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The Same Old Blah, Blah, Blah

February 8, 2023 by 4 Comments

I’m sorry but I just can’t watch Joe Biden bloviate on TV. I know it is the State of the Union speech which is supposed to be important but really isn’t. Thus, I went to the White House website to see what he was going to say about firearms. It is easier to read his words than to hear him shout them on TV.

From his prepared remarks:

Do something.

That was the same plea of parents who lost their children in Uvalde: Do something on gun violence.

Thank God we did, passing the most sweeping gun safety law in three decades.

That includes things that the majority of responsible gun owners support, like enhanced background checks for 18 to 21-year-olds and red flag laws keeping guns out of the hands of people who are a danger to themselves and others.

But we know our work is not done.

Joining us tonight is Brandon Tsay, a 26-year-old hero.

Brandon put off his college dreams to stay by his mom’s side as she was dying from cancer. He now works at a dance studio started by his grandparents.

Two weeks ago, during Lunar New Year celebrations, he heard the studio’s front door close and saw a man pointing a gun at him.

He thought he was going to die, but then he thought about the people inside.

In that instant, he found the courage to act and wrestled the semi-automatic pistol away from a gunman who had already killed 11 people at another dance studio.

He saved lives. It’s time we do the same as well.

Ban assault weapons once and for all.

We did it before. I led the fight to ban them in 1994.

In the 10 years the ban was law, mass shootings went down. After Republicans let it expire, mass shootings tripled.

Let’s finish the job and ban assault weapons again.

C’mon, man. Don’t you know that the firearm arm used in Monterrey Park was banned in California years ago?

I do agree that Brandon Tsay is a hero for stopping the murders. On that we can agree.

As to the so-called Bipartisan Safer Communities Act, why are we treating 18-21 year olds like second-class citizens? We are OK with sending them to war in faraway places with fully automatic weapons to fight and die for this country so why are they treated differently. They can vote, they can enter a contract, they can be imprisoned as adults, and, in most states, they have reached the age of majority.

With regard to red flag laws, they make a mockery of due process. More importantly, if the person is so dangerous to either themselves or to us, why are they still out on the street? As seen in both Europe and in Wisconsin, a killer or terrorist with a vehicle can kill a lot of people.

Finally, mass shootings are rare events. They are aberrations. They are black swans. Yes they do happen but they are not the norm. Moreover, rifles including “assault weapons” (sic) are one of the least used weapons in homicides. They lag even fists and feet.

I’m sure Joe got some cheers from the left side of the aisle for his comments. But that is all he should get.

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Is Body Armor Protected By The Second Amendment?

February 7, 2023 by 10 Comments

Existing California law makes it a felony for a convicted violent felon to purchase, own, or possess body armor. A new bill before the California Assembly would change this so as to make it a felony to commit a violent felony with a firearm while also wearing body armor. Unfortunately, the California Assembly would also make it a misdemeanor for anyone to purchase or possess body armor as well to sell it or deliver it. AB-92 Body armor: prohibition does make exceptions for people in certain professions such as law enforcement, the military, building inspectors, and security guards. However, the average homeowner or non-exempt business owner who wants such protection is out of luck.

The sponsor of AB-92, Rep. Damon Connolly (D-San Rafael), made this claim in support of the bill.

“Simply put, the widespread availability of military-grade body armor helps mass shooters and criminals kill more people,” Connolly said in a statement. “It is clear that the sale of body armor has empowered violent criminals, including mass shooters, to harm, kill, and prolong their rampages. This ongoing and unnecessary epidemic of violence must be stopped and AB 92 will help protect innocent bystanders and our peace officers.”

I was alerted to this new bill by a blog post I was sent from Spartan Armor Systems. I agree with the author of this post that such a bill would not make the average public safer. What really caught my eye in this post was the claim that such a ban would be unconstitutional. That spurred some research on my part.

