Is West Virginia v. EPA The SCOTUS Win We Didn’t Realize?

While Second Amendment supporters celebrate the 6-3 ruling in New York State Rifle and Pistol Association v. Bruen, they may also have been given a huge win by none other than Chief Justice John Roberts in West Virginia v. Environmental Protection Agency.

The gist of the opinion Roberts wrote in West Virginia v. EPA is that government agencies like the EPA – or the Bureau of Alcohol, Tobacco, Firearms, and Explosives – cannot exceed the powers granted by Congress. This opens up a whole new front in defending our Second Amendment rights in court.

Anti-Second Amendment extremists have long like to use administrative law to target our rights. For instance, in the Clinton administration, ATF cracked down on FFLs who had a low volume of sales – the so-called “kitchen table” dealers. As the NRA noted, that crackdown greatly reduced the number of FFLs. That can be dealt with by appropriate litigation now.

Congress hasn’t required FFLs to have a storefront, per 18 USC 923, so any criteria ATF uses outside what is in the laws passed by Congress could be open to a challenge in federal court. This could be a chance to really rein in this agency that many Second Amendment supporters would love to dissolve if they got the chance. It doesn’t just stop at FFLs.

Put it this way, the ban on “bump stocks” is now much more easy pickings in court, if only because it does raise questions as to whether they can be regulated administratively under 18 USC 921 and 26 USC 5845. This is just one hot button issue – there are others, like ATF records retention.

The ATF has been creative in trying to hold on to NICS information after the check says a dealer can proceed with the sale – a fight going on since NICS started in the late 1990s. Under the precedent established here, the clear Congressional prohibitions on maintaining those records – indeed, mandating “immediate destruction” – could be an avenue for litigation by pro-Second Amendment organizations.

Then there are administrative import bans of firearms. The list goes on and on, and is a target rich environment for litigation – provided that Second Amendment supporters have access to good attorneys who can see said litigation through.

Still, though, Second Amendment supporters will need to defeat anti-Second Amendment extremists via the ballot box at the federal, state, and local levels in order to ensure that ATF never does get that clear authority to go after our rights.

Even the author – as close as he gets to it – can’t make that philosophical leap that goobermint is supposed to secure rights, not restrict the citizens that it’s supposed to serve, not lord over.


BLUF
There is much that needs changing in federal law, from firearms regulation to environmental protections. [like maybe following the dictate of the 2nd amendment’s ‘shall not be infringed‘ perhaps?]
But these reforms require legislation written and passed by legislators, not regulatory misadventures undertaken by unelected political appointees in the executive branch. On those grounds alone, the Gun Owners of America deserves to win its lawsuit against the ATF.

That would be a good start

The ATF Can’t Write New Gun Laws

A lawsuit filed by the Gun Owners of America against the ATF seeking to stop a new rule from taking effect asks many pertinent questions — some technical, some legal — but the question at the heart of it is one that is relatively easy to answer: Is the ATF actually Congress?

No, it isn’t.

The United States has a serious problem with violent crime. As I have argued at some length, this is not a problem that is likely to be much improved by means of firearms regulation — but, to the non-negligible extent that there is room for constitutionally sound reform of U.S. firearms law, it is a job for Congress, not for the ATF. The ATF has strayed from the implementation of regulations to the creation and implementation of new policies, which is properly the job of the people’s elected representatives in the national legislature.
The ATF’s current administrative pickle is this: It is more difficult than you might think to say just what a “firearm” is. The 1938 Federal Firearms Act defined a “firearm” in the familiar way, as “any weapon, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosive” — but also added “or any part or parts of such weapon.”
To muddy the waters even more, a “firearm muffler or firearm silencer” was defined as a “firearm,” too, under the 1938 law.
There was a good reason for defining gun parts as guns, one that remains relevant today: If you want to control the sale of firearms, then you can’t allow Bob to sell Sam 99 percent of a gun as “gun parts” on Monday and the other 1 percent on Tuesday and pretend like a firearm hasn’t been sold.
But the problem there should have been obvious and soon became obvious: Firearms have dozens and dozens of parts, and the “any part or parts” language made every screw, nut, bolt, etc. a “firearm” under the law. That created obvious absurdities (selling someone a pair of fancy mother-of-pearl grips to replace the standard walnut ones on his six-shooter would be selling him a “firearm”) and unworkable ambiguities (Is a scope a part of a firearm? If so, at what point does it become a part of a firearm? Is a scope that is used for a non-firearm such as an air gun but could be used for a firearm legally a part of a firearm and hence a firearm?). Firearms are commonly modified and customized (for instance, by installing new sights or a different trigger), and some parts wear out and need replacing; that 1938 law notionally made any part acquired for such a customization or repair a firearm for legal purposes.
The unworkability of this status quo was addressed in 1968 — or, at least, Congress tried to address it, replacing the words “part or parts” with “frame or receiver.” What is a frame or receiver? According to the law, it is “that part of a firearm which provides housing for the hammer, bolt or breechblock and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” The problem with that definition is that even in 1968, there were many firearms designs that had no single part that met the legal criterion of housing all three specified parts — hammer, bolt or breechblock, and firing mechanism — and most firearms made today have no single part that satisfies the criterion. The ATF has been careering around administratively for decades trying to do something with that poorly written law.
But the ATF’s regulatory walk is not random.

