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De Omnibus Dubitandum - Lux Veritas

Showing posts with label Second Amendment. Show all posts
Showing posts with label Second Amendment. Show all posts

Friday, April 18, 2025

The Judiciary is in Serious Need of Restraint

The Judiciary and America's Third Revolution: Part III

By Rich Kozlovich, Tags: 

We already know the federal judiciary is filled with not very bright political hacks who think they are the real legislative and executive branches of government, not the Congress and most assuredly not the President of the United States.  All of which is promoted in the nation's law schools.   What's worse, their seditious and treasonous concepts are like a contagious disease, so when the federal judiciary can pervert, subvert, and ignore the Constitution, why shouldn't the state's courts?

On February 7, 2024 Hawaii's Supreme Court issued a decision saying that the U.S. Supreme Court’s Bruen (2022) does not surpass Hawaii’s constitution, which recognizes “no state constitutional right to carry a firearm in public.”  The decision came in Hawaii v. Wilson, a case in which Wilson is seeking recognition of his right to carry a gun in public for self-defense without first acquiring a permit from the state.... 

Their Supreme Court's ruling totally ignores Supreme Court decisions on the Second Amendment deciding they don't apply to Hawaii!  Why?   Because there's "no state constitutional right to carry a firearm"!  They've claimed “Conventional interpretive modalities", whatever the heck that means, shows there is no historical right to bear arms, and all this silly “founding era’s understanding of the Constitution" is meaningless.  

So, this insurrectionist court is in effect throwing the Constitution out the door, stating there's no reason for "contemporary society to pledge allegiance to the founding era’s culture, realities, laws, and understanding of the Constitution", because it is in conflict with the "Spirit of Aloha", whatever the heck that means!  It appears the court believes people have no right to bear arms in order to protect themselves from the "deadly aims of others".   Is it any wonder they believe the Spirit of Aloha is in conflict with the Bill of Rights. 

Secessionists?  Really?  C'mon man, that's irrational.  No, it's history, and it's reality.   On January 11, 2024, a month before this decision, Daniel Greenfield published this piece,
Communist Lawyers Sue to Create a Secessionist Monarchy in Hawaii, calling for an end to the U.S. occupation of Hawaii and the restoration of the Hawaiian Kingdom, which bears "a certain irony in a former Communist front group fighting to create a secessionist Hawaiian monarchy out of a republic. But as Stalin told his mother, “I am the new czar”'.
People are what they do, and what these rogue judges are doing is flat out radical insurrection, and they need to be called to account for the what I consider the criminal damage they're doing.   It's time Congress got nasty and started overturning these insane decisions, and create a law that can impose criminal sanctions of judges who are openly, or subtly, destroying the rule of law.   Again, the nation is in serious need of a 28th Amendment.



Friday, August 30, 2024

The Second Amendment Is Making a Comeback

As left-wing legislators strive to increase strict gun control, the courts take a different approach.

by | Aug 29, 2024 @ Liberty Nation News, Tags: Articles, Opinion, Second Amendment

Does the Second Amendment cover machine guns? That question has been asked since at least 1934, when the National Firearms Act (NFA) made them difficult to acquire legally – and therein lies a hint toward the answer: difficult, but not impossible. Last week, a Kansas judge took another stab at the issue. On August 21, US District Judge John Broomes dismissed two counts of unlawful possession of a machine gun, citing the Second Amendment and the Supreme Court rulings in New York State Rifle & Pistol Association, Inc. v. Bruen, Superintendent of New York State Police, et al. and United States v. Rahimi.

The constitutionality of the NFA – and any other federal firearm restrictions, for that matter – has been challenged by Second Amendment advocates since the first federal gun control laws were proposed. But there’s more to the question than simple legality; the right to keep and bear arms is and has always been a very political issue. What does the Second Amendment really mean? That one lingering question doesn’t seem to have an answer all Americans, or even all legal experts, can agree upon. But the other, which is just as important, is what the Second Amendment should say – or if it should even exist at all. As progressive lawmakers and anti-gun activists push for more government control, many states and the federal courts are moving in the opposite direction. Despite the increasingly well-organized and -funded movement to disarm Americans, is the Second Amendment making a comeback?

Second Amendment – Law of the Land in the Sunflower State

On October 17, 2022, Tamori Morgan possessed an “Anderson Manufacturing, model AM-15 .300 caliber machinegun” and a “machinegun conversion device” – a so-called “Glock switch” – according to prosecutors. He was indicted by a grand jury in April 2023 in Wichita, KS, and charged with two felonies that carried up to ten years in prison and as much as $250,000 in fines apiece.

After dismissing the charges, Judge Broomes explained that the prosecution “fails to meet its burden to demonstrate that possession of the types of weapons at issue in this case are lawfully prohibited under the Second Amendment.”

Broomes declined a facial challenge of the law, which would have meant showing that it’s unconstitutional in all applications, and agreed only to the challenge for that specific case. In other words, the ruling clears Morgan of any criminal acts, but the law under which he was charged stands.

To understand the argument, one must understand the Second Amendment and where the Founding Fathers were coming from when it was written and ratified. The nation’s founding documents – the Declaration of Independence, the Constitution, and the Bill of Rights – can all be found at Liberty Nation News’ sister site for students, Liberty Nation GenZ. The Second Amendment reads: “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.”

