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Sandy suggested that I write about “Americanism,” this being a direct result of the outlandish display of buffoonery that took place last week at the Kavanaugh hearings, as well as a general boorishness that has supplanted civil discourse.
But what is Americanism?
That phrase has been used as a pretext for patriotism, and like all “isms” seeks to create a sense of tribalism. It is “us vs. them,” and you are either on our side or you are not. More to the point, core philosophical principles are simply pretext for propaganda. The true core value of all “isms” unmoored by strong philosophical underpinnings is power.
One of the reasons that our Republic was able to survive in its nascent years was a belief system that transcended petty political jockeying. To be sure, there were entrenched battles between the Federalists and the Anti-Federalists, but these battles were set against the backdrop of a true belief of the core values of freedom and property.
Today the State has become so encompassing, such a dramatic influence on the lives of individuals, that party affiliation has become somewhat of an anachronism. The question for most is not what is the proper role of government; rather, it is should government be given greater funding for a particular “thing.” Those who argue that the government should not be involved in the “thing” in the fist place are considered rogue libertarians, radicals, or in a last resort, the all-too-used moniker of racist.
Last week, an article was published in the New York Times under the nom de guerre of “Anonymous.” Anonymous is, if he or she is to be believed, a senior administration official who has announced that he or she is “part of the resistance.” This resistance is made up of like-minded individuals who work in the administration who are putatively Republican, and are interested in a Republican vision, but consider Trump to be too unsteady, too pugnacious or, perhaps, too ill-tempered to advance a national agenda. (Evidently, the fact that he was elected serves little value for this group; they are smarter and, thus, in a better position to guide the country… sometimes at the disadvantage of Trump himself.)
The line that has received very little attention in the article, but stood out the most to me was Anonymous’s admonition that he or she is not part of the “Deep State” (Obama holdovers who are part of the civil service, evidently dedicated to the dismantling of the Trump agenda). Rather, he or she self-classified as part of the “Steady State.”
I must admit this was the first time I ever heard that phrase and, frankly, it sends chills down my spine. Yet “Steady State” is probably an excellent descriptive name.
(If you have arrived here from our newsletter, continue reading here…)
“Steady State” is the edifice of Statists, the architecture of Collectivists and, unfortunately, the philosophically bereft manifestation of modern “Americanism.” For Americanism is directly related to the State and its control over a willing and compliant polity.
Land of the free and the home of the brave.
What exactly does that mean?
We are free to practice whatever religion we choose? Well, yes… as long as the practices of that religion do not run contrary to the social decisions of the State. We are free to say whatever we want? Perhaps… as long as the State does not put pressure on academia and publishers (read Internet providers) to muzzle content. Free from unreasonable searches and seizures? Only in the most egregious of circumstances… and even then, the Fourth Amendment has suffered degradation almost from the point of ratification.
Well… what about free to keep and bear arms?
Please… we live here in California.
Freedom from the quartering of soldiers? Well, most of us would agree that this is not a common threat, but Cosmo makes a solid argument that the justification of quartering of soldiers was not a right sought after because the British were soiling the sheets and raiding the cupboards of the colonists. Rather, it was ratified to protect us from State intrusion into a person’s home. The quartered solider was an agent of the State and, as such, when quartered in a colonist’s home, prevented him or her from the privacy needed to… well… rebel against the State. Today we don’t need soldiers in homes… we have Alexa and the National Security Agency.
We are brave though. We are willing to overthrow the shackles of tyranny and stand up against an abusive government that is unresponsive to… aw, hell… forget it. I am just going to move to Arizona and tell California to stick it.
Yep… home of the brave.
So what then is the “Steady State”? The basic phrase speaks to the idea that government control is a necessity for an orderly society. Who benefits from the control will sway based on which party occupies the government seats of power during any particular time, but the government industrial complex… well, that will remain safe and secure.
Without the nameless bureaucrats who control the minutiae of our economic and social lives, how could we possibly survive as a country?
This country was founded on the idea of rugged individualism. A belief that the intellectual power of a single individual is sacrosanct, and has the same legitimacy as anyone else. Even if he were wrong, his passioned defense of his position made us all stronger for hearing his argument, and out of necessity responding to it. Yet, at the core was a belief that there needed to be limited government, for when government has the power over the individual, the growth of the individual is by necessity stifled.
Americanism? No… I think not. American Patriot? Yes. I like that much, much better. As an American Patriot, I hold dear the philosophical principles of our Founders. I believe that civil discourse is the only pathway to philosophical improvement and the development of common ground. I believe that a government granted limited powers to regulate the affairs of its citizens is, by definition, a small government and, thus, easily purged of tyrants and the inept. I believe that justice should not be dependent on the tired, lazy, or corrupt. (Cosmo… you know who I am talking about!)
I am an American Patriot. I am the defender of liberty as beautifully articulated in the Declaration of Independence and codified in the Constitution, protected by the blood of other American Patriots successfully for generations.
I am an American Patriot. I look with disdain on those who would sacrifice their freedom for security or comfort. For when that occurs, the freedom of those who disagree are jettisoned as well.
“I’ve never thought of using my gun as an offensive weapon.”
“In the class you were talking about using deadly force to protect someone else, essentially being offensive in the use of the weapon.”
“Yeah… no… that is a misunderstanding of what I was saying. Using deadly force to protect someone other than yourself does not rise to the level of offensive action. Quite the contrary, the analysis remains the same.”
This exchange took place over the weekend while at the range during one of our classes. Our student had misinterpreted what I said about the use of deadly force for the protection of third parties. It bears some some discussion.
The use of our weapons in a deadly force event has a singular purpose: The preservation of human life. That life may be our own, it may be the life of a family member, or it could, conceivably, be the life of someone we have never met. The act of using deadly force to protect someone other than ourselves does not rise to the level of an offensive action. Rather, by definition, it remains a defensive act.
