I came across this interesting cartoon on Reddit this morning. If you are deluded enough to presume that our Founders never intended for the Second Amendment to cover modern arms and it was only to cover arms in use as of 1791, then this is for you.
I would also note that despite what President Joe Biden asserts, we could always own cannons. Thus, have a cannon loaded with grapeshot would be perfectly acceptable to the Founders.
After viewing this short little video, those who contend only muskets and the like are covered by the Second Amendment might want to change their minds. The bodily damage done by the older weapons would try the skills of even the most accomplished trauma surgeon.
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.
“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.
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.
Today was the last day of the October Term of the Supreme Court. Justice Breyer retired effective 12 noon today and we now have Justice Ketanji Brown Jackson as the most junior Associate Justice. Replacing one liberal with another liberal will not change the Court. Unless I am mistaken, about the only thing that may change is that in cases where Justice Sotomayor was the sole dissenter she probably will now have a co-dissenter. I almost said co-conspirator. Oops.
The impact of NYSRYPA v. Bruen was felt today on a number of cases. Four cases were granted certiorari, the judgement of lower courts vacated, and were remanded to lower courts for reconsideration in light of the Bruen decision. (It is kind of weird that we now refer to this case by the loser’s name and not that of the winner.)
Two of the cases involved restrictions on magazine size. This includedAssociation of New Jersey Rifle and Pistol Clubs et al v. Brunk et alwhich was remanded to the 3rd Circuit for reconsideration. This was both a Second Amendment and a Takings case. The other case is Duncan et al v. Bonta et al which was remanded to the 9th Circuit Court of Appeals. This case was originally a win in the 9th Circuit until it was reversed En Banc.
As would be expected, Young v. Hawaii, a carry case, is being remanded to the 9th Circuit for reconsideration. This case directly challenged the 9th Circuit’s ruling that there was no right to carry a firearm outside the home.
The fourth case is remanded to the 4th Circuit Court of Appeals and involved the State of Maryland’s ban on modern sporting rifles. Bianchi et al v. Frosh sought to determine whether they could be said to be “arms in common use” which I would argue that they are. This case was brought by the Firearms Policy Coalition among other. Congratulations to Adam Kraut who was one of the attorneys on this case.
In addition to these cases, both challenges to the bump-stock ban are still surviving. Neither have been granted certiorari nor have they been denied it. These cases are Aposhian v. Garland out of the 10th Circuit and Gun Owners of America et al v. Garland et al in the 6th Circuit. In another bump-stock case, the 5th Circuit issued an order vacating Cargill v. Garland et al and ordering an En Banc rehearing. They did this on June 23rd after the Bruen decision.
Finally, the Court ruled against the EPA in West Virginia et al v. EPA et al. This case involved the power of an agency to make rules. The Court said an agency must point out to where Congress gave them clear authorization to make rules. This is considered a “major questions” case which means courts should not defer to agency interpretation where there is “vast economic or political significance.” Applied to the Bureau of Alcohol, Tobacco, Firearms, and Explosives, this could impact the forthcoming rule redefining a receiver and other things. I have only read the syllabus of this case so will have to dig deeper.
Todd Vandermyde and I have had multiple conversations regarding the Supreme Court this last few months. Todd, for those that don’t know him, was the NRA’s lobbyist in Illinois for many years. He also coordinated with NRA-ILA on bringing cases at the state and Federal level against restrictions in the Prairie State. Don Moran, former president of the Illinois State Rifle Association, once told me that the reason Todd was successful in Springfield is that he knew the gun laws better than anyone and could quote any section of the laws verbatim at will.
Todd has been reading the tea leaves in NYSRPA v. Bruen from the oral arguments. He found some interesting things in them especially with regard to comments by Chief Justice John Roberts.
Todd lays out his thoughts in the YouTube below. While we are waiting for the decision, this gives some things to think about and to look for in the final decision.
Officially or unofficially, today is 2A Day or National Second Amendment Day. That is because the date is 2/22/22 or all two’s when written that way.
Brownells has set up a separate website to celebrate the day. They suggest three ways to commemorate the day. They are to celebrate it by going out shooting, advocate for the Second Amendment by contacting legislators, and by joining 2A organizations. In North Carolina, they suggest Grass Roots North Carolina and I heartily endorse that suggestion.
