Another J6 Trump ‘Bombshell’ Outed as a Hoax!

On Tuesday, the liberal media soiled themselves over the so-called bombshell story that on January 6, 2021, President Trump grabbed the steering wheel of the presidential limo and then lunged at a Secret Service agent because he wanted to join the protesters at the Capitol.

The story came courtesy of Cassidy Hutchinson, a former aide to Trump’s chief of staff, Mark Meadows.

“So when the president had gotten into the vehicle with [Secret Service agent] Bobby [Engel], he thought that they were going up to the Capitol. And when Bobby had relayed to him, ‘We’re not, we don’t have the assets to do it, it’s not secure, we’re going back to the West Wing,’ the president had a very strong and very angry response to that.

Tony described him as being irate. The president said to him something to the effect of, ‘I’m the f—ing president, take me up to the Capitol now.’ To which Bobby responded, ‘Sir, we have to go back to the West Wing.’ He then reached up front of the vehicle to grab at the steering wheel. Mr. Engel grabbed his arm, he said, ‘Sir, you need to take your hand off the steering wheel. We’re going back to the West Wing, we’re not going to the Capitol.’ Mr. Trump then used his free hand to lunge towards Bobby Engel.”

Any reasonable person would conclude this story was dubious. The liberal media, however, not so much. CNN gleefully described it as a bombshell, yet, like so many other Trump bombshells, it appears this incident didn’t happen at all, and is yet another hoax to add to the pile of bogus anti-Trump stories.

According to Peter Alexander, the chief White House correspondent for NBC News, sources close to the Secret Service dispute the story.

“A source close to the Secret Service tells me both Bobby Engel, the lead agent, and the presidential limousine/SUV driver are prepared to testify under oath that neither man was assaulted and that Mr. Trump never lunged for the steering wheel,” Alexander tweeted Tuesday evening.


Trump’s former acting director of national intelligence, Richard Grenell, slammed the committee for allowing this testimony to go unchallenged.

“So a junior staffer was pressured by @Liz_Cheney to lie under oath,” he tweeted. “Why wasn’t there a single committee member asking her if she had proof? This performance collapsed in an hour.”

“The DC media is corrupt and sick,” he concluded.


Soon after Alexander revealed that his sources challenged the story, Hutchinson’s lawyer, Jody Hunt, quickly attempted to walk back her testimony.

“Ms. Hutchinson testified, under oath, and recounted what she was told,” Hunt tweeted. “Those with knowledge of the episode also should testify under oath.”


How many more bogus bombshells are we going to get from these hearings?

The Liberal Media’s ‘Rising Stars’ Always Seem to Crash and Burn

Those who’ve been around more than five minutes know that the mainstream media is little more than a collection of homogeneous, biased hacks that do little more than support the Current Thing(TM) being pushed by Democrats and leftist activists.

It’s great for Democrats who enjoy uncritical coverage of their nonsense, but often outlets such as The New York Times, Washington Post, CNN, MSNBC, et al. get a little too far out over their biased skis when they begin to fall in love with their latest object of obsessive attention.

Take a walk down memory lane with Townhall as we look at some of the mainstream media’s recent “rising stars” — who get treated as saviors — only to fall on their faces.

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Restoring the Founders’ right to bear arms

Joseph Greenlee is the director of constitutional studies at FPC Law.

It may have been Justice Clarence Thomas’s 74th birthday, but he was the one delivering gifts on June 23, 2022. Namely, the restoration of millions of Americans’ Second Amendment rights. Thomas’s majority opinion in Bruen held that ordinary Americans have a right to carry arms in public, and that the proper test for adjudicating Second Amendment challenges is an analysis of “the Second Amendment’s text, as informed by history.” This holding restored the right to bear arms across the country and gives hope that many other firearm restrictions — including several that have previously been upheld by courts — will be repealed or held unconstitutional.