Progressive Politics – The Name Says It All

What are “arms”? They’re weapons. Period. This includes swords, knives, firearms, etc. Even cannons – despite what President Joe Biden has often incorrectly stated – are and have always been perfectly legal for civilians to own. This understanding is reflected not only in court rulings throughout the years but also in the gun control laws themselves. The NFA, for example, does not ban machine gun ownership outright – and that wasn’t because the people who wrote the law didn’t want to. Rather, they understood that an all-out ban was unconstitutional and that it wouldn’t stand. Even when it was updated years later to prevent people from buying new machine guns manufactured after 1986, the right to own a fully automatic firearm wasn’t taken away entirely – just further limited. Still, to this day, if one has the money, the time, and a clean background, one can still legally buy a machine gun.

Even in the 1990s, when President Bill Clinton signed the Federal Assault Weapons Ban into law, there were a couple of caveats. Anyone who already owned a soon-to-be prohibited firearm could keep it, and the whole ban would expire in ten years if not renewed. Of course, it wasn’t renewed. However, it was still a major advancement in gun control that shocked many Americans out of their comfort zones of grudgingly accepting more and more restrictions slowly over time. A bird’s-eye view of gun control in America shows the true nature of this progressive march toward a disarmed citizenry.

 

The Bill of Rights was ratified in December 1791. The first successful federal gun control law, the National Firearms Act of 1934, came 143 years later. Even then, ownership of machine guns wasn’t banned entirely – just made expensive and therefore difficult. Another 34 years later, the Gun Control Act of 1968 established convicted felons as prohibited persons and created the federal firearm license (FFL), making it a crime for anyone unlicensed to be a gun dealer and ending things like mail-order firearms. Just 18 years later, in 1986, the NFA was updated so no new machine guns could be legally obtained or manufactured without a special form of FFL. Seven years later, the Brady Handgun Violence Prevention Act was enacted.

So by the time the Assault Weapon Ban came in 1994, Americans had, over the previous 60 years, allowed anti-gun legislators to heavily regulate the firearm and ammunition manufacturing industry, criminalize the ownership of some types of weapons,  and made it next to impossible for the average person to own certain others. As well this also created entire groups of people who couldn’t keep and bear arms (firearms, at least) entirely, and established a federal police agency to oversee all these laws and pursue anyone who dared to defy the new normal.

Are the Tables Turning?

In the last 30 years, very little additional gun control has passed at the federal level – but that certainly isn’t for lack of trying. Progressive activists hold marches and speeches regularly, left-wing legislators draft tighter restrictions and bans that simply don’t make it through Congress, and the president advocates for the disarmament of the American people – all for their own good, of course.

But the last several years have seen at least a partial reversal of that trend, and it may be that Second Amendment advocates have the draconian decade of the Assault Weapons Ban to thank for that. While the left continues to attack the right to keep and bear arms, individual states have one after the other loosened restrictions and trended more toward open or concealed carry without a need for a permit – especially in 2022. As it stands today, more than half the nation has some form of “constitutional carry.”

On the judicial side of things, the Supreme Court’s 2022 ruling in the Bruen case answered the question of “whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding” by requiring a stricter reading of the amendment and its historical application. It was a major win for gun rights advocates, and it saw the overturning of numerous laws – and, in cases like Morgan’s, the dropping of charges. So, it seems the Second Amendment is making a comeback after all.

Dig Deeper into the Cases Mentioned in this Article!

 
Read More From James Fite

Thursday, September 14, 2023

Democrat Governor Violating Constitutional Rights by Robert Socha

September 13, 2023 By Robert Socha @ Daily Rant

In the shadow of the 22nd anniversary of the three towers’ destruction, plunging the United States into moral ambiguity, the traitors who adhere to the principles of the modern Democratic party have once again raised their sword to destroy the remnants of Constitutional Law. New Mexico’s governor made a horrific error in judgment when she ignorantly declared the authority to suspend constitutional rights for what she decided is a public health emergency, specifically, the right to keep and bear arms as defined in the Second Amendment because at least three children horrific murders this year and gun violence appears to be growing.

The preposterous declaration has been rightly decried, denounced, and defied. Even the county sheriff is correctly refusing to enforce such blatant overreach and offers a scathing rebuke.  And the governor dares to double down and stand by her erroneous claim to authoritarianism.

Her assertion is such a blatant insult to Constitutional Law that Democratic operatives are crying foul and distancing themselves from her effrontery. The public’s response to inundate the affected no gun zone armed is classic American retribution. This specific episode is not what concerns me.

What concerns me is the Left’s ability to massage and cajole this message until it saturates the culture and people stop opposing it so vehemently. Consider politically correct speech and its assent to the frontal lobe of public conscientiousness. The term’s introduction in the late 1970s made its Marxist roots well-known and un-American. But, over time, weak-willed men allowed for its postulation and curbing dissent from the media’s positions. Decades of communist politically correct indoctrination have culminated in the indictment of President Trump for daring to speak against the outcome of an election and the arrest of men like Owen Shroyer, receiving a 60-day jail sentence for “stoking the flames” of resistance on January 6th. Waterboarding the Proud Boys with ridiculously inflated penalties for manufactured charges is another travesty of justice enacted by a weaponized judiciary.

These are terrible injustices taking place on the world’s stage and have our enemies delighted; as Vladimir Putin recently said, “As for the prosecution of Trump, for us, what is happening in today’s conditions, in my opinion, is good. Because it shows the rottenness of the American political system, which cannot pretend to teach others about democracy. Everything that is happening with Trump is the persecution of a political rival for political reasons. That is what it is. And this is being done in front of the U.S. public and the whole world. They simply exposed their internal problems.”

