WSJ Editorial Board Gets It Right

The Wall Street Journal published a scathing editorial today on the Supreme Court deciding to moot NYSRPA v City of New York. I think they got it right. For a co-equal branch of government to cower before the threats of senators like Sheldon Whitehouse should be unthinkable. Unfortunately, it wasn’t.

What an enormous abdication. The Supreme Court ducked its first Second Amendment case in a decade on Monday, and the only plausible explanation is that Chief Justice John Roberts wanted to avoid becoming a target of vengeful Senate Democrats.

The editorial then takes note of Justice Alito’s dissent which was joined by Justice Gorsuch in whole and by Justice Thomas in part.

The majority buckled and ignored previous rulings to do it. As Justice Alito writes, the Court’s precedents hold that “a case ‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’” Plaintiffs want to transport their firearms without worrying about getting arrested if they stop somewhere along the way. The city even admitted in oral arguments that it’s unclear whether this is allowed. Justice Alito says this and more make the rule’s violation of the Second Amendment “not a close call.”

On the mootness point, Justice Alito also pokes his colleagues with this hypothetical: “A State enacts a law providing that any woman wishing to obtain an abortion must submit certification from five doctors that the procedure is medically necessary. After a woman sues, claiming that any requirement of physician certification is unconstitutional, the State replaces its old law with a new one requiring certification by three physicians. Would the court be required to dismiss the woman’s suit?” You know the answer.

Looking at Justice Kavanaugh’s concurrence, the editorial board found it “curious”.

Justice Kavanaugh’s role here is curious because, while he joined the majority on mootness, he wrote a concurrence agreeing with the dissent on the Second Amendment merits. This looks to us as if he is trying to protect the Chief Justice from being the fifth vote, and the sole “conservative,” providing a liberal victory while making clear he’s still a solid vote himself for gun rights. The phrase for this is too clever by half.

They note that the Supreme Court has been timid on the Second Amendment and is treating it as a second class right. Moreover, if shrill threats from the Whitehouses of the world and the media can sway the Court, then we can expect it to escalate on this and other issues.

They conclude on the role of Chief Justice John Roberts.

The Chief Justice is carving out a reputation as a highly political Justice whose views on the law can be coerced with threats to the Court’s “independence.” The danger for the Court is that, in bending to these threats, the Chief is compromising the very independence he claims to want to protect.

I wish Kavanaugh was more like his fellow Georgetown Prep classmate Justice Gorsuch. I said back when Kavanaugh was selected that he wasn’t my first choice. I much preferred Tom Hardiman and Raymond Kethledge. Both had better backgrounds on the Second Amendment. Moreover, neither were Ivy League law grads which I found to be a big plus.

My only hope is that the Court does take one or more of the Second Amendment cases that are still out there awaiting cert. Ideally, they would take one of the carry cases, Mance v. Barr, and Pena v. Horan. That threesome with the correct decision would allow carry outside the home, poke holes in GCA68, and do away with the California handgun roster.

A Win In Virginia For Indoor Ranges (Updated)

Despite the Supreme Court punting on the NYSRPA case, it hasn’t been a totally bad day in the courts. Judge F. Patrick Yeatts of the 24th Judicial District of Virginia granted SafeSide Virginia, VCDL, GOA, and the Association of Gun Ranges of Virginia a temporary injunction against Gov. Ralph Northam’s closure order.

Judge Yeatts found that Gov. Northam had exceeded his authority in closing indoor gun ranges. Northam had argued that his authority came from his chief executive power to assure that “laws are faithfully executed” and that he could ignore laws that limited his authority. Judge Yeatts disagreed saying:

The Court cannot agree with such an expansive interpretation of the Governor’s authority. His duty to “take care that the laws be faithfully executed” include the laws that limit his power during emergencies like §44-146.15 (3).

Accordingly, the Court finds that the Governor’s power to close whole categories of businesses would only come from §44-146.17, which is constrained by §44-146.15(3) regarding the right to keep and bear arms.

Judge Yeatts notes that the Virginia Constitution includes the words “trained to arms” in the prefatory clause of the Commonwealth’s equivalent of the Second Amendment. He goes on to say that “gun ranges provide a venue for such training to occur, thus, “bear arms” includes loading and shooting at a gun range.” He then references the 7th Circuit’s decision in the Ezell v. Chicago.

In discussing the appropriate level of scrutiny, Judge Yeatts says, “The Court declines to invent a level of scrutiny to circumvent the text in the statute.” §44-146.15(3) says that the governor cannot “in any way limit or prohibit the right of the people to keep and bear arms” during an emergency.

The judge believes the plaintiffs will succeed on the merits. He found that they would suffer irreparable harm if forced to stay closed, that the balance of equities favors granting a temporary injunction, and that the injunction favors the public interest.

