Federal Court in Delaware: Second Amendment Protects right to make your own gun

On September 23, 2022, Judge Maryellen Noreika issued a preliminary injunction against the State of Delaware, in the case of Rigby v Jennings.

The case is about whether the State of Delaware can outlaw homemade guns, and the distribution of materials and software to make homemade guns.

The decision is a win for supporters of Constitutional rights, but has some troubling verbiage.

Judge Maryellen Noreika was appointed by President Trump in 2018.

Judge Noreika relies on the "Final Rule" from the ATF, which is under dispute in several cases, as to what is a "firearm".  Further arguments fall apart if the definition of what is a firearm reverts to the decades old definition.

Judge Noreika then makes a claim, supported by a Colorado case, that if a commercial transaction may be regulated, then all transactions may be regulated.  Footnote 11, p. 11:

Sections 1459(a) and 1463(b) do not solely target commercial transactions. There is no reason to believe, however, that the non-commercial character of a transaction changes the analysis. See Colorado Outfitters Ass’n v. Hickenlooper, 24 F. Supp. 3d 1050, 1074 (D. Colo. 2014) (“Logically, if the government can lawfully regulate the ability of persons to obtain firearms from commercial dealers, that same power to regulate should extend to non-commercial transactions.”),vacated on other grounds and remanded, 823 F.3d 537 (10th Cir. 2016).

This is a jump of logic, and directly against the dicta in Heller, which states the Second Amendment allows:

“laws imposing conditions and qualifications on the commercial sale of arms.”

There must be differentiation between the commercial sale of arms and non-commercial transactions, or the above statement is nonsensical.

On page 12, Judge Norieka cites the commercial sales dicta on Heller.  She acknowledges the dicta does not mean every regulation of commercial sales is constitutional. From the opinion, p. 12:

In District of Columbia v. Heller, the Supreme Court identified a non-exhaustive list of“presumptively lawful regulatory measures” that included “laws imposing conditions and qualifications on the commercial sale of arms.” 554 U.S. 570, 625–27 (2008). Such laws “comport with the Second Amendment because they affect individuals or conduct unprotected by the right to keep and bear arms.” 11Binderup v. Att’y Gen. United States of Am., 836 F.3d 336, 343 (3d Cir. 2016) (en banc); see also Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013), abrogated on other grounds by Bruen, 142 S. Ct. 2111 (2022). Of course, not every regulation on the commercial sale of arms is presumptively lawful. In United States v. Marzzarella, the Third Circuit explained that“[i]n order to uphold the constitutionality of a law imposing a condition on the commercial sale of firearms, a court necessarily must examine the nature and extent of the imposed condition.” 614 F.3d 85, 91 n.8 (3d Cir. 2010). Here, §§ 1459A(a) and 1463(b)

Judge Noreika makes a differentiation between the ability to transfer unfinished receivers, the ability to possess them, and the ability to make firearms. From page 12:

In contrast to the statutes regulating distribution of firearms, the contested statutes prohibiting the possession of unfinished frames and receivers (§1459A(b)) and untraceable firearms (§ 1463(a)) do burden rights protected by the Second Amendment. The Second Amendment, which protects “the right of the people to keep and bear Arms,” protects the possession of untraceable firearms and unfinished firearms and receivers because its text covers the possession of firearms. Sections 1459A(b) and 1463(a) criminalize the possession of unserialized finished firearm frames and untraceable firearms without providing any way for Plaintiffs to keep firearms they lawfully manufactured.12 Thus, the Second Amendment presumptively extends to the conduct prohibited by these statutes.

Another court, in Texas, reached  the opposite conclusion. The court held the legal ability to possess something was meaningless without the ability to receive it or transfer it.

Later, Judge Noreika makes another jump of logic, claiming the requirement to place serial numbers on unfinished firearm frames is not an infringement on Second Amendment rights. She cites a California Ninth Circuit case (Teixeira) to make this dubious point.  From the opinion p. 14:

Here, §§ 1459A(a) and 1463(b) permit anyone lawfully able to sell a firearm to do so, and simply require that those selling or transferring firearms to abide by federal law when doing so. Section 1459A(a) permits federally licensed gun dealers and manufacturers who abide by federal law’s serialization and record-keeping requirements to transport, ship, transfer, and sell unfinished firearm frames and receivers. Thus, Plaintiffs will have still have access to these components. Further, § 1463(b) bars the sale or transfer of untraceable firearms but does not prohibit any type of firearm to be bought or sold, so long as it is traceable. Barring the distribution of untraceable firearms may make purchasing a firearm more inconvenient, but this does not amount to a Second Amendment burden because of the easy access to traceable firearms. See, e.g., Teixeira v. Cnty. of Alameda, 873 F.3d 670, 680 (9th Cir. 2017) (explaining that “gun buyers have no right to have a gun store in a particular location, at least as long as their access is not meaningfully constrained.”). Therefore, the Court finds that these regulations impose conditions on the sale and transfer of firearms that do not burden Plaintiffs’ Second Amendment rights because they do not bar the sale of any type of weapon or impose onerous regulations on those wishing to distribute unfinished firearm frames and receivers.

The Supreme Court has held, in Heller, easy access to one type of firearm does not mean other types of firearms may be banned.

This Delaware law bans access to firearms without serial numbers. The requirement for firearms to have serial numbers is relatively recent. It started in 1938 and was expanded in 1968. There are millions of firearms in commercial circulation who do not have serial numbers, and which have never been required to have serial numbers.

Whether this doctrine protecting whole classes of firearms would be extended to include the class of homemade firearms,
remains to be seen.

The Delaware opinion is positive in that the ability to make and possess homemade guns is affirmed as being protected under the Second Amendment.

However, in the Delaware opinion by Judge Norieka, the ability to access the knowledge to make guns, the parts necessary to make guns, and the freedom to make the guns without government permission (serialization), are all held to be irrelevant.

 

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

 

FL: Man Showed Shotgun, Clerk Showed own Gun, Robber Left, was Arrested

A man casually carrying a shotgun and claiming to be from Chicago walked into a Florida convenience store during an attempted robbery but walked out when a clerk displayed his own weapon, authorities said.

More Here

I will be traveling for the next two days

I will be traveling to Dallas for the Gun Rights Policy Conference.

Updates may be sparse for the next few days.

Dean Weingarten

Gun Sales are NOT collapsing in Illinois

 

Samuel Stebbins writes for 24/7 Wall St and a number of other left leaning organizations such as the NYTs, HuffPost and MSN.

He has written a number of articles involving guns, crime, and statistics. The numbers he cites are usually correct. They are from sources such as the FBI Uniform Crime Reports.

Unfortunately, it is easy to make errors if you do not understand how the numbers are generated. It appears to be the reason for the laughable numbers in Samuel's article claiming "Gun Sales are Collapsing in Illinois".

 In Illinois, gun sales are falling even faster than they are nationwide. There were a total of 2,064,400 FBI firearm background checks in the state in the first half of 2022 compared to 6,050,704 in the first six months of 2021 -- a 65.9% reduction and the largest decline among states.

The problem with the above statement is background checks in Illinois are only slightly connected to gun sales.

I tried to contact Samuel so I could explain the error to him, and offer my services if he needs some professional firearms expertise in the future.

Unfortunately, a few searches did not turn up an email or a phone number to contact him.

In the article, Samuel uses the National Instant background Check System checks as a proxy for gun sales. There are problems with this.

The FBI carefully notes, when publishing the figures:

"These statistics represent the background checks initiated through the NICS. They do not represent the number of firearms sold." 

In most states, the ratio between gun sales and NICS numbers varies between about .5 and .7 gun sales for each NICS check.

Illinois is a special case, as is Kentucky. Both of those states use NICS checks prodigiously for purposes other than gun sales. Both states run NICS checks over and over and over, month to month to month. The process is mostly automated and costs them very little.

In 2019, in Illinois, there were over 4.95 million NICS checks, and about  395 thousand firearms sales, or a ratio of about .08 firearms sold per NICS check.

In 2020, in Illinois, there were about  8.47 million NICS checks and about 534 thousand firearms sold, for a ratio of about .063 firearms sold per NICS check.

Looking at the first six months of 2021 and 2022, the gun sales in Illinois dropped from about 274 thousand in the first six months of 2021 to 215 thousand in the first six months of 2022, a 22% reduction.

In January of 2022, Illinois revised their procedures for running NICS Checks on the Firearms Owners IDentification (FOID) card. NICS does not show any permit rechecks for Illinois in 2022.

The number of NICS Checks for permits and permit rechecks for the first six months of 2021 was about 5.79 million.

