s, which pointedly recognizes a “right of the people to keep and bear arms.”

Even if the prefatory clause did have any teeth, those seeking to interpret it as tightly restricting the gun-eligible population run into yet another wall, in that militias are assembled from the citizenry at large.

Indeed, an earlier draft of the Second Amendment drove home this point. It began, “A well regulated militia, composed of the body of the people…”

Listen to Pennsylvanian Tench Coxe, as he championed the Constitution’s ratification: “The powers of the sword are in the hands of the yeomanry of America from sixteen to sixty.” Summarizing the Second Amendment, Coxe said, “The people are confirmed by the article in their right to keep and bear their private arms.”

Multiple state constitutional provisions of the era, some of which predate the Bill of Rights, offer additional confirmation that the armed right of self-defense belongs to individuals. As one representative example, consider the language of Vermont’s 1777 Constitution: “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.”

Further disregarding the Second Amendment’s explicit enumeration of “the right of the people to bear arms,” some claim the existence of the National Guard renders the Second Amendment entirely moot, since, via the Guard, each state has a “militia” with its own arsenal of arms.

Recall, however, that the founders viewed militias as a check on the federal government’s power, with fear that the federal government might create a standing army with the potential to tyrannize the states and the people.

Thanks to the National Defense Act of 1916 and amendments in 1933, today’s National Guard is legally a part of the United States Army, with state governments exercising only limited government control. Enlistment oaths have evolved to reflect that, with National Guard soldiers promising to obey the orders of both the president of the United States and the governor.

The Guard’s military training and the selection of its officers are controlled by the federal government. Troops are subject to activation pursuant to any number of federal missions, including — as we’ve seen too often — overseas combat deployments that render them useless to the states where their citizen-soldiers live.

Clearly, under such federal control, the National Guard cannot be seen as a counterbalance against federal power, and thus does not fulfill the Second Amendment’s aspiration to enable “well-regulated militias…necessary to the security of a free state.”

Finally, no tour of the Second Amendment’s language would be complete without addressing “well regulated” as it’s applied to “militia.” Today, people often and understandably assume that descriptor refers to regulation in the modern sense of external government control. However, in the late 1700s, “well regulated” simply meant orderly, trained and disciplined — qualities that militias should aspire to.

To summarize:

  • The Second Amendment explicitly recognizes the existence of “a right of the people” — not just those currently in militias — “to keep and bear arms.”
  • Placed in a prefatory clause, the “militia” reference merely announces one rationale for the Second Amendment. Regardless of how “militia” is interpreted, its presence does not constrain the operative-clause prohibition of government infringement against the right of the people to keep and bears arms.
  • Today’s National Guard is part of the U.S. Army and under heavy federal control. It cannot be used by the peoples of the separate states as a counterbalance to the federal government’s standing army — and thus is not a “militia” in the sense the term is used in the Second Amendment.

Banana Time for the Rule of Law.
When agents of the deep state hector you about “the rule of law,” laugh in their faces

The Czech novelist Milan Kundera published The Joke, his first novel, in 1967. It traces the fortunes of Ludvik, a young student, after his politically correct girlfriend shows the Communist authorities a postcard he had written to her as a joke: “Optimism is the opium of the people! A healthy atmosphere stinks of stupidity! Long live Trotsky! Ludvik.” As a result of this whimsy, Ludvik finds himself expelled from the Communist Party, the university, and is eventually conscripted to work in the mines.

That’s the way things are in totalitarian societies. No jokes allowed, especially not jokes told at the expense of the regime.

Thus it is that North Korea banned sarcasm and irony.

Poor Ludvik suffered for his joke. But he got off easy compared to Douglass Mackey, a social media “influencer” who wrote under the pen name “Ricky Vaughn.”

During the 2016 election cycle, Mackey/Vaughn posted a funny meme urging Hillary voters to “avoid the line and vote from home” by texting “Hillary” to a certain number.

Who would be stupid enough to fall for such a joke? No one. But his satire was effective enough to get him banned from the pre-Elon Musk era Twitter. And the feds thought—or said they thought—that it was part of a “plot to disenfranchise black and women voters.” I guess that shows you what they think of black and women voters.

It sounds stupid. It is stupid. But Mackey was charged with a felony and on Friday was convicted in the Eastern District of New York. He faces up to 10 years in jail for (as an official announcement crows) “his scheme to deprive individuals of their constitutional right to vote.”

Yes, that’s right. A Trump supporter posts a silly (but amusing) meme that mocks Hillary voters and he is tried and convicted of a felony. In the course of that official announcement, an assistant  U.S. attorney for the Eastern District called Breon Peace continues with this stomach churning bit of agitprop:

Mackey has been found guilty by a jury of his peers of attempting to deprive individuals from exercising their sacred right to vote for the candidate of their choice in the 2016 Presidential Election. . . . Today’s verdict proves that the defendant’s fraudulent actions crossed a line into criminality and flatly rejects his cynical attempt to use the constitutional right of free speech as a shield for his scheme to subvert the ballot box and suppress the vote.

In fact, that verdict proved nothing of the sort. It merely confirmed the corruption and politicization of our judicial system. The real moral of this sorry episode is this: Make a joke, go to jail.

This is Soviet-style intimidation. It has, or had, no place in America. It is the kind of thing that, once upon a time, we would hear about and deplore in distant lands ruled by communist despots. Now we emulate what we once deplored. Increasingly, alas, such totalitarian expedients are business-as-usual in an American regime that is staffed by apparatchiks of both parties who are drunk on power and care not a whit for free speech, individual liberty, or the impartial enforcement of the law. What they care about is the consolidation and perpetuation of their own power, period, full stop.

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Yes, his opponent is a carpet bagging RINO, but still, Pennsylvanians knew exactly what they were voting for.

Fetterman Does First Post-Depression Interview and Raises a Multitude of Questions

John Fetterman has finally been released from the hospital after suffering from a reported bout of severe depression. The Pennsylvania senator has long been at the center of controversy surrounding his ailing health, largely centering on the massive stroke he had prior to the 2022 election.

Since then, Fetterman has deteriorated in ways that would have led to immediate calls for his resignation were he not a member of the Democratic Party. He can’t speak properly, he can’t understand others properly, and he relies on a closed captioning device to communicate.

