Progressive Judge Says Commerce Clause Overrides the Bill of RIghts

At least one judge in the Third Circuit believes the Commerce Clause overrides the Bill of Rights.

In a recent decision of The United States Court of Appeals for the Third Circuit, in the case Range v Lombardo, on June 6, 2023, the en banc court ruled some felony convictions are not sufficient  to restrict Second Amendment rights, based on the historical record. Eleven of 15 judges concurred with the majority opinion. Four judges dissented. One of those was Judge Jane Richards Roth, appointed to the Third Circuit by George H. W. Bush in 1991. She was born in 1935 and started her governmental career working as a typist and administrative assistant in the Foreign Service of the U.S. Department of State, in 1956. She graduated from Harvard Law School in 1965. Judge Roth assumed senior status on May 31, 2006.  She is a few days shot of her 88th birthday (June 16). 

Judge Roth makes a strong case, based on Progressive philosophy, the Commerce Clause overrides the Bill of Rights. She gives the usual litany of Progressive "arguments": Things have changed since the ratification of the Bill of Rights. The federal government has to have more power than the Bill of Rights allows. That was then. This is now. Here is part of the dissent from Judge Roth of the Third Circuit P. 96 of 107 :

In Bruen, the Supreme Court considered whether a regulation issued by a state government was a facially constitutional exercise of its traditional police power. Range presents a distinguishable question: Whether a federal statute, which the Supreme Court has upheld as a valid exercise of Congress’s authority under the Commerce Clause,2 is constitutional as applied to him. The parties and the Majority conflate these spheres of authority and fail to address binding precedents affirming Congress’s power to regulate the possession of firearms in interstate commerce. Because Range lacks standing under the applicable Commerce Clause jurisprudence, I respectfully dissent.

Judge Roth explicitly states the modern expansion of the commerce clause, to include virtually all activity which has any effect on commerce, overrides the Bill of Rights because the scope of modern commerce is far greater than commerce at the founding.  This case involves the Second Amendment. Roth's logic as easily applies to the First Amendment and others. Virtually all First Amendment usage involves items which have a connection to interstate commerce - printing presses, telephones, computers, satellites, fiber optic cables, etc. Church pews are made of wood shipped across state lines; paid for by credit cards recognized by interstate banks. Nearly all homes affect interstate commerce. Under the expansive interpretation, the federal government could regulate all use and sale of homes, and inspect them at any time, in spite of the Fourth Amendment. Under the expansive, Progressive interpretation, the Ninth and Tenth Amendment are swalloed up. Virtually all of life is encompassed by the absurd extension of the Commerce Clause created by Progressive judges. 

Most of what Judge Roth writes about modern times applied to commerce at the time of the ratification of the Bill of Rights. 

In U.S. v. Lopez, 1995, the Supreme Court temporarily stepped away from the Commerce Clause abyss into which we have been tumbling. Justice Thomas complained about the Supreme Court failing to followup on the Lopez decision, instead doubling down on Commerce Clause suppremacy over all in the  Gonzales v. Raich idiocy.  All six of the judges who voted for Raich (1996) have now left the Supreme Court. Only Thomas remains of the judges on the court for the decision.  From Justice Thomas dissent:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers

Justice Thomas gives a powerful, originalist and textualist explanation of the Commerce Clause: 

As I explained at length in United States v. Lopez, 514 U.S. 549 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Id., at 586—589 (concurring opinion). The Clause’s text, structure, and history all indicate that, at the time of the founding, the term “ ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” Id., at 585 (Thomas, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Id., at 586—587 (Thomas, J., concurring). Throughout founding-era dictionaries, Madison’s notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term “commerce” is consistently used to mean trade or exchange–not all economic or gainful activity that has some attenuated connection to trade or exchange. Ibid. (Thomas, J., concurring); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 112—125 (2001). The term “commerce” commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847, 857—862 (2003).

Most of the judges on the Third Circuit disagree with Judge Roth. From the majority opinion concurrence by Judge  Porter of the Third Circuit P. 28-29 of 107:

A conception of the Second Amendment right that retcons modern commerce power into early American state law is anachronistic and flunks Bruen’s history-and-tradition test. Setting the federal floor through a combination of antebellum state police power and Congress’s post-New Deal commerce authority, as the dissents propose, would underprotect the constitutional right to keep and bear arms.

Analysis: 

The modern Supreme Court is stepping back from the Progressive position of all power to the administrative state. It may be the Supreme Court will finally put some limits on what the Commerce Clause covers. Justice Thomas has explicitly shown what those limits should be.

 

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

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OH: Confrontation at Home Person Shot Charged with Burglary

The victim confronted the suspects at the front door and told them they needed to leave the property.

Court records say Shields and Fetherolf refused to leave and continued yelling and making threats toward the victim, who ran into the house.

Fetherolf and Shields forced their way into the home and a fight occurred between Fetherolf and the victim’s brother, according to court records. Police said Fetherolf dropped his handgun during the fight.

The victim pulled out a handgun, pointed it at the suspects and told them to leave, according to court records.

After Shields and Fetherolf left, they kicked down the front door after hitting it several times. When the front door opened, police said the victim fired his handgun, striking Fetherolf once in the hip.

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TX: Free Gun Safes Coming to San Antonio and Bexar County (video)

 

From kens5.com Video:

The Bexar County Commissioners have approved a program to acquire 3,800 small gun safes/lock boxes and 1,000 cable locks for guns to give away to county residents this summer. Bexar County is in Texas and includes San Antonio. The money for the program is part of the The American Rescue Plan Act of 2021. The Act authorized a minimum of 1.9 Trillion dollars of spending, focused primarily on leftist programs. From ksat.com:

The Bexar County Commissioners Court approved the distribution of 3,800 portable handgun safes and 1,000 handgun cable locks free of charge to county residents throughout the summer.