Bruen is a happy ending to a cautionary tale about what happens when constitutional rights are left to government discretion. The Bill of Rights — including the Second Amendment — was designed to ensure that certain rights were placed beyond the reach of the federal government. The Fourteenth Amendment created the same distance between Second Amendment rights and state governments. Nevertheless, six states granted themselves the power to decide on a case-by-case basis through “may-issue” licensing regimes whether residents really needed the right to bear arms. This resulted in government depriving millions of Americans of a fundamental right it had no authority to deny.

To exercise their right to bear arms, the Bruen petitioners had to convince a licensing officer that they had “a special need for self-protection distinguishable from that of the general community.” When the licensing officer determined that their need for self-protection was not special enough, they challenged the constitutionality of the licensing law. But the Second Amendment test applied by the lower courts reviewing their license denials was simply another inquiry into whether the petitioners’ self-protection interests were special enough to outweigh the government’s interest in prohibiting them from carrying. Again, according to the government, they were not.

Until Bruen, this judicial interest-balancing test — the “two-part test” — was the prevailing test throughout the lower courts. In part one, the court determined whether the challenged law burdened the Second Amendment’s original scope. If so, in part two, the court balanced the challenger’s interest in exercising that aspect of the right against the government’s interest in regulating it.

This test resulted in nearly every challenged firearm restriction across the country being upheld during its 12-year reign. By the time Bruen was decided, with few exceptions, the lower courts had essentially limited the Second Amendment to protecting the possession of handguns in the home — the narrowest possible reading of District of Columbia v. Heller, which struck down prohibitions on handguns and functional firearms in the home. This incremental nullification of the Second Amendment led some judges to call it “the Rodney Dangerfield of the Bill of Rights.”

Despite several justices’ repeated objections, lower courts continued “resisting th[e] Court’s decisions” and treating “the Second Amendment as a disfavored right.” As Justice Samuel Alito noted in his Bruen concurrence, the Supreme Court saw how manipulatable the two-part test was the last time it agreed to review a Second Amendment case. In 2018, the U.S. Court of Appeals for the 2nd Circuit upheld under the two-part test New York City’s law preventing residents from taking their handguns outside city limits. But once the Supreme Court granted cert, the city conceded that the law did not benefit public safety and repealed it to moot the case.

Bruen rightly invalidated the two-part test and returned the Second Amendment to its original form by reaffirming a test based on text and history. In applying that test to strike down New York’s discretionary licensing regime, the court provided the following guidance to lower courts, which offers insight into what other laws may be unconstitutional.

  • Courts must first analyze the Second Amendment’s text, and then consult history to determine whether the regulation is consistent with America’s tradition of firearm regulation.
  • While historical material from before, during, and after the Founding may be considered, the Second Amendment’s “meaning is fixed according to the understandings of those who ratified it.” Moreover, “not all history is created equal.” Founding-era history is paramount; 20th century history is irrelevant.
  • Applying the original understanding of the right to modern regulations will often involve reasoning by analogy. The challenged law cannot be more burdensome than the analogous law, which must be well-established in American history.
  • The government carries the burden of proving that the regulation is constitutional. This burden is significant. It requires more than what the government produced in Bruen, including three colonial restrictions, several 18th and 19th century laws that are related but not directly analogous, a statute and a pair of state-court decisions from the late-19th century that are directly analogous, and a handful of pre-statehood restrictions from western territories.
  • “Shall-issue” licensing regimes, as they currently exist in 43 states, likely comply with the Second Amendment by allowing all ordinary Americans to publicly carry firearms. But overly burdensome regimes, including any that involve lengthy processing times or exorbitant fees, are unconstitutional.

In his dissent, Justice Stephen Breyer criticized the court for applying a test that “refuses to consider the government interests that justify a challenged gun regulation.” “The Constitution contains no such limitation,” he claimed. But the Constitution is the limitation. As the majority explained, “the Second Amendment is the product of an interest balancing by the people, not the evolving product of federal judges,” and it “elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense.”

Because firearms are far more regulated today than at any other point in American history, a fair application of Bruen should result in the invalidation of many burdensome and ahistorical laws. Included in these invalidated restrictions should be most of those that lower courts scrutinized under part two of the two-part test after determining that they burden the right’s original scope in part one.

