Massachusetts Black Bear Attack Stopped with .38 Caliber Handgun

 

Image by Troy Nemitz, with permission. The bear which was shot had two ear tags. 

There was another pistol defense against a black bear on August 25, 2023, near Kingston, Massachusetts.  The bear started by  attacking a goat. Bear attacks against animals which depend on people for their protection are much more common than direct attacks against people. From Kingston Police on Facebook:

Shortly before 3pm this afternoon KPD responded to Hawthorne Road for a report of a black bear attacking a resident’s livestock (goat). Initial investigation appears to reveal the following:

 

Upon the bear attacking the resident’s goat, the resident attempted to scare the bear away, the bear postured up towards the resident and the resident reported he was in fear of being attacked. The resident then shot the bear with his lawfully owned firearm.

 

At that time, the bear fled into the wood line. Upon police arriving, we were unable to locate the bear. KPD contacted the Massachusetts Environmental Police who are conducting an investigation and have been unable to locate the bear as of this time.

There was another pistol defense against a black bear on August 25, 2023, near Kingston, Massachusetts.  The bear started by attacking a goat. Bear attacks against animals which depend on people for their protection are much more common than direct attacks against people. From Kingston Police on Facebook:

Shortly before 3pm this afternoon KPD responded to Hawthorne Road for a report of a black bear attacking a resident’s livestock (goat). Initial investigation appears to reveal the following:

 

Upon the bear attacking the resident’s goat, the resident attempted to scare the bear away, the bear postured up towards the resident and the resident reported he was in fear of being attacked. The resident then shot the bear with his lawfully owned firearm.

 

At that time, the bear fled into the wood line. Upon police arriving, we were unable to locate the bear. KPD contacted the Massachusetts Environmental Police who are conducting an investigation and have been unable to locate the bear as of this time.

Less than a year ago, on September 30, 2022, near Middleton, Massachusetts, the owner of two goats was not as vigilant. Both goats were killed by a black bear. When the bear returned the next day and began killing chickens, the bear was shot and killed. An animal control officer reported it was likely the same bear which had been killing chickens at several locations in the area.  From eagletribune.com:

“I had an email from the Andover Animal Control Officer two days ago, and she was reporting several instances of the bear getting into chickens on the west side of Harold Parker,” Wattles said. “Some of those incidents were spread out over 3 miles, but that’s easily a distance a bear can travel.”

Bears have been bad neighbors for as long as history has been recorded. In the Bible, the sheepherder, David, was reported to have killed a bear which was attacking his sheep. It is much less risky to shoot a bear with a handgun than it is to kill it with a sling and a club. From KJV bible, I Samuel:

³⁴ And David said unto Saul, Thy servant kept his father's sheep, and there came a lion, and a bear, and took a lamb out of the flock:

³⁵ And I went out after him, and smote him, and delivered it out of his mouth: and when he arose against me, I caught him by his beard, and smote him, and slew him.

David would have been very glad to have a modern firearm to defend his sheep. Modern handguns are very effective as a defense against bears.  In 170 documented instances where cartridge handguns have been fired in defense against bears, the bear stopped the attack, was driven off or killed, 98% of the time.

We discovered handgun failures in defense against bears are rare. Successful uses of handguns to defend against bears are about 50 times as common. Handguns have been shown to be an effective tool to use against bears 98% of the time.

The number of bear attacks against people have been increasing with increasing bear populations. There have been at least nine bear attacks against people in August of 2023 as of August 23rd.

 

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

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OR: Domestic Defense, Teen Shoots, Kills Man in Conflict over Mother

Several neighbors who had gathered at the corner of the block Monday morning said they believed Henderson had shot the man in self-defense.

Erin Sadewhite, a friend and neighbor of the family, said that, as far as she knew, Henderson “was just trying to protect his mom.” The man who was shot went by “Junior” and was dating Henderson’s mother, Rachel Henderson, Sadewhite said. She said the man often was in conflict with Issac Henderson.

Another long-time friend and neighbor, John McWoods, said the dead man was an unwelcome fixture in the neighborhood.

Police have not released the name of the man who was shot and killed.

 

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Gabriel Metcalf Arrested for Carrying Gun in Federal Gun Free Zone

ATF agents arrested Gabriel Cowan Metcalf for possessing a firearm in the controversial "gun free school zone" defined by federal law, on August 23, 2023. Federal law prohibits possession of a firearm within a thousand feet of a school. The law was found to be unconstitutional in 1994, re-passed with slightly different language in 1994, then re-passed with minor changes in 1996. It has not been subject to scrutiny by the Supreme Court since before the Heller decision in 2008. Under the Bruen decision, which reinforced the Heller decision in 2022, the the gun free school zone act is blatantly unconstitutional. From justice.gov:

BILLINGS — A Billings man accused of illegally possessing a gun near a Billings elementary school appeared today in federal court on a firearms charge, U.S. Attorney Jesse Laslovich said.

Gabriel Cowan Metcalf, 49, had an initial appearance on a criminal complaint charging him with possessing a firearm within a school zone. If convicted, Metcalf faces a maximum of five years in prison, a $100,000 fine and three years of supervised release.

U.S. Magistrate Judge Timothy J. Cavan presided. Metcalf was detained pending further proceedings.

The government alleged in court documents that from Aug. 2 to 17, the Billings Police Department received multiple calls and weapons complaints regarding Metcalf, who lives at 430 Broadwater Ave., walking on the sidewalk and around the area carrying a firearm. Broadwater Elementary School is directly across the street from Metcalf’s residence. The sidewalk and streets in front of Metcalf’s residence are public property within 1,000 feet from the school and are a “school zone” as defined in federal statutes.

Bureau of Alcohol, Tobacco, Firearms and Explosives agents arrested Metcalf near his residence on Tuesday night, pursuant to a warrant issued by a federal judge, and executed a search on the residence at 430 Broadwater Ave.

A criminal complaint is only an accusation, and a defendant is presumed innocent until proven guilty beyond a reasonable doubt.

Assistant U.S. Attorney Thomas K. Godfrey is prosecuting the case. The ATF and Billings Police Department conducted the investigation.

Federal Attorneys have been very cautious about prosecutions under the Gun Free School Zone Act of 1996. They are likely concerned because of its dubious status under both the Commerce Clause and the Second Amendment. According to this correspondent's recollection, a few cases have been filed, where the suspect were also felons.

Gabriel Cowan Metcalf does not appear to have a criminal record. This makes the federal arrest by federal agents a good candidate for a Second Amendment and Commerce Clause challenge. Second Amendment supporting organizations would do well to contact Mr. Metcalf to investigate the situation and the potential for a challenge of the federal Gun Free School Zone Act. School Zones are not on the list of "sensitive places" mentioned in the historical record, as regulations accepted, at the time the Second Amendment was ratified. The imposition of 1,000 foot zones around schools, where firearms may not be carried, effectively nullifies the right to bear arms.

As a direct challenge to a federal law, a Second Amendment challenge to the Constitutionality of the Gun Free School Zone Act looks like a good bet. No worries about "standing" in this case. The US Attorney may try to punish Metcalf with the process, for example asking for exorbitant bail, and trying to keep him locked up while the case is ongoing, pushing for a plea deal.

More information will become available shortly.

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

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LA: 1 of 2 Armed Robbery Suspects Shot, Wounded

Detectives say the man with the gunshot wound is one of two suspects in the armed robbery attempt. He was taken to the hospital for treatment. The second suspect fled the scene when the shooting happened police say.

As of now, no arrests have been made.

It is unclear who the robbery suspects were attempting to rob or if the victim was the one who shot the suspect in the robbery.