He is correct. Benjamin Franklin warned us that the people will become so corrupt they will require a despotic government. The culling of dissent and free speech, cowing the masses, the threats of taking our guns, civil unrest and plunder, unenforced law, and unabated ethnic crimes, the continual rhetoric to these ends is a constant reminder that there is a battle to America’s destruction, without firing a shot. For the puppet masters sowing the seeds of animosity, their end appears to be the annihilation of the free state and catastrophic population reduction. For what narcissistic purpose the Soros of the world purports the destruction of Americanism is beyond my comprehension other than to know these things must happen for the Biblically prophesized end to come.

About the Author
 
Robert Socha (so-ha), was born in southern California. He served 5 years 3 months active duty in the United States Air Force; honorably. After his service he took an Associate’s Degree in Practical Theology, where, through his studies, developed a deep love of God and Country and sincere appreciation of the value of Liberty. Robert and his beloved wife of 21-plus years are raising 4 beautiful Texan children. They moved to Hillsdale, Michigan, in 2013, to put their children in Hillsdale Academy. Robert is a sales professional. He and his wife consider Michigan a hidden gem, and absolutely love this city and state (current political environment notwithstanding) they’ve adopted.
 

Monday, May 15, 2023

Daydreaming the Guns Away

May 14, 2023 By W.R. Wordsworth

We find ourselves living in a highly consequential time for the legal clarification of the 2nd Amendment. Extremely aggressive, wide-ranging bans of semi-automatic firearms have been enacted in various parts of the country, drawing legal challenges. While the ultimate resolution of these challenges is unknowable, many observers believe the Supreme Court will eventually arrive at a decision prohibiting the wholesale banning of semi-automatic firearms. Those who dream of eliminating all private gun ownership in the United States face the prospect of a devastating legal defeat.

One can imagine their looming disappointment. They have failed to appoint Supreme Court justices who would effectively redefine the 2nd Amendment out of existence, and they are about to bear the consequences of that failure. But from their perspective, there is comfort to be had in the prospect of eventually stripping the 2nd Amendment from the Constitution altogether, no matter how long it may take...............To Read More....


Thursday, August 18, 2022

The real reason for the 2nd Amendment

August 17, 2022 By H.P. Smith

For years, the anti-gun crowd has included in their argument the false concept that the 2nd Amendment was intended to protect gun rights for things like hunting.  How often have we heard the typical straw-man argument that "no one needs an AR-15 to hunt"?

As we well know, most, if not all, of their arguments against legal gun ownership are ridiculous and not based in reality or facts in any way, but that doesn't stop them from rolling them out every time it's politically expedient to do so, usually while they're simultaneously invoking the name of the latest shooting victims they care nothing about. 

What are some of their other arguments?  There's the idea that taking guns away from legal gun-owners will somehow magically reduce crime and end mass shootings.  They clearly miss the basics in this argument, as those who legally own guns account for a very, very low percentage of the gun crime in this country.  Taking guns away from legal owners is akin to taking kitchen knives away from chefs because there has been a rise in stabbings, as we've seen in Great Britain in recent years.............The real reason for the 2nd Amendment

Monday, June 6, 2022

Second Amendment: It Is What It Says. Nothing More and Nothing Less!

By Rich Kozlovich  

Originally I published this in 2012, and then again in 2016, 2017 and 2019, but its become clear events will make it necessary to bring it back out and publish it over and over again with updates, and this time, a lot of updates.  Remember, this is a dated piece. 

Normally when I get those “please pass this along” e-mails I read them, and even when I think they are interesting I don’t usually send them along. However, this was sent and I was asked to pass it along, and quite frankly it seems a worthwhile effort considering the wider ramifications of this kind of thinking. 

The e-mail starts out saying;

“Attorney General Holder says, "We have no right to possess guns!”’ So, what does a person who believes that we shouldn’t “need” guns to do?"  "Well, that depends if that person believes that we shouldn’t “have” guns or not. There is a substantial difference between “having” and “needing”, but in this case the "having" is based on the "needing"'.

The fact of the matter is we live in a dangerous world, and when the general population is armed the world is substantially less dangerous because crime goes down when gun ownership goes up. Clearly that, at the very least, is the "need" to justify this "having".

Most importantly we really do need to get this. The second amendment was deliberately inserted in the Constitution for two reasons. One, to make sure you can defend yourself, your loved ones and your property, and two, to give the citizenry the ability defend the Constitution against a government gone wild and is based on English natural law as codified in the English Bill of Rights. 

In this June 5th article, The Unspoken Wisdom of the Second Amendment, Anthony Matoria notes:

The founders of the country and drafters of the Constitution knew that not only would we occasionally have to suffer scoundrels, doofuses, and demagogues in positions of power, but human nature is a stubborn thing.  They understood that concentrated authority and policies of repression, even if they did initially appear to achieve their stated purpose, would over time be abused, with disastrous results.  The temptation to overreach, to expand the regime of authoritarianism and repression for partisan ends, is irresistible to the craven, mediocre, and dishonest professional politicians whose view of public good begins and ends with their own interest.

The drafters of the Second Amendment understood these things, and that is why they codified liberties within the Constitution.  They did so because they knew that occasionally, corrupt, stupid, and incompetent people would hold temporary positions of authority in government.  They wrote the Second Amendment not because they necessarily liked guns, but because they knew what tradeoffs were necessary to a free state, and that political fads are sometimes hostile to it.... 