Let’s review the basic tenet of the justifiable use of deadly force: Did the actions of the suspect rise to the level where there was an objectively reasonable belief that there was an imminent likelihood of death or great bodily injury to a victim? If the answer to the inquiry is yes, then victims have an inherent right to continue to exist. Along with that right comes the precept that they have the right to use violence in order to prevent someone else from extinguishing their existence.
When we see someone about to suffer a life-ending event at the hands of someone else, we have the ability to legally “step into their shoes,” and use deadly force for the benefit of the victim. Our actions are judged based on two separate analyses: 1) Did the victim, whom we were using deadly force to protect, have the right to use deadly force to protect himself in the first place? and 2) Did the victim dispositively rebut the presumption that he would use deadly force to protect himself?
This second prong is actually quite tricky. Imagine the hypothetical where the abuser is about to kill the victim. The victim realizes the CCW holder is about to intervene on her behalf and tells the CCW holder to stand down. “Don’t shoot… he is my boyfriend!” is a refrain that comes to mind. Essentially, at this point the CCW holder has little recourse. The CCW holder presumes that, but for the victim’s inability to use deadly force to protect herself from the assailant, the CCW holder would. In this case, the victim has just emphatically stated she would not… essentially rebutting the presumption.
Of course, the first prong of the analysis is just as important: Do victims have the right to protect themselves in the first place? If a murderer is being chased by a cop and a gun fight ensues, the suspect has no right to use deadly force to protect himself from arrest. Thus, a third-party entering the fray to protect the suspect would equally have no right to use deadly force to protect the suspect.
Think of the multiple instances where CCW holders have come to the aid of law enforcement, situations where the citizen has employed deadly force to protect the officer, who is in a state of extremis.
There, the officer has an absolute right to continue to “exist.” He is in the throes of combat where an assailant has gotten the upper hand. But for an intervening event, the officer is about to suffer death or a crippling injury. In short, it is objectively reasonable to believe the officer is about to suffer an imminent death or great bodily injury. The CCW holder comes to the aid of the officer, employing the use of his firearm. There is nothing to suggest the officer would not relish this assistance from a Good Samaritan. He has made no statements or utterances telling the CCW holder to back off, and it is reasonable to believe that someone similarly situated would request assistance.
The action of the CCW holder is not an offensive one.
Quite the contrary, it is a quintessential act of self-defense. Only in this case… self-defense via proxy.
We do not carry guns, or train in the use of arms, for the purpose of engaging in offensive acts. To do so would be both illegal and immoral. We train for the singular purpose of preserving human life.
That act is fundamentally defensive.
That is not to say that we engage in half-measures. Once the Rubicon has been crossed, then we must act with a ruthlessness that is unmatched. The emotions of fear and rage are strikingly similar. One can cause the individual to freeze; the other can spur one on in righteous indignation.
Remember, the gun on your hip is not your first line of defense! It is your last line of resistance.
Today I wander into extremely dangerous territory for me.
I am going to write about something of which I have very, very little technical knowledge: 3D-printed guns. I do have some knowledge about weapons in general. I possess a fairly robust knowledge of the tools that humans have used to kill one another throughout history. I also have a unique skill that many of you may not know about… I am an amateur blacksmith. Yep… my garage at home, for years, has existed as a smithy, complete with anvil, forge, and a crap-load of hardened steel for making all sorts of decorative products. Sandy usually has me manufacture hooks and pot hangers; but, occasionally, when the mood strikes I will make knives and hatchets. Now to be sure, these are not “tactical” looking things… quite the opposite; most of my knives and hatchets are purposely built for hunting and outdoor activities… and sometimes just for show.
I have had a number of people ask me about my thoughts relating to 3D-printed guns and, more specifically, the legal tribulations surrounding Defense Distributed’s desire to put these plans on the Internet for general use.
A little background: Defense Distributed (a manufacturing and design facility located in Texas) is owned and operated by a self-described anarchist. He believes that restrictions to knowledge, especially restrictions based on government edicts, are the very basis of tyranny. He and his team have developed 3D-printing plans that allow individuals with 3D printers to essentially “print” their own weapons.
Now here is the caveat… Defense Distributed is not the only game in town. In fact, a simple Google search will yield hundreds of plans for 3D-printing. Defense Distributed was the first to suggest putting the plans online, and the only one (to my knowledge) to have suffered a government restraining order preventing it from doing so. When that happened, others who were not named in the restraining order took up the mantel and put out plans.
So, the entire legal battle with Defense Distributed, as well as the government’s efforts to restrict people from accessing this information, is kind of a Kabuki Theatre. While politicians and judges wring their hands, the underlying information they seek to proscribe is already widely available to those who want it.
What is more troubling to me is the private restriction on information.
As I mentioned in a blog a couple of weeks ago, I am deeply troubled about government’s use of “agents” to restrict free speech. We are now looking at the corporatization of rights infringement.
Amazon has gone Fahrenheit 451 on us and banned the sale of the book, The Liberator Code Book: An Exercise in The Freedom of Speech. These are the codes, in printed form, for the printing of a 3D firearm.
Amazon (with, perhaps, pressure exerted from above) has decided that its modern “Library of Alexandria” should not include certain books… specifically this book… that, well… gives people the ability to act independently from regulatory authority. Mind you… this book does not teach people to do ANYTHING that is illegal. It does not advocate for a political view, nor does it even encourage people to engage in illegal conduct. It is simply a listing of code.
Do not worry, though… you can still get the Communist Manifesto, Mein Kampf, and The Anarchist Handbook, books that legitimately argued for the murder of millions.
Still… giving people the codes to 3D-print guns? Sacre Bleu! We cannot allow that to happen!