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Where does anyone read ‘Need’ anywhere in the 2nd amendment?


An Expert Answers Democrats’ Most Burning Question: Why Does Anyone Need an AR-15?

It’s a cry we hear time and again: Why does anyone need a black, spookily-shaped, mysterious “weapon of war” — which has never been used by the U.S. military?

Contrary to frequently wild framing, the AR-15 is simply the modern iteration of a basic rifle. Take Daniel Boone’s “Old Tick Licker,” fast-forward 270 years, and you get something lighter, more capacious, more accurate, and more easily accessorized.

But why should you — or Daniel’s great (times six) grandchildren — own one? Via a recent video, gun guru Colion Noir fights that burning question with a well’s worth of water.

In case you’re unfamiliar, the Houston-based activist and attorney has hosted NRATV and spoken at the National Rifle Association’s convention; his pro-2A YouTube channel boasts over two million subscribers, and he’s appeared as featured guest on The Joe Rogan Experience as well as Real Time with Bill Maher.

As for why anyone needs an AR, Colion offers a handful of reasons — one for each finger.

But first, he makes clear, “The Second Amendment is part of the Bill of Rights and not the Bill of Needs. … [T]here isn’t a ‘need’ requirement for which gun you can use under the Second Amendment.”

Now on to the list…

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The charging of Jose Alba and the war on self-defense.

The war on self-defense continues, in New York City this time.

You know how it goes with these Soros-backed leftist DAs such as New York’s Alvin Bragg. When Bragg was elected in January, I wrote this post about his plans and what to expect. They’re the same sort of things we’ve become familiar with from the now-recalled Chesa Boudin of San Franisco, and from the hopefully-soon-to-be-recalled George Gascon of Los Angeles. In that post I mentioned that this was one of Bragg’s awful guidelines:

Armed robbers who use guns or other deadly weapons to stick up stores and other businesses will be prosecuted only for petty larceny, a misdemeanor, provided no victims were seriously injured and there’s no “genuine risk of physical harm” to anyone. Armed robbery, a class B felony, would typically be punishable by a maximum of 25 years in prison, while petty larceny subjects offenders to up to 364 days in jail and a $1,000 fine…

So recently Bragg finally found a criminal worthy of high bail and very serious charges: murder. Unfortunately – but not surprisingly – it was a grocery store worker defending himself against an attack:

Alba was manning the counter at Hamilton Heights Grocery on Broadway and West 139th Street Friday night when Austin Simon, a 35-year-old career criminal on parole for assaulting a police officer, stormed behind the counter and shoved him into a wall, surveillance video shows.

The ex-con then grabbed Alba as the frightened clerk tried to get past him — getting his hands on a knife and plunging it into Simon at least five times.

During the fight, Simon’s girlfriend allegedly pulled a knife from her purse and stabbed Alba three times in the shoulder and hand, according to his attorney.

She has not been charged, with the DA’s office saying only “we are continuing to review the evidence and the investigation is ongoing.”

She’d only be charged with a misdemeanor according to Bragg’s guidelines anyway, right?

