Category: RKBA

Analysis: The First Crack Forms in Federal Machinegun Ban

For the first time, a federal judge has ruled the Second Amendment protects civilian machinegun possession.

On Wednesday, US District Judge John W. Broomes dismissed charges against a Kansas man for possessing a fully automatic .300 blackout AR-15 and Glock 33 handgun. He ruled that the federal ban on possessing or transferring machineguns (with limited exceptions) was unconstitutional as applied to the defendant.

“To summarize, in this case, the government has not met its burden under Bruen and Rahimi to demonstrate through historical analogs that regulation of the weapons at issue in this case are consistent with the nation’s history of firearms regulation,” Judge Broomes wrote in US v. Morgan.

In many ways, the decision is the epitome of what some gun-rights advocates hoped the Supreme Court’s 2022 Bruen decision and the new test it laid down would bring to bear on America’s gun laws. The 1934 National Firearms Act (NFA), which marked the first time the federal government regulated machineguns by requiring registration and a $200 tax stamp, has rankled a vocal section of activists. The same is true of the 1986 Firearms Owners Protection Act, a provision of which known as the Hughes Amendment—18 USC § 922(o)—functionally banned civilian ownership of automatic weapons manufactured after its enactment.

Those activists view the federal regulations, enacted for the first time more than 140 years after the ratification of the Second Amendment, as incompatible with the Bruen standard because it prioritizes Founding-era approaches to weapons regulation when evaluating modern regulations. They see the ultimate liberalization of machinegun, suppressor, and short-barreled rifle regulations as the natural apotheosis of courts faithfully applying the Bruen test to America’s modern gun-control regime.

But court after court to address the question in recent years has rejected the idea the Second Amendment protects machineguns, largely based on the Supreme Court’s own words. Most often, they cite a section of the majority opinion in DC v. Heller that discusses the idea that fully automatic M-16s, which are functionally identical to the rifle at issue in Morgan, “may be banned.”

“We also recognize another important limitation on the right to keep and carry arms,” Justice Antonin Scalia wrote for the majority in Heller. “Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”

Broomes interrogated this reliance on Heller’s brief discussion of M-16 rifles and reached a different conclusion on how much it binds courts confronting an explicit challenge to the federal ban on new machineguns.

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David Codrea’s take on the overeducated moron.

Gun Prohibitionist’s Ultimatum Warrants Appropriate Gun Owner Response

“I would personally suggest the gun control groups develop a BATNA to help induce more good-faith negotiating,” Tom H. Hastings, Director of the Peace and Nonviolence Studies, Conflict Resolution graduate program at Portland State University and Secretary for the Oregon Peace Studies Consortium writes in the Lockport Union-Sun & Journal.

“BATNA?” Hastings asks rhetorically (“Best Alternative to a Negotiated Agreement”).  “It simply means that, if you are trying to negotiate with anyone, it’s important to not only think about ‘what if these negotiations fail,’ but to let the others know what you will be forced to do in that case.”

What does Hastings believe he’s “negotiating,” with whom, and what will he feel compelled to do if his demands aren’t met?

“My choice of BATNA would be, ‘Look gun rights people, we want to negotiate common sense regulations with you,” Hastings explains. “However, literally every time we pass such measures at the local or state level, you work to overcome the will of the people by challenging those commonsense measures in court, with your lawsuits, and it’s all based on the Second Amendment.”

“So we have a best alternative to a negotiated agreement,” Hastings imagines. “Our BATNA is that we are going to stop all other gun control work and focus all our resources on a campaign to repeal the Second Amendment.”

No carrot, just the stick? Give us everything we demand or we’re going to take even more? Hastings’ use of the term “negotiating” invokes nothing so much as Inigo Montoya’s famous “You keep using that word” line from The Princess Bride.

Here’s a counter-BATNA, Mr. Hastings: No. Your move.

I can’t speak for all gun owners the way you presume to speak for all gun-grabbers, but for, say three percent of them (which would still be millions of us), the only response you’ll get is “We will not disarm.”

We’re not interested in negotiating our rights that you and your fellow travelers have no claim to. Come and take them.

We’re not going to surrender the most egalitarian power-sharing arrangement ever devised by men a lot smarter than you so that useful idiots can ensure the state has an unchallengeable monopoly of violence. Besides, we know from experience that no concession will ever be enough (that’s why they call them “totalitarians”), and we know from nature that if you throw a scrap of flesh to a circling pack of jackals, rather than go away sated they will be emboldened to move in closer.

It’s not like your idea is anything new or original. Google “Repeal Second Amendment,” and you’ll see no shortage of egghead dolts who, like you, believe they’re smart but haven’t thought things through about what demanding the same unconditional surrender from an armed populace will result in. The latest rumblings that come to mind are from California Governor Gavin Newsom going full Orwell with his offensive and absurd 28th Amendment.

I see you were proposing the same subversive, reality-denying nonsense back in 2022, when you even showed you were aware of the potential of “Civil War 2.0. With approximately 400 million guns floating around U.S. society and an armed MAGA-driven polarization met by an increasingly armed leftist radical wing, along with evermore virulent rhetoric and escalating numbers walking around open-carrying war weaponry in public…”

To give yourself some semblance of gravitas, you begin your piece by citing Supreme Court Justice John Paul Stevens, who like you, called for repeal of the Second Amendment. But here’s the thing: Never meant to be an easy task, even if you could get the numbers needed to pass an amendment to the Constitution, repealing 2A would still not remove the right to arms. As the Heller majority noted when citing an earlier decision:

“The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’ As we said in United States v. Cruikshank, ‘[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed…’”

And it shall not be—some of us will see to that.