For the first six months of 2022, it was 1.85 million, an enormous drop. The drop occurred because of the change in Illinois firearms law.

The change in permit and permit rechecks explains 98% of the drop in NICS checks from the first six months of  2021 to the first six months of 2022 in Illinois.

Instead of a "collapse" in gun sales, the drop in gun sales for Illinois was in the middle of what most states experienced, at about 22%.

It is an easy mistake to make, if you do not understand how the NICS numbers are generated.

Samuel, if you have questions, you can reach me at press@AmmoLand.com.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

CA: Wife Shoots, Kills Intruder who was Fighting with Husband

Authorities said Santana became heavily intoxicated and tried to force his way into the Ashwood Lane home, belonging to 50-year-old Yuhui Zheng and her husband, 45-year-old Yang Luan.

Luan attempted to physically restrain Santana as he allegedly attempted to enter the home and the two got into a fight near the threshold of the front door. During the fight, Zheng, who had just purchased a revolver the day before, grabbed the gun from an upstairs bedroom.

Police say Zheng then fired rounds at Santana in self-defense of her husband. Luan sustained minor physical injuries during the fight, according to police. 

More Here

WA: Family Member Shoots, Wounds Burglary Suspect

Two family members saw two ATVs parked near several storage trailers and confronted two men walking away from the trailers, authorities said.

Deputies were told that one man fled into some bushes while the other charged at a family member who was armed with a rifle.

The rifle went off and struck the burglary suspect in the arm, law enforcement was told.

The suspect was taken to St. Peter’s Hospital for treatment.

The other suspect was taken into custody but was uninjured.

More Here

Ban on People Receiving Firearms while under Indictment is Unconstitutional

 

On September 19, 2022, the District Court, W.D. Texas, found the ban on individuals under indictment from receiving firearms in federal law, (§ 922(n)) to be unconstitutional under the standards clarified by the Bruen Decision of 2022.

This correspondent has always believed the indictment ban to be unconstitutional.

In the United States, people are considered innocent until proven guilty. If a mere indictment can eliminate the ability to exercise an enumerated constitutional right before there is any conviction, that standard is set on its head.

Courts loaded with Progressive Judges previously danced around this obvious barrier by promoting the fiction the Second Amendment did not apply to individuals.  The 1943 Cases decision is discussed in a previous article.

In Cases, a three judge panel, all Progressives appointed by President Franklin Delano Roosevelt (FDR), held the Supreme Court in the Miller case, could not possibly have meant what it said.

The three judge panel ignored the  Miller decision. The Progressive judges made up their own standard in the 1942 decision.

Judge Counts, in the current Quiroz case, mentions the 1942 Cases decision and discounts it because it relies on the discredited "collective rights" argument.

Instead, Judge Counts follows the requirements of the recent Bruen decision.

From the Memorandum Opinion in US v Quiroz:

This Court faces a predicament similar to Plato’s allegory of the cave. There are the known knowns: a defendant was convicted of buying a gun while under indictment; after the Supreme Court’s recent ruling in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, that defendant asks this Court to reconsider the constitutionality of his statute of conviction. The known unknowns:whether a statute preventing a person under indictment from receiving a firearm aligns with this Nation’s historical tradition of firearm regulation. And the unknown unknowns: the constitutionality of firearm regulations in a post-Bruen world. 

There are no illusions about this case’s real-world consequences—certainly valid public policy and safety concerns exist. Yet Bruen framed those concerns solely as a historical analysis. This Court follows that framework.

Judge Counts goes on to show how the "indictment" ban slowly was expanded in law from applying only to fugitives indicted under a federal law, who crossed state lines, in a crime involving violence and guns; to all felons, in all courts, anywhere.

Today, we have absurd situations where a refugee fleeing tyranny to the United States, is banned from exercising Second Amendment rights, because they were convicted  under a tyrannical law in a tyrannical nation, when the law there would have been unconstitutional in the United States.

The Biden Administration attempts to separate "receive" from "keep" or "possess". Judge Counts does not buy into the absurd argument. From page 7:

And logically, excluding “receive” makes little sense. To receive something means “to take into . . . one’s possession.” How can one possess (or carry)something without first receiving it? Receipt is the condition precedent to possession—the latter is impossible without the former. Taking the Government’s argument at face value would also lead to an absurd result. Indeed, if receiving a firearm were illegal, but possessing or carrying one remained a constitutional right,one would first need to break the law to exercise that right. The Government is asking in effect to banish gun rights to Hotel California’s purgatory: “You can check out any time you like, but you can never leave.”

The Biden administration tries to make the argument: Bruen upheld the ban on felons possessing firearms. The ban on people under indictment is just the same.

Judge Counts is brutally honest in his response. From page 10:

The first problem with this argument is it’s a logical fallacy. Sharing a history with felon-in-possession laws makes § 922(n) constitutional in the same way a dog is a cat because both have four legs.

The second problem is that Heller’s endorsement of felon-in-possession laws was in dicta. Anything not the “court’s determination of a matter of law pivotal to its decision”is dicta. Dicta is therefore“ entitled to little deference because they are essentially ultra vires pronouncements about the law.” Or,as Francis Bacon put it, dicta is only the “vapours and fumes of law.”

Judge Counts is correct. The felon-in-possession endorsement in Heller was in dicta. So were Heller's endorsements of bans in "sensitive places" and "laws imposing conditions and qualifications on the commercial sale of arms." From Heller, p. 2 :

Like most rights, the Second Amendment right is not unlimited.It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of fire-arms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

Judge Counts' Memorandum Opinion is well reasoned, well written, and easy to understand. So is his conclusion:

CONCLUSION 

The Second Amendment is not a “second class right.”No longer can courts balance away a constitutional right. After Bruen, the Government must prove that laws regulating conduct covered by the Second Amendment’s plain text align with this Nation’s historical tradition. The Government does not meet that burden.

Although not exhaustive, the Court’s historical survey finds little evidence that §922(n)—which prohibits those under felony indictment from obtaining a firearm—aligns with this Nation’s historical tradition. As a result, this Court holds that § 922(n) is unconstitutional. 119

It is therefore ORDERED that Defendant’s Motion to Reconsider is GRANTED.(Docs. 73and 74). The indictment is DISMISSED.

For those interested read the entire opinion, available online.

Judge Counts may not like the results of his decision. He may have preferred to have found Quiroz guilty, so he could be locked up. However, unlike the Progressive judges in the 1942 Cases decision, he did his job. He followed the Supreme Court decision and upheld the Constitution and the rule of law.

Will the Biden administration appeal his decision to the Fifth Circuit?

This correspondent expects the case to be appealed.

 ©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

 

SC: Son Shot Father in Self Defense

Officers responded and found a man with a firearm in his hand and another man in the driveway dead of an apparent gunshot wound. 

NCPD determined that the man holding the gun was the son of the victim, and investigators believe he shot the victim is self defense.

 

More Here

MO: Jury finds Marvin Humphrey Not Guilty of First Degree Murder in Killing of Shawn Stewart

ST. LOUIS — A jury on Wednesday acquitted a Florissant man of first-degree murder and other charges after he shot and killed another man outside of a north St. Louis gas station on Thanksgiving Day in 2019.

Marvin Humphrey, a 64-year-old military veteran, argued he acted in self-defense when he fatally shot 33-year-old Shawn Stewart, of St. Louis, just outside the Love’s Travel Stop on Broadway off Interstate 70 on Nov. 28.

Surveillance video from the trial showed Humphrey walking up to the gas station counter to buy a 12-pack of Bud Light just after 1 p.m. that day. He smiled and chatted with the cashier and was waiting on a price check when Stewart walked up to the counter. The two started arguing about what was taking so long.

More Here

PA: Followup, Jury finds Michael Keslar not guilty of Attempted Murder

Jurors deliberated more than seven hours over two days before they returned the not guilty verdict to two of the four criminal charges against Michael Keslar.

Prosecutors contended Keslar shot a man who rented a room in his home one time in the chest on Aug. 28, 2021.

A mistrial was declared on two remaining counts, aggravated assault with a deadly weapon and reckless endangerment after jurors said they could not reach a verdict on those offenses.

More Here

AK: Grizzly Attacks 9-Year-Old boy, Relative Shoots, Kills Bear

Troopers said the bear attacked two people — a 41-year-old male and a 9-year-old boy — near mile 36 of the Glenn Highway, at the end of Matanuska Townsite Road on Tuesday.

The man and young boy came across a brown bear sow and her cub while hunting in the Palmer Hay Flats area. The bear mauled the boy, leaving him with serious injuries. The adult who was accompanying the child was armed and shot and killed the brown bear during the attack.

