State of Texas Suppressor Case Dismissed: Judge rules Plaintiffs have no Standing

On July 18, Judge Mark T. Pittman of the Northern District of Texas, Fort Worth Division, ruled the plaintiffs in the case of Ken Paxton v. Gary M. Restaino ( Previously Dettleback, the case name changes with the name of the head of the ATF) have no standing to pursue the lawsuit, because they have not suffered a concrete harm. The case is dismissed without prejudice, which means it can be refiled with new evidence. The case is the result of passage of Texas bill HB 957. The bill required the Attorney General of Texas to file a lawsuit challenging the constitutionality of the federal law governing the possession and regulation of silencers.

On September 1, 2021, HB 957 became law.

The lawsuit was filed by Ken Paxton, Attorney General of the State of Texas, on February 24, 2022, as required by the passage of Texas Bill HB 957.  The arguments in the lawsuit were bolstered by the Bruen decision published on June 22, 2022. Having a federal law declared unconstitutional is a difficult thing to do. It used to be easier, before ideological Progressives took over the government, starting with President Theodore Roosevelt. Government was cut back a good bit with President Calvin Coolidge, ramped up with President Woodrow Wilson, and pushed into overdrive with the Franklin Delano Roosevelt administration and World War II. Since the Progressive revolution in the Supreme Court in the 1930's, the Court has been far less willing to overturn federal laws. The court has assumed a doctrine a law is presumed to be constitutional if passed by the legislature.

Entities challenging laws, must have "standing". Standing means they have an actual "concrete injury to a legally protected interest". But standing has become a way for judges to pick and choose the cases they want to hear. Judges have granted standing to people in environmental cases, because they have an "interest" in future appreciation of nature trails, for example.  It is hard to have standing against federal criminal law, without being charged with the crime in question. However, denial of Constitutional rights, even for a moment, is considered a concrete injury. Judge Pittman wrote, from the opinion:

 The guidance from our high court on standing continues to be “a morass of imprecision.”1N.H. Rt. to Life Pol. Action Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir. 1996). At best, standing is now “unsettled in nature [and] beset with difficulties.” Thompson v. Cnty. of Franklin, 15 F.3d 245, 247 (2nd Cir. 1994). But luckily for this Court, though no one can pinpoint the height of the doctrine’s “amorphous” bar, it is easy to determine that these Plaintiffs have fallen short of it.

Judge Pittman notices the environmental case Paxton quoted as a way to claim Texas has standing in this instance, but Pittman does not accept the argument. From the opinion:

Texas does not seek to protect any interest remotely akin to the “earth and air within its domain.” Nor does Texas allege that it has any concrete or imminent injury specific to the state or its administration. See Biden, et al. v. Nebraska, et al., 143 S.Ct. 2355, 2358 (2023) (holding that Missouri established standing by showing that it “suffered . . . a concrete injury to a legally protected interest, like property or money”). By its own words, Texas seeks to protect the ability of its individual residents to make firearm silencers at home.

Second Amendment supporters would argue fundamental constitutional rights are every bit as important as regulating the emissions of cars or factories. Judge Pittman does not agree. No one, at this point, has ruled that silencers are protected arms, although they appear to meet all the criteria given in the Supreme Court decisions of Heller, McDonald, Caetano and Bruen. By ruling the plantiffs do not have standing, without prejudice, Judge Pittman removes himself from the case. Judge Pittman wrote an opinion favorable to the Second Amendment in a previous case. Judge Mark T. Pittman struck down the Texas law prohibiting 18-20-year-olds from carrying a handgun in public.

Analysis:

The case is likely to be appealed. It is not certain. Republicans who see AG Ken Paxton as a rival, and their Democratic party allies,  have impeached him. Paxton has been a target of repeated lawfare actions for several years. With the impeachment process going on, Paxton no longer is in charge of the Attorney General office. His replacement may not think the silencer case is important. We will find out in a couple of months.

The insane regulation of silencers/gun mufflers/suppressors is a puzzle to firearm users all over the world. Several countries have had virtually no regulation of the devices. It is difficult to understand why the heavy regulation in the United States was put into effect. Silencers are seldom used in crime. They have significant benefits to protect hearing, reduce sound pollution, aid in training and are more and more being used in the military. They have obvious advantages for defense of the home and for hunting.  Those who wish the population disarmed likely want to keep silencers heavily regulated precisely because of the many advantages of the devices.

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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FL: Jewelry Store Employee Shoots at Armed Robbery Gang

As the woman was leaving after walking around for a few minutes, she held the door open for two men, one who was armed with a hammer, according to police.

The man with the hammer smashed a display case and grabbed multiple items, police said. The second man stood in the doorway and pointed a gun inside at employees and customers.

The store employee shot at the suspects, who left the area. A bullet hit an unoccupied car in the parking lot that belonged to someone who was not involved in the robbery, according to the Tampa Police Department.

No injuries were reported.

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Fifth Circuit Refuses to Grant ATF an Emergency Stay to save "Final Rule" on Receivers and Frames

 

On July 24th, 2023, a three judge panel of the United States Court of Appeals for the Fifth Circuit refused to stay the vacature of two challenged portions of the ATF Final Rule, in the case of VanDerStok v Garland. The preliminary injunction against enforcement of the frame and receiver portions of the Final Rule was issued by Judge O'Conner on August 17, 2022. The vacature is from the Memorandum Opinion by Judge Reed O'Conner, published on June 30, 2023, which vacated (ruled them to be unlawful) the Final Rule. 

Judge O'Conner, told the ATF (the Biden Administration) it did not have authorization from Congress to change the definition of what is a frame or receiver to include partially finished frames or receivers. The ATF did not have the authority to alter the definition of a firearm to include a weapons parts kit.  The ATF appealed to the Fifth Circuit three judge panel. The three judge panel refused to grant an emergency stay on the issues.  From the unpublished order on July 24, 2023:

Because the ATF has not demonstrated a strong likelihood of success on the merits, nor irreparable harm in the absence of a stay, we DENY the government’s request to stay the vacatur of the two challenged portions of the Rule. “[V]acatur . . . reestablish[es] the status quo ante,” Defense Distrib-uted v. Platkin, 55 F.4th 486, 491 (5th Cir. 2022), which is the world before the Rule became effective. This effectively maintains, pending appeal, the status quo that existed for 54 years from 1968 to 2022.

 The ATF is likely correct, however, that the vacatur was overbroad. The district court analyzed the legality of only two of the numerous provisions of the Rule, which contains an explicit severability clause. See 87 Fed.Reg. at 24730. Where a court holds specific portions of a rule unlawful, severance is preferred when doing so “will not impair the function of the [rule] as a whole, and there is no indication that the regulation would not have been passed but for its inclusion.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294 (1988); see also Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1033 (5th Cir. 2019)(vacating only challenged portions of a rule). Because the agency has shown a strong likelihood of success on its assertion that the vacatur of the several non-challenged parts of the Rule was overbroad, we STAY the vacatur, pending appeal, as to the non-challenged provisions.

and

We sua sponte EXPEDITE the appeal to the next available oral argument calendar. To allow time for additional proceedings as appropriate, this order is administratively STAYED for 10 days. 

The two specific issues in the final rule, which were upheld as vacated by Judge Reed O'Conner, are these, from the unpublished order:

First, the Rule expanded the ATF's authority over partially complete, disassembled, or nonfunctional frames and receivers that may be "readily converted" into "frames and receivers," when Congress limited the ATF's authority to only "frames or receivers" in the GCA. Second, another provision of the Rule unlawfully treats component parts of weapons, e.g., a weapon parts kit, as the equivalent of a firearm under the GCA.

Those two issues appeared so clear to the three judge panel, they did not grant an emergency stay to the ATF.

While the three judge panel of the Fifth Circuit did not grant an emergency stay, they administratively stayed the vacating of the order for ten days. Expect the ATF to appeal for an en banc hearing of the full Fifth Circuit Court of Appeals; or to appeal directly to the Supreme Court.