I’ve read several articles about the incident, and it appears to have begun when the girlfriend tried to buy a bag of potato chips and her EBT debit card was declined. She left the store and called boyfriend Simon for assistance. He came and assaulted the older, smaller man, who grabbed a knife and stabbed Simon during the fight while Simon was apparently trying to drag him out of the store. There are also reports that the girlfriend stabbed Alba in the arm with another knife; I’m not sure what the time frame was for that, before or after or during the stabbing of Simon. The entire episode was captured on store security tape and can be viewed at many of the articles.

Originally, Bragg’s office asked for sky-high bail of $500,000; it was set at $250,000 and later, after an outcry, reduced to $50,000 of which only $5,000 had to actually be posted. Alba was freed with an ankle bracelet. Alba has no prior record, but note that Simon, the dead man, was out on parole after being charged with assaulting a police officer.

I don’t think that a grand jury would be likely to indict Alba for this, even in New York, and if indicted I don’t think a jury would convict him. Even the mayor has taken Alba’s side – although he also refused to condemn Bragg.

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Armed Self-Defense Is Under Attack In The U.S.A.

Is armed self-defense a basic human right? The question may seem rhetorical, even nonsensical to a rational mind. “Of course, armed self-defense is a basic human right,” you would say. Or is it?

In the countries of the EU it isn’t; nor is armed self-defense acknowledged and accepted as a fundamental human right in the countries that comprise the British Commonwealth.

But, what about the United States? Do Americans have a right to armed self-defense?

The natural law right codified in the Second Amendment of the Bill of Rights makes it plain that Americans do have a natural law right of armed self-defense. And the seminal Second Amendment holdings in Heller, McDonald, and, most recently, in Bruen explicitly assert that. So, why does that remain a question for us? But a question for us it is, disturbing as it is.

The Globalist elite puppet-masters and the Marxist internationalists do not acknowledge—in fact do not recognize—the right.

Of course, it should not matter what these creatures think. But as long as Americans vote their proxies into public office, the right of armed self-defense remains, in practice an open question in many jurisdictions across the Country, despite the clear meaning of the Second Amendment and irrefutable U.S. Supreme Court precedent.

The fact remains that in the U.S. the natural law right of armed self-defense is not to be denied, ignored, dismissed, or abrogated.

The right of armed self-defense is itself subsumed in the broader category of the right of self-defense for personal survival, by whatever means.

Armed self-defense simply means that a person has the natural law right to possess the best means for ensuring both his physical survival and his autonomy of self against those forces that dare crush body, or mind, or spirit. For centuries that best means of self-defense was a firearm. And it remains so.

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New York Tells Supreme Court ‘Thank You, Sir. May I Have Another?’

New York has made a return appointment for Constitutional scrutiny of their gun-carry laws.

Almost immediately after the Supreme Court struck down the state’s previous law over the subjective nature of its “proper cause” clause, New York is back with a beefed-up and even more subjective “good moral character” clause. In addition to requiring multiple references, the newly-passed standard for issuing gun-carry permits includes a social media review. Instead of relying on objective standards, such as an applicant’s record of convictions or mental health commitments, the state is doubling down on the subjective judgment of its permitting officials.

Instead of judging whether somebody has “proper cause” to carry a gun based on specific threats to their life, state officials will now judge whether or not they are of “good moral character” based on their tweets and Facebook posts. It’s difficult to see how the outcome will be any different.

It’s difficult to see how the legal fight will be any different either. Except, perhaps, how quickly New York loses.

New York is defying the Supreme Court. And it’s not trying to hide that fact.

“With this action, New York has sent a message to the rest of the country that we will not stand idly by and let the Supreme Court reverse years of sensible gun regulations,” Lieutenant Governor Antonio Delgado said in a statement.

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They’re also mistaken that the 2nd amendment ‘gives’ us rights.. Of course, even the Supreme Court, way back in the 1800s, properly recognized that it was a restriction, on the government, not the people!


What Liberals Get Wrong About the Second Amendment

Must we really respond to the “musket” argument again?Apparently so. It’s all the rage among Democrats right now.New York Gov. Kathy Hochul (Democrat) and Illinois Gov. J.B. Pritzker (Democrat) both think it’s quite brilliant to claim that, if we care what the framers of the Constitution meant, then the Second Amendment applies only to “muskets”!In The New York Times, a couple of professors (Democrats, but you knew that) asked: “Is a modern AR-15-style rifle relevantly similar to a Colonial musket? In what ways?” They liked their argument so much, the op-ed was titled, “A Supreme Court Head-Scratcher: Is a Colonial Musket ‘Analogous’ to an AR-15?“[Frantically waving my hand]: Yes, professors, it’s exactly analogous.The Second Amendment does not refer to “muskets”; it refers to “the right of the people to keep and bear arms.” “Bear” means to carry, so any handheld firearm carried by the military can be carried by the people. Just as the musket was once carried by our military, the AR-15 is a handheld arm (technically, the less powerful version of the automatic M-16) carried by our military today. As soon as the U.S. military goes back to muskets, then muskets it is!