(skip)

According to the release, the initiative received approximately $145,000 in funding through the American Rescue Plan Act.

The program involves cooperation between Bexar County and University Health, a local health car provider in San Antonio and Bexar County. They are officially known as the Bexar County Hospital District, and are a separate governmental entity and political subdivision of the State of Texas. People are supposed to pre-register to obtain a small gun safe/lock box and/or a cable lock. One gun safe/lockbox and one cable lock will be allowed per household.  From the University Health site:

GunSafety4Bexar, a program by University Health and
Bexar County, is distributing gunlocks and gun cases to families with
firearms. The goal is to reduce firearm injuries by urging owners to
store their guns unloaded, locked and separate from ammunition.

One gunlock (as supplies last) and one gun case per household. Pre-registration is required.

At the registration site, this information was available:

Visit the Bexar County Parks & Recreation website for more information on the parks below. You may sign up for any precinct event and do not have to live in that precinct.

Precinct 1: Thu, June 15, 4:00 PM – 6:00 PM at Padre Park (6030 Padre Dr, 78214)

Precinct 2: Sat, August 19, 9:00 AM – 11:00 AM at Rodriguez Park (2060 Rodriguez Ave, 78227)

Precinct 3: Sat, July 8, 9:00 AM – 11:00 AM at Bullis County Park (27583 Blanco Rd)

 

Precinct 4: Sat, July 15, 9:00 AM – 11:00 AM at Pletz County Park (3831 Belgium Lane, 78219)

 

Countywide: Sat, July 22, 9:00 AM – 11:00 AM at Comanche Park (2600 Rigsby Ave, 78222)

 

At the University Health site, twelve different locations are given where
pickup is possible.   This correspondent was able to contact one of
the locations. At the location contacted, locks were available but the
gun safes/ lock boxes were not yet available as of June 7th.  To obtain a gun safe/lock box, pre-register and pick it up at one of the five locations and events listed from June 15 to July 22, as shown above.

At the University Health site explaining the program, this statement is shown. From universityhealth.com:

Firearms have become the leading cause of death in children and teens in the U.S. Mass shootings across Texas and the nation have captured headlines. What we hear less frequently about are the many firearm injuries that occur because guns aren’t safely stored. The result–gun-related suicides, unintentional discharges and firearm theft.

Analysis:

The wording states firearms are the cause of death. This removes volition from people and grants it to an inanimate object. This is deceptive use of words. Firearms are not a cause, they are a method of death.  When firearms become difficult to obtain, those who deliberately use them to cause death (homicides and suicides) choose other methods. The overall homicide and suicide rates remain the same, or are changed so little, the difference cannot be measured. Another deception is the listing of causes of death. Only suicides or unintentional discharges are mentioned. 68% of the 0-19 year old firearms related deaths are homicides. Of deaths of people 0-19 years of age (children and teens) where firearms are involved, the numbers for 2020 are these, according to the Center for Disease Control:

Intentional deaths: Homicides -  2,811 (68%)

Suicides - 1,293

Legal intervention - 25

Total intentional deaths where firearms are the method used: 4,129

Undetermined intent - 90

Unintentional deaths where firearms are involved: 149

Total firearm related deaths: 4,368.  Of those where the intent is known, 68% are homicides. Homicides are not mentioned in the University Health statement.

When over 96% of the deaths listed are intentional acts, it is unlikely the distribution of gun safes/lockboxes and cable locks will have any noticeable effect.

Opinion: Gun safes/lockboxes and cable locks can be useful, particularly in preventing theft of firearms. Preventing theft is desirable. Reducing deaths of children and teens is desirable, but the program is unlikely to have a significant  effect on those statistics.

The characterizations of guns as causal agents at the University Health site is Orwellian propaganda.

If readers are in the San Antonio/Bexar County area, and are willing to undergo the hassle of registering and waiting to obtain a small gun safe/lockbox, this program may be useful.

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

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KS: Wichta Man who Entered Home without Permission, Shot Killed

The department said just before 2:30 a.m., officers were called to the 1700 block of E. 69th Court N. for a shooting. There, officers found David Pomeroy who had been shot. He was taken to the hospital where he later died.

The preliminary investigation revealed Pomeroy had entered a home without permission and threatened at least one person in the home. The department said one of the people in the home shot him.

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Allen Schallenberger, Montanta Bear Researcher, .357 magnum and Two Incidents with Shots Fired

 

In the previous article, Allen Schallenberger who did bear research in Montana for many years, recounted an incident where he fired his .357 Colt Python in defense against a large aggressive grizzly which refused to leave the area of his camp, in 1976. There were two other incidents where he fired his .357 in defense against bears. Allen recounts them in his own words, below:

In spring 1977, I was flying with a small plane pilot out of the Choteau airport to check on the location of radio collared grizzly bears. 

 

 Allen Schallenberger warming up at his Montana ranch, after working in -30 degree weather. He often grew a beard during grizzly bear research.

