Category: RKBA

There is an axiom from General Patton I already knew:
“A good plan, violently executed now, is better than a perfect plan next week.”
and a phrase I learned later, the official version of which is:
Surprise, Speed, Violence of Action, that go hand in hand.
And unto that, you can’t be cowardly

Nashville police talk response, illustrates key point

It wasn’t that long ago when a lot of headlines claimed that Uvalde police failed to enter Robb Elementary School due to fears over the shooter’s AR-15. This was, of course, taken as evidence that we should ban so-called assault weapons.

In Nashville, though, something different happened. While the killer also had an AR-15, the police responded very differently.

The heroic police officers who stopped a gunman at a Nashville Christian school March 28 have spoken out about their response, telling reporters they entered the school “without hesitation.”

Six people were killed when the shooter, Audrey Hale, entered The Covenant Christian school in Nashville and opened fire with two “assault-type” rifles and a handgun. Within minutes, Nashville Police entered the school and subdued the shooter, saving the lives of countless potential victims.

“We’ve trained for incidents like this for years, with the thought that if it ever happened we would not hesitate,” Nashville Metro Chief of Police John Drake told reporters. “We would go in and we would do whatever was needed for the safety of those involved.”…

When Englebert heard gunshots, he told reporters he “couldn’t get to it fast enough” as he searched for a staircase, understanding that the shots were coming from the second floor. Englebert revealed that when he “found himself at the front of the stack” he realized he wasn’t wearing rifle-grade body armor for protection.

Now, let’s compare the shootings in Uvalde to Nashville for a second. Uvalde resulted in 21 innocent lives taken while Nashville resulted in six.

That’s six too many, we can all agree, but what a difference an appropriate police response can make, isn’t it? And Englebert had ample reason to delay, not wearing sufficient armor, and he didn’t. He went in and put the threat down.

While many still want to fixate on the kinds of firearms used or the laws surrounding them, time and time again we see that the secret to minimizing the impact of these shootings isn’t a new law restricting people’s freedom, it’s having a quick and aggressive response.

Police were on the scene and engaged the shooter within minutes in Nashville. In Uvalde, it was 1 hour and 14 minutes. How many lives would have been saved if the cops in Uvalde had responded similarly to those in Nashville?

Yet let’s also look at a couple of other shootings that had a quick and aggressive response.

First, let’s look at White Settlement, TX.

In that instance, a killer decided to try and shoot up a church service–churches being a favorite target of these knobs for some reason–and it didn’t work out for him. A volunteer working security at the church put a round in his head within mere seconds. The death toll not counting the human-shaped filth? Two.

Then we have Greenwood Park Mall. In that case, the goblin decided to shoot up a shopping center, another popular target. The problem with that plan was that an armed citizen put the killer down quick, fast, and in a hurry. The death toll, again not counting the shooter? Three.

It seems like a quick response from the police is good, but having an armed individual there on the scene is better.

The police in Nashville should be commended for how well they did their jobs. I take nothing away from them. They did it and did it quickly.

Yet when someone is there on the scene, the death toll is greatly reduced. It’s a blip on the radar, then quickly buried by whatever celebrity news the media thinks is more important.

The issue isn’t access to guns–the Nashville shooter had a handgun and could have killed just as many people with it, for example–but having armed people in these places ready and willing to respond.

LETTER: On the U.S. Constitution

Last week, I wrote a letter outlining Sir William Blackstone’s influence on America’s Founders with regard to the Declaration of Independence. Here I will present his impact on the Constitution of the United States.

A. No taxation without representation

The Declaration was a document listing grievances against a government which the signers believed had failed to operate in accordance with the laws of nature. Chief among the grievances listed in the Declaration was the fact King George violated the “laws of nature and of nature’s God” by “imposing taxes on us without our consent.” Colonies were taxed but denied representation in Parliament. In contrast, the Constitution documents how the Founding Fathers believed that an ideal government, in submission to the law of nature, should operate. Accordingly, the Constitution sought to remedy the taxation problem by requiring in Article I, Section 7, that bills for revenue originate in the House of Representatives, the body of government closest to the American people.

