After a week without access to the Internet, I am back in civilization in Dallas. Internet access was only a few miles away, in Northern Wisconsin, but close supervision of my grandson combined put a short moratorium on article production.
Dean Weingarten
CHICAGO — A Lincoln Park resident shot and critically injured a burglar who tried to break into their home from the roof on Thursday night, Chicago police said. It’s at least the second time this week that would-be crime victims have shot suspected offenders on the North Side.
Police were initially called to the 2200 blocks of North Clybourn and Janssen to handle reports of a suspicious person on rooftops around 10:28 p.m. But no CPD units were assigned for nearly 20 minutes, even though one homeowner called 911 three times to report the situation, according to dispatch records.
SARASOTA, Fla. (WFLA) — The Sarasota County Sheriff’s Office is investigating a shooting that happened at a vacation rental home on Sunday.
Deputies responded to a home in the Gulf Gate Neighborhood, located in the 6500 Block of Colonial Drive, at 2:13 a.m.
According to a report from SNN-TV, a family on vacation awoke to someone on the lanai allegedly trying to break into the home. One of the family members reported shooting the intruder because they felt threatened.
I will be in Northern Wisconsin with my Grandson over the next week.
Access to the Internet will be limited. With the Grandftather duties, posting will be limited for the next week.
I will post as possible, given the circumstances.
Dean Weingarten
On June 28, 2023, Judge Carlton W. Reeves, District Judge in the Southern District of Mississippi and Chair of the United States Sentencing Commission, issued an order dismissing the case against Jessie Bullock for possessing a firearm as a convicted felon. Mr. Bullock was convicted of aggravated assault and manslaughter in 1992. He served about 15 years in prison. In 2015 Mr. Bullock was convicted of fleeing law enforcement and attempted aggravated assault of a police officer. He served five years of probation. Bullock was charged with knowingly possessing a firearm in May of 2018, although for various reasons the charge was not arrested arraigned until October of 2019. In June of 2022 the Supreme Court issued the Bruen decision, upholding its rulings in Heller, McDonald, and Caetano. Mr. Bullock argued the Bruen decision rendered the ban on felons in possession invalid in his case.
Judge Reeves spends pages showing how and why he disagrees with the Supreme Court. He presents several straw man arguments. Many courts have upheld the federal ban on possession of firearms by felons in the last 85 years. The Supreme Court used historical records to determine what the Second Amendment means, not the desire of legislatures or of judges. Judge Reeves does not like this approach, but he recognized it as required by the Supreme Court. Judge Reeves suggested he appoint a historian to research the historical record.
Both parties refused the suggestion. In Bruen, the burden is clear. Because of the text and history of the Second Amendment, it is the burden of the government to show a particular restriction on the rights protected by the Second Amendment was accepted and widely practiced at the time the Second Amendment was ratified.
Judge Reeves gives brief summaries of the opinions in the Miller case (1939), Heller, McDonald, and Bruen. He does some serious reasoning in determining felons are part of the people of the United States as mentioned in the Bill of Rights. From order by Judge Reeves:
This case asks the same question. If America's historical tradition permitted a felon to repurchase firearms after completing their sentence, why can't Mr. Bullock today?
Judge Reeves waxes on about problems with the use of history to determine what is or is not a felony at the time of the ratification of the Bill of Rights. He takes considerable space to claim it is very difficult to determine anything with clarity from the historical record. Then he delves into the specifics of Mr. Bullock's case.
First, he categorically states the action of Mr. Bullock (possessing a firearm in his home) is covered by the Second Amendment. Then he considers the problems of prohibiting felons from exercising rights protected by the Second Amendment. From the order:
Second, as Range explained, the phrase "law-abiding, responsible citizens" is "hopelessly vague. 69 F.4th at 102. It cannot "mean that every American who gets a traffic ticket" loses her Second Amendment rights."31 Id. But limiting it to quote "real crimes" like felonies also misses the mark, because some modern felonies "seem minor" and "some misdemeanors seem serious." Id. The modifier "responsible," meanwhile, is impossible to apply. "In our Republic of over 330 million people, americans have widely divergent ideas about what is required for one to be considered a 'responsible' citizen. Id.