 

My spring helper Roy Jacobs and I had a few snares set in aspen patches on Ear Mountain, a prominent peak on the mountain front adjacent to the foothills and prairie about 25 miles west of Choteau. I flew over the snare sets with the pilot to check for bears and I spotted two adult grizzlies in snares and another adult hanging out with a snared bear. We immediately stopped our radio monitoring flight and went back to the Choteau airport. Roy and I caught our saddle horses and a pack animal for our trapping and radio gear and loaded up my trailer at Choteau. Roy who was a local suggested we get Wayne and Chip Gollehon who ranched on Ear Mountain to help us handle the bears for safety. I called Wayne and we met them on horses on the mountain. We had no trouble with the first large male and I quickly drugged him with a dart gun, and we measured him and put a radio collar on him. The other pair was about a mile away. We all tied up our horses to aspen trees and I gave my shotgun to Wayne Gollehon and told him his job was watch for the courting sow grizzly which had been hanging out with the adult male in the snare. After I drugged the bear and we were getting ready to put the radio collar on him, Wayne yelled, “ Look out here she comes”! She was charging us at a trot at about 40 yards. I jerked my Colt Python .357 out and fired two shots into the air and she swerved away and did not return. Roy had laid his shotgun on the ground and had to run toward the female to get it. We finished measuring the male and put the radio collar on him. We thanked the Gollehon’s for helping and they rode their horses home. Roy and I went to the Cow Track Restaurant and had late dinner and a couple of drinks to settle our nerves. Roy grew up in Choteau and had camped and hunted on Ear Mountain many times without realizing how many grizzlies were present. 

In 1978 Keith Aune was helping me. He was a young wildlife biologist with a B.S. degree from the University of Montana and had grown up in Dutton 24 miles east of Choteau. On an airplane radio collar monitoring flight the 28 th of August, I had found the radio marked male from the courting pair above along with four other grizzly bears on the top of the barren 9,392-foot elevation Rocky Mountain, highest peak on the Rocky Mountain Front. The next day Keith and I drove to the end of the South Fork Teton River USFS Road. We planned to head cross-country to the top of Rocky Mountain to see why the bears were congregated on the peak. Keith said ,” It is a very hot day and I’m not carrying that heavy Mossberg short barrel 12 gauge.” I told him I was carrying both my Remington 870 12- gauge pump and my Colt Python. We both had packs on metal frames with gear, water and lunches and Keith had our tracking antenna and radio receiver which scanned for our bear collar signals.

When we had climbed to about 8,200 feet which was above timberline, we spotted a large adult grizzly at about 300 yards coming down a game trail on the mountain toward us. Keith checked the radio, and it was our courting male we caught on Ear Mountain in 1977. I said I guess I better let him know we are in the area, and I yelled,” Hey bear” loudly. He let out a string of bear cuss words and started running toward us as fast as he could run. I quickly fired two .357 magnum shots in the air which appeared to have no effect on him. I quickly stuffed two more shells in the revolver and gave it to Keith. I chambered a round in my shotgun and stuffed another slug round in the magazine. There was a five-foot-high boulder about 20 feet behind us and we got behind that. I told Keith when the grizzly appeared on top of the ridge, we were going to kill him. We waited with our hair standing up and the bear did not appear. A check with the radio receiver showed he had passed down the other side of the ridge headed for the dense forest on the river.

We climbed on up to the top of the mountain, spotting 21 bighorn rams on the way. We found the grizzly bears were eating army cutworm moths and ladybird beetles which were congregated in great numbers on rocks for breeding purposes. We also found many sites where the grizzlies had optimistically tried to dig pikas out of their rocky tunnels apparently with little success. We did not see the other grizzly bears. Keith always packed his shotgun after that day. Bear spray had not been invented.

There was a grizzly bear hunting season in the area mentioned until 1991. The grizzlies I contacted were still afraid of gun shots and had not yet learned to associate gun shots with gut piles or big game carcasses which happened later there. 

The first incident is clearly a pistol defense success. A pistol was fired in defense against a bear, and the bear left. The second incident, in 1978, is not so clear as to be certain. A pistol was fired in defense against the bear, as warning shots. No effect was noticed. However, the bear did not continue toward the area the pistol shots came from. This will be counted as indeterminate. Readers can draw their own conclusions. 

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

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TN: Desiree Mears Commended for Defending Self and Children

MCMINNVILLE, Tenn. (WSMV) - A woman was commended for her bravery after shooting and killing a man that posed an imminent threat to her and her kids in McMinnville on Monday, according to District Attorney General Chris Stanford.

Stanford said just before noon the Warren County Sheriff’s Department and McMinnville City Police Department responded to a shooting on Grandview Avenue in McMinnville.

Law enforcement determined that Maurice Malone, 38, had been shot in the chest and died due to the gunshot wound. Through further investigation, law enforcement said that the woman who shot him had an honest and reasonable belief that the then occurring and previous actions, threats and behaviors of Malone posed an imminent threat to Desiree Mears and her minor children.

The shooting death of Malone was deemed justified as self-defense and defense to third parties, according to the DA.

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MD Baltimore: 21-Yr-Old Victim is Wounded, Shoots Back

Sometimes later, officers were called to the 4800 block of Bowland Avenue for a shooting. Once there, Officers located a 21-year-old male victim suffering from an apparent gunshot wound to the body. The victim was transported to an area hospital by a medic with non-life-threatening injuries.

Preliminary investigation revealed that the victim parked his sedan vehicle in the 5100 block of Sinclair Lane when an unidentified black male walked up to the vehicle and began discharging at the vehicle. The sedan driver then returned gunfire and fled the area.

 

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The Historical Record is the Correct way to Understand the Right to Keep and Bear Arms.

In the recent series of direct Supreme Court opinions on what rights the Second Amendment protects, the Court laid out a brilliant exposition of what the words of the Second Amendment mean, and how to use the meaning of the Second Amendment in judging the law. Those cases started with Heller, continued with McDonald, with more in Caetano and most recently with Bruen.  Earlier decisions talked about the Second Amendment without ruling on it directly at the Supreme Court. The famous Miller decision from 1939 is muddy and does not give a definitive interpretation.