B. The unalienable right to property

An understanding of Blackstone’s beliefs on property rights is impossible apart from an understanding of his beliefs on happiness, for he believed that the latter depended on the former. Blackstone turned to the revealed law of God for “the only true and solid foundation of man’s dominion over external things.” He referred to Genesis chapter one wherein the Creator gave man “dominion over all the earth.” Blackstone stated a right to property “tends to man’s real happiness, and therefore justly concluding that . . . it is a part of the law of nature.” Likewise, according to Blackstone, the converse is true—denial of property rights is “destructive of man’s real happiness, and therefore the law of nature forbids it.” When the Framers engrafted the right to property into the Constitution—with all of its complexities and exceptions—the theories of Blackstone were, without a doubt, of paramount influence.

C. The unalienable right of self-defense

Blackstone’s view of the right to bear arms is stated in the following quote: “The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense . . . is indeed, a public allowance under due restrictions, of the natural right of resistance and self-preservation.”

The Second Amendment of the United States Constitution provides that 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.” The American belief in the right to bear arms has its roots in “civil jurists of the period who had specifically dealt with the question of self-defense as a natural right.” To them, a failure to defend oneself against unlawful aggression amounted to suicide by inaction.

As one can see, our nation’s Biblical foundations run deep. This is just a fraction of the evidence that is available to those willing to seek truth and knowledge. But due to apathy, the distractions of life, or willful rejection, America is allowing its heritage and history to perish, and in the process, her people perish.

Tom Reilly

Joseph Plains

Gun owners suing the NYPD say the agency is making it ‘impossible’ to qualify for a handgun

A group of gun owners in New York and New Jersey is suing the NYPD division that reviews applications for firearm permits and licenses, arguing that the NYPD’s application requirements are “impossible to meet.”

The class-action lawsuit, filed in federal court last month, argues that a lengthy backlog in the licensing division “paralyzes” people who want to legally exercise their Second Amendment rights. The gun owners want the courts to appoint a federal monitor to oversee the gun licensing team.

“They [license division staff] have shown time and again that they will infringe on the rights of gun owners and this court has a duty to stop this infringement,” the suit states.

The NYPD declined to comment on pending litigation.

The plaintiffs include a former prosecutor, a National Rifle Association-certified firearms instructor, a gun store employee and a truck driver. All of them have successfully obtained gun licenses in other states but have struggled to complete the process in New York City.

After the U.S. Supreme Court overturned New York’s strict concealed carry laws last year, ruling that the Second Amendment is not a “second-class” right, many gun owners celebrated what they hoped would be a loosening of the state requirements to own and carry a gun. Instead, the state legislature quickly passed a package of laws that created even more requirements for legal gun ownership, prompting a flood of lawsuits.

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AAR/AAN 2A Newsletter for April 5

Happy Wednesday,

The country changed Monday. Now, a majority of states no longer require their citizens to obtain a permission slip from the government before carrying a defensive firearm.

Florida became the 26th state — the majority state — when Gov. Ron DeSantis signed an unlicensed concealed-carry bill. Two more states are close behind Florida. Simply put, we are winning. This is the biggest restoration of our Second Amendment rights for decades, and massive pro-gun news.

Armed American Radio and Armed American News are here to bring you the latest updates from a gun rights perspective that the mainstream media will never touch.

Please share this weekly newsletter with as many folks as you can reach. We’re all in this together, and as gun-hating, freedom-hating, Marxist Joe Biden is demonstrating every single day, this fight is far from over.

Only state left that only allowed residents to carry without a permit.
Blame the usual dense minded politicians who didn’t want to specifically bar non-residents, but wrote the law such that it did. Hopefully their goobernor will sign it.

I think Crenshaw is trying to regain some of the respect he lost when he was off advocating Red Flag laws.