Judge Reeves finds the government does not meet its burden of showing a well-established tradition of laws, near the ratification of the Bill of Rights.
Judge Reeves finds, in this particular case, the government has not met its burden and dismisses the case of felon in possession as applied to Mr. Bullock.
Judge Reeves goes on to throw doubt on the usefulness of originalism as a way to interpret the Constitution. He waxes eloquent in various versions of the "that was then, this is now argument". His arguments essentially claims, things have changed, so judges should be able to alter the Constitution to what they desire now. Times have changed. Morals have changed. People have changed. From the next to last paragraph in the order:
Change is unstoppable. And to the extent Bruen and decisions like it try to stop that change, they will not last long. The only question is how long the People will let them remain.
Analysis:
This is pure Progressive ideology. Woodrow Wilson might have written it. Judge Reeves refuses to admit words have consistent meanings. He refuses to admit to such a thing as human nature. Most of the examples he cites as different interpretations of the Constitution over time, were not thrust on the government by the people. They were thrust on the people by courts who wished to impose their own policy decisions, without being elected.
Judge Reeves correctly applies the guidance put forward in the Bruen decision. The difficulty he appears to have in doing so, is he does not like the Supreme Court decision and thinks he could do much better. He never considers the work of Judges to decide what the balance of interests are in a particular case is easily as difficult as the interpretations of historical attitudes about the Constitution. Moreover, to place such power in the hands of the judicial branch is far more than the Constitution allows.
Judge Reeves notes there are other rights protected in the Bill of Rights, which have not been protected as well as Second Amendment rights are with the Bruen decision. He mentions the right to a speedy trial, the right to Habeas Corpus, and the right to vote. All of the cases he mentions are relatively recent, which is to say, they are from courts dominated by Progressive ideology.
The case is one of several in the lower courts. The constitutionality of felon in possession laws will eventually be clarified at the Supreme Court level. Judge Reeve's hostility to the Bruen decision lends credence to the theory he may be following the decision as far as he can, in an attempt to discredit it. This writer hopes such is not the case.
©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Gun Watch
ONSLOW COUNTY, N.C. (WITN) - Deputies say a gunman was killed and a victim was wounded in a home invasion overnight in Onslow County.
It happened shortly after 4:00 a.m. on Aragona Boulevard, north of Jacksonville.
“Detectives from the Metropolitan Police Department’s First District seek the public’s assistance in identifying and locating a vehicle in reference to an Assault with a Dangerous Weapon (Gun) offense that occurred on Friday, June 30, 2023, in the 700 Block of H Street, Northeast.
At approximately 2:46 am, a MPD member was in the area and heard the sounds of gunshots. Upon canvassing MPD members located an adult male shooting victim. The victim was transported to a local hospital for treatment of non-life-threatening injuries.
The detectives’ investigation revealed the victim produced a firearm and fired shots. An unknown suspect then fired shots striking the victim. The victim was placed under arrest.
35-year-old Jahi Waters, of Northeast, DC was charged with Assault with A Dangerous Weapon (Gun).”
CHARLESTON, W.Va. — Police say two people were shot and another man suffered a head injury in relationship-fueled domestic dispute Thursday evening.
Police said Leslie Bsharah, 39, and Mark Owens, 51, both of Charleston, were together Thursday evening in a residence on 7th Avenue when Bsharah’s former boyfriend Troy Ratcliff, 45, of Charleston, showed up.
Police said a fight broke out and Ratcliff took a baseball bat and starting hitting Owens in the head. Police said Ratcliff then took a gun out and threatened to kill Owens. Owens was able to grab the gun and shoot Ratcliff in the stomach but on the way the shot also hit Bsharah in the shoulder.
SRCSO said the homeowner has “cooperated fully” with the investigation. Deputies were allowed to search the home. Based on the investigation so far, “investigators have determined that stand your ground may apply in this case,” according to the release.