The English Bill of Rights became law after a politically difficult time (actually it was more religious than political, or if you will, the religious issues generated the political issues) in English history where the common people overthrew King James and forced he and his successors, William III and Mary II in to accepting the English Bill of Rights. This was done for three reasons. There was a fight over the authority or the King to govern without consent of Parliament and the King’s (who was Catholic) desire to disarm his Protestant subjects and maintain a “permanent standing army”, against the wishes of Parliament; clearly and attempt to keep them in line with no way to defend themselves.

It might be noted that this wasn’t a new right being demanded by Parliament from the ruling authorities. This was merely codifying what was always considered a ‘the natural right’ of all Englishmen, and the Supreme Court in District of Columbia v. Heller (2008) agreed by saying this regarding the English Bill of Rights: "clearly an individual right, having nothing whatsoever to do with service in the militia". Furthermore, this was not a “granting of a new right”, but codifying forevermore a right they held without permission of the King, nor did the King have the right to disarm them.

The Second Amendment says: 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.  So, who does everyone think this "well regulated militia" is made up of? The general population! The term “well regulated” merely defines the difference between legal and criminal behavior. Otherwise they would be a mob bent of murder, mayhem, destruction.

When the Constitution was written a militia was not anything but the general population fighting as a civilian army, organized to their own likings and purposes. And they could go back to their regular lives and take their arms with them because they might be called upon to stand up to defend their community once again. And from where did this right originate? If this is a natural right then it didn’t originate with the King in England, not is it a “granting” to be given or to be taken away by the Government of the United States.

This e-mail went on to say:

"I Guess they were not happy with the poll results the first time, so USA today ran another one (no longer available online) Attorney General Eric Holder, has already said this is one of his major issues. He does not believe the 2nd Amendment gives individuals the right to bear arms. Whether a person is a gun person or a non-gun person it is impossible to avoid seeing the implications of this. The number one law enforcement agent in the nation is advocating overturning the second amendment based on his opinion. Even the Supreme Court agrees  individuals have the right to own arms."

According to “Justice Samuel A. Alito Jr., who wrote the opinion for the court's dominant conservatives, said: "It is clear that the Framers . . . counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty." However Justice Scalia says; “that there are limitations on the individual right to keep and bear arms, but the Supreme Court will have to decide what exactly those limitations are.” 

That statement has huge implications, and that was from a conservative justice.  In no way should this be under the purview of the federal judiciary, including the Supreme Court.  If clarification is needed on the Second Amendment, then "that is a legislative branch issue" requiring an amendment to the Constitution, not a judicial branch proclamation.  A branch of government that's clearly out of control.

We need to pay attention to the verbiage in this discussion.  I keep hearing how the Second Amendment "grants" the right to bear arms.  Wrong!!!! The Second Amendment does not "grant" the right to bear arms, it "affirms" that right.  The Founding Fathers deemed these rights as unalienable, meaning these were rights "endowed by their Creator", not by Congress, and certainly not by any permutation of the federal, state or local governments. 

As the e-mail went on to say:

“Scalia is saying is what every constitutional lawyer in the country knows: No constitutional right is absolute; there are burdens on each right that do not violate that right. It can give the wrong impression to refer to “limitations” on any right; it says that certain things are either beyond the definition of that right, or are a burden that the Constitution allows. For example, certain types of speech—such as perjury, fraud, impersonating a federal agent, and inciting people to engage in violence—are not protected by the First Amendment.”

That's a logical fallacy.  These aren't limitations to these rights.  These are consequences for actions taken under these rights.  

The most frequently heard argument for limitations of these freedoms is about the Freedom of Speech.  Freedom of Speech does not permit you yell "fire" in a crowed theater.  Well, that's not so, you're just not "permitted" to get away with it, as you will be punished for doing so, and rightly so.  However, being punished for irresponsible, and/or criminal behaviour is not a limitation of that right!  Punishment is a consequence of a misuse of those rights, including the right be bear arms.

If one misuses these rights, they're punished, that doesn't justify any attempt to abridge those rights.   Both the First and Second Amendments "affirm" rights the left works diligently to destroy.  

  • Nothing is more dangerous to the left and their goal to impose tyranny on the nation than the freedom of speech and the right to bear arms..  
  • Nothing is more insidious that the corruption of thought, language and facts used by the left to do so.

The argument from the left is all about eliminating the Second Amendment, and that's really the goal here, not fighting crime or preventing murders.  This idea their "common sense" approach to gun control will make the world safer is horsepucky!  Disarming victims is a dumb way to fight crime.  Cities like Chicago, Washington, D.C., Detroit, all cities run by left wing Democrats, also cities with the strictest gun laws, are among the worst shooting galleries in the nation, not to mention the huge upsurge in crime.  The stricter the gun laws, the more gun violence there will be, and the more crimes will be committed.  That's fundamental, and is almost as absolute as the law of gravity.

What we have here isn't a gun problem, it's a culture problem.  What's the most common demonstrator in all this?  Fatherless families.  And who bears the bulk of the blame for that?  The federal government and the leftists who promote illegitimacy with their welfare programs, which has reached 70% in black America, who commit most of the crime in America per ratio, but illegitimacy is surging among every group in America, and instability has followed, and this whole problem was mostly created by the left.