Cue Captain Renault

Fact check: Democrats distort the record on guns after Nashville shooting

One week after a shooter opened fire in a Nashville, Tennessee, Christian school and killed six people, including three children, Democrats have continued to press for an assault-style weapons ban they have sought for years.

Democrats accused their Republican counterparts of blocking legislation that would protect children at school from mass shootings, while GOP lawmakers insisted that further limits on gun ownership would not have stopped the Nashville attack or others like it.

And while Democrats still don’t have the votes yet to advance an assault-style weapons ban, they have relied on occasionally misleading rhetoric to push for one anyway.

Here is a fact check of some of the latest Democratic gun arguments.

“[We’ve had] more school shootings than days in the year so far in 2023.” — Sen. Chris Murphy (D-CT), CBS’s Face the Nation, April 2

This is a misleading claim from Murphy.

The Connecticut Democrat has long served as a voice for gun control advocacy due to the painful history of his home state, where a school shooter claimed the lives of more than two dozen people, most of them children under 7 years old, in 2012. Murphy was the congressman representing the district of the school at the time.

He appeared to cite statistics from the K-12 School Shooting Database, a data resource compiled by the Violence Project.

That database claims 95 shooting incidents have taken place at schools so far in the 93 days of this year.

But the claim is misleading because of just how broadly the group defines a shooting incident. The total includes any incident “when a gun is fired, brandished (pointed at a person with intent), or bullet hits school property, regardless of the number of victims, time, day, or reason,” according to the Violence Project.

That means, for example, that a gang-related shooting near a school during which a bullet strikes a sidewalk on a weekend, with no students present, would still count toward the total number of school shootings for the year.

Most people would provide a very different definition of a school shooting, and the type of shooting that occurred in Nashville is much rarer. According to the same dataset, only 105 school shooting incidents since the 1970s have involved “indiscriminate shooting.”

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Uh Oh…New York Supreme Court Rules the State’s Red Flag Confiscation Law is Unconstitutional

Gosh, this hasn’t been a good week for America’s gun control industry. First Governor Ron DeSantis signed permitless concealed carry into law, tipping the balance in favor of states that don’t require a government-issued permission slip to keep and bear arms. That was traumatizing enough for the forces of civilian disarmament.

Today, however, another blow has landed. New York’s Supreme Court — which for some damned reason is the second highest court in the Empire State — has ruled that the state’s due process-free red flag firearm confiscation law is unconstitutional. Go figure.

The ruling, written by Judge Craig Stephen Brown, makes it clear how an individual’s civil rights are violated under the current law . . .

Without the requirement of any input from a medical or mental health expert, the Court is required to make a determination of whether “the respondent is likely to engage in behavior that would result in serious harm to himself, herself, or others in…section 9.39 of the mental hygiene law.” Under Mental Hygiene Law, a person’s liberty rights cannot be curtailed unless a physician opines that a person is suffering from a condition “likely to result in serious harm.” Further, in order to extend any such curtailment of liberty beyond 48 hours, a second doctor’s opinion must be obtained and such opinion must be consistent with the first doctor’s opinion.

Absent from New York’s Red Flag Law is any provision whatsoever requiring even a single medical or mental health expert opinion providing a basis for the order to be issued. New York’s Red Flag Law, as currently written, lacks sufficient statutory guardrails to protect a citizen’s Second Amendment Constitutional right to bear arms.

In other words, the New York legislature, in its unyielding zeal to disarm as many citizens as possible, didn’t give the slightest thought to the protection of a targeted individual’s civil rights when they wrote their red flag gun confiscation law. The only thing they cared about was grabbing the guns.

As a result, using a quote from McDonald v. Chicago, Judge Brown concluded . . .

As a result, using a quote from McDonald v. Chicago, Judge Brown concluded . . .