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Two Spears Against Polar Bears: Survival on Svalbard, 1743-1749

 Image from wikimedia naturepics online, 2010

 

Polar bears are very large, dangerous adversaries. Surviving for six years after a shipwreck in the Arctic, four Russian hunters killed ten of them with two homemade spears. The story is told in the modern book, Four Against the Arctic by David Roberts, published in 2003. Roberts spent two weeks at the location most likely to have been where the Russian sailors/hunters had survived, on Halfmoon Island, across a narrow channel from Edgeøya. In those two weeks, his party of four saw nine polar bears, three of which had to be chased away with flare guns, two of the bears chased away from the hut Robert's party was occupying. Roberts spends many more pages in detailing his travails in researching documents and information about the story, than in the story itself.

In May of 1743, a ship of Russian walrus hunters were blown off course in the vicinity of Edgeøya, part of the Svalbard archipelago. Their ship was captured in the pack ice, about two miles from the shore of an island. The pilot, Aleksei Inkov, recognized the place from stories and remembered a tale of an early version of a prefabricated hut being built on the island many years earlier.  He, his godson, and two other hunters volunteered to see if this was the place and if the hut was there. They had to traverse two miles of treacherous ice-pack. They took very little in equipment or supplies, as listed:

• One musket, twelve charges of powder and twelve musket balls.
• One knife, one axe.
• One small kettle, and twenty pounds of flour.
• A tinder box and tinder, a pouch of tobacco, and a small wooden pipe for each man.

The pack ice constantly threatened to crush their ship. If they could find the hut, there was hope of survival. Supplies from the ship could be brought ashore. The crew might be able to survive until another ship came, or their ship was freed.

The twelve musket charges translated to twelve reindeer by late summer of 1743.  Only driftwood was available for fuel. In the driftwood, they found a few planks with some large iron spikes and a large bolt. They were able to make a hammer of the bolt, and by heating and hammering spikes on a rock, they crafted two iron spearheads which they attached to driftwood poles. They used rawhide from the reindeer skins to lash the spear heads.  Wet rawhide shrinks when dried, fastening the iron spearheads  securely to the poles. Over the next six years, they killed ten polar bears with the two homemade spears. The men had an iron clad rule - no man left the hut alone.

Two men with spears. Ten polar bears. The first polar bear was deliberately targeted by the Russian sailors/hunters. A polar bear can easily outrun and outswim a man. The bear must have deliberately engaged in the fight. Two men can kill a polar bear with spears, because when the bear targets one man, the other can attack. It only takes one good spear thrust to the heart/lungs to kill a polar bear, but the bear can take many seconds to die.  The bear meat was a welcome addition to their diet. The next nine polar bears were all killed in self defense. This is plausible given the work of Russian scientist Nikita Ovsyanikov. In his book about polar bears, he describes them coming very close to him, but not charging, as they evaluated him. He even hit polar bears with a stout stick to get them to leave him. The cautious approach of bears to new, unknown prey, would give the Russian castaways a chance to deliver killing blows to bears who would not run from them.

This is plausible given the work of Russian scientist Nikita Ovsyanikov. In his book about polar bears, he describes them coming very close to him, but not charging, as they evaluated him. He even hit polar bears with a stout stick to get them to leave him. The cautious approach of bears would give the Russian castaways a chance to deliver killing blows to bears who would not run from them. 

There is no mention of how long the spears were. Roberts refers to them as "lances" which implies a longer weapon. Sasha Siemel killed numerous jaguars in Brazil with a spear. The spear used by Siemel was about 7 feet long.

The shipwrecked sailor/hunters used polar bear tendons to make a bow string, with a fortuitous bit of driftwood for the bow. Arrows consisted of driftwood shafts, smaller salvaged and hammered nails for arrowheads, and sea-fowl feathers for fletching.  They killed 250 reindeer over the next six years, and numerous fox.

One of the men quickly developed an illness. Fedor Verigin took over five years to die, cared for by his three companions. He was constantly weak, and in the end, bedridden.

The reindeer, fox and bear hides paid for their passage back to Russia, and a bit more, when they were rescued by another Russian ship on August 15, 1749.  Their tale of survival was a sensation.

 

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

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 The twelve musket charges translated to twelve reindeer.

TX: Domestic Defense, Relative of Pregnant Woman Shoots, Kills her attacker

Commander Michael Collins said officers were headed to the scene when a man and his pregnant girlfriend were arguing at her apartment at 5600 Antoine.

The man allegedly kicked down her door and started to beat her up, according to investigators.

He left the apartment and made his way to the front of the apartment complex when the woman's male relative allegedly shot and killed him.

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How was the "98% number" for Bear Spray Computed?

One of the most quoted and controversial figures used in the debate about how effective bear spray is "98%".  The figure is sprayed about (pun intended) promiscuously and irresponsibly.  From thetrek.com, quoting Tom Smith:

Ninety-eight percent of people who used bear spray escaped injury (with 2% being knocked over but not killed) as opposed to only about 50% of people using guns.

The number traces back to a paper authored by Tom Smith and Stephen Herrero, published in 2008. The paper is "Efficacy of Bear Deterrent Spray in Alaska". It is the seminal paper which launched bear spray as a credible deterrent to stop aggressive bears.  In the 72 incidents used in the paper, only one involved a hunter. He was stalking a wounded bear. 30% were people involved in bear management activities. Aggressive bears accounted for 25 incidents, or 35%. There were 10 incidents were bears charged people, or 14%.  All three injuries occurred in the 10 incidents where bears charged people.  If we consider the bear spray success rate only for aggressive bears, and count injuries as failures, the success rate for aggressive bears is 88%.

There were 175 people involved in the 71 incidents. The incident which was subtracted from the 72 is not explained.  The 98% figure is arrived at by dividing the number of people injured by the number of people involved. The paper does not mentioned how many of the 175 people had bear spray or sprayed bear spray. We know bear spray was sprayed in all 72 instances.  In 10 of the 71 incidents bear spray had negative effects on the person using the spray.  Six of the 71 instances were deemed to fail to stop the undesired behavior of the bears. in 13 cases, the bears resumed the undesired behavior after being sprayed. The paper does not tell us if the three injuries were included in the bear spray failures or not. From "Efficacy of Bear Spray":

Three persons (< 2% of the 175 persons involved in 71 separate incidents) suffered injury by bears that had been sprayed with bear deterrent.

The precise circumstances of the use of bear spray is not revealed for most of the incidents. An exception exists for polar bears.  From the paper:

 In both polar bear incidents, subadult bears approached humans in a pickup truck there to observe bears feeding on bowhead whale (Balaena mysticetus) remains near the village of Kaktovik, Barter Island, Alaska, USA. In both instances (100%), bear spray stopped the bear’s approach and turned the bear away. Neither of these bears returned to the truck following spraying.

The authors included these polar bear incidents as examples of where people sprayed menacing bears. They were not counted as aggressive bears.

In 2018, the authors updated their numbers through 2015. In the 6 years of 2010-2015, they found only four instances where bear spray was used. Those instances involved another 22 people.

As of 2015, 75 instances of bear spray use were recorded, of which 70 (93.3%) were successful in altering bears’ aggressive behavior, whereas 5 (6.7%) were not. However, of the 197 persons involved in these 75 encounters, only 4 received slight injuries (2.0%), all inflicted by grizzly bears.

This kept the ratio of people injured to total people involved to 2%. We are not told how many of the 197 actually had bear spray or used the bear spray.  Author Tom Smith informed this writer all 71 instances from the previous bear spray study were included in the 75 incidents.

The study most compared to "Efficacy of bear spray"  is "Efficacy of Firearms" published in 2012. Tom Smith and Stephen Herrero were authors in both studies. In 2019, Tom Smith said there was no thought of comparing the studies:

“There was no thought of comparing the two [studies], though some do that,” says Tom Smith, who authored both reports, titled the “Efficacy of Bear Deterrent Spray in Alaska” and “Efficacy of Firearms for Bear Deterrence in Alaska.”