The reasoning of Judge O'Conner is clear. A part cannot both be a partial receiver and a receiver. A collection of parts and some tooling is not a firearm.

The three judge panel consists of Judges Smith, Southwick, and Wilson, Circuit Judges. We should find out what is happening with the non-challenged provisions of the Final Rule in the next 10 days.

This order does not deal with bump stocks or with pistol braces. There are other court cases dealing with those issues. 

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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MI: Armed Samaritan Shoots Armed Robbery Suspect

CASSOPOLIS, MI (WKZO AM/FM) – Police in Cassopolis say a man who allegedly tried to rob a gas station in the village at gunpoint was himself shot by a customer at the station late Thursday night.

Village of Cassopolis Police Chief Todd McMichael says his department was dispatched to the attempted armed robbery and shooting at the Stone Lake Marathon at 221 South Broadway Street just before 10:00 p.m.

When officers arrived on scene, they found a male had been shot several times, and another male holding the suspect at gun point. Officers were able to determine that the male that was shot had attempted to rob the clerk, and was shot by the customer with the gun.

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Brazil: Private Gun Ownership up, Murder rate Down

Brazil President Jair Bolsonaro

One of Brazilian President Jair  Bolsonaro's campaign promises was to reform the extremely burdensome restrictions of the Brazilian legal code on the ownership and use of firearms. Ammoland related the drop in homicides as of early 2020, when the rate had dropped under 20 per 100,000 population. According to the Wilson Center, Progressive thinktank, legal private ownership of firearms grew from about 1.3 million in 2018 to just short of 3 million in 2022.

"Experts" claim the increase in armed citizens has nothing to do with the drop in the homicide rate. From the Wilson Center:

At first glance, this seems to lend credence to far-right former President Jair Bolsonaro’s view on fighting crime. He advocated the indiscriminate use of firearms by the general population as a policy to curb violence. Criminals would “think twice” before robbing an “armed, law-abiding citizen,” he argued. Gun registrations increased by nearly 80 percent between 2019 and 2022, the duration of Mr. Bolsonaro’s term.

However, experts deny that the drop in homicides last year is linked to Mr. Bolsonaro’s pro-gun, tough-on-crime discourse.

The Wilson Center's "80%" increase is difficult to decipher. In the chart they present, the total number of legal, privately owned guns increases about 127%, from 1.3 million to about 2.95 million. These numbers include private firearms owned by service members. If you exclude the firearms owned by service members, the numbers increase from about .65 million to 2.25 million, a 246% increase.  The 80% increase only makes sense if you start with the permits in the first year of Bolsonaro's term, after he had already issued his decree to start the rise in numbers.

Legal private ownership of firearms increased substantially during Bolsonaro's four year term, and homicide rates plummeted. The homicide rate dropped from nearly 31 per 100,000 in 2017 to 19 in 2022. Homicide rates in Brazil Have dropped to the lowest level since 1994.  From AP in Chron.com:

About 47,500 people were slain in Latin America's largest nation in 2022, said a report Thursday by the Brazilian Forum on Public Safety, an independent group that tracks crimes. Its statistics are widely used as a benchmark because there are no official statistics on a national level.

While the number of killings in 2022 was down 2.4% from the previous year, it remained roughly even with levels recorded since 2019. The last time Brazil had less violent deaths was in 2011, with 47,215 killings.

The reporting ignores the increase in the Brazilian population. Citing only raw numbers, for such a comparitson is lying with statistics. The rates of homicide are what should be compared, not the raw numbers. In 2011, using the numbers provided by AP, the rate was 23.8 per 100,000, considerably higher than the 22 as calculated from the AP figures for 2022.

Another source shows 40,800 murders registered, for a homicide rate of 19 per 100,000

Brazil experienced a small 1% drop in homicides in 2022, with 40,800 murders registered, according to the National Homicide Index created by media group Globo.

In 2021, the country registered 41,069 murders according to the same index.

From the various sources, the homicide rate fell from 1 - 2.4 % from 2021. As we see a homicide rate of 19 per 100k in 2022, we would have a rate of about 19.2 to 19.5 in 2021. The rates for 2017, 2018, 2019, and 2020 were, according to  the same macroterends article as above: 30.69, 26.72, 20.88, 22.45. Not only did the homicide rate drop, it stayed at about 70% of the level it had been at the high. The rate of homicide in Brazil had not been that low since 1994. The first effective restrictive firearms regulation was put into effect in 1997.

The "experts" predicted the homicide rate would rise precipitously with an increase in firearms ownership.

From Ammoland, on May 13, 2019, "experts" were predicting  a 2% increase in the murder rate for each 1% increase in the number of firearms in circulation. The number of firearms in circulation is difficult to measure and in dispute. The number of legal firearms in circulation more than doubled. The murder rate fell precipitously, as did the total number of homicides. As previously written, legal firearms ownership rates, illegal firearms ownership rates, and the regulation of firearms have no correlation with homicide rates.

How could the "experts" be so wrong? Because they start with the assumption more guns = more homicides. The assumption is false, as has been demonstrated in numerous countries, now including Brazil.

In science, an hypothesis is established, then a prediction is made about what an experiment will show. The experiment is conducted. If the results of the experiment agree with the predicted results, the hypothesis stands until more experiments show otherwise. The problem with real-world experiments, such as conducted during the four year term of President Bolsonaro, is there are numerous, uncontrolled variables. The basic numbers stand as shown. Gun laws restrictions were reformed, allowing more legal private ownership and carry of firearms. The murder rate dropped precipitously.

The newly elected, far-left President Lula (in a highly disputed election) is working hard to eliminate the Bolsonaro gun reforms.  From apnews.com:

Estimates of the number of guns in civilian hands more than tripled to 2.9 million in a country of 214 million people, according to the Instituto Sou da Paz, a non-profit that monitors public security.

(skip)

 “It’s one thing for the regular citizen to have a gun at home for his protection, as a guarantee, because some people think this is safety. Let them have it. But we cannot allow gun arsenals to be in the people’s hands,” Lula said Friday during a signing ceremony.

(skip)

 “We will keep on fighting for a disarmed country. Who should be well equipped with guns is the Brazilian police and the federal armed
forces,” Lula said.

When your basic assumption is the people should be disarmed, no amount of statistical evidence will persuade you to allow them to be armed.

Brazil has very few firearms compared to the United States. At the highest, its homicide rate was about five to six times that of the United States. Under Bolsonaru, the Brazilian homicide rate dropped. Under President Biden, the USA homicide rate increased. The Brazilian rate, now at 19 per 100,000 is only about 3 times the homicide rate in the United States.  The USA has about 450 million privately owned firearms. Brazil has about 2.9 million (according to the above article). The USA rate of firearms per person is 1.35, that of Brazil is about .0135, or only 1 percent of that of the USA.

With only 1/100 of the rate of firearms ownership in the USA, Brazilians murder about 3-6 times as many people per 100,000 population. This shows the number of firearms owned is virtually meaningless in accounting for the rate of homicide in a country.

The drop in the homicide rate in Brazil shows people who are likely to commit homicide can read papers and see the news. When they know more people are likely to be armed, they can alter their behavior.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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TX: Owner Tracks Down Car Theft Suspects, Gunfight Erupts while Holding Them for Police

The owner of a stolen vehicle shot the suspected culprits, resulting in the death of one of them, after tracing the car to a parking lot outside South Park Mall on Thursday afternoon, according to the San Antonio Police Department (SAPD).

SAPD Chief William McManus stated that the alleged thief fired the first shots after being ordered out of the vehicle at gunpoint by the owner while waiting for police to arrive. The owner was struck before firing back in response.

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Right to Arms in Colonies Predated English Bill of Rights

 

New evidence has surfaced which indicates Englishmen in the American colonies had the right to keep and bear arms before the right was codified in England. In 1606, King James I granted perpetual rights to arms for the Virginia colonies, which covered what would become the southern colonies during the 1600s. From The History of Bans on Types of Arms Before 1900, by David Kopel and Joseph Greenlee, Law review article, 165 pages, 2021.

