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Mark Smith Of Four Boxes Diner On Duncan V. Bonta Stay

October 2, 2023 by

Second Amendment attorney, author, and blogger Mark Smith just published an analysis of the questions raised by how the 9th Circuit is handling the emergency stay in Duncan v. Bonta. I discussed the nine page ruling in my previous post and the concerns of Judges Butamay and VanDyke. Smith, however, goes right to the rules for how the 9th Circuit is supposed to handle emergency motions like the one from California. The 9th Circuit has two panels comprised of three judges each who rotate on a monthly basis to handle these situations. Until just recently, the names of these judges would have been published on the court’s website.

Smith goes into much more detail in the 12 minute video below. He raises some very good questions and it would be very interesting to know just who were the judges that should have been assigned to this case.

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9th Circuit – Rules For You But Not For Us

October 1, 2023 by 3 Comments

After Judge Benitez ruled against the State of California on their magazine ban in Duncan v. Bonta, the state filed an emergency motion for a stay pending appeal with the 9th Circuit Court of Appeals. Normally this would have gone to a three judge panel for adjudication. But then again this is the 9th Circuit we are talking about.

Instead it is going to the original en banc panel as a “comeback” which they then granted a temporary stay of Judge Benitez’s ruling. This is the same panel that had ruled against Duncan in 2021. It was appealed to the Supreme Court. After they ruled on Bruen, the 9th Circuit ruling was vacated and the case was remanded to them for proceedings consistent with that decision. They punted it to the District Court, Judge Benitez ruled in favor of Duncan again, and now it is back in the 9th Circuit.

The en banc panel granted the emergency motion for a stay pending appeal. As the dissents make clear, this was highly unusual. Judge Patrick Bumatay said the 9th Circuit should have handled this like any other appeal but didn’t because it involved the Second Amendment. He went on to say that to his knowledge, “no en banc panel of this court has ever handled an emergency administrative stay motion as an initial matter.”

The dissent by Judge Lawrence VanDyke was brutal and should be read in it entirety. Start on page 5 of the decision embedded below. VanDyke had a very unusual background before joining this court. He was the Assistant Solicitor General of Texas and then the Solicitor General for both Montana and Nevada respectively. VanDyke starts off saying he agreed with Judge Bumatay’s concern about the irregularities with the en banc panel taking the case directly. The snark is strong with Judge VanDyke when he said the original panel would only give up control of the case “when it is pried from its cold, dead fingers.”

VanDyke makes the comparison with how the 9th Circuit handles this case with how many courts handled abortion cases pre-Dobbs. The normal rules were tossed out along with the norms of decision making. He called it “abortion distortion” and says the 9th Circuit suffers from the same malady with regard to Second Amendment cases.

Every court has its own rules including deadlines for when an appeal can be filed or an appeals court judge can request an en banc review of the original three judge panel’s decision. Everyone is supposed to follow these rules. That is except the 9th Circuit with regard to 2A cases. After the original three judge panel found in favor of Duncan in 2020, a 9th Circuit judge made the request for an en banc review. That is allowed under the rules but there are deadlines and the deadline for making the request was missed. As VanDyke notes, either the case should have stopped there or the entire court should have made the decision to change the deadline. Neither was done and a backdoor agreement was reached to bring up Duncan to the en banc panel. This was denied to two other cases including one involving the death penalty.

Judge VanDyke said the process used was illegitimate from the start and I would agree. We as a nation are supposed to operate under the rule of law. However, when the rules are freely ignored by the 9th Circuit, or any court for matter, in order to get to the outcome that is desired then the whole concept of the rule of law is brought into question.

H/T Todd V.

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SCI Sues Education Dept; Congress Passes HR5110

September 28, 2023 by 1 Comment

Safari Club International, SCI Bowhunters West Michigan Chapter, and Sportsmen’s Alliance filed suit of September 14th against Sec. Miguel Cardona and the US Department of Education. The suit was brought over the Department of Education’s interpretation of the Bipartisan Safer Communities Act (sic) and how it denied funding of hunter education and archery programs. The groups had warned of their intent to sue in a Notice filed with the department a month ago. Earlier this month, a number of senators, both Democrats and Republicans including some that were sponsors of the BSCA, say that the department is misinterpreting the law.