So now it’s back to you, Mr. Hastings. Your silly and offensive BATNA is rejected, we’re not interested. Now do your worst. But do one other thing first: If they ever do pass your sick little fantasy, flesh out how you think those enforcing it (certainly not you or your fellow gun-grabbers by proxy!) are going to make it all happen. And since there hasn’t been much original thought offered from your side so far, don’t forget to threaten using F-15s and nukes!

With “progressives,” every day is Opposite Day. So it figures an aging, grinning academic wearing a stupid peace symbol earring is proposing unleashing the bloody horrors of civil war on the people of the Republic, and doing it in the name of non-violence and democracy.

The Fourth Circuit ignores Bruen again

The Supreme Court’s 2022 Bruen decision held, with crystal clarity, the Second Amendment is an individual right, which extends to keeping and bearing arms not only in one’s home or on one’s property, but in public, with some limited exceptions. Not only did Bruen reaffirm the Second Amendment as a fundamental unalienable right–no second-class right—it established strict scrutiny, the highest level of judicial analysis, for Second Amendment cases. Equally important was this holding:

When the  Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the  Second Amendment’s “unqualified command.”

In other words, anti-liberty/gun schemes are only constitutional if there was a clear historical analogue at the time of the founding.  As one might suspect, some states—Like Maryland—are determined to ignore the Second Amendment and Bruen.

Under current Maryland law,  no one may own, rent, or even touch a firearm without a 16-hour class which includes live fire. There is an 8-hour class required for each permit renewal. Only upon passing the 16-hour course, can one apply for a permit, and the State Police have 30 days to approve or deny applications. So while Maryland is, at least ostensibly, a “shall-issue” state the state puts as many barriers as possible in the path of gun owners, including a seven day waiting period for purchase, and gun registration.

In 2023 a three-judge panel of the Fourth Circuit Court of Appeals took up a challenge to the licensing law and struck it down in consonance with Bruen:

“The challenged law restricts the ability of law-abiding adult citizens to possess handguns, and the state has not presented a historical analogue that justifies its restriction; indeed, it has seemingly admitted that it couldn’t find one.”

On would reasonably think that would have been the end of it. No historical analogue, presumptively unconstitutional. Then the entire Court got into the act (decision available here):

We conclude that the Supreme Court in Bruen foreclosed the plaintiffs’ “temporary deprivation” argument by stating that, despite some delay occasioned by “shall-issue” permit processes, this type of licensing law is presumptively constitutional because it operates merely to ensure that individuals seeking to exercise their Second Amendment rights are “law-abiding” persons.

We hold that the plaintiffs have failed to rebut this presumption of constitutionality afforded to “shall-issue” licensing laws like the handgun qualification statute. So the plaintiffs’ challenge to the HQL statute fails, and we affirm the district court’s award of summary judgment to the state of Maryland.

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‘In Common Use’ Can Ultimately be Used to Make the Second Amendment a Moot Point

Far-fetched? Who knows what will be available to the military and law enforcement in 100 years, and what it means to “the people” of the Second Amendment if the government can deny future technology because it’s “dangerous and unusual,” and not “in common use”?

“The Second Amendment Allows a Ban on the AR-15,” Harvard University Professor of Law Noah Feldman once declared in a Bloomberg/Washington Post “opinion” piece.

That it’s an “opinion” is the one truthful admission in this otherwise absurd act of academic gaslighting. Harvard, Bloomberg, and WaPo are all for eviscerating the right of the people to keep and bear arms and routinely spread whatever lies they can get away with (despite the disingenuous caveat that “This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.”)

“Under current law, the Second Amendment extends only to weapons that are not ‘unusual’ and are ‘in common use’ by law-abiding citizens,” Feldman asserts. “Whether that includes AR-15s is a question the Supreme Court has not yet resolved, although the justices have recently been asked to weigh in. A key question today — though not when the Bill of Rights was ratified — is whether a weapon is ordinarily used for self-defense.”

“To give you a sense of how different things were with respect to gun issues 84 years ago, the court held unanimously that the Second Amendment didn’t protect [short barreled shotguns],” Feldman misstates, citing the case of U.S. v. Miller. That’s actually not what they said at all. In the opinion for that case, Justice McReynolds noted:

“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

They didn’t have evidence because the case wasn’t argued in front of them. Had it been, the military utility of such weapons could have been decisively established, starting with the flintlock blunderbuss:

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The Misinformation Antidote: Protect Yourself, Your Country, and Your Planet

The constant barrage of conflicting truths from various factions contributes to soaring levels of anxiety and depression. Enter “The Misinformation Antidote,” a groundbreaking book that unveils the solution to this pervasive problem.

The book’s positive impact extends beyond its primary mission of combating misinformation. A beneficial side effect emerges—an unveiling of a reality that is more captivating, positive, and diverse than commonly understood. Contrary to the gloomy narratives, the world isn’t as dire as portrayed. As misinformation is neutralized, people from diverse backgrounds can come together to solve previously deemed intractable problems. The antidote creates an environment where individuals prosper and lead enjoyable lives collectively.

In essence, “The Misinformation Antidote” is more than just a book; it’s a guide to navigating the turbulent sea of information, offering a transformative experience that empowers individuals to reshape their perspectives. By embracing this antidote, readers not only fortify themselves against the harmful effects of misinformation but also discover a newfound appreciation for the richness and potential of the world around them. It’s a beacon of hope in a world often clouded by conflicting narratives and a roadmap towards a more informed, positive, and united future.