Back to my blacksmithing:
A few years back, I took some of the hardened-steel railroad ties I had accumulated and forged a primitive knife. It had a good blade, but looked God-awful. I did a little Internet digging, watched a series of videos, as well as pored through some of my blacksmithing books, and I learned techniques for developing a more, shall we say, acceptable-looking knife. My second knife looked better, but still looked like something a junior high student would make in a shop class. By the time I had made my sixth knife, they started to look pretty good.
The interesting point, though, is that all of these instruments I created were done with a singular purpose in mind: cutting.
They are absolutely lethal, and, unlike a gun that can be used for benign activity like target practice, a knife with an edge has only one utility: cutting things. Knives may be used for purposes which no one cares about, like chopping vegetables or cutting a steak… or they may enter into an activity that is polarizing, such as hunting and skinning. Lastly, these self-manufactured tools can, most assuredly, be used as weapons of self-defense.
Yet, no one frets about the free exchange of information among blacksmiths.
When Amazon decided to begin an exercise in the limiting of knowledge, it began walking down an extremely dangerous path, one that will inevitably result in the banning of further information in the future. Amazon made this Faustian bargain for a reason that still escapes me, unless it was made manifest from its own political bias, which is entirely possible.
Regardless, a compendium of knowledge must be free and accessible. If those who manage it begin to limit one form of speech, and not the other, then their actions become laughable and, ultimately, their utility to a free society becomes marginal. They begin this undertaking by trodding on a precarious ledge. When they do engage in this action, but the material is still widely accessible on other platforms, then they appear as clowns… self-righteous, sanctimonious, and feeble clowns, much as the direct actions of those in government appear by trying to restrict a single provider of information. They have become the Cavalry Officers demanding that their soldiers guard the door to the fort from the impending attack, when the fort has already been burned down and only the frame of the door remains.
Still… people making their own weapons without government oversight? What a terrifying thought! What is next? People growing their own food? Managing their own property? Deciding on their own with whom to associate, and which organizations to financially support?
What will become of us???
The following transcript has been marked “Classified”.
The contents below were transcribed from a recording recovered during a counter-intelligence operation. Well, actually it was produced through the Mueller Investigation looking for collusion between the Trump administration and the Russians. Turns out the Russians were able to plant a listening device in, or around, the California Assembly Public Safety Committee chambers. Portions of the tape are inaudible; however, the following transcribed conversation took place regarding AB-2382 (also known as the Precursor Parts Bill).
-Discussion begins as 10:17-
Assemblywoman Anita Snodgrass (D-Canoga Park): “Well, I don’t know why we are even discussing this. The fact that people can just use magic, and make assault weapons means we need to round up witches and warlocks! I mean, they are already trying to conjure ghost guns.”
Assemblywoman Jo Franklin (R-Brea): “What the hell? Anita, are you serious? You can’t be serious. This is a joke, right? Anita, what will your constituents think if they find out that you are advocating locking up non-traditional religious groups?”
Assemblywoman Anita Snodgrass (D-Canoga Park): ”What?! I never said that! Why are you saying that I said that? This is the same rightwing smear campaign that we have come to expect! I totally respect people of non-traditional religious faith. I just don’t want anyone to have a gun! What? How did we get here? This is supposed to be about keeping guns out of the hands of victims. No! Wait! I am not supposed to say that out loud! No one needs a gun. No one needs to make a gun. How? Did? Mr. Chairman, I have no idea what I am talking about I need your help!”
Chairman Alfonso De Lipid (D-Fresno): “Thank you for you passion Assemblywoman Snodgrass. We can take it from here. We need to make sure that 2382 passes, and we would really like to get some fascist support… er… Excuse me… Republican support on this too. After all, no one wants nut-jobs making unregistered guns.”
Assemblywoman Franklin (R-Brea): “Well, since I am the only Republican here I am assuming you are directing that comment to me. It should be obvious that I take umbrage at the use of the word “fascist” when describing our party. If you want to throw these monikers around, your own party bears a far more striking resemblance to fascism than ours. Ours is probably guilty more of abject incompetence than anything else. I object to 2382 on a practical level. What is a precursor part? You want to regulate the component parts of a firearm, but when does a chunk of metal become a precursor to a firearm? Is it based on the intent of the maker? Is it based on the use of product for alternative purposes? This whole thing just looks like it is far too arbitrary and vague.”
Chairman Alfonso De Lipid (D-Fresno): “So?”
Assemblywoman Franklin (R-Brea): “So… if it is arbitrary and vague, it will not pass Constitutional muster.”
Chairman Alfonso De. Lipid (D-Fresno): “Honestly, Ms. Franklin, when have we ever been concerned about passing a so-called Constitutional law?”
Assemblyman Leroy Jackson-Goldberg (D-South Los Angeles): “I’ve got a better one! My constituents are constantly on my back to limit the number of guns that the pubic has available. Each time one of my boys tries to improve his economic standing by liberating property from those rich people in Beverly Hills, or down in Orange County, they are scared they might get shot. We need to make it more difficult for their suppliers to get guns!”
Assemblywoman Franklin (R-Brea): ”Suppliers?”
Chairman Alfonso De Lipid (D-Fresno): “He means victims.”
Assemblyman Jorge Gonzales (D-Menlo Park): “He has a point.”
Assemblywoman Franklin (R-Brea): “He has a what?! What are you talking about?! He is advocating crime! Are you people crazy?”
-Laughter can be heard at 10:25-
Chairman De Lipid (D-Fresno): “I think we will move on.”
Assemblywoman Franklin (R-Brea): “No, wait, let’s just think about the practicality of this bill. If someone goes into Home Depot and buys a piece of pipe, then he has to go through a registration process, because they might make it into the barrel of a gun? If people go to a metal shop, they will have to register all of the blocks of aluminum they buy because they might mill them into a weapon? You realize that anyone who is now a prohibited person as a result of a domestic violence conviction could never walk into Home Depot or a metal shop again?”