The lawsuit is asking for declaratory and injunctive relief. The plaintiffs allege that the Department of Education has misinterpreted the Bipartisan Safer Communities Act (sic) and Congressional intent. The “Defunding Policy” violates the Administrative Procedures Act because the interpretation is “arbitrary and capricious”. Further, it violates the APA because the Department of Education failed to provide notice and a comment period in violation of the APA. SCI and the other plaintiffs are asking the court to declare the department’s actions a violation of the APA, to restore ESEA funding to hunter education and archery programs, and to enjoin the enforcement of the Defunding Policy.

As of now, this is still an ongoing lawsuit but Congressional action yesterday may have mooted this lawsuit. The House passed HR 5110, Protecting Hunting Heritage and Education Act, on a 424-1 roll call vote on TuesdayThe lone dissenter was Rep. Veronica Escobar (D-TX). Yesterday, it passed the Senate on unanimous consent voice vote. It has now been sent to President Biden for his signature. Given the vote totals, I doubt even he would veto the bill.

The text of the bill is very simple. Section 2 of the bill states it is the clarification on the use of Federal education funds for certain weapons and related training.

Section 8526(7) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7906(7)) is amended by inserting “, except that this paragraph shall not apply to the use of funds under this Act for activities carried out under programs authorized by this Act that are otherwise permissible under such programs and that provide students with educational instruction or educational enrichment activities, such as archery, hunting, other shooting sports, or culinary arts” before the period at the end.

SCI CEO W. Laird Hamberlin said of the passage, “In an era of partisanship and divided government, the Protecting Hunting Heritage and Education Act is a rare but welcome example of government operating as it should: to serve people, not remote bureaucrats in Washington.”

Todd Adkins, VP for Government Affairs, of co-plaintiff Sportsmens’ Alliance added, ““We’re happy to see Congress come together and wholly reject the Biden administration’s misinterpretation of the Bipartisan Safer Communities Act. It’s something that never should have happened, which is why we took the step of filing a lawsuit to protect our outdoor heritage should congress have failed to act.”

Finally, Jeff Crane, president and CEO of the Congressional Sportsmens’ Foundation, added after thanking Rep. Mark Green (R-TN) and Rep. Richard Hudson (R-NC) for their sponsorship of HR 5110, “It is encouraging to see Congress move quickly to restore ESEA funding for these programs, a clear sign that hunting, fishing, and other sporting traditions remain a non-partisan issue.”

I hate to disagree with Mr. Crane but I think there are a number of leftists in Congress who do not see hunting and even fishing as a non-partisan issue. There is too much money being funneled their way from groups like the Humane Society of the US for it to remain a non-partisan issue.

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Enablers!

September 28, 2023 by 7 Comments

I must have quite a number of enablers among my friends and acquaintances.

First, I was pondering whether to renew my Curios and Relics FFL. I’ve held the license since 1996 and it due for renewal. The pro’s and the con’s made renewing it a toss-up.

On the plus side, while the flood of milsurps from the 90s and early 2000s has dried up, more and more sporting rifles are becoming eligible. The FFL allows me to have eligible firearms shipped directly to my home and I don’t have to pay a transfer fee to an 01 FFL. Further, if I decide to thin out the herd, it will facilitate shipping the firearm to a new owner. Finally, as the Complementary Spouse reminded me, it is only $30 for three years. One argument against renewal meant I could destroy my A&D Bound Book. Unlike a regular dealer, I don’t have to submit my records to the ATF. The other was that I just don’t use it that much anymore.

I put a note up on the C&R FFL mailing list and did get some good advice. The first argument for renewal was that the cost of just one transfer fee paid for the license. The second, from someone who had let his license lapse and then reapplied for it, was that it was harder for the ATF to deny a renewal than to deny a new application. I think this given the Biden Administration’s hold on the ATF is what really convinced me. Thus, my renewal application as well as my notification letter to my local chief LEO went in the mail this morning.