“Second Amendment rights are no less fundamental than…Fourth Amendment rights (the right to liberty), and must be afforded the same level of due process and equal protection.” Accordingly, this Court joins the Monroe County Supreme Court in holding that, “under CPLR 63-a, in order to pass constitutional muster, the legislature must provide that a citizen be afforded procedural guarantees such as a physician’s determination that a respondent presents a condition ‘likely to result in serious harm,’ before a petitioner files for a [temporary extreme risk protection order] or [extreme risk protection order].

Since this standard is required to prevent a respondent from being deprived of fundamental rights under the Mental Hygiene Law, then anything less (as contained in 63-a) deprives a citizen of a fundamental right without due process of law.” This Court declares [New York’s Extreme Risk Protection Law] to be unconstitutional. 

You can read the full ruling here.

The New York Supreme Court, then, has concluded exactly what we and every other gun rights supporter have been arguing since the first red flag confiscation order was passed in California. They deprive gun owners of their basic, constitutionally protected civil right to due process, frequently issuing ex parte confiscation orders for which the gun owner wasn’t even present to defend himself.

Again, today’s ruling was issued by New York’s Supreme Court. The highest court in New York is the Court of Appeals. New York Attorney General Letitia James’ minions are no doubt already hard at work drafting their filing for an appeal, so this battle is far from over. Still, it’s a positive step and one that will upset the state’s rabid gun-grabber community, lead by none other than Governor Kathy Hochul, to no end…and who could quibble with that?

The Footnote to End All Gun Control

The United States of America is founded on the presumption of innocence. After the Supreme Court’s landmark New York State Pistol Rifle Association v. Bruen Supreme Court decision, there is now a presumption that gun laws are unconstitutional unless the government can prove there was a similar law at the time of the ratification of the Second Amendment.

According to the Bruen decision, the interest balancing test does not apply to Second Amendment cases. The courts can only rely on the original text, history, and tradition of the Second Amendment.

This decision put most anti-gun politicians and advocates in a precarious position. Almost no gun control existed at the time of the Second Amendment’s ratification.  With the combination of little to no supporting historical evidence and without leniency from the previous interest balancing test, gun control advocates will have a much harder time of successfully passing legislation that will defeat SCOTUS’s new test. The anti-gun side had to find something in history that would save gun control laws.

Anti-gun state and gun control advocates usually point to the Sir John Knight’s Case that challenged the Statute of Northampton. According to the anti-gun side, the law forbids carrying a firearm in public. Still, most legal scholars agree that it banned the carrying of a gun in public only if the intent is to terrify the people. Without many other examples of gun control laws, the anti-gun side must base their arguments on this case.

Unfortunately for the gun control side, the Supreme Court addressed the Sir John Knight’s Case and others like it.

According to Footnote 11 of the Bruen decision, whenever multiple interpretations can be taken from a case, the Supreme Court will favor the interpretation that favors the Second Amendment. This demand puts the burden on the state to prove their analog is consistent with the original text, history, and tradition of the Second Amendment.

Footnote 11 reads:
“The dissent discounts Sir John Knight’s Case, 3 Mod. 117, 87 Eng. Rep. 75, because it only “arguably” supports the view that an evil-intent requirement attached to the Statute of Northampton by the late 1600s and early 1700s. See post, at 37.

But again, because the Second Amendment’s bare text covers petitioners’ public carry, the respondents here shoulder the burden of demonstrating that New York’s proper-cause requirement is consistent with the Second Amendment’s text and historical scope. See supra, at 15.

To the extent there are multiple plausible interpretations of Sir John Knight’s Case, we will favor the one that is more consistent with the Second Amendment’s command.”

Because SCOTUS referenced the case in a footnote doesn’t mean the state will not try to use Sir John Knight’s Case. We have seen states argue that they can use laws from the ratification date of the Fourteenth Amendment to defend their anti-gun statutes. The Fourteenth Amendment was ratified shortly after the Civil War ended when states passed laws to prevent formerly enslaved people from getting firearms. Some courts might even accept these arguments, but it is delaying the inevitable.