 In the early history section of the article, one startling fact revealed was the Royal Charter of King James  I, in 1606, granted to members of the Virginia Charter, perpetual rights to:

 bring “sufficient Shipping, and Furniture of Armour, Weapons, Ordinance, Powder, Victual, and other things necessary for the said Plantations and for their Use and Defence there.”

The rights were granted to all settlers of the Virginia colony.

The Charter of New England colonies were granted the same rights. The two charters covered all of what would become the original 13 colonies except for the middle region which contained New York, Pennsylvania, Vermont and New Jersey. Those colonies were originally part of New Netherland, and were conquered by England in 1664.

The English Bill of Rights was enacted by Parliament in 1689, just over a hundred years before the American Bill of Rights was ratified as part of the American Constitution.  Scholars have focused on the American Bill of Rights as deriving from the English Bill of Rights which was codified by the act of parliament in 1689. The King had granted perpetual rights to Englishmen in what would become the Southern and later, New England colonies, 83 years earlier.  The right to arms was stronger in the American colonies than it was in England, in part because arms were such a necessity of life while facing hostile tribes. Hunting for food was embraced in the colonies, but severely restricted in England, where game was considered the property of the landed class and the King.  The roots of the right to arms in America should properly be traced back to the Virginia Charter, establishing an 185 year history instead of a mere 100 year history from the Bill of Rights enacted by the English Parliament.

The necessity of arms was strongly punctuated by the massacre of colonists by Indians in 1622. In spite of the "perpetual" nature of the charter, the 1606 charter was revoked in 1624. The Virginia colony was placed under the direct control of the Crown. This was a strong reminder that monarchical power was not to be trusted.

The English and Dutch colonists were quick to adapt firearms technology which improved the utility of arms on the American scene. From  Arms and Armor of the Pilgrims, 1620-1692, by Harold L. Peterson page 18:

For the first ten years the supremacy of the matchlock was probably not seriously threatened. From 1630 until the outbreak of King Philip’s War in 1675, however, the change is plainly visible. There are more references to matches than to flints in inventories and court records until the beginning of the Pequot War, but the tales of snap-shooting [Pg 18] increase, and during the war the stories of ambushes and surprise attacks throughout New England indicate that flint arms were becoming more plentiful. In 1643 the Plymouth General Court ordered that every soldier should be supplied with either a matchlock or a “snaphance.” By 1645 Governor William Bradford could report that the Plymouth troops had been sent to a muster at Seacunk “well armed all with snaphance peeces.” In 1645, also, while matchlocks were allowed for private arms, the Plymouth General Court allowed only “snaphances” or “firelocks” for Town arms.

With the coming of King Philip’s War, the era of the matchlock at Plymouth was definitely past. The campaigns of that war, forays into the wilderness, night attacks, ambushes, battles in the rain, and encounters between individuals which required snap-shooting indicate clearly that the “snaphance” was the principal weapon. In 1677, towards the end of the war, the Plymouth General Court outlawed the matchlock completely as an acceptable weapon. In abandoning matchlocks at this time, Plymouth was years ahead of Europe where the clumsy firearm persisted until after 1700.

By the time of ratification of the American Bill of Rights with the Second Amendment in 1791, the American colonists had 185 years of experience in the necessity and utility of the right to arms. The experience of the Revolutionary War, where the British repeatedly attempted to disarm the American colonists, was probably the strongest example. It was fresh in the memory of the successful American revolutionaries (the founding fathers). The 170 years of previous experience had served to cement the right as long established before the war.

In addition, the doctrine of the natural rights of man had come to dominate thought of the founding fathers, which re-enforced the moral certitude of the right to arms.

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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CA: Domestic Attempted Break-in, Wrong Address, Resident Shoots Attacker

The Carmichael shooting happened Sunday around 1 a.m. at the Olive Square Apartments on Fair Oaks Boulevard near Hollister Avenue. Sgt. Amar Gandhi, a spokesperson for the Sacramento County Sheriff's Office, said 33-year-old Alonzo Brown was trying to track his girlfriend down using his phone.

That led him to one of the apartment units, but his girlfriend was not there, Gandhi said. He tried to kick the door in and when that failed, he tried to break the window. When he saw someone inside, he shot at them.

But as Gandhi explained, that attack backfired for Brown.

"The best part about this was that the resident at the apartment who was a legal firearm owner actually fired back," Gandhi said.

 

 

 

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IN: Brandon Sanchez Shot, Killed, Person Cooperating with Police

INDIANAPOLIS — A man is dead after being shot on the east side of Indianapolis overnight.

Around 3 a.m., officers with Indianapolis Metropolitan Police Department said they were called to 3366 Wallace Avenue for a report of a person shot.

According to police, when they arrived they found an adult male, later identified as 32-year old Brandon Sanchez, with gunshot injuries in front of the residence.

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Judge Benitez July 18 Hearing on California Ammunition Law, Rhodes v. Bonta

Senior Judge Rodger T. Benitez 

On July 18, 2023, Judge Roger T. Benitez heard statements from opposing attorneys on the former Rhode v Becerra, now Rhode v. Bonta lawsuit. There were no objections to combining the hearing on the preliminary injunction with the trial on the merits. This case was vacated by the Ninth Circuit Court of Appeals and sent back to Judge Benitez because of the Bruen decision at the Supreme Court.

The Rhodes v Bonta case deals with the Draconian restrictions which California enacted on the sale of ammunition within the state, and on the importation of ammunition from other states into California. The law may be the most restrictive law dealing with the purchase of ammunition ever enacted in the United States. Judge Benitez knows he is in a hostile environment in the Ninth Circuit. Judge Benitez is being extremely careful and diligent in his approach. All sides know, whatever the outcome, the case will be appealed to a three judge panel of the Ninth Circuit. From michaellawyers.com, Docket text  of the July 18, 2023 hearing:

Docket Text: Minute Entry for proceedings held before Judge Roger T. Benitez: Preliminary Injunction Hearing held on 7/17/2023. No objections were heard as to combining the preliminary injunction hearing with a trial on the merits. Within 30 days of today, Plaintiffs shall file a declaration(s) regarding their Article III standing. Within 30 days of today, Defendant shall name and file an expert report(s) or declaration(s) regarding the American history and tradition of background checks. Within 15 days thereafter, Plaintiffs shall decide whether to depose said expert(s), and within 30 days after deciding, Plaintiffs shall file a brief or expert declaration(s) in response. Additionally, within 30 days of today, Defendant shall file an updated declaration regarding ammunition purchaser background check acceptance/rejection rates and processing times, as performed previously. Additionally, within 30 days of today, Defendant shall report to the extent ascertainable, on persons described in previous declarations as persons who underwent background checks and were identified as prohibited persons and indicate whether such persons were prosecuted and whether firearms were located and seized from such persons.(Court Reporter/ECR Juliet Eichenlaub). (Plaintiff Attorney Sean Brady, Konstadinas T. Morou). (Defendant Attorney Christina R. B. Lopez, John D. Echeverria). (no document attached) (gxr)

 

Judge Benitez is also hearing cases under the guidance of the Bruen decision on the California magazine ban, the California "assault weapons" ban, and a California ban on "billy" clubs. Hawaii settled a lawsuit (in the Ninth Circuit) where the state essentially admitted a ban on billy clubs was unconstitutional. Judge Benitez originally held the "billy" club ban to be constitutional because of its age, under the old, discredited findings of the Ninth Circuit on how the Second Amendment was supposed to be interpreted. Under Caetano and  Bruen, this correspondent expects the law to be found unconstitutional.