It’s good to be a Democrat, though, and the press has been rushing to cover for him since day one. That continued on Friday with an interview with CBS News that did nothing but raise a multitude of questions.

For starters, is this guy a US senator or not? I’m not trying to downplay his condition. Quite the contrary, but the Senate is not a place to battle depression, much less serious health issues that leave one unable to communicate. The question at hand isn’t how brave Fetterman supposedly is. It’s whether he can do his job, and he obviously can’t. That should be the top issue for every single person who interviews him. Instead, they lavish him with praise while helping him hide his actual condition. It’s dystopian.

Past that, a lot of people noticed where Fetterman’s eyes were going during the interview. Not only is reading the questions on some kind of monitor just off-screen (which CBS News is careful to not show), but he’s pretty clearly also reading his answers. His eyes stay glued to the screen the entire time, with only passing glances at the interviewer herself.

There were also 11 different editing cuts in the 45-second clip that CBS News released. Let me say that again. There were 11 cuts in under a minute.

Those edits weren’t just made for promotional purposes. They were cuts all made during a single question. Why? Because Fetterman takes time to read his monitor and often loses his train of thought. CBS News, instead of being honest with its audience, is trying to hide that fact.

Does that sound like something an honest press would do? If this were a Republican, would they be bending over backward to cover up just how bad things are? We all know the answer to that. Fetterman is not fit to be a US senator. It was easy for anyone to see during the campaign, and he’s even worse off now. Truly, there is nothing the Democratic Party won’t do to hold onto power.

Donald Trump has issued a statement about his grand jury indictment. Read it in full here

A Manhattan grand jury has voted to indict Donald Trump on charges involving payments made during the 2016 presidential campaign to silence claims of an extramarital sexual encounter.

The indictment, confirmed Thursday by Joe Tacopina, a lawyer for Trump, and other people familiar with the matter who were not authorized to discuss sealed criminal charges, is an extraordinary development after years of investigations into his business, political and personal dealings. It is likely to galvanize critics who say Trump lied and cheated his way to the top and embolden supporters who feel the Republican is being unfairly targeted by a Democratic prosecutor.

The district attorney’s investigation centered on money paid to porn actor Stormy Daniels and former Playboy model Karen McDougal, whom he feared would go public with claims that they had extramarital sexual encounters with him.

Trump has issued a statement in response to the news of the indictment. It appears in its entirety below:

“This is Political Persecution and Election Interference at the highest level in history. From the time I came down the golden escalator at Trump Tower, and even before I was sworn in as your President of the United States, the Radical Left Democrats – the enemy of the hard-working men and women of this Country – have been engaged in a Witch-Hunt to destroy the Make America Great Again movement. You remember it just like I do: Russia, Russia, Russia; the Mueller Hoax; Ukraine, Ukraine, Ukraine; Impeachment Hoax 1; Impeachment Hoax 2; the illegal and unconstitutional Mar-a-Lago raid; and now this.

“The Democrats have lied, cheated and stolen in their obsession with trying to ‘Get Trump,’ but now they’ve done the unthinkable – indicting a completely innocent person in an act of blatant Election Interference.

“Never before in our Nation’s history has this been done. The Democrats have cheated countless times over the decades, including spying on my campaign, but weaponizing our justice system to punish a political opponent, who just so happens to be a President of the United States and by far the leading Republican candidate for President, has never happened before. Ever.

“Manhattan DA Alvin Bragg, who was hand-picked and funded by George Soros, is a disgrace. Rather than stopping the unprecedented crime wave taking over New York City, he’s doing Joe Biden’s dirty work, ignoring the murders and burglaries and assaults he should be focused on. This is how Bragg spends his time!

“I believe this Witch-Hunt will backfire massively on Joe Biden. The American people realize exactly what the Radical Left Democrats are doing here. Everyone can see it. So our Movement, and our Party – united and strong – will first defeat Alvin Bragg, and then we will defeat Joe Biden, and we are going to throw every last one of these Crooked Democrats out of office so we can MAKE AMERICA GREAT AGAIN!”

Yeah, there’s this thing called ‘due process’…….

BLUF
It nevertheless seems clear that the current policy sweeps too broadly by disarming people, potentially including victims of domestic abuse, even when they have no history of violence or threats. That reality certainly seems relevant in assessing the government’s claim that people subject to restraining orders are ipso facto in the same category as “dangerous” individuals who historically have been deemed unfit to own guns.

The Ruling Upholding the Gun Rights of People Subject to Restraining Orders Is Not As Crazy As You Might Think
The 5th Circuit noted that such orders can be issued without any credible evidence of a threat to others.

The Biden administration is asking the Supreme Court to reverse a recent decision in which an appeals court concluded that the federal ban on gun possession by people subject to domestic-violence restraining orders violates the Second Amendment. In a petition filed this month, Solicitor General Elizabeth Prelogar portrays that law as a commonsensical precaution that is “consistent with the Nation’s historical tradition of firearm regulation”—the constitutional test that the Court established last year in New York State Rifle & Pistol Association v. Bruen. But there are reasons to doubt that the “historical analogues” cited by the government are close enough and ample cause to worry about the threat that the policy it is defending poses to civil liberties.

Under 18 USC 922(g)(8), which Congress enacted in 1994, it is a felony, currently punishable by up to 15 years in prison, for someone to possess firearms when he is “subject to a court order” that restrains him from “harassing, stalking, or threatening an intimate partner” or “engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury.” The provision requires that the order be issued after a hearing of which the respondent received notice. It also says the order must either include a finding that the respondent “represents a credible threat” to the intimate partner’s “physical safety” or explicitly prohibit “the use, attempted use, or threatened use of physical force” that “would reasonably be expected to cause bodily injury.”

The man at the center of this case, a Texas drug dealer named Zackey Rahimi, was convicted of violating Section 922(g)(8) in circumstances that suggest he is exactly the sort of person who should not be trusted with firearms. But his conduct allegedly included a string of violent crimes that would themselves disqualify him from owning guns. The question raised by this case is not whether someone like Rahimi should be allowed to own guns. It is whether the government violates the Second Amendment when it deprives people of the right to armed self-defense based on nothing more than a restraining order that may have been issued without any credible evidence that the respondent poses a danger to others.