Justice Thomas of the Supreme Court is an originalist and a textualist. This means he judges the law by the text of the Constitution instead of determining what results he desires or what he thinks is the best policy for the country.  Progressive judges do not do this. They look to the results they wish, then work to find out a way to justify those results.  The idea of a "living constitution", in essence, means no effective Constitution.

The Constitution is a contract between the Federal Government, the People, and the States. It specifies and arranges the political power structure of the Republic. It is detailed and easily understandable by people of ordinary intelligence. The writers of the Constitution understood political philosophy and the nature of man extremely well, much better than most contemporary politicians.

The Progressive movement arose in the 1890's, pushed by those who wanted more power to make national laws they believed to be necessary. Many of them desired to make the nation stronger, to "right wrongs" to "do good". They may have meant to be benevolent rulers, but they meant to rule. They despised the restrictions placed on their ambitions by the structure of the Constitution and the Bill of Rights. Most of their argument for ignoring the Constitution, or finding ways to "work around" the structure it imposed consisted of two themes.

1. Everything changes over time. Nothing is immutable. The principles of human nature and political thought the Constitution was constructed on are not valid now, because human nature and political thought have changed.

2. That was then. This is now. The Constitution restricts what we have to do to prosper in modern times. Therefore we have to either ignore the Constitution or find ways to work around it.

The idea of a means-ends test to determine what the Constitution means, is pure Progressive ideology. Instead of determining what the Constitution meant at the time it was ratified, mean-ends looks at the results of a Constitutional interpretation, and determines if the results are what was desired by the legislature or what is desired by the judges' will. Means-end is pure case by case pragmatism or power politics. Its guiding star is: Does this decision do what the judge (or legislature) wants to get done?

Textualism and Originalism reject the idea of interpreting the Constitution to obtain the policy decision desired. Instead, to determine the fine points of what the Constitution means in a particular circumstance, you start with the text of the Constitution and the Bill of Rights. The text is the most important part. Then, to be sure you are not imparting meaning to the words which you desire them to have, you examine the meaning they had when the Constitution and the Bill of Rights were ratified. The text, with the meaning the words had at the time of ratification, is the standard.

For the Second Amendment, this was spelled out in the 2008 Heller decision, and elaborated on in later decisions, particularly in Bruen. From District of Columbia v. Heller, 2008:

The Second Amendment provides: “A well regulated Militia, being
necessary to the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.” In interpreting this text,
we are guided by the principle that “[t]he Constitution was written to
be understood by the voters; its words and phrases were used in their
normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden,
9 Wheat. 1, 188 (1824). Normal meaning may of course include an
idiomatic meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the founding
generation.

In Heller, the structure of the Second Amendment was examined closely. The Amendment consists of two parts; the prefatory clause (A well regulated Militia, being necessary to the security of a free State,) and the operative clause (the right of the people to keep and bear Arms, shall not be infringed). The prefatory clause gives one reason for the purpose of the Amendment. It is not exclusionary. One reason does not exclude other reasons.  The prefatory clause does not control or limit the operative clause. Such structure was common in the language of 1791 and earlier. Several state constitutions of the time use similar structure. The operative clause indicates the the right is a pre-existing right exercised by individuals. The justices in the Heller decision unanimously agreed the Second Amendment refers to a pre-existing right exercised by individuals.

The primary question of interpretation was what does "the right of the people to keep and bear arms" mean?  While the Heller dissenters argued it meant the right of individuals to participate in militias, the overwhelming evidence was it meant, at the time, a broad array of rights exercised and expanded in the colonies, derived, in part, from the English right to arms, which was exercised by individuals. The extent and limits to the right to keep and bear arms, at the time of the ratification of the Bill of Rights, requires a look at what they were broadly understood to mean by the body of the people at the time the Bill of Rights was ratified. It is impossible to determine what may not be infringed if you do not know what the right to keep and bear arms meant at the time. The Bruen decision rejects the means-ends test. From NYSR&PA v. Bruen:

 (1) Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny. Pp. 9–15.

In Bruen, it is explained why historical analysis is the standard instead of means-ends interest balancing. Determining the historical meaning of the Amendment is no more demanding than attempting to balance interests. For the Bill of Rights, interest balancing is off the table. Interest balancing gives judges power they are not granted by the Constitution. Only historical analysis is appropriate.

  (2) Historical analysis can sometimes be difficult and nuanced, but reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to “make difficult empirical judgments” about “the costs and benefits of firearms restrictions,” especially given their “lack [of] expertise” in the field. McDonald, 561 U. S., at 790–791 (plurality opinion). Federal courts tasked with making difficult empirical judgments regarding firearm regulations under the banner of “intermediate scrutiny” often defer to the determinations of legislatures. While judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. The Second Amendment “is the very product of an interest balancing by the people,” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. Heller, 554 U. S., at 635. Pp. 15–17.

In Bruen, the idea of "that was then, this is now" is expressly addressed. The Caetano decision unanimously concluded arms which did not exist at the time of the ratification are protected if they are "bearable arms" and "in common use".

 (3) The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it. See, e.g., United States v. Jones, 565 U. S. 400, 404–405. Indeed, the Court recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to “arms” does not apply “only [to] those arms in existence in the 18th century.” 554 U. S., at 582.

There may have to be some adaptation by analogy to deal with changed technology.  From Bruen:

 To determine whether a firearm regulation is consistent with the Second Amendment, Heller and McDonald point toward at least two relevant metrics: first, whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified. Because “individual self-defense is ‘the central component’ of the Second Amendment right,” these two metrics are “ ‘central’ ” considerations when engaging in an analogical inquiry. McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599).