In addition to restoring the Founders’ Second Amendment and reinstating the inalienable right to bear arms for millions of Americans, Bruen has effectively reset Second Amendment law after a decade of dismissive treatment by lower courts.

The end of Islam in Córdoba

Thanks to the efforts of King Ferdinand III of Castile — aka, Saint Ferdinand — today in history, on June 29, 1236, Córdoba, which after the eighth century Muslim conquest of Spain, had become one of the most important “abodes of Islam,” to quote a disgruntled Muslim chronicler, “passed into the hands of the accursed Christians — may Allah destroy them all!”

Six months earlier, in December of 1235, a daring band of Christians, led by a few knights, stormed and took a portion of Córdoba’s eastern quarter. Word reached King Ferdinand in January of 1236, even as he was in mourning over the recent death of his thirty-year-old wife from childbirth complications.

Through their envoy, the Spaniards “implored him to help them because they were placed in most grave peril.” Against the Muslim “multitude of Córdoba, they were very few” and “separated from the Moors only by a certain wall running almost through the middle of the city.” Though at a standstill, time, the envoy made clear, was not on the Christians’ side.

The king, who for years had been spearheading the Reconquista — the Christian attempt to liberate Spain from Islam — was heavily moved by such a heroic feat; and “the grief for the loss” of his wife “did not long suspend his warlike preparations.” On the same evening that the envoy arrived, Ferdinand’s advisors strongly warned him against setting out immediately, during winter; they cited impassable roads due to snow, rain and floods, and possible ambushes from the “innumerable multitude of people in Córdoba” — to say nothing of Ibn Hud, the de facto king of al-Andalus, who was even then headed to relieve the Muslim city.

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Funding Fantasy and Ignoring Evil as we Protect Our Students

Our schools are attacked by disgruntled students and former students. Our schools are also attacked by outsiders who select the school so they can murder innocent victims. We have had armed staff protecting our schools for years. We’ve learned from their vast experience so we know how to protect our children. The latest act from congress, the Bipartisan Safer Communities Act, doesn’t do that. In fact, it prohibits it, and that tells us everything.

We’d like it if every child developed a fully formed conscience. That isn’t the real world. I’ve met neglected children who were raised by parents who were physically or mentally ill. I’ve met children who were raised a neglectful addict. Some people who lack a conscience are made. That experience can turn healthy children into violent sociopaths. Mental health treatment will help some of them. The Safer Communities Act does a little to help them.

Some people who lack a conscience are born. About 3-in-a-hundred of us are psychopaths and lack empathy and sympathy with other people. Some of them are also narcissists who think the world owes them more attention. Mental health treatment doesn’t change their propensity towards violence.

The Safer Communities Act can’t change the human condition. We are broken, and some of us much more so than others.

The problem of evil has always been with us. Yes, we want to help children so they don’t want to murder their classmates. That does not solve the larger problem of protecting our schools. What should we do with the evil in the world that wants to kill our kids?

We have several-million-man-hours of experience with armed school staff who volunteered to be first responders. They trained to stop a violent threat and stop the bleeding until outside help arrives. We have never had a child killed in school by an outside attack when these defenders were there.

We have also seen what happens when the school is disarmed. We saw the police wait outside at the high school in Parkland, Florida. We again saw the police wait outside as children were being murdered in Uvalde, Texas. We’ve seen similar carnage in attacks on a gun-free zone away from school where the victims had to wait for the police to save them.

Thank god that we have dedicated police officers on campus protecting our children every day. These officers tell us that too many students will die if we wait for outside help to stop an attacker. The Safer Communities Act ignores their advice. The Safer Communities Act explicitly prohibits funding to arm or to train armed school staff. That tells us everything about the legislation and the politicians who proposed it.

These politicians need public violence so they can hold a press conference and appear concerned. Expressing that faux-concern is more important to the politicians than really protecting our kids.

One way to stop narcisists from attacking our schools is to stop electing them to public office. Until then, work with your local school board.