Author Offers Unique Insights on Fascism, Second Amendment, and More

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When Academics Tell The Truth

We’ve seen the state of gun research in this country. It’s an absolute laughingstock, or it would be if there was an ounce of intellectual integrity anywhere in the science community.

Social science research is always going to be a little bit wonky, in part because experiments are difficult to impossible to conduct. However, that just makes it that much more important to get what research options that remain open to you right. Yet with gun research, not only does that not happen, but those who screw it up are celebrated.

Meanwhile, one researcher got a finding that his field disagreed with and he’s being crucified.

For example, William English, an assistant professor at Georgetown University’s McDonough School of Business, has been subpoenaed, attacked in The New York Times and accused of all sorts of breaches of professional conduct because he had the temerity to administer a huge survey on defensive gun use that was honest.

They are persecuting English in order to, as he put it in The Wall Street Journal, “warn off other academics thinking of doing similar research, and to influence courts where states are losing on the merits.”

English supervised the 2021 National Firearms Survey. Data from this survey of 54,000 American adults estimated that citizens use their guns defensively about 1.67 million times annually; indeed, the survey found that “in most defensive incidents (81.9%) no shot was fired.”

To gun-control activists in politics and the media, this finding had to be marginalized. They don’t want people to know that law-abiding Americans need their freedom.

English said that the “attorneys general of Illinois and Washington started issuing subpoenas” for his “documents and communications.” Meanwhile, members of the media contacted him “armed with politicized talking points identical to those used by the state attorneys general in their subpoenas.”

That is legitimately troubling.

I’ve seen some of the attacks against English, ironically coming from people whose “research” wouldn’t have been deemed acceptable for a middle school science project, and they’re ugly. They claim there are issues with his methodology, and that his research was flawed from the start.

This is funny considering this:

The media, however, could not find any actual problems with the research. English’s survey questions had been peer reviewed. He used a professional survey firm that is also “used by researchers at such institutions as Stanford, Harvard and the Massachusetts Institute of Technology.”

“My survey results are hard to refute because they line up with other independent surveys from Pew and Gallup at the national level,” said English.

In other words, he did everything the way his field demanded and came up with an answer they didn’t approve of, but rather than self-censor like so many others, he published them.

And for that, he’s being attacked by the anti-gun political establishment, the anti-gun media, and his colleagues who share the same sentiment.

It’s like they say, if you’re taking flak, you must be over the target.

English has most definitely been over the target because the truth is an enemy of the anti-gun agenda. We know criminals get guns from illegal sources, and those illegal sources obtain them through some degree of theft. Either they steal them personally or get them from someone who does. That doesn’t make it in the news reports despite that coming directly from the ATF. That’s the truth, but it undermines gun control, so it doesn’t get the headlines that some ridiculous study that claims hunting leads to shootings.

In showing what he did, English broke the cardinal rule of gun research: Thou Must Advance Gun Control

SAF SCORES VICTORY IN CALIFORNIA NON-RESIDENT CARRY CASE

BELLEVUE, WA – The Second Amendment Foundation (SAF) and its partners, in a challenge of California’s ban on non-resident concealed carry, won a victory when a federal judge granted a preliminary injunction in the case.

U.S. District Court Judge Sherilyn Peace Garnett, a 2022 Joe Biden appointee, granted in part and denied in part the plaintiffs’ motion for preliminary injunction. The state has 21 days to file a response, and within 30 days plaintiffs must “meet and confer” with the state and Los Angeles County Sheriff’s Department “to submit a proposed order entering the preliminary injunction consistent with the specific findings” made by the court order.

SAF is joined by the California Rifle & Pistol Association, Gun Owners of America, Gun Owners Foundation, Gun Owners of California and seven private citizens. The LA County Sheriff’s Office is the main defendant, along with Attorney General Rob Bonta and the La Verne Police Department.

In her decision, Judge Garnett observed, “the State bears the burden of showing whether California’s residency requirements for a CCW license is ‘consistent with the Nation’s historical tradition of firearm regulation.” A few pages later, she notes, “the State has not carried its burden at this stage to show that the limitation of CCW licenses to California residents is part of a historical tradition of this Nation.”

“Americans do not leave their Second Amendment right to bear arms at the California border,” said SAF founder and Executive Vice President Alan M. Gottlieb. “California is behind the curve in recognizing that the Second Amendment was incorporated to the states via the 14th Amendment since SAF’s Supreme Court victory in the 2010 McDonald ruling.”

“The writing is clearly on the wall,” added SAF Executive Director Adam Kraut, “when Judge Garnett noted the Court already found that we are likely to succeed on the merits of our argument that California’s residency requirement for CCW applications is unconstitutional. We are confident our challenge will continue to prevail.”

FED. COURT DENIES REHEARING IN CASE AGAINST MINN. YOUNG ADULT CARRY BAN

BELLEVUE, WA – The Eighth U.S. Circuit Court of Appeals has denied a petition for a rehearing in a Second Amendment Foundation (SAF) case which found Minnesota’s ban on carry permits for young adults ages 18-20 is unconstitutional.

The case is known as Worth v. Harrington, and it was filed in June 2021. Joining SAF in this case are the Minnesota Gun Owners Caucus, Firearms Policy Coalition and three private citizens, Austin Dye, Axel
Anderson and Kristin Worth, for whom the case is known. They are represented by attorneys Blair W. Nelson of Bemidji, Minn., and David H. Thompson, Peter A. Patterson and William V. Bergstrom at Cooper & Kirk in Washington, D.C.