The California Rifle and Pistol Association (CRPA) has reported, that at the hearing on July 18, Judge Benitez assured all parties he is working hard on all these cases. From the crpa.org:

Judge Benitez also assured everyone in court that he is hard at work on decisions in other Second Amendment cases pending before him, including CRPA’s Duncan case challenging the ban on magazines that can hold over 10 rounds, the challenge to the California “assault weapon” law, and a challenge to the state law banning possession of “billy” clubs. The Judge noted that his calendar has been especially busy,but also that he is taking the time to read, and will be addressing in his decisions, every bit of evidence and scholarship submitted in those cases. Considering the different rulings on these issues coming out from other federal courts in other states, we expect the decisions we eventually get will be the most thorough and comprehensive decisions yet issued by any court.

The CRPA is asking members to report instances where they have been refused the ability to purchase ammunition under the California ban, as a response to the claim the CRPA does not have "standing" to contest the ban.

Judge Benitez' published opinions on previous cases have been things of beauty in logic and reason. This has earned Judge Benitez the appellation of "Saint" Benitez in the eyes of Constitutionalists and Second Amendment supporters. Judge Benitez was born in Cuba. This may help explain his acute understanding of the Constitution and the Bill of Rights.

The numerous cases generated under the Bruen decision are working their way through the courts. Bruen holds the promise of restoring Second Amendment rights which have been heavily infringed for more than a century. To restore the rights under the Second Amendment, the proper procedures must be followed, and the Supreme Courts decision made more clear and certain through careful and clear lower court opinions. Judge Benitez is doing his job.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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IN: Domestic Defense? James More III Shot, Killed in Dispute with Woman

INDIANAPOLIS — IMPD detectives believe they know who shot a man whose body was found in a retention pond on the far west side of Indianapolis, but the shooter is not under arrest. 

First responders found the body of 42-year-old James Moore III in the Berkshire Lakes neighborhood pond, near South Raceway Road and West Morris Street, around 10:30 a.m. Sunday. But police believe he was shot in the neighborhood around 4 a.m. Saturday.

Police first came to a house in the neighborhood early Saturday on a report of shots fired. His wife, Vinecia Moore, told 13News that James was in a dispute with another woman at the address when he was shot by a man who lives there. 

James allegedly fled the scene. Police found his car and searched the area, even using a drone, but could not find him Saturday. His family says a trail of blood led to the pond where James' body was discovered Sunday morning.

 

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TX: Domestic: Armed Samaritan Shoots Man who attacked Woman

DALLAS - Dallas police said a 28-year-old man was shot by another man who saw him assaulting a female early Saturday morning.

This happened just after 2 a.m., in the 2400 block of Hillburn Drive.

Investigators found that Alfonso Delgado Morales, was arguing with a female, and he started hitting her.

 

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Bear Attacks in Japan: 4 Fatalities in 2021 in Hokkaido Province/Island

Map of Hokkaido, public domain

In the most northern Island of Japan, Hokkaido, enormous brown bears are thriving. The population has more than doubled to about 12,000 since 1990. The bears are a closely related subspecies of brown/grizzly bears. Because they live in a similar environment to Kodiak Island, the bears are similar in size the the enormous Kodiak bears. The bear population in the Shirtoko National Park is said to be one of the highest concentrations of bears in the world. Because of the increasing population of bears, the number of people injured or killed by the bears has been rising, and is similar to the numbers in Alaska, although Alaska has about 3-4 times as many brown/grizzly bears. In fiscal year 2021, four people were killed by bears in Hokkaido. The average has been about one per year.  From japannews.yomiuri.co.jp:

“Because the brown bear population has increased, we have entered a new period in which humans are coming into contact with them more often,” said Yoshikazu Sato, professor at Rakuno Gakuen University in Hokkaido and an expert on brown bear ecology. “Whenever we go into a forest, we need to assume that bears are nearby.”

A prefectural government official said, “We want to have bears fear humans and reduce the amount of damage they cause.”

There is a long open season on the bears in Hokkaido, from October to January. The season coincides with a significant period of bear hibernation (December to March). Bears were previously killed in the spring. Until 1990, bears were considered pests. From powderlife.com:

Until 1990, Hokkaido had a policy of allowing hunters to exterminate brown bears but this was abolished due to conservation concerns.

Since that time, researchers at Hokkaido University and other institutions have confirmed a rapid increase in the brown bear population, something anecdotally understood by many farmers and residents of Hokkaido’s rural and suburban areas.

A current proposal would extend the current bear hunting season to April. In 2021, licensed private hunters killed 45 bears. Government trappers/hunters killed over a thousand, in an attempt to limit damage to crops and danger to humans. The trend is toward larger numbers of bears killed, as the bear population continues to increase. From mainichi.jp:

A total of 1,056 brown bears in Hokkaido were caught and killed through hunting or extermination measures in fiscal 2021, according to information collected by the prefectural government. This is the highest figure on record since fiscal 1962, and the first time the number has surpassed 1,000.

Meanwhile, the number of people injured or killed in incidents involving bears was 14 in fiscal 2021, and the total amount of damage to crops caused by the animals was 262 million yen (about $2.05 million) -- both figures are also the highest on record. As the brown bear population has increased, so too has the number of times they have appeared in populated places and surrounding areas.

According to the brown bear task force of the Hokkaido government's Natural Environment Division, the number of bears culled annually in the prefecture has fluctuated over the past 60 years, but in recent times numbers have remained high with over 800 for the last five years. Fiscal 2021 saw an increase of 126 from the previous fiscal year, setting a record for the second straight year. 

Obtaining a firearms permit to hunt bears is a difficult and time consuming process in Japan. The number of people willing to hunt the bears is decreasing. Accumulated knowledge of bear hunting is dying out on Hokkaido. The numbers from Hokkaido show a harvest of over eight percent of the bear population may be necessary to keep the number of bears to the desired level. Much of the depredation removal of problem bears is by trapping and killing the bears. The Japanese bear trap is an ingenious spring-powered foot snare, similar to  the Aldrich Bear Humane Foot Snare, but using a different trigger mechanism.

Video showing Japanese bear snare/trap.

Analysis: There is a tremendous demand for trophy bear hunts internationally. Sportsmen are willing to pay $25,000 - $30,000 for a hunt. Hokkaido could sell bear hunts and bring in several million dollars a year to the local economy. Such a change would make economic sense. It would be in opposition to the centuries old Japanese government policies of keeping firearms under extremely restrictive regulation.

No records of the defensive use of handguns against bears have been recorded in Japan. Japanese laws restricting the possession and use of handguns make it nearly impossible for Japanese to legally possess, let alone carry, handguns.

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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Book Review: Gunpowder: Alchemy, Bombards, & Pyrotechnics: The History of the Explosive that Changed the World

Gunpowder: Alchemy, Bombards, & Pyrotechnics: The History of the Explosive that Changed the World, by Jack Kelly, 261 pages, published by  Basic Books in 2004.  Available on Amazon in hardcover for as little as $5.49 used or $11.99 on Kindle.

Gunpowder by Jack Kelly is the best history on the subject this writer has encountered. It is not a "how to" book, although the essentials of how to make black powder are covered in enough detail that one could do so. The book elaborates on the thousands, perhaps hundreds of thousands of persons who died while making black powder over the roughly 800 years of its primacy. "Gunpowder" starts with an examination of the long development of the "fire drug" in China, from about 1050 A.D. to 1230 A.D. During this 180 year period, Chinese "fire drug" producers learned to increase the amount of saltpeter to the optimum amount of about 75% of the total by weight, with 15% softwood charcoal and 10% sulfur. The type of wood used for the charcoal is critical to the quality of the gunpowder produced.

The formula for gunpowder was likely transmitted to Europe through the Muslim world. While both Chinese and Muslim cultures had access to the information, it was Europeans who perfected gunpowder to a form which was relatively stable and could be transported across oceans in usable condition. In this form it was ready to use at a moments notice in relatively fast loading, reliable and accurate cannon and handheld individual weapons.

Gunpowder was used militarily in Europe at least as early as 1326. It was used in the Battle of Crécy in 1346. By the late 1300s European inventors had created a major improvement, the wrought iron stave and ring cannon known as bombards. Later, in 1451, a European transferred state of the art gun casting technology to the Muslim empire, which allowed the Turkish Sultan to conquer Constantinople.