When it overturned Rahimi’s conviction in February, the U.S. Court of Appeals for the 5th Circuit noted that he is “hardly a model citizen,” which is putting it mildly. In December 2019, Prelogar notes, “Rahimi and his girlfriend C.M. had an argument in a parking lot in Arlington, Texas. C.M. tried to leave, but Rahimi grabbed her wrist, knocking her to the ground. He then dragged her back to his car, picked her up, and pushed her inside, causing her to hit her head on the dashboard. Realizing that a bystander had seen him, he retrieved a gun and fired a shot. In the meantime, C.M. escaped the car and fled the scene. Rahimi later called her and threatened to shoot her if she told anyone about the assault.”

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Biden says he can’t do any more gun control through executive action

Gun control groups no doubt disagree, but Joe Biden says he’s reached the limits of his executive authority when it comes to gun control, while once again calling on Congress to enact a gun ban on its own.

“I have gone the full extent of my executive authority, to do on my own anything about guns,” Biden said. “The Congress has to act. The majority of the American people think having assault weapons is bizarre, a crazy idea. They’re against that.”

Biden renewed his push for Congress to reinstate the nation’s ban on assault weapons and high-capacity magazines, which expired in 2024, and to close loopholes for gun background checks after Monday’s deadly shooting at The Covenant School in Nashville.

“The last time we passed an assault weapons ban, violent shootings went down,” Biden said. “I can’t do anything except plead with Congress to act reasonably.”

Apparently USA Today’s fact checker is on vacation this week, since the ban on so-called assault weapons expired in 2004, not next year.
[Looks like USAToday has stealth edited their error to the correct 2004 date]
As for Biden’s claim that “violent shootings” (are there non-violent shootings?) decreased after the AWB took effect in 1994, according to the FBI’s uniform crime reports violent crime in the United States actually peaked in 1991, three years before the ban took effect. Take a look for yourself:

Violent crimes involving rifles are extraordinarily rare circumstances to begin with, so Bidens’ gun ban can’t be responsible for the plummeting crime rates in the 1990s, which continued even after the ban expired in 2004. In fact, despite the surge in violent crime in 2020 and 2021, rates are still far lower today than they were when Biden’s “assault weapons ban” was allowed to sunset.

The U.S. homicide rate peaked even earlier, reaching an historic high of 10.2 per 100,000 people all the way back in 1980. While there were several years in the late 80s and early 90s that came close to that terrible number, by 2014 the nation’s homicide rate had fallen to 4.4 per 100K. The rate has gone back up since then, particularly after the COVID shutdowns and civil unrest in 2020, but homicide rates are still far better than what many of us lived through in the 80s and 90s.

In other words, Biden’s full of malarkey when he touts the supposed effects of his gun ban, and his umpteenth demand for Congress to put a new ban in place isn’t likely to change any hearts and minds on Capitol Hill.

“We’re not gonna fix it,” U.S. Rep. Tim Burchett, R-Tenn., told reporters Monday. “Criminals are going to be criminals.”

Burchett added: “My daddy fought in the Second World War, fought in the Pacific, fought the Japanese. He told me, buddy, if somebody wants to take you out and doesn’t mind losing their life, there’s not a whole heck of a lot you can do about it.”

With all due respect to Burchett’s daddy, I’m going to politely disagree with him and his son. No, we’re never going to completely eradicate violent crime or be able to prevent every committed killer from carrying out their murderous plots, but there absolutely are concrete steps that we can take to reduce violent crime in its many forms; from domestic violence to drug-related shootings to active shooter attacks. Each of those issues requires strategies and tactics that are designed to address the actual problem, however, as opposed to just trying to ban our way to safety as gun control activists demand.

Focused deterrence efforts aimed at the most prolific and violent, for example, can reduce homicide rates by 50% or more when implemented effectively, as even a few anti-gun activists will admit. Enforcing existing laws also matters, as we make clear every day on Bearing Arms’ Cam & Co with our recidivist report. Monday, for example, we highlighted a suspect in a Shreveport shooting who was given a suspended sentence and probation for a weapons charge, even after he repeatedly skipped out on his sentencing hearing. There are lots of things we can do to reduce violent crime without trying to reduce legal gun ownership or infringe on the fundamental rights of we the people, and many of them don’t require state legislators or congresscritters to act at all.

They also don’t involve executive actions by the president, and while I’m glad to see Biden say he’s reached the limits of his executive authority, the truth is that those limits were breached long ago. I’m also not convinced that Biden’s actually through with issuing any more executive orders on gun control, though so far he’s been unwilling to take the advice of gun control activists to enact a gun ban by having the ATF reclassify some or all commonly-owned semi-automatic firearms as machine guns. The anti-gunner-in-chief may want to leave it up to Congress to infringe on the rights of responsible Americans, but his fellow prohibitionists are going to continue to lean on him to go big before he leaves office.

The Problems With Just Getting Guns Out of People’s Hands as a Solution to Gun Violence
New study sees Chicago harassing and arresting people for paperwork violations, damaging their ability to live and work, without demonstrable effect on gun violence

When hideous murders committed with guns make national news, as in today’s Nashville school shooting, it is a natural reaction on many people’s parts to call passionately for just getting more guns out of more people’s hands, by any means necessary.

Those concerned with civil liberties and police abuse of the innocent have long worried about the effects of privileging mere gun possession arrests. A new study from the Marshall Project highlights some of these problems, via examining data and interviewing arrestees from Chicago’s attempts to manage its violence problem with more gun possession arrests.

Chicago police seem to have adopted a pattern of pretextual stops—looking for any excuse to pull someone over and interact with them—in order, they hope, to find a gun without a proper permit to own or license to carry. (Getting both those things can be quite expensive in terms of both time and money, disproportionately affecting the poor living in violent neighborhoods who most strongly feel the pull toward having a gun for self-defense.) Gun law enforcement in Chicago, the Marshall Project finds, “overwhelmingly focuses on possession crimes — not use.”

The heart of the study’s findings:

From 2010 to 2022, the police made more than 38,000 arrests for illegal gun possession. These arrests — almost always a felony — doubled during this timeframe. While illegal possession is the most serious offense in most of the cases we analyzed, the charges often bear misleading names that imply violence, like “aggravated unlawful use of a weapon.”

