Duncan V. Becerra: A Win In The 9th Circuit

A three judge panel of the 9th Circuit Court of Appeals handed down a win today for the Second Amendment. In a 2-1 decision, the court found that the California ban on standard capacity magazines failed to pass the two part test and thus contravened the protections of the Second Amendment. They affirmed Judge Roger Benitez’s original ruling in Duncan v. Becerra. His ruling had been partially stayed pending this appeal.

As with all Second Amendment wins in the 9th Circuit, I fully expect that this case will go to an en banc hearing. It will either be granted on the request of one of the other judges sua sponte or on appeal by California. In the meantime, this is a win to be savored.

Below is a synopsis of the court’s 81 page opinion and dissent. The opinion was written by Judge Kenneth Lee and was joined by Judge Consuelo Callahan. Chief Judge Barbara Lynn of the Northern District of Texas, sitting by designation, was the dissenter. Judge Lee, a native of South Korea, was appointed by President Trump to fill the seat left open by the death of liberal icon Judge Stephen Reinhardt.

The panel affirmed the district court’s summary judgment in favor of plaintiffs challenging California Government Code § 31310, which bans possession of large-capacity magazines (“LCMs”) that hold more than ten rounds of ammunition; and held that the ban violated the Second Amendment.


The Ninth Circuit employs a two-prong inquiry to determine whether firearm regulations violate the Second Amendment: (1) whether the law burdens conduct protected by the Second Amendment; and (2) if so, what level of scrutiny to apply to the regulation. United states v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)

The panel held that under the first prong of the test, Cal. Penal Code § 32310 burdened protected conduct. First, the panel held that firearm magazines are protected arms under the Second Amendment. Second, the panel held that LCMs are commonly owned and typically used for lawful purposes, and are not “unusual arms” that would fall outside the scope of the Second Amendment. Third, the panel held that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness. Fourth, the panel held that there was no persuasive historical evidence in the record showing LCM possession fell outside the ambit of Second Amendment protection.


Proceeding to prong two of the inquiry, the panel held that strict scrutiny was the appropriate standard to apply. First, the panel held that Cal. Penal Code § 32310 struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home. Second, the panel held that Section 32310’s near-categorical ban of LCMs substantially burdened core Second Amendment rights. Third, the panel held that decisions in other circuits were distinguishable. Fourth, the panel held that this circuit’s decision in Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015), did not obligate the panel to apply intermediate scrutiny.


The panel held that Cal. Penal Code § 32310 did not survive strict scrutiny review. First, the panel held that the state interests advanced here were compelling: preventing and mitigating gun violence. Second, the panel held that Section 32310 was not narrowly tailored to achieve the compelling state interests it purported to serve because the state’s chosen method – a statewide blanket ban on possession everywhere and for nearly everyone – was not the least restrictive means of achieving the compelling interests.


The panel held that even if intermediate scrutiny were to apply, Cal. Penal Code § 32310 would still fail. The panel held that while the interests expressed by the state qualified as “important,” the means chosen to advance those interests were not substantially related to their service.


Chief District Judge Lynn dissented, and would reverse the district court’s grant of summary judgment. Judge Lynn wrote that the majority opinion conflicted with this Circuit’s precedent in Fyock, and with decisions in all the six sister Circuits that addressed the Second Amendment issue presented here. Judge Lynn would hold that intermediate scrutiny applies, and Cal. Penal Code § 32310 satisfies that standard.


Give Ian McCollum A Cameo In Next John Wick Movie!

A Change.org petition has been started to give Ian McCollum a cameo appearance in the next John Wick movie. I signed it a few days ago before I even saw this video. When I signed it, they were looking for 5,000 signatures. Now they stand at 65,000 signatures and are seeking 75,000.

In the video below, Ian makes some great points about why he should be considered for a role in the movie.

You can sign the petition here! Do it and do it now!

Who would you rather see in the movie – some boring old Hollywood hack or Gun Jesus? Heck, I might even go to the theater to see the movie is Ian was in it and I haven’t been in a movie theater in literally 20 years.

Neal Knox – “NRA Restored To Proper Course”

Preface by Chris Knox:

The Cincinnati Revolution

The gathering storm over whether and how NRA should fulfill its role as “the gun lobby” came to a head at the organization’s 1977 convention in Cincinnati when, operating under long-ignored Bylaws and New York not-for-profit corporation law (NRA is chartered in New York), a loose-knit organization of members that dubbed itself “The Federation for NRA” wrested control of the organization from the “Old Guard” NRA establishment. The man who moved the Bylaw changes that re-made the Association was Neal Knox.