More Here

SC: Homeowner Shoots 1 of 2 Men attempting to Break into Home

On Sept. 14th, the homeowner was inside his Madison Street house near Walterboro at about 10 p.m. when two armed men tried to break into his home. The homeowner shot one of the men: authorities who arrived to the scene found the suspect dead on the victim’s front porch.

When we arrived to the victim’s house, the “homeowner exited the home, unarmed, and confirmed he shot the man when he and another individual tried to break down his door,” said Shalane Tindal, spokeswoman for the Colleton County Sheriff’s Office.

More Here

MD: Gunfight, Resident and Intruder both Shot, Killed

PRINCE GEORGE'S COUNTY, MD — A break-in Tuesday shortly after midnight led to a homeowner shooting the intruder and a resident of the home being shot during the incident, too, police say.

More Here

Realistic Bear Defensive Shooting Drills

 

Image by Troy Nemitz, with permission.

Realistic bear defense drills can help prepare gun owners for actual situations.

The success of Eli Dicken in stopping a mass murder in the early stages, with excellent marksmanship at a claimed 40 yards, has engendered a plethora of people making and executing some form of a "Dicken Drill" of ten shots at 40 yards.

There have been a number of "bear defense" exercises, usually arranged to simulate a worst case scenario.

I know of one such scenario, as it was related to me, by the inventor/trainer who ran it for a major agency.

The "bear" ran on a cart, as I recall, starting 10 yards away.  Speed was determined by the person who ran away from the shooting line, pulling the bear, which also moved up and down on the terrain, toward the trainee shooter.

The trainer prepped the trainee, to be tested, thus:

The trainee was armed with a pump shotgun with a sling. There were rounds in the magazine, but none allowed in the chamber. The shot gun had to be slung on the shoulder, with the safety on, and the bolt locked forward.  To engage the target, the trainee had to unsling the shotgun, disengage the bolt lock, work the action, disengage the safety, then shoot.  Alternatively, the trainee could unsling the shotgun, disengage the safety, dry fire the shot gun, which would disengage the bolt lock, work the action, and then shoot.

Once preparation to do the drill was ready, the trainer would engage the trainee with a question or small talk. When the trainee's attention was off the "bear" the trainer would give the secret signal to start the bear charging at the trainee.

Unsurprisingly, few trainees managed to get off a shot and hit the "bear".

Trainers can create a drill to obtain the effect they want to establish.

A bears brain is reasonably close to the size and shape of a 12 ounce beverage can. To build confidence in shooters concerned about bear defense, I suggest these drills, taken from actual bear defense situations. The 12 ounce can should be oriented close to how it would be in a bear. :

The Ralph Fletcher Drill

In 1960, as three people were having lunch by an Alaskan lake, a black bear charged out of the brush and grabbed Francis Canton.   Her friend, Johnson, grabbed a stick and beat on the bear, which dropped Francis, charged him, but stopped to eat the lunch. The other friend, Ralph Fletcher, retrieved a .22 pistol from the float plane, walked to within a few feet of the bear, and killed it.

Here is the Ralph Fletcher Drill. Set up a target, a 12 ounce can will do, behind  a target of a bear head, side view. The can should be located behind the target, similar to  where the brain is located on a bear.  The shooter is unarmed, five feet from the target. The pistol is placed 30 feet away, loaded.

On command, the shooter retrieves the pistol and returns to within seven feet of the bear target. Once the seven foot line is reached, the shooter has 15 seconds to shoot the bear in the brain.

The Dusel-Bacon Drill 

On August 13, 1977,Geologist Cynthia Dusel-Bacon  had been dropped off by helicopter.  She was hiking along a narrow path on a ridge a few miles from the Salcha River, about 60 miles southeast of Fairbanks, Alaska. A “small black bear” startled her with a crash in the brush. It appeared to her, staring at her, from about 10 feet away. She yelled at it. She pounded a rock with her hammer to make noise. The bear was not intimidated.  Cynthia took a step back, which was also higher on the rock.

 

The bear moved out of her sight, then struck her from behind and knocked her down. She had been told playing dead was the best strategy, so she did. She lost both her arms, but survived.

Cynthia had time to draw a pistol and shoot the bear, but as a condition of work, she was unarmed. Here is the Dusel-Bacon Drill:

Set up the bear target 10 feet from the shooter. The shooter has a holstered pistol.  On command, the shooter has 10 seconds to draw and shoot the bear.

The  Cecil Rhodes Drill 

In October of 1947, Cecil Rhodes was backpacking in Alaska. He had a .38 revolver. A big grizzly approached him. When it reached within 11 feet of him, he shot it in the head, deliberately aiming off center, afraid the bullet would "bounce off".  At the shot, the bear "slumped" but did not go down. The bear retreated.  Then he heard cubs, indicating the grizzly was a sow.  The bear returned, and moved past him, only 15 feet away. He did not shoot, even though he had a clear shot at her head.  The bear did not cause him any more trouble.

For this drill, the shooter is situated 20 feet from a bear target, head on.  A 12 ounce can is placed behind the area where the brain is inside a bear head.   The shooter, pistol in hand, is told to move to the 11 foot line. When the shooter reaches the line, they are to fire the pistol at the bear head target. They have 3 seconds.

The Tanner Allen Drill 

On August 8th, 2009, in Wyoming, Tanner Allen defended himself against a grizzly bear with cubs.  After a couple of misses with his .41 magnum, in a chaotic situation involving his dog, the bear ran off. Tanner started climbing down off the mesa he was on, only to have the bear come at him from the bottom up, in the narrow chute he was descending.  He climbed a couple of feet to a more stable position. When the bear reached within two feet of him, he fired his pistol into the bears head, killing it.

For this drill, the shooter is started 50 feet from the target of the bears head.  The target is obscured by a blank target four feet in front of it.  The shooter walks toward blank target, pistol in hand. When he reaches the blank target, the trainer pulls/moves it down remotely. That is the signal to fire at the revealed bear target.  Shooter has two seconds.

The purpose these drills serve is to inculcate the necessity of shooting and killing the bear to stop attacks, and to show most bear attacks do not occur with complete surprise at extremely close range.  In a large number of bear attacks, there is some warning, and there is time to make ready before firing.  It is important for shooters to know where a bear's brain is located inside a bears head.

There may not be much time. In a deadly force situation, two seconds is plenty of time to draw a holstered handgun and fire, with just a little practice. If that is found to be difficult, try a different holster.

We may never know what is an "average" bear attack.  Those who wish to minimize bear attacks define "bear attacks" as only those incidents where contact between the bear and the person is made. Such a definition automatically excludes all attacks where the bear is stopped before contact is made.

It is a silly definition. If a person is yelling "I am going to kill you!" and running at you with a knife, it is an attack, even if you shoot the person before they make contact, close a door to keep them out, or they trip over a curb and knock themselves out before they reach you.

A more reasonable approach would be what is used to justify deadly force.

Is the bear close enough to pose an imminent danger?

Stephen Herrero says if a bear is "charging", 50 to 100 feet may be the appropriate distance.  (Bear Attacks, 3rd ed. published in 2018, p. 243.)

Did the bear knowingly approach humans from further away?

Did the bear refuse to give way to humans?

Does the bear show no fear of humans?

Bears do not understand or recognize human laws or human morals. Bears tend to be cannibals when the opportunity presents itself. Mature boars often kill and eat bear cubs.

The famous bear researcher, Stephen Herrero, wrote an aggressive bear which refuses to leave a campsite, may need to be killed. The advice has remained the same since 1981. From "Bear Attacks" third edition, 2018, p. 243:

A firearm is also useful when a very aggressive bear shows up around camp and cannot be persuaded to leave. Such bears normally have a history of feeding on people's food or garbage, and may have to be killed.

If a known large human outlaw approached you armed with numerous contact weapons, refused to keep their distance from you, and attempted to steal your property, you would be justified to use physical force against them, and likely, deadly force.

There is no reason to give bears more protections than human outlaws.  None of the three species of bears in North America are endangered. The few shot because they threaten humans have no significant effect on bear populations.

In 1976, it was different. There were estimated to be between 229 and 312  grizzly bears in and around Yellowstone Park. Now there are over a thousand, and the population is growing.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

NE: Followup, Shooting of Friend was Self Defense

The shooter is identified as a man, living at the Welcome INN in North Platte. He is reported to have serious medical conditions. After the shooting the Lincoln County deputies took him to the Sheriff’s office for questioning. It was determined that he and the younger man are friends. After eating a late meal together, the young man began to drink heavily, and his older friend asked him to leave.