SRCSO is still investigating. The case will be sent to the Office of the State Attorney for review.
I will be traveling to Dallas and then to Wisconsin. I expect to be back in a couple of weeks.
As travel takes considerable time, and access to the Internet is spotty in some locations, posting of articles and comments may be spotty for the next couple of weeks.
Dean Weingarten
On January 13, 2023, LD 168 was introduced into the Maine Legislature by Speaker Talbot Ross of Portland, cosponsored by Representative Salisbury of Westbrook.
LD 168 was designed to eliminate most private sales of modern firearms by requiring the sale to be conducted through a federally licensed dealer, recorded in the dealers records. The bill specifically targeted gun shows and online or printed publications advertising firearms for sale. Law enforcement was exempted. The fine for the first offense was set at $1000. From LD 168:
2. Requirement. If neither the seller nor buyer of a firearm is a federally licensed firearms dealer, the transaction must be facilitated by such a dealer. The dealer shall perform a criminal background check using the Federal Bureau of Investigation, National Instant Criminal Background Check System of the buyer in the same manner as if the dealer were the seller of the firearm that is the subject of the transaction. If the criminal background check reveals that the buyer is prohibited from purchasing a firearm, the dealer shall notify the seller of that fact. The dealer may charge a reasonable fee for serving as the facilitator.
On June 26, the bill passed the Maine House of Representative, 70 to 65 with 16 absent . Six Democrats voted against the bill, along with 59 Republicans. LD 168 was sent to the Maine Senate. On June 27, 2023, the Senate, it was defeated 21 to 13, with 1 senator absent. Nine Democrats and twelve Republican senators voted to defeat the bill.
Analysis:
The purpose of moving legitimate sales of firearms into a system where the sales are approved by a government agency and recorded is to move to a universal system of firearms registration. Such a system was gradually put into place in England and Wales, and is in place in most of the world. Sales are not private sales if they must be approved by government agents and recorded in digital or paper records available to the government.
Universal registration systems have not been successful in reducing crime, either overall, or with firearms, as first noted by Constable Colin Greenwood in his work at Cambridge University. The number of illegally owned firearms often increase after the requirement for registration is passed. While those pushing for restrictions on the ownership of firearms use the generic "guns are bad" argument, the underlying push, as found by Greenwood, Academic Joyce Lee Malcomb and others appears to be reducing the power of the population to oppose those holding the reins of power.
The requirement for universal registration of handguns, in place for over 60 years in Canada, did not result in the solving of one violent crime. The resources wasted in these efforts was immense. There is no question if the resources (all resources are limited) were used for more police, far more crimes could have been solved or possibly prevented.
The claim of this sort of legislation is it will keep people who should not have guns from obtaining guns. The reality is the legislation does not do what is claimed. The seldom mentioned part is the cost of the legislation is real and harmful.
With numbers of guns and gun owners in the United States of America rising steeply, the cost to politicians of such flagrantly failed schemes is likely to rise as well.
©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Gun Watch
CSPD said officers responded to the 700 block of Nebula Court, southwest of Bear Creek Regional Park, just before 8 p.m. on Tuesday in response to a reported burglary. When officers arrived, they spoke with the homeowner who said an unknown man entered his home.
The homeowner shot the alleged intruder, now identified as Zink, and hit him. Zink then ran from the home, and was later found by officers. He was taken to the hospital where he died of his injuries.
RICHARDSON (CBSNewsTexas.com) - A homeowner in Richardson shot a burglar in the 1600 block of Barclay Drive on June 26.
The
shooting happened during a physical fight between the homeowner and
thief just before 9 a.m. Another family member told police they found
the suspect going through their belongings. After the burglar was shot,
he ran from the home, got into a car driven by another suspect and they
drove away.
Seven times as many people have been killed by bears, when bear spray has been sprayed in defense, than have been killed by bears when a handgun has been fired in defense.