Knox’s motions were far from a solo act. Reform-minded members had gathered for this meeting from across the country and rebel Board members, including Ed Topmiller and Harlon Carter, provided tactical advice.

Nor had Knox sought the lead role. In a planning session prior to the meeting he looked to the core of the reformers to appoint a speaker. They pointed back at him as the most recognizable name and face. Knox’s columns and editorials on NRA over the previous half-dozen years had brought many of the delegates to the meeting. Knox refused the appointment. But Bill Greif, a blunt-spoken New Yorker hustled him into a corner and growled into his good ear, “Enough of this democracy shit, Neal! Tonight we need Napoleon and you’re it!

In a raucous meeting that lasted a full eight hours—until past four in the morning—the members replaced most of the officers with candidates who were less squeamish about involving NRA in politics, and elected Board ally Harlon Carter as Executive Vice President (EVP). Under the newly-passed Bylaws, the redefined post of EVP, now functionally a Chief Executive Officer, would be elected directly by the members gathered at the Convention.

The members also passed Bylaw amendments that dissolved the Management Committee, and created a petition process to nominate Board candidates. Other Bylaw amendments strengthened the NRA Institute for Legislative Action, the lobbying arm, by making the ILA Executive Director report directly to the EVP on a co-equal basis with the Director of General Operations. The ILA Director had previously reported to General Operations. Other new Bylaws provided that only the members could change certain sections of the Bylaws which would be printed in boldface type. For the first time in living memory, the members had a genuine say in the affairs of the Association.

Satisfied that his work was done, Neal returned home to Prescott, Arizona and to his magazines. Within weeks Carter asked him to come to Washington and head ILA. He refused. As he told Harlon, he had every boy’s dream job: he drove a company-provided 4-wheel-drive truck to work, flew the company twin-engine plane to shooting matches and hunting trips, and he got to play with the best new toys the firearms industry had to offer. Why would he want to go to Washington where he would have to commute through Washington traffic and wear a suit and tie to work?

Nonetheless Knox and Harlon Carter were in near-daily telephone contact. Finally, late in 1977, Carter prevailed on him to head ILA. He planned to stay in Washington no more than two years, never dreaming that he would never live outside the Washington area again.

NRA Restored to Proper Course

Handloader July-August, 1977


The National Rifle Association rests in the hands of its membership. At the May 21, 1977 annual members’ meeting a well-organized, determined group of delegates from organizations across the country—the Federation for NRA—deposed almost all the top officers, placed moratoriums on the National Outdoor Center and planned sale of the Washington Headquarters, provided for member nominations of Directors, and elected Harlon B. Carter as Executive Vice President, placing him over all NRA operations.

The Federation’s program was strongly supported by the more than 1,100 Life Members who had registered to vote and more than 1,000 other Life and Annual members—the largest-ever attendance at a members’ meeting. Those members came to Cincinnati deeply disturbed about the reports of serious problems within NRA, which had appeared here, in Gene Crum’s articles in Gun Week, and elsewhere. They were determined to discover whether the allegations were true—and to take corrective actions if they were. During their reports the officers charged that the allegations against them were lies and distortions. First Vice President lrvine Reynolds said the articles were “propaganda that make Hitler look like a piker.” Although not mentioning the writers by name, President Merrill Wright did mention the title of a Rifle article, which gave your editor the right to respond—which I did, challenging specific false statements made by the officers. When several members demanded that my charges be answered,Wright declined.

Then Institute for Legislative Action Executive Director Bob Kukla, in an extremely courageous act, confirmed that the independence of ILA, and its effectiveness in fighting repressive gun legislation had been threatened by the Management Committee, composed of the three top officers. As proof, Kukla played an openly recorded tape of the February 26 Management Committee meeting in which he was criticized for ILA’s opposition to Smith & Wesson’s proposal for national handgun licensing, and ILA’s opposition to the National Education Association’s anti-handgun position. Kukla’s evidence convinced the neutral members of the seriousness of the problems within NRA; although relatively few members in the meeting had known of the Federation’s reform program, they supported it overwhelmingly.