An argument began, and repeatedly the younger man was asked to leave. The report says the younger man was said to have begun to threaten his older friend, saying he was going to kill him. It is reported that the younger man took out a knife. The older man says he feared for his life and shot the younger male with a handgun he had.

More Here

TX: Father Confronts "Peeping Tom" Shoots Several Shots

Police say it all started when the man's daughter caught someone staring at her through her bedroom window, and she immediately left her room and told her dad.

The father went outside and caught the man near his daughters window. He told police that the 'peeper' pulled out a knife and lunged at him.

The father said he pulled out a gun and shot towards the suspect several times. According to police, they didn't find anyone with gunshot wounds. 

More Here

Rare Ghost Gun Found in Michigan Gun Disposal List

 

Michigan law requires police and sheriff departments to turn confiscated firearms over to the state police. The state publishes a list of firearms each month, which have not been claimed. From the michigan.gov website:

The information below identifies firearm(s) confiscated by a Michigan law enforcement agency and turned over to the Michigan State Police (MSP) pursuant to MCL 28.434 and MCL 750.239.

List of Weapons to be Destroyed:

List of weapons to be destroyed October 2022 (public notice date 9-1-2022).  

If you are claiming ownership of any firearm(s) listed, please write
or call within thirty (30) days of the date of public notice. In
addition to your ownership claim, you must be authorized to possess
firearms.

If no valid ownership claim is received by MSP within thirty (30)
days of the date of public notice, the firearm(s) listed above will be destroyed.

Firearm(s) listed above are not for sale.

The firearms are listed for 30 days so owners can identify them and apply to have them returned.

If no one claims the firearms, they are destroyed. Michigan law does not require they be destroyed.  The destruction of the firearms has become a wasteful tradition.

Michigan police destroy about half a million dollars worth of firearms each year for political purposes.

The monthly lists contain the serial numbers (or lack of serial numbers) of the confiscated firearms. Therefore, the lists provide a way to determine how many firearms are confiscated without serial numbers. It is unlikely many firearms without serial numbers are returned to owners, as it would be difficult to prove ownership.

In the list of firearms to be destroyed in October, there are  555 total firearms. Of those, there are 33 without serial numbers, or 6 percent. Of the 33 without serial numbers, 26 were manufactured without serial numbers, before serial numbers were required by federal law. Six had their serial numbers removed. One was a homemade firearm sometimes referred to as a "ghost gun".  It was a  PF94OC.

Of the 555 firearms confiscated by police in Michigan, one was a "ghost gun", and 32 others did not have serial numbers. None of the sample with serial numbers (94%) had been traced to a legitimate owner.

This shows how ineffective the gun trace system is, and how silly it is to claim "ghost guns" are a problem.

There were 26 times as many guns which had been legally manufactured without serial numbers as there were "ghost guns". There were six times as many guns whose serial numbers had been removed as there were "ghost guns".

There were 554 times as many guns for whom tracing was irrelevant, than the single "ghost gun". 

There are hundreds of millions of guns who were made so long ago,  tracing ownership makes no sense, because the guns have changed hands numerous times, and the original owner is long dead.

The only way "ghost guns" are a problem is if you believe "more guns, more problems".  That is a delusion.

It is primarily a delusion of those who do not own guns and know little about them.

More guns do not mean more problems.

Kentucky requires their state police to sell confiscated guns through the legal dealer network, the same as new guns.  Their gun sales bring in about $850,000 per year, which is spent by Kentucky police, mostly for equipment.

The publication of the Michigan list shows us "ghost guns" are not a problem.

Gun tracing is not cost effective.

Michigan is deliberately wasting half a million dollars a year, because of inertia and political delusion.

 

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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MS: Teen Theif Pulls Gun, is Shot by Store Owner

RIDGELAND, Miss. (WLBT) - Residents across the metro are still in shock after shots rang out at Northpark Mall Saturday.

Ridgeland Police arrested and charged 16-year-old Za’Lill D’Chelle Patterson with aggravated assault with a weapon. The teen is behind bars at the Madison County Detention Center, and no bond has been set at this time.

Authorities said Patterson pulled a gun on the owner of a popcorn store that she was trying to steal from.

While the teen was the first to draw a weapon, she was the only person shot.

More Here

1884 New York Street Car Scene Shows Carry of Pistols Common

A version of the above image was published in the April 19, 1884 issue of the National Police Gazzette. The publisher was located at Franklin Square and Dover Street, New York. The location is in Manhattan, New York City.

The probably earlier version, shown above, is found in The Remington Historical Treasury of American Guns, published in 1966, taken from the e.

 

Harper's publishing house is shown at the Franklin Square location in this map from January of 1885. 

In 1884, cable car lines were just starting to be considered in New York City, and electric trolleys were not yet in use. The street car in the image was almost certainly a horse drawn street car, which existed in New York City until 1917.

The relevance of the image is pistols were commonly carried in New York City for self defense in close proximity to the passage of the Fourteenth Amendment in 1868. Only six passengers are shown seated in the street car. Of those, only four are not obscured by other people. All four of the unobscured passengers are shown as carrying pistols or revolvers in the illustration.

Public transportation was not considered to be a "sensitive location" where arms were not permitted.

The street car image was likely created before 1884; even so, 1884 is only 14 years after the Fourteenth Amendment was passed. There was no controversy. One of the major purposes of the Fourteenth Amendment was to ensure everyone in the USA had an enforceable right to keep and bear arms. One of the co-sponsors of the amendment pontificated on exactly that purpose.

From Senator Howard's remarks, on the front page of the New York Times in 1866:

“…to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and the press; the right of the people to peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and bear arms;…”

(snip)

The great object of this amendment, is therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.  How will it be done under the present amendment?  As I have remarked, they are not powers granted to Congress, and therefore it is necessary, if they are to effectuated and enforced, as they assuredly ought to be, that additional power should be given to Congress to that end.  This is done by the fifth section of this amendment, which declares that “the Congress shall have power to enforce by appropriate legislation the provisions of this article.”  Here is a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees, a power not found in the Constitution.”

Those who wish a disarmed population are willing to follow the guidance of George Orwell, in the novel 1984, and change history to aid their desire to exercise illegitimate power in the present. One of the clearest examples is the case of Michael Bellesiles falsifying history with his Bancroft prize winning book, Arming America. Clayton Cramer, a software engineer and historian found many outright falsifications.

I sat down with a list of bizarre, amazing claims that Bellesiles had made, and started chasing down the citations at Sonoma State University’s library. I found quotations of out of context that completely reversed the author’s original intent. I found dates changed. I found the text of statutes changed—and the changes completely reversed the meaning of the law. It took me twelve hours of hunting before I found a citation that was completely correct. In the intervening two years, I have spent thousands of hours chasing down Bellesiles’s citations, and I have found many hundreds of shockingly gross falsifications.

Eventually, the Bancroft price was rescinded and Bellesiles was disgraced. It would not have happened without the tireless efforts of Clayton Cramer, and James Lindgren, a law professor. Except for those two men, Bellesiles would have gotten away with wholesale re-writing of history in pursuit of a political agenda.

The street car image helps refute the fabricated history the carry of pistols was unusual and seldom allowed in the urban centers of the Northeast.

If that were true, there would have been no reason for New York State to pass the notorious Sullivan act in 1911.

 

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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WI: Homeowner Kills Intruder During Struggle

A homeowner killed an intruder during a struggle inside their home, according to Kenosha police.

Police said they got a call around 7:20 p.m. about a man damaging cars at random and trying to break into houses near 64th Avenue and 69th Street.

They said the man did force his way into a house, where he got into a physical struggle with the homeowner, who killed the intruder.

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Dick Heller Win Against DC Ammunition Restrictions

Dick Heller in front of the Supreme Court of the United States

On June 30, 2022, the Heller Foundation, along with Dick Heller and Charles W. Nesby, filed an 42 U.S.C. § 1983 and § 1988 lawsuit against the District of Columbia. The claim is that 24 DCMR § 2343.1 of the District code is unconstitutional under the Second Amendment.  The section limits how much ammunition an individual may carry for the purposes of self defense in DC.

24 DCMR § 2343.1

2343.1

A person issued a concealed carry license by the Chief, while carrying the pistol, shall not carry more ammunition than is required to fully load the pistol twice, and in no event shall that amount be greater than twenty (20) rounds of ammunition.

