Category: Rights

California bill targets First Amendment rights of Second Amendment supporters

Buying your kid a Browning t-shirt could soon be impossible, at least if you live in California. Democrat Assembly member Rebecca Bauer-Kahan has introduced a bill that is starting to get some attention in the state legislature, and it poses a clear threat to the First Amendment rights of Second Amendment supporters.

In Bauer-Kahan’s view, AB 2571 “seeks to restrict the malicious and manipulative firearms marketing geared towards children and youth,” but a perusal of the text shows her real aim is to crack down on parents who aim to educate their kids about safe and responsible gun ownership.

According to the current language of the measure, the proposed law would “prohibit a person or entity that publishes materials directed to minors in this state in any medium from marketing or advertising firearms in that material, as specified, and would prohibit a person or entity that publishes a marketing or advertising communication from publishing or disseminating marketing or advertising for firearms that is attractive to minors, as specified.”

What makes a particular communication “attractive to minors”? The bill is open-ended, but includes things like using cartoon characters to promote firearms or firearms products; offering firearm brand name merchandise, such as hats, t-shirts, or stuffed animals, for minors; or even offering firearms or firearms accessories with colors or designs that are specifically designed to appeal to minors.
Violations of the law could result in a $25,000 fine, which is clearly an attempt to chill pro-Second Amendment speech.

The National Shooting Sports Foundation’s Mark Oliva tells Bearing Arms that it’s clear that state lawmakers “aren’t satisfied” with curtailing Second Amendment rights and now trying to infringe on the First Amendment as well.

“Commercial speech is still protected speech,” says Oliva, adding, “California’s bought-and-paid for gun control politicians might find it disagreeable that parents actually teach their children safe and responsible firearm ownership, but that is a reality, albeit one they are attempting to erase. Advertising images of parents and youths hunting together would be illegal. Youth hunting clothing branded with firearm and ammunition maker logos would be banned. The bill authors know this is a clear violation of First Amendment rights, but they give no consideration to fundamental rights when it comes to advancing a gun control agenda.”

Why would they, honestly? Most California Democrats don’t view the Second Amendment as a fundamental right that must be protected. At best they see it as an anachronism that has no place in 21st Century America, and far too many of them see our right to keep and bear arms as an evil that must be eradicated. They don’t see AB 2571 as the censorious pile of rat droppings that it is. No, they honestly believe they’re protecting innocent children from the evil and twisted firearms industry.. not to mention the deplorable gun-owning dupes those kids might have as parents.

Here’s my question for Rebecca Bauer-Kahan and other backers of this bill: even if gun companies were marketing their products to minors (which I don’t think is actually the case), shouldn’t all of the gun control laws on the books in California prevent minors from getting their hands on a gun? I mean, minors can’t legally purchase firearms or ammunition in the state, and there are background check requirements for all gun transfers and ammunition purchases. If California’s gun control laws work as well as Democrats say they do, then why do they believe this bill is necessary?

Sadly, I know the answer. This legislation isn’t about preventing minors from illegally acquiring firearms. It’s about demonizing the firearms industry.

I would love to say that this bill is going nowhere, but it already has the backing of Gov. Gavin Newsom and appears to be gaining some traction in the state Assembly, where it was referred to the Judiciary Committee on Monday. The time for California gun owners to speak out is now. I don’t know that even a wave of opposition from gun owners across the state will be enough to derail the bill in the legislature, but it’s the first step in what’s likely to be a long campaign to defend our First Amendment right to support the Second Amendment.

Heller Foundation gets settlement from DC

Ghost guns are everywhere! The latest assaults on the civil liberties have yet to fully manifest from the Biden-Harris administration, but we know that the matter of homebuilt firearms are in the crosshairs of the anti-freedom caucus. Regardless to what the Feds have in store for us, people are dealing with local level infringements. Back in November I reported on Dick Heller suing the District of Columbia, again. And getting a win, again. What was the suit about? Homemade firearms and so-called ghost guns. The lawsuit against the District did yield the result of some temporary and emergency rule changes to the laws, however nothing final has been implemented to date. Also wrapped up in the suit was DC seeking to settle with Heller in the form of monetary damages for his rights being usurped. A recent announcement talked about some of that settlement being fulfilled.

The Heller Foundation formally announces a settlement with the city of Washington, DC in his Second Amendment challenge of their infringement on citizens’ Firearms Freedom Civil Rights. Consequently, there was a small financial award to the foundation and the retraction of the unlawful restrictions.

The case was initially filed by George Lyon, Esq. and plaintiffs Dick Heller, Elby Godwin, and others, were told they could neither construct nor own any partial-polymer firearm kits, the so-called Ghost Guns, within the DC city limits. Heller’s gun kit was forcibly returned-shipped to the retailer, Stephen Bozich, President of Bare Arms in Robbins, North Carolina.

The regulations would have also outlawed all police firearms and made individuals’ possession of Glocks illegal. In a Free Country, paid for with the Blood of Patriots, citizens may construct a boat, airplane, or bow & arrow, or a firearm. However, even though residents of DC may purchase or own most types of firearms, they were not allowed, themselves, to construct a firearm within the city limits for private use in the defense of self or one’s household, or any other lawful purpose.