The right to keep and bear arms was not understood as unlimited at the time of ratification. 

Automobiles did not exist when the Bill of Rights was ratified.  The closest analogy would be travel by horse or horse drawn vehicles. At the time of ratification, there were no restrictions on the carry of weapons by individuals on horses or horse drawn vehicles, unless the mounted individuals were carrying the weapons so as to terrify the population. Weapons which were unusual and particularly dangerous were prohibited from display if they terrified the population. The modern analogy would be drive by shootings, or menacing people with weapons while in an automobile. It may mean having a ring mounted machine gun on a pickup truck, with an operator ready to fire it, could be prohibited. Having common weapons available and ready to use, while traveling, was specifically protected in several laws of the era.

At the time of ratification, it was understood the carrying of weapons could be prohibited in legislative assemblies, polling places, or in court rooms. These were "sensitive places" at the time of ratification. To expand "sensitive places" to all public places is unacceptable. It was acceptable to disarm prisoners and to keep them disarmed. The right to keep arms did not include the right to steal arms if you did not possess arms of your own. It included the right to buy or make arms of your own.

To claim all weapons laws are void because the Second Amendment includes the words "shall not be infringed" is not correct. It depends on what the "right to keep and bear arms" meant to the people at the time of ratification. To conclude otherwise is to place the interpretation of the Second Amendment in the hands of modern readers, without regard to the historical record.

The restrictions on the right to keep and bear arms at the time of ratification were far fewer than exist today. Infringements on the right to keep and bear arms have accumulated over the last century and a half. Those infringements are being rolled back in the courts. The Bruen decision gives the courts the proper test to determine if a law is acceptable under the Second Amendment.

To claim historical analysis of laws at the time of the ratification is more difficult than balancing interests in the modern era is a ruse to place enormous power in the hands of judges, power which was never granted to them by the Constitution.

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

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OK: Homeowner Shoots, Kills, Neighbor who Attacked Him

Through the investigation and numerous interviews with witnesses and neighbors, officers learned the incident began with the homeowner doing yard work in the front yard. Williams approached him and became aggressive.

According to police, the homeowner asked Williams to leave several times. Williams eventually cornered the homeowner in the garage, began attacking him and cutting him with lawn trimming shears, and a physical fight ensued, TPD said.

At one point, the homeowner managed to get away from Williams, retrieved his gun, and again tried to get Blake Williams to leave, police said. Williams started walking away, then turned and ran at the homeowner, who shot Williams.

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Gun Sales, NICS Numbers for May 2023 Continue Million+ per Month Streak

 The NICS (National Instant background Check System) numbers for May of 2023 show the month to be a very close fourth highest May for gun sales and the third highest May for the NICS FBI run background checks. The estimate for gun sales in May comes to a little over 1.13 million estimated as recorded sold through the NICS system. Last year, in May, there were a little less than 1.14 million guns estimated as being recorded as sold through the NICS system. The number of guns sold in May of 2023 is 99.6% of the number sold in May of 2022. These are estimates because some guns sales are recorded as "multiple". The number of guns sold as multiple on one 4473 form are estimated as 2.5 x the number of multiple sales forms recorded.

May of 2023 is the 46th consecutive month of over a million firearm (gun) sales recorded by the NICS system. In May, where we know whether the firearm was a long gun or a handgun, 64% are handguns. 90% of gun sales are either long guns or handguns, 10% are listed as other or multiple.  Firearm sales have topped a million firearms since August of 2019. NICS went active in the last two months of 1998. Our best estimate for the number of firearms in the United States in 1998 is 256 million firearms. In the first 10 years of NICS use, the number of privately owned firearms increased by 52 million to 308 million. In the next decade, the number increased by 97 million to 405 million. From the  end of 2018 to the end of May, 2023, the number has increased by another 91 million to 496 million firearms. About half of the private stock of firearms in the USA will have been produced in the last 25 years. It is almost certain the number of privately owned firearms in the United States will exceed 500 million in 2023. Seven more months are available in 2023, and the number of firearms sold has been greater than a million for each of the last 46 months.

The theory of those who desire an unarmed population is more guns equal more problems. This theory has never been validated. There is no correlation in the numbers we have to indicate more guns equals more problems. From 1945, the first year where we have reliable numbers, the per capita number of firearms has increased from roughly .35 per capita to 1.37 firearms per capita at the end of May, 2023. The homicide rate, the suicide rate and the fatal firearms accident rate all show no correlation to the number of guns per capita. The homicide rate has varied from a minimum of about 4 per 100,000 to 10 per 100,000. The minimums occur with low per capita firearms and high per capital firearms. Suicide rates have also gone up and down and up and down as the per capita numbers of firearms continue to rise.  While suicide rates have been increasing for several years, the percentage of suicides committed with firearms has dropped while the per capital number of firearms has risen.  The rate of fatal firearms accidents has dropped about 94% since 1934, while the per capita number of firearms has quadrupled.  With four times as many firearms per person, the fatal firearm accident rate per person has fallen by 94%!

The high percentage of voters who own guns is likely to have political consequences. When as many as half of voters own guns and are more familiar with them than the politicians who seek to disarm those voters, those with more knowledge will see through misleading statements and obvious inaccuracies. This makes passing legislation designed to disarm the population very difficult.

Radical Democrats in control of the White House and the Senate are using every legal and illegal stratagem in a desperate attempt to hold onto power. They are attempting to radically transform the United States. In response to the domestic uncertainty and international tensions, more and more people buy firearms and ammunition for defense of self and others. The United States has reached a new normal where sales of less than a million firearms a month is an anomaly.