But I’m not here to refute idiotic arguments. These guys may as well claim that the First Amendment protects only speech delivered in pamphlets and sermons, but nothing communicated on television, the internet, or with poster boards and Magic Markers.

The Second Amendment is nearly the only prescriptive policy in a document that liberals have been trying to pump their nutty ideas into for 50 years. Unfortunately for them, there’s nothing in the Constitution about a right to dance naked in strip clubs, contraception, marriage or sticking a fork in a baby’s head.

But on the right to bear arms, our Delphic framers were nearly Tolstoyian with their explosion of words: “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.” (An earlier draft of the amendment specifically defined “militia” as “composed of the body of the people,” but was rejected as redundant.)

In the boldest affirmation of their worldview, the framers announced our natural, God-given right to self-defense — against the government, against criminals, and against assailants the government can’t or won’t stop. Free people prepared to defend themselves are the nucleus of the republic. It’s the most beautiful thing in the whole Constitution. Here, at last, the Founding Fathers told us something specific they want us to do: Teach the boys to shoot.

The “right to bear muskets” crowd — protected by taxpayer-supported armed guards, or cordoned off from the public by phalanxes of security officers in the lobby of, for example, NBC’s television studios in Rockefeller Center, before they return to their homes in crime-free, lily-white neighborhoods — tell us to focus on the freakishly rare mass shooting.

The highest estimates of mass shootings — including by gang warfare, drive-bys, drug wars and domestic murder-suicides — put the number of deaths at under 400 per year, or approximately the same number of Americans who drown in swimming pools every year. Four hundred, out of more than 20,000 murders annually.

Which is why, despite the media’s best effort to terrify suburban moms about weirdos shooting at crowds, nearly half of Americans prefer self-reliance to the government taking away our guns and promising to protect us.

In 2020, the Year of Our Floyd, gun sales went through the roof. The previous high for gun sales was in 2016, with about 16 million guns sold. But in 2020, as BLM tore through our cities, Americans bought 22.8 million guns. The following year saw the second-highest record for gun sales, at 19.9 million purchases.

By now, 44% of Americans report living in a gun-owning household. Thirty-two percent say they personally own a gun.

As much as I’d like to institutionalize the crazies — for their sake, as well as ours — the risks from bad faith actors at present are too high. With anti-gun zealots on the rampage and the U.S. attorney general siccing the FBI on parents who complain at local school board meetings, the most likely result would be marijuana-crazed schizophrenics continuing about their days unmolested, while gun owners get locked up.

In any event, it appears that the lunatics aren’t heavily armed, anyway. Here’s a demographic breakdown of gun ownership in 2022, according to Gallup:

Republicans 50%
Democrats 18%
Conservatives 45% (Oddly, Gallup calls them “self-identified conservatives,” as if Gallup would never use this cruel epithet without consent of the accused.)

Liberals 15%
Men 45%
Women 19%
Southerners 40%
Eastern residents 21%

Gallup left out one category. The subgroup most likely to own a whole buttload of guns, but not admit it: gang members and other recidivist felons protected by George Gascon and other Soros D.A.s.

Being a rational people, Americans are more worried about those guys than the random rifle-bearing psycho in a woman’s dress.

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.

‘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.

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.

Uh…no.

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.

The Supremes are Back – Making the Constitution Great Again

Diana Ross and the Supremes were one of the biggest Motown musical groups in the 1960s. By 1970 they went their separate ways, but this past week, their informal namesakes scored a mega-hit. Not singing catchy pop tunes, but by dancing in their black robes, singing glory and praise to the United States Constitution, making it great again.

I speak of the US Supreme Court, finding their constitutional voices on two major issues that have polarized and divided Americans for decades. SCOTUS was not created to make law or decide controversial social or policy issues. In a constitutional republic, those issues are decided by the people, or their elected representatives, not by unelected, lifetime appointed judges.