Second, I was undecided if I could make the SHOT Show work in my schedule. While I am now retired from day job and don’t have to worry about missing work, the schedule can still get crowded. I have already planned to attend the Dallas Safari Club Convention and the Safari Club International Convention. The former is being held January 11th-14th while the latter is January 31st- February 3rd. The Complementary Spouse and I had planned to drive to Dallas for the DSC Convention which is a 2-day drive each way. The SHOT Show, if you include Industry Day at the Range, runs from January 22nd through January 26th. I would barely be back from Las Vegas before we hit the road for Nashville and the SCI Convention.

This file is licensed under the Creative Commons Attribution 3.0 Unported license.

I’m not sure my next move was the smartest thing to do but I posted a query on Facebook asking for advice. And advice I got!

Yehuda reminded me that Southwest was having a sale on airfares. Amanda said I’d have FOMO (fear of missing out) if I didn’t come. Ace asked if I was kidding. Rob said it was the social event of the season. Kat wondered why anyone would want to go to Industry Day (it can be a zoo). And Michael was more interested in the fact that I was going to South Africa next June.

The bottom line is that I booked my flight on Southwest (which will disappoint my brother-in-law who is a retired Delta captain) and it was the cheapest I’ve ever seen it. I booked a room at the Flamingo at what seemed an Off the Strip price.

Going or not going was never an issue of cost but getting these bargains certainly helped make my decision. I think missing the Gun Rights Policy Conference this fall and having to miss the NRA Annual Meeting next May also weighed on me. I’ve made a lot of great friends over the years in the gun culture and I like seeing them face to face at events.

All I can say now is that January 2024 is going to be one busy month but it will be worth it.

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2024 NRA Board Nominations

September 27, 2023 by 3 Comments

I received a copy of the NRA Nominating Committee’s list of official nominations for the 2024 Board of Directors election this evening. I cannot say I’m surprised by who is nominated.

There are 28 people nominated for the Board of Directors. Out of these 28 nominees, there are only three who would be new to the Board while the remaining 25 are current directors. Moreover, to illustrate how it is the same people nominated year after year, 23 out of the 25 were also nominated three years ago in 2021. Charles Beers and Rick Ector, current board members, were both first elected in 2023.

The three new nominees are Craig Haggard of Indiana, Susannah Warner Kipke of Maryland, and Gina Roberts of California New Mexico.

Haggard is a Representative in the Indiana House of Representatives representing District 57. According to his official biography, he is a commercial broker, was the NRA field representative for Indiana for six years, and was an aviator in both the Marines and Indiana Air National Guard.

Kipke is the name plaintiff along with the Maryland State Rifle and Pistol Association in the NRA-sponsored lawsuit challenging the post-Bruen restrictions that the Maryland enacted on carry outside the home. She is the wife of Delegate Nic Kipke who represents Anne Arundel County in the Maryland House of Delegates. In addition, she is the owner of Mrs. Kipke’s Secure Gun Storage in Millersville, MD. LinkedIn has her as the senior regional director for Hillsdale College which I assume is a fundraising position.

Roberts has been the California State Director for the DC Project. Unlike the other two candidates, I have met Gina numerous times at the SHOT Show, NRA Annual Meeting, and GRPC. I do know she has been active with the San Diego County Gun Owners. According to her Facebook posts, she is newly employed with Spaceport America, Virgin Galactic’s Gateway to Space, in New Mexico.

Below is the complete list of nominations from the NRA Nominating Committee.

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Microstamping – Myth Vs. Reality

September 26, 2023 by 3 Comments

The gun control industry would have you believe that a code “microstamped” on the head of a firing pin will be at the forefront of crime solving. It is their panacea to “gun violence”.

The Educational Fund to Stop Gun Violence (sic) put together a whole page on microstamping arguing that it ” is a powerful crime-solving tool that can help law enforcement quickly solve gun crimes”. They also assert that it will build trust and prevent gun violence (sic) “within communities most impacted by unsolved shootings and daily gun violence.”

Their page featured this infographic.

You may remember that the state of Maryland thought having a fired piece of brass from every new pistol sold would lead to solved crimes. It was supposed to be the “magic fingerprint”. After spending millions of taxpayers’ dollars over a period of 15 years, Maryland ditched the program without solving one crime. In other words, they bowed to reality and cut their losses.