SCOTUS laid down a straightforward test for gun laws. If a law is inconsistent with the plain text, history, and tradition of the Second Amendment, it must be thrown out. This new test puts the burden on the states to prove that their law is compatible with the Second Amendment.

Under Bruen’s “Text/History/Tradition” standard, I’m not the only one who thinks this is will be ripe for being ruled unconstitutional

Encounter with Yuma Police Officer and the Hughes Amendment

Normally, I make appearances on the Russ Clark Show, a local radio show with a national audience, once a week in the studio. One morning, after finishing the drive-time radio show, I walked out to my vehicle, ready to take on the rest of the day. As I approached my vehicle, I saw a Yuma City Police vehicle approaching in the parking lot of the radio station.

I opened my vehicle door and reached inside for a camera, as I thought pictures of such a police car might be useful for future articles. As I was half inside the vehicle, I noticed the police car pull up in front of me with the window rolled down. The officer said, “Are you Mr. Weingarten?” I said I was.

The Hughes Amendment was passed under dubious circumstances as part of the passage of the Firearms Owners Protection Act in 1986.  Second Amendment supporters, particularly in the NRA, had been working for years to reform the more odious overreach of the 1968 Gun Control Act. The leadership in the Congress, controlled by Democrats, was opposed, even though a majority of the Congress was willing to vote in the reforms.

The NRA was able to invoke a seldom used rule, a discharge petition. If a majority of House members would sign a petition to bring the reform bill to a vote, the leadership could be overruled.

Police who know of the Hughes Amendment are deep into the gun culture.

The Hughes Amendment has been interpreted to forbid sales of full-auto firearms to ordinary citizens if the firearms did not have a tax stamp prior to 1986, with some relatively minor and expensive exceptions (such as a license to manufacture).

I told the officer I was aware of the Hughes Amendment. I had listened to the original, crucial, and seeming underhanded vote in the House, and I would probably discuss it on the radio at some time.  It appears the vote was done legally if done with a dubious voice vote. Here is a video of the debate and the Amendment:

The officer assured me many officers were strong proponents of the Second Amendment and hated seeing infringements such as the Hughes Amendment.

Several police officers have communicated similar comments. They are a minority of officers, but they are not irrelevant. Some officers have complained of being used as political props during debates about Second Amendment issues, for example, being ordered to attend City Council meetings as a show of support when restrictive gun measures are being debated.

They are usually required, by their jobs, not to voice political opinions while on duty. Their politically appointed bosses, as police chiefs, are not so restricted. Police chief voices nearly universally reflect the political preferences of the politicians who hired or appointed them.

This is why it is much more common to see Sheriffs support the Second Amendment than police chiefs. Sheriffs are elected directly by the people. They are more accountable.

DeSantis signs permitless carry bill, law takes effect July 1st

Florida Gov. Ron DeSantis wasted little time signing HB 543 into law after the state legislature gave final approval to the permitless carry legislation last Thursday. On Monday morning DeSantis held a signing ceremony for the bill, putting pen to paper with a small group of Second Amendment supporters in attendance. With DeSantis’s approval, Florida is now the 26th state to adopt a permitless carry measure, and at least one more state is likely to follow suit in the coming weeks.

As of July 1st, Floridians who are eligible to receive a concealed carry license will be able to lawfully carry without acquiring a government-issued permission slip; a big step forward for Second Amendment activists, but not the end of the push to make Florida a true constitutional carry state.

Second Amendment advocates have criticized the bill for not going far enough, saying that without allowing people to openly carry guns in public, the bill isn’t a true “constitutional carry” measure as DeSantis guaranteed and as the Legislature has hailed.

… We think it’s a step in the right direction,” said Luis Valdes, the Florida director of Gun Owners of America. “Permitless concealed carry is a good thing. But it’s not the constitutional carry that we were promised.”

DeSantis has said he supports open carry, but legislative leaders remained firm on continuing Florida’s prohibition against open carry in nearly all circumstances.