In its order, the Eighth Circuit also denied a request for an en banc panel hearing. U.S. District Court Judge Katherine Menendez, a 2021 Joe Biden appointee, ruled in March 2023 that Minnesota’s permitting age restriction is unconstitutional. The case was appealed to the Eighth Circuit, which upheld Judge Menendez decision.

“Clearly, Judge Menendez made the right call in the first place,” said SAF Executive Director Adam Kraut. “As we contended all along, the right of the people mentioned in the Second Amendment was not limited to those over a certain age. Certainly young adults fall within the definition of ‘the people’ ever since they’ve been allowed to vote, and generations before that when they were considered part of the militia, and have been accepted into the military.”

“We expected to prevail at trial and again at the appeals court level,” said SAF founder and Executive Vice President Alan M. Gottlieb. “We are gratified by the Eight Circuit’s decision, and now we will see whether Minnesota submits a petition for certiorari to the Supreme Court. For the time being, we have notched another victory in our ongoing effort to win firearms freedom one lawsuit at a time.”

Imagine What President Kamala Harris Could Do to Guns If She Has Price Control Power

Vice President Kamala Harris rolled out the first of her policy positions and they seem eerily familiar. The Democratic nominee for president wants to attack runaway rising food prices by inserting government to set the prices grocery stores could charge at the checkout counter. That’s not what happens in a free-market society. That’s what happened in the Soviet Union and other failed communist and socialist states, like Cuba and Venezuela.

But what does that mean for gun sales? It could mean everything. If Vice President Harris were to get Congress to go along with her big government price controlling schemes, it’s not a stretch that she could use those same authorities to demand that firearm prices are artificially high and beyond the reach for all but the ultra-rich.

It would be a policy of “If you like your Second Amendment, you can keep your Second Amendment…if you can afford it.”

And recall that we recently discussed the growing trend of courts ruling you don’t have a Second Amendment right to purchase a firearm. Would a Second Amendment challenge to government price fixing succeed?

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SAF PETITIONS SUPREME COURT FOR CERTIORARI IN MARYLAND RIFLE BAN

BELLEVUE, WA – The Second Amendment Foundation (SAF) has filed a petition for certiorari to the U.S. Supreme Court in its continuing challenge of a ban on modern semiautomatic rifles in the state of Maryland, arguing that high court review is necessary to ensure the Second Amendment is “not truncated into a limited right.”

SAF is joined by the Citizens Committee for the Right to Keep and Bear Arms and the Firearms Policy
Coalition, and a private citizen, David Snope. They are represented by attorneys David H. Thompson, Peter A. Patterson, Nicole J. Moss and John D. Ohlendorf at Cooper & Kirk in Washington, D.C.; Raymond M. DiGuiseppe at DiGuiseppe Law Firm in Southport, N.C. The case is known as Bianchi v. Frosh.

The petition was filed after the Fourth U.S. Circuit Court of Appeals ruled that modern semiautomatic
rifles — commonly misidentified as “assault weapons” — are not protected by the Second Amendment because they are “too similar” to a fully-automatic military rifle known as the M16. SAF and its partners contend this reasoning “is becoming a commonplace misapplication” of Supreme Court precedents established by the 2008 Heller ruling, 2010 McDonald decision and 2022 Bruen ruling.

“The Fourth Circuit, as well as other federal courts, are attempting to flip the Supreme Court’s Heller ruling on its head,” said SAF founder and Executive Vice President Alan M. Gottlieb. “They are essentially arguing the arms protected by the Second Amendment are limited only to certain state-approved firearms, which would make it no right at all, but a government-regulated privilege. This is the third time we have petitioned the high court in this case.”

“Certiorari is required in this case,” said SAF Executive Director Adam Kraut, “to correct an increasingly
widespread misunderstanding of the Supreme Court precedent, and the Second Amendment, itself. The specific type of firearm in question is commonly owned across the country, placing it well within the scope of the Second Amendment.”

Rosen: Surgeon General misleads on gun violence

In a July speech advocating for more stringent gun control, President Biden claimed that “More children are killed by a bullet than any other cause of death.” That’s surely an alarming and tragic statistic but a very misleading one.  The use of the word “children” is deceptive, emotionally bringing to mind infants, toddlers and kindergartners. Legally, a “child” can be as old as 17, or even 20 in some states, including those with felony convictions and gangbangers in inner cities, like Chicago.

According to a study by the Centers for Disease Control, “In 2022, Black children and teens were 20 times as likely to die from firearm homicides compared to their white counterparts.”  And the great majority of those deaths are black on black shootings by teenage gangsters, not little kids. And statistically, the kinds of diseases that fatally afflict the elderly in great numbers are rare among youngsters, skewing the causes of death toward guns.

Recently, Vivek Murthy, the Surgeon General of the United States, issued a public declaration that our country is experiencing a “gun violence crisis.”  Conversely, according to the FBI, nationwide homicides decreased by 13% in 2023 despite public perception to the contrary as reflected in a November 2023 Gallup poll that found 77% of Americans believed crime was increasing.

That apparent discrepancy can be explained by terminology, definitions and spin, especially skewing the impact of suicide, which the Surgeon General conveniently includes in his definition of gun violence.  Suicides with the use of a gun account for 56% of all gun deaths. But an act of violence is something you inflict on someone else, not on yourself. Let’s say you’re suffering from severe depression or unbearable pain from a terminal illness, and you rationally chose to end your life, this could be viewed as an act of self-compassion.  It’s not gun violence. If you hanged yourself, instead, would that be “rope violence?”