Democrats Hate Every Second Amendment Victory Because It Challenges Their Monopoly On Power

Democrats hate the Second Amendment for the same reasons they hate free speech and fair elections: They want a monopoly on violence, words, and power.

When the U.S. Supreme Court struck down New York’s gun licensing scheme as unconstitutional last week, outraged leftists freaked out and started calling for the end of the judicial branch as we know it.

“It has become necessary to dissolve the Supreme Court of the United States,” far-left sports commentator Keith Olbermann tweeted. Other verified Twitter users claimed that, as a result of the ruling affirming Americans’ Second Amendment rights, the highest court in the land is “illegitimate,” “thoroughly corrupt,” and “mass shooters” wearing robes.

The law was accurately ruled unconstitutional, plain and simple, but that’s not good enough for leftists who despise the fact that Americans can and will defend themselves.

Why do Democrats despise the Second Amendment so much that they want to effectively banish a branch of the government over it? Because it strips them of their ability to control everything and accumulate power.

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‘unauthorized’… My foot.

Massive Trove of Gun Owners’ Private Information Leaked by California Attorney General

California gun owners have been put at risk by the Attorney General’s office after a new dashboard leaked their personal information.

The California Department of Justice’s 2022 Firearms Dashboard Portal went live on Monday with publicly-accessible files that include identifying information for those who have concealed carry permits. The leaked information includes the person’s full name, race, home address, date of birth, and date their permit was issued. The data also shows the type of permit issued, indicating if the permit holder is a member of law enforcement or a judge.

The Reload reviewed a copy of the Lost Angeles County database and found 244 judge permits listed in the database. The files included the home addresses, full names, and dates of birth for all of them. The same was true for seven custodial officers, 63 people with a place of employment permit, and 420 reserve officers.

2,891 people in Los Angeles County with standard licenses also had their information compromised by the leak, though the database appears to include some duplicate entries as well.

A video reviewed by The Reload shows the databases with detailed information were initially available for download via a button on the website’s mapping feature. They appeared to have been removed from public access by Tuesday afternoon and replaced with spreadsheets without the individualized identifying information.

The office of Attorney General Rob Bonta (D.) confirmed private information had been exposed and said they are examining the situation.

“We are investigating an exposure of individuals’ personal information connected to the DOJ Firearms Dashboard,” a spokesperson for the office told The Reload. “Any unauthorized release of personal information is unacceptable. We are working swiftly to address this situation and will provide additional information as soon as possible.”

The California Rifle & Pistol Association (CRPA) slammed the leak and said it was looking into potential legal action against the state.

“Vindictive sore loser bureaucrats have endangered people’s lives and invited conflict by illegally releasing confidential private information,” Chuck Michel, CRPA President, told The Reload. “CRPA is working with several legislators and sheriffs to determine the extent of the damage caused by DOJ’s doxing of law abiding gun owners. Litigation is likely.”

The Reload is not publishing the leaked data in order to protect the privacy of those affected by the leaks. However, posts across social media indicate many others were able to obtain the documents during the time they were live on the state’s website. There are also several social media posts that indicate similar identifying information from the state’s dealer record of sales database and its “assault weapons” registry were part of the leak, though The Reload was unable to review copies of those databases.

The leak comes just over a year after California moved to provide detailed personal information of all gun owners in the state to educational institutions across the country despite objections over concerns about data security and individual privacy. It also comes as a similar policy to California’s restrictive gun carry law was invalidated by the Supreme Court, which will likely result in many more Californians being added to the same database the state just leaked.

In a press release announcing the leaky dashboard, Bonta said the goal was “increasing public trust between law enforcement and the communities we serve.” He said the dashboard was about ensuring transparency to “better understand the role and potential dangers of firearms.”

Instead, the leaked private information of gun owners is likely to increase the risk criminals will target their homes for burglaries–something the state’s dashboard reports happened 145,377 times in 2020 alone.