It's been noted that in times past there were more guns per ratio than modern times, and far less murders.  At least that was true until very recently, because people are afraid, and they're buying guns, a lot of guns.  Why? Because the left has generated so much hate and violence crime is skyrocketing, and with their refusal to punish criminals, they've made the world around us far more dangerous than it was in the past.  So if they created this mess, and they did, why would anyone want to trust them to fix it?

It's not the guns that kill; it's culture-fueled anger:  It is not the guns; it is the anger.  It is a refusal to prosecute and jail angry, violent offenders.  It's a deliberate, angry, race-based leniency and a cynical, angry, deliberate theft of our peace and tranquility to allow such people to walk. Instead of abridging gun rights, how about abridging the freedom of angry criminals to walk free?

Clearly this next paragraph is dated going back ten years, but I left it in the article because the fact it's dated doesn't change the reality and danger of the leftist worldwide agenda to abolish the Second Amendment. Which is just one more effort to undermine and destroy the U.S. Constitution

Does anyone find it interesting that this has become an issue since the United Nations Arms Trade Treaty was rejected by Congress? Is this all about a movement by powerful forces in the world to impose a worldwide government under the auspices of the United Nations, The most incompetent and corrupt organization the world has ever known?  

There are four things that stand between freedom and that worldwide socialist government.  The American identity, The American culture, the American economy and the United States Constitution. And they're all under severe attack daily by the left and their cats paws in the deep state, academia, government and the media.

Tuesday, July 20, 2021

Buckeye Institute Press Release

FOR IMMEDIATE RELEASE
July 19, 2021
Lisa Gates, Vice President of Communications, (614) 224-3255
New York’s Anti-Self-Defense Law Violates Second Amendment
The Buckeye Institute Files Brief with SCOTUS Defending the Right to Carry

Columbus, OH – On Monday, The Buckeye Institute filed an important amicus brief with the U.S. Supreme Court in New York State Rifle and Pistol Association v. Bruen, which calls upon the court to recognize that the Second Amendment protects ordinary citizens’ fundamental right to carry handguns outside of their homes.
 
The Buckeye Institute simply could not stand by as New York set up a system relegating the fundamental right to self-defense to second-class status and reserving enjoyment of that right almost exclusively for the well-connected and/or celebrities.
 
“New York’s onerous requirements for obtaining a license to carry a handgun outside of one’s home constitute a clear violation of the Second Amendment. These rules unacceptably prevent law-abiding citizens from carrying firearms for the purposes of self-defense,” said Robert Alt, president and chief executive officer of The Buckeye Institute. “There is absolutely no constitutionally-sound basis for imposing these limits, and The Buckeye Institute is proud to stand and fight this anti-American, unconstitutional, and unjust law.”
 
“The Second Amendment protects the fundamental right to self-defense,” said Larry Obhof, a partner at Shumaker, Loop & Kendrick and counsel of record for The Buckeye Institute in this case. “Yet New York and several other states have prevented people from carrying outside their homes—denying them their Constitutional rights. We are merely asking the Supreme Court to apply the Constitution’s text as it is written.” 

# # #
Founded in 1989, The Buckeye Institute is an independent research and educational institution a think tank whose mission is to advance free-market public policy in the states.

The Buckeye Institute is a non-partisan, non-profit, and tax-exempt organization, as defined by section 501(c)(3) of the Internal Revenue code. As such, it relies on support from individuals, corporations, and foundations that share a commitment to individual liberty, free enterprise, personal responsibility, and limited government. The Buckeye Institute does not seek or accept government funding.
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Friday, April 16, 2021

Fake Originalism and the Right to Bear Arms

Nelson Lund.  

Editor's Note:  This article originally appeared here.  I've requested permission to publish this piece, but I've not as yet received permission.  If the author objects I will take it down and merely link it.  In the meanwhile, please enjoy. RK

The U.S. Constitution’s Second Amendment provides, “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.”

In some respects, the meaning of this provision is open to legitimate debate. But one question is answered with perfect clarity by the constitutional text. The Second Amendment protects the right both to keep and to bear arms. Or so one would think. Recently, however, the U.S. Court of Appeals for the Ninth Circuit effectively expunged the right to bear arms from the text. Remarkably, the court purported to base this expungement on the original meaning of the Constitution.

For over two centuries, the Supreme Court left fundamental questions about the Second Amendment unresolved. In a 5-4 decision in 2008, however, District of Columbia v. Heller held that the Second Amendment protects a private right, unconnected with the militia, to keep a handgun in one’s home for self-defense. Two years later, the same 5-4 majority concluded in McDonald v. City of Chicago that the Fourteenth Amendment makes the Second Amendment (which always applied to the federal government) applicable to state and local governments as well.

These decisions are supported by powerful legal arguments based, respectively, on evidence of the Constitution’s original meaning and on settled judicial precedents. But they left lots of questions open. How far may government go in restricting the possession of weapons other than the kind of handgun at issue in Heller? How much latitude does the government have in denying access to weapons by particular classes of people, such as convicted criminals and juveniles? To what extent may government put regulatory burdens, such as licensing requirements, on the exercise of Second Amendment rights?

Despite considerable disarray in the lower courts, the Supreme Court has declined to address any of these questions. The most important outstanding issue concerns the government’s power to restrict the right of citizens to bear arms. As with many other questions involving the Second Amendment, there is room for reasonable debate about the exact scope of that right. But the Constitution leaves no doubt about its existence.

