The "Collective Rights" Myth: Born November 11, 1905. Killed June 26, 2008

Dean Weingarten in front of Supreme Court

The myth of the Second Amendment as a "collective right" and not an individual right, was born in an obscure Kansas Supreme Court case. It was in 1905, as progressive ideology was becoming ascendant in the United States.

Dave Hardy notes, the myth of the Second Amendment as a "collective right" was born with the case of City of Salina v. Blaksley, on November 11, 1905.

What happened there was that the court held that the Kansas guarantee of a right to arms did not cover his actions, because it related only to bearing arms in a militia-type function. This 1905 case was the entire starting point of "collective rights" theory.

The "collective rights" theory did not gain traction for decades. In 1931, the Michigan Supreme Court rejected it in People v Brown:

 When the bulwark of state defense was the militia, privately armed, there may have been good reason for the historical and military test of the right to bear arms. But in this state the militia, although legally existent and composed of all able-bodied male citizens...is practically extinct and has been superseded by the National Guard and reserve organizations... The historical test would render the constitutional provision lifeless.

The protection of the Constitution is not limited to militiamen nor military purposes, in terms, but extends to "every person" to bear arms for the "defense of himself" as well as of the state.

Then in 1939 the Miller case was set up by  Heartsill Ragon. Ragon was a an anti-Second Amendment ideologue and a President Franklin Delano Roosevelt (FDR) ally, appointed from Congress to the federal judgeship. The case went to the Supreme Court without opposing counsel or briefs. The Supreme Court refused to rule on whether a sawed off shotgun (having not been presented with any evidence to the contrary) was an arm protected by the Second Amendment.  The Supreme Court decision stated all men capable of carrying arms were protected by the Second Amendment. No opposing views were presented to the court. From Miller:

 The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.

The Miller decision was muddy, but the context was clear. Individuals were protected by the Second Amendment. Progressive judges started to ignore and misrepresent the Miller decision as showing the Second Amendment only applied to state militias. In 1942, during the height of World War II, two circuit court decisions added to the flimsy foundation of the "collective right" myth.

In United States v Tot, the Third Circuit held the Second Amendment did not apply to criminals, a finding which can be consistent with an individual rights interpretation. The judge, in a one paragraph dicta, pushed the myth the Second Amendment was a "collective right", incorrectly citing Miller, and a short historical discussion of the English revolution from 1688-1689, found in Aymette (an anomalous Tennessee case from 1840), and a collection of modern writers. The historical analysis was very weak.

In the First Circuit, in Cases v United States, the three progressive judges went so far as to claim Miller did not apply to military weapons, because it was what they wanted to find. From Cases:

Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.

In 1965, Progressive AG, Nicholas Katzenbach, in the Progressive Johnson administration, claimed the "collective right" myth was correct, without evidence. In 1968, President Johnson pushed through the infamous Gun Control Act of the same year.  After 1968, a flurry of circuit court decisions adopted the "collective right" myth, citing Tot, or Cases, or a cursory reference to Miller. The "collective right" myth was now fully formed.

The full fledged "collective right" myth was fully formed in the courts after 1968.

It was not adopted at the Supreme Court, but was pushed hard in the Media.

In the 1970's the "collective right" myth started being exposed by academics. The myth was so thoroughly debunked in the literature, the fact the Second Amendment protected individual rights was referred to as the Standard Model.

In 2004, the Department of justice rejected the "collective rights" myth and confirmed the Second Amendment protected individuals rights.

In the Heller decision published on June 26, 2008, the Supreme Court clearly and precisely points out the "collective rights" myth is false, and shows the reality. The Progressive judges on the Supreme Court generally admitted the rights protected were individual rights, but argued they should be limited by the prefactory clause. From billofrights.com:

Finally, the Court reasoned that the right to own weapons for self-defense was an “inherent” (in-born) right of all people. “It has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”

Four of the nine Supreme Court Justices dissented. (They disagreed with the Court’s ruling.) Some of the dissenters agreed that the Second Amendment protected an individual right. However, they argued that the scope of that individual right was limited by the amendment’s prefatory clause. One dissenter agreed that the Second Amendment protected an individual right, but argued that the District law was a reasonable restriction.