Some Directors were outraged by many of the members’ actions—especially the removal from office of First Vice President Reynolds, Second Vice President Alonzo Garcelon, Executive V.P. Max Rich,V.P.-Finance Tom Billings and Executive Council members C. R. Gutermuth and Fred Hakenjos (Wright was exempted by floor amendment since he had but two days to serve, but he was not elected by the Board to the traditional Executive Council post for past presidents). Although there was much private discussion of legal action to attempt to set aside what the members had done, there was no overt action. However, the Board did adopt a resolution to restore Gutermuth and Hakenjos to the Executive Council on the grounds that the members didn’t have the legal authority to remove them. Also, the Board treated the deposed paid officers much more generously than the treatment given the 74 employees fired and “early-retired” last fall—instead of normal severance pay, Billings was voted $20,000, and Rich was given his full $50,000 per annum pay through December 31, 1977.

There were other indications that numerous Board members are unwilling to accept the members’ actions as a mandate, contending that the members present represented only .5 percent of the voting membership—ignoring the fact that many, particularly those wearing the blaze orange hats of the Federation, came to Cincinnati as delegates of organizations with hundreds and thousands of NRA members. However, as the members wished, the Board did provide that ILA’s basic overhead will be funded from member dues—which have been raised to $15.

The question of the full membership’s opinion of these events will not be resolved until the next election of Directors, when the Federation intends to sponsor a slate of petition-nominated candidates selected by the member organizations of the Federation. (That slate may include some present Board members, but it will not include your editor.) For the first time in years, the members will have a choice of candidates—no longer will there be 25 names for 25 offices, a traditional practice which has made the members’ ballots meaningless. The mere existence of a means for members to elect—or fail to elect—Directors will have a profound impact upon NRA policies, for present and future Directors will be certain to be more mindful of the wishes of the members, thereby avoiding the creation of even more new organizations set up by NRA members to do what the membership wants NRA to be doing—and avoiding future turmoil of the sort that led to the membership meeting at Cincinnati. The representative form of government which now exists within the Association assures that all member interests will be represented, and that the one strong cord that binds NRA together—the love of firearms and shooting in all its varied forms—will make the organization what it ought to be: the world’s most powerful association of gun owners.

And under the leadership of the new officers—President Lloyd Mustin,Vice President John Layton, Executive Vice President Harlon Carter and ILA Executive Director Bob Kukla—that is what it will be. As the new NRA emerges, it will grow in strength and unity, and more than anything else, the evidence of that new vigor will heal the wounds inflicted at Cincinnati—for few NRA members have a greater love of NRA, or a grander vision of NRA’s greatness as a gun organization, than some of the very officers who were deposed at Cincinnati. We never questioned their motives, only their methods.

As Harlon Carter said in his memorable speech at the membership meeting: “Let us put the past behind us. We go forward from here!”

Amen!

Used with permission.

Knox, Neal. Neal Knox – The Gun Rights War: Dispatches from the Front Lines 1966 through 2000 . MacFarlane Press. Kindle Edition. Location 5300-5346.

Neal Knox – The Gun Rights War: Dispatches From The Front Lines 1966-2000

Philosopher and historian George Santayana wrote in 1905 that “Those who do not remember the past are condemned to repeat it.” In that spirit, I thought it would be useful to readers to revisit some of the history of the National Rifle Association starting with the Cincinnati Revolt and going up through the late 1990s. It was in the late 1990s that Wayne LaPierre cemented his role as Executive Vice President of the NRA and effectively stifled any future efforts to remove him.

This history is not unbiased as it comes from the writings of the late Neal Knox. He was one of the architects of the Cincinnati Revolt, served as head of NRA-ILA, was a NRA Board member, was its 1st Vice President, was the man who first hired Wayne LaPierre as a lobbyist, and later became his chief antagonist. Neal was also a gun writer and publisher. He was the founding editor of Gun Week (now The GunMag), was the editor of Wolfe Publishing’s Handloader and Rifle magazines, and later had a column in Shotgun News (now Firearm News). This archived post from Gun Week gives more of Neal’s life and work.

Neal’s son Chris compiled a number of his articles and other written work into a book entitled Neal Knox – The Gun Rights War: Dispatches from the Front Lines 1966-2000. The book was first published in 2009 and then re-released with some updates in a Kindle format in 2019. Chris edited the book and also provided some necessary annotations to put stuff in context.

Through the gracious permission of Chris and Jeff Knox, I will be reprinting selected chapters from the book as it relates to the NRA. I’ll be doing this on an occasional basis so as to spread it out.

It is my belief that knowing some of this history will allow readers to better understand the current NRA, its problems, and what has led to it being sued by New York Attorney General Letitia James. The problems that she points out in her lawsuit didn’t just happen and it is important to realize that.