Instead, SCOTUS’s role is to determine whether laws passed by the legislative branch or administrative decisions emanating from the executive branch are constitutional. From the SCOTUS website,

The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.

While Diana Ross and her Supremes sang, “Stop in the name of love”, Clarence Thomas and his Supremes did a remake, “Stop in the name of law”, specifically the US Constitution. Two big decisions in two days. Was this “The Storm” that President Trump once predicted? Or just a “boom-boom” end to a week where we saw another two booms — the President falling off his bicycle then showing off his cue card telling him, as one would a young distractible child, where to sit, as in “YOU take YOUR seat” and when to get up and leave as in “YOU depart”.

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New York’s Unconstitutional Gun Law Was Written By A Notorious, Corrupt Thug

Larry Mulligan-Hicks and Tim Sullivan

The Sullivan Act was named after Timothy D. Sullivan, one of the most corrupt politicians of his age.

On the morning of January 23, 1911, an unstable Harvard graduate with the theatrical name of Fitzhugh Coyle Goldsborough walked up to the novelist David Graham Phillips on a Manhattan street and unloaded six shots from his .32-caliber pistol into him. Goldsborough, who believed the novelist had defamed his sister, reloaded his gun, placed it against his temple, and pulled the trigger. Goldsborough died instantly.

The murder-suicide shocked the city. Although the crime destroyed many lives, none of them would change history quite like George Petit le Brun, the man who performed the autopsies on the bodies at the city coroner’s office.

“I reasoned that the time had come to have legislation passed that would prevent the sale of pistols to irresponsible persons,” he later wrote. After two years of imploring local politicians to institute gun control laws, le Brun finally found an ally in Timothy D. Sullivan, one of the most corrupt politicians of his age, a Tammany Hall operator known to New Yorkers as “Big Tim.”

One of the big talking points in the aftermath of the Supreme Court’s New York State Rifle and Pistol Association v. Bruen decision last week—it is mentioned in nearly every news piece—is that New York’s “may issue” permit law had been on the books for more than 100 years. And that’s a long time. But time does not make a law constitutional or efficacious.

The Sullivan Act, passed in 1911, was the nation’s first statewide gun control law. It required New Yorkers who possessed firearms small enough to be concealed to ask local cops—who could deny the request not just to “irresponsible persons” but to anyone, and for any reason, they liked—for a license.

People caught owning guns without one would face a misdemeanor charge, and those carrying guns without one a felony. In addition to handguns, the law prohibited the possession or carrying of weapons such as brass knuckles, sandbags, blackjacks, bludgeons, and bombs, as well as possessing or carrying a dagger, “dangerous knife,” or razor “with intent to use the same unlawfully.”

Such discretionary and capricious gun laws would allow corrupt cops to disarm rival gangs that threatened Tammany Hall’s authority or undermined its political interests. Big Tim’s cronies could use the law to punish business owners who didn’t pay protection money or deny entire neighborhoods the ability of self-defense.

Although Big Tim was corrupt in every way imaginable—he was involved in bribery, gambling, prostitution, and rigging elections, for starters—historians like Terry Golway assure us Sullivan really wanted to clean up neighborhoods “awash in cheap pistols.” “His law is now off the books,” writes Golway, “His wisdom remains.” One would have to suspend disbelief to accept that some of the most corrupt bureaucrats of the age, people who weren’t beneath exploiting women and children or shaking down businesses, wouldn’t abuse a malleable law that empowered them to deny their political opponents the right to defend themselves. Moreover, whatever Sullivan’s intentions were, there was no decline in gang violence or murder in New York in the ensuing years.

In 1911, there were 366 homicide arrests in New York. By 1920, there were 743. Then, like now, criminals remained unconcerned with attaining proper licensing before engaging in criminality. Only law-abiding citizens cared. We will never know how many shopkeepers and immigrants were left defenseless to thugs in those years. Even after the fall of Tammany, getting a gun for self-defense was prohibitively difficult. Essentially, the Second Amendment didn’t exist. The wealthy—Trumps, Sulzbergers, and Rockefellers, among many other notables—had no problem obtaining licenses over the years. This leaves poor and minorities, who often lack the resources or time to figure out the process, without their rights.