Several years ago, the Ninth Circuit held that the Second Amendment does not protect the right to carry a concealed weapon in public. In its recent 7-4 decision in Young v. Hawaii, that court has now taken the next and final step: “There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment.” Notwithstanding a couple of strangely delphic suggestions that the right to bear arms might be something other than the right to carry them in public, the court deleted that right from the Constitution.

This aggressive exercise of judicial power does not rest on the once-fashionable “living Constitution,” a fiction through which judges may amend the written Constitution to conform with their own policy views. At least not openly. Young is instead based on fake originalism.

Fake originalism comes in several varieties, including living originalism, common-good originalism, and living textualism. All of them wrap judicial usurpation of the authority to amend the law in the respectable guise of originalism. Many questions about original meaning are honestly hard to answer because the relevant evidence is sparse, equivocal, or both. But some arguments are so illogical and bereft of supporting evidence that they constitute a stealth form of living constitutionalism. The Young opinion, more than a hundred pages long, is a massive exercise in fake originalism.

The majority opinion was written by Judge Jay S. Bybee, a George W. Bush appointee who is an accomplished legal scholar. He has taught and published widely in the field of constitutional law, and his academic literary skills are on full display in Young. The court’s treatment of the Constitution cannot be attributed to incompetence, carelessness, or an inability to understand Judge Diarmuid O’Scannlain’s crushing dissent.

The Young majority seems to think that American citizens are properly viewed as subjects who can and must rely on a beneficent Leviathan.

The Young majority does not even pretend to offer historical evidence directly supporting its contention that the words “right of the people to . . . bear Arms” do not refer to a right to carry weapons in public. Instead, the court’s starting point is Heller’s statement that the Second Amendment codified a pre-existing right that can be traced back to England. Young’s genealogy focuses heavily on the 14th-century Statute of Northampton. That law’s text could be read either as a prohibition against displaying arms in a threatening manner or as an absolute prohibition on bearing arms in public without leave from the King. Young treats it as an absolute prohibition, which remained in force throughout English history, and was then accepted in America.

However the statute may have been interpreted by English subjects at various times, there is no evidence that American citizens accepted the legitimacy of any such absolute prohibition on bearing arms in public. Young cites six laws that were enacted around the time the Second Amendment was adopted. North Carolina (1792) is said by the court to have reproduced the English statute nearly verbatim, absurdly including its references to the King. Louisiana’s ban on concealed carry (1813) did not even resemble the English text. The other four all contained limiting language that was absent from the Statute of Northampton.

Virginia (1786), for example, prohibited going or riding armed “in terror of the Country.” Tennessee (1801) prohibited going “armed to the terror of the people.” Massachusetts (1795) and Maine (1821) authorized the arrest of people who “ride or go armed offensively, to the fear or terror of the good citizens.” No one could honestly think that American citizens in any of these states (or any others for that matter) were forbidden to step out of their homes while carrying a gun. Young’s lengthy history of the Statute of Northampton is a giant red herring.

Young also canvasses 19th-century state court decisions for evidence of what the pre-1791 right encompassed. Some of those decisions upheld bans on carrying concealed weapons, while expressly repudiating the notion that the government may ban both open and concealed carry. A few courts assumed that the right to keep and bear arms exists only in connection with military service. But Heller unequivocally rejected the proposition that the Second Amendment contains such a limitation. Not a single court adopted Young’s view that the private right to have arms for self-defense does not extend to bearing them in public. The court’s litany of cases is just another diversionary tactic.

The opinion has other problems as well, including some troubling omissions from the sources. But even on its face, the majority’s historical argument amounts to little more than an elaborate smokescreen. This should be no surprise. Hidden behind the smoke is the text of the Constitution, which the majority prefers not to confront.

Along with its sham search for the original meaning of the Second Amendment, the majority offers this bit of political philosophy: “Protection is the quid pro quo for our allegiance to the government. . . . The king who cannot guarantee the security of his subjects—from threats internal or external—will not likely remain sovereign for long.”

What is the point of this dictum in an opinion denying that the Second Amendment protects the right to bear arms for self-defense? That American citizens should trust the government to protect them because the alternative is civil war? One could hardly give a more succinct summary of Thomas Hobbes’s defense of absolute monarchy.

The Young majority seems to think that American citizens are properly viewed as subjects who can and must rely on a beneficent Leviathan. Coming shortly after the widespread failure of governments across the nation to protect their citizens from violent rioters, Young’s Hobbesian view of the social contract should make the friends of civil liberty and republican government gag.

The Ninth Circuit is now in direct conflict with two of its sister courts. The Seventh Circuit invalidated an Illinois law that categorically banned almost all citizens from carrying a loaded firearm in public. The D.C. Circuit invalidated a regulation that had virtually the same effect because it authorized carry licenses only in extremely narrow circumstances. Both governments chose not to appeal these decisions, probably in the hope that at least one Justice from the 5-4 Heller/McDonald majority would be replaced by a jurist more like those who prevailed in Young.

If the Supreme Court rewards that strategy by acquiescing in the elimination of the constitutional right to bear arms, we will have further proof of what Justice Samuel A. Alito has called “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” If that happens, let’s hope that the Justices at least spare us the kind of fake originalism favored by the Ninth Circuit. Secure in the knowledge that they are Supreme, they may as well just tell us what the rewritten Second Amendment says and be done with it.