Before the case came to trial, the District of Columbia folded, repealed 24 DCMR § 2343.1, and asked for a stay while they negotiate a settlement with the Heller Foundation. From the Defendant's Notice of Repeal:

Defendants provide the attached Notice of Emergency and Proposed Rulemaking by the Metropolitan Police Department, promulgated on September 14, 2022. See Exhibit A ( Notice of Emergency and Proposed Rulemaking). It was effective immediately on signature and will be published in the September 23, 2022 edition of the D.C. Register.1 The Notice repeals the ammunition limit challenged here, 24 DCMR § 2343.1. Date: September 14, 2022

The Court granted a stay until October 17, 2022. During that time, the parties are to work on a negotiated settlement.  From the Joint motion to stay litigation:

Plaintiffs Dick Anthony Heller, Charles W. Nesby, and the Heller Foundation, and Defendants District of Columbia and Robert Conti, Chief of the Metropolitan Police Department (collectively, the Parties), jointly move to stay this litigation until October 17, 2022. The Parties are discussing settlement and need additional time to pursue a potential resolution that would avoid further litigation. To facilitate these efforts, the Parties request that the Court stay this matter until October 17, 2022, and order the Parties to submit a joint status report by October 17, 2022, updating the Court on the status of any settlement negotiations and whether a further stay of proceedings is warranted. A memorandum of points and authorities and the text of a proposed order are attached. Date: September 14, 2022

While this appears to be the end of the DC ban on how much ammunition may be carried for self defense, it seems likely the District of Columbia knew this case was a loser for them. They may have wished to prevent a court loss, which might have been used as precedent in future cases.

The District of Columbia still has a ban on magazines which hold more than 10 rounds of ammunition. It is D.C. Official Code § 7-2506.01:

 (b) No person in the District shall possess, sell, or transfer any large capacity ammunition feeding device regardless of whether the device is attached to a firearm. For the purposes of this subsection, the term “large capacity ammunition feeding device” means a magazine, belt, drum, feed strip, or similar device that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition. The term “large capacity ammunition feeding device” shall not include an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition.

The entire docket of the case can be accessed at the Court Listener Docket.

The ban on magazine capacity over 10 rounds is being litigated in several cases. It appears likely the ban will be struck down by the courts, as there is no history of widespread or national bans on magazine capacity before 1989, when California adopted a controversial ban on commonly owned rifles and magazines which held over 10 rounds.

Judge Roger T. Benitz stuck down the ban in 2019. The three judge panel in the Ninth Circuit agreed with Judge Benitez. Then the Ninth Circuit heard the case en banc, and reversed Judge Benitez and the three judge panel. The case was appealed to the Supreme Court. After Bruen, the Supreme Court reversed the Ninth Circuit en banc panel, and told them to hear the case again.

It is very likely magazine bans will be found unconstitutional for the entire United States, including the District of Columbia.

Dick Heller and the Heller Foundation continue to chip away at Second Amendment infringements. This incremental approach has been shown to be effective.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

NC: Burke County Homeowner Shot, Killed Armed Intruder

Investigators said a man shot and killed a home intruder early Friday morning in Burke County.

Deputies responded to 2902 Flat Gap Road in Valdese after a report of shots fired around 3 a.m., according to a release from the Burke County Sheriff’s Office.

When deputies arrived at the scene, they found Howard Gene Cook, 37, dead at the scene, the release said.

Authorities said Cook had broken into the home and got hold of a gun there.

More Here

National Firearms Survey, 2021, by English: Firearms Estimates and Defensive Gun Uses

On July 16, 2021, Dr. William English  submitted a draft report  on his extensive National Firearms Survey of 2021.

On July 18, 2021, Dr. William English submitted a draft report
on "The Right to Carry Has Not Increased Crime: Improving an Old Debate Through Better Data on Permit Growth Over Time". This paper will be covered more completely in another article.

In 2021, Dr. William English submitted an amicus curiae brief to the Supreme Court on the NYSRPA v. Bruen case, which was decided on June 22, 2022. Bruen clarified many contentious points about how Second Amendment cases should be treated by the lower courts.

As both studies took considerable time and effort, the work had considerable overlap. The two studies, it appears, are Dr. English's first public research contributions to the state of academic firearms knowledge in the United States.

Both papers are more complete than previous studies, employing more granular data and much larger samples, and sophisticated mathematics to analyze the data.  The results of the 2021 National Firearms Survey are considered below.

The National Firearms Survey was conducted from  February 17 to March 23, 2021. It involved the largest, most comprehensive sample of gun owners in the United States to date. The sample used online polling, and started with a survey starting with a representative sample of over 54 thousand United states residents. From the 54 thousand, 16,708 gun owners were identified to ask in depth questions about their use and ownership of firearms.

The survey employed sophisticated techniques to gain maximum participation. However, if a respondent was careful not to admit to firearms ownership, they would not be included in the survey. Thus, it is likely the survey is an unknown undercount of actual firearms ownership.

From the survey:

• About a third of adults in the U.S. report owning a firearm, totaling about 81.4 million
adult gun owners.
• 57.8% of gun owners are male, 42.2% are female.
• 25.4% of Blacks own firearms.
• 28.3% of Hispanics own firearms.
• 19.4% of Asians own firearms.
• 34.3% of Whites own firearms.

The number of respondents who had used a firearm for defense of self or property was a major point of investigation in the survey.

 Defensive firearms uses were common.   31.1% of respondents reported they had used a firearm for defensive purposes. Most of the defensive purposes occurred in their residence or on their property. In 81.9 % of the cases, no shots were fired. 

The total number of defensive uses per year  (1.67 million) falls well within the range of previous studies. 

Handguns were the firearm most commonly used for defense of self and property  (65.9%). Shotguns were used 21% of the time, and rifles in 13.1% of the incidents.

The survey results show a good match to the numbers of people with concealed carry permits. The 2021 survey estimated 20.7 million American residents carry handguns under a concealed carry permit regime.  This is very close to the CPRC estimate of 21.52 million  active permits in 2021. 

The survey found these numbers for the types of firearms owned:

• 82.7% of gun owners report owning a handgun, 68.8% report owning a rifle, and 58.4% report owning a shotgun.
• 21.9% of gun owners own only one firearm.
• The average gun owner owns 5 firearms.
• 30.2% of gun owners, about 24.6 million people, have owned an AR-15 or similarly
styled rifle.
• 48.0% of gun owners have owned magazines that hold over 10 rounds.

Those results are directly applicable to the debate on the right to keep and bear arms in the United States. The Supreme Court has ruled arms which are in "common use" are protected under the Second Amendment. In the Caetano decision, the Supreme Court ruled the ownership of about 200,000 "stun guns" showed stun guns were in common use. 

The survey estimated 415 million firearms were privately owned in the United States in the spring of 2021. 

Approximately 24 million guns have been added to the private stock since that time. At the end of August, 2022, adding the additional firearms to  the survey results  show about 439 million private firearms in the United States.

Using the method  perfected by Gary Kleck in 1991, (pioneered by Newton and Zimring) and extending it to the end of August, 2022, there would be 485 million guns in private hands. 

The number of private firearms is a difficult number to quantify and measure. The survey supports the numbers calculated with the Kleck, Newton and Zimring method. If 1 of 10 firearms owners were unwilling to admit to ownership of a firearm, even in an "anonymous Internet survey" the fit would be too close to dispute. 

Dr. William English has shed considerable light on actual numbers of firearms privately owned in the United States, firearms used for defensive purposes, and the demographics of firearms ownership in the United States. 

His survey will become a baseline for further research on this subject. 

Dr. English has stated a book, based on his research, will be available in the near future.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

WA: No Criminal Conviction for Man where several Bystanders were injured in Self Defense Shootout

This guy also had a gun and threatened them with it. So Tolbert and Tolliver decided to run.

And as their pursuer fired at them, they fired back over their shoulders.

Tolbert fired 10 rounds; his friend fired nine. Unfortunately, there were also a lot of other people downtown. And during the course of that six-second gunbattle – six bystanders were shot by Tolbert and Tolliver. A woman in a wheelchair was shot three times in the abdomen. She went through 15 surgeries and now wears a colostomy bag. A 9-year-old walking with his family had his femur fractured. And Tanya Jackson, age 50, who had been crossing Third Avenue, collapsed outside the McDonald’s, and died from a gunshot wound.

And yesterday, the jury decided that, because Tolbert was firing in self-defense, he was not criminally responsible for the death of the woman crossing the street, or any of the other injuries.

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KS: Daequan Jermaine Rayton Found Not Guilty by Jury in Self Defense Case

A Douglas County jury on Friday found a man not guilty of attempted first-degree murder in a New Year’s Day shooting at a rural nightclub.