This was the death of the myth of the "collective right". It never was reasonable to believe a pre-existing  "right of the people" would refer only to a right of the states to form militias.

The Heller decision killed any logical claim about the "collective rights" myth. It had been created out of very thin, stone soup.

But liberal fascists, also known as Progressives, have always hated limitations on government power, especially the Second Amendment.  They have always depended on lies and their ability to control information flow. They continue to promote two false myths about the Second Amendment. The leftist myths are illustrated by this article in the Huffington Post, in 2013. Here is the first:

Following the Sandy Hook massacre, gun rights, gun laws and the Second Amendment have been the subject of a national dialogue. Any discussion of these topics is severely tainted by calculated messaging by the NRA to deceive and mislead our citizens to believe that the Second Amendment grants far reaching gun rights which have not and do not exist.

Note the false assumption in the above paragraph. The Second Amendment does not grant any rights. It protects existing rights to keep and bear arms. The text of the Second Amendment verifies that fact. The false assumption is repeated in the next paragraph, now compounded by the myth that the Second Amendment does not protect individuals rights.

The Second Amendment became part of our constitution in 1791. For well over two centuries the Supreme Court never decided that the Amendment granted a constitutional right to individuals to bear arms. The widely held notion that such a right existed was a myth fabricated by the NRA for its own self interest and for the corporate profits of gun manufacturers.

The author goes on to cite a number of prominent progressive judges and lawyers who all spout the "collective right" mythology. All cite the same talking points, based on the same false narratives.

The myth the Second Amendment does not protect individual rights, only "collective rights", was first created in Kansas in a muddy decision in 1905. It was built on by dubious wording in a couple of circuit court cases, then elevated to legendary status by the courts after 1968, by judges using Progressive ideology.

Opinion:

The "collective right" myth was killed in 2008. It was never really alive. Like a zombie in the movies, it keeps rearing its ugly head in ill-informed arguments about the Second Amendment.

 

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

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KY: 19-Year-Old Shot, Killed as Home Invader

Police say they responded to a call for a reported burglary at 1:10 a.m. Monday when they found an adult male suffering from gunshot wounds.

Officials confirmed this was a home invasion and the homeowner shot and killed Wilds.

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WA: Armed Robber Killed by Store Owner

Seattle Police Chief Adrian Diaz said a 29-year-old man attempted to rob the business at gunpoint and shot an employee. The 38-year-old employee returned fire, fatally striking the 29-year-old. The suspect was found dead outside the business.

"We saw this individual turn the corner, and as he turned the corner, he fell to the ground," one eyewitness who didn't want to give his name said, "He fell face down and the gun in his left hand fell to the pavement. I turned the corner and called 911 right away."

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Mystery Alaskan State Parks Grizzly Bear Target

A few years ago, a well done target featuring an attacking grizzly bear came on the market. It appeared to be an official target of the Alaskan State Parks. 

I liked the look of the target as an image to use with bear attack stories where original images of the scene was unavailable. Many bear targets show cartoonish bears, bears which are not approaching the shooter, bears which are not focused on the people being trained to shoot at them.  This target showed the right mix of realism, focus and artistic depiction. The image was clearly created by an artist, so it would not confuse readers about whether it was an actual image from the scene of an attack.

I contacted the Alaskan State Parks, and was directed to a very helpful Development Specialist at the State of Alaska, Wendy Sailors. Wendy was a delight to work with. However we were unable to find the source of the target. 

Two years ago, Wendy said I could use the target, as the government of Alaska did not seem to have any information on it. Use of a more realistic target when training to stop bear attacks is useful. Notice the eyes of the bear are focused on the defender.  It helps break down the inhibition against shooting a bear. Such an inhibition has been inculcated into millions of people via the constant portrayal of bears as friendly, fuzzy, furry forest creatures, in hundreds of TV shows and movies.

In reality, bears are large, strong, unpredictable wild animals which are very dangerous to naive humans.  When people practice shooting realistic targets, it helps them overcome the inhibitions inculcated by television shows and movies.

 The image shows the natural weapons of a bear very well. The aiming point is reasonably well placed. I might have placed it an inch higher. The look of the bear's face is focused on the bear's target, while the person being trained should be focused on the bear target.

Recently, another source popped up, showing the target was used in 2010. The people using the target thought someone, perhaps a State of Alaska employee, might have been the person who produced the target. Currently, the target does not appear to be commercially available. 