Brownells is also putting their money where their mouth is.
The third element of the Inaugural National 2nd Amendment Day is a calling on gun owners to join a national and/or state-level gun rights organization. Brownells will promote Firearms Policy Coalition (FPC), Second Amendment Foundation (SAF), and the American Suppressor Association (ASA) on its website. Brownells will also feature a clickable map of the United States visitors can use to find a state-level organization to join.
In the spirit of joining, Brownells will purchase FPC memberships for its employees, and donate $22,222 each to FPC, SAF, the ASA, and the Iowa Firearms Coalition.
As an aside, I would point out there is an organization missing from this list for which Brownells’ Chairman of the Board Pete Brownell used to serve as president. Just saying.
National Second Amendment Day is not just Brownells. The DC Project produced the powerful video below featuring Lucretia Hughes, Georgia delegate, and Mary Forgues, Connecticut delegate.
I know many of the women in the DC Project and this is another organization that is definitely worthy of your support.
If you do go to the range today or participate in a shooting sport, make sure to post pictures to social media and use the hashtag #2ADay.
Judge Lawrence VanDyke wrote the court’s opinion in McDougall v. Ventura County (California). It was a recent 9th Circuit Court of Appeals decision that found Ventura County’s public health order closing of gun shops, ammo stores, and shooting ranges for 48 days violated the Second Amendment.
Judge VanDyke was appointed to the 9th Circuit by President Donald Trump. He had previously served as the Solicitor General for both the states of Montana and Nevada as well as Assistant Solicitor General for Texas. VanDyke earned undergraduate and graduate degrees in engineering before attending Harvard Law School.
Judge VanDyke did something quite unusual. He actually wrote a concurring opinion to the court’s opinion that he himself had written.
Why, you ask, would a judge write a concurring opinion to his own opinion? VanDyke, knowing that virtually all Second Amendment wins in the 9th Circuit get overturned en banc by the court, wanted to point out the absurdity of those opinions by giving the court a draft en banc opinion.
Given both of these realities—that (1) no firearm-related ban or regulation ever ultimately fails our circuit’s Second Amendment review, and (2) that review is effectively standardless and imposes no burden on the government—it occurred to me that I might demonstrate the latter while assisting my hard-working colleagues with the former. Those who know our court well know that all of our judges are very busy and that it’s a lot of work for any judge to call a panel decision en banc. A judge or group of judges must first write a call memo, and then, if the en banc call is successful, the en banc majority must write a new opinion. Since our court’s Second Amendment intermediate scrutiny standard can reach any result one desires, I figure there is no reason why I shouldn’t write an alternative draft opinion that will apply our test in a way more to the liking of the majority of our court. That way I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jumpstart on calling this case en banc. Sort of a win-win for everyone.
The real beauty of VanDyke’s concurrence lies within the footnotes where he gives his snarkiness free rein.
You have gems like this:
We refer to strict scrutiny as a theoretical matter—a thought-experiment, really. Our court has never ultimately applied strict scrutiny to any real-life gun regulation.
And this:
Here’s the deal: Whenever we think the history helps us in upholding the challenged regulation, we’re happy to rely on it in step one of our test. See, e.g., Young, 992 F.3d at 784–826. But most of the time the history either doesn’t help us uphold the gun regulation, is indeterminate, or is just really hard to evaluate. So usually we just skip over step one of our “two-step” test by assuming the challenged regulation burdens Second Amendment-protected conduct. But that’s okay, because the real beauty of our two-step test is its amazing flexibility at the various stages of step two in balancing the government’s asserted interest versus the claimed impact on the “core” of the Second Amendment.
And another one:
The first prong is always met in Second Amendment cases. Guns are dangerous, after all, so the government’s interest in ameliorating such danger is always important. At first we were worried this case might be a problem, because the regulations here don’t really have any nexus to the dangerousness of guns. But COVID-19 is dangerous too, so that substitutes in nicely.
And his concluding footnote:
Again, it doesn’t matter much what we say here. Once we’re allowed to effectively balance competing interests under our Second Amendment intermediate scrutiny, it’s so easy justifying a regulation that we could easily just delegate this part of the opinion to our interns.