One Unconstitutional Law Implicates Many Gun-Control Regulations

Laws can be interpreted many ways. We seek guidance from the court to know what is legal and what is not. The US Supreme Court has largely ignored the right to bear arms compared to the number of decisions the court has rendered in other areas. We don’t have enough decisions to draw a clear map of where our rights begin and end. The court recently issued an opinion on the right to bear arms in public. This case redefined the legal landscape and gave us a few rules to go by. Let’s look at the unanswered questions to see if we may draw further conclusions.

The recent ruling said that states may require carry permits, but they must issue them to ordinary people who are not criminals. Ordinary people must be able to carry a personal firearm in ordinary places where people congregate. Licensing cannot be excessively delayed or expensive.

Now we want to apply this ruling to other situations. We first look to the text of the Bill of Rights. Based on the text, are the actions in question covered by the Second Amendment. When in doubt as to the scope or applicability, we then consider the history of use when the Bill of Rights was ratified. We are to draw analogies from that period to the present day.

There are no tiered level of examination or scrutiny. If the law in question materially limits the right to bear arms then, with remarkably few exceptions, the law is an infringement on the right to bear arms and unconstitutional.

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June 29

1149 – During the Second Crusade, Raymond of Poitiers, Prince of Antioch is defeated and killed at the Battle of Inab by Nur ad-Din Zangi.

1444 – The Albanian Warlord Skanderbeg defeats the Ottoman invasion force of Ali Pasha at Torvioll.

1807 – During the Russo-Turkish War, Russian Admiral Dmitry Senyavin destroys the Ottoman fleet in the Battle of Athos in the Aegean Sea.

1889 – Hyde Park and several other Illinois townships vote to be annexed by Chicago, forming the largest U.S. city in area and second largest in population at the time.

1927 – The Bird of Paradise, a U.S. Army Air Corps Fokker tri-motor, crewed by 1st Lt. Lester J. Maitland and 1st Lt. Albert F. Hegenberger, completes the first transpacific flight, from the mainland United States to Hawaii.

1950 – President Truman authorizes a sea blockade of North Korea.

1956 – The Federal Aid Highway Act of 1956 is signed by President Eisenhower, creating the United States Interstate Highway System.

1972 – In the case of Furman v. Georgia, the Supreme Court rules that the then current method of how the death penalty was imposed by the judicial system was unconstitutionally cruel and unusual punishment.
North Central Airlines Flight 290 a Convair CV-580, collides in mid-air with Air Wisconsin Flight 671, a De Havilland Canada DHC-6 Twin Otter above Lake Winnebago near Appleton, Wisconsin, killing all 13 passengers and crew aboard both aircraft.

1975 – Steve Wozniak tests his first prototype of the Apple I computer.

1995 – On NASA Mission STS-71, Shuttle Atlantis docks with the Russian space station Mir for the first time.

2006 – In the case of Hamdan v. Rumsfeld, the Supreme Court rules that President Bush’s plan to try Guantanamo Bay detainees in military tribunals violates U.S. and international law.

2007 – Apple releases its first mobile phone, the iPhone, and away we went to the ‘smart phone’ races

2012 – A derecho – a straight line wind storm -sweeps across a large section of the Midwestern U.S. and across the central Appalachians into the mid-Atlantic states, leaving at least 22 people dead and millions more without power, causing damage totaling $2.9 billion

2014 – The ‘Junior Varsity’ Islamic State of Iraq and the Levant – ISIL – self declares its caliphate in Syria and northern Iraq.

Former Idaho AG doesn’t know how rights work

When something is your right, it means it cannot just be taken away. Not unless you break the law and your rights are removed as punishment. If something can be taken, it is a privilege, and privileges can be removed anytime if whoever grants them decides to stop granting them.

This isn’t exactly high-level constitutional law stuff, either. This is a basic understanding the Founding Fathers had from the get-go. It’s why they fought a war against the most powerful nation on Earth. Having their rights respected was worth the risk.

Yet, for former Idaho Attorney General Jim Jones, rights don’t really work like that, apparently. That’s based on his writing over at The Hill.