His order granting the injunction does note that safe distancing and sanitizing edicts of Executive Order 53 should be followed.

Cam Edwards, writing at, believes Northam will appeal.

The governor will almost certainly appeal Judge Yeatts decision, but for the moment, SafeSide Lynchburg and other indoor ranges in the state are allowed to re-open. The judge made the right call. Let’s hope that the state Supreme Court agrees.

I agree with Cam’s hope that the Virginia Supreme Court likewise agrees.

UPDATE: I should clarify that Judge Yeatts’ order only applies to SafeSide Lynchburg. He did not order the rest of the indoor ranges in the state be opened.

VCDL sent out an email regarding the win and noted:

As for the other indoor ranges that are still closed, VCDL is disappointed that they were not covered under the ruling and we are weighing our legal options at this time.  Our goal is to get all indoor ranges the option of reopening as soon as possible.

Supreme Court Punts On NYSRPA V. City Of NY

The US Supreme Court issued its ruling on New York State Rifle and Pistol Association v. City of New York today. The bottom line is that they punted in a 6-3 decision finding the case moot.

More as I read the opinion and the dissents.

I know we wished for more but this, as much as I hate it, was not unexpected after the City of New York changed its regulations.

UPDATE: From Jonathan Adler at the Volokh Conspiracy.

Many were anticipating a big Second Amendment ruling in New York State Rifle & Pistol Association v. New York, but it was not to be. The New York legislature revised the laws in question while the litigation was pending, rendering moot the precise question before the Court. Accordingly, in a brief Per Curiam opinion the Court sent the case back down to the lower court for consideration of the relevant Second Amendment claims against the rules currently in force. Justice Kavanaugh wrote a brief concurrence. Justice Alito, joined by Justices Gorsuch and Thomas, dissented.

For what it’s worth, I think the Court got this one right: The case as argued is moot. At the same time, the dissenters are correct that additional guidance to lower courts (and states) on the permissibility of gun restrictions is long overdue. In this regard, I think Justice Kavanaugh’s concurrence got things right: “petitioners’ claim for injunctive relief against New York City’s old rule is moot and that petitioners’ new claims should be addressed as appropriate in the first instance by the Court of Appeals and the District Court on remand.” In addition, there is ample cause for concern that “some federal and state courts may not be properly applying Heller and McDonald.” Accordingly, Kavanaugh wrote: “The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”

A Great Example Of An Oxymoron

The Giffords Law Center to Prevent Gun Violence (sic), formerly known as Legal Center Against Violence, issued a press release on Friday that is a great example of an oxymoron. The release concerned Judge Roger Benitez’s grant of a preliminary injunction in Rhode v. Becerra.

The head line of the release read:

Second Amendment Experts Denounce Court Ruling on California Ammunition Background Checks

When I think of the term “Second Amendment Experts”, I think of legal scholars like David Hardy, Dave Kopel, Stephen Halbrook, Glenn Reynolds, Joyce Lee Malcolm, and many others in the field. These attorneys and historians have studied the origins of the Second Amendment from English common law onwards. Dave Kopel is one of the editors of the first legal case law text on the Second Amendment.

Hannah Shearer, Litigation Director for Giffords Law, with all due respect, is NOT a Second Amendment expert. She is an ideologue determined to subvert the standard model of the Second Amendment as well as to promote gun control. She does have a couple of law journal articles and did appear in a panel discussion at Campbell Law School.

Those articles are the exception as her bio indicates:

She regularly provides information and commentary on the Second Amendment and state firearm laws to media outlets, and has been featured in the Los Angeles TimesUS News & World Report, and VICE News, among many other publications.

I have no doubt that Ms. Shearer is an intelligent person with her degrees from Yale and Stanford along with a circuit court clerkship. That said, to put her in the same scholarly class with David Hardy or Dave Kopel is an insult to Messrs. Hardy and Kopel. To call her a Second Amendment expert is an oxymoron.

9th Circuit Issues Stay In Rhode

The 9th Circuit Court of Appeals granted an administrative stay of Judge Roger Benitez’s grant of a preliminary injunction in Rhode v. Becerra late on Friday, April 24th. Judge Benitez had earlier that day denied an ex parte motion by Attorney General Xavier Becerra requesting a stay of his injunction.

In dismissing it he said, in part:

The Attorney General does not point to any change in circumstances or new evidence to undermine that conclusion. That the laws have been in effect for 10 months reflects this Court’s patient consideration, not its constitutional approval. Any delay was occasioned by judicial optimism that the high erroneous denial rate of early Standard background checks might significantly improve. It did not. Instead, the constitutional impingements on Second Amendment rights that began immediately, will continue if a stay is granted. Thus, the Court cannot find the remaining two factors tip the scales in favor of a stay. A 16.4% error rate that deprives citizens the enjoyment of any constitutional right is offensive and unacceptable.