Police continue to insist that every gun out of someone’s hands, even if it involves arresting that person and increasing mass incarceration of the nonviolent and highly harming that person’s ability to work and rent in the future, is all for the good; after all, that gun won’t be used by that person to harm anyone. (It is almost always the case that those guns would not have unjustly harmed anyone even minus the arrest and confiscation.)

But there is no particular evidence that harassing or arresting those who have harmed no one has “substantially reduced shootings in Chicago. In fact, as possession arrests skyrocketed, shootings increased, but the percentage of shooting victims where someone was arrested in their case declined,” that latter point a strong indication that mere possession arrests are not a sensible high priority for police for whom gun violence should be their only concern when it comes to guns, not paperwork violations. But the Project found that “nearly 60% of the 31,000 new felony cases pursued by [the state’s attorney of Cook County, Illinois] in the past three years were for illegal gun possession; roughly 4% were for homicides.”

Among the gun arrests the Marshall Project were able to analyze from raw data, “Most people [arrested] had no arrest warrants out, nor were they on supervised release, probation or suspected of being in a gang. In most of the incidents we analyzed, police were not responding to 911 calls about a person with a gun.”

The fight against mere possession becomes a generalized excuse for harassment of citizens: “In arrests where possession was the most severe charge…we found that more than 7 in 10 began with a simple traffic violation. After this initial stop, police often used some other justification for a search. Officers often did this by citing the smell of marijuana. Although Illinois legalized cannabis in 2020, smoking while driving is still prohibited.” And, “in a third of the stops, we found the person arrested had their gun owner’s permit, but not the license that allowed carrying the loaded gun in public.”

The enforcement is hugely disproportionate racially. “Although Black people comprise less than a third of the city’s population, they were more than 8 in 10 of those arrested for unlawful possession in the timeframe we reviewed.” Convictions lead to a year or more in prison, and merely the arrest can mess up the life of someone who has harmed no one via “damning criminal records, time on probation, job loss, legal fees and car impoundments.”

As Reason‘s C.J. Ciaramella has previously reported, the overzealous search for guns owned without proper paperwork has led not just to pretextual traffic stops that ruin innocent people’s lives but to violent raids on homes, often not even the homes where the alleged illegal guns were supposed to be.

As the Marshall Project (who although close-focused on Chicago in this study “identified several other cities with similar trends,” including Houston, New York, Cleveland, Baltimore, and Memphis) quotes one of the victims of gun possession arrests they interviewed, “I’m scared for my life — and I gotta go to prison because I fear for my life, for my family’s safety? Because we’re not fortunate enough to live someplace else?”

This is what happens when pronouns are a higher priority than logistics

U.S. Weapons Stockpile Disaster Limiting Our Ability To Deter China In Taiwan
It’s so bad now, even the New York Times is reporting about it.

In late January we reported that U.S. military weapons stockpiles were so low that various commentators were describing the shortages as “uncomfortably low,” “insufficient,” “precarious,” and “dangerous” due to the large quantities of these weapons we had given free of charge to Ukraine: U.S. Weapons Stockpiles “Uncomfortably Low” Due To Arms Shipments to Ukraine:

To date, the U.S. military has provided a “staggering” amount of military hardware and munitions to Ukraine in its defense against Russia’s invasion, amounting to more than $27 billion. This U.S. support has included over 1 million rounds of 155 mm howitzer ammunition. It has also included 8,500 Javelin anti-tank missiles, 32,000 anti-tank missiles of other types, 5,200 Excalibur precision 155 mm howitzer rounds, and 1,600 Stinger anti-aircraft missiles, among many other weapons systems and munitions.

[T]he Heritage Foundation’s Center for National Defense concludes that “[t]he fact that only a few months of fighting in Ukraine consumed such a large percentage of U.S. Stingers and Javelins suggests that the DOD’s plans, and the stockpiles that result from them, are insufficient.” Even the Washington Post has conceded the seriousness of the situation, noting that “[s]tocks of many key weapons and munitions are near exhaustion,” and citing a…CSIS report that concludes that “the U.S. defense industrial base is in pretty poor shape right now [and] we don’t make it past four or five days in a war game before we run out of precision missiles.” The National Defense Industrial Association (NDIA) describes the state of U.S. weapons stockpiles as “precarious.”

The U.S. Naval Institute describes them as “dangerous” due to their low inventory levels. Even a U.S. Department of Defense official quoted by the Wall Street Journal admitted that munitions stockpiles are “uncomfortably low” in that they are “not at the level we would like to go into combat.” This official explained that the only reason the issue isn’t “critical” is because “the U.S. isn’t engaged in any major military conflict” at the moment.

The key problem, of course, as we reported, is that the administration’s official position is that, in the words of Chairman of the Joint Chiefs of Staff Army General Mark Milley, “we will continue to support [Ukraine] all the way” and “[w]e will be there for as long as it takes to keep Ukraine free,” despite the obvious impact of such support on U.S. weapons’ stockpile levels.

And one of the side issues, although of critical seriousness, is that this arms largesse to Ukraine severely impacts our ability to come to Taiwan’s aid in case of an invasion by China, as we reported:

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New Yorkers get what they voted for.

New York Democrats Propose ‘Netflix Tax’ to Bail Out Failing Subway System

Democrats in New York are reportedly weighing a new four percent tax on streaming entertainment subscriptions like Netflix and Hulu to help bail out New York City’s failing subway system, which is facing a $2.5 billion budget deficit by 2025.

Lawmakers are desperately seeking to avoid yet another fare hike that would push the cost of a subway ride to $3 from the current $2.75. The proposed streaming tax would raise more than $100 million a year, according to a Wall Street Journal report.

New York Governor Kathy Hochul (D) had originally intended to prevent a fare increase through a hike in payroll taxes, which would reportedly generate $700 million in revenue. But her plan appears dead in the water, forcing Democrats to scramble to find an alternative.

The proposal would not be the first so-called “Netflix tax” passed in the United States. As of 2017, according to USA Today, several cities and states receive revenue from additional fees on streaming video subscriptions:

Chicago, Pennsylvania and Florida have already passed a so-called Netflix tax, and cities such as Pasadena, Calif. have broached the issue.

These taxes can translate to additional fees of less than $1 each month to consumers. But over the months — and tacked onto multiple streaming subscriptions — they might add up to $50 or more each year.