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

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CA: Teen Robber and Store Clerk both Shot Killed in Gunfight

When officers arrived, they found a 16-year-old boy in the parking lot suffering from gunshot wounds.

They also found the 20-year-old clerk shot to death inside the story.

The teen died later at Kaweah Health in Visalia.

The Violent Crimes Unit was called to investigate and determined the teen tried to rob the store, which resulted in both the teen and clerk firing multiple times.

 

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Third Circuit, En Banc, Range v. Lombardo: Not All Modern Felons Lose Second Amendment Rights

On June 6, 2023, the The United States Court of Appeals for the Third Circuit, in the case Range v Lombardo, issued an opinion:

Some felony convictions are not sufficiently based in the historical record to take away rights protected by the Second Amendment. 

The opinion was agreed to by nine of the fifteen judges in the circuit.  Readers are urged to read the entire 107 pages. Excerpts of the main opinion are included below. From the en banc decision:

On page 4, the majority opinion gives a summation:

 Bryan Range appeals the District Court’s summary judgment rejecting his claim that the federal “felon-in-possession” law—18 U.S.C. § 922(g)(1)—violates his Second Amendment right to keep and bear arms. We agree with Range that, despite his false statement conviction, he remains among “the people” protected by the Second Amendment. And because the Government did not carry its burden of showing that our Nation’s history and tradition of firearm regulation support disarming Range, we will reverse and remand.

On page 5, a short explanation of the case:

The material facts are undisputed. In 1995, Range pleaded guilty in the Court of Common Pleas of Lancaster County to one count of making a false statement to obtain food stamps in violation of Pennsylvania law. See 62 Pa. Stat. Ann. § 481(a). In those days, Range was earning between $9.00 and $9.50 an hour as he and his wife struggled to raise three young children on $300 per week. Range’s wife prepared an application for food stamps that understated Range’s income, which she and Range signed. Though he did not recall reviewing the application, Range accepted full responsibility for the misrepresentation.

On page 7 the issuance of the Bruen decision: 

While Range’s appeal was pending, the Supreme Court decided New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). The parties then submitted supplemental briefing on Bruen’simpact. A panel of this Court affirmed the District Court’s summary judgment, holding that the Government had met its burden to show that § 922(g)(1) reflects the Nation’s historical tradition of firearm regulation such that Range’s conviction “places him outside the class of people traditionally entitled to Second Amendment rights.”

On page 9 -10, how the Bruen standard applies:

 Applying that standard, Bruen held “that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” Id. at 2122.But the “where” question decided in Bruen is not at issue here. Range’s appeal instead requires us to examine who is among “the people” protected by the Second Amendment. U.S. Const. amend. II; see Bruen, 142 S. Ct. at 2157 (Alito, J., concurring) (“Our holding decides nothing about who may lawfully 10possess a firearm . . . .”); see also Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009) (distinguishing among “who,” “what,” “where,” “when,” and “how” restrictions).Range claims he is one of “the people” entitled to keep and bear arms and that our Nation has no historical tradition of disarming people like him. The Government responds that Range has not been one of “the people” since 1995, when he pleaded guilty in Pennsylvania state court to making a false statement on his food stamp application, and that his disarmament is historically supported.

On page 15, the government has not carried its burden of proof:

Because Range and his proposed conduct are protected by the Second Amendment, we now ask whether the Government can strip him of his right to keep and bear arms. To answer that question, we must determine whether the Government has justified applying § 922(g)(1) to Range “by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id. at 2130. We hold that the Government has not carried its burden.

On page 22, concluding the government does not have the constitutional authority to deprive Bryan Range of his rights protected by the Second Amendment.

Our decision today is a narrow one. Bryan Range challenged the constitutionality of 18 U.S.C. § 922(g)(1) only as applied to him given his violation of 62 Pa. Stat. Ann. § 481(a). Range remains one of “the people” protected by the Second Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms. Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, § 922(g)(1) cannot constitutionally strip him of his Second Amendment rights. We will reverse the judgment of the District Court and remand so the Court can enter a declaratory judgment in favor of Range, enjoin enforcement of § 922(g)(1) against him, and conduct any further proceedings consistent with this opinion.

Several judges dissented. The arguments of the dissent are of two major thrusts. One is that Heller categorically held felons could be excluded from exercising Second Amendment rights. The other is power granted by modern interpretations of the Commerce Clause overrides the Bill of Rights. 70 of the 107 pages of the Opinion are in the dissents. There is a general flavor of preserving government power in the dissenting opinions, as well as justifying the power by means-ends tests.

This case will likely be appealed to the Supreme Court. The Opinion strikes directly at the power of the government to define felonies at will and thus deprive large segments of the population of the rights protected by the Second Amendment, at will.

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

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OH: Centerville Homeowner Shoots Man Attempting to Break into Home

 

News Center 7 obtained the 911 call through a public records request.

“We have someone trying to break into our house right now,” the woman told dispatchers.

While officers were on their way to the home, a “bang” that was believed to be a gunshot could be heard over the phone, Davis said.

Upon arrival, officers were met by a man at the front door who said that he had just shot an intruder in his home.

Officers then located Gibson lying on the floor inside the front door with a gunshot wound to the head. He was pronounced deceased at the scene.

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LA: 20-Year-Old Berserker Attempts Break-in, is Shot, Killed by Homeowner

ASCENSION PARISH, La. (WAFB) - A man was killed on Sunday, June 4, after allegedly attempting to break into a home in Ascension Parish, officials said.

Kameron Serigny, 20, of Gonzales, has been identified as the man found deceased in the home.

According to officials, the Ascension Parish Sheriff’s Office responded to an attempted break-in around 6 a.m. at a home on Tiggy Duplessis Rd., in Ascension Parish.