Assemblyman Frank Pedillo-Smerkoff (D-Santa Monica): “Wait, what?”
Assemblywoman Franklin (R-Brea): “That's right, Frank. If someone is a prohibited person, either by felony or misdemeanor domestic violence, he literally could be arrested for simply being in a place where so-called ‘precursor parts’ are present. Worse, if his sprinklers go out, and he buys these precursor parts he, and the people who sell him the parts, could go to jail.”
Assemblyman Frank Pedillo-Smerkoff (D-Santa Monica): “Oh my God! Did we write an exemption into this for members of the Assembly and Senate?”
Chairman De Lipid (D-Fresno): “Yes, lifetime exemption.”
Assemblyman Frank Pedillo-Smerkoff (D-Santa Monica): “Whew, okay, well, then I am good with it.”
Assemblywoman Franklin (R-Brea): “Are you serious?! Because you have an exemption from this idiotic law you are okay with it?”
Chairman De Lipid (D-Fresno): “Okay, we have spent enough time on this; let’s call for a vote. Those in favor of passing this out of committee and sending it to the Assembly, vote ‘Aye’.”
-10:32- Various “Ayes” are heard.
-10:33- A single “No” is heard.
Chairman De Lipid (D-Fresno): “The measure passes unanimously.”
Assemblywoman Franklin (R-Brea): “What?! I voted no!”
Chairman De Lipid (D-Fresno): “Your vote does not count. You are here as a guest.”
Assemblywoman Franklin (R-Brea): “What the hell? I am an elected representative, and I serve on this committee!”
Chairman De Lipid (D-Fresno): “Spoken like a true fascist.”
When we discuss Second Amendment issues, we do so through the construct of civil rights. The Second Amendment was codified to recognize the intrinsic natural right of self-defense and, more importantly, to establish a defensive line against tyranny.
As I have mentioned before, tyranny is a broad concept. It should be viewed as expansively as possible. The Second Amendment protects us against invading armies, it protects us against our own army, it protects us against the State, against the magistrate, against the abusive spouse, the hostile neighbor, or the common street thug.
Tyranny exists on many, many levels.
The other amendments each, individually, protect us against tyranny as well. Their primary purpose is to recognize the fundamental limitations on government. Each recognizes core rights of the individual, typically at the expense of the government.
While Cosmo would certainly argue the overriding importance of the Third Amendment, we will have to forego that discussion for another time.
This blog is dedicated to the First, and specifically freedom of speech.
Let’s begin by stating what the First Amendment is not. It is not a limitation on private prohibition of free speech; it is only a limitation on government regulation of speech. Private individuals, private companies, and private publications are absolutely free to promulgate or regulate commercial, or even public, speech (to the extent that their private industry is a necessity for promulgation of that speech). If people wanted to use this blog for the purposes of articulating an anti-gun message, I am completely free to refuse to print their missives. Failure to promulgate their message on my own platform is not a violation of their First Amendment rights. When the government says they can’t say something… well, that is going to be a problem.
What becomes troubling is when agents of the State start calling for private regulation of speech. The “one step removed” idea is functionally absurd. If the State demands a private company regulate speech… and the fear of government retribution is always hidden behind the smiling teeth of a politician… one could say that the government itself is simply compelling its agent to perform an otherwise unconstitutional act.
So we look on with troubled eyes at the missives of Connecticut Senator (D) Chris Murphy who is demanding that media platforms begin censoring speech, because the “future of our democracy is at stake.” Specifically, he is talking about far right websites and conspiracy sights that he feels postulate “dangerous” ideas.
John Stuart Mill, one of our founding philosophers, wrote an influential book at the time of the Revolution titled, On Liberty. He postulates many theories but, in my mind, his most important one is his passionate defense for unbridled freedom of speech. His argument is essentially a capitalistic one. Free speech, at its most fundamental level, enriches everyone. The speaker, the audience, and the critic.
If someone were to postulate an argument that is contrary to the views of another, the recipient must contrast these new potentially radical views against the dogma that he has accepted as orthodoxy. He, of course, is completely empowered to point out the logical inconsistency of his opponent's positions as well. Either way, one of three outcomes will emerge from this “incidence of free speech”: 1. The recipients will realize their dogma does not have the same strength as the new information, and the recipients will abandon their dogma for the new, better idea. 2. They will realize that the proffered argument fails to usurp their original beliefs, and their understanding of the original position is strengthened after being tested against competing ideas. 3. A mix of the two takes place, and their original idea is modified to accept valid points articulated by the challenger. No matter what, each participant is left enriched by the experience.
Nietzsche, roughly 80 years after Mill, came up with a similar, decidedly Germanic concept: Philosphize mit hammar, “philosophy with a hammer.” Nietzsche argued that dogma is like a golden statute; you must constantly hammer at the statute with intellectual ferocity. One of two things will happen… the idol will break, or your hammer will break. If the idol falls, you should never have been accepting of it in the first place; if your hammer breaks, then you know that the idol is strong.
The belief that we are somehow better off if we limit the amount of speech injected into the body politic is a dangerous thing. Some speech is indeed abusive, coarse, and often flat out wrong. The antidote to that speech is fundamentally more speech.
President Trump, for all of his boorish articulations, essentially has mastered this concept. When the mainstream media articulates either a falsehood or a heavily slanted article, he labels it “fake news.” This causes a massive level of insecurity amongst the media as they push the narrative that it is not, in fact, “fake news,” but factually accurate. As they expand upon their stories, alternative narratives begin to emerge which allow the audience a far greater understanding of the original story.
When the media makes editorial decisions to limit the access to information that does not support a collectivist narrative, they are essentially making speech by prohibiting it. With the decentralization of media, stories that otherwise would never have been published, now find their way onto internet sites. (When was the last time you saw CBS/ABC/NBC MSNBC or CNN show stories of CCW holders saving lives?) When the President lambasts the above as “fake news,” invariably these hidden stories start seeing the light of day… even if they are not placed on these purveyor’s news feeds.