The Second Amendment says, in part, “the right of the people to keep and bear arms, shall not be infringed.” Justice Scalia in DC v Heller went to great lengths in his opinion to show that “the people” was much more than merely the militia. He said the strong presumption was that the Second Amendment was a right that is “exercised individually and belongs to all Americans.” Thus, it should be assumed that any law which restricts possession of an item to a select class of individuals is suspect.

But would body armor be considered “arms” in the meaning of the word when the constitution was ratified?

Spartan Armor Systems Concealable IIIA Certified Wraparound Bulletproof Vest

The answer is yes. Justice Scalia helpfully points out a couple of early definitions of arms as it would have been understood by James Madison and the other architects of the Constitution.

First, from Dr. Samuel Johnson in his Dictionary of the English Language, 1755, (online edition):

Arms. n.s.without the singular number. [arma, Lat.]

1. Weapons of offence, or armour of defence. (emphasis added)

Second, from Timothy Cunningham in his A New and Complete Law Dictionary, 1764:

Armour or Arms, (Arma) In the understanding of law, are extended to anything that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another. (emphasis added)

In both cases, arms were understood to be more than weapons of offense such as a sword or a musket. Arms could also be a means of defense that was meant to be worn. Thus, a suit of armor or even a chain mail vest would have been understood to be arms at the time of the ratification of the Second Amendment.

From Wikimedia Commons

If one applies the newer standard of text, history, and tradition as expressed by Justice Thomas in NYSRPA v. Bruen, it seems obvious to me that body armor would be a constitutionally protected “arm” that one could keep (possess) and bear (wear).

One would hope that wisdom might prevail in the California Assembly but that often is fleeting.

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“You Can’t Solve Something Like This With A .45”

February 2, 2023 by 6 Comments

There is a 2022 movie called Vengeance starring B. J. Novak from The Office. It is described as a darkly comic thriller about a podcaster who travels from New York City to West Texas to investigate the death of a girl he briefly hooked up with. Her family thought it was more and has welcomed him with open arms.

In one scene, the family matriarch is giving her opinion on what it will take to solve this.

You have to love Texas, Texans, and Texas matriarchs.

Right now Vengeance is available for free on Amazon Prime. If you don’t have Prime, you can get a 30 Day Trial for only $3 using this link. (commission earned)

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Chief Judge Says No To Illinois

January 30, 2023 by 2 Comments

Chief Judge Nancy Rosenstengel of the Southern District of Illinois just said “no” today to the attempt at judge shopping by the State of Illinois. She transferred both Langley v. Kelly and FFL-IL v. Pritzker to Judge Stephen McGlynn. Judge McGlynn is the judge of record in Harrel v. Raoul.

In addition, the magistrate to whom Barnett v. Raoul had been assigned ordered that case transferred to Judge McGlynn.

I had posted about the attempt by the State of Illinois to game the system earlier today. They had first pulled a state court case to Federal court and then tried to have it be the lead case. Their argument was that it was the first case filed anywhere. However, precedent in the district stated that consolidated cases should be assigned to the judge of the case with the lowest number. Here that would have been the joint SAF, FPC, and ISRA case of Harrel v. Raoul.

I applaud the Chief Judge for abiding by the longstanding precedent in the District for assignments in consolidated cases.

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Tweet Of The Day

January 30, 2023 by 1 Comment

The New York Times is bemoaning the fact that all those gun control laws in California do nothing to stop mass casualty events.

The reply by “JustynWS” nails it – do you treat the symptom or do you treat the cause.

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Legal Gamesmanship In Illinois AWB Cases

January 30, 2023 by

While I was in Las Vegas at the SHOT Show, I listened to Alan Gottlieb of the Second Amendment Foundation discuss some of their 43 pending cases. He went into particular detail about the SAF and co-plaintiffs’ challenge to the recently passed assault weapon (sic) and magazine bans in Illinois. What was particularly interesting was the decision on which district of Illinois to file the case, Harrel et al v. Raoul et al, and the goal of being the first case filed challenging the new law. Alan said the Southern District of Illinois tended to be better which is why it was filed there. He also noted that if, as he expected, the cases would end up being consolidated the lead case would be Harrel v. Raoul as it was the lowest numbered case. Finally, he said that by the luck of the draw that the judge assigned to the case, Judge Stephen McGlynn, was appointed to the court by President Trump.