It’s always been a mystery to me why those critical of law enforcement are fine with allowing them to make key decisions. Then, as now, it was up to citizens to beg officials to allow them to defend themselves against subjective reasons that allow politicians, bureaucrats, and law enforcement to pick and choose who gets to practice their rights.

The Five Reasons SCOTUS Overturned Roe and Casey

It’s long but read the whole thing

The Supreme Court’s opinion released Friday is the culmination of decades of work by pro-life activists and comes amid an unprecedented level of hostility toward members of the high court who believed that the “right” to abortion created in Roe and revised in Casey was based on flawed legal reasoning. While the left is already planning for a “night of rage” in response to the decision overruling Roe that merely returns abortion policy-making power to the people and their elected representatives, here’s what Justice Alito said were the five factors that weighed strongly in favor of overturning Roe and Casey.

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Sununu Signs Controversial Firearms Bill Into Law

In the press release Gov. Chris Sununu sent out Friday about 36 bills he signed, he added a statement explaining why he signed HB 1178 prohibiting the state from enforcing any federal statute, regulation, or Presidential Executive Order that restricts or regulates the right of the people to keep and bear arms.

 “New Hampshire has a proud tradition of responsible firearms stewardship, and I’ve long said that I’m not looking to make any changes to our laws,” Sununu said. “This bill will ensure that New Hampshire’s law enforcement efforts will be on our own State firearms laws – and that’s where I believe their focus should be.”

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EXCLUSIVE: Rep. Andy Biggs — Expect House Gun Controllers to ‘Go After Ammo and Ammo Manufacturers’

Rep. Andy Biggs (R-AZ) spoke with Breitbart News about the current push for gun control in the House and warned us to be ready to see gun controllers “go after ammunition and ammunition manufacturers.”

Biggs noted a number of gun controls have been passed by the Democrat-controlled House, and even though those controls have not passed the Senate he believes the House will pass even more.

He explained, “I expect some additional gun control legislation to come out of the House. I expect there will be an attempt to do an ‘assault weapons’ ban, I think they’re going to continue to try to eliminate liability protections on gun manufacturers, and I think they’re also going to go after ammunition and ammunition manufacturers.”

Biggs then talked about gun control in the Senate, where he said, “When gun control reared its head again, after Uvalde, I expected 20 members of Senate Republicans to cave and give things like red flag laws and whatever else that the House pushing. But I’m sure what, if anything, is going to get out now, because it has taken so long and they have no language.”

He added, “When you have no language to look at, they start working off what is called a framework, and that leads to infighting where some Senators want certain things but not other things, and that indicates a lack a consensus.”

And Biggs stressed the more time passes the less chance there is consensus will occur.

He also noted the way Sen. John Cornyn (R-TX) was booed on Friday at the Texas GOP Convention, and said, “That response indicates that gun owners are not real pleased with the Republicans that are undermining the Second Amendment.”

Biggs emphasized the launch of a watchdog group, the Arizona Second Amendment Coalition, a coalition of people he has pulled together to stay on top of the fight for Second Amendment rights.

Members of the coalition include elected officials, student advocates, individuals who work in the firearm industry, and members of pro-2A groups like the DC Project, among others.

Biggs said, “We’re trying to make it a broad-based coalition where we talk about challenges to the exercise of Second Amendment rights. Whether that is an ATF challenge, something the Biden administration is doing, or what policies–local, state, and federal–that may either positively or negatively impact the Second Amendment.”

On January 3, 2022, Breitbart News reported Biggs stressing that carrying a gun for self-defense is part of being a “free American.”

Biggs said, “When you start talking about my wife or me or someone else, we’re talking about self-defense, and the first liberty is the right to life. So, if you can’t defense yourself against the bad guys you start looking like the 12 cities in America that have the highest homicide rate in their history.”

He then added, “You don’t want to look like that. You don’t want to look like Venezuela. You want to be a free American and the way to be free and reduce crime is to allow people to carry guns.”

Will Your “Smart” Devices and AI Apps Have a Legal Duty to Report on You?

I just ran across an interesting article, “Should AI Psychotherapy App Marketers Have a Tarasoff Duty?,” which answers the question in its title “yes”: Just as human psychotherapists in most states have a legal obligation to warn potential victims of a patient if the patient says something that suggests a plan to harm the victim (that’s the Tarasoff duty, so named after a 1976 California Supreme Court case), so AI programs being used by the patient must do the same.