Direct comparisons are made to the "Efficacy of firearms", but different methods are used for computations in the two papers. The samples are completely different. From a critique of the studies:

 “Comparing the two studies is like comparing the injury rate for people
picking up apples to the injury rate for people picking up live hand
grenades,” says Dave Smith, a naturalist who has worked in Yellowstone,
Glacier, Denali, and Glacier Bay National Parks and who has authored two books on surviving dangerous encounters with wildlife.

In the Efficacy of Firearms study, there were 269 total firearm incidents. The incidents were subjectively picked by the authors. 215 of them involved aggressive bears. The success rate for stopping aggressive bears was 75% for long guns and 84% for handguns. In 15% of the incidents involving firearms, the firearms were not fired.

In the bear spray study, only incidents where bear spray was sprayed were included. If the 15% of cases where firearms were not fired are removed from the 215 cases involving aggressive bears, the success rate increases to 89% for long guns and 99% for handguns, assuming the failures to fire are divided proportionately. This is speculation, because the circumstances of the cases are not given. The data has not been released to the public or other researchers. We only know how the authors graded the cases.

The problems for access to bear spray and access to handguns are very similar. Handguns are more ergonomic than bear spray.  In this writer's study of incidents involving handguns, the success rate is 98% for 170 incidents (146 handguns only).

The supplemental data for the Efficacy in Firearms study indicates no one carrying a handgun was killed.

If we look at the raw numbers and ignore the enormous difference in aggressive vs non-aggressive bear samples, the total number of people involved in the 269 firearms cases was 444. The total number injured (including killed) were 122. From the supplemental data in the Efficacy of Firearms study:

 Bear-inflicted injuries occurred in 151 of 269 (56%) incidents. Of the 444 people involved in firearms incidents, 122 (28%) were injured:

Math nerd note: 122/444 is .2748, or properly rounded, 27%.

This writer asked author Tom Smith to explain the apparent conflict between the 151 incidents involving injuries and the 122 people injured.  There may be a simple explanation.  Tom Smith replied  he did not know, but he will be looking into it.  In Tom's defense, the paper is less than clear about how all the numbers are arrived at.  A table of all the incidents, dates they occurred, number of people and bears involved, would have been very helpful. Unfortunately, the basic data used in the paper have not been made available to other researchers or the public.

Using the peculiar math of the bear spray study, 73% of the people involved in defenses involving firearms were not injured. The number would be much higher if cases where firearms were not fired were excluded. This is a far cry from the 50% number cited in the comparison of the two studies. It is not credible to compare percentage of incidents with a percentage of people involved, or to compare incidents where bear spray was used to incidents where firearms were not used.

Many more people have carried and used bear spray since 2015. Of the total number of incidents where handguns were recorded as used in defense against bears (170), one person was killed, from 1890 to 2022. In comparison, in incidents were bear spray was used (number unknown), seven people have been killed  from 2003 to 2022.

It is impossible to know how often long guns, handguns, or bear spray are used in defense against bears.  It is irresponsible to claim "science" in comparing studies, which use different definitions and math, to say firearms or bear spray is more effective.  Failures of defensive methods are recorded far more often than successes.

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

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CA: Darren Moran Shot, Killed man in Self Defense

OROVILLE — The Butte County District Attorney’s Office has decided not to charge an Oroville homeowner with homicide after a shooting that occurred Tuesday.

The shooting resulted in the death of 29-year-old Oroville resident Bruce Pagenkopp on Tuesday morning, but according to a press release issued Thursday by the DA’s Office, there wasn’t sufficient evidence to prove that the alleged shooter, 54-year-old Darren Moran, had committed a homicide.

“Based upon the totality of the current evidence, and given our burden of proving beyond a reasonable doubt that Moran did not have a reasonable self-defense argument, we will not be filing homicide charges,” District Attorney Mike Ramsey said.

 

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IN: Gunfight, Police beilive attacker and victim were both Killed

Thursday night, an IMPD spokesperson told 13News that police believed the victims may both have been shot in an incident at an unidentified gas station or convenience store.

Friday afternoon, IMPD confirmed the incidents were connected, and the shooting took place at East 21st Street and North Franklin Road.

Following a preliminary investigation, detectives believe one of the two homicides is expected to be in self-defense.

 

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District Judge: Common Rifles, Pistols, Shotguns, Magazines of over 10 Rounds not Protected by the Second Amendment

On August 3, 2023, Judge Janet Bond Arterton of the United States District Court for the District of Connecticut ruled on whether the recent Connecticut law banning the possession of common semi-automatic rifles and pistols under the appellation of "assault weapons" and of standard capacity magazines which hold more than 10 rounds. Judge Arterton ruled the law is not prohibited by the Second Amendment.  She does not see it as an infringement, because, she claims, "assault weapons" and magazines over 10 rounds are not arms protected by the Second Amendment. Magazines which hold more than 10 rounds are referred to as large capacity magazines or "LCM"s by the court.  From NAGR v. Lamont:

For the reasons discussed below, the Court denies Plaintiffs’ motion for a preliminary injunction because they have failed to meet their burden to demonstrate a likelihood of success on their claim that the challenged statutes unconstitutionally burden their Second Amendment right to keep and bear arms. Plaintiffs’ proposed ownership of assault weapons and LCMs is not protected by the Second Amendment because they have not demonstrated that the specific assault weapons and LCMs in the Challenged Statutes are commonly sought out, purchased, and used for self-defense. Although this failure alone would have been fatal to Plaintiffs’ claim, Defendants have submitted persuasive evidence that assault weapons and LCMs are more often sought out for their militaristic characteristics than for self-defense, that these characteristics make the weapons disproportionately dangerous to the public based on their increased capacity for lethality, and that assault weapons and LCMs are more often used in crimes and mass shootings than in self-defense.

Judge Arterton uses this claim to place the burden of proof on those in opposition to the firearms ban.  Her argument rests on two interpretations of Heller, McDonald and Bruen, and a dismissal of Caetano as irrelevant. Heller sets up the standard: Protected arms are those which are in common use for lawful purposes.  From Judge Arterton, page 18:

Heller characterized Miller as standing for the proposition that the Second Amendment “extends only to certain types of weapons,” id. at 622-23; weapons “used in defense of person and home” are constitutionally protected, but “weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barred shotguns,” are not. Id. at 624-25. The historical tradition of “prohibiting the carrying of ‘dangerous and unusual weapons’” as discussed in 18th and 19th century treatises, Heller held, supported Miller’s restriction on the scope of the Second Amendment, which Heller described as an “important limitation on the right.” Id. at 627.5

Heller did not put more limitations on the right to keep and bear arms than in Miller. Instead, Heller showed the arms protected were all arms in common use for lawful purposes, not just those arms which were useful in the military.

Judge Arterton lays out the Connecticut government's explanation of what "common use for lawful purposes" means. They claim the test was changed by the Bruen decision to mean commonly used and documented as used for self defense, not for other lawful purposes.  They claim the documented uses for self defense must be more common than criminal uses. From page 27:

 Broadly, Defendants view the three different phrases as ultimately getting at whether the firearms at issue are suitable and used for self-defense, or for some other purpose—lawful or unlawful—unprotected by the Second Amendment. Defendants maintain that after Bruen, Plaintiffs must show not only that the weapons and accoutrements are commonly owned, but that they are commonly possessed and used for self-defense based on Bruen’s repeated use of the phrase “‘common use’ for self-defense.”

Judge Arterton agrees with the Connecticut government interpretation of "common use". From page 35:

Thus, the Court finds that the purpose of the “dangerous and unusual” exception to the Second Amendment is to determine whether the firearm’s character is such that it is commonly used and typically possessed for self-defense, or instead for the purpose of causing unlawful or excessive harm or fatalities. This interpretation of the test is also consistent with the interplay between common use, typical possession, and dangerous and unusual; a weapon must be both possessed for the purpose of and actually used for self-defense in order to fall within the Second Amendment’s protection, meaning that if it is either unusual for it to be possessed for self-defense or if it is used in a way that makes it particularly dangerous, the weapon does not fall within the Second Amendment’s purview.