VanDyke ends his concurrence by saying” You’re welcome.” I’m sure this won’t endear him to some of his fellow judges on the 9th Circuit but I don’t think he gives a damn. From what I can tell, VanDyke’s dissents have really irritated the liberals on the court for which I say, “Good!”.
As you put on your shoes this morning, remember St. Crispin who is the patron saint of shoemakers as today is the feast of St. Crispin.
You may know the name Crispin for another reason. It was the eve of St. Crispin’s Day when Henry V delivered his band of brothers speech to the English before the Battle of Agincourt. That is, at least according to William Shakespeare.
I think of the battle for the Second Amendment and the fight to secure our God-given rights. When you get down to it, those of us down in the trenches fighting for your rights are like the English before Agincourt. They were facing the French who had just had reinforcements. Likewise, we face anti-rights groups who are flush with cash provided by billionaires with their own armed security details. So if you are in the battle for the Second Amendment, you are my brother (and sister).
In Orders of the Court released this morning, the Supreme Court granted certiorari in NY State Rifle and Pistol Association v. Corlett et al. This is a case that challenges New York’s requirement to show cause for issuance of a carry permit.
20-843 NEW YORK STATE RIFLE, ET AL. V. CORLETT, KEITH M., ET AL.
The petition for a writ of certiorari is granted limited to the following question: Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.
The court will hear the challenge to a century-old New York gun control law in the term that begins in October. It is considering a law that requires those who seek a permit to carry a concealed weapon show a special need for self-defense. It is similar to laws in Maryland, Massachusetts and elsewhere that the court in the past has declined to review.
The individual plaintiffs in the case – Robert Nash and Brandon Koch – have permits to carry outside the home for hunting and target practice purposes. However, they were turned down when they requested carry permits for self-defense.
It takes four justices to agree to take a case. Last year, the court turned down a number of Second Amendment cases. The operating consensus was that the conservatives on the court were unsure of where Chief Justice John Roberts would come down. Now, however, with the addition of Justice Amy Coney Barrett, that has changed and there are five potentially reliable Second Amendment votes.
Assuming that the court agrees that there carry outside the home for self-defense is a key component of the Second Amendment, Chief Justice Roberts will have a hard decision. If he goes along with the majority, he gets to assign the opinion or reserve it for himself. If he is in the minority, then the assignment choice goes to the longest serving Associate Justice in the majority. In this case that would be Justice Clarence Thomas who has telegraphed many times his frustration with the court’s refusal to treat the Second Amendment as any thing other than a second-class right. Part of me hopes that Roberts is in the minority because that means a stronger decision in favor of the Second Amendment.
Alan Gottlieb of the Second Amendment Foundation issued a strongly worded statement today on the Supreme Court’s denial of certiorari in virtually every Second Amendment Case before it. The only case that touches on the Second Amendment remaining is Rodriguez v. San Jose. Given that property was taken by the police and not returned, you could easily make the argument that it was a takings case and not a 2A case.
“The Supreme Court’s refusal to take a Second Amendment Foundation case falls squarely at the feet of Chief Justice John Roberts.
“He owes every gun owner in the United States an explanation about why the high court declined to hear a number of important Second Amendment cases.
“Given the fact that the Supreme Court had a cafeteria-style menu of cases from which to choose, there is no excuse why the court at this time chose to ignore the need to rule on any of these cases, and send a message to lower courts that they can no longer thumb their noses at the Heller and McDonald Supreme Court decisions affirming the individual right to keep and bear arms.
“There is still one more case pending cert before the high court that was filed by the SAF. It is known as Rodriguez v. San Jose, a firearms confiscation case out of the State of California.”
Alan is 100% correct. This needs to be laid at the feet of John Roberts. One does wonder what sort of blackmail material that the Obama Administration and/or the liberal wing of the Court has on him that he has gone so wobbly. It is either that or a pathetic need to be loved by the mainstream media elites.
He wants the “Roberts Court” to be respected. However, the Chief Justice should remember that respect is earned and not given. He sure as hell didn’t earn any respect today.
In a time when there is unrest in our streets and the pandemic has led to an increase in crime in many locations, the need for the Court to reaffirm its rulings in Heller and McDonald was now.
They had 10 chances and they blew every bloody one of them.
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