Any comparison of the efficacy of bear spray and firearms is difficult. There are many variables. The data is subject to selection bias. The analysis of the data is subject to confirmation bias. Similar problems exist with defensive uses of firearms.
Fatal bear attacks are less subject to selection bias, because nearly all fatal bear attacks are recorded.
We nearly always know when bear spray was sprayed in a fatal bear attack. We nearly always know when a handgun was fired during a fatal bear attack. This correspondent and colleagues have collected all the incidents where handguns have been fired in defense against bears, which we can document, since 1890. We have published records of the 170 documented cases. We have not collected documented records of when bear spray was sprayed in defense against bears.
We cannot objectively compare the efficacy of bear spray to handguns in general, because there are many, probably a large majority, of attacks/conflicts which are not documented and which will never be documented, for both bear spray and handguns.
Failed attempts to defend against bears are much more likely to be recorded than successful defenses.
Failures in defense against bears are news. Most of them are recorded. It is reasonable to assume the vast majority of fatal failures of either handguns or bear spray are recorded.
Since 1890, we have documented one incident where a handgun was fired in defense against a bear and a person was killed. The incident was in the Svalbard Archipelago, in 1995.
The numbers are very small. Very few people are killed by bears in a given year. Bear spray has only been commercially available since 1986. Cartridge handguns have been commercially available since about 1860. Since 1986 there have been seven incidents where bear spray was sprayed in defense against bears and a person was killed.
Here are the seven incidents.
The first incident was in 2003. Vitaly Nikolayenko was killed and partly consumed by a European brown bear (grizzly bear) in Russia, after Nikolayenko had sprayed bear spray.
The second incident was when Erin Johnson was killed by a black bear near the Pogo Mine in Alaska, after the bear was sprayed with bear spray, in 2017.
The third incident was when Mark Uptain was killed by a grizzly bear in Wyoming, after spraying bear spray, on September 14, 2018.
The fourth incident happened on July 29, 2020, when Daniel Schilling was killed by a bear or bears while clearing a trail near his home in Alaska. Both black bear and grizzly bear DNA was found at the site.
The fifth incident occurred August 27, 2020 when Curtis Blaise used bear spray on the black bear which was attacking his wife Stephanie at McKie Lake in northern Saskatchewan. When the bear spray proved ineffective, Curtis retrieved a rifle and killed the bear, but the bear had already killed Stephanie Blaise. Some might argue the rifle failed to stop the attack in time as well. The rifle could not have stopped the fatality as Stephanie was already dead when the rifle was used. This incident is the least clear of the documented failed bear spray defenses.
The sixth incident occurred on April 15, 2021 when Carl Mock was killed by a grizzly bear near the border of Yellowstone National Park, after spraying the bear with bear spray.
The seventh incident happened on July 6, 2021, when Leah Lokan was attacked and killed by a grizzly bear in Ovando, Montana. She was pulled from her tent after using bear spray to defend herself.
Bear spray became commercially available in 1986. The use of bear spray received a boost with the paper on the effectiveness of bear spray by Smith and Herrero in 2008. In a study of 72 incidents where bears were sprayed, 25 involved aggressive bears. The authors judged bear spray to be 92% effective in the 72 incidents. None of the people involved in the incidents were hunting. 21 of the 72 incidents (29%) involved hazing of bears by park personnel. The sound bite, magnified by the media, was different. From the Efficacy of Bear Spray in Alaska:
Although bear spray was 92% effective by our definition of success, it is important to note that 98% of persons carrying it were uninjured after a close encounter with bears.
Why is it important to note 98% of persons carrying bear spray were uninjured after a close encounter with bears? The sentence separates carrying bear spray from using bear spray.
Most close human/bear encounters do not result in injury, likely well over 99%.
It is uncontroversial most close encounters with bears do not result in humans being injured. It is likely over 99% of people carrying firearms are uninjured after a close encounter with bears. There are thousands of close encounters with bears every year, but only about 50 human injuries.