House Speaker Paul Rennerpreviously said that he supports open carry but that there was concern among his caucus and in the Senate about it. Senate President Kathleen Passidomo has been more firm in opposition — saying that Florida sheriffs have told her they oppose open carry, and she trusts their judgment.

DeSantis has even suggested he’d be willing to call lawmakers back to Tallahassee for a special session that would include open carry legislation, but only if the legislature itself signals its support. Passidomo’s objections in particular appear to be a major hurdle for gun owners, given her role as the state Senate president and the influence she has within the GOP caucus.

Does she have more influence than DeSantis himself, however? I doubt that, and I’m curious what would happen if the governor decided to twist some arms or make it clear to lawmakers that he considers open carry a top priority for his administration.

Even without an open carry provision the permitless carry law as written represents a major improvement in Florida’s gun laws, as well as a tipping point for the constitutional carry movement overall. More than half the country now recognizes the right to bear arms without having to obtain a license beforehand, and Nebraska could soon become the 27th state to do so, with a constitutional carry bill now set for a third and final vote in the unicameral legislature. So far that vote hasn’t been scheduled, but lawmakers still have almost two months to go before the end of this year’s session, which should be plenty of time for the bill to be heard even with the Democratic minority trying to slow the legislative process to a crawl with filibusters on almost every bill brought to the floor of the Senate.

South Carolina and Louisiana lawmakers are also considering constitutional carry bills, though the South Carolina measure has been stuck in the Senate Judiciary Committee since late February and Louisiana legislators will have to find enough votes to override a veto by Gov. John Bel Edwards if there’s any chance of making the state the 28th to recognize the right to bear arms without a government-issued license.

Today, however, it’s Florida in the spotlight, and gun owners in the Sunshine State should be rightfully proud of the expansion to the state’s carry laws. I know the bill wasn’t perfect, and the fight for open carry in the state is going to be much more difficult than it needs to be given that 47 other states already allow for open carry in some form or fashion, but HB 543 is still a major improvement to the status quo… and the Second Amendment rights of Floridians.

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.

Analysis: A Legal Template for Upholding AR-15 Bans is Emerging

A federal judge upheld Delaware’s “assault weapons” ban this week using reasoning likely to resonate with other courts inclined to reach the same outcome.

On Monday, Federal District Judge Richard G. Andrews, an Obama appointee, found the state’s ban on AR-15s, AK-47s, and similar firearms–along with its ban on magazines that hold more than 17 rounds–is constitutional. He did so despite finding the guns were “in common” use for lawful purposes.

“[I] conclude that the prohibited LCMs, like the prohibited assault long guns, are in common use for self-defense and therefore ‘presumptively protect[ed]’ by the Second Amendment,” Judge Andrews ruled in Delaware State Sportsmen’s Association v. Delaware Department of Safety and Homeland Security.

That probably left a lot of people doing a double-take. But Judge Andrews came to his conclusion after arguing AR-15s and the like weren’t common during the founding era and represented a technological advancement that is responsible for a uniquely modern problem: mass shootings. Because of this, he argued Bruen allowed him to look for historical analogues that show a history of regulation instituted for the same purpose and using the same means.
He ruled there was such a tradition.

“I find that the LCM and assault long gun prohibitions of HB 450 and SS 1 for SB 6 are consistent with the Nation’s historical tradition of firearm regulation,” he wrote. “Plaintiffs have therefore failed to demonstrate a likelihood of success on the merits of their Second Amendment claim.”
He pointed to the proliferation of late 19th Century Bowie knife and Billy club bans, plus later machinegun bans, as evidence governments have previously banned the sale of weapons they believe are associated with especially dangerous criminal behavior. He further argued banning a subset of weapons was a relatively minor burden and one that was similar to his historical examples.