Since Harrel was filed on January 17th, two other cases were filed challenging the new Illinois ban. Furthermore, another case was moved from state court to Federal court at the request of the State of Illinois.

Barnett et al v. Raoul et al was filed on January 24th. The lead counsel is Paul Clement and the plaintiffs include the National Shooting Sports Foundation. This case is also being financially supported by the NRA according a post on ILA’s website. Filed the same day was Federal Firearm Licensees of Illinois et al v. Pritzker et al. The lead attorney in this case is California gun rights attorney Chuck Michel. Plaintiffs include GOA, Guns Save Lives, and Gun Owners Foundation as well as other individual and business plaintiffs.

Langley et al v. Kelly et al was originally filed in Circuit Court of the Second Judicial Circuit, Crawford County, Illinois. Kelly, the Director of the Illinois State Police, moved to have the case transferred from state court to the US District Court for the Southern District of Illinois. This removal was granted on January 23rd. Note however, that it has a higher case number than Harrel. This case as well as Barnett and FFL-IL were all originally assigned to Senior Judge J. Phil Gilbert who subsequently recused himself. Langley and FFL-IL has now been reassigned to Chief Judge Nancy Rosenstengel. She was appointed to the bench by President Obama. The Barnett case has, for the time being, been referred to a magistrate judge.

Under Rule 42(a)(2) of the Federal Rules of Civil Procedure the court can consolidate the cases if they involve a common question of law or fact. Given all four cases are challenging the same law, I think there would be grounds to do so.

Here is where it gets interesting and you start to see the legal gamesmanship. The State of Illinois through its filings in Langley is pushing to have the cases all consolidated under it as Chief Judge Rosenstengel, an Obama appointee, would be the judge hearing the case. The presumption is that an Obama appointee would be more favorable than a Trump appointee such as Judge McGlynn. Mind you, judge shopping is frowned upon.

From the state’s motion filed on January 26th:

This Court typically consolidates cases into the lower-numbered case, which is typically the earlier-filed case. In this instance, however, the present case was initiated in state court on January 13, 2023—before Harrel, Federal Firearms Licensees of Illinois, and Barnett were filed on January 17, 24, and 24, respectively—and removed on January 23. In comparable circumstances involving removed cases, this Court has consolidated into the higher-numbered case. See Spurgeon v. Pac. Life Ins. Co., 2007 U.S. Dist. LEXIS 106366, *4 (S.D. Ill. Feb. 6, 2007) (consolidating into the higher-numbered case because lower-numbered case may have been removed prematurely). Because this case was the first-filed in any forum, state or federal, Defendant Brendan Kelly respectfully requests that Harrel, Federal Firearms Licensees of Illinois,
and Barnett be consolidated here.

Thomas Maag, attorney for the plaintiffs in Langley, responded on January 27th. He first said:

The Defendant Kelly, who in the experience of undersigned counsel, rarely actually removes cases to federal court, due to the perceived fear of the state that doing so may waive sovereign immunity, did, in fact, remove this case to federal court, obviously thinking this Court a more favorable forum that its own state courts. That is Defendant Kelly’s right, but it is interesting.

Maag goes on to add that the longstanding precedent in the Southern District going back to the time it was part of the Eastern District of Illinois is, with few exceptions, to consolidate in the lowest numbered case which would be Harrel. He notes that the more substantive reason for doing this is to avoid judge shopping. I think a strong argument could be made that this is indeed what the State of Illinois is seeking to do.

He concludes that the plaintiffs in Langley are not taking a position on whether or not to consolidate. However, if consolidation were to occur, it should be “into the lower case number of file in this Court, which is 23-cv-141-SPM” which is the Harrel case.