More legal challenges to government’s overzealous and whimsical overreaching Infringements on our Second Amendment Rights are underway. Typical court challenges to these radical state infringements usually start in the $100,000 range. Patriots can support HellerGunCase.org (aka HellerFoundation.org). Losing these cases means we must prepare for the slow erosion of our Second Amendment Rights and for government confiscation of our guns.

I had a chance to catch up with  George L. Lyon, Jr. from Arsenal Attorneys, Heller’s attorney, and talked with him about the settlement. As part of the agreement, the District agreed to pay out to Heller five thousand dollars for the usurpation of his rights. While this is a big step towards having the lawsuit dropped, the settlement has yet to be fully executed. The District still owes about $81,000.00 in attorney and legal fees. Lyon had the following statements to add:

Mr. Heller ordered a Polymer 80 kit and had the kit sent to one of the District’s FFLs in anticipation of registering it. The FFL in turn inquired of the Metropolitan Police Department as to how to handle the matter and was told that the kit was illegal and to send it back to the vendor.

In response, Mr. Heller sued in Federal District Court for the violation of his constitutional rights. Two other District residents who own polymer frame handguns sued as well in light that the District law appeared to criminalize their possession of their legally acquired and registered polymer framed pistols.

In response, the District, concluding that the law was indefensible, enacted temporary legislation to address the plaintiff’s claims. Among the changes the District made to its law was a provision allowing District residents to make their own firearms subject to registration and placing a serial number on the self-made firearm. In addition, the District repealed the ban on unfinished receivers, and amended its definition of “undetectable” firearm to avoid criminalizing the possession of polymer frame receivers.

As compensation for the denial of Mr. Heller’s civil rights, without admitting liability, the District paid the Heller Foundation $5,000.

While the attorney and legal fees have yet to be paid out, Lyon is confident there will be full financial amelioration. I asked Lyon “What’s next?” He did not give me specifics but did note that he and his firm plan on continuing to go after all unconstitutional laws in the District of Columbia, adding that if someone from DC is interested in being a plaintiff, to reach out to the firm as well as keep their eyes peeled for any upcoming suits.

Anytime there’s an opportunity to bring forward news about Heller and these patriots is welcomed. The work that’s getting done in the District of Colombia has a huge impact on the rest of the country, as indicated by the original Heller case. DC is a great petri dish of progressive and unconstitutional laws which are ripe for challenge and poised to be overturned by the judicial system. We’ll be following the progress of this settlement as well as any other cases brought forward by Heller and his representation Lyon.

BLUF:
Elon Musk will not save free speech online. Even if his intentions really are good ones, the scale of the problem goes beyond one platform. And free speech online is too important to rely on the benevolence of billionaires. But his attempted takeover of Twitter has already done us a great service, in revealing how important censorship now is to America’s permanently hysterical elites. (Just call them what they are: wanna-be tyrants)

WHY ELON MUSK HAS RATTLED THEM

We stand here on the edge of tyranny… Elon Musk wants to buy Twitter. That, roughly speaking, has been the commentariat reaction in recent days as the world’s richest man has launched a takeover attempt of the social-media giant, citing his concerns about its censorious policies as his main motivation.

Musk revealed last week that he had become Twitter’s largest shareholder, with a 9.2 per cent stake. Now he’s offered to buy the whole company for a cool $43 billion, a nice premium on its current worth. As it stands, Twitter’s board is resisting and America’s great and good have gone berserk.

The Washington Post’s Max Boot was swift out of the blocks. ‘I am frightened by the impact on society and politics if Elon Musk acquires Twitter’, Boot tweeted. ‘He seems to believe that on social media anything goes. For democracy to survive, we need more content moderation, not less.’

On an even more demented note, Robert Reich, veteran of the Clinton and Obama administrations, essentially argued that Musk buying Twitter would put us on a fast track to fascism; that Musk’s vision for an ‘uncontrolled’ internet was ‘​​the dream of every dictator, strongman, demagogue and modern-day robber baron’.

Reich wasn’t the only one gripped by this interesting idea that dictators love free speech and that more of it online will bring the Third Reich back. New York University journalism professor ​​Jeff Jarvis had this poetic response to Musk’s bid: ‘Today on Twitter feels like the last evening in a Berlin nightclub at the twilight of Weimar Germany.’

Continue reading “”

I’m not surprised in the least. SloJoe™ has been an inveterate liar from day one in the Senate, so nothing new here.

Biden Trips All Over Himself and Tells a Boatload of Lies at Gun Control Event

Joe Biden was talking about his new dangerous gun control moves today, including a new rule on “ghost guns.” He announced a new nominee to head the ATF in a Rose Garden ceremony on Monday — former U.S. Attorney from Ohio under Barack Obama, Steve Dettlbach. Biden’s last nominee, David Chipman went down in flames because of concerns about his radical anti-gun positions.

From ABC:

A senior administration official told ABC News, “At its core, this rule clarifies that anyone who wants to purchase a weapon parts kit that can be readily be converted to a fully assembled firearm must go through the same process they would have to go through to purchase a commercially made firearm in short weapon parts kits that may be readily convertible into working fully assembled firearms must be treated under federal law.”