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OH followup: Man who Claimed Self Defense in Shooting of Sinzae Reed Charged with Evidence Tampering

Krieg Butler, a 36-year-old white man who shot and killed 13-year-old Sinzae Reed, in Columbus, Ohio, in October was indicted by a grand jury Friday on charges of tampering with evidence and improperly handling firearms in a motor vehicle.

No charges were brought against Butler directly related to the fatal shooting of the Black teenager.

The indictment comes after the office of Franklin County Prosecutor G. Gary Tyack presented evidence surrounding the death of the teen to a Franklin County grand jury on May 17 and 18. Multiple witnesses testified under oath.

 

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NC: Gunfight, Video Shows Passenger Pulled his Gun before Bus Driver did

CHARLOTTE, N.C. — Surveillance video released Friday by the Charlotte Area Transit System shows the May 18 shooting aboard a CATS bus between the driver and a passenger.

The shooting occurred after the passenger, Omarri Tobias, asked the driver to make an unscheduled stop as the bus traveled through Charlotte's Steele Creek neighborhood. When the driver, identified as David Fullard, refused, Tobias can be heard taunting Fullard, who continues to drive.

In the video, Tobias can be seen pulling a gun. Moments later, Fullard pulls out his own gun. Gunfire is exchanged as the bus drives off the roadway.

Two other passengers on the bus flee to the rear of the bus. Neither of those individuals were physically harmed in the shooting.

 

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FL: School Resource Officer Scot Peterson under Trial for Conduct during Mass Murder in Parkland

Public Domain image of Deputy Scot Peterson outside of Marjorie Stoneman Douglas High School during the mass murder
 

Scot Peterson, the retired school resource officer for Majorie Stoneman Douglas High School, in Parkland, Florida, is on trial for seven counts of child neglect (felonies), three counts of culpable negligence (misdemeanors) and one count of perjury.

On the afternoon of February 14, 2018, a 19 year old with a long history of anti-social behavior murdered 17 people and injured 17 others in Parkland, Florida  at the Marjorie Stoneman Douglas High School. Parkland is located in Broward County. The school resource officer at Marjorie Stoneman Douglas High School was Broward County Sheriff's deputy Scot Peterson.

The 19 year old murderer had been seen entering campus through an unlocked gate at 2:19 p.m., carrying what was described as a "rifle bag". Through a series of policies designed to keep crime and discipline statistics low, several opportunities were missed to stop the young man before he started killing. A detailed account of the policies in place, and how they failed to stop the murders can be read in "Why Meadow Died" by Andrew Pollack and Max Eden.

Police officers do not have a legal duty to enforce the law in any particular incident, even if they have been contacted and informed a crime is taking place. A police officer may be fired from his job. Police officers are almost always immune from lawsuit for doing nothing. They are almost never criminally charged. Richard W. Stevens wrote an excellent little book detailing this reality titled Dial 911 and Die, in 1999. The facts in the book are essentially unchanged. It is nearly impossible to win a lawsuit against a police officer for failing to act. Criminal charges have been extremely rare.

Former Deputy Scot Peterson is being charged for what he did not do. About four minutes after the murderer entered the campus, Peterson reported possible gunshots in building 1200. He did not run to the sound of the gunfire. He did not confront the killer while the mass murder was in process. He did not fire his sidearm to potentially make the killer wonder if the killer was under fire. He ran to a position of cover and stayed there until the situation was resolved.

Deputy Peterson was 55 years old and eligible for retirement. As criticism of his actions became louder during the investigation of the mass murder, he retired before he could be fired. He was fired retroactively.  In his last year, Peterson was paid $101,879.03, according to the Sun Sentinel.

The 55-year-old Peterson, a Broward deputy for 32 years, was paid $101,879.03 last year — $75,673.72 in base salary plus overtime and other compensation, according to sheriff’s office records. Until the shooting, he was considered a trusted school resource officer at Stoneman Douglas, according to annual reviews of his performance.

His pension started at $8,702.35 a month, which would be $104,428.20 for 12 months. If found guilty of a felony, it is possible he could lose his pension and spend time in jail or prison. He would not lose his pension if convicted of a misdemeanor.

The state's case against Deputy Peterson rests on a theory of Peterson having a special duty to protect the school children because he was assigned to the school as a school resource officer. The seven felony counts of child neglect, four for children who were killed, and three for children who were severely wounded, are based on this theory. The three misdemeanor counts of culpable negligence for two adults who were killed and one 19 year old adult student (Meadow Pollack) who was killed, are based on the theory. Culpable negligence has a higher standard of proof than child neglect. The eleventh count is for perjury. It is claimed Peterson made a false statement under oath during the investigation of the mass murder. From state.fl.us:

(e) “Neglect of a child” means:
1. A caregiver’s failure or omission to provide a child with the care,
supervision, and services necessary to maintain the child’s physical and
mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child; or
2. A caregiver’s failure to make a reasonable effort to protect a child from abuse, neglect, or exploitation by another person.

The trial will go before a six person jury.  The jury is being chosen at this time. Most of the charges will depend on whether the jury can be convinced Peterson was a "caregiver" as well as a law enforcement officer.

Analysis:

The Broward County Sheriff's Office manual at the time is reported as saying an officer "may" directly and immediately respond to an active shooter. It is much different from saying an officer "shall" immediately respond. A sheriff's office manual is not a set of legal statutes. It is difficult to predict what a jury will do. It is notoriously difficult to predict what people will do when confronted by a deadly threat. People who rush to danger are called heroes. Except for the military, there are no laws against cowardice or bad judgment in the face of a deadly threat. A six person jury is easier to sway than a 12 person jury.  This link has a discussion of what the right to jury means.