To conclude, it seems obvious that the State of Illinois is is trying to game the system to get a more favorable judge. While the attorneys in Harrel, Barnett, and FFL-IL have not filed motions objecting to the Illinois motion, it would be my considered guess that they would prefer it be lowest numbered case (Harrel) with the original judge assigned to that case (McGlynn).

UPDATE: See my later post where Chief Judge Nancy Rosenstengel transferred this case and FFL-IL to Judge McGlynn.

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SHOT Show Swag Vipers

January 30, 2023 by

I learned a new phrase this week. It is “swag viper”.

A swag viper is someone who goes to the SHOT Show, vacuums up every bit of swag exhibitors have at their booths, and then puts it up for sale on EBay shortly thereafter. The swag ranges from giveaway caps and T-shirts to limited edition patches to 2023 SHOT Show LaRue Tactical “dillos”.

Below is some of the swag I got at the SHOT Show this year. I didn’t go out of my way to collect patches…much. I did make sure to get a complete set of the hexagonal Tuff Products patches. I know I gave out many more onlygunsandmoney.com patches than I collected.

I saw the Geissele badge holders going for $20 on Ebay. The LaRue Tactical commemorative dillo is still selling for close to $50. The most expensive patch soon after the show was the Liberal Gun Club unicorn patch which was selling for $189. It has fallen in price to “only” $89. Currently, the most expensive thing is 50 Glock giveaway pens going for almost $200.

I collect the patches and other swag as a remembrance of the good times I had at the SHOT Show, the people I met, and the companies I visited. Eventually, all the patches will go on a display board and hung somewhere in the house.

I know when I give out patches it is to remind people of my blog. Likewise, the exhibitors give out patches to attract people to their booth and to thank them for stopping by. Companies like Original S.W.A.T footwear have patch boards and a new patch for each day of SHOT. In that case, it is leave a patch, get a patch. I don’t think any company gives out patches only to see them being resold within hours on Ebay.

I have no problem with someone selling off a patch collection accumulated over the years nor do I have a problem with someone trading a patch or selling a couple here and there. What I do find objectionable are businesses vacuuming up swag only to sell it on Ebay. They go by cutesy names like “nevadatreasures” and “kristiescountlesscollectibles“.

How re-sellers like this get the swag is unknown. I just wish the swag vipers would go away.

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SHOT Show 2023 – It’s The People

January 29, 2023 by

Seeing all the new products being released at SHOT Show is cool. Since I caught the SHOT Show crud during the show and not after it, I didn’t get to see as much as I usually did. Nonetheless, what I really enjoy most about going to the SHOT Show is reconnecting with old friends and making new ones.

I’m not the best at taking selfies but others are. I ran into Charlie Chambers who I first met at a Gun Rights Policy Conference at Range Day. He was there with Amanda Suffecool and Rob Campbell of Eye on the Target Radio. This was taken early in the day before the rain arrived and the wind picked up.

Then there are the people you run into in the Media Room. In this case it was Charlie Cook of Riding Shotgun with Charlie and John Petrolino of BearingArms.com. As Charlie noted, all three of us were recipients of the Second Amendment Foundation’s Ray Carter Blogger of the Year Award.

Thursday was interesting as lunch and then dinner ran the political spectrum from Right to Left. Lunch was with Paul Valone and his wife Lori of Grass Roots North Carolina along longtime GRNC volunteer Josette Chmiel. Paul is the author of the book Rules for Anti-Radicals which deals with defeating leftism.

L-R: Me, Paul, Josette, Lori

Thursday evening I swung to the opposite end of the political spectrum when I had dinner with people from the Liberal Gun Club. Beyond the wonderful food at Bouchon, I had a great time reconnecting with Lara and Ed Smith and trainer/revolver guru Grant Cunningham. Grant was at the SHOT Show representing Lubriplate which makes non-toxic firearm lubricants (among many other things). It had been years since I had seen Grant face-to-face so it was really fun to catch up with him.