Two groups of conservatives made contradictory decisions last week on whether there should be a balance between the safety of the American public and the rights of a small, but very vocal, minority. A group of 15 Senate Republicans broke with their party and voted for a modest gun safety bill. At the same time, the GOP-appointed majority on the U.S. Supreme Court made sure that there will be more guns in public places. The Senate’s action will save lives; the court’s action will likely add to the tally of gun deaths.

The six Republican-appointed members of the Supreme Court struck down a century-old New York law requiring a showing of “proper cause” to obtain a license to carry a concealed handgun. Although the ruling was an immediate blow to public safety, the longer-term effect of the decision will pose an even greater safety threat.

The court departed from a consensus view developed by lower courts over the last decade that allowed gun rights to be limited by concerns over public safety. Instead, it focused the inquiry solely on whether a restriction is based on “history or tradition.” If a similar historical analogue for a gun limitation cannot be found, it may well be unconstitutional, without regard to the effect on public safety.

More than anything else, our governmental entities and public servants must understand that private rights ought to give way to the public good. We don’t believe a person’s First Amendment rights extend to falsely yelling “fire” in a crowded theater. Second Amendment rights must also yield when they infringe upon the paramount right of the people to be safe in public places.


Not only no, but hell no.

Of course, Jones invokes the old canard of yelling fire in a crowded theater, as most who try to justify an infringement on our gun rights tend to do, but you’d think a former attorney general would understand that this was a hypothetical presented by a justice during a case and that decision was ultimately overturned in part by Brandenberg v. Ohio. That case found that speech could only be regulated if it were likely to cause imminent lawless action.

Plus, let’s understand that if we take Jones’s word that private rights ought to give way to the public good, then the question becomes, where do we draw the line? It’s clear that Jones favors restricting our right to keep and bear arms as a means of trying to ensure public safety, but what else is on the table?

Can we seize his home so we can house the homeless? Can we seize his car so it can be used for public transportation? Can we lock Jones in chains and make him do road work for no reason other than we simply need the road to be built?

Where would such a line be?

The problem here is that the line would be subjective. What’s “far enough” for Jones wouldn’t be far enough for someone else. There are those who actually do support things not unlike the examples mentioned above, after all.

The way you deal with this is to draw a line with objective criteria. These are your personal rights, and they shouldn’t be infringed upon simply because someone thinks it’s good for the public. The truth is, the smallest minority is the individual. Empower them, and everyone is equally empowered.

Our gun rights aren’t up for debate. First of all, we don’t buy the idea that gun control yields any of the benefits Jones seems to believe. Yet even if we did, rights don’t work that way.

 And thank God for that.

‘Hope’ is not a strategy, but apparently it was the plan

Astonishing Testimony From Dr. Birx Lost Amid Landmark SCOTUS Rulings.

With several controversial SCOTUS rulings addressing divisive issues like gun rights and abortion, an exchange between Rep. Jim Jordan (R-Ohio) and Dr. Debra Birx during a congressional hearing on Thursday escaped scrutiny. However, if a power-hungry politician, university, or employer compelled you or someone you love to receive an experimental vaccine in the last two years, it may make you furious. And Birx should be ashamed of herself for not speaking out earlier.

The House Oversight and Reform Select Subcommittee on the Coronavirus Crisis held a hearing with Birx Thursday morning. Jordan questioned Birx on the United States’ participation in and funding of the World Health Organization and gain-of-function research. Birx was candid, saying that the United States should withhold funding from the WHO until needed reforms occur. She also said that the U.S. should not participate in some gain-of-function research, such as any in China.