(snip)

To prevail on this question, Plaintiffs must show that carrying both a firearm defined as an “assault weapon” and that possessing and using an LCM in conjunction with an assault weapon are part of keeping and bearing arms. If Plaintiffs establish each of those elements, the burden shifts to Defendants to justify their regulation based on Bruen’s requirements for establishing relevant similarity to history and tradition.

On page 40, the judge concludes "LCMs" are arms as defined in Bruen and Heller, but then claims they are not protected because they are not "commonly used in self defense"!

The Court concludes that LCMs are “arms” for purposes of the Second Amendment as defined in Bruen and Heller. Plaintiffs have met their burden in this part of the analysis

P 44:

In the absence of persuasive evidence that the assault weapons or LCMs listed in the statutes are commonly used or are particularly suitable for self-defense, Plaintiffs have failed to carry their burden.

The plaintiffs provided surveys which showed a large number of owners of "assault weapons" and "LCM"s purchased them specifically for self defense. She rejected those surveys as "subjective".

Judge Arterton shows her aversion to the Second Amendment on page 50. She claims if a weapon is dangerous, and comes into common use, then it still would not be protected by the Second Amendment. From page 50:

“if the legislatures of the American people decided to deregulate a particular weapon and over the centuries that weapon became owned by tens of millions of people, it would not be dangerous and unusual[.]” (Id. at 21.) The Court rejects this logic;

Judge Arterton is on shaky ground when she she quotes the Heller decision on the relevance of the Miller decision. She writes, on page 52:

In sum, the fact that a modern American citizen might want to possess a military-grade weapon that would be effective in warfare is irrelevant given Heller’s acknowledgment that “modern developments have limited the degree of fit between the prefatory clause and the protected right” in the Second Amendment; whether a weapon would be useful or necessary for an effective militia is a concern now “completely detached” from the actual right itself. Heller, 554 U.S. at 627.

Consider the actual passage in Heller. The meaning is significantly different than Judge Arterton's description: From Heller:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Here is what Judge Benitez wrote. From Judge Benitez decision in the Ninth Circuit:

Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller, 554 U.S. 570 (2008) and United States v Miller, 307 U.S. 174 (1939). Yet, the State of California makes it a crime to have an AR-15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional.

Here is a quote from a recent decision in the Ninth Circuit.  From article on Ninth Circuit decision on "butterfly knives"":

In opposition, Hawaii cites some conclusory statements in the legislative history claiming that butterfly knives are associated with criminals. We give little weight to these statements. Common sense tells us that all portable arms are associated with criminals to some extent, and the cited conclusory statements simply provide no basis for concluding that these instruments are not commonly owned for lawful purposes. Aside from these conclusory legislative statements, Hawaii has submitted no evidence that butterfly knives are not typically possessed by law-abiding citizens for self-defense.

Judge Arterton reverses the burden of proof. She asserts the plaintiffs must prove arms are commonly actively used (not just possessed!) for self defense.  She finds semi-automatic firearms and "LCM"s can be banned because of the rise in "mass shootings". From page 64:

Plaintiffs contend that concealed weapon regulations are not analogous because they prohibit a method of carry, not a type of weapon, and that Heller found them non-analogous to D.C.’s ban on “commonly held arms.” (Pls.’ Reply at 13.) However, Heller and Bruen were not considering a modern and unprecedented societal problem, which warrants a more nuanced analysis;

Near the end of the opinion, Judge Arterton sums up her view of what the Second Amendment restricts. From page 66:

As for the level of burden imposed, Heller did not foreclose any kind of restriction on the types of firearms that can be possessed and carried, or even restrictions on firearms that are commonly owned by lawful citizens—only a ban on firearms that are so pervasively used for self-defense that to ban them would “infringe,” or destroy, the right to self-defense.54

Analysis:

Judge Arterton concludes "assault weapons" are used disproportionately in "mass shootings".  "Mass shootings" are a tiny, almost insignificant subset of criminal use. Criminals disproportionately prefer handguns for crime. Handguns are used more in "mass shootings" than rifles are. By this logic, you can keep putting crime into smaller and smaller boxes, until you find a box where certain arms are used, in preference, by criminals, then ban those arms.

The judge does not seem to understand the difference between "infringe" and "destroy". She treats them as synonyms .  They are not synonyms. From the Cambridge dictionary, "infringe":

to act in a way that is against a law or that limits someone’s rights or freedom:

Infringing on a right is as simple as limiting it at the edges, not destroying it.

Judge Arterton seems to be channeling the desires of those who wish to render the Second Amendment a dead letter. Her court is in the Second Circuit Court of Appeals. The Second Circuit has been hostile to a meaningful Second Amendment. This means the Connecticut case may be processed in the Second Circuit for months or years before it is decided. It seems likely other decisions from the Supreme Court, on bans of common magazines, rifles, pistols, and shotguns will be decided before the Connecticut case.

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

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OH: Homeowner Shoots, Wounds Tresspassing Suspect who Threatened Him

In an attempt to investigate noises near the home, the property owner shot Dozier and he fled the scene, police said their preliminary investigation revealed. The homeowner later called 911 to report the incident.

The homeowner did not know Dozier prior to the shooting, according to Love.

The department spokesman says Dozier was taken to a nearby hospital with non-life-threatening injuries and has been charged with criminal trespassing and menacing.

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LA: Man Shoots, Kills Armed Robber

A man who tried to rob a Metairie taxi driver at gunpoint was shot and killed when the cabbie fired his own pistol in self-defense early Monday morning, according to the Jefferson Parish Sheriff's Office. 

The death of Gerald Pope, 23, was classified as a justifiable homicide, said Capt. Jason Rivarde, a Sheriff's Office spokesperson. The taxi driver, 43, will not face criminal charges, according to authorities. 

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CT: Domestic Defense, Family Member Shoots Man who Killed Mother of his Child

The New Haven Police Department identified the victim as 54-year-old Sheila Harris, who was in critical condition following a shooting in the early morning hours Sunday that also took the life of her child’s father, who has been identified as 54-year-old Christopher Garvin.

Police believe a family member of Harris shot Garvin while trying to defend her.

Prior to the shooting, police said around 11:25 p.m. on Saturday, Harris reported a domestic dispute involving a physical altercation with Garvin that had occurred earlier in the evening at her residence in the 200 Block of Shelton Avenue. Garvin, police said, had tried to discredit her complaint shortly before she contacted authorities.

 

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PA: Gunfight, Woman Attacked at Gas Station Victim and Suspect both Wounded

A man then suddenly came up behind her and put her in a bear hug, news reports said.

“The cameras clearly show the 35-year-old putting gas in her BMW vehicle when the male approaches her and grabs her ... and then there’s a physical altercation and they both pull weapons and they shoot each other,” Chief Inspector Scott Small said to 6ABC.

The unidentified 22-year-old male suspect was trying to rob and carjack her, police said.

At least 11 shots were fired during the exchange. Nearby officers patrolling the area heard the gunshots and responded to the scene.

The victim was shot twice in the leg, while the 22-year-old male suspect was shot twice in the lower back and leg, both 6ABC and Fox29 reported.

 

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AL: Madison Homeowner Shoots Invader who broke into his Home

According to Madison County Sheriff Brent Patterson, a man broke into a residence in the 6000 block of Wall Triana Highway and the homeowner shot him. Don Webster with HEMSI says the call came in around 10:30 a.m. and the male suspect was transported to Huntsville Hospital.