Monday, June 22, 2020

Is Gun Control Dead?

June 21, 2020 by Dan Mitchell @ International Liberty

In recent months, governments released prisoners and announced that some laws wouldn’t be enforced because of the coronavirus. Now, with protests against police misbehavior, we’re seeing governments fail to maintain law and order. As suggested by this excellent Reason video, these developments bolster the case against gun control.



But does this mean politicians will be more supportive of the 2nd Amendment?

https://danieljmitchell.files.wordpress.com/2012/11/gun-control-which-house-to-rob-2.jpgThe answer (at least for anyone with an IQ above room temperature) should be yes.

From an economic perspective, one major goal is to change the cost-benefit analysis for criminals. If bad guys have to worry that good guys may be armed, that significantly increases the potential cost of illegal behavior.

A well-functioning system of law enforcement can help, of course, but that’s not a description of how things work in some communities – even in normal times, much less when there’s civil unrest.

But all this evidence and analysis doesn’t seem to matter for Joe Biden. A look at his campaign website shows support for a wide range of gun-control laws from the soon-to-be Democratic nominee.
…gun violence is a public health epidemic. …In 1994, Biden – along with Senator Dianne Feinstein – secured the passage of 10-year bans on assault weapons and high-capacity magazines. As president, Joe Biden will defeat the NRA again. …As president, Biden will: …Ban the manufacture and sale of assault weapons and high-capacity magazines. …Regulate possession of existing assault weapons under the National Firearms Act. …Biden supports legislation restricting the number of firearms an individual may purchase per month to one. …End the online sale of firearms and ammunitions. …Give states incentives to set up gun licensing programs.
What’s especially discouraging is that Biden apparently hasn’t learned anything about so-called assault weapons since 1994.

In a 2019 column for Reason, Jacob Sullum dissected Biden’s incoherent views on the topic.
Joe Biden…is still proud of the ban on “assault weapons”… Biden argues that it made mass shootings less common…, citing a study reported in The Journal of Trauma and Acute Care Surgery last January. But that is not what the researchers, led by New York University epidemiologist Charles DiMaggio, actually found. …The study…looked not at the number of mass shootings, as Biden claims, but the number of mass-shooting deaths as a share of all firearm homicides. The difference in total fatalities during the period when the ban was in effect amounted to 15 fewer deaths over a decade, or 1.5 a year on average, including mass shootings that did not involve weapons covered by the ban. …The causal mechanism imagined by Biden is even harder to figure out. He describes “assault weapons” as “military-style firearms designed to fire rapidly.” But they do not fire any faster than any other semi-automatic. …Under the 1994 ban, removing “military-style” features such as folding stocks, flash suppressors, or bayonet mounts transformed forbidden “assault weapons” into legal firearms, even though the compliant models fired the same ammunition at the same rate with the same muzzle velocity as the ones targeted by the law.
I wonder if Biden understands the policy he’s advocating.

Does he think that “assault weapons” are actual machine guns, capable of firing multiple rounds with one pull on the trigger (a remarkably common misconception among gun-control advocates)?


Or, if he understands that a so-called assault weapon is just like any other gun (firing one round each time the trigger is pulled), then why would he think anything would be achieved by banning some guns and leaving others (that work the same way) legal?

Perhaps most relevant, does he even care what the evidence shows?

The bottom line is that people are “voting with their dollars” for gun ownership for the simple reason that they know it’s unwise to trust government (either to protect them from crime or to respect their rights).

But that doesn’t mean their constitutional freedoms will be secure if Biden wins the 2020 election.
P.S. The good news is that there will be widespread civil disobedience if politicians push for new gun bans.

P.P.S. Another silver lining is that we’ll get more and more clever humor mocking gun control.

Monday, January 20, 2020

Defending the Second Amendment in Virginia

January 19, 2020 by Dan Mitchell @ International Liberty
 
Other than an occasional column about events in my home county of Fairfax, I’ve never written about public policy in Virginia.

This is because the Commonwealth has had a dull profile. It doesn’t have a track record of notably good policies, such as Florida and Texas, and it doesn’t have a track record of notably bad policies, such as Illinois or New Jersey.

But that’s changed now that Democrats have total control of government and are trying to restrict Second Amendment rights.

Here are excerpts from a report immediately after last November’s elections.
Virginia Gov. Ralph Northam on Wednesday said he will reintroduce gun control measures in the upcoming legislative sessions now that Democrats have taken control “…These are common-sense pieces of legislation,” he told CNN’s John Berman on “New Day.” “I will introduce those again in January. And I’m convinced, with the majority now in the House and the Senate, they’ll become law…”Northam and Democrats will now have an advantage in the assembly to pursue gun control measures that Republicans have pushed against and blocked. …A ban on assault weapons and high-capacity magazines and reinstating Virginia’s one-handgun-a-month law were among eight policy proposals Northam introduced ahead of the session.
From a policy perspective, Northam and his allies are misguided.