But it was Jordan’s questions about the Biden administration’s messaging on COVID-19 vaccine effectiveness that should shock the conscience. Jordan asked Birx if the government was lying or guessing when it told the public that people who received the vaccination couldn’t get COVID. Birx responded that she did not know. However, she continued, “All I know is there was evidence from the global pandemic that natural reinfection was occurring. Since the vaccine was based on natural immunity, you cannot make the conclusion that the vaccine will do better than natural infection. Although it can often do slightly better.” [Emphasis added]

Why didn’t she speak up about this while still in office? Public health “experts” like Dr. Anthony Fauci actively tried to convince Americans that natural immunity was inferior to the jabs. It’s not clear what large numbers of reinfections Birx was referring to since most positive post-infection tests were reported in asymptomatic people. One study in preprint finds that the spike protein, the part of the virus the tests detect, can remain in a recovered patient’s body for up to 12 months post-infection. How this could affect post-recovery testing in asymptomatic patients is unknown.

Jordan went on to challenge Birx about what the government knew and when. “You were part of this effort when you were in the previous administration. And you’re saying in this administration that you can’t rule out the fact that our government was lying to us when they told us the vaccinated could not get the virus,” he charged.

Birx responded, “I don’t know about their discussions that they had in the task force. So I can’t tell you that.” Then, as she often did on the Trump task force, she traded on her personal situation. “I can tell you as a family member who had individuals that were susceptible, of course, we got everybody vaccinated. But we still used layered protection during surges.”

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Comment O’ The Day

“If rights are this absolute, however, then we cannot afford to recognize very many if government is to function.”

Now, that’s hardly true, or rather, it depends on the nature of the rights, and what you mean by government “functioning”.

For instance, for most of the nation’s history we got by with essentially zero in the way of regulation of what sorts of guns one could own. They were still selling anti-material rifles mail order when I was a child! People brought guns on airliners, and I mean in their carry on bags. You could send your minor children to buy ammo at the corner hardware store. And yet, we somehow had a government. That’s how much of a right to keep and bear arms still permitted a government to function.

We also survived having basically nothing in the way of drug laws for most of our history. Coca Cola had cocaine in it! And yet, we somehow had a government. You could have a right to ingest anything you damned well pleased, and still have a functioning government.

When you get down to it, for most of the nation’s history we had Grover Norquist’s ideal government: Small enough you could have drowned it in a bathtub. I think people generally don’t understand that: The amount of government we had for most of our history would be dismissed as anarchy today, and things worked.

Barnett has internalized the legitimacy of a degree of government intrusion on our lives that would have completely horrified Americans for the majority of our history.

Preliminary Thoughts on NYSRPA v. Bruen
A minor impact on gun laws but a potentially momentous shift in constitutional method

My contribution to a symposium on New York State Rifle & Pistol Association v. Bruen is now up on SCOTUSBlog. It is pithily entitled: A minor impact on gun laws but a potentially momentous shift in constitutional method. In it, I describe the extensive “shall issue” process I underwent to obtain my concealed carry license in DC for the many who have no idea what this process entails.

I had to pay an application fee of $75. I had to submit my application in person at the Metropolitan Police Department headquarters and be photographed and fingerprinted at an additional cost of $35. I had to pass a federal background check. I had to enroll in and pay for an approved firearms training course, which included 16 hours of classroom study of D.C. gun laws as well as the law governing the use of deadly force, plus another two hours of range instruction. In 2018, the course cost $250 plus $20 for the range fee. The monetary cost of the license amounted to $380. This was in addition to the $125 tax I paid to D.C. on the purchase of my handgun, which brought the total regulatory cost to $505. Since the course took 18 hours to complete, I took it on a Saturday and a Sunday so as not to lose two days of work.

There being no gun ranges in the District of Columbia, my course was taught in Virginia. The instructor was African American, and most of the other students in the course were members of underrepresented groups, which is unsurprising given the demographics of D.C. Since it is doubtful that any other Georgetown professor has a concealed-carry license, I suppose I too was a member of an underrepresented group.

Every two years, I must renew the license. If I miss renewing within the 30-day window before my permit expires, I have to start all over. So, two years later, I had to pay another $75 fee and complete a recertification class consisting of four hours of training, and two hours of range training from an MPD-certified firearms training instructor, which cost $160. I can afford all this, of course, though I cannot say the same for all other citizens of D.C.

This is the type of regulatory regime that, in Bruen, the court said it was not questioning: “[N]othing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes.”