Detectives are interviewing witnesses at this time. Police say the suspect was shot multiple times; however, he is expected to survive.

 

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TX: Couple Hold Suspected Burglar for Police

The Fayette County Sheriff’s Office said it happened in the Fayetteville area. The 911 caller said they saw the man, later identified as 47-year-old Brian Schmitt, look around their vehicle and enter a building on the property.

A resident confronted the man and ordered Schmitt to the ground at gunpoint, where he stayed until police arrived.

 

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PA: Lycoming Township, CEO Shoots Former Employee

"Police arrived on scene at 10:46 a.m. and found a male with a gunshot wound to the chest just inside the front lobby of the business," according to a news release.

The preliminary investigation found that the 69-year-old male, who has been identified as John Roskowski, entered the business and was confrontational. The argument between the male, a former employee of the business, and the CEO of the business turned deadly when the CEO shot the male once, police said.

 

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TX: Employees Shoot, Kill, two Robbery Suspects

August 17, 2023 - The fatal shooting of two robbery suspects at 1703 Staff Sergeant Macario Garcia about 11:10 a.m. on Wednesday (August 16) will be referred to a Harris County grand jury.

The identities of the deceased males are pending verification by the Harris County Institute of Forensic Sciences.

The male shooters were not injured.

HPD Homicide Division Sergeant R. Olive and Detective T. Tyler reported:

An employee returned to his place of business at the above address after making a run to the bank. After parking his vehicle, a black Lincoln Navigator backed into a parking space.

As the employee entered the business with a money bag in his hand, two masked male suspects wearing all black exited the back seat of the Navigator, ran into the business and attacked the employee form behind. Fearing for his life the employee and the manager of the business fired handguns at the suspects. Both suspects were struck by the gunfire and pronounced deceased by responding Houston Fire Department paramedics. The driver of the Navigator fled the scene in a unknown direction. 

 

Link to above police report

NC: Armed Victim Shoots, Kills Armed Robbery Suspect

Once back at the gas station, the robbery suspect allegedly got into an argument with a man pumping gas, according to the CMPD

Police said during that argument, the man shot and killed the robbery suspect. The victim in this shooting has been identified by authorities as David Joseph Leonhardt, 32.

CMPD took the man into custody and said he is cooperating with investigators. On Thursday, the CMPD said detectives with its homicide unit are not looking for any suspects in the case and no charges are being sought at this time.

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Paper Shows Gun Ownership may be Double previous Estimate

 

On June 23, a paper on the underreporting of firearm ownership was published in the Journal " Social Psychiatry and Psychiatric Epidemiology" . The title is "Predicting potential underreporting of firearm ownership in a nationally representative sample", hereafter referred to as the paper.  The paper indicated the number of people who refuse to report they are firearm owners, who have been called "shy" firearms owners, are about as numerous as firearms owners who are willing to identify themselves as such.

The paper is behind a paywall online. Allison E. Bond, the principle author of the paper, was very kind and quickly sent a copy for me to read for this article.

The paper used a sample of 3500 people who were chosen to be a representative of United States adults.  The number of adults in the United States at the time of the survey was about 258 million.  The paper found 34.6% of them admitted to owning firearms, about 89 million. The paper estimated another 29.6% of respondents were likely to be "shy" gun owners. This would put the total number of gun owners in the USA at 64.2% of adults or 166 million. The paper found American gun owners are more diverse than previously thought. The percentage of women and people of color who own guns is growing rapidly.

The number of "shy" firearms owners has been a major uncertainty overhanging the study of firearms ownership and its effects in the United States.  The paper approached the uncertainty from the perspective of interest in understanding and preventing suicide in the USA population. While the paper acknowledged 50% of suicides in the USA involve firearms, it did not mention the percentage involving firearms has fallen from about 60% in the early and mid 1990's.

Any attempt to measure the number of "shy" gun owners is a difficult task. The paper was clear about the difficulty. From the paper: 

Ultimately, our model cannot conclusively determine whether those designated as potential firearm owners truly owned firearms at the time of the survey—nor can we determine why they falsely denied firearm ownership if, in fact, they did so.

As is common in academic studies, the paper calls for more study.  There are several ways a better understanding of the actual number of gun owners might be gleaned from careful gathering of data. Surveys might be designed to find the "shy" gun owner. Intensive investigation of small samples might prove informative. Statistical evidence may be available from the FBI NICS system. The few states which require gun registration for legal ownership may give clues to trends in gun ownership numbers. From the paper:

Several limitations must be considered in interpreting our findings. First, our model cannot conclusively determine whether any of the probable firearm owners are actual firearm owners. As such, this preliminary examination rests on empirical assumptions and must be seen as an initial test in need of independent replication and more nuanced analysis.

The number of gun owners who were willing to announce their ownership status in a survey is fairly close to the large survey done in 2021 by Dr. William English. Dr. English found 31.9% of adults were willing to disclose they owned a firearm, which compares favorably to the 34.6% found in the current paper.  Both of the surveys were done with known samples rather than as random telephone surveys. The response to telephone surveys has  fallen enormously since 1997. The response in 1997 was 36%. From pewresearch.org:

In 2017 and 2018, typical telephone survey response rates fell to 7% and 6%, respectively, according to the Center’s latest data. Response rates had previously held steady around 9% for several years.

Random telephone surveys have become less and less reliable as the result of a lack of participation.

Analysis:

The precise number of "shy" gun owners is not clear. The number is probably substantial. Such numbers have significant political consequences. If there are 166 million gun owning adults in the USA, it explains much of the political success of Second Amendment supporters. If nearly half of them are "shy" gun owners, the "shy" gun owners may also be "shy" about responding to surveys which indicate support for or against the right to keep and bear arms. The most important implication is:  It is probable a majority of voters are also gun owners.

 

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

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OK: Homeowner Confronts Vandal, is Charged, Shoots, Kills Vandal

Police believe Crossley was vandalizing an AC unit when the homeowner confronted him.

The homeowner said at one point Crossley charged at him and the homeowner yelled for Crossley to stop.

Officers say the homeowner fired when Crossley continued toward him.

Crossley was pronounced dead at the hospital.

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TX: Armed Samaritan Stops Assault on Elderly Man

According to the sheriff’s office, Kevin Anderson had entered the business and aggressively approached multiple customers before heading to the restroom where police said he knocked an elderly man unconscious and continued to assault him.

Officers said a licensed-to-carry holder then attempted to intervene and stop the assault before he too was assaulted by Anderson.

After being pushed to the ground by Anderson, police said the licensed-to-carry holder fired two rounds hitting Anderson once in the right arm. Anderson then fled the scene and was later located in a car on the shoulder of IH-45, according to the sheriff’s office.

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TN: Gunfight, Pistol Whiped Man Retreats, shoots, Kills, Attacker

According to Metro police, Starks was outside of the Citgo gas station when the incident occurred.

Ricky Johnson Jr. — the man who allegedly shot Starks — told officers that he was exiting the Citgo when Starks approached him, pointed a gun at his head, pistol whipped him and demanded money.

Johnson, 34, told officers that Starks followed him as he ran inside the store. That’s when Johnson fired his gun and shot Starks multiple times. Authorities reported that video surveillance supports Johnson’s account of events.

 

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Bear Attack on Elk Hunters, 29 September, 2021, Wyoming, 10mm, .45

 

 

Tyler Barnard bear defensive shooting positions. Far person is where bear was at first shot, middle person is where Tyler ended at last shot. The person taking the picture is where the son-hunter was during the attack.

On September 27, 2021, Tyler Barnard was guiding a father-son pair of elk hunters in Wyoming, near Cody, near the Two Oceans pass in the Teton Wilderness. It is part of the Bidger-Teton National Forest, a few miles from the southern border of Yellowstone Park.  Rifle season started on September 20th. The temperature in Cody was near 85 degrees, well above average. They had shot a bull elk, and had followed the blood trail for a mile before it dwindled and was lost as the sun dropped below the horizon. They looked again on the 28th. On the morning of the 29th, they had given up. It was a very nice bull.