The Attorney General’s Office then filed an emergency motion with the 9th Circuit to stay the injunction pending appeal and requested immediate relief. They argued that a stay would be in the public interest and would prevent prohibited persons from purchasing ammunition. They went on to say the plaintiffs were not prevented from purchasing ammunition. Of course, this ignores the 16.4% error rate referenced by Judge Benitez.

It should be noted that the stay granted by the 9th Circuit is an administrative stay and does not address the merits of Becerra’s argument. They will rule on that later.

The stay was issued at 9:45pm local time on the 24th. Ammunition orders in the system prior to that could be processed according to what I’m reading.

Freedom Munitions and Brownells both said they would be honoring orders made prior to that time and would be shipping directly to the purchaser.

COVID-19 Causes 2020 National Matches To Be Canceled

The COVID-19 pandemic has caused another major event to be canceled. The 2020 National Matches at Camp Perry have been canceled according to an alert from the Civilian Marksmanship Program.

After thoughtful consideration and reflection, the Board of Directors of the Civilian Marksmanship Program announces the cancellation of the 2020 National Matches at Camp Perry.    

“This decision was not arrived at lightly, but was prompted by restrictions resulting from the COVID-19 pandemic.  These matches date back to 1903 and have been held at Camp Perry since 1906,” said Judith Legerski, CMP Board Chairman.  

“The health and safety of our competitors, participants, vendors, military support, volunteers and staff members is of the upmost importance — overriding even the historical imperative of maintaining the continuity of the Matches,” agreed Legerski, with Chief Operating Officer Mark Johnson and Programs Chief Christie Sewell.    

“We were unable to come up with a manner in which we could safely produce the Matches.  Housing and pit duty were amongst the many insurmountable problems faced by the CMP Board,” Legerski explained.     The CMP looks forward to the 2021 National Matches at Camp Perry as the best marksmanship celebration ever!  In the meantime, please stay safe and healthy at home, as we prepare for the new normal ahead of us.

All CMP operations have been shut down since mid-March and a full resumption of business remains undetermined.  Full refunds will be made to those who have already registered.  

The last time the National Matches were canceled was in 1950 due to the start of the Korean War. They resumed in 1951 and returned to Camp Perry in 1953.

Big Win In California

Olympian Kim Rhode and the California Rifle & Pistol Association won a preliminary injunction against enforcement of California’s ammunition background checks and importation ban yesterday.

US District Court Judge Roger T. Benitez opened his 120 page opinion granting the preliminary injunction by saying:

The experiment has been tried. The casualties have been counted.
California’s new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured. In this action, Plaintiffs seek a preliminary injunction enjoining California’s onerous and convoluted new laws requiring ammunition purchase background checks and implementing ammunition anti-importation laws. For the reasons that follow, the motion for preliminary injunction is granted.

This is a big win for the CRPA, attorney Chuck Michel, and especially the gun owners, new and old, of California.

Judge Benitez went on to conclude:

Together, the background check requirement for all ammunition purchases in California and the anti-importation provisions that prohibit direct sales to residents often effect a complete statutory barrier to the lawful purchase of ammunition. Moreover, the provisions are interlocking and derive from the same section of Proposition 63. See §§ 8.1 through 8.16. The anti-importation provisions are not severable from the ammunition background check requirements. Even if only one part was unconstitutional both parts would need to be enjoined. But severability does not matter here, as both parts fail constitutional muster and require injunctive relief….

It is not the Court’s role to dictate to a state how it should go about attempting to accomplish its goal. If the state objective is to make it extremely difficult, if not impossible, for its law-abiding citizens to purchase protected ammunition, then this law appears to be well-drafted. However, if the genuine object is to keep ammunition out of the hands of those who should not be able to buy it, perhaps the State could create a database (that would include persons prohibited, i.e., aliens
unlawfully present, felons, and others) and simply make that information available to sellers by cross-checking with the magnetic strip on a standard driver’s license and by allowing out-of-state vendors the same ability to engage in commerce as it does California vendors.

I would wager house money that California Attorney General Xavier Becerra will appeal this ruling. As of this morning, he has not nor has he published a press release indicating any acknowledgement of the Judge Benitez’s ruling. If the state does appeal, the question then becomes will they be granted a stay to the preliminary injunction while they appeal the ruling. We will see.

In the meantime, Californians are free of an onerous and unconstitutional burden on their Second Amendment rights.

Guns 101 – The Four Gun Safety Rules

Are you a new gun owner? Did you purchase a firearm to protect your family due to the pandemic? Are you looking for information about firearms safety?