It’s a legally plausible argument—given that the duty has been recognized as a matter of state common law, a court could plausibly interpret it as applying to AI psychotherapists as well as to other psychotherapists—but it seems to me to highlight a broader question:

To what extent will various “smart” products, whether apps or cars or Alexas or various Internet-of-Things devices, be mandated to monitor and report potentially dangerous behavior by their users (or even by their ostensible “owners”)?

To be sure, the Tarasoff duty is somewhat unusual in being a duty that is triggered even in the absence of the defendant’s affirmative contribution to the harm. Normally, a psychotherapist wouldn’t have a duty to prevent harm caused by his patient, just as you don’t have a duty to prevent harm caused by your friends or adult family members; Tarasoff was a considerable step beyond the traditional tort law rules, though one that many states have indeed taken. Indeed, I’m skeptical about Tarasoff, though most judges that have considered the matter don’t share my skepticism.

But it is well-established in tort law that people have a legal duty to take reasonable care when they do something that might affirmatively help someone do something harmful (that’s the basis for legal claims, for instance, for negligent entrustment, negligent hiring, and the like). Thus, for instance, a car manufacturer’s provision of a car to a driver does affirmatively contribute to the harm caused when the driver drives recklessly.

Does that mean that modern (non-self-driving) cars must—just as a matter of the common law of torts—report to the police, for instance, when the driver appears to be driving erratically in ways that are indicative of likely drunkenness? Should Alexa or Google report on information requests that seem like they might be aimed at figuring out ways to harm someone?

To be sure, perhaps there shouldn’t be such a duty, for reasons of privacy or, more specifically, the right not to have products that one has bought or is using surveil and report on you. But if so, then there might need to be work done, by legislatures or by courts, to prevent existing tort law principles from pressuring manufacturers to engage in such surveillance and reporting.

I’ve been thinking about this ever since my Tort Law vs. Privacy article, but it seems to me that the recent surge of smart devices will make these issues come up even more.

2 Countries In America: Those Who Cherish the RKBA & Those Who Don’t

It is time for us to think outside the box and form two countries. Instead of civil war I propose civil separation. We are two countries, so ideologically opposed that each feels victimized and dominated by the other. Political leaders need to step up and brainstorm next steps. Clearly lay out the two ideologies and give each state a vote as to where they belong.” ~“Opinion Letter” from reader of The New York Times posted on June 5, 2022, responding to May 27, 2022 “America May Be Broken Beyond Repair,” by the Political Progressive Columnist for the Times, Michelle Goldberg. The letter writer, Dawn Menken, a Psychologist, from Portland, Oregon, is the author of “Facilitating a More Perfect Union: A Guide for Politicians and Leaders,” published in 2021*

If the American public didn’t know the truth before, it knows it now: the battle for the very Soul of the Country is on the line, and Ground Zero of that battle isn’t Uvalde, Texas. It’s New York City, New York, with the Bruen case shortly coming down the pike.

The Nation is indeed “two Countries,”—no less so now than at the time of the American Civil War: friend against friend, brother against brother, uncle against cousin, father against son. But what is different today is that ideologies cut across and into the very notion of what it means to be an American. There are those who hold to the meaning and purport of our Nation as set forth in our Constitution and especially in the Nation’s Bill of Rights. And there are those who wish to jettison all of it in the erroneous belief that our Nation is at its core, immoral, even evil. They wish to destroy the very fabric of a free Constitutional Republic.

But the salient difference between these two Countries rests on this:

Those Americans who embrace and cherish their fundamental right to keep and bear arms, and others who do not.

Those who embrace and cherish their fundamental right to keep and bear arms also recognize and embrace their sovereignty over Government. They understand that government exists to serve the interests of the people. They recognize that Government is the servant and the American people are the sole master.

Unfortunately, many Americans are of a different mindset. Such Americans have bought into the psychological conditioning programmed into them that guns are awful and gun owners are to be despised. Such Americans care not that Government is their servant, not their master. They recognize not and care not that by ceding their God-Given right to keep and bear arms, they have laid the foundation for their own demise: loss of Selfhood, loss of Dignity, loss of Self-Reliance, loss of mastery over their own destiny.

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