Dave Hardy’s Presentation At Second Amendment Symposium

Lincoln Memorial University’s Duncan School of Law held a Second Amendment Symposium on January 18th in Knoxville, Tennessee. I would have loved to attend this but I was leaving the next day for the SHOT Show. The symposium featured scholars who represented both the standard model and the collective rights model of the Second Amendment. Representing the standard  model were Clayton Cramer, Stephen Halbrook, David Kopel, and Dave Hardy. The representatives of the collective rights model were Carl Bogus and Robert Spitzer.

Dave Hardy’s presentation has been published to YouTube. While the audio isn’t the best, it is still worth listening to if you are interested in the history of the Second Amendment and what the Founding Fathers intended when they added it to the Bill of Rights.

Dave writes of his presentation:

The theme is that Second Amendment had two independent purposes; one does not control the other. The militia phrase is indeed militia-centric, and the right to arms clause is focused on an individual right. James Madison and the First Congress were trying to satisfy two different constituencies, one of which wanted to protect the militia, the other of which wanted to guarantee an individual right to arms. They chose to appeal to both. This means that the individual right guaranteed is not one only for militia use; they were two separate ideas, and one is not a restriction on the other, anymore than the First Amendment’s guarantee of a right to religious exercise means that its freedom of the press only protects books on theology.

 It will be interesting to read the papers that will come out of this symposium. I have an email in to the LMU Law Review asking when they will be published. I’ll update this when I get a response.

“I’m From The Government And I’m Here To Kill You”

That is the title of Second Amendment attorney Dave Hardy’s new book. It details how Federal negligence and arrogance got people killed and how the perpetrators got away free due to the law. I’ve been reading the book and will post a full review of it in the near future. From what I’ve read so far, I highly recommend it.

However, this post isn’t about Dave’s book but rather about how negligence on the state and local level in California allowed a mentally disturbed and often violent man to kill five people before he himself was killed in a shoot-out with police. The murders happened earlier this week in Rancho Tehama Reserve. In addition to the murders, this mad man shot up the local elementary school wounding one student.

The murderer was out of jail on bail from an assault in January where he had been charged with a total of five felonies and two misdemeanors. At the time he was released on bail, the judge in the case ordered him to surrender his firearms and had issued a protective order which barred him from “owning, possessing, purchasing or attempting to purchase firearms.” He had certified to the court that he had turned in his firearms to the custody of a local gun shop.

At the time of his shootout with police, the murderer was found to be in possession of two semi-auto rifles which seem to have been made by him as well as two handguns registered to someone else.

As reported by the Orange County Register, police were called to his residence many time between January and this week’s murders. However, he always refused them entrance.

Why were police called to his residence?

At a tense news conference Wednesday, police conceded that neighbors had repeatedly complained about (the murderer) firing hundreds of rounds from his house.

Tehama County Assistant Sheriff Phil Johnston said authorities responded to calls several times, but the 44-year-old (murderer) wouldn’t open the door, so they left.

“He was not law enforcement friendly. He would not come to the door,” Johnston said. “You have to understand we can’t anticipate what people are going to do. We don’t have a crystal ball.”

So you have neighbors reporting that a prohibited person is having target practice in his yard and the local law enforcement does nothing about it. Let me repeat that he was out on bail awaiting trial on five felonies and had a protective order against him banning his possession of any firearm.


As law professor Laurie Levenson of Loyola Law School makes clear below, they didn’t need his permission to enter.

“You can have probable cause even if officers don’t see a gun or hear shots,” she said. “They do not have to see the suspect with the weapon if all the circumstantial evidence indicates that he is violating the orders.”

Levenson said officers don’t even need a warrant to search a suspect’s home if they believe the caller and the evidence they are hearing and collecting indicate the suspect is firing a gun.

“If an officer believes there is someone with a weapon who is not entitled to have a weapon, the law permits the officer to go in,” she said.

While I imagine confronting a man who reportedly had both anger issues and was somewhat psychotic is dangerous, that is what police are paid to do and that is why they have SWAT teams.

No one knows if the killer’s wife, neighbors, and the random people shot or killed would still be alive if the police had intervened when the neighbors called to complain but the odds certainly are higher.

I don’t know California law as to whether the Tehama County Sheriffs’ Department can be held liable for negligence. As Dave Hardy makes clear in his book, under Federal law this negligence would come under the “discretionary function exemption” and not a damn thing would happen to that department.

The other thing I do know is that no new gun control law would have stopped this killer. There were laws on the books that were meant to prevent him from having firearms. They were ignored. Moreover, the police declined to enforce them even in the face of complaints from neighbors that indicated he was violating the law. Gun  control laws stop the law abiding. They don’t stop criminals and they don’t stop those intent on ignoring the law.

Quote Of The Day

Dave Hardy on the White House petition to deport Piers Morgan:

I wonder why the pitch for signing omits the strongest reason:
“pontificating, underinformed, supercilious twit, whose arrival here was
in violation of the legal prohibitions against importing foreign insect

I couldn’t have said it better myself. As for deporting Morgan, that exile from Fleet Street, I say let him stay. He is a good reminder of what happens to a country when it has effectively banned most firearms and the right to self-defense.

Comment Of The Day

Dave Hardy at Of Arms and the Law blog has an interesting post about the contempt proceedings for Attorney General Eric Holder. Though not used since 1934, the House could send its Sergeant-at-Arms out to arrest Holder and then have the trial in the Capitol.