“[B]oth sets of regulations impose a ‘comparable burden,” he wrote. “Indeed, the burden that the challenged regulations impose is slight.”
Judge Andrews isn’t the only, or even the first, one to use this concept to save a ban. District Judge Karin Immergut, a Trump appointee, denied an attempt to block Oregon’s magazine limit under the same basic framework. While she went further and said she didn’t need to do a Bruen analysis at all because ammunition magazines aren’t protected by the plain text of the Second Amendment, she did the analysis anyway, and it came out along the same lines as Judge Andrews’ argument.

It’s likely other courts will adopt this framework as well.
Other courts, namely the Ninth and Fourth Circuits, have previously shown they don’t believe AR-15s or similar guns should be sold to civilians. The old two-step balancing test of the pre-Bruen era was explicitly about whether the argued public safety impact of banning the guns was enough to overcome the infringement on the right of Americans to have them. Any court that upheld an “assault weapons” ban before 2022 essentially said “yes.”

So, given the opportunity to review the law again, it’s fair to think they may want to find a way to reach the same conclusion. That’s especially true if the path to that answer appears to at least plausibly fit within the Supreme Court’s new test.

Of course, Judge Andrews’ reasoning has some serious flaws. For one, it seems to be making the same mistake in the eyes of the Court that the two-step test did: going one step too far.

Reading Heller, McDonald, and Bruen provides the impression that any class of firearms considered to be in “common use” for lawful purposes, such as self-defense, is inherently protected by the Second Amendment and can’t be banned by the government.

“The traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense,” The Court  wrote in Heller.

“Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right[…].”

That Judge Andrews finds AR-15s and the other banned guns in common use for the purpose of self-defense and then proceeds on to further analysis is unlikely to be what The Court had in mind. It seems relatively clear SCOTUS doesn’t believe it is possible to ban any gun that is in common use for lawful purposes. So, the detour into comparing modern “assault weapons” bans to 19th Century Bowie knife or Billy club bans will likely be unpersuasive should it ever make its way up to The High Court.

It also suffers from the lack of a limiting principle. Judge Andrews argues that the self-loading, semi-automatic technology found in AR-15s and the other banned guns didn’t become popular until after the Civil War. And their adoption led to the rise of mass shootings (never mind that semi-automatics were becoming common about 100 years before the onset of modern mass shootings).

But there’s nothing in Judge Andrews’ line of reasoning that wouldn’t prevent the same argument from being applied to all semi-automatic firearms or an ammunition magazine of essentially any size. That includes semi-automatic handguns, which the Supreme Court has already ruled can’t be banned.

Still, even if the prospects for success on appeal to the Supreme Court are dim for this argument upholding AR bans, it will likely proliferate in some of the most important circuits because it at least attempts to follow the Bruen steps while still maintaining the bans. And, even if the weaknesses are as serious as they appear, pointing them out will only matter if the Supreme Court actually takes up a case involving them. After all, the two-step test The Court excoriated in Bruen was the defacto review standard on gun cases for a decade because of SCOTUS inaction.

Whatever ends up happening, expect to see Judge Andrews’ legal reasoning pop up anytime a gun or magazine ban is upheld.

Ultra-ultra crap-for-brains o’ the day

Op-ed claims Founding Fathers would want gun control

I’m a big believer in the Constitution, including the Bill of Rights. It’s why I’m a Second Amendment advocate. The way I see it, our Founding Fathers put together a document that did a pretty good job of limiting the government and securing our rights.

Too bad it’s ignored, such as the push for gun control.

But with frightening regularity, there comes someone who seems to act like they held a séance with the Founding Fathers and knows that their past words in support of the Second Amendment and the right to keep and bear arms would go out the window.

People such as this:

The tragic shootings in Nashville, with children and staff at the Covenant School being killed, demands action from Congress. But so many times we have seen Congress do nothing after gun violence.

If America’s Founding Fathers could have traveled in time to today, they would be horrified to see these mass shootings in our schools and communities. They would also be shocked that the Congress has done so little to stop these tragedies.

The Founding Fathers, if they could have foreseen the terror of today, would surely have revised the Second Amendment. They would urge us to implement gun control today.