A little before 8 a.m., they were on a game trail in the area. 

Then they smelled it.  A hint of dead elk.

They could not see the animal, but it was likely the bull they had shot. By law they were required to take possession. They left their rifles on the horses and decided to look over the curve of the ridge. The direction indicated was over a slope with plenty of blowdowns and young pines. Because of the terrain and the trees, the visibility was from 20 to 25 yards. The plan was to pin it with their Garmin GPS, place their tag on the elk, then return to base camp and send the recovery team in to salvage the carcass.  

Elk which was eventually recovered.

Tyler had a 10 mm Glock model 20 loaded with Buffalo Bore 190 grain hard cast bullets. The son-hunter had a .45 with a red dot sight, 15 round magazines, and hollowpoint +P self-defense ammunition. The father-hunter had bear spray, with "assault" in the name. 

The hunters and Tyler had separated by about 10-15 yards to maximize their chance of finding the elk quickly.  Tyler had just crossed over a large deadfall. The top of the log was about three feet off the ground.  He heard the son-hunter say, calmly and distinctly:

"Hey! There's a bear!"

The son-hunter had seen the bear from about 20 yards out. 

Tyler looked back. He  saw a bear in full charge at the hunters from about 15 yards, and immediately said "Shoot it!".  

Many things happened in the next few seconds. People back at the base camp said the sequence of shots took about 15 seconds. To the participants, it seemed much longer.

The son-hunter fired the first shot. Tyler believes it hit the bear between the eyes, about an inch high. The eyes on a bear tend to be about the level of the top of the brain case. Later, Tyler poked his finger into the hole. He could feel the skull below it. The bullet never touched the skull. There is hide and hair, meat and fat above the eyes, but no brain case (depending on the angle). If the nose of the bear is pointed at you, a shot above the line between the eyes will miss the brain. An  inch and a half, or two inches lower, and the charge would have been stopped with this shot. One of the best ways to reach the brain on a bear is to shoot it up the nose. The nose channel guides the bullet directly into the brain. People tend to shoot high on charging bears.

The bear kept coming, but was slightly slowed. The father-hunter had deployed his bear spray. The bear blasted through the cloud with no visible effect. An eddy in the  breeze swirled and brought some of the spray back into the eyes of the three men. Fortunately, it was not enough to disable Tyler and the son-hunter from shooting. 

Tyler had immediately hopped back over the big deadfall and started to run toward the hunters. His path was roughly parallel to the bear's path, separated by about 10 yards.

The son-hunter had continued shooting. Tyler believes the son-hunter had fired about 6 shots by the time Tyler reached a little opening in the young trees. The bear's charge had been retarded by the shots. The bear was about 10 yards from the clients and closing fast. It was about 10 yards from Tyler, who was off to the side. Tyler was able to shoot through the opening in the trees and hit the bear three times through the rib cage. The bear was mortally hit, but did not realize it yet. It takes from seconds to minutes for lung shots to kill a bear.

Tachypsychia had set in. Everything seemed to be happening in slow motion. Tyler remembers seeing the slide on his Glock come back with every shot. He saw the brass ejecting. He did not hear his own shots, but he heard the shots of the son-hunter. Tyler was focused on the sights. They were very clear. Tyler was probably thinking, moving, and shooting faster than he ever had before. 

Tyler reported the son-hunter remembered seeing the red dot of his pistol sight on the bear for every shot.

The bear continued to advance, slowed down by Tyler and the son-hunter's shots. Tyler  advanced to  a position a few feet to the side of the son-hunter, shooting a couple of more times on the run. The bear was continuing the charge toward them. It had been slowed by multiple hits. 

Tyler remembers he and the son-hunter shot, and shot, and shot. The pair fired a total of 31 shots.  Numerous hours at the range paid off for the son-hunter. He finished one magazine and completed a speed reload while Tyler was still shooting. 

There are a few cases where a person being attacked by a bear is able to reload. This is the first one I have encountered, where the reload was accomplished while the bear was charging.

As the bear got within 10 feet, its speed had slowed considerably.  Tyler was concentrating on chest shots. Tyler believes he broke one or both shoulders. The bear veered hard right into a tree. Tyler took a step forward and shot the bear in the side of the skull, through the brain, twice.  The Buffalo Bore bullets penetrated through the brain and  lodged in the skull on the other side. The distance was five feet. The deadly fight was over.

No shots had hit the spine. The bear had a thick layer of fat, which acted as armor of a sort. Two of the +P .45 hollow point bullets were recovered under the hide, in the fat. Several hits were in the top and side  of the neck going down toward the shoulders. Tyler believes the .45 bullets had not penetrated into the chest cavity, but most of the bullet paths were not followed to see which came from which caliber.  They knew the side shots had been from Tyler's 10 mm. The frontal shots could have been from either shooter. The shot above the eyes had to be from the .45, because the angle would have been different as the bear closed and Tyler joined the son-hunter, shooting at the advancing bear. The bear had been hit so many times, the investigator gave up after counting 16 holes. All of the shots were in the front half of the bear. The bear had a number tattooed on its lip. It had been handled before. It was a grizzly boar, about 500 - 600 lbs, according to the investigator and biologist.

Tyler believes his shots with the Buffalo Bore bullets were the only effective shots. 

This correspondent is not so certain. If the son-hunter had not shot, it seems unlikely Tyler would have been able to put shots into the bear before it reached the hunters. Both parties played critical parts. The incident shows the advantage of deep penetrating bullets.  

We do not know the dynamics of each shot, because a complete necropsy was not necessary. Some of the son-hunter's shots might have penetrated to the chest cavity. We do not know. Penetration of 11-13 inches is common with aggressive, self-defense hollow-points in a .45. A bullet into the side of the neck, from the front, angling down toward the chest, could have to travel through many inches of fat to reach the chest cavity.

Healthy bears can move much faster through rough terrain than humans can. It is unlikely Tyler would have been able to reach the hunters before the bear, unless the bear was slowed down by the shots which hit it during its charge.

The clients were understandably concerned and scared of possible legal actions after being forced to shoot a grizzly in self defense. They knew they needed to contact the authorities right away. There was no cell phone coverage.

Tyler was able to borrow a satellite phone. They were not able to contact the outfitter, but they were able to contact the owner of the ranch, who agreed to contact Game and Fish. The hunters and Tyler were assured the investigators were on the way.  Tyler and the hunters were at the camp, resting, when people in red shirts appeared. Red shirts are part of the uniform for Wyoming Game and Fish personnel.  Tyler assumed they were the investigators.  They were not. They were Game and Fish personnel who happened to be in the area and visiting the camp, only a few hours after the bear attack. When Tyler told them what had happened, they made contact with the federal Fish & Game, who gave the Red Shirts permission to do the investigation. 

The investigators interviewed the participants. They returned to the site of the attack. They re-enacted the attack. Pictures were taken, a field examination of the bear carcass was done. It became obvious the attack had been real, had been reported, and the response in defense of self and others was justified.  The elk was found. It had been partially covered by the bear. 

When the hunters and guide returned to the trail head, a federal agent was there to confirm what the Wyoming Game and Fish personnel had already learned. He interviewed the hunters and Tyler. 

It is unlikely there will be a prosecution. The humans were doing what humans do. They were ethically and legally hunting elk. The bear did what some bears do, aggressively attack anything which comes within a large radius of where they are. Most grizzly bears avoid humans. Grizzly bears in the Greater Yellowstone Ecosystem have been conditioned to believe humans are not a threat, for at least 50 years. Those which are especially bold are more likely to attack humans than those in areas where grizzly bears are actively hunted. Their natural aggressiveness and natural armament make them a deadly threat to any human which inadvertently crosses an invisible line. 