When someone… anyone, especially a Senator, suggests that democracy can only be protected by limiting the amount of speech the public can consume, he need to be shown the exit door for he is the existential threat to democracy.
Finally, after three weeks, I now get to write about Judge Kavanaugh!
President Trump has officially nominated DC Circuit Court Judge Brett Kavanaugh as Justice Kennedy’s replacement on the Supreme Court. Many of us in the Second Amendment Bar have been waiting with baited breath on a replacement for Kennedy, specifically. While putatively a conservative, Justice Kennedy had a far more checkered view on Second Amendment jurisprudence.
The lack of predictability of Justice Kennedy caused many gun cases, cases that could have further clarified the scope and application of the Second Amendment, to not be heard by the Supremes.
In order for a case to be granted certiorari (permissible to be heard by the Supremes), four of the nine justices must agree that the case is worthy of merit. While it only takes four to hear a case, it requires five justices to win a case. Thus, with the bona fides of Justice Kennedy in question, many cases were torpedoed by pro-Second Amendment justices for fear of establishing generations of bad 2A jurisprudence.
Collectivists, who cringe at the possibility of citizens not having a forced reliance on public policy and governmental agents for their safety, rightly have been concerned about a President Trump replacement for Kennedy.
Trump’s pick of brilliant jurist Brett Kavanaugh is unlikely to assuage their concerns.
Judge Kavanaugh has written extensively about many issues, and has proven to be a both a Constitutionalist, as well as a textualist. Essentially, this means that Kavanaugh has little interest in legislating from the judiciary. He is far more concerned with the actual language of the Constitution and the textual history surrounding ratification.
His feelings on the Second Amendment are not vague predictions… his extremely well-reasoned opinions from the DC Circuit give us a glimpse, not just as to his views on the Second Amendment, but how he interprets precedent as well.
One of the most interesting writings was his dissent in Heller II. This case ultimately made its way to the Supremes, where he was essentially vindicated… but the reasoning he made bears a thoughtful analysis… especially because there is a high probability it might make its way into a future decision.
The area I would like to focus on is the concept of “intermediate scrutiny” as a balancing test for whether a challenged law violates the Second Amendment.
In the seminal case of Heller v. DC, Justice Scalia wrote that that “rational basis” was not an appropriate test for balancing the Second Amendment.
Ok… so, what does this mean?
Typically, when we look at First Amendment cases, the court has articulated a balancing test to determine whether the challenged law should be upheld. There are essentially three tests used. Strict scrutiny is one when a core aspect of the First Amendment is at issue. The test for strict scrutiny is, “Is there a compelling state interest, and are there no less restrictive alternatives?” If the answer to this question is yes, then the law will be upheld… even though there is an obvious abridgment of the First Amendment. Assuming that the law does not touch upon a core principle of the First, but the First is implicated, we use an “intermediate test.” Namely, is there “a substantial state interest, and is the challenged legislation reasonably related to achieving that interest?” The least volitive test is the “rational basis test.” When there is a minimal connection to the First Amendment, or the Amendment is not impacted at all, the court will use a “rational basis test.” Here, the court looks to see if there is a “state interest, and the challenged legislation is rationally related to achieving that interest." Typically, laws tested against strict scrutiny fail… and those tested against rational basis survive.
Justice Scalia never expanded on the proper test since in Heller the core principle of the Second Amendment was completely abrogated by the District of Columbia. He never really got into the balancing test because there was nothing to balance.
Appellate courts have jumped on his specific language, though. Being foreclosed the least restrictive test of rational basis, they have elected to adjudicate statutes that limit the exercise of the Second Amendment to an “intermediate level of scrutiny”… and surprise, surprise… the challenged statutes are upheld.
Justice Kavanaugh disagreed with the entire concept.
Rather than using a First Amendment test, he argued, in his dissent, for a textual approach. The “test” to be used in determining whether the challenged statute violates the core principle of the Second Amendment is to first determine what the Framers were intending the Second Amendment to protect in the first place.
His historical analysis lands squarely on protection of individual liberty, protection against tyranny, and the individual’s inherent right of self-defense.
Balancing tests that were developed for other amendments serve no purpose in determining whether a challenged law violates the Second.
His approach, in my opinion, is spot on.
In identifying the core principles of the Second, Judge Kavanaugh puts his thumb on the scale clearly in favor of individual liberty, exactly as our Founders intended it to be. While his confirmation is by no means a foregone conclusion, there is a high probability he will be confirmed by the Senate. For this we can thank former Majority Leader, Harry Reed, the Democrat who altered the rules of the Senate to allow for a simple majority for confirmation of judges. (Reed was frustrated that President Obama’s picks were being held up by recalcitrant Republican Senators.) Evidently, it never occurred to him that a Republican may one day sit in the White House, charged with nominating a new justice to the Supreme Court.
We welcome the confirmation hearings, and look forward to Justice Kavanaugh fleshing out more of his judicial and political philosophy. One thing is certain… his stance on the Second Amendment makes me very, very happy.
So, you know how I was so excited to finally be able to talk about Judge Kavanaugh? Well, guess what? It has to wait yet another week.
The 9th issued another ruling… and like in Duncan v. Becerra, which I wrote about last week… it was a good thing. (Rarely do I get to write that sentence.)
This time the ruling was in Young v. Hawaii, and this was a biggie.
As in the original three-judge ruling in Peruta v. San Diego, this three-judge panel had its opinion drafted by Justice O’Scannlain.
Justice O’Scannlain is my new spirt animal.
The case at bar revolves around Hawaii’s issuance of both open carry and concealed carry permits. The second part, concealed carry, was not directly tackled, but is incorporated through a very important footnote, and the general ban of concealed carry in the State of Hawaii is a predicate requirement for the ruling to have the logical consistency it does.