New York City’s subway system has fallen into disrepair and chaos under the city and state’s Democrat leadership.

Ridership has failed to rebound following the coronavirus pandemic while crime is soaring. The city’s subway crime rate skyrocketed 30 percent in 2022 from the previous year, outstripping the 22 percent increase in major crimes across the city during the same period, according to NYPD data.

 

Beware of liberals bearing bugs

Lately, Glenn Reynolds has been sounding the theme that liberals are trying to make the lives of ordinary Americans worse. As here, for example:

MAKING ORDINARY PEOPLE’S LIVES WORSE IS THE GOAL, THE ENVIRONMENT IS JUST THE EXCUSE.

I wavered on this. Does it go too far?

No. No, it doesn’t. These are horrible people–sadists, basically–who want to make your life worse. Not their lives, your life. I imagine this scene:

Hey, I’ve got a good one–let’s make them eat bugs!

Bugs? How in Hell are we going to do that?

To save the environment, of course! How else?

Yes, yes, that’s genius! Bugs!

Ha Ha Ha Ha Ha Ha ROFL

When I tell people that liberals are working on substituting insects for meat, they often think I am imagining things. But it is true. The beachhead is “flour.” You can dry insects, turn them into powder, and put the powder into foods. This is actually starting to become common. Thus, from Italy, “Italy bans insect flour from its pasta despite the eco buzz.”

The growing use in cooking of flour made from crickets, locusts and insect larvae has met fierce opposition in Italy, where the government is to ban its use in pizza and pasta and segregate it on supermarket shelves.
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Packed with vitamins, proteins and minerals, flour made from crickets is increasingly seen as an ecological way to obtain nutrients, and the market is forecast to reach $3.5 billion by 2029. The EU has already authorised foods made from crickets, locusts and the darkling beetle larva. In January mealworm larvae was added to the list.

Happily, the Italians are standing up for civilization. I think Giorgia Meloni can be counted on here.

All four insects are cited in the Italian decrees, which will require any products containing them to be labelled with large lettering and displayed separately from other foods.

“Whoever wants to eat these products can, but those who don’t, and I imagine that will be most Italians, will be able to choose,” [Francesco Lollobrigida, the agriculture minister] said.

Choice being antithetical to liberals, this won’t satisfy them. The battle is only now beginning.

Today it’s flour, tomorrow you will be expected to boil grubs and toss locusts on the grill. Why? To combat global warming, of course! For the same reason you won’t be permitted (at anything like a cost you can afford) to fly in an airplane, enjoy reliable electricity, heat your house in the winter, drive a normal motor vehicle, cook on a gas stove, and so on.

It is true: liberals are trying to make your life worse, in every way they can get away with.

The post-Bruen “Sugar High” is a serious threat to our Second Amendment

The NYSRPA v. Bruen verdict passed by the Supreme Court last June was a watershed moment in American history. What began as a fight against the arbitrary power of government apparatchiks to grant concealed carry permits, often with a dollop of corruption, ended with a judicial standard that limits the power of government to infringe upon our right to keep and arms. The new guidance from the Supreme Court places the burden of proof on the government to show that a law that implicates the Second Amendment rights of citizens is in line with the nation’s history and tradition of firearms regulation.

The implications have been massive. From coast to coast, laws that were previously rubber-stamped by a jaundiced judiciary are being struck down.

  • Laws that created a malleable category of “assault weapons” and banned them? Gone!
  • Laws that mandated non-existent James Bond technology? Gone!
  • Magazine capacity restrictions? Poof!
  • Laws that banned out-of-state ammunition purchases? In the process of getting shot down.
  • Laws that restrict young adults from owning guns? On their way out.
  • Ammo background purchase requirements? About to get overturned…

California has seen a lot of the above action but New York, my state of residence, has also seen its fair share of lawsuits after the Empire State struck back.

There is a lot to celebrate. Gun owners in anti-Second Amendment states are giddy at being able to own pistol grips instead of obscene workarounds, threaded barrels, detachable magazines, and folding/adjustable stocks. They’re no longer limited to Gen3 Glocks, and are no longer discouraged to apply for a carry permit because they aren’t rich, politically connected, or refuse to participate in Third World bribery.

Yet, amid all this, I see reason for alarm. Granted, things were far worse and on a bad trajectory but seem to have turned around. Those gains, in my opinion, are tenuous and can be rolled back within our lifetimes. The scoreboard as it stands now is the result of a razor-thin Electoral College victory in 2016. Regardless of one’s sentiments and policy positions on abortion, the overturning of Roe v. Wade should serve as a warning.

In an ideal world, lawmakers would refrain from passing laws that violate the Constitution, the Executive Branch would stop usurping the authority of lawmakers, and the judiciary would make use of its lifetime tenure to judge cases on their merits and not be cowed down by public opinion or political pressure. But the world we live in is far from that. The weakened separation of powers will be dangerous in the long run, not just for the Second Amendment, but for the overall health of the Republic.

Secondly, the enemies of our freedoms are organized, well-funded, and waging an all-out war. They’re working secretly with the CDC, pushing propaganda in Hollywood, applying pressure campaigns on private industry, conspiring with academia, and using public money to push their agenda. I hesitate to say this, but they’re behaving like modern-day Benedict Arnolds, colluding with foreign nations to subvert the American Bill of Rights because of their deep-seated hatred and basic denial of our right to keep and bear arms.

I’ve heard people say that “we’ve got ’em on the ropes” but I’m doubtful. What I see is a danger arising from a post-Bruen “Sugar High” and complacency on the part of gun owners.

Will you stop your activism now that you can buy pistol grips and folding stocks? Will you stop calling your elected representatives now that you have your carry permit? Will you show up to vote or relax at home? Will your rifles gather dust in your safe as you go about your life assuming that the law and political circumstances will stay as they are now, and your freedoms will remain safe?

It’s a good idea to live like an optimist but prepare for the worst. I implore the reader to still act like your freedom is on the verge of obliteration: continue dutifully calling your elected representatives, speak up when needed, and most importantly, continue taking inexperienced people to the range and bring them into the fold of gun ownership, so our freedoms can be enjoyed by our grandchildren and their descendants a hundred years from now.