The disconnect between the overwhelming public perception of rampant crime in the U.S. today and misleading statistics to the contrary are tied to the definition of crime.  It’s true that the homicide rate per 100,000 population has gone down over the past 30 years.  But suicide is not the same as homicide and the public perception of rampant crime goes way beyond “homicides.” It covers pervasive crimes like car thefts, vandalism, rioting, burglaries, muggings, squatting, or flash mobs looting retail stores with impunity.

Even worse are the cybercrimes bilking the elderly of their life savings.  To say nothing of the hordes of illegal aliens criminally crossing our southern border — who then compound the felony by not showing up for their court dates with the forbearance of the president of the United States and his secretary of Homeland Security.

When prosecutors in Democrat-controlled states refuse to charge trespassers, rioters, petty criminals, and radical insurrectionists who construct illegal encampments and occupy buildings on college campuses their crimes go unrecorded in the crime stats.  The political activists who harassed and besieged the homes of conservative Supreme Court Justices whose rulings they disagreed with violated federal law, but they were allowed to persist by politically-motivated Democrat officials in Washington.

The Second Amendment protects an individual’s right to bear arms for whatever reason he or she desires.  While the number of guns in this country has more than doubled in the past 30 years, the decrease in the homicide rate over that period indicates that law-abiding Americans intend those guns for justifiable personal defense or deterrence, as well as for hunting or sport shooting. These days, you’re taking on undue risk by not owning one.  Those intent on crime will legally or illegally obtain guns regardless of gun control laws that unreasonably burden the rest of us.

Although he wears a quasi-naval uniform and carries the three-star rank of Vice Admiral, the Surgeon General of the United States is not a sea-going admiral.  As the “Nation’s Doctor,” he’s an administrator not a practitioner (and he doesn’t make house calls).  He’s a bureaucrat who commands more than 6,000 public health officers of the U.S. Public Health Service Commissioned Corps, and his purview is the physical and mental health of all Americans.

His diagnosis of “gun violence,” which inflates the numbers by including suicide, and his prescription to ban legal so-called “assault weapons” are outside his expertise and authority.  In the immortal words of a real Admiral, David Farragut, “Damn the torpedoes, full speed ahead.”

Uvalde Police Timid, Bungling During School Shooting, New Records Reveal
If you want something done right, do it yourself. That includes protecting family, friends, and neighbors.

Perhaps the greatest rebuttal to calls for confidence in police is the conduct of law enforcement officers at Robb Elementary School shooting in Uvalde, Texas. There, on May 24, 2022, almost 400 cops not only stood around while a lunatic murdered children and teachers, but they prevented parents from stepping in to do what those in uniform wouldn’t. Now, new reporting gives greater insight into the depths of the officers’ inaction that day, and just how unwise it is to rely on them for protection.
Documented Police Failures

The failures of police officers in Uvalde aren’t open to dispute.

“At Robb Elementary, law enforcement responders failed to adhere to their active shooter training, and they failed to prioritize saving the lives of innocent victims over their own safety,” concluded a report by the Texas House of Representatives Investigative Committee on the Robb Elementary Shooting.

A U.S. Justice Department review similarly found “failures in leadership, command, and coordination.”

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NRA, SAF File Brief In Case Concerning Carry Across State Lines

Massachusetts restrictive gun laws continue to come under well-deserved fire because of their failure to respect the Second Amendment.

We reported over the past week how gun owners have started an initiative petition to put a repeal of the new sweeping gun law on the statewide ballot and about the National Shooting Sports Foundation (NSSF) donating $100,000 to the Gun Owners’ Action League (GOAL) to help fund that group’s lawsuit challenging the constitutionality of the law. Now two gun-rights groups have filed an amicus brief in another Massachusetts case challenging the state’s permit law that restricts lawful gun owners from carrying a firearm in the state.

The case involves New Hampshire resident Dean F. Donnell, Jr., who was stopped by police in Massachusetts and charged for carrying a firearm without a license. In the case named Commonwealth of Massachusetts v. Donnell, the National Rifle Association (NRA) and Second Amendment Foundation (SAF) filed their 38-page brief explaining their interest as that of their members’ ability to travel with firearms legally across state lines, to use them for lawful purposes.

“There is no historical tradition that justifies the non-resident licensing scheme now in place in the Commonwealth of Massachusetts,” said SAF founder and Executive Vice President Alan M. Gottlieb. “Looking back, a government license has not been required to exercise the right to carry arms. Such licenses came into existence only in the late 19th Century, and they applied only to the concealed carry of firearms. Open carry was unrestricted.”

In the brief, NRA and SAF argue that the law doesn’t meet the second Bruen standard of proving a historic precedent exists for such a restriction.

“When the Second Amendment’s plain text covers an individual’s conduct, the government must justify its regulation by demonstrating that it is consistent with the nation’s historical tradition of firearm regulation,” the brief states. “Because the Supreme Court has already held that the Second Amendment’s plain text protects carrying handguns publicly for self-defense, the Commonwealth bears the burden of justifying its regulation with historical tradition. It has not and cannot do so.”

The brief further argues that no historical tradition exists that justifies the Commonwealth’s nonresident licensing scheme.