The 98% figure has been repeated over and over in the media. Of the 25 cases involving aggressive bears in the bear spray paper, three people were injured, even though the injuries did not require hospitalization.
The huge promotion of bear spray came after the "Efficacy of Firearms" paper by Smith and Herrero in 2012.
In 2012, Smith and Herrero authored a paper about bears and firearms, Efficacy of Firearms for Bear Deterrence in Alaska. The study preferentially included incidents of bear and human conflicts which resulted in human injury. They authors said they were specifically searching for bear attacks in books and the media. The results claimed long guns were only successful 76% of the time, and handguns were successful 84% of the time. The paper stated there was no statistical difference in the rate of injuries whether firearms were fired or not.
The paper indicated firearms were ineffective in numerous cases where the firearms were not fired. The reasons given for failure of firearms included these: lack of time to respond to the bear - 27%; did not use the firearm - 21%; the bear was too close to deploy the firearm - 9%; Safety was engaged and the person was unable to unlock it in time - 8%. These are percentages of the failures, not of total incidents. Added together, they indicate a failure was counted, without the firearm being fired, 65% of the time. There were 48 recorded failures where the firearm was identified as a long gun or a handgun. If 65% of incidents where a firearm was not fired are removed, there are 17 failures instead of 48. The total firearm success rate for long guns and handguns together changes from 77% to 93%
Outdoor writer Wes Siler became skeptical of the 98% figure in the bear spray paper and interviewed Tom Smith, one of the authors of both papers. In the interview, Tom Smith directly says the 2008 study of bear spray in Alaska and the 2012 study on firearms in Alaska were never meant to be compared to each other. From the article:
“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.”
The actual words in the 2012 paper sound different. From Efficacy of Firearms for Bear Deterrence in Alaska, bold added:
The need for split-second deployment and deadly accuracy make using firearms difficult, even for experts. Consequently, we advise people to carefully consider their ability to be accurate under duress before carrying a firearm for protection from bears. No one should enter bear country without a deterrent and these results show that firearms are not a clear choice. We encourage all persons,with or without a firearm, to consider carrying a non-lethal deterrent such as bear spray because its success rate under a variety of situations has been greater (i.e., 90% successful for all 3 North American species of bear; Smith et al. 2008) than those we observed for firearms.
Six of the seven fatal attacks where bear spray was used occurred after Smith and Herrero published "Efficacy of Firearms" in 2012. The paper claimed bear spray was more effective than firearms in deterring bear attacks, and especially in preventing injuries by bears.
The problems of access to a defensive weapon, whether bear spray, a handgun, a long gun, or edged weapons, are very similar, especially handguns, bear spray and knives. Handguns have had a long history where holsters and handguns have evolved to make access and use easy, quick and intuitive. Bear spray has not. In "Efficacy of Firearms" Smith and Herrero make this claim:
The need for split-second deployment and deadly accuracy make using firearms difficult, even for experts.
The claim is an opinion. It is not based on evidence. Because "Efficacy of Firearms" relied on reports of attacks, there is strong selection bias against effective defenses. Defensive actions, where no human was hurt, are seldom reported and recorded.
In our research on defensive uses of handguns, there are many, many instances where handguns are successfully used to stop aggressive bears and split second deployment and deadly accuracy were not necessary.
Focusing on incidents where attacks make the news biases the results toward incidents were defense was difficult and or failed. When human defenders easily drive off or kill an aggressive bear, without human injury, the case is seldom reported or recorded.
Fatal attacks by bears are rare. They are nearly always reported, investigations are done, and the public finds out if firearms were fired or bear spray sprayed.
Since bear spray became commercially available in 1986, seven individuals have been killed by a bear or bears in an incident where bear spray was sprayed. Of all the incidents we have been able to document of handguns being fired in defense against bears, one person was killed by a bear.
Have there been seven times as many serious attacks by bears against people spraying bear spray as have occurred against people firing handguns?
©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Gun Watch
AMARILLO, Texas (KVII) — A homeowner shot and killed a man who broke into her house, according to Amarillo police.