Litigation Highlight: Legal Challenges to ATF Rule on Stabilizing Braces

In January of this year, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) published Final Rule 2021R-08F, “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces.’” The new rule changes the operative definition of “rifle” in the Code of Federal Regulations such that most pistols with attached stabilizing braces (often called “pistol braces”) will now be subject to heightened federal regulation under the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA). Citizens, state attorneys general, and gun policy groups have already filed several lawsuits in federal district courts challenging the legality of ATF’s rule.

In this post, I’ll first introduce the pistol brace and the tale of historical (non)regulation, beginning with a brief table-setting history of the NFA and GCA. Second, I’ll survey the main legal arguments presented in the ongoing lawsuits, with a focus on Second Amendment challenges.

The NFA, GCA, and the “Short-Barreled Rifle” Category

The NFA, passed in 1934 in response to widely-publicized incidences of gang violence, imposed burdensome taxes, regulatory requirements, and criminal non-compliance penalties on the ownership and transfer of weapons associated with criminal use. In 1968, the GCA modified the definitions of certain weapons already regulated by the NFA and instituted a system of federal licensing for firearms distributors. Together, these two acts regulate machine guns (fully-automatic rifles like the “Tommy Gun,” infamously associated with Prohibition-era criminals); short-barreled rifles and shotguns; suppressors; destructive devices (like grenades and other explosives); and an amorphous category of “any other weapon” (now referred to as ‘AOWs,’ and understood to include ‘disguised’ firearms and firearms that don’t fit neatly into another category). Collectively, these weapons are known as “NFA items.”

More specifically, this regulatory scheme limits who may import, build, or purchase NFA items, and under what circumstances they may do so. The most onerous restriction at the time of the NFA’s passage was the $200 tax it imposed on possession of NFA items (equivalent to ~$4,500 in today’s dollars). Since the amount of this tax has not changed over the years, the tax itself is no longer the NFA’s most restrictive element. Instead, that honor now belongs to ATF’s ‘approval’ requirements, which involve extensive background checks and fingerprinting, as well as the registration of the individual NFA item with ATF. The average wait-time for an individual seeking to buy an NFA item, such as a short-barreled rifle (SBR), is estimated to be  270 days.

The NFA as originally written also regulated handguns, but a concerted lobbying effort on the part of the National Rifle Association caused lawmakers to drop handguns from the final bill. So, today, the NFA regulates neither handguns (defined in relevant part as “a firearm which has a short stock and is designed to be held and fired by the use of a single hand”) nor full-length rifles (defined in relevant part as “weapon[s] designed or redesigned, made or remade, and intended to be fired from the shoulder” and having a barrel longer than 16 inches). Since neither handguns nor full-length rifles are subject to NFA regulations, these two types of firearms are substantially easier to access than SBRs, which differ from full-length rifles only in their barrel length.

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People Can Win.
We’ve been trained to think that endless rule by tiny minorities of really horrible people is the natural order of things, but that turns out to be just another lie

Earlier today Susan Schmidt and I published an article about a series of changes at the Cybersecurity and Infrastructure Security Agency (CISA), a creepy sub-division of the Department of Homleand Security. It turns out that CISA, which just a week or so ago was busted for scrubbing embarrasing text from its website by the Foundation for Freedom Online, quietly eliminated its so-called “MDM” or “Misinformation, Disinformation, and Malinformation” subcommittee.

Just a year ago, the Department of Homeland Security was going all-in on the fight against “MDM.” The notion that America is fatally infected with “Misinformation, Disinformation, and Malinformation” was in fact the animating idea begind the asinine plan the Biden administration announced last April to institute a “Disinformation Governance Board,” which was to be headed by Nina Jankowicz, a self-styled Mary Poppins of digital rectitude:

America took one look at Jankowicz and at most a few fleeting moments considering the “Disinformation Governance Board” plan before concluding, correctly, that it was a beyond-loathsome expression of aristocratic arrogance that needed shutting down before the first Jankowicz presser. Characteristically, the press lied about the public reaction, claiming that the only displeasure was heard from the “GOP.” In fact, all sane people across the spectrum were instantly nauseated, their distress loud enough that the DHS hit “pause” on Jankowicz and the batty MinTruth plan after just three weeks.

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We only saw “fact checkers” appear when the truth started getting out.

The Crusade Against ‘Malinformation’ Explicitly Targets Inconvenient Truths.

The legal challenge to censorship by proxy highlights covert government manipulation of online speech.

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According to an alliance of social media platforms, government-funded organizations, and federal officials that journalist Michael Shellenberger calls the “censorship-industrial complex,” I had committed the offense of “malinformation.” Unlike “disinformation,” which is intentionally misleading, or “misinformation,” which is erroneous, “malinformation” is true but inconvenient.

As illustrated by internal Twitter communications that journalist Matt Taibbi highlighted last week, malinformation can include emails from government officials that undermine their credibility and “true content which might promote vaccine hesitancy.” The latter category encompasses accurate reports of “breakthrough infections” among people vaccinated against COVID-19, accounts of “true vaccine side effects,” objections to vaccine mandates, criticism of politicians, and citations of peer-reviewed research on naturally acquired immunity.

Disinformation and misinformation have always been contested categories, defined by the fallible and frequently subjective judgments of public officials and other government-endorsed experts. But malinformation is even more clearly in the eye of the beholder, since it is defined not by its alleged inaccuracy but by its perceived threat to public health, democracy, or national security, which often amounts to nothing more than questioning the wisdom, honesty, or authority of those experts.

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So when an LEO has one it’s called a “patrol rifle”.
But when a citizen has one it’s a called an “assault rifle”. Got it.

Observation O’ The Day
This is a perfect example to show how media purposely directs the narrative instead of simply reporting facts. They would have called the exact same rifle an “assault rifle” if had been stolen from a non-cop, and there would have been discussion about how unsecured firearms in people’s possession are how criminals obtain guns and that private ownership of these “weapons of war” makes us all less safe as a result.

Patrol rifle stolen from trooper’s cruiser overnight in Malden, Massachusetts State Police say

MALDEN, Mass. — A department-issued rifle was stolen from a Massachusetts State Police cruiser overnight in Malden, according to the State Police.

The burglary happened with the Ford Explorer cruiser was parked in a garage of a residential complex in Malden, state police said.

“A Department-issued patrol rifle was stolen from the cruiser,” State Police spokesman David Procopio said in a statement, adding, “the cruiser was locked and the rifle secured in a mount.”