 

Tyler reported a Game and Fish biologist said it was likely the noise the hunters and Tyler were making which triggered the charge. Many others have been given advice to make noise to prevent charges.

The problem of an overabundance of aggressive grizzly bears has been known for some time. In an interview two years ago, Brian Nesvik, head of Wyoming Game and Fish, noted the departments' hands have been tied.  From trib.com:

Lastly, grizzly bears continue to be an important issue for the state. There’s very little disagreement that grizzly bears in Greater Yellowstone are recovered, but we still don’t have state management and so work towards figuring out how to accomplish that is a priority for the department and a priority for the state.

Most of the problem comes from groups outside the state which have large financial resources, and no skin in the game in Wyoming.

Tyler Barnard knew this. It is a major reason he decided to go public with this event, rather than avoid risk and remain anonymous. It took courage and resolve to place himself in the cross hairs of the big money groups. From his post on facebook: 

I have been considering whether or not to post this issue we deal with as outdoorsman. I have decided to tell my experience and go over a few ways we can deal with the situation at the political level. Many of you know, I have been guiding in Wyoming for the last 6 years. This year, we have had more issues with grizzlies than any other year I've been in the back country. It's looking like many others are dealing with more grizzly issues as well in surrounding states like Montana and Idaho.

(snip)

Do to the pressure on our politicians by hunters, ranchers, and farmers, we were able to open a season on the over population of wolves. We need to stand up against these people and groups funding the protection of grizzlies and put a stop to it. If you have had a negative bear experience, write a story on it. Get a hold of Rocky Mountain Elk Foundation, Sportsmans Alliance, Mule Deer Foundation, and any other foundation that's fights for our rights and safety in the outdoors, along with your local representatives. They do work for you. Tell them your story. The more people that reach out to share their experience, the more serious this issue is going to be taken. Contact you local and state legislation and give them your story along with your ideas about how we can go about this.

Grizzly bears moved into most of North America thousands of years after humans had colonized the continent. The competition for the spot of apex predator was settled when European humans brought their advanced technology to the continent. Humans become the dominant species, without any rivals.

With dominance comes responsibility. Fortunately, humans have the potential to be responsible, unlike all other species on the planet. It is up to humans to manage the earth. Grizzly bear populations have to be managed. Hunting is the best way to accomplish that end.

 

©2021 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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Supreme Court Grants Emergency Stay to Biden Administration on Final Rule for Receivers and Frames (Ghost Guns)

 

Dean Weingarten in front of the Supreme Court

On August 8, 2023, the Supreme Court of the United states, in a 5-4 decision, granted an emergency to the Biden administration in case of VanDerStock v. Garland. The case centers around whether the ATF of the Biden administration correctly followed administrative procedure while creating the "Final Rule on a change in the definition of what constitutes a firearm, firearm receiver, or firearm frame, as defined by the Gun Control Act of 1968 (GCA 1968. The United States Court of appeals for the Fifth Circuit had refused to grant the stay, on the grounds the Biden Administration was likely to lose the case. The case is sent back to the Fifth Circuit for oral arguments. From the Supreme Court:

Application (23A82) for stay presented to Justice Alito and by him referred to the Court is granted. The June 30, 2023 order and July 5, 2023 judgment of the United States District Court for the Northern District of Texas, case No. 4:22-cv-691, insofar as they vacate the final rule of the Bureau of Alcohol, Tobacco, Firearms and Explosives, 87 Fed. Reg. 24652 (April 26, 2022), are stayed pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would deny the application for stay.

The oral arguments at the Fifth Circuit are scheduled for September 7, 2023. They will be held at the En Banc Courtroom in New Orleans.

Analysis: The case is framed as a procedural case to determine if the ATF of the Biden Administration properly conducted the procedure to create a new definition of a "firearm", firearm receiver, or firearm frame, within the power granted to them by the Congress in the Gun Control Act of 1968, as modified by the Firearms Owners Protection Act of 1986. The Fifth Circuit held the ATF did not follow the proper procedure and went beyond its authority when they changed the definitions in the "Final Rule".

The emergency stay was granted by a 5-4 decision where Chief Justice Roberts and Justice Amy Comey Barrett sided with the three far left justices to swing the vote in their favor. Justice Thomas, Justice Alito, Justice Gorsuch and Justice Kavanaugh voted against giving the stay. This is not good news for Second Amendment supporters. The pleading by the Biden administration was full of emotional means-ends speculation about the horrible harm "ghost guns" are doing, when in fact, such harm is minimal at most. The difference a few tens of thousands of guns without serial numbers might make is very small compared to the hundreds of millions of current firearms which are unregistered and already in the American private stock of firearms. One argument some justices may have found plausible is the idea that "ghost guns" represent a significant technological change which must be dealt with outside the current legal structure. It is true that guns are easier for amateurs to make today than they have been previously. To credit this idea, one must accept the idea the Second Amendment disfavors individuals making their own arms rather than purchasing them commercially.  Alternatively, the old Progressive notion of changing the Constitution by judicial fiat comes into play.

The case is far from over. The stay will remain in place until the case is disposed of in the Fifth Circuit Court of Appeals. If the case is appealed to the Supreme Court, which seems likely, the stay will remain in place until the Supreme Court accepts or refuses the case.

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

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AL: Domestic Defense, Man Shot While Breaking into Home

According to police, officers responded to a residence in the 1100 block of Hewitt Street for a burglary call shortly before 1:20 a.m.

A short time later, officers were dispatched to the area around a restaurant in the 4000 University Drive for a call of a gunshot victim, later identified as Troy Shawntell Fletcher, 42.

Investigators say Fletcher was burglarizing the residence when he was shot.

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NC: Homeowner Shoots Univited Guest who Assaulted Him

Officials said after a preliminary investigation, they found that residents held a gathering at a home on Voss Street. That's when police said a suspect crashed the party and assaulted the homeowner.

Winston-Salem Police said a partygoer brought out a handgun and shot the suspect.

 

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AZ: Domestic Defense, Son with Drug Problem Shot by Father

The Maricopa County Sheriff’s Office says around 6 a.m., deputies responded to a shooting near Beardsley Road and 129th Avenue. There they learned that a man broke into his parents’ home, where he was not allowed due to a drug problem, when his father shot him, MCSO says.

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Hawaii: Judge Grants Temporary Restraining Order Stopping Ban on Carrying Legal Guns in Most Places (Wolford v. Lopez)

On August 8, 2023, In the United States District Court for the District of Hawaii, Judge Leslie E. Kobayhashi issued a temporary restraining order (TRO) in the case of Wolford v. Lopez.  The case was filed on June 23, 2023, and has been written about previously on AmmoLand.  The plaintiffs asked for a TRO for five of fifteen so called "sensitive places" in the new Hawaii law. Judge Kobayhasi issued the TRO for most of the places asked for by the plaintiffs, with some exceptions. Whether the other places which are labeled as "sensitive places" in the law will be upheld by Judge Kobayhasi remains to be seen.

Early in the opinion which establishes the TRO, Judge Kobayhashi sets the frame of the case as a conflict between safety concerns and the Second Amendment. From the opinion of Judge Kobayhashi page 2:

It is this powerful collision between Hawai`i officials’ concern for the safety and welfare of its citizens and “the Second and Fourteenth Amendments[’] [protections of] an individual’s right to carry a handgun for self-defense outside the home” that is before this Court today.

One of the things determined by the opinion is the concern for safety and welfare is mostly illusory.  From page 87, when determining the balance of equities in the proposed TRO:

According to the GOA Amicus Brief, the vast majority of individuals in the United States with concealed carry permits are law-abiding. See GOA Amicus Brief at 20–25 (discussing the statistics of people with concealed carry permits to support the proposition that people with concealed carry permits are significantly less likely to commit gun-related crimes). Although the State raises important safety concerns, it fails to demonstrate that the public safety concerns overcome the public’s interest in preventing constitutional violations.