Around 5:30 a.m. Thursday, police responded to a residential burglary in the 1700 block of N. Adams.
When officers arrived, they found the body of 53-year-old Cedric Milligan.
The woman who shot him said Milligan broke into her home.
On June 13, 2023, the U.S. House of Representatives voted to overturn the proposed rule of the BATF, which is set to make the possession of pistols with a pistol brace installed a federal felony, punishable with up to a $10,000 fine and or ten years in prison. The vote was almost entirely on party lines, passing 218 to 210. Two Democrats voted for the resolution and two Republicans voted against it.
On Friday, 23 June, 2023, the Senate voted against H.J. Resolution 44, by a razor thin 50 to 49. Three Senators, where were considered possible swing votes, voted against the resolution. Two more votes would have been necessary to pass the resolution. A tie vote would almost certainly have been broken by Vice President Harris, against the measure. The three swing votes were Senators Tester from Montana, Manchin from West Virginia, and Sinema from Arizona. Senators Baldwin (D-WI), Brown (D-OH), Casey (D-PA) were candidates to vote for the measure, because they will be coming up for election in 2024. All voted against it.
The vote was for House Joint Resolution 44 :
Resolved by the Senate and House of Representatives in Congress assembled, That Congress disapproves the rule submitted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives relating to "Factoring Criteria for Firearms with Attached 'Stabilinzing Braces'" (ATF final rule 2021R-08F), and such rule shall have no force or effect.
The ATF rule reversed a decade of ATF policy where they assured purchasers and manufacturers of pistol braces such items were legal and not regulated by the NFA.
Wyoming Congresswoman Harriet Hageman voted for the resolution. From her office:
“This latest unconstitutional rule from the A.T.F. is a blatant attempt
to take away our 2nd Amendment rights and strip away the ability to
defend ourselves”, said Hageman. “Should this rule be implemented, the
A.T.F. would instantaneously transform millions of law-abiding citizens
into potential criminals, threatening their freedom, property, and lives
in the process.
The rule proposed by the ATF extends the reach of the National Firearms Act to handguns which have barrels less than 16 inches and are equipped with a stabilizing brace.
When the Franklin Delano Roosevelt administration wrote the original legislation in 1934, short barreled rifles were not included. The principle targets of the legislation were handguns and short barreled shotguns, and such items when equipped with silencers. Because of the confused statements of Minnesota Congressman Harold Knutson, rifles were added to the list of handguns, revolvers, and shotguns which were to be taxed out of existence if their barrels were less than 16 inches. Knutson was a member of the Ways and Means committee. Knutson requested the barrel length be extended to 18 inches. From the hearing:
Mr.KNUTSON. General, would there be any objection, on
page 1, line 4, after the word” shotgun” to add the words” or rifle”
having a barrel less than 18 inches? The reason I ask that is I happen
to come from a section of the State where deer hunting is a very popular
pastime in the fall of the year and, of course, I would not like to
pass any legislation to forbid or make it impossible for our people to
keep arms that would permit them to hunt deer.Attorney General CUMMINGS. Well, as long as it is not mentioned at all, it would not interfere at all.
Mr. KNUTSON. It seems to me that an 18 -inch barrel would make
this provision stronger than 16 inches, knowing what I do about
firearms.Attorney General CUMMINGS. Well, there is no objection as far as
we are concerned to including rifles after the word” shotguns” if you
desire.
Sawed off shotguns had been demonized by the media of the time. Short barreled rifles were not considered a problem. Several manufacturers made rifles with less than 18 inch barrels. They were very popular as boys rifles.
The NRA and numerous sportsman's groups made their objections known to Congress in 1934. Pistols were removed from the legislation. As a consolation prize, the FDR passed the legislation placing prohibitive taxes and administrative procedures on short barreled rifles, short barreled shotguns, silencers, and machine guns.