Like California, Hawaii is not favorable to guns. To bear arms outside of your home in Hawaii (“bear” being an important phrase here), you need to have either an open carry permit, or a concealed carry permit. Hawaii has issued concealed carry permits for 19 years, and only a handful of open carry permits, exclusively to security guards.
Young, the plaintiff, applied for both permits twice and was denied.
He sued under a 1983 action in federal court, arguing that his inability to openly carry outside of his home was a fundamental deprivation of his Second Amendment rights. The court did acknowledge that pursuant to Peruta II (the en banc review case), a CCW is a legitimate time, place, and manner restriction and could be upheld, as long as the plaintiff still has the core Second Amendment right available to him… in this case, he can still open carry.
The big question before the court was, “Does the Second Amendment exist outside a person’s home?” The answer to that question, in Justice O’Scannlain’s excellent opinion, is unambiguously yes.
If you want to read the opinion in its entirety you can find it here: https://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/24/12-17808.pdf
What does the opinion actually say?
Well, grab your own cup of coffee and read on…. this gets exciting!
Justice O’Scannlain first decided to tackle the question of “Does the Second Amendment even apply outside someone’s home?” Heller v. DC (the seminal case that recognized the Second as a fundamental right) and McDonnel v. Chicago (that incorporated the Second to the States via the Fourteenth Amendment) never explicitly recognized the Second Amendment as applying to activity that occurs outside a person’s home. (Remember Heller was a ban on possession of a firearm by residents of the District of Columbia. The court recognized the core purpose of the amendment was to protect “hearth and home.”)
O’Scannlain points out that the phrase to “keep and bear arms” is a two-part proposition. Clearly, as Heller stated, the law-abiding citizen enjoys a right to “keep” arms, but equally clear is the proposition that “bear” does not mean incidental movement from room to room in one’s house. “Bear” clearly means to take a firearm outside one’s home. More to the point, since the core purpose of the Second Amendment is self-defense, it stands to reason that self-defense is just as important outside the home as inside.
He then goes on a lengthy historical analysis of the Second Amendment’s 19th century cases. These are important since they are relatively close in time to the actual ratification of the Amendment. He points out that the vast majority of the cases (with the exception of the unfortunately named State v. Buzzard) held that laws that forbade the open carrying of weapons were in conflict with the Second Amendment.
He then takes on the State’s odd argument that the Second Amendment should be interpreted through the lens of the 1328 Statute of Northampton. (To be fair, the State of Hawaii was using this line of argument pursuant to Chief Justice Thomas’s en banc decision in Peruta II. Remember, O’Scannlain wrote the original Peruta decision saying that the court takes judicial notice that, “A general interest in self defense is sufficient good cause for a CCW.” His opinion then, as is this one, was heavily based in historical analysis. Chief Justice Thomas overruled him, and wrote his own “historical analysis,” essentially saying the issuance of a CCW is not a core right envisioned under the Second Amendment. He left open the possibility that open carry is a core right, though even doubted that, opining that the Second Amendment is of limited scope and probably does not exist outside the home…. especially since there is that ole “Statute of Northampton” thing.
O’Scannlain uses this opinion to strike back at Thomas.
He does this by eviscerating the State of Hawaii’s (Chief Justice Thomas’s) analysis of Northampton.
I won’t go into detail on this… but, if you read the decision and keep Thomas in mind, you will get a chuckle.
Thus, identifying the Second as a right that exists past the boundaries of one’s home, and its principal purpose being self-defense, he then goes on to analyze Hawaii’s statutes that prohibit carrying a firearm outside the home without a permit.
In Heller, the court said when a statute implicates a core principle of the Second Amendment, there needs to be a balancing test employed to see if the suspect statute is unconstitutional. In Heller, there was no need to engage in this balancing test, because the statute completely abrogated the Second Amendment. In Heller, the court postulated that the balancing test needs to be something more robust then “rational basis test”… but never specifically mandated a “strict scrutiny” analysis. Thus, circuit courts have adopted an “intermediate level of review,” which… surprise, surprise, all statutes tested have survived.
In Young, O’Scannlain essentially stated that the same prohibition that existed in Heller exists in Hawaii. With no empirical evidence that the State provided that someone “could” get a permit to carry openly for self-defense; it must be understood that the general public is prohibited from carrying openly for self-defense. Since this is a core component of the Second Amendment, and, as such, has effectively been foreclosed to the average citizen, the statute is patently unconstitutional.
Importantly, in Footnote 21, O’Scannlain states:
21 We do not address whether, after Peruta II, a concealed carry regime could provide a sufficient channel for typical, law-abiding citizens to exercise their right to bear arms for self-defense. See 824 F.3d at 927. While the County’s police chief purportedly awaits an “exceptional case” to grant a concealed carry license, section 134-9 is effectively a ban on the concealed carry of firearms. As counsel for the County openly admitted at oral argument, not a single concealed carry license has ever been granted by the County. Nor have concealed carry applicants in other counties fared much better: Hawaii counties appear to have issued only four concealed carry licenses in the past eighteen years.
Yeah… that was another dig at Thomas and Peruta II.
Had Hawaii taken the position that CCW permits were issuable to the general public…. and had they actually issued them… the ability to prohibit carrying openly most likely would be acceptable, since the average citizen could still carry outside the home.
So… based on the number of phone calls I have fielded in the last couple of days, the question on the top of everyone’s list… especially our patriot brothers and sisters who live in non-permissive counties like Los Angeles and San Francisco… is:
Where does this leave us?
Is open carry now legal?
What happens to California’s statute prohibiting open carrying of firearms?
The short answer is “good questions.”
The statutes prohibiting the open carry of firearms may still have validity to those who actually have CCWs, since their Constitutional rights have not been curtailed. To those who live in LA, who cannot get a permit, it would seem to be the law… at least in a federal tribunal… has been overturned.