The plaintiffs asked for relief with a TRO for five areas. Those were: parking lots used by both government and non-government entities; bars and restaurants which serve alcohol and their parking lots; public beaches and parks and their parking lots; premises of banks or financial institutions and their parking lots; private property which has not clearly banned firearms.  Those areas are shown in the legal descriptions on page 3:

-the portions of Haw. Rev. Stat. § 134-A(a)(1) that prohibit carrying firearms in parking areas owned, leased, or used by the State or a county which share the parking area with non-governmental entities, are not reserved for State or county employees, or do not exclusively serve the State or county building;

-the entirety of Haw. Rev. Stat. §§ 134-A(a)(4) and (a)(12);

-the portions of Haw. Rev. Stat. § 134-A(a)(9) prohibiting the carrying of firearms in beaches, parks, and their adjacent parking areas; and -the portion of Haw. Rev. Stat. § 134-E that prohibits carrying firearms on private properties held open to the public.

The  State of Hawaii attempted to claim its power as a proprietor was greater than its power to legislate. Judge Kobayhashi did not agree. From page 55:

The State asks this Court to make the distinction “‘between the government exercising the power to regulate or license, as lawmaker, and the government acting as proprietor, to manage its internal operation.’” [Mem. in Opp. at 11 (quoting Nordyke, 681 F.3d at 1045 (cleaned up)).] The State makes this distinction to argue that it may regulate conduct on its property when it is acting as a proprietor. See id. at 11 n.17 (citations omitted). This distinction in a post-Bruen world makes no difference. What matters at the first step of the inquiry is whether the regulated conduct is covered by the Second Amendment’s plain text.

Judge Kobayhashi concluded the state could not unilaterally remove the presumption to carry on private property open to the public: page 76-77:

 What § 134-E does, and what cannot be constitutionally permitted, is remove the presumption of the right to carry a firearm on private property held open to the public. Under § 134-E, conduct that was presumptively protected under the Second Amendment is now presumptively not protected. Such a change runs afoul of the Second Amendment’s “guarantee[] to all Americans [of] the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions.” See Bruen, 142 S. Ct. at 2156 (citation and internal quotation marks omitted).

Judge Kobayhashi makes the obvious call: when constitutional rights, including Second Amendment rights are violated, it is irreparable harm of itself, no matter how short the duration. From page 83:

 Plaintiffs argue they will face irreparable harm per se because their constitutional rights have been violated. See TRO Motion, Mem. in Supp. at 24. The Court finds that Plaintiffs have sufficiently established they will likely face immediate irreparable harm. “It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)). The Ninth Circuit does “not require a strong showing of irreparable harm for constitutional injuries.” Cuviello v. City of Vallejo, 944 F.3d 816, 833 (9th Cir. 2019). 

Judge Kobayhashi grants most of what the plaintiffs asked for in the TRO. This shows the Judge believes there is a strong likelihood the plaintiffs will prevail on those points. Most of the fifteen locations labeled as "sensitive places" were not considered in the TRO, but will be considered as the case is further adjudicated.

This is a strong win for Second Amendment Supporters. It comes on the heals of the three judge panel in the United States Court of Appeals for the Ninth Circuit, where it was ruled the ban on the possession and carry of "butterfly knives" in Hawaii law violates the Second Amendment of the Constitution.

 

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

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TX: Gun v. Golf Cart

“The victim then barrels the golf cart into the shooter’s gate. The shooter is standing behind the gate at that point, and the gate hits the shooter at which time the shooter fired multiple shots striking the victim,” HCSO Sgt. Sidney Miller said.

The homeowner tried performing CPR, but when paramedics arrived the other man was pronounced dead.

Deputies tell KPRC 2 he is cooperating with them as they continue to investigate.

More Here

TX: Domestic Defense, Woman Shoots, Wounds Kolan Lockett

HPD patrol officers responded to a shooting at the above address and found a male, later identified as Lockett, being treated for a gunshot wound by Houston Fire Department paramedics.  Lockett was then transported to an area hospital.

The female victim informed police that she was assaulted by Lockett and he threatened to kill her.  Lockett then left to retrieve a gun.  At that time, the victim grabbed her own gun and, as Lockett entered the room, she fired a shot at Lockett and he was struck.

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Fifth Circuit: Using Intoxicants to Ban Guns is not Constitutional

 

On August 9, 2023, a three judge panel of the United States District Court of Appeals for the Fifth Circuit found the federal ban on the possession of firearms by people who use marijuana to be unconstitutional under the Second Amendment.

The case is  USA v. Daniels.  Daniels was pulled over for driving without a license plate in April of 2022. One of the two officers was a Drug Enforcement Administration agent. That officer recognized the smell of marijuana. The two officers found several marijuana cigarette butts, a 9mm pistol, and a semi-automatic rifle in the vehicle. During questioning, Daniels admitted he was a regular user of marijuana. He was not tested for drug use. He was not asked if he was using marijuana at the time. The officers did not state Daniels appeared intoxicated. From the court opinion:

Based on his admission, Daniels was charged with violating 18 U.S.C. § 922(g)(3), which makes it illegal for any person “who is an unlawful user of or addicted to any controlled substance . . . to . . . possess . . . any firearm.”An “unlawful user” is someone who uses illegal drugs regularly and in some temporal proximity to the gun possession. See United States v. McCowan, 469 F.3d 386, 392 (5th Cir. 2006).

While Daniels was under indictment, the Supreme Court decided Bruen. It clarified that firearms regulations are unconstitutional unless they are firmly rooted in our nation’s history and tradition of gun regulation. See 142 S. Ct. at 2129–30. Daniels immediately moved to dismiss the indictment, claiming that § 922(g)(3) is unconstitutional under that new standard.

The District court denied the motion to dismiss the indictment.  He was found guilty and sentenced to four years in prision. Daniels appealed his conviction to the Fifth Circuit. The Fifth Circuit considered the case. Using the procedure as required in the Bruen decision, the three judge panel found the ban on the possession of firearms by those who have used intoxicants at some time, to be unconstitutional. From the opinion:

Throughout American history, laws have regulated the combination of guns and intoxicating substances. But at no point in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at one time from possessing guns at another. A few states banned carrying a weapon while actively under the influence, but those statutes did not emerge until well after the Civil War. Section 922(g)(3)—the first federal law of its kind—was not enacted until 1968, nearly two centuries after the Second Amendment was adopted. 

In short, our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage. Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users. As applied to Daniels, then, § 922(g)(3) violates the Second Amendment. We reverse the judgment of conviction and render a dismissal of the indictment.

Analysis:

The Gun Control Act of 1968 was aimed directly at destroying the Second Amendment rights of the people of the United States. The original act included the registration and licensing of all handguns. What passed was a watered down version which included the seeds of future destruction. The act included a list of groups of people who were made into prohibited possessors. It prohibited people from purchasing guns across state lines. It set up the base for a national registration system by mandating a license to sell firearms and requiring records to be kept of firearm sales. It mandated serial numbers on all firearms.  These prohibitions and restrictions were new. They were not a part of the historical regulation of firearms in the United States. They would never have been accepted at the time of the ratification of the Second Amendment in 1791.

Originalists on the Supreme Court have a majority for the first time in 80 years. They are determining what the Constitution meant when it was ratified as a basis for the laws of the United States. The previous dominant ideology on the Supreme Court was Progressivism, which holds the Constitution should be interpreted by the Supreme Court to obtain the ideological changes desired.

The originalists on the Supreme Court are restoring Second Amendment rights by removing infringements accumulated under 80 years of Progressive mutilation of the Constitution.

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

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