While the gun control industry and some politicians still hold on to microstamping, the reality is stronger than the myth.

I found this infographic this morning on Reddit and it illustrates the reality of microstamping.

Infographics are powerful tools for conveying ideas and thoughts. To be effective, the information presented does have to be valid. While microstamping sounds good in theory to the uneducated, the reality is that it is a myth being used to promote more gun control.

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Ah, The Power Of Art

September 25, 2023 by 4 Comments

New Mexico has been in the news lately with regard to criminal violence. Gov. Michelle Lujan Grisham’s response was an unconstitutional ban on carry in Albuquerque and Bernalillo County. The US District Court said nope to that when it issued a temporary restraining order.

Given there are a number of effective prosecutorial and law enforcement strategies to deal with the criminal misuse of a firearm, I’m not sure what to make of this project of New Mexicans To Prevent Gun Violence (sic). They are the New Mexico affiliate of States United to Prevent Gun Violence.

I know art has some power. Without it, we would never have had propaganda posters or Stalinist art as in the former Soviet Union. That said, I am skeptical a mural is going to stop a gang banger from doing what a gang banger does. I think the allure of power, status, money, and protecting their so-called territory is a much stronger incentive.

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NY AG Seeks Supplemental Deposition From Willes Lee

September 21, 2023 by 3 Comments

By tradition, Willes Lee should have been the next President of the NRA. Instead, Charles Cotton was given a third term and Willes was replaced as 1st Vice President by Bob Barr. As one might imagine, this did not sit well with Willes. He had been a loyal supporter of the existing regime within the NRA for four years as 1st and 2nd Vice President, had served as the attack dog for the powers that be, had supported the abortive bankruptcy filing as a member of the Special Litigation Committee, and the list goes on. Not only had he been blindsided by the move to keep Cotton as President for a third term but he only found out he was being ousted as an officer when the Nominating Committee report was slipped under his door.

Since his ouster, Willes has take to social media to give his side of the story as well as make teasing remarks about what really was going on. His posts have appeared on Facebook, X as Twitter is now called, and Instagram. I, like others such as NRA In Danger, have been following his posts on an almost daily basis. It was like watching a train wreck and you can’t look away.

You know who else was following his posts on Facebook? The New York Attorney General’s Office and now they want to know more. Yesterday, they filed a motion to compel the “post-note of issue supplemental deposition” of him. The motion makes note of his Facebook postings and how they seem to be at odds with his prior testimony before the US Bankruptcy Court and in his deposition in the New York case. Alexander Mendelson, Assistant Attorney General (of New York), argues that “unusual and unanticipated circumstances” allow a supplemental deposition even though the time for deposition of witnesses has nominally closed. The circumstances that Mendelson refers to are Willes’ Facebook posts and his ouster as an officer. It is argued that this supplemental deposition can be done before the beginning of the trial and this would be better than wasting time on an exhaustive cross-examination during the trial itself.

Mendelson supports this motion with 20 exhibits including past testimony and the deposition by Willes, a compilation of his Facebook posts, an affidavit by the Attorney General’s IT professional who downloaded the posts, and a series of emails between the attorneys. It appears that from reading these emails that the only objections come from the attorneys for John Frazer and Woody Phillips. Interestingly, the NRA’s lawyers from Brewer, Attorneys and Counselors, have not objected. Moreover, given Willes is still a board member they will accept the subpoena on his behalf as well as represent him.

If Judge Cohen approves this motion and I have no reason to believe he won’t, it is going to get interesting. For example, you have Willes complaining about being left off of committees while at the same testifying in his deposition that it was OK for Tim Knight, Esther Schneider, and Sean Maloney to be excluded. Moreover, given the numerous posts complaining about Charles Cotton and David Coy and their roles as heads of the Audit and Finance Committees, you can be sure that his questioners are going to be digging deeper. I just wonder how much that the NRA’s attorneys will be able to prevent from being on the record.

There is a great lesson here for all of us. Don’t put stuff out on social media and expect it to stay private. What you say there lives forever and it will come back to bite you at the worst possible time. As for Willes who normally has multiple daily posts on Facebook, Instagram, and X, he has gone silent since yesterday. Frankly, I’m glad he hasn’t been silent in the past as his comments will force the truth to come to light.