There must be some limitations on the right to bear arms of the Second Amendment. There must be gun control including banning assault weapons. As the late Supreme Court Justice Antonin Scalia once wrote “Like most rights, the right secured by the Second Amendment is not unlimited.”

First, while I respect the late Justice Scalia, he wasn’t a Founding Father. Injecting his comment, one often taken drastically out of context, isn’t making the case.

The author here, like so many others, claims the Founding Fathers wouldn’t have supported the right they literally fought and bled for if they could see the bad things happening today.

Yet they offer no evidence for such a claim. Nothing in their writings of the time suggested they were in favor of forfeiting the right to keep and bear arms simply because people could do bad things.

In fact, that claim flies directly in the face of something one of our Founding Fathers said explicitly. Thomas Jefferson said, “I prefer dangerous freedom over peaceful slavery.” That tells me that yes, he’d look at what we see today, and while he would mourn those lost lives, there’s little reason to believe he’d suddenly want to restrict people’s rights.

The Buckeye Firearms Association has a very handy list of other pro-gun quotes from our Founding Fathers, none of which suggest even a hint of support for the idea of gun control.

See, what the author has done is convince himself of a fiction, that the Founding Fathers are whatever he wants to believe them to be. Further, since so many of us look to them for guidance on matters of policy, he somehow hopes he’ll suddenly be the one to trick us into supporting gun control.

That’s really not how it works. You can’t just say, “They’d support me,” then just expect people to shrug and accept it.

Let’s also remember that in the time of the founding, private parties owned artillery and equipped their own private warships–letters of marque were a thing, after all–which could lay waste to people in numbers even the much vilified AR-15 couldn’t.

If they were willing to trust the American people with that, then just why would you assume they’d suddenly support gun control? The fact that you just really, really want them to isn’t enough.

Yet this is what passes for reasoning, apparently.

Colorado: Assault Weapon Ban Pulled from Committee Agenda

Earlier this week, the House Judiciary Committee pulled House Bill 23-1230 (“HB 23-1230”) from the agenda thanks to the strong opposition of NRA members and Second Amendment supporters. The committee received thousands of messages opposing HB 23-1230, a bill that bans the manufacturing, importing, purchasing, selling, offering to sell, or transferring ownership of what the drafters have defined as an “assault weapon.”  No hearing is scheduled at this time, but the fight is not over yet. They are still likely to take action on this bill at some point this session, so we must remain vigilant!

The Bruen decision, authored by adamant pro-2nd amendment rights Justice Thomas keeps rolling right over the gun grabbers’s fantasies

Federal judge strikes down Minnesota law banning 18-20-year-olds from obtaining gun permits
A judge in Minnesota ruled that a state law prohibiting adults under 21 from carrying firearms in public was unconstitutional

A federal judge on Friday struck down a Minnesota law that prohibits adults age 18-20 from obtaining permits to carry handguns in public.

Assisted by gun-rights advocacy groups, three individuals who were under 21 challenged a 2003 state law that enacted an age requirement to apply for a permit to carry a pistol. They argued that the law unconstitutionally prohibited young adults from exercising their Second Amendment right to bear arms.

In a 50-page ruling, U.S. District Court Judge Kathleen Menendez agreed. Relying on the Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen, the judge concluded that Minnesota’s law was unconstitutional and blocked the state from enforcing it.

“Based on a careful review of the record, the court finds that defendants have failed to identify analogous regulations that show a historical tradition in America of depriving 18- to 20-year-olds the right to publicly carry a handgun for self-defense,” Menendez wrote. “As a result, the age requirement prohibiting persons between the ages of 18 and 20 from obtaining such a permit to carry violates the Second Amendment.”

The judge indicated that her ruling was supported by the Supreme Court, which established a new legal test in Bruen to evaluate laws regulating firearm possession. The Supreme Court majority held that the government must demonstrate that a firearm regulation “is consistent with the Nation’s historical tradition of firearm regulation” for it to pass constitutional muster.

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