In a tweet,Stephen Gutowski debunks some of the Governor’s demagoguery.
And the invaluable John Lott touches on another error in his Townhall column,
Democrats, who just took control of the Virginia state legislature, are about to pass a law that will dramatically limit the ability of people with concealed handgun permits from other states to carry in Virginia. …Currently, Virginia recognizes concealed handgun permits issued by all other states. Out-of-state permit holders can carry in Virginia as long as they follow local laws and carry photo identification. …If state Democrats and Henning get their way, criminals will only need to look for an out of state license plates to know who to attack. …There’s no good reason not to issue permits much more generously. Permit holders are extremely law-abiding… Police rarely commit crimes… But permit holders are even more law-abiding, facing a conviction rate that is just one-tenth as often. …there is a reason that over 86% of police chiefs and sheriffs support national reciprocity. And over 90 percent of street officers support concealed handgun laws. These are the people who see first-hand how reciprocity and concealed carry works. Overwhelmingly academic research finds that letting people carry concealed handguns reduces crime.
But this isn’t just an issue of bad policy (I strongly recommend this column if you want to learn more about the senselessness of proposals to impose gun control).

It’s also an example of how ordinary citizens can – and should – engage in civil disobedience.

The Wall Street Journal recently opined on how counties are voting to become sanctuaries for the Second Amendment.
Eighty-six of Virginia’s 95 counties have passed…sanctuary measures opposing restrictions on the right to keep and bear arms. They suggest that the counties might not enforce new state laws limiting gun rights. …Democratic Gov. Ralph Northam has made gun control a priority… Senate Majority Leader Dick Saslaw would make it a felony to sell, manufacture, purchase or possess so-called assault weapons and large-capacity magazines. …one state representative wants to call in the National Guard to enforce gun laws, and another has introduced a bill that requires firing police officers who don’t enforce a gun statute. …But the sanctuary movement has a point about the Constitution. The Supreme Court confirmed in its landmark Heller ruling that individuals have the right to bear arms, but politicians have often ignored it. …Sanctuary counties that decline to enforce Virginia laws are endorsing lawlessness. But it is no less lawless when the courts or politicians ignore Supreme Court decisions.
And the Washington Examiner reports on protests from citizens across the state.
Some 100,000 Virginia gun owners who have rallied at county and town meetings for “gun sanctuaries”…the Virginia Citizens Defense League, which is leading the gun sanctuary movement…issued an “alert” to supporters to start lobbying lawmakers in Richmond against gun control. He said that the new anti-gun laws from Democrats are “pouring in like a waterfall.” …Van Cleave’s group and another organization, Gun Owners of America, have helped to spark a pro-gun movement in Virginia that did not exist before Democrats swept the November 2019 elections. In the two months since, they led the sanctuary movement that has won approval in 94% of the state. …“Virginia had been a very free state for a long time. This is where freedom started…people are looking at Virginia, saying our freedom started here and … we’ll be damned if it ends here,” he added.
Indeed, there’s a big protest planned in Richmond for January 20.

And the Governor is quite nervous, as reported by NPR.
Fearing potential violence, Virginia Gov. Ralph Northam is declaring a state of emergency and is banning firearms and other weapons on the Capitol grounds in Richmond ahead of a gun rights demonstration… The event, hosted by Virginia Citizens Defense League, is expected to draw thousands of armed demonstrators, some from out of state. …On a Facebook page organizing the gun rights demonstration hosted by the Virginia Citizens Defense League, several commenters expressed frustration at Northam’s move to restrict guns from the Capitol grounds. One wrote, “This is simply a move to infringe on not only our 2nd Amendment rights but our 1st Amendment rights as well.”
By the way, there are sanctuary movements and other forms of civil disobedience all across the nation.

I’ve already written about such efforts in Colorado and Connecticut, and the Wall Street Journal reports on what’s now happening in New Mexico and Illinois.
…in New Mexico, 30 of 33 county sheriffs have signed a letter pledging to not help enforce several gun-control measures supported by Democrats in Santa Fe, according to the state’s sheriff association. The sheriffs, who are elected, say they are heeding the wishes of voters in the counties they serve. More than two dozen counties in the state have enacted “sanctuary” resolutions backing the sheriffs and affirming that no tax dollars in their jurisdictions should go to enforcing the proposed laws. …Elsewhere, about 60 counties in Illinois have approved—some by ballot measures—pro-Second Amendment resolutions, according to the Illinois State Rifle Association. …More than half of Washington’s sheriffs have denounced a gun-control package…as an unconstitutional and unenforceable step toward banning semiautomatic weapons. …In 2013, Colorado sheriffs joined a lawsuit in protest of expanded background checks and restrictions on higher-capacity ammunition magazines… Colorado sheriffs have very rarely charged anyone with violations, according to Dave Kopel, an attorney and scholar who represented the plaintiffs.
The article cites a law professor who explains that there is a downside to civil disobedience.
Norman Williams, a Willamette University law professor…drew a distinction between prosecutorial discretion and a categorical refusal to enforce a law. The latter undermines the rule of law, he said.
That’s a very fair point. But I also agree with the Wall Street Journal‘s argument that it is also “lawless when the courts or politicians ignore Supreme Court decisions.”

And that’s a perfect description of the actions of Northam and the rest of the anti-gun crowd.
Let’s close with a map showing the widespread resistance to the Virginia Governor’s anti-Second Amendment efforts.


Hopefully, more green has been added to this map over the past two weeks (though keep in mind that a big chunk of the state’s population lives in the handful of localities – Richmond, Northern Virginia, etc – that have not joined the resistance).

P.S. As noted above, civil disobedience is not the ideal way to deal with bad government policy. But when laws are immoral, despicable, and/or unconstitutional (everything from wretched Jim Crow laws to predatory traffic cameras), then I fully understand why ordinary citizens choose not to comply.

P.P.S. On a related note, citizens can also resist bad law by engaging in “jury nullification.”