The rule also tackles ghost guns already made and in circulation. The DOJ will require federally licensed dealers that take in any un-serialized firearms to serialize them before selling the weapon. If a licensed dealer acquires a ghost gun, the rule will require them to serialize it before re-selling it.

Gun Owners of America have argued it’s an effort to expand gun registry and control even the ability to buy parts and repair guns. The legality of Biden’s new rule is likely to be challenged because the executive branch doesn’t get to make the law, that’s up to Congress.

Biden made several questionable comments during his remarks.

He confused the ATF (Bureau of Alcohol Tobacco Firearms and Explosives) with the AFT (The American Federation of Teachers).

[Not the first time he’s done that. It means his dementia is getting worse]

 

Then he spoke about prosecuting people with ghost guns for a federal crime.

 

As it is, these criminals are not being properly pursued in Democratic-run cities. Is he saying they weren’t being federally prosecuted already for gun crimes and he’s just discovering that now? Or how is this different?

Biden also repeated a lot of the lies that he commonly tells. Doesn’t any of his coterie ever try to tell him to stop repeating demonstrably untrue things? Either they don’t care or they tell him but he says it anyway because he just can’t stop lying.

He claimed that you couldn’t buy a cannon when the Second Amendment was passed.

 

That’s a lie, you could. Indeed, you can now. He got four Pinocchios on this claim in the past. But that hasn’t stopped him from saying it.

Biden attacked gun manufacturers, claiming they had some kind of unique immunity that no other company has — that they can’t be sued. This is just untrue. They can be sued for anything relevant to their manufacture, such as if gun malfunctions. But why should they be responsible for the actions of a criminal with a gun? It would be like going after car manufacturers because a driver tried to run someone down. It’s idiotic. How would going after the manufacturers stop gun crime? It wouldn’t.

Continue reading “”

Alabama lawmakers pass bill meant to block Biden orders

Alabama is a very pro-gun state. They just passed constitutional carry earlier this year, for example, and it seems lawmakers there aren’t interested in resting on their laurels. They’re still trying to make pro-Second Amendment moves.

In fact, they just passed another law that’s bound to rustle the proverbial jimmies of the gun control crowd.

Alabama lawmakers have passed a bill intended to block state and local officials from enforcing executive orders by the president that restrict ownership or use of firearms.

The bill by Sen. Gerald Allen, R-Tuscaloosa, is called the Alabama Second Amendment Protection Act.

Allen and other Republican lawmakers have proposed similar bills since President Biden took office last year.

Democrats opposed the bill, questioning the purpose and practicality of the bill and citing the Supremacy Clause, which holds that federal law generally supersedes state law.

Rep. David Standridge, R-Hayden, the House sponsor of the bill, said people in Alabama are concerned about the possibility of presidential orders on firearms.

Standridge has said he believes states can decide whether state and local police enforce presidential orders. That state authority does not apply to federal officers, he has said.

And Standridge makes a valid point. After all, the law doesn’t dictate what laws are in effect within the state of Alabama’s borders, only what state and local law enforcement do with regard to those laws.

This will probably spark a legal challenge much like how Missouri’s SAPA did, but there are differences between the two measures.

Frankly, though, I’m not interested in hearing criticism of this measure from anyone who supports sanctuary measures at the state level for illegal immigrants. After all, this is fundamentally no different than those laws, really. The only difference is what is being tolerated.

Of course, for far too many anti-gun jihadists, guns are different. The rules are different and they should be free to enact whatever legislation they want, at least in their minds.

The thing is, that’s not how it works. Any tactic you try is fair game for someone else to give a go. Sure, what works in one policy arena may not work in another, but you can’t pretend to be offended when someone gives it a go.

So, Alabama did.

Now we’ll just have to wait for what the courts say. I suspect we’ll see similar arguments to what we’ll see in Missouri, but in the end, it doesn’t matter.

Even a decision that comes down against the Second Amendment will ultimately hurt the Democrats who are pushing this stuff. Instead of just winning for gun control, they’ll manage to epitomize the statement, “Be careful what you ask for, you just might get it.”

However, truth be told, I don’t see that happening. Laws aren’t being nullified and insisting police enforce federal executive orders amounts to an unfunded mandate, which is problematic as well.

In the end, I suspect the law will fly and I suspect we’ll see a number of other states pass similar measures in short order.

The latest tactic of the gun grabbers assault on our rights.

Advocacy groups ask US to crack down on gun industry ads

Likening “unfair and deceptive” firearms advertising to that of tobacco products, gun safety advocates Thursday asked US regulators to crack down on the industry.

A coalition of three groups asked the Federal Trade Commission (FTC), which regulates advertising, to “investigate and regulate the gun industry’s unfair and deceptive advertising,” according to their 40-page petition.

“The FTC is failing consumers, failing our democracy, and failing the millions of Americans who have lost their lives or their loved ones to gun violence,” the petition said.

“No industry — regardless of its political clout -— should be immune from scrutiny of its marketing and advertising.”

The effort, brought by the Giffords Law Center, Brady United and the March for our Lives, revives a 1996 appeal by Brady to the same agency that the groups said resulted in no public action.

An FTC spokesman said the agency had no comment on the petition.