“Historically, nonresidents traveling in a state were treated no worse than residents with regard to firearm carry,” the brief states. “If they were treated differently under the law, it was generally to exempt travelers from carry restrictions—not to subject them to more onerous burdens than residents. Moreover, a government license was not historically required to exercise the right to carry arms; carry licenses that applied to free citizens were not enacted until the late-19th-century and applied only to concealed carry, leaving open carry unrestricted.”

Adam Kraut, SAF executive director and one of the attorneys in the case, said the act of just getting  permit puts a huge burden on non-resident gun owners.

“New nonresident license applications require an in-person appointment in Massachusetts, necessitating an extra (unarmed) trip to the Commonwealth—which, especially for residents of distant states, becomes a barrier to entry that may be financially untenable,” Kraut said.

The NRA and SAF conclude in the brief that since the law violates the Second Amendment, the district court’s order of dismissal should be confirmed.

BLUF:
While it is true that the Court has shown a willingness to take an increased number of gun-related cases in short succession of late, it is also noticeably taking fewer cases overall each term. As more criminal justice system controversies arise, the justices may have little room on their plates for additional Second Amendment work.

It’s not obvious which factors will weigh heavier on the minds of the Justices. It almost never is when it comes to reading the tea leaves on potential Supreme Court cert grants. What is for certain is that gun-rights advocates currently have their best vehicle to date for getting the Court to weigh in on an assault weapon ban. That is by no means guaranteed to be enough, though.

Analysis: Will This Be the Year SCOTUS Takes an ‘Assault Weapons’ Ban Case?

In a recent ruling upholding Maryland’s ban on so-called assault weapons, a federal appeals court gave gun-rights advocates their best opportunity yet to entice the Supreme Court to strike down those bans nationwide. Whether the Justices are prepared to oblige them is another matter entirely.

In a divided opinion last week, the en banc Fourth Circuit Court of Appeals delivered its long-awaited judgment of Maryland’s ban on AR-15s and other semi-automatic weapons. By a ten-to-five margin, the court’s majority upheld the ban.

“The assault weapons at issue fall outside the ambit of protection offered by the Second Amendment because, in essence, they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense,” Judge Harvie Wilkinson wrote in Bianchi v. Brown.

Rather than greet the preservation of one of the movement’s longest-standing targets with dejection, some gun-rights advocates celebrated the outcome. Pro-gun attorney and legal commentator Mark Smith called the ruling “100% expected” and “excellent news for [the Second Amendment]” in a social media post.

“It should be a clear glide path to SCOTUS for them to hear an ‘assault weapon’ ban case next term (2024-25),” he reasoned.

Indeed, such optimism is not entirely unwarranted. Continue reading “”

2 Contradictory Decisions on AR15 Rifle Bans Reflect Clashing Views of Supreme Court Precedents

Last month, a federal judge ruled that New Jersey’s ban on AR-15 rifles is unconstitutional. A week later, a federal appeals court deemed a similar ban in Maryland perfectly consistent with the Second Amendment.

These dueling decisions reflect a basic disagreement about whether the Second Amendment allows the government to ban guns that are commonly used for lawful purposes, as opposed to “dangerous and unusual weapons.” The answer seems clear based on the Supreme Court’s precedents.

The court’s landmark 2008 decision in District of Columbia v. Heller, which overturned a local handgun ban, noted “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’” which it said did not encompass firearms “in common use” for “lawful purposes like self-defense.” Since handguns are “the quintessential self-defense weapon,” it said, the fact that they are also commonly used by criminals could not justify prohibiting law-abiding Americans from owning them.

The court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen reiterated that point. “Whatever the likelihood that handguns were considered ‘dangerous and unusual’ during the colonial period, they are indisputably in ‘common use’ for self-defense today,” it said. Colonial laws that “prohibited the carrying of handguns,” the court concluded, “provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.”

AR-15s likewise are “unquestionably in common use today.”

Since 1990, more than 28 million “modern sporting rifles” have been sold in the United States, and as many as 24 million Americans have owned AR-15s or similar rifles for lawful purposes such as self-defense, hunting and recreational target shooting.

Like the law at issue in Heller, U.S. District Judge Peter Sheridan noted last month, New Jersey’s AR-15 ban amounts to “the total prohibition (of) a commonly used firearm for self-defense … within the home.” And under Heller, “a categorical ban on a class of weapons commonly used for self-defense is unlawful.”

Sheridan highlighted testimony showing that “AR-15s are well-adapted for self-defense.” When it upheld Maryland’s AR-15 ban last week, by contrast, the U.S. Court of Appeals for the 4th Circuit declared that such rifles are “ill-suited and disproportionate to the need for self-defense.”

Where Richardson sees self-defense advantages, the majority sees features that make AR-15s especially deadly in mass shootings.

These clashing perspectives illustrate the folly of trying to draw a legal distinction between guns that are suitable for legitimate purposes and guns that supposedly are good for nothing but killing innocent people. [spoiler alert: there are only guns; no guns are “more legitimate or “more lethal”]

Continue reading “”

BLUF:
Walz isn’t just lying about his military record. He has no problem lying to advance his gun control goals. For someone who frequently says he is a hunter, he knows the statements that he is making about “weapons of war” are a lie.

Behind Tim Walz’s ‘Hunter’ Facade Is A Plan To Take Your Guns

In just a few sentences, Gov. Tim Walz made false claims about assault weapons, background checks, CDC research, and reciprocal carry.