The prohibition of short barreled rifles and shotguns makes no sense when everyone agrees handguns are protected by the Second Amendment. A pistol brace, when attached to a handgun, makes it harder to conceal. Handguns are preferred for crime because they are easier to conceal. Shoulder stocks had been accepted accessories for pistols since pistols became available. It wasn't until 1961, decades after the passage of the National Firearms Act in 1934, when the ATF formally created a rule finding a pistol with a shoulder stock attached was held to be a short barreled rifle. The ATF quickly removed Mauser and Luger pistols with shoulder stocks from consideration, by classifying them outside the NFA, as "curios and relics".
Several court cases are challenging the ATF rule on pistol braces. The rule may be struck down in the courts.
©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Gun Watch
The deceased woman, who has been identified as 44-year-old East Long Beach resident Andrew Powell, was fatally shot as she was charging towards the armed homeowner, police said.
"He was trying to protect himself and the other neighbors as well," said one resident Eileen Gelso, who says that Powell was banging on doors over and over demanding money. "She was definitely dangerous. I believe that."
The
homeowner was detained and officers recovered his handgun from the
scene, but after gathering evidence and interviewing witnesses, he was
released.
The number of legal suppressors or silencers in the United States shows they are in common use for lawful purposes. As of January of 2023, the ATF shows there were over 3.1 million silencers or suppressors legally owned in the United States, for lawful purposes. In January of 2020, there were 1.8 million Over the last three years, the number of legal suppressors has increased by an average of 450,000 suppressors per year. By the end of 2023, it is reasonably expected there will be over 3.6 million suppressors in the United States of America. To own these suppressors, the owners have gone through a complicated and lengthy process, often taking a year or more to process their applications for tax stamps. The tax stamps are required by the federal government to legally purchase a silencer.
The Heller decision was the first in a series of Supreme Court decisions restoring Second Amendment protections for the right to keep and bear arms.
From Heller, the only weapons allowed to be banned must be both dangerous and unusual. Weapons which are in common use can not be considered unusual. Stephen Halbrook sums up the common use precedent from Heller:
In District of Columbia v. Heller (2008), the U.S. Supreme Court held that the Second Amendment protects “arms ‘in common use at the time’ for lawful purposes like self-defense” and arms that are “typically possessed by law-abiding citizens for lawful purposes.” Such arms are “chosen by American society,” not the government.
American society chooses what arms are in common use. The government does not do the choosing. By choosing to possess arms, the people choose what is in common use. It is the possession of the arms which determine whether they are in common use or not. Possession of arms is a use of the arms. In Heller, the Supreme Court of the United States (SCOTUS) ruled:
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.
In the Caetano decision, the Heller pronouncement was emphasized and magnified. When an arm was invented has nothing to do with whether it is protected under the Second Amendment. What matters is if the arm is in common use for lawful purposes. This was particularly emphasized by Justice Alito and Justice Thomas. From Caetano, concurrence by Justice Alito, joined with Justice Thomas:
The more relevant statistic is that “[h]undreds of thousands of Tasers and stun guns have been sold to private citizens,” who it appears may lawfully possess them in 45 States. People v. Yanna, 297 Mich. App. 137, 144, 824 N. W. 2d 241, 245 (2012) (holding Michigan stun gun ban unconstitutional); see Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights To Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199, 244 (2009) (citing stun gun bans in seven States); Wis. Stat. §941.295 (Supp. 2015) (amended Wisconsin law permitting stun gun possession); see also Brief in Opposition 11 (acknowledging that “approximately 200,000 civilians owned stun guns” as of 2009). While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts’ categorical ban of such weapons therefore violates the Second Amendment.
This was the first time SCOTUS put a number on what is "common use". 200,000 items in possession in the United States of America may be considered high by some, but applies to many items. When legal suppressors were nearly banned by taxes of ten times the price of the item ($20 would buy most suppressors; the tax was/is $200), there were far fewer of them. In 2006, there were 150 thousand legally owned silencers in the USA. Sometime between 2006 and 2011, the 200 thousand mark was passed. BATF records do not seem to be available from 2006 to 2010. In 2011, there were 285 thousand legal silencers.