Forced entry was made into the cruiser, Procopio said. Sources tell WCVB the incident was not a smash-and-grab, but a professional break-in.

“At this time, we have no indication of the rifle being used subsequent to its theft,” Procopio said.

The incident is under investigation. Police are focusing on security cameras in the garage — but they’re not sure they were working overnight — and Malden city cameras outside the garage.

The cruiser was towed from the scene on a flatbed.

Legislators considering Constitution before passing laws? THE HORROR

When laws are challenged, they’re challenged on constitutional grounds. Is this law in keeping with the Constitution or is this a case of legislative overreach?

In fact, lawmakers are supposed to at least consider such things before passing laws. After all, they swear to support and defend the Constitution, which one would imagine requires them to consider it at a minimum before passing some bill.

But it seems that the folks at the Huffington Post are upset that lawmakers are considering court rulings before passing gun control. They made this pretty clear recently.

In fact, they’re so upset, they said it all over again.

Left In The Legislative Lurch

Eight more states have laws similar to California’s assault weapons ban that could be affected if the Supreme Court ultimately weighs in.

The expectation that these laws may be doomed is already complicating the politics of passing new ones like them.

In New Mexico, Democratic Gov. Michelle Luján Grisham has repeatedly urged the legislature to send her an assault weapons ban to sign this session, but lawmakers tabled the effort — partly over concerns that it wouldn’t withstand scrutiny in federal court.

“There’s absolutely no point to passing new laws which federal courts will strike down and which are clearly going to be deemed unconstitutional,” state Sen. Joseph Cervantes, a Democrat, tweeted last month.

With those lawsuits still playing out, the future of gun policy remains in flux. But that legal panorama makes it hard to imagine clear lanes for reform in the near future.

“We’re in a very difficult spot with that Bruen ruling,” said Miranda Viscoli, co-president of New Mexicans to Prevent Gun Violence. “Even though it was only about concealed carry, it’s just made everybody afraid who wants to pass common sense gun violence prevention legislation.”

Now, in fairness, this is only one part of a much longer piece lamenting the rulings and the impact they’re having on gun control.

Still, it’s interesting that they’re still complaining about states not passing gun control because they figure it’ll be tossed by the courts.

I’m sorry, that’s not a bug. It’s a feature.

Huffington Post can be big mad all they want, but the truth of the matter is that gun control isn’t constitutional. The author tries to get hung up on the militia clause at one point–a matter that has been thoroughly and completely debunked–and then laments the text and history test laid down in Bruen, but at no point can they actually make a legitimate case that gun control is within keeping behind the text or spirit of the Second Amendment.

That’s unsurprising, of course.

I’m glad to see legislatures hold up a bit before infringing on people’s rights. I’m upset that they’re only starting to do it just now, but this is a case of better late than never.

If they’re holding up, that’s great, but as the piece also notes, a lot of places aren’t. In truth, that is the real problem, not those exercising a bit of caution and, dare I say, common sense.

Then again, it’s Huffington Post. What can you really expect?

 

Trump Grand Jury Session Abruptly Canceled.

On Wednesday morning, Trump wrote in a post on Truth Social that Bragg was having problems with the grand jury. “The Rogue prosecutor, who is having a hard time with the Grand Jury, especially after the powerful testimony against him by Felon Cohen’s highly respected former lawyer, is attempting to build a case that has NEVER BEEN BROUGHT BEFORE AND ACTUALLY, CAN’T BE BROUGHT,” he claimed. “If he spent this time, effort, and money on fighting VIOLENT CRIME, which is destroying NYC, our once beautiful and safe Manhattan, which has become an absolute HELLHOLE, would be a much better place to live!”

Trump was clearly on to something. The Wednesday session of the grand jury has been canceled, according to a report from Business Insider.

Two law enforcement officers have informed Insider that the grand jury in the Trump case has been instructed not to report for duty on Wednesday — the day previous reports suggested there would be a possible indictment vote against former President Donald Trump. Although there is no confirmed schedule beyond Wednesday, one of the sources, speaking anonymously, indicated that it is doubtful the grand jury will convene at all this week. The grand jury typically meets on Mondays, Wednesdays, and Thursdays, and Fox News reports that the grand jury is on standby for Thursday.

Former Michael Cohen legal advisor Robert Costello, a surprise witness this week, was touted by Trump as having conclusive and irrefutable evidence to exonerate him. Amongst other testimony damaging to Manhattan District Attorney Alvin Bragg’s efforts to nab Trump, it was revealed that Bragg, who is already the target of a House GOP investigation for abuse of power, may have concealed exculpatory evidence from the grand jury.

This latest development raises new doubts as to whether the indictment will happen at all, especially in light of a previous report that sources close to the investigation believe it is possible that Bragg may end up not indicting Trump at all, and that Trump’s team has not been formally notified of an imminent indictment.

It’s not clear why Bragg, who has been presenting “evidence” against Trump since mid-January, suddenly halted the grand jury from convening. This has led to speculation that recent developments may have further weakened his already fragile case, and may even result in the failure of any potential indictment.

On Monday, constitutional scholar Jonathan Turley called Bragg’s case against Trump “legally pathetic,” and observed Bragg is “struggling to twist state laws to effectively prosecute a federal case long ago rejected by the Justice Department against Trump over his payment of ‘hush money’ to former stripper Stormy Daniels.”

Bragg’s case against Trump may be falling apart, thanks to the efforts of alternative media calling out his abuse of power and partisan motives.

Biden Wants To Emulate California’s (Failed) Gun Laws

By John R. Lott Jr. for RealClearPolitics

President Biden traveled to Monterey Park, California, the site of a mass public shooting that left 11 dead in January, to announce new executive actions on gun control. He touts the proposals as necessary “to reduce gun violence and make our communities safer.” But California already has all the gun control laws that Biden put forward, and yet it has a higher per capita rate of mass public shootings than the rest of the country.

Measures already in place include background checks on all transfers of firearms, “red flag” gun confiscation laws, and an assault weapon ban. Even if Biden’s ideal background check law had been in effect and perfectly enforced, it wouldn’t have stopped one mass public shooting this century.