“I spent 25 years in the Army and I hunt,” Gov. Tim Walz, D-Minn., declared in 2018. “I’ve been voting for common sense legislation that protects the Second Amendment, but we can do background checks, we can do CDC research, we can make sure that we don’t reciprocal carry among states. And we can make sure those weapons of war, that I carried in war, is the only place where those weapons are allowed to be carried.” In just a few sentences, Walz made false claims about assault weapons, background checks, Centers for Disease Control (CDC) research, and reciprocal carry.

First, take his claims about “weapons of war.” Put aside that Walz never was in war, let alone carried a weapon in war. The term “assault weapon” is nonsensical. Even the Associated Press Stylebook, which carries water for Democrat narratives, recognizes that fact. As the AP acknowledges, the term conveys “little meaning” and is “highly politicized.”

Politicians will continue calling AR-15s “weapons of war” and “assault weapons,” as Walz does. Many seem to think “AR” means assault rifle when it stands for ArmaLite rifle, after the company that developed it in the 1950s. But at least some of the media is now recognizing that “AR- or AK-style rifles designed for the civilian market,” as the AP Stylebook says, are fundamentally different than military weapons.

“The preferred term for a rifle that fires one bullet each time the trigger is pulled, and automatically reloads for a subsequent shot, is a semi-automatic rifle,” according to the AP Stylebook. “An automatic rifle continuously fires rounds if the trigger is depressed until its ammunition is exhausted. Avoid assault rifle and assault weapon, which are highly politicized terms that generally refer to AR- or AK-style rifles designed for the civilian market, but convey little meaning about the actual functions of the weapon.”

AR-15s and AK-47s are frequently called “military-style weapons.” But the key is “style” — they are like military guns in how they look, not in how they operate. The guns are not the fully automatic machine guns used by the military, but rather semi-automatic versions of those guns.

For someone who says he is a hunter, Walz surely knows this. The weapons he wants to ban operate exactly the same as any hunting rifle he would use. The civilian AR-15 uses essentially the same sorts of bullets as small game-hunting rifles. It also fires at the same rate (one bullet per pull of the trigger), the bullet travels at the same speed, and does the same damage. Still, no military anywhere uses the civilian versions of either of these guns.

But hunting isn’t the critical issue here. Semi-automatic weapons protect people and save lives. Single-shot rifles require manual reloading after every round, and people may not have the time to reload their gun when they face multiple attackers or fire and miss.

Most mass public shootings don’t use any type of rifle. Fifty-three percent involve only handguns, and only 17 percent solely involve rifles of any variety.

It should be little wonder that banning “assault” rifles did very little. During the 1994-2004 ban, the number of attacks with “assault weapons” didn’t fall, and there was virtually no change in total mass shootings.

Continue reading “”

Second Circuit Rules Legal Gun Ownership Not Probable Cause for Warrantless Search

The Second Circuit Court of Appeals hasn’t traditionally been a welcoming place for gun owners. This is the same appellate court that originally upheld New York’s “may issue” carry regime before the Supreme Court overturned their decision in Bruen, and since then the court has upheld many of New York’s post-Bruen restrictions on lawful gun owners.

Today, however, a three-judge panel on the court got it absolutely right when it ruled that a Connecticut police officer isn’t entitled to qualified immunity after handcuffing, detaining, and conducting a warrantless search on a resident after he produced a valid handgun permit.

Defendant-Appellant Nicholas Andrzejewski, an officer of the Waterbury,Connecticut police department, appeals from the judgment of the United States District Court for the District of Connecticut (Arterton, J.) denying in part his motion for summary judgment on the grounds that his purported conduct was not shielded by qualified immunity.

That conduct, as alleged by Plaintiff-Appellee Basel Soukaneh, is that in the course of a routine traffic stop, Andrzejewski unlawfully and violently handcuffed and detained Soukaneh in the back of a police vehicle for over half an hour and conducted a warrantless search of Soukaneh’s vehicle after Soukaneh presented a facially valid firearms permit and disclosed that he possessed a firearm pursuant to the permit.

On appeal, Andrzejewski argues we should reverse the district court’s denial of qualified immunity because the presence of the lawfully owned firearm in the vehicle gave him the requisite probable cause to detain Soukaneh, search the interior of his car, and search his trunk.

Andrzejewski’s argument is essentially that, by exercising our Second Amendment rights, we give up our Fourth Amendment right to be secure against unreasonable searches and seizures. In fact, he basically maintained that possessing a valid pistol permit gave him reasonable suspicion to search Soukaneh’s vehicle for some evidence of wrongdoing.

After the district court ruled that the officer wasn’t entitled to qualified immunity for his actions, Andrzejewski introduced a new argument in his appeal to the Second Circuit; it wasn’t solely Soukaneh’s gun permit that led him to handcuff the gun owner and search his car, it was the fact that Soukaneh had stopped his vehicle in a “high crime area known for drug transactions”.

As the panel noted, however, “a location’s reputation as a high crime area alone is typically not enough to suggest reasonable suspicion [of a crime], let alone probable cause.” And the court found that Andrzejewski offered no evidence whatsoever that Soukaneh was illegally possessing a gun when he was confronted by the officer. To the contrary, as a matter of fact. Andrzejewski was able to conclusively determine that Soukaneh had a valid pistol permit and lawfully possessed the firearm that he informed the officer he was carrying.

The desire to confirm the legitimacy of the facially valid firearms permit that Soukaneh presented did not—with nothing more—provide Andrzejewski with probable cause for the half-hour or longer handcuffed detention that occurred.

It is uncontested that Soukaneh presented Andrzejewski with a gun license, the legitimacy of which Andrzejewski himself admits he had no reason to question. Moreover, Andrzejewski concedes that he was informed of the facially valid license before Soukaneh told him that he had a gun and specified its location.