New Location For 2020 NRA Annual Meeting

Springfield is out and Tucson is in. The new location for the mandatory 2020 NRA Annual Meeting of Member is Tucson, Arizona on October 24th. The meeting is mandatory due to the bylaws.

An email was sent out today to the candidates for the 76th Director from John Frazer, Secretary and General Counsel of the NRA.

“Dear NRA Board candidate:

The Meeting Site Selection Committee met on Tuesday, August 11, 2020, for the purpose of deciding upon the date and location of the rescheduled 2020 Annual Meeting of Members. The Committee unanimously voted to hold the 2020 Annual Meeting of Members on Saturday, October 24, 2020, starting at 9:00 a.m. local time, in the Kiva Ballroom of the Loews Ventana Canyon Hotel in Tucson, Arizona.

Official notice of the meeting will be published in the NRA magazines and on NRA websites.

Balloting for the 76th Director seat will be held in conjunction with the meeting. Further information about the voting location and hours will follow separately in the near future.

We appreciate your patience throughout this challenging process.

Sincerely,

John”

Of course there is a conflict on that date. The 2nd Annual Rally for your 2A Rights is also scheduled for Saturday, October 24th in Washington, DC. The NRA has a “not invented here” mindset, for the most part, when it comes to other 2A activism. This was seen in Richmond back in January. The NRA held a “Lobby Day” in the State Capitol a week ahead of the long scheduled VCDL Lobby Day

Looking over the Loews Ventana Canyon Hotel website, the Kiva Ballroom can hold at most 1,000 people in normal times. What becomes interesting here is that there is a currently in-force Executive Order from Gov. Doug Ducey (R-AZ) that limits public gatherings to 50 people.

The hotel itself seems very nice. For almost $200 a night it should be nice.

The downside is that it is 18-20 miles away from the airport and a half hour plus drive depending on traffic.

I have fully planned to go to the meeting in Springfield. I had my ticket and my room. Now I am going to have to do some recalculating.

One things for sure – it’s a heckuva lot easier to get to Tucson if you are part of the California NRA Members’ Councils than it is for us folks on the East Coast. It is not named the “Sinister Coast” for no reason.

UPDATE: I have been told by Todd Rathner, who is a Board member and Tucson resident, that the Board of Directors meeting will be on Saturday afternoon. When the meeting was scheduled for Springfield, MO, the Meeting of Members was on Saturday and the Board of Directors meeting was on Monday.

Any committee meetings will be held by phone or Zoom later. Participation in those by non-committee members will be at the discretion of the chairs.

Committee meetings will be held before the Board of Directors meeting on Saturday afternoon. I was just given a correction on that.

Roy Cooper, Brady PAC, And Systematic Racism

I just listened in on a public Zoom webinar with Gov. Roy Cooper (D-NC) hosted by the Brady PAC and the Democratic Governors Association. It featured Cooper, Wendi Wallace of the DGA, Brian Lemak of Brady PAC, and Kris Brown, president of Brady United.

I should note off the bat that the chat function and any way to ask questions was disabled. I imagine that was to prevent any awkward questions from being raised by the audience.

It started with Wendi Wallace who is the Deputy Executive Director of the DGA. She came to them from the Planned Parenthood Action Fund last year. She was praising the efforts of the governors of Nevada and New Mexico to bring more gun control to those states.

The conversation then switched to Brian Lemak and Kris Brown. Among the things they said is they are hoping that with Roy Cooper that they can make North Carolina into the next Virginia. In other words, to impose gun control from on high upon the people of North Carolina. They said they are making North Carolina one of their highest priorities at all levels – Federal, state, and even county commissions.

Finally they allowed Cooper to speak. He welcomed this opportunity to talk about “gun safety”. Cooper then started out by saying the usual boilerplate of I grew up on a farm, I am a gun owner, and I support the Second Amendment. He then segued into his support for “responsible gun laws” and talked about the campus shooting at UNC-Charlotte.

Cooper then went to talk about how Obama carried North Carolina in 2008 but that there was a Republican “backlash” in 2010 which allowed them to take both houses of the General Assembly. Not only that but those Republicans had the temerity to gerrymander the state to keep their seats. This led to the state “going backwards on gun laws”.

He said when he was elected in 2016 that the Republicans still held a super-majority in the General Assembly. Cooper said he had three tools with which to stop “bad legislation”: the bully pulpit, the veto, and executive orders. This is where he noted his veto of HB 652 saying guns didn’t belong in schools. I’m not going into that here with the exception of noting that the bill only applied to schools attached to churches and that no firearm were allowed during school hours including during extracurricular events.