The man, Daequan Jermaine Rayton, 24, of Topeka, was charged with attempted first-degree murder and aggravated assault in connection with the Jan. 1 shooting at The Outhouse, 1837 North 1500 Road. He was acquitted on both charges Friday. The shooting, which injured another man at the club, was reportedly the culmination of an altercation between that man and Rayton, as the Journal-World has reported.

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Courts Rule for ATF "Final Rule", Using "Commercial Sale" Loophole

Two different federal courts, in two different Circuit Courts of appeal, have refused to grant preliminary injunctions against the implementation of the ATF "Final Rule".  The Final Rule completely changes the definition of what is a firearm in Federal law.

On August 23, in the United States Court for the Eastern District of North Dakota, in the Eighth Circuit, Judge Peter D. Welte, refused to grant a preliminary injunction against the massive changes to federal law proposed in the "Final Rule" put forward by the Biden Administration, through the ATF.

On August 24, 2022, the District Court for the Galveston Division of the
Southern District of Texas, in the Fifth Circuit Court of Appeals, refused to grant a preliminary injunction, against the Final Rule, in a case brought by Division 80, LLC.

Thus, the Final Rule went into effect on August 24, 2022. Enormous parts of the firearms industry and the nation are now in turmoil, trying to figure out what the Final Rule actually means.

In practice, the Final Rule appears to give the ATF the arbitrary ability to label any set of tools, parts, and information which make the private manufacture of a firearm easier, as a firearm itself.  There is a beautifully argued brief, which includes the arguments from Bruen, sent to the Court on July 27, 2022.  Judge Welte ignores most of the arguments.

In North Dakota, Judge Welte, at the beginning of his order, frames the case this way:

On April 26, 2022, in response to evolving technical advances in firearms technology, the Bureau of Alcohol, Tobacco, Firearms and Explosives (the “ATF”) promulgated a final rule updating decades-old definitions within its longstanding regulations of federal firearms laws. See Definition of “Frame or Receiver” and Identification of Firearms, 87 Fed. Reg. 24652 (April 26, 2022) (to be codified at 27 C.F.R. pts. 447, 478, and 479) (the “Final Rule”). At bottom, the Final Rule amends the definitions of certain terms with the ATF’s regulations, such as “frame or receiver,” and amends related ATF regulations on firearm markings and recordkeeping. Id. The Final Rule takes effect on August 24, 2022. Id.

Judge Welte simply accepts the power of the ATF to make sweeping changes in the law, even though the Congress has had ample opportunity to do so, and has refused to change the law.

Judge Welte later claims the Bruen decision does not apply.

He writes the Final Rule does not impact individual rights, because it
only impacts the commercial sale of firearms, which, he claims, is excluded from Bruen.   From the decision:

Turning to the substance of Bruen, that case concerned an unconstitutional “proper cause” requirement for issuance of conceal and carry permits in the State of New York—quite distinguishable from the facts here. Nonetheless, the question is whether the Final Rule would pass constitutional muster post-Bruen where, as the Court reads Bruen, an individual’s right to keep and bear arms for self-defense may not be arbitrarily denied by a state. From the outset, however, it is crucial to note the Final Rule concerns the commercial sale of firearms. The Final Rule does not infringe on any individuals’ or business’ ability to completely manufacturer a firearm for personal use, nor does it restrict the ability to obtain the weapon kits at issue. Instead, the Final Rule simply requires serialization of a firearm, when in the stream of commerce, so that it may be tracked in the event a crime is committed with the firearm. There is a longstanding distinction between the right to keep and bears arms and commercial regulation of firearm sales.

This is a circular argument. The "Final Rule" only impacts commercial sales if the court accepts the ATF and Justice department definitions in the final rule. Otherwise it impacts private manufacture and sales in many different, and unique ways.

Commercial regulation of firearm sales is recent. At the earliest, you could argue it started in 1934 with the NFA. The provision in GCA 1968 did not start until 1968, very recent in the Constitutional terms used in Bruen.

He does this by claiming Congress included the term frame or
receiver as part of what could be "easily converted", when the phrase never applied to unfinished frames or receivers before. It only applied to other weapons, such as starter pistols.

Moreover, Judge Welte inserts a completely new term into the law and the debate: "completely manufacture".  

The Final Rule does not infringe on any individuals’ or business’ ability to completely manufacturer a firearm for personal use,

It is arguable that no firearm has ever been "completely manufactured" by an individual.

Someone else mined the iron ore and refined it into steel.  Someone else made the bricks to build the forge to weld the earliest barrels. Someone else sold the milling machines and/or drill press.  Someone else refined the saltpeter and sulfur and charcoal to make the gun powder.

The rule is *not* about "commercial sales".

It is about the ATF claiming the ability to make your own gun has become too easy. 

It is as if the FCC claimed to be able to regulate the Internet because the ability of people to publish their own thoughts to a large audience has become too easy.

It is a clear Second Amendment issue.  The Court dodged it through the "commercial sales" loophole.

The Second Amendment forbids Congress from saying "Making you own gun is too easy, we will make it harder."

Much of the problem is with the GCA itself. The GCA has many unconstitutional provisions. Judge Welte covers them all up with the "commercial sales" loophole.

If there is no restraint on the definition of "commercial sales" then the loophole to infringe on the Second Amendment is large enough to drive thousands of pages of infringements through.

Judge Welte "tempered" his decision by saying preliminary injunctions are an "extraordinary measure" which the arguments of the plaintiffs do not meet.

The second case, in Texas, followed quickly on the heels of the North Dakota case.

In November, 2021, less than a year ago, Division 80, LLC, started selling what are commonly known as 80% receivers in Galveston County, Texas.  This was six months after the proposed rule was stated by the ATF.  Division 80 filed a lawsuit against ATF based on the proposed "Final Rule" set to go into effect on August 24, 2022.

Division 80 asked for a temporary injunction to prevent the rule from going into effect, stating they would suffer irreversible harm.

On August 24, 2022, the District Court for the Galveston Division of the Southern District of Texas, in the Fifth Circuit Court of Appeals, refused to grant the preliminary injunction, with the following:

Division 80, LLC, located in Galveston County, began selling partially complete firearm receivers in November 2021. It now seeks a nationwide injunction to suspend a proposed rule interpreting the Gun Control Act, 18 U.S.C. §§ 921, et seq. (“the Act”). Dkt. 11. Because Division 80 has failed to show that it will suffer irreparable harm absent an injunction or that the balance of equities favors preliminary relief, the motion is denied.

The judge in the case is Jeffry V Brown.

In the arguments showing that Division 80 is likely to succeed on the merits, p. 4, Division 80 cites Bruen:

The Final Rule’s expansion of ATF ’s jurisdiction into these domains—on the historically significant issue of Second Amendment rights—exceeds Defendants’ statutory authority. Cf.N.Y.State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022) (recognizing “this Nation’s historical tradition” of Second Amendment rights and holding that “the government may not simply posit that the regulation promotes an important interest”).

But Judge Brown states that because Division 80 failed to establish the elements of irreparable harm, they do not need to look at the likelihood of success:

But a court is not justified in exercising its equitable power without a showing of likely irreparable harm, that the equities favor the plaintiff, and that the injunction will serve the public interest. Because Division 80 failed to establish those elements, the court need not address its likelihood of success on the merits.

The Division 80 case was not as strong as the North Dakota case, primarily because Division 80 did not exist as an entity before the "Final Rule" was proposed. Thus it was more difficult for Division 80 to provide evidence of irreparable harm, because it only had existed for less than a year.

The very reason for the existence of Division 80, that of individuals to build their own firearms outside of governmental control, made production of evidence of sales and which states had sales, self defeating.

The Court simply refused to hear any evidence which showed the ability to make a firearm free of government interference, as a part of the Second Amendment.

It is unknown if Division 80 will go out of business. In Texas, Judge Jeffrey V Brown claimed there was no solid evidence to believe such would occur.

According to the Judge, the only documented cost to Division 80 was the requirement to obtain an FFL.

There were numerous Amicus briefs in favor of the Government in the Division 80 case. This correspondent does not recall seeing a single Amicus brief on the side of Division 80.

It was a completely different story with the North Dakota case.

The North Dakota case had 17 states co-signed as plaintiffs against the ATF.  As noted in the Order:

Without a doubt, this case presents divisive issues that all parties care about deeply and that are of national concern and importance, as demonstrated by the participation of nearly every state in this country in this action. Nevertheless, the Court’s role and responsibility remains the same—to apply the law to the facts (and not the arguments or policy) of each case. After doing so here, the balance of the Dataphase factors do not weigh in favor of granting the Plaintiffs a preliminary injunction. Accordingly, the motions (Doc. Nos. 14 and 19) are DENIED, and the Court FINDS AS MOOT the Plaintiffs’ motion for oral argument (Doc. No. 25).