Finally, there is my old friend Michael Bane. I ran into him at Range Day where he introduced me to James Tarr. Later that evening, I had dinner with Michael and his “sweetie” along with Paul Erhardt and one person whose name I still don’t remember. The Complementary Spouse insisted I get a picture. Unfortunately, I forgot. Fast forward to Thursday when Michael was doing the giveaway for a customized Tisas 10mm 1911 at the SDS Imports/Tisas booth. His “sweetie” was kind enough to take this picture of us and the Complementary Spouse was pleased.

There were a lot more people I ran into at SHOT than I can name without leaving someone out. Despite coming down with the crud and missing a day of the show because I stayed in bed, it was a good trip and it was the people that made the trip.

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Henry Repeating Arms Steps Up

January 27, 2023 by 6 Comments

Henry Repeating Arms, makers of some of the nicest lever action carbines, rifles, and shotguns on the market today, has stepped up its support for Second Amendment groups. As part of their “Guns for Great Causes” charitable campaign they presented checks totaling $75,000 to the Second Amendment Foundation, Firearms Policy Coalition, and Gun Owners of America at the recent SHOT Show.

Henry VP Dan Clayton-Luce presents check to SAF
Henry VP Dan Clayton-Luce presents check to GOA
Henry VP Dan Clayton-Luce presents check to FPC

The founder and CEO of Henry Repeating Arms had this to say regarding the donations:

“Henry Repeating Arms will never back down when it comes to supporting the individuals and organizations that work tirelessly to fight back against the political degradation of law-abiding Americans’ right to keep and bear arms,” said Anthony Imperato, CEO and Founder of Henry Repeating Arms. “Just like our Constitution, these organizations belong to and for the people. They have our backs, and we will always have theirs.”

I never had shot a Henry before Range Day. I got to shoot one of their side-gate loading lever actions in .360 Buckhammer. I was impressed with how smooth it was to throw the lever-action on that carbine. It was like cutting through butter. It was much smoother than a Rossi I shot later that morning.

I think it is instructive where Henry Repeating Arms put their money in the fight for the Second Amendment. While all three are national groups, they aren’t that other national group. I think the industry as a whole is wising up and putting their contributions where it will do the most good for gun rights.

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No Endorsements For NRA Board

January 26, 2023 by 3 Comments

I received my ballot for the 2023 NRA Board of Directors election in today’s mail. Unlike in past years, I will not be making any endorsements. Let me explain my reasoning.

First, there are no petition candidates running for the Board in this election. Every candidate – good, bad, or indifferent – is on the ballot thanks to the efforts of the Nominating Committee. Everyone has been vetted to some extent and is considered “safe”. The committee is chaired by the ultimate insider and “Friend of Wayne” Kayne Robinson. The vice-chair is Janet Nyce who, if you attended the 2022 Meeting of Members will remember, declared those of us who want reform as “the enemy within”.

Second, while I will probably vote for a couple of people on the list that I know fairly well, any endorsement from me would be counter-productive to their chances. My reporting on the NRA’s troubles has earned me no friends in Fairfax and my endorsement would make them suspect if elected.

Third, it just doesn’t matter. One potential reformer or even two will be ostracized by the rest of the Board. I have heard how good people like Judge Phil Journey and Frank Tait have been treated like something the dog dragged in by the rest of the Board. The shameful juvenile conduct of the majority of the Board is disgusting. Moreover, you have elderly hacks like Walt Walter re-nominated while an accomplished attorney like Graham Hill was not re-nominated thanks to hostility towards him by Kayne Robinson.

If change is going to come to the NRA – and it will – it will be from outside. It will either come from a Bankruptcy Court as Rocky Marshall postulates or it will come as a result of the New York Attorney General’s lawsuit. People who think the NRA is going to win in court in Manhattan are willfully ignorant. Anyone who has followed the trial knows that things are not going that well for the NRA. The only thing that might be considered a win is that dissolution has been taken off the table by Judge Cohen. Add in the NRA’s incomprehensible decision to ask for a jury trial in Manhattan and you know it won’t go well.