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CBS News And Arms Smuggling To Mexico

September 19, 2023 by 2 Comments

CBS News is running a special investigation into the smuggling of firearms to Mexico. US government officials estimate that the cartels are smuggling 2,000 firearms a day across the Mexican border. The way it works is that the cartels alerts buyers in the US who are not prohibited persons of their needs, they transfer the guns to brokers, and then the guns go to smugglers who take the firearms across the border to the cartels. Buyers are reported to be spread across all 50 states.

To combat this, ATF established Project Thor which ran from 2018 until 2021 according to former Senior Special Agent Chris Demlein. Funding for the project ended with the 2022 budget.

Demlein led the first interagency intelligence project aimed at identifying and dismantling the cartels’ international weapons supply chains across the U.S. Within months of its launch on July 25, 2018, the initiative, known as Project Thor, connected the dots between hundreds of disparate law enforcement cases, uncovering vast networks that give these criminal groups on-demand access to American guns. They briefed hundreds of government officials on their discoveries, including the National Security Council and senior Justice Department leadership.

Below is an inforgraphic created by the DEA to show how the smuggling networks operated.

CBS Investigative Reporter Adam Yamaguchi was allowed by a gun smuggler to show how they hid the firearms in a car. The skeptic in me wonders why the cartels would allow this. The report below goes on to say the firearms are used by the drug cartels to protect their trade in drugs like fentanyl, meth, cocaine, and narcotics. It does make note that there is only one official firearms store in Mexico and it is on a military base. He also speaks of “military grade weapons” without acknowledging the role that diversion of firearms from the Mexican military has played.

His video as seen on the CBS Evening News is here.

The full 22 minute CBS Reports documentary can be viewed here.

The last time CBS News investigated arms smuggling to Mexico they did real journalism. That was back in 2011-2013 and the investigative reporter was Sharyl Attkisson who is long gone from CBS. She won an Emmy for her work exposing the role of ATF in Operation Fast and Furious aka Project Gunwalker. That was where ATF made FFLs sell guns to known gun runners so they could supposedly trace them to Mexico. The problem was that they quickly lost track of the firearms and they were used by cartel gunmen to kill two Federal LEOs plus over Mexican nationals.

Lest we forget, this sad episode was actually uncovered by the combined work of citizen journalists David Codrea and the late Mike Vanderboegh. Eventually Congressional hearings were held, DOJ stonewalled, and then AG Eric Holder was found in Contempt of Congress.

For those whom Operation Fast and Furious aka Project Gunwalker is something new, I suggest searching my blog using the term “Gunwalker”. I had quite a few pages devoted to it. Even better is to go to David Codrea’s “A Journalist’s Guide to Project Gunwalker” and follow his posts from the defunct Gun Rights Examiner. You can also go to Mike’s Sipsey Street Irregulars blog. While posting stopped soon after his death from cancer in 2016, the blog is still online and it can be searched.

It is important to remember that whatever the official justification for Operation Fast and Furious was, the real reason was that the Obama Administration wanted to build support for more gun control. Given the number of ex-Obama Administration officials in the Biden Administration, should we expect any less from them? The mainstream media acts even more like the propaganda arm of the administration now than they ever did in the Obama years.

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Bushmaster Reaches Out To Windham Weaponry Employees

September 15, 2023 by 1 Comment

After the Remington bankruptcy, Bushmaster Firearms was purchased by Franklin Armory (Crotalus Holdings LLC) and moved to Nevada. They are now located in Carson City.

Yesterday, I received an email from Lee Felch who is the Director of Marketing for Bushmaster. He said given the close history between Bushmaster and Windham Weaponry that the company was reaching out with condolences on the closure and possible job offers.

From the attached press release:

It is good to see other companies in the firearms industry reaching out to the Windham Weaponry employees. Furthermore, Bushmaster is not wasting any time in seeking those employees with critical skills to its own success. I’m not sure how many will trade the Sebago Lake region of Maine for the high desert of Carson City but a job is a job.