Such is the state of the judiciary and its willful bowing down to the regulatory, administrative state. There has been considerable precedence established during the predominance of progressive ideology in the Appellate courts and on the Supreme Court.

The Thomas Court laid down at least a partial gauntlet with the EPA v West Virginia decision, and the Bruen decision.

Now we have two Second Amendment cases where the lower courts have said "Never Mind".

The North Dakota case, at minimum, will be appealed. It is not so clear in the Division 80 Texas case.

 

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

 

IL: Account of CCW holder who Fired Back at Attackers (Chicago)

“I see my cousin’s face turn weird and I look to the right and see two gunmen at the end of the alley,” he said.

The family member said bullets started hurling toward them.

“We start hearing [whizzing sound] and then the light post starting making all these weird noises, so we’re like, ‘oh, this is serious,'” the man said.

The man, a concealed carry license holder, pulled out his gun.

“I started shooting,” he said. “I stood my ground. I didn’t even move. I stood my ground to defend my family.”

 

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NICS and Gun Sales August 2022: Another Third Highest Month

Lines are from 2021; Bars are from 2022

The numbers for the National Instant background Checks (NICS) and approximate gun sales are in for August of 2022. The month is the third highest on record for both NICS checks and gun sales. This has been a trend in 2022. 

NICS Checks are reported as 2.45 million, while gun sales are approximately 1.24 million. This is 96 percent of what gun sales were in August of 2021 (1.29 million). 

The most gun sales in August occurred in 2020, with 1.67 million. The fourth highest was in 2016, with 1.17 million. 

Several million new gun owners have been added in 2020 and 2022. It is an imprecise figure. The National Shooting Sports Foundation, by using retail surveys, estimates 13. 8 million purchased a firearm or firearms for the first time in 2020 and 2021. It appears the trend has continued in 2022. 

The ratio of NICS checks to gun sales has varied significantly. Relying on NICS checks alone can result in significant errors in gun sales estimates. 

Fortunately, it is possible to dig down in the FBI released figures for NICS and separate actual gun sales from the NICS checks. While those figures are not absolutely unambiguous, they are probably within a percent or two of the number of firearms purchased with NICS checks.

What is not revealed is how many are purchased using a previous NICS check. There are more than 20 million people in the United States who have carry permits. In half of the states, people with permits are not required to submit to the NICS system again, once they have a valid permit. Those sales are not counted in the NICS system.

There is ambiguity about people who make their own guns. Those guns are not included under the NICS system. A person may purchase several guns with one NICS check. Those guns are approximated by multiplying a "multiple sales" NICS check by 2.5. 

President Biden, Governor Hochul of New York, and Governor Newsom of California seem determined to pick up President Obama's mantle of being a fantastic gun salesman.  As these politicians pursue ever stricter and numerous infringements on the ability to buy, sell, keep, and shoot firearms, the Supreme Court is making it more difficult for them to pass and enforce laws which infringe on the Second Amendment.

While the numbers have dropped a little since the record year of 2020, there is enough uncertainty in the world and in the US governmental system to provide incentive for this high level of sales.

While survey polls show varying levels of support for the Second Amendment and for infringements, the economic poll of millions of new gun owners sends an unequivocal message. 

Using the method pioneered by Newton and Zimring and perfected by Gary Kleck  in 1991, there were 458 million guns in private hands at the end of 2020. 

By the end of 2021, the estimated total was about 475 million guns. About 10 million guns have been sold in 2022 so far. 

The increase in the private stock has been about 87% of what is shown in sales figures. This may indicate a significant portion of gun sales are purchases of used guns.

It is expected the total number of private firearms in the USA will reach 489 million by the end of 2022.

Given current trends, there will be more than 500 million firearms in the United States private stock by the end of 2023.  

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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TX: Prosecutor no Longer Seeking Death Penalty in Marvin Guy Case

BELTON, Texas (KWTX) - The Bell County District Attorney’s office is no longer seeking the death penalty in its case against Marvin Guy, the man accused of fatally shooting Killeen Police Detective Charles “Chuck” Dinwiddie during a no-knock drug raid in 2014.

On Friday, Sept. 9, the State of Texas filed a Waiver of the Death Penalty and Request for a Speedy Trial.

Guy remains in the Bell County Jail where he’s been held since May 2014 in lieu of $4 million bond, charged with capital murder and attempted capital murder. His trial date has been reset multiple times since his arrest.

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Judge Benitez Sets Time Limits for Breifs on California Assault Weapon Ban

Senior Judge Rodger T. Benitez

On August 15, 2019, the San Diego Gun Owners Political Action Committee, James Miller, and others filed a lawsuit against then California Attorney General Beccera, challenging the constitutionality of the California "assault weapon" ban.  As the case evolved, it became known as Miller v Bona.

Here is a summation from the complaint filed on August 15, 2019:

1. This is a facial and as applied constitutional challenge to California Penal Code §§ 30515(a)(2) and 30515(a)(5), California Code of Regulations § 5471, subdivs. (b), (n), and (p), and Defendants policies, practices, customs, and enforcement of said law, which define and prohibit certain firearms as “assault weapons” solely because they feature “large-capacity” magazines (capable of holding more than ten rounds of ammunition) as defined by Pen. Code § 16740 and regulated under the now-enjoined Penal Code § 32310. Duncan v. Becerra,Case No. 3:17-cv-1017-BEN-JLB (ECF No. 87). Subdivisions (a)(2) and (a)(5) of Penal Code § 30515 violate the Second Amendment to the United States Constitution by prohibiting law-abiding citizens, including these individual plaintiffs, from obtaining, acquiring, possessing, manufacturing or transferring firearms in common use for lawful purposes such as self-defense inside and outside the home,competition, sport, and hunting.

The state of California fought the lawsuit with all the tools at its disposal. Numerous motions were filed. The historical evidence and arguments presented by both sides were extensive. There were delays because of Covid 19.  In the end, Judge Benitez, citing the 1939 Miller case, Heller, and McDonald, as well as Caetano, decided in favor the plaintiffs. 

Judge Benitez ruled AR15 type rifles, and others defined as "assault weapons" were both common and well suited for militia use and use by individuals for defense of self and others, as well as for other legal purposes. Therefore, the California ban was unconstitutional.

Judgement was granted  in favor of Plaintiffs  June 4, 2021

IT IS HEREBY ORDERED that: 

1. Defendant Attorney General Rob Bonta, and his officers,  agents, servants, employees, and attorneys, and those persons in active concert or  participation with him, and those duly sworn state peace officers and federal law  enforcement officers who gain knowledge of this injunction order or know of the existence  of this injunction order, are enjoined from implementing or enforcing the California Penal  Code §§ 30515(a)(1) through (8) (defining an “assault weapon” by prohibited features),  30800 (deeming those “assault weapons” a public nuisance),30915 (regulating those  “assault weapons” obtained by bequest or inheritance), 30925 (restricting importation of  those “assault weapons” by new residents), 30945 (restricting use of those registered  “assault weapons”), and 30950 (prohibiting possession of those “assault weapons” by minors)  and the penalty provisions §§ 30600, 30605 and 30800as applied to “assault weapons” defined  in Code §§ 30515(a)(1) through (8).

2.Defendant Attorney General Rob Bonta shall provide forthwith, by personal service or  otherwise, actual notice of this order to all law enforcement personnel who are responsible  for implementing or enforcing the enjoined statute. Within 10 days, the government shall  file a declaration establishing proof of such notice. Alternatively, the parties may file  a stipulation.

IT IS SO ORDERED.Dated: June 4, 2021

On June 21, 2021, a three judge panel of the Ninth Circuit stayed Judge Benitez' order until the outcome of the case of Rupp v Bonta was resolved.

On June 28, 2022, following the Supreme Court decision on NYSR&PA v Bruen, the Supreme Court granted cert to Rupp v Bonta, vacated the previous Ninth Circuit decision, and remanded the case back to the Ninth;"Circuit to be reheard. On August 1, 2022, the Ninth Circuit sent the Miller v Bonta case back to Judge Benitez to be re-heard under the specific guidance issued in the Bruen decision. 

The plaintiffs filed a clear and simple brief. They claimed the evidence had already been heard, Bruen only clarified what was already decided in Heller, and judgement should be swift, and in their favor.