Biden exaggerated the support for his background check proposals. The surveys he cites compress long, complicated proposals into one-sentence summaries. But when people are told that these laws would turn someone into a felon just for temporarily lending a handgun to a woman who is being threatened by a stalker, survey respondents answer that they oppose the regulation. 

One proposal would force people who sell or transfer only a few guns to obtain a federal firearms license. But even licensed dealers face an uphill regulatory battle. Biden’s zero-tolerance (zero tolerance for what?) policy drives licensed dealers out of business. The end effect is to stop gun sales.

But Biden has another goal. Despite federal law explicitly forbidding a national gun registry, the President has begun putting together a national database on gun ownership. By the beginning of last year, there were almost a billion entries.

Forcing gun transfers to go through licensed dealers will help create a more complete registry. And that’s about all it will do, since gun licensing and registration doesn’t solve any crime. The bottom line is to drive up the price of guns for law-abiding citizens and therefore stop gun sales altogether. In other countries, and even in parts of the United States, registration is consistently used to eventually take away people’s guns, and given Biden’s constant call to ban all semi-automatic weapons, which make up about 85% of all guns sold in the U.S., that is a real concern here.

Biden wants to “improve public awareness and increase” use of red flag laws (Extreme Risk Protection Orders). But this diverts focus from better laws already on the books in all 50 states. Involuntary commitment laws provide for evaluations by mental health experts, an emergency court hearing, and a lawyer. These laws give judges more options, such as mandatory outpatient mental health care, driver’s license suspensions, or taking away their guns.

By contrast, red flag laws only take away a person’s guns. If a person is truly suicidal – almost all the red flag cases involve concerns over suicide – there are so many other methods that are just as likely to be successful (hanging oneself, walking in front of a train, jumping from a height). Simply taking away someone’s legally owned guns isn’t a serious solution.

Gun control advocates claim that California’s 1990 assault weapon ban is responsible for its 55% drop in firearm mortality from 1993 to 2017. But California’s murder rate peaked in 1993 at 13.1 per 100,000 people, rising from 10.9 in 1989, the year before the state enacted its assault weapons ban. So why did the murder rate fall by 10%  in 1994 and not in 1990, and continue falling by 53% by 2000? California’s tough three-strikes criminal punishment law started on March 7, 1994.

Biden says we need national gun control laws to protect states like California, but that ignores the fact that the guns used in California’s mass public shootings were from California. Indeed, the firearms in all but two mass public shootings over the last 25 years were from the state where the attack occurred.

Gun control measures aren’t just ineffective against mass public shootings – they actually encourage attacks. The shootings keep occurring in places where people can’t have concealed handguns. In Los Angeles County, where two mass public shootings occurred in January, there is only one permit for every 5,660 adults. In San Mateo County, where another attack occurred, there is one permit per 24,630 adults. By comparison, there is one permit holder for every nine people in the 43 right-to-carry states.

Concealed handgun permit holders make a difference in those 43 states. Indeed, people legally carrying guns stopped at least 37 mass public shootings since 2020. And when Americans are allowed to legally carry concealed handguns, they stop about half of the active shooting attacks in the U.S.

Mass public shooters purposefully pick targets where they know their victims cannot protect themselves. The perpetrator of a mass shooting in Buffalo, N.Y., last year wrote in his manifesto: “Areas where CCW [carrying a concealed weapon] are outlawed or prohibited may be good areas of attack ... Areas with strict gun laws are also great places of attack.” Other mass murderers have made similar statements.

These killers may be crazy, but most aren’t stupid. Yet, states like California, New York, and New Jersey are moving to create more gun-free zones, where mass murderers won’t have to worry about victims protecting themselves.

Unfortunately, the gun control Biden pushes won’t stop mass public shootings and will only make problems worse. Gun control failures are used to call for more gun control laws. The solutions that would actually work aren’t being discussed.

Cert. Petition on the First Amendment and Coercive Government Threats in NRA v. Vullo.

William Brewer, Sarah Rogers & Noah Peters of Brewer Attorneys & Counselors and I filed a petition earlier this month asking the Supreme Court to review the Second Circuit decision in NRA v. Vullo; I think many of our readers will find it interesting (my apologies for the delay in passing it along).

I generally tend to agree with the NRA’s ideological views, to a considerable extent, but I would have been glad to be engaged to argue a similar case on behalf of groups I disagreed with as well; it’s a pretty important First Amendment question that can affect groups with all sorts of views. (Note that the ACLU filed an amicus brief on NRA’s side in the District Court.) Here’s our Introduction:

The Second Circuit’s opinion below gives state officials free rein to financially blacklist their political opponents—from gun-rights groups, to abortion-rights groups, to environmentalist groups, and beyond. It lets state officials “threaten[ ] regulated institutions with costly investigations, increased regulatory scrutiny and penalties should they fail to discontinue their arrangements with” a controversial speaker, on the ground that disfavored political speech poses a regulable “reputational risk.”

It also permits selective investigations and penalties targeting business arrangements with disfavored speakers, even where the regulator premises its hostility explicitly on an entity’s political speech and treats leniently, or exempts, identical transactions with customers who lack controversial views. In sum, it lets government officials, acting with undisguised political animus, transmute “general backlash” against controversial advocacy into a justification for crackdowns on advocates (and firms who serve them), eviscerating free speech rights.

Reaching this result, the Second Circuit disregards basic pleading standards and undermines fundamental First Amendment freedoms. It also departs from this Court’s precedent in Bantam Books, Inc. v. Sullivan and from the Seventh Circuit’s precedent in Backpage.com, LLC v. Dart.

This case arises from a series of actions—including press releases, official regulatory guidance, and contemporaneous investigations and penalties—issued by or on behalf of New York’s powerful Department of Financial Services (“DFS”) against financial institutions doing business with the NRA. Among other things, the Complaint states that Superintendent Maria Vullo: (1) warned regulated institutions that doing business with Second Amendment advocacy groups posed “reputational risk” of concern to DFS; (2) secretly offered leniency to insurers for unrelated infractions if they dropped the NRA; and (3) extracted highly-publicized and over-reaching consent orders, and multi-million dollar penalties, from firms that formerly served the NRA. Citing private telephone calls, internal insurer documents, and statements by an anonymous banking executive to industry press, the Complaint alleges that numerous financial institutions perceived Vullo’s actions as threatening and, therefore, ceased business arrangements with the NRA or refused new ones.

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