The Self Defense Radio Network along with the Polite Society Podcast has created a series of short videos dealing with safety, safe storage, proper gun handling, and much, much more. These are intended to help the newbie get some training from highly respected instructors while everything is shut down.

The following video goes over the Four Rules. These were rules for gun safety created by Col. Jeff Cooper many years ago that, if followed religiously, will prevent accidents.

You can find the whole series of videos on YouTube. At last count, there are well over 60 of these short videos with more to come. I will be posting as many as possible over the next weeks and months.

If Fast Food Was Sold Like Guns

It should come as no surprise that the gun prohibitionists are in a tizzy because the BATFE has adopted sensible regulations during this time of COVID-19. The regulations allow gun dealers to use drive-in windows or a table in front of their store so as ensure social distancing. It never absolved them of running a NICS check or having a Form 4473 filled out.

Kris Brown, co-president of Brady United, opined, “We should not need to say this, but guns should not be sold like fast-food burgers or lemonade.”

That’s a nice little sound bite but lets look at what it would look like if fast food was actually sold like guns.

During this time of stay-at-home orders and eating your own cooking everyday, you decide you need a treat. You decide you want a BigMac, large fries, and a chocolate shake from McDonalds. If you don’t like McDonalds, it could just as well be a Whopper from Burger King.

To make it go faster you place your order over the Internet using the McDonalds’ app. After all, you’ve know about the Internet loophole from reading the literature of the food safety groups (formerly known as food control).

You arrive at the drive-thru window anxious to pick up your BigMac, fries, and shake. Instead of handing you your meal, the cashier ask you to fill out the USDA’s Food & Nutrition Service’s Form FAST. She tells you that they will need to run a NICS (Nutritional Inventory Check System) check through the FDA.

You are flabbergasted. But what about the Internet loophole you say! The cashier says you always have had to fill out Form FAST and have a NICS check even if you bought it over the Internet. You eventually get approval and go home to eat while grousing about the unfairness of it all.

However, imagine if you lived in Illinois or New Jersey or California.

In Illinois you would have to have your FFID (Fast Food ID) Card. If you were just visiting, the only way you could get it is if you had a non-resident eating permit. That also would be required if you just wanted to buy condiments.

Now in New Jersey, it gets a bit more cumbersome. There you would be required to apply for a Fast Food Application and Registration System permit in advance. To get the FFARS, you would have to submit an official cholesterol report and BMI to the nutritional police for their OK. Now if you wanted to get a Big Mac or Whopper that requires additional paperwork for your FFPID (Fast Food Purchasers ID). The rationale is that Big Macs are more dangerous than a simple hamburger.

That goes back to an effort by Josh Saccharine of the Food Violence Policy Center to confuse the general public by coining the term “assault burger”. He knew that a Big Mac had fewer calories than three slices of pizza but the average consumer would be wary of those people eating Big Macs because they were assault burgers.

Now assume our fast food consumer is in California. A regular Big Mac is banned because the State Nutritionist General has deemed it an Assault Burger. Thus, fast food restaurants have come up with California-compliant versions that replace the beef burger with a soy burger. Our man can still get his California-compliant Big Mac but he will have a 10 day wait to pick it up after placing his order, paying for it, and having the require background checks. If he wants extra ketchup, that requires a separate check.

If all of this seems a bit far-fetched, never underestimate the power of bureaucrats, nanny-state politicians, and anti-freedom groups to implement such a regime. They have done it for firearms which are actually mentioned in the Constitution so it isn’t that much of a stretch to see them do it for something that doesn’t have such Constitutional protections.

The point here is that when Kris Brown of Brady United or John Feinblatt of Everytown say that guns are being sold like fast food they are full of crap. You know it, I know it, and they know it.

Hi-Point Pistols Are Tough

As a community, we tend to look down on Hi-Point pistols. They are clunky looking, their triggers leave something to be desired, and they are cheaper than darn near anything else out there.

That said, they tend to work all the time and they are available at a price point that lets the economically unfortunate have a firearm with which to protect their families. And the company does have a sense of humor. Witness the Yeet Cannon G-1.

So what happens to a Hi-Point if you intentionally plug up the barrel with a variety of things. The answer is not as much as you’d think. The YouTube channel DemolitionRanch did that and published the results.

As a disclaimer, I don’t encourage this and it appears he did do this experiment under controlled conditions.

While I’m not looking to purchase a Hi-Point now or in the future, I will say that they are tough guns. Out of the nine that were intentionally plugged, only two were destroyed. Of those two, one had the obstruction welded into the barrel and the other had a a heavy nut screwed into the barrel.

As they always say, don’t do this at home. Moreover, you should always make sure your barrel doesn’t have an obstruction.