From Miller (Plaintiffs') brief: 

Plaintiffs James Miller, et al. (“Plaintiffs”) hereby submit this brief addressing New York State Rifle & Pistol Ass’n, Inc.v. Bruen, 597 U.S. ___, 142 S.Ct. 2111 (Jun. 23, 2022)(“Bruen”)pursuant to this Court’s Order of August 8, 2022 [ECF 125].

Bruen does not change the outcome of this case. Instead, Bruen vindicates this Court’s previous application of the “Heller test” and establishes that Plaintiffs must prevail in their challenge to the State’s Assault Weapons Control Act(“AWCA”).

In Bruen, the Court reasserted principles it clearly applied in Heller.There can now be no dispute over the proper approach to evaluating Second Amendment claims. First, the Court must determine whether “the Second Amendment’s plain text covers an individual’s conduct” that is being restricted by a challenged law or policy. Bruen, 142 S. Ct. at 2129–30. Second, if the answer is yes,the conduct is presumptively protected, and the burden then falls to the government to justify the challenged restriction by “demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”Id. at 2130. If the government cannot make this demonstration, the restriction is unconstitutional, full stop.No interest-balancing or levels-of-scrutiny analysis can or should be conducted. Id. at 2127.

The California government argued the Bruen decision changed everything. Everything had to start all over. They would need extensive time to hire historians to do extensive research which could not be rushed. They needed at least nine months.

From the California Government (defendant's) brief: 

Plaintiffs may contend here that further proceedings to apply Bruen are unnecessary because the Court can summarily rule in favor of Plaintiffs under the Heller common-use analysis set forth in the Court’s original ruling.See Miller, 542 F. Supp. 3d at 1020–23. But this Court’s application of “the Heller test” was based on a view that Heller and United States v. Miller, 307 U.S. 174 (1939), extended Second Amendment protection to “weapons that may also be useful in warfare.” Miller, 542 F. Supp. 3d at 1020 (citing Miller, 307 U.S. at 178) (emphasis added). That is not the same as the text-and-history standard required by Bruen. Bruen suggests that this view is no longer correct, as it repeatedly confirms that self-defense (and not militia service) is the “central component” of the right protected by the Second Amendment. Bruen, 142 S. Ct. at 2133 (quoting McDonald v. City of Chicago, 561 U.S. 742, 767(2010)); see also id.at 2125 (noting that Heller and McDonald“held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense”); id.at 2128 (same).15

The California government said they did not seek to delay the proceedings, and then  requested to delay the proceedings for a minimum of seven months, until March 3, 2023.

Judge Benitez did not grant them seven months. He allowed 45 days for new briefs to be submitted (until mid October). Then another 15 days for briefs to be submitted in response to those briefs (end of October, 2022).  From the court record: 

Minute Entry for proceedings held before Judge Roger T. Benitez:Appeal Mandate Hearing held on 8/29/2022. Appeal Mandate ordered filed for USCA Case Number(s): 21-55608. Injunction dissolved. Both parties have 45 days to file simultaneous additional briefs and 15 days thereafter to file responsive briefs in light of Bruen. The Court will then decide whether to schedule any hearings or decide the case on the record.(Court Reporter Tricia Rosate). (Plaintiff Attorney John W. Dillon). (Defendant Attorney John Darrow Echeverria). (no document attached) (gxr) (Entered: 08/30/2022)

As the historical arguments were already argued in the original case, something truely extraordinary will have to be uncovered to have Judge Benitez change his mind in 60 days.

It is possible Judge Benitez will issue a temporary injunction against enforcement of the ban.

If Judge Benitez issues the same judgement in favor of the plaintiffs as he did on June 4, 2021, expect the case to be immediately appealed to a three judge panel of the Ninth Circuit.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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TX: John Walton Claims Shooting was Self Defense

SAN ANGELO – The suspect accused of shooting another man during a domestic dispute in San Angelo Tuesday evening has claimed self-defense after being arrested for aggravated assault with a deadly weapon.

More Here

IL: 13-Year-Old with Weapon Shot by Legally Armed Vehicle Owner

CHICAGO (WLS) -- A 13-year-old old boy was shot while allegedly breaking into a vehicle Sunday in Chicago's Oakland neighborhood, according to police.

The teen was allegedly seen breaking into a Kia just after 2:30 p.m. in the 3700-block of S. Langley Avenue when he was confronted by the owner, police said.

The vehicle's owner, who is a valid CCL holder, fired shots toward the teen, striking him in the leg.

More Here

Ownership of Arms Protected under Takings, Second Amendment, Fourteenth Amendment

On August 30, 2022, a three judge panel in the Third Circuit Court of Appeals unanimously ruled the Pennsylvania government violated the Takings clause, the Second Amendment, and the Fourteenth Amendment when they refused to return a gun collection of the parents of a man who was convicted of murder.

The parents never committed a crime. The state never used the parents' gun collection as evidence.  From a list of property, this correspondent estimates the 47 guns, accessories, computers and other property as valued at $40,000 and up.

The State refused to return the parents' property, under the rule of force: we have them and we won't give them back.

After their son had lost his appeal, the parents asked for their property back. It had not been used as evidence in the case.  The state refused. The parents sued in federal district court under U.S. 42:1983, civil rights act. The case was filed on June 10, 2020. 

The District court ruled against the parents. 

The parents appealed to the Third Circuit Court of Appeals. 

The appeals court ruling, written by Judge Bibas, appears to be unanimous (no dissent was seen), and very strongly written. The Bruen decision was important in this case.From the order of the three judge panel:

BIBAS, Circuit Judge. Although police may seize potential evidence using a warrant, they may not keep it forever. Yet they did that here. After a man assassinated a Pennsylvania State Trooper and injured another, troopers seized his parents’ guns. The government never used the guns as evidence. And eight years after the crime, once the son lost his last direct appeal, the officers still refused to return them—even though the officers do not claim that the parents or the guns were involved in the crime.

Because the parents were never compensated, they have a takings claim. And because they lawfully owned the guns, they have a Second Amendment claim too. But since they had a real chance to challenge the government’s keeping the guns, they got procedural due process. So we will affirm in part, reverse in part, vacate in part, and remand.

The court made strong statements affirming the Second Amendment protects arms from being arbitrarily confiscated, even if compensation is made:

II.BY HOLDING ON TO THE PARENTS’ GUNS AFTER THE CRIMINAL CASE ENDED, THE OFFICIALS INFRINGED THEIR RIGHT TO KEEP ARMS

The Second Amendment guarantees “the right of the people to keep and bear Arms.” According to the parents, the officials validly seized their guns under a warrant, but violated that right by refusing to return them. To decide that claim, we ask whether the constitutional text and “this Nation’s historical tradition” permit holding on to the guns. N.Y. State Rifle & Pistol Ass’n, Inc.v. Bruen, 142 S. Ct. 2111, 2126 (2022) (abrogating United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010), which set forth our previous framework for evaluating Second Amendment challenges). They do not. We hold that unless an exception applies, the Second Amendment protects a person’s right to keep his lawfully owned guns.

 (snip)

The government notes that the Takings and Due Process Clauses more clearly protect private property. Walters, 660 F.3d at 317; Schwab & Sprankling at 167–68. So, it suggests, the Second Amendment provides “not a property-like right to a specific firearm,” but just a general right to buy guns. Houston, 675 F.3d at 445.

We disagree. We would never say the police may seize and keep printing presses so long as newspapers may replace them, or that they may seize and keep synagogues so long as worshippers may pray elsewhere. Just as those seizures and retentions can violate the First Amendment, seizing and holding onto guns can violate the Second. The Second Amendment may let the government outlaw specific types of weapons—perhaps “dangerous and unusual weapons.” Heller, 554 U.S. at 627 (dicta); accord Bruen, 142 S. Ct. at 2143; Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1548 (2009). But as we have explained, it does forbid unjustifiable burdens on the right to “keep” one’s own arms.

 And that protection is not redundant of more property-focused protections. For instance, the Takings Clause allows seizures so long as the government pays “just compensation.” But the Second Amendment appears to forbid “disarm[ing] private citizens” even if the government compensates those citizens for their property. Cf. Heller, 554 U.S. at 591–92. The other guarantees do not prevent this one from applying too.

This is a strong ruling restoring Second Amendment rights. As a Circuit Court ruling, it is a precedential ruling which applies to the entire Third Circuit. The Third Circuit includes Pennsylvania, New Jersey, Delaware and the District of the Virgin Islands. 

For New Jersey, Delaware, and the District of the Virgin Islands, this is a tsunami in firearms law, potentially washing away decades of Second Amendment infringements.  

The long awaited Bruen decision is restoring Second Amendment rights by affirming the "text and history" requirement for interpreting the plain language of the Constitution, set forth in the Heller decision.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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