Andrzejewski does not allege that the permit appeared abnormal in any fashion or that Soukaneh engaged in any suspicious or threatening behavior. On the facts before us, Andrzejewski does not provide an articulable reason why he, or any other reasonable officer, could conclude that there was probable cause to believe that Soukaneh possessed his firearm unlawfully in violation of Section 29-38(a).

 To find otherwise would consign those validly carrying firearms pursuant to a license to automatic detention because it would effectively presume that gun permits are invalid until proven valid, or that lawfully owned guns are per se contraband until proven otherwise. Such a finding would effectively render armed individuals’ Fourth Amendment rights meaningless when they are lawfully carrying firearms.

As common sense as that position is, it’s still somewhat surprising to see the Second Circuit panel unanimously reach that conclusion… especially since the panel was comprised of two Biden appointees and one judge appointed by Barack Obama.

Andrzejewski could still appeal to an en banc panel of the Second Circuit or take his case directly to the Supreme Court, but I doubt he’s going to find a more receptive audience for his arguments at SCOTUS. The Supreme Court has already declared that the Second Amendment isn’t a second-class right, so I doubt a majority would go along with the officer’s contention that exercising your right to keep and bear arms negates your Fourth Amendment rights altogether.

Maryland, AR-15s and the Fourth Circuit

Should you be so unfortunate as to live in Maryland, and more unfortunate as to own an AR-15, you’re a criminal, as the Fourth Circuit Court recently affirmed. This despite the Supreme Court’s Heller, McDonald and Bruen decisions having made clear the Second Amendment acknowledges the individual right to self-defense in one’s home and elsewhere, and common and usual weapons are presumptively constitutional. Unfortunately none of those decisions specifically mention the AR-15, the most popular—common and usual–rifle of its type in America. This opened the gun ban door a crack, which the 4th Circuit majority used to push the door wide open:

We have described the AR-15’s capacities in abundant detail to demonstrate just how far outside the animating purposes of the Second Amendment this weapon lies. While we know that the AR-15 thrives in combat, mass murder, and overpowering police, appellants have failed to demonstrate that the weapon is suitable for self-defense. This is likely because such a showing would be difficult to make. Indeed, many of the weapon’s combat-functional features make it ill-suited for the vast majority of self-defense situations in which civilians find themselves.

It would be hard to imagine a more deceptive and less informed recitation of legal mush. The majority decision goes on to claim the “heightened firepower” of the AR-15 is a terrible risk of overpenetration, and the 30-round magazine, standard since the Vietnam era, is also useful for mass murder, because self-defense shootings commonly only involve a few shots. The majority would also have us believe the AR-15 is particularly useless for home defense. They conclude their specious arguments with this:

In sum, the AR-15—with its military origination, combat-functional features, and extraordinary lethality—has “the same basic characteristics, functionality, capabilities, and potential for injury as the M-16.” And its all too frequent use in terrorism, mass killing, and police murder shows that the AR-15 offers firepower ill-suited and disproportionate to fulfilling the Second Amendment’s purpose of armed self-defense. Therefore, just like the M16, the AR-15 is “most useful in military service” and “may be banned” consistent with the Second Amendment.

Where to begin? The AR-15 has been on the civilian market since the 1960s, and while Armalite—“Armalite Rifle,” not “Assault Rifle” certainly wanted military contracts, only the Air Force initially adopted the rifle for base defense. The Army eventually adopted it, and after decades of development, the select-fire M4, not available to civilians, is the current issued rifle.

Both the M4 and AR-15, the M4’s semiautomatic only, look-alike cousin, fire the .223/5.56 NATO cartridge, which is of only intermediate power, and has long been known as an unreliable penetrator and man stopper. The Military is currently developing a higher-powered cartridge, and rifle.

Is the AR-15 a “common and usual” arm?  Best estimates place more than 23 million in citizen’s hands. However, Americans have purchased more than a million guns a month for 60 straight months, so that figure is surely low.

“Firepower” is a military concept inappropriately applied to individual arms. The majority’s argument is emotion-laden and obviously taken directly from the writings of anti-liberty/gun cracktivists, while the dissent is well-reasoned, relying on the law, the Founder’s intent and accurate history.

Obviously, the AR-15 is not “most useful in military service,” which is why the automatic-fire capable M4 is the issue military rifle. Gun banners hope to be able to ban any class of firearms, in this case, a semiautomatic rifle of intermediate power. That precedent, if upheld, would allow the banning of all semiautomatic firearms, which, like the AR-15, are useful for self-defense.

They also hope to ban “large capacity” magazines for the same reasons by using the same tactics. While it’s true most armed encounters involve relatively few rounds fired, attacks by multiple armed thugs are becoming more common, in and out of the home. In such encounters, a 30-round magazine can be the difference between life and death.

Certainly, we carry handguns because it’s difficult to carry long guns of any type as we go about our daily business, but because handguns are more convenient does not make rifles unconstitutional. Anyone knowingly entering an armed encounter with less than a rifle is looking to die. The police are increasingly abandoning shotguns and adopting AR-15s for patrol carry. Are the police now the military? Should citizens be less well armed, less able to defend themselves?

The 4th Circuit has now clearly established a split among the lower courts, which will allow the Supreme Court to grant cert and further define the limitations of the state in banning popular, common and usual guns. In our uncertain times, a decision in line with their Heller, McDonald and Bruen jurisprudence would be welcome, and conducive to the preservation of our representative republic.