There is little impetus for the State Legislature to unilaterally strike its anti-gun laws, though. If citizens were to open carry and be arrested for open carry, their response to the prosecution’s filing would be a demurrer. (A legal term that literally means “so what.”)
It is unknown if a lower court would accept the demurrer and toss the case; clearly, an appellate court would.
There is also the distinct possibility that O’Scannlain might watch Young suffer the same fate as Peruta. That is, an en banc review is requested, and the case overturned.
But, then again, if this were to happen, it would most assuredly be appealed to the Supremes… The Supremes with a new member, Justice Kavanaugh, who I really, really hope to write about next time!!!
Ugh! I really, really wanted to write about Judge Kavanaugh… but, once again, that is going to have to wait…
This last week a three-judge panel of the 9th Circuit handed down a decision on the preliminary injunction of Duncan v. Becerra.
Yes… it was a good thing.
It was not, however, the angels heralding and the clouds parting. It was a fairly simple procedural decision, and one that was not wholly unexpected.
Unfortunately, some have seen headlines and already begun proclaiming that “the 9th circuit has overturned California’s standard capacity ban!”
Errr… not exactly.
So let’s review exactly how we got here, and do a little prediction for the future.
California Penal Code §32310 says:
(a) Except as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any large-capacity magazine is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.
Seems pretty clear right?
The law does not explicitly state that you cannot have a “large capacity” magazine. It regulates the method of acquisition of said magazine. Moreover, the law is written in two clauses: The first clause is a commercial clause and stipulates the commercial methods that you, as a seller, are prohibited from selling the magazines. The second clause, following the word “or,” regulates the non-commercial methods, and those wishing to act as buyers.
Most people get tripped up on the clause “imports to the state.” This is a commercial term of art and relates to the importation for commercial sale, not the importation for personal use.
Had the legislature simply wanted to make them all illegal, it could have very easily written the law to say, “No magazines acquired after January 1 are legal in the State of California.” That would have been easy… yet, the legislature did not do it.
In the battle to “out gun control” each other, Gavin Newsom and De Leon both drafted, and ultimately passed, legislation to further restrict standard capacity magazines.
Newsom’s Prop 63 passed, which amended §32310 to essentially make the mere possession of a magazine capable of holding more the ten rounds, regardless of how it was acquired, a finable infraction.
A lawsuit was filed called Duncan v. Becerra. That case was brought before Judge Benitez in San Diego, and the plaintiffs (the ones looking to overturn the law… the “good guys”) asked for a preliminary injunction.
Basically, they were arguing that since the law could not be litigated before it was set to take effect, they asked the judge to hold off implementing the law. (That is essentially what a preliminary injunction is.)
For Judge Benitez to issue a preliminary injunction, he needs to find two things: First, that the plaintiffs have a high likelihood of prevailing at trial, and second, that if the law ends up taking effect before the trial, they will suffer an irreparable harm.
In a spectacular opinion, Judge Benitez issued the injunction and called out the State of California for constantly passing unconstitutional laws.
Now, typically when someone loses on a preliminary injunction, it is a huge indicator that when the actual trial comes up, that party will lose as well. After all, the judge has already said that the plaintiffs have a high likelihood of succeeding on the merits.
What was the Department of Justice’s response to losing the preliminary injunction?
Appeal the loss to the 9th!
The three-judge panel who heard the case was indeed incredulous with the State.
“Why are you doing this? The case is to be heard in a couple of months anyway. What extreme necessity requires the immediate implementation of this law?”
These were some of the questions that the justices on the 9th asked of the State.
Not surprisingly, they upheld Judge Benitez’s power to issue a preliminary injunction without second guessing him.
So… yes… it is a good thing.
Did the 9th overturn §32310? Not even by a long shot.
So… what happens now?
Well, the case of Duncan v. Becerra will be heard in a couple of months in front of Judge Benitez. He, more than likely, will overturn the law enacted by Prop 63 leaving us in the exact same position we were prior to Prop 63’s passage.
DOJ will appeal that final ruling to the 9th.
Then the 9th will formally overturn Judge Benitez, and say that Prop 63 is perfectly acceptable.
This will then be appealed to the Supreme Court, where, hopefully, we have Judge Kavanaugh sitting confirmed as the newest associate justice.
Then… having been given the opportunity to finally rule, these stupid magazine bans will be overturned once and for all.
Originally, I was going to write about President Trump’s nominee, Judge Brett Kavanaugh, to fill the vacated Supreme Court seat of Justice Kennedy.
That will have to wait until next week.
Today, we get to talk about the California DOJ and “assault weapons”… again. Specifically, what constitutes an “assault weapon,” and how does that definition relate to law enforcement activities?
But, before we get into that, we need to talk a little bit about legislative philosophy and the development of law.
As I have written before, law is, by definition, a freedom-limiting event. That should not necessarily be seen in a pejorative context. For people to have the greatest potential for maximizing individual freedom, the actions of others need to be regulated to some extent.
Think of motor vehicle laws.
Many of us would love to drive our vehicles with complete disregard for traffic laws. Doing this, however, would increase the potential of everyone being killed while on the road. To minimize the potential of disaster while driving, we regulate everyone’s behavior equally to not only create predictability while on the road, but also to minimize the risk of operating a vehicle.
While the benefit of safety on the road is clearly maximized by having enforceable laws, make no mistake… “freedom”… the ability to do what you want, when you want with your vehicle, is compromised.
Our Framers understood this and realized that the development of law… any law… was a necessary impediment to individual freedom. As such, they made it difficult to pass laws. They also relegated the passage of laws to the political crucible of the legislature.