Continue reading “”

Judge restores Jan. 6 defendant’s gun rights over DOJ objection

A judge has restored a Texas woman’s right to possess firearms just weeks after she was sentenced for illegally entering the Capitol on Jan. 6, 2021.

U.S. District Court Judge Trevor McFadden issued an order on Thursday granting florist Jenny Cudd’s request to lift a term of her probation that forbade her to own or possess any “firearm, ammunition, destructive device, or dangerous weapon.”

Cudd had asked that the condition be set aside, citing threats she received following publicity about her role in the storming of the Capitol as lawmakers were preparing to certify Joe Biden’s win in the 2020 presidential election.

The judge’s ruling was a rebuke to prosecutors, who opposed the change, and it was the latest setback for prosecutors dealt by McFadden, who was appointed by former President Donald Trump. The decision further cements the judge’s reputation as the most skeptical member of the D.C. District Court bench about the stance prosecutors have taken in the wake of the Capitol riot.

In his two-page ruling on Thursday, McFadden noted that Cudd wore a “bulletproof sweatshirt” to the Jan. 6 rally, but he credited her explanation that she wore the defensive garment because she feared violence, not because she was seeking it.

“The Government presented no evidence that Cudd incited anyone to violence,” McFadden wrote. “Nor did it present evidence that she participated in violence. She has no prior criminal history. And Cudd’s bullet proof sweatshirt is consistent with her fear of being attacked at the rally preceding her entry into the Capitol. This says nothing about her danger to others.”

McFadden cited the Supreme Court’s 2008 ruling in D.C. v. Heller that held that the Second Amendment guarantees an individual right of self-defense.

“The Court will not limit that right for a nonviolent misdemeanant who credibly fears for her safety,” the judge wrote.

McFadden’s order came one day after he delivered the first outright acquittal of a Jan. 6 defendant, finding a former government contractor from New Mexico, Matthew Martin, not guilty on four misdemeanor charges.

McFadden, who also served as the No. 2 official in the Justice Department under Trump before being confirmed to the bench, has openly questioned the priorities of federal prosecutors. He has suggested that they’re taking a more aggressive stance toward the Jan. 6 defendants, while taking a more lax approach to people accused of violence during racial-justice protests in 2020.

Other judges have expressed disagreement with McFadden about the 2020 protests, saying some participants in violence got stiff sentences. They’ve also said the storming of the Capitol during the election-related proceedings was uniquely dangerous, since it posed a threat to the democratic transfer of power.

Prosecutors had sought a 90-day jail sentence for Cudd, noting that she made a slew of incendiary statements on Jan. 6. In one Facebook video she said she participated in pushing against police and was “proud” of her actions.

“I’m proud of everything that I was a part of today,” she said in the video. “And I’ll be proud of everything that I’m a part of at the next one.”

Typically, judges have imposed harsher sentences for defendants who celebrated their actions on Jan. 6.

While McFadden has offered criticism of prosecutors’ approach, he has uniformly rejected motions from Jan. 6 defendants to have their cases dismissed on grounds of selective, politically motivated prosecution.

McFadden’s latest stances are something of a sharp turn for the judge against the government. Despite his past skepticism, he had largely ruled in accordance with other judges on the court.

He rejected claims by one rioter who is accused of setting off a firework amid the most violent confrontation during the Jan. 6 riot that he was being selectively prosecuted. He also ordered the pretrial detention of Timothy Hale-Cusanelli, a former Army reservist who expressed hope for a civil war and was described by former colleagues as openly racist and antisemitic. Hale-Cusanelli, who remains incarcerated, is not charged with violence for his role in the Capitol attack.

McFadden’s handling of Cudd’s case generated headlines last year when he approved her request to take a trip to Mexico that she said was work-related and prepaid.

Prosecutors did not oppose the proposed international trip, but coming just weeks after the riot, McFadden’s decision drew criticism as an indication that the courts were not dealing sternly with those accused of participating in the takeover of the Capitol.

Judge considers novel privacy challenge brought by California gun owners
The overarching question of the privacy challenge brought by California gun owners is what personal information is needed to conduct gun violence research.

SAN DIEGO (CN) — An attorney representing millions of California gun owners said Tuesday their challenge to a California law disclosing their personal information to gun violence researchers is the first of its kind.

“We have been unable to find a single case like this one where vast amounts of information that have been collected and stored by the government is then sought to be disclosed to third parties without notice where people could not consent to disclosure,” Michael Reynolds of Snell & Wilmer told U.S. District Judge Larry Alan Burns.

At issue is a constitutional challenge by California gun owners who claim Assembly Bill 173 — a 2021 law which amended California firearms laws to authorize the state attorney general to disclose gun owners’ personal information to the California Firearm Violence Research Center at UC Davis — violates their privacy rights.

Burns was tasked Tuesday with deciding whether the case should be dismissed.

Previously, personal information collected by California gun owners during sales transactions and license applications was authorized to be used only for “legitimate law enforcement purposes.”

But AB 173 now allows the California Department of Justice to share gun owners’ personal information with researchers who study firearm-related crime, suicide and accidents.

Reynolds reiterated arguments he made during an unsuccessful temporary restraining order hearing in January seeking to block the release of gun owners’ information.