This correspondent initiated another exchange with the ever patient and responsible Wendy Sailors.

Wendy worked to find references to the new lead.  She wrote again  to state that I could use the target if I desired to do so, because the state of Alaska did not appear to have any records of it. 

It is likely taxpayers paid the salary of the person who created the image.  It is almost certainly in the public domain. It is an image which deserves promotion and use. It is an excellent target to use when training people how to use firearms in defense against a bear attack.

The artist who produced the image clearly has talent. Perhaps it was done for the Alaskan State Parks department at some time. The image bears the identifier: ASP-BB.  If any readers have more information about the target, please contact AmmoLand.

 

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

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NC: Domestic Defense? Man Accused of Assaulting Three Women was Wounded

WINSTON-SALEM, N.C. —

A 24-year-old man has been released from the hospital and arrested accused of assaulting three women on Feb. 9 on Bethabara Pointe Circle.

One of the women managed to shoot Johordon Davis in the neck, police said. No charges will be filed against the Greensboro woman. 

 

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GA: Dekalb County Homeowner Shoots, Kills Intruder who Broke into Home

Police said a homeowner shot a man to death after he broke into his DeKalb County residence Thursday afternoon.

Officers were called to the home in the 3400 block of Valley Chase Court at about 4:30 p.m. At the scene, police said they found a man’s bo ...

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KY Federal Court strikes down Ban on Second Amendment Rights based on Restraining Order.

A federal district Court in the United States District Court, Eastern District of Kentucky, Central Division,  (at Lexington) has held a ban on the exercise of Second Amendment rights for a mere domestic restraining order  18 U.S.C. § 922(g)(8 is unconstitutional.

On June 15, 2022, A Harrison County Family Court in Kentucky issued a Domestic Violence Order ( a restraining order) against Sherman Kelvin Combs. In Kentucky the DVO procedures do nor require council (an attorney) be appointed for  respondents or that a jury resolve factual issues.

A few days later, it is alleged Combs purchased a .357 revolver from a federally licensed dealer. Combs indicate, on the form 4473, that he was not subject to a DVO (domestic violence restraining order). 

Combs was charged, in federal court, with two counts. First, that he possessed a firearm in violation of  18 U.S.C. § 922(g)(8). Second, that he lied on the Form 4473.  The maximum penalty for each count is up to 10 years in prison and a $250,000 fine.

The actual wording of 18 U.S.C. §922(g)(8) is this:

(g) It shall be unlawful for any person-

(8) who is subject to a court order that-

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; 

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and 

(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

The second count is 922(a)(6),

(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;

Combs and his lawyers argue that count 1  ( a ban on receiving a firearm while under a restraining order) is unconstitutional, and therefore, count 2, lying on the form, is immaterial. 

The federal magistrate, Matthew A. Stinnett, who first heard the case, held the restraining order provision was close enough to the early surety statutes to be constitutional, and count 2 was unaffected. 

The federal  judge for the United States District Court, Eastern District of Kentucky, Central Division,  (at Lexington), held count 1 is unconstitutional, but count 2 is still material, in part because the dealer could not make an informed decision because the dealer was lied to; and the dealer could decide whether to sell Combs a firearm or not, even if Combs was not prohibited from purchasing  and possessing firearms by federal law.

The case will probably be appealed. Both sides have reason to appeal. There is reason to believe law that stems from an unconstitutional law is void, which would work in Combs favor for count 2. It is difficult to believe the Biden Administration will allow a ruling that count 1 is unconstitutional without an appeal.

This is at least the third case where a court has held the ban on the exercise of Second Amendment right for a mere domestic restraining order is unconstitutional. A Texas District court has also held the restraining order ban is unconstitutional, and a three judge panel in the Fifth Circuit Court of Appeals has also held the ban to be unconstitutional. 

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

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WA: Gunfight in Seattle, Armed Victim Wounded

The victim, who had already put a tourniquet on one of his legs, was helped by officers until medics from the Seattle Fire Department arrived and took him to Harborview Medical Center.

The man told officers that he had just gotten home with his wife and two children. When he got out of the car to start getting his children out of the back seat, two armed suspects approached the couple and demanded they hand over their belongings.