Kelly is eminently readable and highly informative. The book is not an academic paper. It does not use footnotes. At the back of the book there are seven pages explaining the sources (p. 243-250) used in each chapter of the book, with a synopsis of what is covered in each source.

Kelly gives a good summation of the rise of firearms in Japan and their suppression by the Shoguns. He explains the enormous advantages corned gunpowder gave to Europeans, the transition from matchlock to flintlock, with an explanation of why the wheel-lock eventually was superseded. He writes of the curious lull in firearms advancement from 1650 to 1800. He explains the industrialization of firearms production. He includes the rise of Samuel Colt and his revolvers with fascinating details. The history of gunpowder is interwoven with the history of warfare. There is a wonderful section on the 250 year history of the use of smoothbore, muzzleloading cannon on ships.

In Gunpowder, you will find interesting nuggets of information. During the Civil War in the United States, a Dupont was sent to England, very early, to corral the supply of saltpeter from India. He purchased years worth of output, locking the Confederacy out of the market. Later, as the price of saltpeter from India skyrocketed, the Duponts developed a method to convert sodium nitrate to potassium nitrate, breaking the India (controlled by the British) lock on the market.

There are a few  instances where Kelly seems to have lapsed to political correctness. His description of the Atlantic slave trade places the effect entirely on Europeans. He never mentions the Islamic slave trade, which lasted longer and was more destructive of the victims.  He implies life would have been better without the European trade. An equally plausible hypothesis is the victims sold as slaves would have been killed in the inter-tribal warfare, or served as slaves in Africa.

Gunpowder by Kelly is well worth reading for those interested in the history of technology, warfare, and firearms.

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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GA: Domestic Defense, Woman Shoots Man in Front of Children

Preliminary information:  On 7/15/23 at around 11:07 p.m., Atlanta police responded to a person shot call at 201 Moury Ave SW.  Upon arrival, officers located a male with a gunshot wound.  He was transported to the hospital alert, conscious and breathing for further medical treatment.  A female, who was still on scene was identified as the shooter.

 

Further investigation revealed the male and female are known acquaintances who were engaged in a verbal dispute shortly before the shooting.  The verbal dispute led to the male physically assaulting the female in front of her children.  She then in turn produced a handgun and both fought over it when the gun discharged striking the male.

 

The female did not want to press charges for the assault; however the incident did occur in the presence of her children therefore the male, identified as 56-year-old Ricky Davis was charged with Cruelty to Children. He was later released from the hospital and transported to the Fulton County Jail.

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MI: One Man Shot, Four more Arrested In Home Invasion/Armed Robbery

On Tuesday afternoon, Brooks said he expected to arraign the five men — ranging in ages from 38 to 44 years old — later the same day. Some of the men have Midland addresses. Others have unknown addresses, according to arrest records.  

Greene said at about 2:30 a.m. Sunday, deputies responded to a complaint at the Warren Township residence regarding unknown subjects attempting to break into a residence and that shots were fired. A 40-year-old man reportedly involved in the attempted robbery was shot by a resident at the house. He is in stable condition.

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NICS June 2023 Gun Sales Drop dramatically from June 2022

 

A dramatic decrease in the level of firearms sales through the National Instant background Check System (NICS ) occurred for June of 2023. Monthly firearm sales in 2023 have been the third or fourth highest of the 25 years recorded in the FBI NICS records. In June of 2023, the adjusted sales dropped 21% from the 2022 figures.The number of gun sales in June of 2022 was about 1.35 million. In June of 2023 it was about 1.06 million. In spite of the drop in gun sales, the month continued the trend of over 1 million gun sales each month for the past 47 months, since September of 2019. The FBI total NICS check numbers for the month were 2.26 million. The background check numbers and the number of gun sales have become less and less correlated as the NICS system is used for more and more purposes. However the numbers for  June of 2023 for both were the fifth highest for the month on record.

June and July tend to be low months for gun sales. Hunting seasons are at a low ebb. Christmas is past and yet to be anticipated for the next year. Summer sports take up more time. In 2023, the anti-Second Amendment activism of the Biden administration is off set by the effects of the Supreme Court treating the Second Amendment as an actual part of the Bill of Rights.

The sales of over a million firearms through the NICS system in the last month indicate the floor of gun sales may be approximated by the 1 million figure. Many new gun owners have been created in the past 15 years as President Obama and his allies have been working hard to fundamentally transform the United States of America.

As a partial reaction to the national and international uncertainty caused by Obama's policies and the reaction to them, people feel uncertain and unsafe The debacle in Afghanistan, the Russian-Ukrainian war, roaring inflation, rising urban violence, and an out of control border with Mexico all contribute to to feelings of uncertainty and a lack of security. A rational response is to seek more personal control and power in the form of personally owned firearms. The politics of restrictions on firearms sales and gun ownership are likely to become more important as the nation moves into the 2024 political season.

Gun owners are moving toward a majority position among voters. The way gun owners perceive the current administration is important to national politics. As more and more voters find the old media unreliable, the ability to paper over plausible threats to public safety and the Republic decreases.

As a corollary to the fall in gun sales, ammunition supplies are relatively high. Prices of some common calibers have dropped, and some reloading supplies are being seen on gun store shelves and advertised on the Internet. Availability has not reached the levels experienced in 2018, but it is higher than it has been.  For the contrarian firearms enthusiast, this offers an opportunity to stock up on supplies which well hold their value during the current inflation.

Some people advise consumers to invest in precious metals such as gold and silver. In the right combination, metals such as copper, brass, and lead can be just as useful. The shelf life of ammunition is at least several decades. It is a known and useful commodity in difficult times.

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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TX: Domestic Defense? Armed Samaritan Shoots man in Fight with Three Women

WACO, Texas (KWTX) - A man is dead after police say a bystander shot and killed him when he heard three women calling for help inside a room at Hotel Indigo on 211 Clay Ave. The shooter cooperated with police and was not arrested.

Police say it started around 3 a.m. when a man staying at the hotel heard people yelling for help in the hallway.

He found a room where a man was in a fight with three women. Police say in a press release, the bystander tried to help, but it upset the “original aggressor”.

The original aggressor attacked the bystander, which prompted the bystander to fire one shot at the original aggressor.

 

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PA: Gunfight, Armed Pizza Delivery Driver Shoots, Wounds Carjacking Suspect

PHILADELPHIA (CBS) -- A pizza delivery driver on his first day on the job shot and injured a man trying to steal his car and rob him. The incident happened outside a Chestnut Hill apartment complex just before midnight on Tuesday.

The 21-year-old man was delivering pizza when two armed men in masks forced him into the back seat of his vehicle, demanded money, and attempted to take his car.

According to the business where the driver works, the suspects placed an order to the apartment complex on the 7700 block of Stenton Avenue and then attempted to rob the driver.

"At one point, the 21-year-old delivery man was able to get out of the vehicle and confronted one of the perpetrators who had a gun and the 21-year-old delivery man, we know, fired at least two shots," said Philadelphia Police Chief Inspector Scott Small.

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MS: 18-Year-Old Armed Robbery Suspect Shot while Attempting Armed Robbery

An 18-year-old is dead after being shot while allegedly committing an armed robbery on Sunday, according to authorities. Leflore County Sheriff’s Department Investigator Bill Staten said Kyler Matthews, 18, of Greenwood was the alleged robber during an incident in front of W.J. Bishop Apartments on Clay Avenue.