He suggested the disclosure of gun owners’ information including the addresses of their personal residence and business could make them “subject to attack” by people opposed to gun ownership or burglars looking to steal the weapons.

Continue reading “”

Fourth Circuit: A Person has a Right to Come to the Door with a Firearm

On March 30, 2022, a three-judge panel of the Fourth Circuit published an opinion in the case of Knibbs v Momphard. The Court found for the Estate of Knibbs, which is suing Deputy Momphard of the Macon County Sheriff’s Department. It was a split opinion, for the Knibbs Estate.

Important precedents involving firearms and the Second Amendment are solidified by this opinion, which cites several previous cases.  The Constitutional Amendment primarily cited is the Fourth Amendment. However, the citation to the Fourth relies on the Second Amendment, which includes the possession of a firearm in the home for self-defense.

This author sees the important issues in this case, clarified by the March 30 opinion, as:

  1. The mere possession of a firearm by a homeowner is not sufficient to justify the use of deadly force by officers.
  2. There is a right to come to the door with a firearm.
  3. Officers must identify themselves as officers to gain qualified immunity.
  4. Mere verbal announcement, without visual confirmation, is not sufficient to gain qualified immunity.
  5. Sufficient precedent exists for officers to be aware of their duty in these situations.

A brief synopsis of the case and disputed events:

Continue reading “”

The Supreme Court Says You Can Sue Cops Who Frame You on False Charges
The previous standard barring such lawsuits made “little sense,” wrote Justice Brett Kavanaugh for the majority.

Police officers could frame people, file bogus charges, conjure evidence out of thin air—and, in most of the U.S., they would still be immune from facing any sort of civil accountability for that malicious prosecution. Until yesterday.

In January 2014, Larry Thompson’s sister-in-law called 911 after noticing his baby had a rash. That call resulted in several police officers showing up at Thompson’s Brooklyn apartment, entering without a warrant, arresting him when he objected to that, jailing him for two days, and charging him with obstructing governmental administration and resisting arrest after they allegedly lied about what happened.

The initial 911 call was bogus: Thompson’s sister-in-law struggles with mental illness and assumed the mark was a sign of sexual abuse; an inspection at the hospital revealed it to be diaper rash. The charges resulting from that call were bogus as well; the prosecutor ultimately moved to dismiss them, and a trial judge closed the case.

Yet when Thompson attempted to sue the officers involved, he was barred by the U.S. Court of Appeals for the 2nd Circuit: In order to bring such a suit, victims were required to prove that false charges were dropped because the defendants in question had affirmatively proven their innocence.

Which is no feasible task. “When charges are dismissed, you generally have no opportunity to introduce evidence, let alone indicate your innocence,” says Amir Ali, Executive Director of the MacArthur Justice Center and an attorney for Thompson.

Yesterday, the highest court in the country struck that requirement down, ruling that Thompson should indeed have a right to sue the officers at the center of his case. “A plaintiff such as Thompson must demonstrate, among other things, that he obtained a favorable termination of the underlying criminal prosecution,” wrote Justice Brett Kavanaugh for the U.S. Supreme Court. “We hold that a Fourth Amendment claim…for malicious prosecution does not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence.”

The absurdity of that standard was not lost on the court. “Requiring the plaintiff to show that his prosecution ended with an affirmative indication of innocence would paradoxically foreclose a…claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial enough to proceed to trial,” wrote Kavanaugh. “That would make little sense.” Continue reading “”

She quotes ( as a ‘theory’) the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Then when asked if she agrees with that states “I do not hold a position”
That a judge and SCOTUS nominee “do[es] not hold a position” on rights, tells me she should never have been a judge in the first place.
She’s like any other ivory tower elitist:
“The law – and your rights – are what I say they are”

Here’s a copy of the pertinent questions:

15. Please explain, in your own words, the theory prevalent among members of the Founding Fathers’ generation that humans possess natural rights that are inherent or inalienable.

RESPONSE: The theory that humans possess inherent or inalienable rights is reflected in the Declaration of Independence, which states: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

16. Do you hold a position on whether individuals possess natural rights, yes or no?

RESPONSE: I do not hold a position on whether individuals possess natural rights.
a. If yes, what is your position?

RESPONSE: Please see my response to Question 16.

17. Please articulate your understanding of the distinction between natural law and positive law, and state whether you consider each to be relevant to the U.S. Constitution, the Bill of Rights, congressional power, or federal law?

RESPONSE: I understand natural law to refer to principles derived from nature that govern human conduct. I understand positive law to refer to enacted legal texts, such as the Constitution, federal statutes, and treaties. I interpret federal law according to the methods of interpretation employed by the Supreme Court, including by resolving cases or controversies based on the text at issue, any pertinent history, and any applicable precedent.

Lasting COVID legacy: a nation of rulers, not laws

SACRAMENTO – “The United States is a nation of laws, badly written and randomly enforced,” noted the late musician and satirist Frank Zappa. I often think of that snarky comment as I write about the sausage-making process in city councils, state legislatures and the federal government. Did I mention that California’s state government has 518 agencies, boards and commissions?

Our system of checks, balances, more checks, additional balances, impact reports, legal challenges, voter initiatives, regulatory rulemakings and administrative hearings frustrates people who want to “get something done.” Americans spent $14 billion on the 2020 election cycle to influence political outcomes – and that was just for the presidential and congressional races.