If legislators crafted a law that would limit freedom “too much,” they would still need political allies to support that law, allies that would have to stand for reelection themselves. If a proposed law is too onerous to freedom, then, arguably, those allies would seek restrictions, exemptions, or redrafting to minimize the law’s impact on freedom, while still striking a balance between public policy and the individual freedom which is effected. Ideally, that balance is struck with individual freedom having the most weight.
In California, we often have two sets of laws, legislation that comes from the Legislature (that crucible of law-making) and administrative regulations that allow executive agencies to develop polices for the purposes of execution of the laws passed by the Legislature.
We run into a problem, though, when the Legislature passes laws (only to the extent that it has the political will to pass) and the Administrative Agency promulgates rules that exceed the law that the Legislature can pass.
Such is the case with the California DOJ.
DOJ was handed SB 880, which created not only the “assault weapon” reclassification of a bullet button, but also the registration process for registering a previously-owned weapon as an “assault weapon.”
It attempted to file its “assault weapon” definition (actionable rules) with the State Office of Administrative Law and immediately was met with resistance. Specifically, DOJ asked that the rules be subject to what is called “file and print.”
This essentially means: “nothing to see here… move along.”
Typically, when a rule is proposed, the public needs to be given an ample opportunity to participate in the rule-making process and be able to make public comments. “File and Print” is reserved for benign administrative stuff that does not meet the requirement of public comment.
Here, DOJ attempted to fundamentally alter what is considered an “assault weapon”… and arguably constructed a brand new form of weapon called a “bullet button assault weapon.”
This clearly went beyond what the Legislature was capable of developing under their political constraints, yet the unelected bureaucrats at DOJ decided to carry the water of the Legislature and do it for them.
The NRA, CRPA, Firearms Policy Coalition, as well as a host of other civil rights organizations, went operational.
One of the big issues was that DOJ attempted to clarify that the regulations were both for purposes of registration and enforcement.
That enforcement provision clearly went beyond the scope of the legislation, as well as fell outside the parameters of “file and print.”
Last week, DOJ pulled its regs from the Office of Administrative Law.
Essentially it is preparing for a “do over.”
This does not mean that SB 880 is no longer the law. It is still in force, and since the registration period for registering rifles as assault weapons has passed, I am not entirely sure I know the bigger picture for the vast majority of gun owners in California.
Clearly, DOJ has attempted to strong arm the gun owning public (again) in California, and it has been rebuffed. It has also established defenses for those who potentially run afoul of the registration law.
This is just one more “issue” with DOJ, and it is, sadly, a fight that is not over.
See Something, Say Something.
Our society has become far more “connected” than at any time in human history. Our ability to post events we witness, explain to our “friends” the intimate moments in our life, and pontificate on social trends is unparalleled to any point in our past. Yet, the grand irony is that in our effort to stay current with those we follow on social media, we often literally miss the forest for the trees.
There is an ubiquitous video that makes the rounds on social media. A compilation of individuals paying so much attention to their phones that they either become embroiled in embarrassing disasters or come frighteningly close to meeting their own demise. People become so focused on the postings of others, they unwittingly become a “post” themselves.
Those of us who have CCWs are essentially prohibited from engaging in this type of behavior. By definition, we must be aware of our surroundings, and slavish devotion to our phones prevents this.
Putting down the phone and getting eyes up is, at times, a Herculean task. I will be the first to admit that I am a hypocrite when it comes to this. If Sandy had a dollar for each time she told me to put the phone away, she would be a very, very wealthy woman.
That said, Sandy is entirely correct. It stands to reason that we would never reach for our phone to check status updates in the midst of a gunfight. We would also never do that when we suspect an altercation was about to occur. Why then would we do it when an altercation “could” occur?
As CCW holders, we must place ourselves at a higher standard. We, as individuals, are not the only ones who benefit from this… society as a whole becomes safer.
As CCW holders, we are constantly training to be observers. We see things others miss. Oftentimes those things are entirely benign… yet, at times, they are potentially life-changing. Once they have been detected, our responsibility does not end. We now need to do something with that information.
If you were in a bank and suddenly saw four men, roughly the same age, come into the bank, take up separate positions and begin scanning the crowd holding their jackets closed, you would probably decide it was best to immediately leave. That seems like an entirely prudent decision. Once outside, would you simply just drive away? Would you be comfortable knowing that you have potentially left all of those other patrons in the bank in harm’s way? Most of us would probably get a safe distance and call 911. If it turns out that the men who entered the bank were simply there to do a transaction, and had no criminal intent then no harm, no foul. If they were there to threaten the lives of the bank personnel and the patrons then, well… you just may have saved many lives by that simple phone call.
A phone call you would not have been able to make had you not been aware of their presence in the first place.
Beyond the local crimes, this also has national security implications as well.
When we see things, things that just don’t add up, we can either ignore them or report them.
To be sure, sometimes law enforcement drops the ball at this reporting stage. After the Parkland shooting it came to light that there were numerous reports to law enforcement about the shooter. Nothing of any substantive value took place. Greg Gutfeld, of Fox News, coined the phrase, “See Something, Say Something, Do Nothing.”
He has a point.
Regardless, denial of information to a law enforcement agency based on the premise that they will not act upon that information is just as asinine.
As CCW holders, we are often in a unique position to see things that, as a friend of mine in law enforcement says, “…make you get a pit in your stomach as you go to bed at 11 pm.”
Perhaps your “actionable intelligence” is nothing more than benign and eminently explainable, Constitutionally-protected activity. Perhaps it is something far more nefarious.
The activity in and of itself may be minimal; but, it might be part of a larger criminal enterprise, one that law enforcement has been monitoring for quite some time. It might also be the “tip” that leads to the unraveling of a conspiracy that could have put our troops, and even us at home, in danger.
I always tell you to train constantly, train consistently, and train with purpose. Your training is all encompassing and begins with situational awareness. When your training enhances a skill, and that skill uncovers something you would have otherwise let go unnoticed, you must act upon it.
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