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Flat Tire Leads to Gunfight in North Carolina, Trooper Shot in Vest with .44 Magnum

Image from Buncombe County DA

On the evening of July 3rd, at about 7:30 P.M. North Carolina State Trooper Jeffrey L. Dunlap noticed a disabled vehicle on the shoulder of I-26, near milepost 33.  From media reports, it appears Wesley Scot Taylor, 56, was in the process of changing a tire when Trooper Jeffrey L. Dunlap stopped to investigate. The interaction was friendly until Dunlap asked Taylor to take an alcohol test. Dunlap says he smelled alcohol on Taylor's breath. Taylor went to the cab of his truck. Dunlap thought he was obtaining a tool to aid in the changing of the tire. Taylor returned with a Desert Eagle handgun, chambered in .44 magnum, as reported by the Buncombe County DA. There is reported to be dashcam camera video showing the gunfight which ensued. Taylor is reported as firing the first shot, which is said to have occurred moments after the screenshot shown above. Dunlap returned fire and killed Taylor. The dashcam video has not been released to the public as of this writing. From wlos.com: 

Per the State Bureau of Investigation review, District Attorney Todd Williams said Dunlap pulled over to assist the driver, Wesley Taylor, of Leicester, and smelled alcohol on his breath. According to Williams, the interaction changed once Trooper Dunlap asked Taylor to take an alcohol test.

“At that point, some friction erupted," Williams said. "And Mr. Taylor went into his car and Trooper Dunlap assumed that he was getting other tools to get his tire back on, get his wheel back on, and emerged with a .44 Magnum Desert Eagle."

At that point, Taylor pulled the trigger, shooting Dunlap in the chest. The bullet was stopped by the trooper’s bulletproof vest, where it remained lodged, Williams said. Dunlap then quickly pulled his gun from its holster and returned fire, killing Taylor.

WLOS investigations shows Wesley Scot Taylor had been convicted of multiple felonies in Kentucky between 1984 and 1990, and had served time for those offenses over 30 years ago. From wlos.com, checking criminal records:

According to North Carolina records, Taylor only had traffic citations and violations. In October 2021, he was charged with an expired registration card/tag and an expired inspection. In February 2022, he pleaded guilty and responsible to those charges. Taylor was also charged with driving while impaired in 2012, which was dismissed by the district attorney in Buncombe County at the time, Ron Moore. In 2012, charges for an expired registration and driving under the influence were also dismissed by the DA.

 In Kentucky, between 1984-1990, Taylor was found guilty of charges ranging from aggravated assault, fugitive warrants, forcible sex offenses, and burglary, for which he served time.

 WLOS interviewed Taylor's neighbors. From wlos.com article with interviews from neighbors: 

“There’s a lot of people doing things they shouldn’t be doing,” said Taylor’s neighbor. “I guess that’s just their reaction when they get caught, to try and take care of it themselves.

(snip)

Another neighbor told News 13 Taylor was a "great guy" and they are left stunned by the news.

It is to be hoped the dashcam video will be released to the public. The Buncombe County DA released this image of a bullet, said to be the bullet stopped by Dunlap's bullet resistant vest.

Obtaining measurements from a photograph can be difficult. In the photograph, the diameter of the bullet base appears to be 10mm or less. It may be much of the vest worn by Dunlap was cut away to reveal the bullet, but it does not appear to be embedded very much in the remaining material. A .44 Magnum bullet is .429 inches in diameter, or 10.9 mm. It would have been better if a digital caliper were used to measure the bullet diameter, and included in the photograph.

No toxicology reports for Taylor have been found by this correspondent.  Trooper Dunlap has been found justified in his actions.From foxnews.com: 

A veteran North Carolina state trooper was justified in fatally shooting an armed suspect during a traffic stop in which the gunman opened fire on him, with only his ballistic vest saving his life, prosecutors said Tuesday.

Analysis:

Wesley Scott Taylor was a convicted felon over thirty years ago. He appears to have been a drinker. The courts have ruled one may be convicted of drinking and driving on circumstantial evidence, even if you are not driving at the time. While Taylor was not driving, he faced the potential of a decade in jail for possession of a firearm as a felon. The request for an alcohol test might have triggered a cascade of consequences Taylor was unwilling to face. Alcohol test leads to arrest. Arrest leads to towing of the car, then search of the car. Search of the car leads to discovery of the Desert Eagle. With today's interconnected databases, arrest and fingerprinting lead to felony charges for illegal possession of the pistol, with a potential of 10 years in prison and a $10,000 fine. Taylor seems to have created a new and peaceful life for himself in North Carolina. All was now at risk because of a flat tire leading to a cascade of consequences. If Taylor's judgement was affected by alcohol, it likely contributed to his decision to start a gunfight. He might have believed he could flee the scene without being identified. If so, it was a fantasy, considering the dashcam and existing operating procedures by most law enforcement.

Taylor could have avoided those consequences if he were not drinking and not in possession of a firearm. As a society, the United States has demonized drinking and driving to unprecedented levels. For 55 years Federal law has created a lifetime ban on the possession of firearms by felons. It is ironic the law which contributed the most to Taylor's potential legal risk is being challenged in the courts as unconstitutional. 

The Roman Senator and Historian, Tacitus, is quoted as writing (translated): 

The more numerous the laws, the more corrupt the state.

 

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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CA: Teenager Shot as He attempted Robbery of Armed Victim

VISALIA, Calif. (FOX26) — A teenager is recovering and will soon be in jail following a failed robbery attempt in Visalia.

According to the Visalia Police Department, officers were called Sunday just before midnight to Dinuba Boulevard and Riggin Avenue regarding a shooting.

Officers say they found a 15-year-old boy with a gunshot wound to his leg.

During the investigation, the Visalia Police Department learned that the boy tried to rob a man at gunpoint but was instead shot in the leg by the victim.

 

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VanDerStok v. Garland Partial Frames or Receivers are not Frames or Receivers.

 

During the Biden administration, the ATF has worked to vastly expand the definition of what a "frame or receiver" of a firearm is. On June 30, 2023, Texas District Judge Reed O'Conner vacated the ATF "Final Rule" on frames and receivers.  From the order p. 3:

This case presents the question of whether the federal government may lawfully regulate partially manufactured firearm components, related firearm products, and other tools and materials in keeping with the Gun Control Act of 1968. Because the Court concludes that the government cannot regulate those items without violating federal law, the Court holds that the government’s recently enacted Final Rule, Definition of “Frame or Receiver” and Identification of Firearms, 87 Fed. Reg. 24,652 (codified at 27 C.F.R. pts. 447, 478, and 479), is unlawful agency action taken in excess of the ATF’s statutory jurisdiction. On this basis, the Court vacates the Final Rule.

The order does not accept the argument the ATF can change the definition of what is a firearm without congressional approval. The order shows Congress could have used the language the ATF now prefers, but Congress did not. From the order p. 27:

As this Court has previously discussed, the definition of “firearm” in the Gun Control Act does not cover all firearm parts. It covers specifically “the frame or receiver of any such weapon” that Congress defined as a firearm. 18 U.S.C. §921(a)(3)(B). And that which maybe come or may be converted to a functional receiver is not itself a receiver. Congress could have included firearm parts that “may readily be converted” to frames or receivers, as it did with “weapons” that “may readily be converted” to fire a projectile. Id. § 921(a)(3)(A), (a)(4)(B). But it omitted that language when talking about frames and receivers.

Judge O'Conner elaborates on what Congress did not do. He writes the ATF may not overrule Congress.  From P. 28 of the order:

Congress excluded other adjectives that ATF adds to its definition. Specifically, the Final Rule covers “disassembled” and “nonfunctional”frames and receivers. 27 C.F.R. §478.12(c). Congress’s definition does not. Again, compare the language in Congress’s primary definition of “firearm” to its secondary definition covering frames and receivers. The primary definition of “firearm” includes any “weapon” that “is designed to” fire a projectile. 18 U.S.C. §921(a)(3)(A). That language covers disassembled, nonfunctional, and antique firearms because they are “designed” to fire projectiles even if they are practically unable to do so. But Congress wanted to exclude antiques, so it explicitly said the “term does not include an antique firearm,” once again demonstrating awareness of the scope of the language it chose. Id.§921(a)(3). In contrast, Congress did not choose to cover firearm parts that are “designed” to be frames or receivers—that is, incomplete, nonfunctional frames or receivers. “That omission is telling,” particularly when Congress used the more expansive terminology in the same definition. Collins, 141 S. Ct. at 1782.In sum, ATF’s new definition of “frame or receiver” in 27 C.F.R. §478.12(c) is facially unlawful given its conflict with the ordinary meaning of those terms as read within their immediate statutory context. Sturgeon, 577 U.S. at 438 (cleaned up).