I once ran a modest state bill to reduce the insanely onerous licensing regulations for people who shampoo hair at salons. After months of hearings and debate, the Assembly defeated it for going too far. That explains the public’s desire to cut through the red tape and, as Arnold Schwarzenegger once promised, “blow up the boxes” of government.

Yet after COVID-19, it’s obvious our democratic system of lawmaking is, as Winston Churchill put it, “the worst form of government, except for all the others.” Given the choice between a system resembling a Rube Goldberg cartoon (with his bizarre and overly complex contraptions designed to complete simple tasks) and one that’s streamlined and efficient, I’ll take Goldberg’s vision any day.

As we saw throughout the country but in California in particular, governors were happy to dispense with the usual checks and balances and impose rules by executive order and fiat. Some initial rules were defensible during a public-health crisis, but it wasn’t long before elected officials operated like czars – imposing illogical and contradictory restrictions that made no rhyme or reason.

Continue reading “”

Landowners win case regarding government game cameras

It’s coming up on two years ago when I first wrote about a couple of Tennessee landowners who were fighting back after the government put game cameras on their property without permission. The thing is, there was some degree of legality about what they did. Or, at least, so it seemed.

The landowners took issue with this and fought back.

Now, they’ve won.

Late yesterday, the Benton County Circuit Court ruled that a statute authorizing warrantless trespassing and surveillance by Tennessee game wardens is unconstitutional. The ruling is not just a victory for Benton County landowners Terry Rainwaters and Hunter Hollingsworth, who sued with the Institute for Justice (IJ) after the Tennessee Wildlife Resources Agency (TWRA) ignored their “No Trespassing” signs by entering and installing cameras on their land. The victory also applies broadly to private land across Tennessee.

“For too long, TWRA officers have treated private land like public property—entering without permission, spying on people without a warrant, and doing it all with no meaningful oversight,” said IJ Attorney Joshua Windham. “Thanks to the court’s ruling, Tennesseans can now rest easy knowing that they’re secure from these sorts of intrusions on their land.”

“The court’s decision to declare TWRA’s constant overreach and abuse of authority unconstitutional is restoring my faith in the justice system,” said Hunter Hollingsworth. “I’m grateful for the Institute for Justice’s hard work and dedication to preserving and restoring the rights of all property owners in Tennessee. Thanks also to my local attorney Jack Leonard, who has been with me on these issues from day one.”

In addition to finding the law enabling searches unconstitutional, the court granted Rainwaters’ and Hollingsworth’s request for $1 in damages as compensation for the violation of their constitutional rights. The TWRA has 30 days to appeal the decision to the Tennessee Court of Appeals.

The issue was the state wildlife officials strapped a game camera to a tree on Hollingsworth’s and Rainwater’s respective properties as a way to monitor what they did on their own property.

This fell under something called the Open Fields Doctrine. Basically, the Supreme Court has said the police don’t need a warrant to search an open field you own, only your home and the property immediately surrounding the house.

It’s kind of like how the police don’t need a warrant to use evidence in plain view, only taken a step or two too far.

Officials in Tennessee took this idea and used it to justify placing trail cameras up on private property. However, Tennessee takes a more narrow view of things like that, which is why this particular case went the way that it did.

What’s interesting, though, is that the Institute for Justice’s Fourth Amendment project–which was part of who represented the two landowners–has other cases, including a hunting club in Pennsylvania and a taxidermist in Ohio. It’s interesting that all of these revolve around the hunting industry–and industry well associated with firearms.

Now, it’s entirely possible that it’s just a coincidence since it’s multiple states including some that are very pro-gun, but it’s still just enough to make me question it. Or maybe my tinfoil hat is just a bit too tight. After all, there are other Fourth Amendment cases IJ is pursuing that have nothing to do with hunting or the outdoors.

Either way, I’m glad Hollingsworth and Rainwater were victorious.

Supreme Court Decision on Redistricting Leaves Democrats Reeling

Republicans were down a touchdown with one play left and half the field to go in Wisconsin regarding redistricting for the state legislature, but thanks to a shocker of a decision from the Supreme Court, overtime has just been forced.

Previously, Wisconsin’s highest court had decided to use maps drawn by the Democrat governor after a months-long battle with Republican lawmakers. In doing so, the process hurdled past several legal issues that the Supreme Court decided were improperly ignored. Yet, the bigger story here isn’t actually about Wisconsin, and we’ll get to that in a moment.

As expected, the wailing and gnashing of teeth began immediately.

I’m not a lawyer, and this decision is in the weeds a bit, but here is a good explainer from a left-wing Supreme Court analyst. Ignore the consternation in the writing because the actual details are solid as to what occurred.

The majority decision essentially says this: there was an impasse between the Democratic governor and the Republican legislature over drawing district lines. So the court had to draw lines in the first instance. It set forth criteria which essentially said that parties should propose maps that make the least change from the maps of the last decade.

The court adopted the Governor’s maps, and those maps added another majority-minority district around Milwaukee. The governor added this district saying it was required by the Voting Rights Act because the failure to draw the district would violate Section 2 of the VRA.