I then discuss my effort to understand Justice Thomas’s “text and history” alternative to the “tiers of scrutiny” doctrine that has dominated constitutional law since the 1950s. I explain why am still not sure I completely understand how it is supposed to work. The essay is long and I cannot truly summarize it my uncertainties and reservations, so you may wish to click through to read it here. Here is a taste:

There is, however, an even more fundamental question raised by Thomas’ text-and-history approach. It seems to assume that, once we use history to identify the “outer contours” of a constitutional right, then any such right bars not only prohibitions on its exercise but also trumps any statutory regulation of it. Prior to the New Deal, however, rights were not viewed as trumps on the regulatory power of government. Instead, the existence of a right barred the complete deprivation of it — that is, a prohibition — and statutes were “strictly” or “equitably” construed to avoid this result. And the existence of a right also required that a regulation be within the power of a legislature to enact. At the federal level, this meant a power delegated to Congress by the Constitution. At the state  level, this meant what is called the state’s “police power.” While broad, the state police power was not unlimited….

Thomas seems to want to limit the original scope of a constitutional right by his historical inquiry. And then the right, so limited, may not be restricted in any way. If rights are this absolute, however, then we cannot afford to recognize very many if government is to function. This would explain Thomas’ apparent movement toward an “enumerated rights only” view of constitutional rights (though he has not yet committed himself to this view). But viewing rights as absolute in this way is quite modern and ahistorical, and its invocation in a purportedly originalist opinion is therefore surprising.

I do conclude with a tentatively proposed alternative:

Perhaps a better approach would have been to distinguish between prohibiting and regulating the exercise of a right. Any prohibition of the exercise of a constitutional right is per se unconstitutional. In contrast, a regulation of how a right may be exercised is permissible, provided the ends of such a regulation are within the legislative power of Congress or a state.

Under this distinction, because the “special need for self-protection” that was required by the New York system was “distinguishable from that of the general community,” the law amounted to a prohibition on ordinary citizens exercising their constitutional right to bear arms outside the home. Not only was this the scheme’s effect; it was also its intention.

By contrast, D.C.’s “shall issue” regime provides a means by which every “law-abiding” (per the background check) citizen of D.C. can obtain a permit, so it is not a prohibition of the exercise of a constitutional right. Unlike the New York law, it is a “regulation” because it proscribes the manner of exercising the right.

It may not always be easy to distinguish a prohibition of a right from a mere regulation of its exercise. For example, is a ban on a particular class of firearms a prohibition or merely a regulation of the manner by which the right to keep and bear arms may be exercised? However, at the extremes it can be quite obvious, as I think it is with New York’s law and the D.C. and Chicago gun bans the court held to be unconstitutional in Heller and McDonald v. City of Chicago. (Even after Heller, D.C. still regulates the types of firearms that can be kept in the home or carried concealed outside.)

Rather than use modern tiers of scrutiny, when considering the appropriate regulation of constitutional rights, we should look instead to the type of eyes-open arbitrariness or rationality review that preceded the adoption of modern tiers of scrutiny. This is not, I should stress, the same as the modern eyes-closed rational basis scrutiny, which the court today considers its default approach under its tiers-of-scrutiny doctrine. (See Dobbs. “A law regulating abortion, like other health and welfare laws, … must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”)

I put the sentence above in bold because I realize how prohibitions can be characterized as regulations and vice versa. But at the extremes there is surely a difference between telling someone they cannot do something and telling them how they must do it.

Such are my preliminary thoughts on the reasoning of Bruen, whose outcome I applaud. I look forward to benefiting from the thoughts of others about the text and history approach before reaching any final verdict on its merits.

Everytown For Gun Safety Law is having a bad day
They are not taking the Bruen SCOTUS decision well.

See the source image

If you ever thought you were useless, just remind yourself that this 🤡 is “2nd Amendment Scholarship” at Everytown”

Mark Frassetto
Deputy Director, 2nd Amendment History and Scholarship at Everytown Law.