Peterson says he did not know what was happening, but thought there might be a sniper.  From local10.com:

Peterson has defended his actions, saying he did not know where the gunman was and he thought a sniper may have been targeting the building.

In the law, the charge most likely to "stick" is the misdemeanor charge for perjury. Much depends on what was recorded, and who claims to have heard what. The information will come out during the trial.

Opinion:

In the last few decades the United States has seen criminal charges filed against officers who were following procedure, but who were seen by the media as deserving of charges. These include the defendants in the Rodney King case and the George Floyd case. The media portrayal of Deputy Peterson is mixed.  Many will say Deputy Peterson deserves all the pain now being inflicted on him. It is punishment by process.  This correspondent believes if Deputy Peterson had intervened quickly, he could have saved lives. Looking backward is clearer than evaluation of the scene in real time. Proving Deputy Scot Peterson committed a crime, beyond a reasonable doubt, may be difficult.

 

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

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IL: Domestic Defense? Woman Shot While Attacking Relative

The woman entered the Rent-A-Center on Homer Adams Parkway around 10 a.m. Tuesday to confront a relative who worked there, Police Chief Jarrett Ford said. There was reportedly an active order of protection prohibiting contact with her relative and from being at the store.

An argument between the two escalated into a physical fight. During the fight, the woman hit the employee in the head with a gun, Alton Fire Battalion Chief Derrick Richardson told News 4. Another employee then shot the woman three times.

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HI: More Fruit of Caetano and Bruen, Short Clubs are Protected by Second Amendment

On July 25, 2022, Todd Yuktake and Justin Solomon filed a federal lawsuit against the Attorney General of Hawaii, Holly T. Shikada, for infringement of the right to keep and bear arms, specifically, against the state of Hawaii's ban on "billies" or "batons" outside the home. Billies were likely chosen, in part, because no procedure exists in Hawaii to allow the carry of short clubs outside the home. Over the course of the case, the AG changed from Shikada to Lopez.  From the complaint:

6. The State of Hawai‘i generally bans the possession of “deadly or dangerous weapons” outside the possessor’s home without some prior authorization. Haw. Rev. Stat. § 134-51. The ban specifically includes “billies.”

and

9. Plaintiffs are not “authorized by law” to carry a baton and no known procedure exists that would allow Plaintiffs or other law-abiding citizens to achieve such authorization.

The ban on carry of billies or batons outside the home is directly contradicted by the Supreme Court decisions in Caetano in 2016 and in Bruen, 2022.

From Caetano:

The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v.Chicago, 561 U. S. 742, 750 (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

Downplayed as inconsequential or of limited use in 2016, Caetano has shown to be of great significance. Bans on the possession of stun guns have been removed from all state bodies of law. Bans on the carry of weapons other than firearms are of significance. They serve as a precedent for bans on the carry of firearms. In Hawaii, in a settlement before the federal district court, the State of Hawaii has admitted bans on the carry of "billies" or batons, or, basically, any short clubs, are unconstitutional.  On May 23, the United States District Court for the District of Hawai'i approved of a stipulated final judgement and permanent injunction. From the judgement and injunction:

4. Defendant ANNE E. LOPEZ, in her official capacity as Attorney General for the State of Hawai‘i (as well as her officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of the injunction) is hereby permanently enjoined from enforcing against Plaintiffs TODD YUKUTAKE and JUSTIN SOLOMON, and any and all other persons who are not otherwise legally prohibited from possession of a “billy”: 

a. the “billy” provision of HRS § 134-51(a) as currently written, which provides that “[a]ny person, not authorized by law, who carries concealed upon the person’s self or within any vehicle used or occupied by the person or who is found armed with any . . . billy . . . shall be guilty of a misdemeanor and may be immediately arrested without warrant by any sheriff, police officer, or other officer or person” and that “[a]ny [billy] upon conviction of the one carrying or possessing it under this section, shall be summarily destroyed by the chief of police or sheriff.”

5. The Parties agree that for purposes of this Stipulated Final Judgment and Permanent Injunction only, the instruments considered to comprise the term “billy” pursuant to HRS § 134-51 are defined as: instruments which are typically short clubs that are intended to be carried by a law enforcement officer, and include but are not limited to cudgels, truncheons, police batons, collapsible batons, billy clubs, or nightsticks, and includes the instrument that is the subject of this lawsuit as described in footnote 4 and paragraphs 50 and 62 of the Complaint.

The Attorney General was ordered to pay $50,000.00 dollars for attorneys' fees and costs, pending approval by the State of Hawai'i. If approval is not forthcoming, the agreement shall be null and void, and the case would continue.  This is ordinary. It is a statement telling the state if they do not follow the terms of the agreement, worse is likely.  If the AG thought they could win in court, they would not have agreed to the settlement

The Attorney General is required to inform all the members under her of this judgement and to inform all county governments and chiefs of police within the State of Hawai'i. While people in Hawai'i have had their right to carry short sticks, concealed or openly, for self-defense, something people have done since before written language existed, restored, the normal rules of defense of self and others still apply.

 

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

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FL: Feuding Woman Shot Through Door, Possible Self Defense

Ajike Owens, 35, was fatally shot after going to the Ocala apartment of her neighbor, who earlier had yelled at Owens’ children as they played nearby and threw a pair of skates that hit one of them, Marion County Sheriff Billy Woods said at a news conference Monday.

Deputies responding to a trespassing call at the apartment Friday night found Owens suffering from gunshot wounds. The mother of four was taken to a nearby hospital, where she died. Ocala is about 70 miles (110 kilometers) northwest of Orlando.

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