Judge O'Conner uses basic logic. Ayn Rand would approve. A cannot be both A and not A. From P. 29:

Logic dictates that a part cannot be both not yet a receiver and receiver at the same time. Defendants’ reliance on that logical contradiction is fatal to their argument.

 Judge O'Conner goes on to show that "weapons parts kits are not weapons". From P 35:

In sum, there is a legal distinction between a weapon parts kit, which may be an aggregation of partially manufactured parts not subject to the agency’s regulatory authority, and a “weapon” which “may readily be completed [or] assembled . . . to expel a projectile.” 18 U.S.C. §921(a)(3)(A). Defendants contend that drawing such a distinction will produce the absurd result whereby a person lawfully prohibited from possessing a firearm can obtain the necessary components and, given advances in technology, self-manufacture a firearm with relative ease and efficiency.86 Even if it is true that such an interpretation creates loopholes that as a policy matter should be avoided, it not the role of the judiciary to correct them. That is up to Congress. And until Congress enacts a different statute, the Court is bound to enforce the law as written.

The ATF contends it is absurd to consider a prohibited person could not legally possess a firearm, but could possess the means to create one in a few hours.  However, this has been true for decades, not just in the last few years. 

It is more absurd to assert a kit and a finished weapon are the same. 

In the United States, the philosophy in law is:

 "That which is not forbidden is allowed."  

In authoritarian polities, the philosophy is: 

"That which is not allowed is forbidden." 

The gulf between the two philosophies is large.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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TX: Gunfight in Waco: Bystander Grazed in Attempted Robbery

Police say the suspect walked into the store and demanded money from the cashier. When he threatened the cashier with his gun, the cashier responded by pulling out his own gun. Investigators say they began shooting at each other.

The suspect got away and the store clerk told police he believed the suspect was hit by bullets. Meanwhile, a customer in the store was grazed by a bullet, but that person refused medical treatment.

Police are still looking for the suspect. The cashier has been detained for questioning.

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Supreme Court Agrees to Hear Rahimi Restraining Order Second Amendment Case

The Supreme Court, on the last day available this session, June 30, 2023, agreed to hear a Second Amendment case, United States v. Rahimi. This is not good news for Second Amendment supporters. It is not terrible news. It signals a willingness in the Court to tolerate some Biden administration resistance to recognizing Second Amendment rights as put forward in the Bruen decision last year. From supremecourt.gov:

UNITED STATES V. RAHIMI, ZACKEY

The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted.

The Biden administration pushed to have the Rahimi case moved to the head of the line for a grant of certiorari. The case has been completely mischaracterized in the media. Unfortunately, even Supreme Court justices have been shown to be swayed by sympathetic defendants.  Zackey Rahimi is not a sympathetic defendant. He is an acknowledged drug dealer who committed several crimes with firearms. He was convicted of those crimes and sentenced to 73 months in prison. A three judge panel on the Fifth Circuit held another charge, of being in possession of a firearm while under a domestic violence restraining order, was unconstitutional.  Rahimi was never convicted of domestic violence.  The case was never about domestic violence. It is about due process of law.

The three judge panel is clearly correct on its application of law in the Rahimi case, the Biden administration, with the aid of the media, may have seen a possibility to short circuit the Bruen decision with an unsympathetic defendant. Numerous articles in the Media have characterized Rahimi as a domestic abuser. It may, or may not be true. He was never convicted of domestic abuse in a court of law.  There are numerous other convictions which bar him from the possession of firearms under federal law. Whether Rahimi retains a right to keep and bear arms is not in question. The question before the Fifth Circuit was, and before the Supreme Court is:

May a fundamental constitutional right, enumerated in the Bill of Rights, be taken from a person with a mere restraining order?

The Fifth Circuit three judge panel correctly wrote an opinion which showed there was no historical precedent for taking Constitutional rights based on mere restraining orders.

Rahimi did not wish to have the case taken before the Supreme Court. He had won. This is entirely understandable. His lawyers made a cogent point: there are numerous other cases in the appeals courts. Some of those cases should be allowed to be heard before the Supreme Court takes this case.

At least four judges on the Supreme Court agreed to hear the case next year. The timing is uncertain. Four judges, at minimum, think the case should be heard.  Judges usually do not agree to hear cases with which they agree. It is not always true; it is the way to bet.  It is possible a justice or two wants to hear the case, to slap down the Biden administration, but that seems unlikely.

The Biden administration slowed down other cases which have more sympathetic defendants, while pushing hard to have the Rahimi case moved to the head of the line.

It will be months before the Rahimi case is heard. The decision is unlikely to be announced before June, 2024, only a few months before the 2024 election. The media mischaracterization of the case will be on the level of the Dobbs case last year.

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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IN: Resident Sleeping in Van Parked in Driveway Shoots 18-Year-Old Who was Beaking into Vehicle

Police told 13News that a preliminary investigation indicated a resident in the neighborhood was sleeping in his van parked in a home's driveway and woke up to a person breaking into the vehicle.

The resident shot the person, described by police as a female under 18, twice. The girl ran from the car and was located by police at a nearby home with two gunshot wounds. She was alert and interacting with medics when taken to Riley Hospital for Children, and her injuries are not believed to be life-threatening, police said.

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Fourth Handgun Defensive Failure Against Bears Discovered, Canada, 1986

A plausible fourth failure of a defensive fireing of a handgun against a bear has been discovered. The fourth incident was found in the incidents discovered in the Freedom of Information Act (FOIA) request for a polar bear and human conflict database. The incident occurred near Churchill, Canada, as part of two incidents from October 19 to October 26, 1986. Bear spray had recently become available. There are two separate incidents. The first involves bear spray, which marked the bear. The second involved "cracker shells" and a .44 caliber handgun, probably a .44 magnum. From the FOIA, incident 41:

October 19-26, 1986 Churchill, CA. From PBHIMS incident 41.  Handgun failure.

 Oct 19-26, 1986, PII,t Churchill. Tourists In temporary camp were observed hand feeding bears for several weeks. Sardines and lard had been put in the willows surrounding camp. During the 6 days researchers were in the camp, 9 bears approached. At the sound of movement within the camp, one bear repeatedly charged the structures and pounded the walls. In the 6 days, 7 charges were initiated by 2 bears. The charges appeared to be directed at the people in the camp. One bear almost entered the stationary vehicles. It was deterred with a broom and bear spray in the face. Fours days later and 4 km SW, a bear with a red stain on its forehead, which may have been the bear spray, charged a group of 12 people. The bear ignored both "cracker shells" and shots from a .44 calibre handgun. The people involved were forced to climb a nearby tower or enter an adjacent building. This is probably the first account of bear spray being non-experimentally used under field conditions on a polar bear.

The objective definition of a failure when a handgun is fired in defense against a bear, was decided when the project was started.

The criteria for inclusion in this study is a pistol had to be fired to defend against a bear or bears. If a handgun was not fired, the incident was not included. If the use of the handgun stopped the attack, it was a success whether the bear was killed immediately, or left the scene, as long as it stopped attacking.

In the scenario at Churchill in October of 1986, the report specifically says the bear with a red stain on its forehead charged a group of 12 people and ignored both "cracker shells" and a .44 handgun. No one was hurt, but the shots did not stop the attack. It seems likely they were warning shots. There may be political reasons why the person with the .44 handgun was not willing to shoot the bear; or maybe the person shooting the .44 handgun simply missed. There is no indication the bear was injured. 

Of  the four incidents where we have documented when a handgun was fired and failed to stop an attack, this is the weakest case. The other three are detailed here. In only one of the four incidents was the defender clearly attempting to kill the attacking bear. That occurred in the famous polar bear defense attempted with a .22 pistol. 