The BATF and Biden administration's strategy is to claim silencers are not "arms", but are only an accessory. It is difficult to see how they can claim silencers are not "arms" but are very dangerous.
The Texas case, Paxton v. Richardson appears to be the most likely case to resolve this issue, at this time. In the case, Texas Attorney General Paxton has argued the common use, Second Amendment case, as well as persuasive arguments against the use of taxation to attack rights protected by the Second Amendment.
The parties cross-motions for summary judgement in the case were heard by Judge Mark Pitmann on June 15, 2023.
©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Gun Watch
LAS VEGAS (KTNV) — A resident at Turnberry Towers near Karen and Paradise is calling a building employee a hero after a gunman walked in and fired shots at the front desk on Friday.
Channel 13 spoke with the resident to get their story. Law enforcement has not confirmed the following details.
According to the resident, a man wearing a helmet had an AR-15 and other weapons when he entered the towers Friday afternoon.
After having ruled pistol braces to be legal accessories for a decade, the ATF has issued a rule many, if not most pistol braces, will be considered contraband, which make a pistol into a short barreled rifle. Under the theory of "constructive possession", possession of a banned pistol brace and a pistol the brace will fit, could be enough for arrest and conviction of possession of a short barreled rifle, with penalties of up to a $10,000 fine and or up to ten years in prison.
Under the Supreme Court decision United States v. Thompson/Center Arms Co., the possession of parts which can be assembled into a pistol, a rifle or a short barreled rifle do not equate to the possession of a short barreled rifle, because of the rule of lenity and the ambiguity of the statute. The case was decided in 1992. You may convert a pistol to a rifle and back again. However, the ATF has ruled you may not convert a rifle to a pistol and back again. From the decision:
Respondent manufactures the "Contender" pistol and, for a short time, also manufactured a kit that could be used to convert the Contender into a rifle with either a 21-inch or a lO-inch barrel. The Bureau of Alcohol, Tobacco and Firearms advised respondent that when the kit was possessed or distributed with the Contender, the unit constituted a "firearm" under the National Firearms Act (NFA or Act), 26 U. S. C. § 5845(a)(3), which defines that term to include a rifle with a barrel less than 16 inches long, known as a short-barreled rifle, but not a pistol or a rifle having a barrel 16 inches or more in length. Respondent paid the $200 tax levied by § 5821 upon anyone "making" a "firearm" and filed a claim for a refund. When its refund claim proved fruitless, respondent brought this suit under the Tucker Act. The Claims Court entered summary judgment for the Government, but the Court of Appeals reversed, holding that a short-barreled rifle "actually must be assembled" in order to be "made" within the NF A's meaning.
Held: The judgment is affirmed. 924 F.2d 1041, affirmed.
The case of AR15 pistols, rifles, and short barrelled rifles is directly comparable. Remove the upper receiver, containing the barrel, from the serially numbered lower receiver, of an AR15 pistol. Replace the short barreled upper receiver with an upper receiver with a barrel longer than 16 inches. Attack a stock to the lower receiver. A legal rifle has been assembled. No NFA laws or rules have been broken.
If, instead of a stock, you have in your possession one of the banned pistol braces, under the new rule by the ATF, you may be violating the law with the constructive possession of a short barreled rifle. The new rule is being challenged in the courts.
The absurdity of the short barreled rifle ban has been allowed to continue for 89 years. The initial bill, produced by the Franklin Delano Roosevelt administration in 1934, did not include short barreled rifles. They were added because of the confused comments of a Minnesota Democrat on the Ways and Means committee. Pistols with shoulder stocks were not formally ruled as "short barreled rifles" until 1961. There never was a media push to ban short barreled rifles, which were in common use at the time they were banned.
Under the Supreme Court Bruen decision, bans on short barreled rifles did not exist before 1921. They have no historical legal or cultural precedent. They ban an entire class of firearms. The government cannot show they were an acceptable restriction on the right to keep and bear arms before 1900.
©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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