As to executive orders, Cooper said he ordered the State Bureau of Investigation to send over 200,000 more names to the NICS system after it was discovered a number of convictions had not been reported. What he didn’t say and didn’t want the listeners to know is that for most of his tenure as Attorney General of North Carolina (2000-2016), the SBI was under his control. It was only moved from the Department of Justice to the Department of Public Safety in 2014.

Cooper moved on to existing laws including the Jim Crow-era pistol purchase permit law. He said he wanted to expand that law to include “assault weapons”. He thought honest and responsible gun owners would go along with that. Cooper also mentioned his support for red flag laws.

The discussion then moved into more political matters such as mail-in ballots, how the Brady PAC planned to focus on not only Cooper’s race but the race for Lt. Governor, the pandemic, etc. Then Cooper said how he said the fight against “systemic racism” need to be a priority.

This is where I exploded.

What more obvious an example of systematic racism exists than a law specifically passed to prevent African-Americans from having access to handguns, other concealable weapons, and pump shotguns! Historian Clayton Cramer found in his research that the impact of the law was “to grant discretion to local white officials to use their discretion to disarm nearly all blacks and some disreputable whites of deadly weapons.”

All four on the webinar today would have denied that gun control had its origins in keeping African-Americans disarmed. However, the record is what it is and it’s legacy is systematic racism that progressives say they abhor.

As to the rest of the webinar, I couldn’t take any more and turned it off.

Video Tour Of AIM Surplus

When I got started collecting curios and relics in the 1990s, there were a few places that you always checked out. These included Century International, Southern Ohio Guns (SOG), Samco Global Arms, and AIM Surplus. There were other places, of course, but these are the ones I remember the most. The golden days of Conex boxes full of WW2 surplus arms and ammo arriving on our shores constantly have come to an end. Samco and SOG are now gone. Century International is more Caniks and AKs than anything else. That leaves AIM Surplus which, while it still sells some curios and relics, seems to have made the transition to more modern arms and parts earlier than the others.

I came across this video tour of AIM Surplus while cruising Arfcom this afternoon. Having purchased everything from Schmidt-Rubin K31s to PMags from them over the years, I found this guided tour of their operations very interesting.

Wolverines!

On this day 36 years ago, the very first PG-13 movie was released. It was Red Dawn.

I still remember hearing from a friend that he was told the premise was all wrong. The Red Army and the Cubans would have flown into Atlanta on Boeing 747s with Delta markings. The guy who told him this was a survivalist gun store owner who thought they’d make good headway until they hit the mountains of North Georgia and Western NC where, in his mind, there were a ton of survivalists. It still makes a good story.

Eye On The Target Radio

I was a guest yesterday on Eye on the Target Radio with my friends Amanda Suffecool and Rob Campbell. We discussed both the case brought by New York against the NRA and the case brought by DC against the NRA Foundation.

You can listen to them in the embedded player below:


powered by podcast garden

The last time I appeared on their show discussing the NRA and its issues I was followed by NRA 2nd VP Willes Lee. Sadly, if he and his cohorts had only instituted positive changes instead of labeling me a “hater”, I don’t think the NRA would be looking at a potential dissolution or government-imposed monitor for the Foundation.

UPDATE: My part of the radio show begins in the second half. I should have noted that in the beginning.

Quote Of The Day

I read a most interesting article by Anthony DeWitt in Richochet. It concerned the suit brought by NY Attorney General Letitia James to dissolve the NRA. It is entitled “Wayne’s World is Crumbling”.

DeWitt, like many of us, is pretty angry the NRA’s future has been put in jeopardy thanks to Wayne LaPierre and his cronies. As he notes, nothing has been proved yet and it is still a list of allegations. Nonetheless, he is feeling used and abused by Wayne and his crowd of grifters and has no problem with James taking them to task.

The meat of the issue which DeWitt points out is just whom is the victim.

If the smoke proves to be from a fire, and the mirrors turn out to be a true reflection of the leadership of the NRA, then I have no quarrel with her taking on LaPierre and his alleged co-conspirators who have allegedly defrauded the membership. I have no quarrel with her investigation demonstrating that the NRA Board of Directors is little more than a bunch of chained and costumed characters in an S&M bondage flick. But let’s remember, they defrauded the membership, not the state of New York, and the membership is not perpetrator, they’re the victim. What the NY AG proposes is, in fact, just shooting everyone.

DeWitt is correct. The victim here are the 5 million members of the NRA whose dues and donations have provided a very nice lifestyle for a bunch of grifters and hanger’s on.