When the state supreme court adopted the Governor’s maps, it left open the possibility that they could be challenged later as violating the VRA or as an unconstitutional racial gerrymander (a Shaw claim), violating the Constitution’s equal protection clause. There was no full airing of either issue in this fast-track litigation to draw the district lines.

The Supreme Court’s opinion today says either the Governor or the Supreme Court misapplied the Supreme Court’s VRA and racial gerrymandering precedents, in part by elevating just one of the VRA Gingles factors (proportionality).

It said that the VRA should be read in light of the racial gerrymandering cases and require the drawing of a majority-minority district only when a certain kind of strict scrutiny analysis is applied. The state supreme court should have considered under strict scrutiny “whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity.”

To summarize, Democrat Gov. Tony Evers drew up another majority-black district in his redistricting submission, elevating proportionality above all other factors. In adopting that map, the state’s high court failed to analyze whether the district could have been drawn in a neutral fashion without resorting to racial gerrymandering. The case will now be sent back down to be re-evaluated and properly adjudicated.

This decision is just the latest step by the Supreme Court to limit the ability of the Voting Rights Act to serve as a partisan tool for Democrats to racially gerrymander for their own political gain. For decades, Democrat officeholders have used the VRA test of proportionality to ensure they retain power in predominately urban areas while ignoring all other factors. The conservatives on the Supreme Court are not keen to let that continue and have been chipping away at such practices for several years now.

That has the left panicking because the VRA has represented a primary resource in retaining power. So, while I don’t know how this Wisconsin case will ultimately turn out, that’s actually a secondary concern here. What’s far more noteworthy in all this is that the Supreme Court is continuing to scrutinize the VRA and its application, specifically in cases where it is being used as cover for partisan redistricting.

In the end, Democrats aren’t freaking out because of the possibility of losing a single, state-level district in Wisconsin. No one, including Justices Elena Kagan and Sonia Sotomayor, actually cares about that. Rather, they are freaking out because this decision is much farther reaching and could completely nuke the left’s “cheat code” regarding redistricting in the future.

Apparently some prosecutors want it to be so, but no. And the ‘overly tinted windows’ is what’s called a ‘pretextual stop’ as in an excuse.

Is Ownership of Guns Itself Evidence of Drug Dealing?

At a traffic stop for overly tinted windows, a police officer smelled marijuana, and indeed found marijuana in the car. He also found a lot of cash, which was seized, on the theory that it was likely to be drug proceeds. No, said Chief Judge Martin Reidinger (W.D.N.C.) in U.S. v. Approximately $13,205.54 in U.S. Currency Seized from Rahkim Franklin: “[T]he totality of the evidence presented by the Government fails to establish by a preponderance of the evidence that the Defendant Currency seized during the August 21, 2018 traffic stop was proceeds traceable to an exchange for controlled substances within the meaning of 21 U.S.C. § 881(a)(6).” (Apparently the cash had been intended to be a down payment on a house.) And in the process, Chief Judge Reidinger noted:

In a footnote, the Government points out that Mr. Franklin also owns several firearms, which the Government contends “have long been recognized as being ‘tools of the drug trade.'” [Doc. 87 at 6 n.2 (quoting in part United States v. Ward, 171 F.3d 188, 195 (4th Cir. 1999)]. It is undisputed, however, that Mr. Franklin owned these firearms legally; he is not a convicted felon or an otherwise prohibited person. Further, none of Mr. Franklin’s firearms were subject to forfeiture by the Government.

The Government has not presented any evidence from which this Court could reasonably conclude that these firearms were owned for the purpose of furthering any criminal activity. For the Government to suggest that a citizen’s mere possession of firearms implicates that person in illicit drug trafficking is to strain credulity. The Government’s argument presents some Second Amendment considerations that counsel has apparently not considered.

Congratulations to James W. Kilbourne, Jr. and Jesse M. Swords of Allen Stahl & Kilbourne, PLLC on the victory.

Beyond Stand Your Ground: Second Amendment Immunity Defense is the Next Legal Frontier

Lee Williams;

Florida’s Stand Your Ground statute and similar laws in other states can offer immunity from prosecution when someone uses deadly force to defend themselves, and affords them quick access to an appellate review if the case doesn’t go their way.

In other words, if a defendant involved in a defensive shooting invokes a Stand Your Ground defense, their case can be dismissed before a trial even begins if it is proven they are entitled to statutory immunity, or appellate judges can be brought in quickly to make sure the case gets handled correctly.

When a defendant files a Stand Your Ground motion, their case is put on hold. Prosecution is halted. The trial court must hold a “Stand Your Ground” hearing – a sort of mini trial – to determine whether the defendant’s use of force meets the standards for Stand Your Ground immunity.

At this point, the burden shifts to the prosecutors, who must then prove by “clear and convincing evidence” why the defendant is not entitled to immunity from prosecution.

After this mini trial, the judge can either dismiss the charges or allow the case to go forward. However, if the charges are not dismissed, the defendant can file a Writ of Prohibition, which quickly bumps the case up to an appellate court for review. This writ can save the time it normally takes to get to the appellate level — usually as much as 18-months to two years — because it allows the defendant to forego a jury trial, sentencing and other delays and present their case directly to the appellate judges, who can affirm or deny their writ.