The incident from Churchill, Canada is graded as a failure where a handgun was fired in defense against a bear, and failed to stop the attack. Readers are urged to read all of the incidents which have been documented where handguns were fired in defense against bears. In about ten percent of the incidents, warning shots are sufficient. Most incidents involving warning shots alone are not reported or documented. They likely are the most common defensive use of a firearm against bears.  Most readers will understand, if a bear is killed, it cannot go on to attack another person.  Repeated use of "cracker shells" or warning shots will, eventually, teach a bear of their lack of serious effect. This will make the bear more dangerous.

All three North American bears, black, brown/grizzly and polar, have increasing populations. The small number of bears which would be killed if all aggressive bears were shot, would not have a significant effect on bear populations. The number shot in defensive situations would be far less than the number required to be harvested to keep the bear populations at maintenance levels.

 

2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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WI: Armed Samaritan Stops Robbery, is Arrested for Firing While Intoxicated

Beloit police are investigating an armed robbery.  Police say a gunman entered the Mobile Gas Station on Liberty Avenue about 11:00 p.m. Thursday demanding cash.  Officers say during the robbery, a patron snuck out and retrieved a handgun from his vehicle, chasing the suspect into an alley.  The 40-year-old Beloit man told police the suspect turned toward him with the gun.

 

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Book Review: Armed America by Clayton Cramer 300 pages 2006

Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie by Clayton E. Cramer 300 pages, published in 2006 by Nelson Current.  Currently available at Barnes & Noble for $17.99 paperback and $7.49 ebook.

In 1996, a professor of history at Emory University, Michael A. Bellesiles, published a paper in the Journal of American History which upended traditional thought on guns in American history. The paper claimed guns were not common in the colonial period or in the early Republic, at least before the Mexican War. It was marketing by Samuel Colt and inexpensive firearms after the Civil War pushed inexpensive firearms onto the market. White on White violence was low in the absence of firearms.  Four years later, Bellesiles  published a book with the same theme: Arming America: The Origins of a National Gun Culture.  From Armed America:

Throughout American History , opined Bellesiles, the militia was ineffective; in the Colonial Period, the government tightly regulated gun ownership and use; guns were very scarce before 1840; there was essentially no civilian market for handguns before 1848; violence between whites was rare; few Americans hunted until the 1830s when members of the upper class sought to imitate their British equivalents. 

Clayton E. Cramer was working on his masters theses on concealed weapons regulation in the early Republic when the paper came out. It did not comport with his research, at least in the South. When the Bellesiles book was published, Cramer was mystified. Where were the sources which Bellesiles claimed to have found, which reversed the understanding of Cramer and generations of historians before him?  Cramer had read many of the sources Bellesiles used from the early Republic.

Cramer started checking the original sources. Not only did the sources not say what Bellesiles claimed they said; often they said the opposite of what Bellesiles claimed in his book.

Those who wish the population disarmed were overjoyed. The individual right to arms was a fiction. In 2001, Bellesiles was awarded with the Bancroft Prize (the highest award for an American History Book).

It was a pack of lies. Clayton Cramer became a prominent critic among many others, who pointed out the fraud at the heart of Bellesiles' "Arming America". Eventually, Bellesiles resigned his tenured position. Columbia University did the unthinkable: they revoked the Bancroft Prize and asked Bellesiles to return the prize money. 

Armed America is the book Clayton Cramer wrote to show the real history of how common firearms were in colonial America and in the early Republic. It is an academic work, but reads with an easy familiarity. There are 35 pages of notes detailing the original sources for the information. The scholarship is extremely well done. The book travels from guns in the colonial era, to guns in the hands of the Indian tribes, to militias, hunting, and the ubiquity of firearms in the accounts of travelers in the early Republic. Sadly, violence was not rare among Whites.  It was common and commonly remarked upon.

The book is well worth reading as a resource to understand the American love affair with firearms, and to show how those who wish a disarmed population are willing to lie, and to fraudulently revise history in an Orwellian fashion to obtain their objective.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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MT: Domestic Defense? Update to Helena Gibbon Street Shooting

Update to 900 Gibbon Street incident: (Press Release July 8, 2023)

As mentioned in the prior press release, the three involved parties were acquaintances.  Approximately one hour prior to the incident, the male who was shot reportedly threatened to kill the other male and female while traveling on Interstate 15, in the area of the North Hills.  After the threats, the male was left on the side of the road on Interstate 15.   It is believed the male received a ride into town from an unknown person(s).  The male who was shot did forcibly entered the residence by breaking the door in.  Once in the residence an altercation ensued, and the male was shot.  The male who was shot lived at this 900 Gibbon Street address for approximately two weeks.    

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Mountain Lion Attack Stopped in 2022: Split Second Deplolyment, Deadly Accuracy not Required

 Link to video on Youtube.

The video shows a mountain lion attack on an elk hunter in Idaho. If first appeared on the Internet in the fall of 2022. The hunter has Glock, proclaimed to be a Glock 27.  The big cat starts to charge the hunter turned prey at about 20 seconds in. Just as the cat starts to pounce, the hunter fires his .40 caliber pistol, and the cat abruptly stops the charge and retreats. The mountain lion is persistent and hesitates to leave, but another shot from the Glock makes up its mind.

The cat retreats, slowly, as if indifferent to the threat.

The video indicates a "prey-testing" behavior similar to that seen in bears.  Predators cannot survive for long if they choose prey which has a good chance of severely injuring the predator. Predators tend to "test" unfamiliar prey. If the predator does not "test" the prey, and is severely wounded or killed, the predator will not pass along its genetics. Therefore "testing" of unfamiliar prey is highly selective.

Humans are unfamiliar prey. The "testing" of unfamiliar prey is commonly observed with black bears. Dr. Stephen Herrero wrote this about predatory black bears:

By contrast, “the kind of bear you need to be afraid of is not feeling threatened by you — it’s testing you out as a possible prey item,” said Dr. Herrero, a professor emeritus at the University of Calgary. “It’s quiet. It stalks you just like a lion might stalk you.” With a mother defending cubs, “you just back away calmly and give it some space,” Dr. Herrero said. “With a predatory bear, you stand your ground, stomp at it, throw rocks at it, whatever you need to do to convince it you’re not easy prey.”

Dr. Herrero's words mention lions. It is unclear whether he is referring to the American mountain lion or to African lions. The description seems appropriate to the actions seen in the video. What is clear, is the human with the Glock pistol had plenty of time to access the pistol. When he fired it, he did not need deadly accuracy. Such intereactions probably happen often with mountain lions and hundreds of times more commonly with black bears. When neither animal or human is hurt, there is no news story, merely a campfire tale told to friends. Very few of these interactions are recorded on video, because video equipment used to be expensive.  With the ubiquity of modern cell phones, video recordings are starting to be seen. In the 2012 paper by Herrero and Smith, Efficacy of Firearms for Bear Deterrence, a claim about the use of firearms was made. From Efficacy of Firearms for Bear Deterrence in Alaska, bold added:

The need for split-second deployment and deadly accuracy make using firearms difficult, even for experts. 

This writers data on the use of handguns to defend against bears does not support the claim in the Herrero and Smith paper.  Of 170 incidents where handguns were fired in defense against bears, at most 16 appear to have needed a response in under two or three seconds and deadly accuracy.  Many times the people had many seconds or minutes to deploy a handgun. In 106 incidents, the bear was  killed. Many times when it was killed, it died after leaving the scene of the attack. In about ten percent of the incidents, warning shots were sufficient to stop the attack.

In most bear-human conflicts, there is sufficient time to deploy a defensive arm. Where injuries occur are the unusual times when warnings are not heeded, time is insufficient to deploy a defensive arm, or a person is not willing to deploy the defensive arm. There are very few mountain lion attacks recorded. However, this writer cannot recall an mountain lion attack which was successful when the victim was armed with a firearm.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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