One of his commenters has this to say:

Holding Holder in contempt of Congress. Well deserved.

Obama claiming executive privilege over documents he denies ever seeing. Astonishing.

Holder having his arrogant perjurious ass thrown in the Capitol jail. Priceless.

Though the House could legitimately do this, I tend to agree with Sebastian that Speaker Boehner would never have the cojones to do this.  I have been sorely tempted more than once to send him a set of these.

Keep In Your Thoughts And Prayers

During this Holy Week I’d ask that you keep in your thoughts and prayers two gun bloggers who have made very important contributions over the years.

First, Dave Hardy who was just released from the hospital on Wednesday.

Released from the hospital yesterday afternoon, still rather weak. Last night I got a sound sleep, but the night before got only an hour or so. The usual hospital noises, awakenings for blood draws and vital checks, plus a special disturbance…. patients in the next room over who listened to the TV or talked loudly until 2 AM, and thereafter faked moans of pain and begged for help. They stopped the moans of pain after another patient mocked them by groaning in chorus. I don’t know if they were drunk, had mental problems, or were just jackasses.

Doc said he was initially concerned that I was going septic, but that had been avoided.

All I have left is exhaustion, some aches from sleeping on that bed, and some bruising where the IV went in and more where I got all the blood sticks in the other arm. I even got four injections to the belly; I’d only heard of those for rabies (and that might be history, or a legend).

Secondly, Mike Vanderboegh who just had major surgery has been readmitted to the hospital to deal with what has now been diagnosed as an abcess.

Woke up 0230 with stabbing pain in my left side just under the rib cage, like somebody was taking a Sykes-Fairbairn dagger and probing for my lung. Called Doc and he, like me, feared a pulmonary embolus. Made it into the ER in record time. CAT scan on lungs said no, praise the Lord. Further tests revealed that something is leaking internally, with probable infection. They stuck another drain in me and here I am sitting in Room 539 back at Trinity Montclair. Keep me in your prayers.

I’d also ask that you remember the family of Newbius whose funeral was this past Wednesday. Losing a father and husband is always hard.

Quote Of The Day

Dave Hardy at Of Arms and the Law has an excellent analysis of Acting ATF Director Kenneth Melson’s interview with House Oversight Committee investigators and the timing of it. What makes Melson’s actions even more remarkable is this:

I’ve never heard of an agency head defecting, as it were. Closest think I can think of is John Dean, counsel to the President, meeting secretly with investigators during Watergate, and maybe “deep throat,” Mark Felt, who was Associate Director of the FBI, leaking to the press. And Watergate involved quite a bit less than running thousands of guns to the most violent criminals on earth with fatal results.

It is important to remember that both Watergate and Project Gunwalker involved the subversion of constitutional rights. The former involved the subversion of elections and the latter is an attempt to build support for the subversion of the Second Amendment. 

No one died because of Watergate. I wish we could say the same about Project Gunwalker.

Firearm Owners’ Protection Act Of 1986

Dave Hardy, attorney and legal scholar, has done gun rights activists a great service. He has posted and updated his legislative history of the Firearms Owners’ Protection Act of 1986. As he notes:

A large portion of what we today regard as the Gun Control Act of 1968 — and virtually all of its safeguards and protections — derives, not from the legislation of 1968, but from the amendments known as the Firearm Owners’ Protection Act, pushed in the House by Rep. Harold Volkmer, and in the Senate by Sen. James McClure. That statute extensively rewrote the earlier law, expressly overruled six Supreme Court decisions construing it, and negated about a third of the case law which had arisen under it.

Having an understanding of the Act – and what it took to get it passed – is important if we want to continue to pass legislation to preserve, protect, and advance our Second Amendment rights.

Dave deserves a great deal of thanks for the hard work that it took to assemble this history of FOPA. Much of the data and historical information was buried in various government documents. Out of this morass of historical documents, Dave has assembled something that is readable and understandable.

The Real Question For Operation Fast And Furious – Who Knew?

Sharyl Attkisson of CBS News has just posted another video on Operation Fast and Furious (aka Project Gunwalker). It ask the most pertinent question in this whole scandal – who knew?

Dave Hardy of Arms and The Law blog asked the same thing on Friday. Obama has insisted that he and Eric Holder did not approve Operation Fast and Furious.

And now it appears knowledge got as high as an Assistant Attorney General, an appointee. If it got that high, odds are good it would have gotten to the AG. And if it got to him, odds are decent that it got to the White House. I note the official denials are that anyone high up “approved” it. You can of course know of something, decide to let it run its course, and still deny having “approved” it. CYA and all that. “They told me about it, I just assumed they knew what they were doing.”

Dave Hardy’s Thoughts On The Tucson Shootings

Dave Hardy, attorney and blogger, lives and practices law in the Tucson area. He is one of the most thoughtful and insightful bloggers around on Second Amendment issues. He just posted some thoughts on the shootings in Tucson and on the shooter Jared Loughner.

From all accounts, the shooter appears to be schizophrenic, probably paranoid schiz, and was giving significant signs of being dangerous long before the shooting. Fellow students and teachers were fearful enough to where the college suspended him unless he could provide a psychiatric evaluation showing he wasn’t dangerous, and they sent campus police to make sure he got the message. But nobody seems to have given a thought to getting the guy committed for treatment — perhaps because doing so would have been so burdensome that running the risk of his going violent was the easier course.

Go here to read the rest of this very insightful post at Of Arms and the Law.