Stand Your Ground was created to protect people from unjust, malicious or politically motivated prosecutions after they acted in self-defense. By shifting the burden of proof to the state and by making an appeal quick and easy, the law has become a powerful tool, which some believe should be expanded to include other statutes involving Second Amendment rights.

“We need a Second Amendment immunity defense for anything involving the lawful possession of a firearm,” said former Florida prosecutor Lisa Chittaro. “It should mirror Stand Your Ground statutes, but it needs to be broader. It should allow defense attorneys to ask the court to find immunity under the protections of the Second Amendment quickly and efficiently and if they don’t, it should provide a quick route to the appellate level without having to go through the entire court process, which can take years.”

Chittaro pointed to several types of criminal cases that should be covered by Second Amendment immunity. Most involve arrests stemming from gun-free zones, such as schools, sporting events and airports. Many of them lack knowledge – a major factor in a criminal case – much less actual intent to commit a crime.

“If a parent picks up their child from school and they forgot their firearm and someone sees it and complains, they should be covered by Second Amendment immunity,” she said. “The same goes for other gun-free-zone prosecutions where there was no knowledge or intent.”

The problem with most of the prosecutions resulting from arrests in prohibited places, is that police and prosecutors often forget that Americans have a constitutional right to keep and bear arms. A trial judge and/or appellate court should review these cases to determine specifically if it involved this constitutionally protected right, or if the defendant knowingly and with intent committed a crime. Besides, in many states, the list of prohibited places grows every time their legislature meets. This is lawfare – pure and simple.

Every prosecution stemming from an arrest in a prohibited place should begin with an acknowledgement of the defendant’s Second Amendment rights, especially since gun-free zones infringe upon these rights. If a case involves absentmindedness, and not knowledge or the specific intent to commit a crime, judges need to toss them out. It is, after all, what the Framers had in mind when they wrote the Second Amendment.

This is how ridiculous weapon laws are in Merry Olde Englande

Federal Appeals Court Revives Smith & Wesson Suit Against New Jersey

One of the nation’s leading gun companies will be able to argue its case against New Jersey after a panel of federal judges reinstated their suit on Thursday.

The Third Circuit Court of Appeals ruled Smith & Wesson’s claims New Jersey violated its First and Second Amendment rights could be heard in federal court. That reverses last year’s ruling from District Court Judge Julien X. Nealsm, a Biden appointee, which threw the case out. Federal courts will now decide whether the gunmakers claim New Jersey’s attempt to subpoena its advertising records are a violation of the Constitution hold water.

The appeals court unanimously found Judge Neals should not have dismissed the case because the case did not meet the requirements for federal courts to defer to New Jersey state courts on the Constitutional questions. It said the case did not fall into the carve-outs created by previous decisions,

Continue reading “”

Don’t let the ‘perfect’ be the enemy of the good. The gun grabbers got us where we are today by winning step by step, and we’re winning by using the same process, because it does work.

SECOND AMENDMENT PROTECTION ACT
Bill passes House, but not all gun rights supporters approve

CHEYENNE — A bill reinforcing individuals’ Second Amendment rights passed on a 43-15 vote in third reading in the Wyoming House Wednesday.

Despite gaining approval of the majority of the House, the bill divided gun-rights-supporting representatives, with several saying it did not go far enough to protect individuals’ rights.

Senate File 102, or the Second Amendment Protection Act, prohibits the enforcement of federal regulations of firearms by local law enforcement. The bill says if the federal government ever restricts firearms, law enforcement would be violating state law if they confiscated weapons from local gun owners.

Those who violate this section would face a harsh penalty. Any officer guilty of the misdemeanor will face imprisonment for up to one year, a fine of $2,000 or both.

Several legislators expressed concerns the bill “didn’t have teeth” and argued law enforcement couldn’t be trusted to protect citizens’ second amendment rights.

Continue reading “”

Yes, If America Is Ever Invaded, You Must Take Up Arms and Fight
When asked whether they’d flee or fight an invading force, far too many Millennials and Gen-Zers give the wrong answer.

As part of a recent survey of attitudes toward Russia’s execrable invasion of Ukraine, the polling firm Quinnipiac asked Americans whether they would stay and fight if the United States were invaded by Russia. The results make sobering — and often disgraceful — reading. Sixty-eight percent of Republicans said that they would “stay and fight,” with 25 percent indicating that they’d run away.

Among independents, those numbers are 57–36. Among Democrats, they’re in negative territory, at 40–52. Among 50- to 64-year-old men and women, the stay/leave numbers are 66/28. Among 18- to 34-year-olds, they are 45/48. Or, to put it another way: A majority of the prime-aged Americans whom the United States would need were such a crisis to arise imagine that they would flee if that crisis ever came.

For shame.

Lest the excuse-makers try to find nuance where none exists, let us note for the record that this is the most elemental question that a free man can ever be asked. There are no caveats or complexities here, and there is barely any politics, either. If the United States were to be invaded by Russia, America’s defense of itself could not plausibly be construed as “imperialism” or as “interventionism” or as a “foreign war” or “conflict of choice.” Nor could skeptics, à la Rupert Brooke, meaningfully complain that they were being asked to fight and die in a “corner of a foreign field.”

Continue reading “”