At that point, the victim pulled out a handgun and exchanged gunfire with the two suspects.

The man told police that as he was shooting, he moved away from his family to try to distance them from the gunfire. His wife and children were not hurt.

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TX: Armed Samaritan Shoots El Paso Mall Killer

The argument between the groups escalated into a physical fight during which the 16-year-old suspect pulled out a gun and fatally shot Zaragoza and seriously wounded the 17-year-old boy who was with Zaragoza, officials said.

The 20-year-old man, who was with the alleged shooter, also was shot.

After the shooting, the suspect ran away while pointing his gun toward the direction of bystanders, including a 32-year-old man, police said.

The bystander pulled out his gun as the suspect ran towards him and other bystanders and shot the suspect, police said. Police identified the bystander as being licensed to carry a firearm.

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FL: 67-Year-Old Woman Shoots, Kills 64-Year-Old Intruder

Deputies said they found 64-year-old Reginald Best suffering from a single gunshot wound at a home in Interlachen. He was taken to a hospital where he died.

The homeowner, a 67-year-old woman, told deputies that she heard the front door handle shaking around 3 a.m. and went to investigate. She told deputies she thought it might be her husband returning from work so she opened the door. That’s when she said Best forced his way into the home.

The woman, who was armed with a gun, said she told Best to leave her home multiple times. She told deputies Best raised up both arms and she saw he had a gun in his hand.

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Gunfight near Memphis: Suspect Abandoned by Accomplices

On February 9, 2023, in the Websters Grove subdivision near Memphis Tennessee, a homeowner received a call from a neighbor. The neighbor alerted him there were several people suspiciously near his vehicles. The homeowner armed himself and went out to investigate. There were two men in his driveway. They ran, but one fired at the homeowner, striking him in the ankle. From foxnews.com:

The unidentified homeowner living in the Websters Grove subdivision in Shelby County said he received a call from a neighbor on Thursday evening that there were several people standing outside his residence, Shelby County deputies told CBS Memphis affiliate WREG. 

The homeowner told authorities that when he went outside, he saw two men in his driveway and another two men sitting in a white car on the street. The two in the driveway made a run for it when they spotted the homeowner, with one suspect firing a gun at the homeowner. 

The homeowner was struck in the ankle but managed to return fire on the suspects, WREG reported.

Shelby County is an urban county with a rich history. The land Shelby County is on was purchased by the federal government in 1818, as part of the Treaty of Tecumseh. The purchase price was 300 thousand dollars, which was worth fifteen thousand ounces of gold, at the time. Memphis became the County seat.

Websters Grove is a recent suburban development just north of East Holmes road on the southeast edge of Memphis in Shelby County. 

There was a third suspect waiting in a white car on the street. One of the suspects from the driveway made it to the car. They drove off leaving one suspect running around the neighborhood, pleading for them to come back. From foxnews.com:

One suspect managed to get away, while another one, identified as 18-year-old Marreo Mays, was arrested. 

Deputies with the sheriff’s office said Mays went around the neighborhood knocking on doors asking for help and was heard on his cellphone yelling, "Y’all left me. Come pick me up."

Mays was charged with two counts of burglary of a vehicle and vandalism.

The homeowner went to the hospital and had surgery done on his wound. He is reported back home and recovering. 

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

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SC: Fatal Shooting at Kershaw was Self Defense

KERSHAW — Investigators suspect a fatal shooting on Valentine’s Day at a home in Kershaw County’s Ridgeway area was done in self-defense.

Darius Israel Chester, 27, of Elgin, told deputies was sitting in his car outside his girlfriend’s house on Shivers Green Road when he was approached by her ex-boyfriend carrying what appeared to be a 2-foot-long “black piece of metal resembling a baton with a red handle,” according to the incident report.

The ex-boyfriend, 22-year-old Alexander Chivers Johnson, of Elgin, had been sending threats to the woman, the report said. As he approached Chester, he spit and kicked the car, Chester told deputies, according to the report. Chester then shot Johnson, the report said.

 

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Montana Tells AG Garland: We Will not Aid ATF in Enforcing Pistol Brace Rule

The Governor of the State of Montana has penned a letter to the Attorney General Merrick Garland, explaining the State of Montana and its political subdivisions cannot "enforce, or assist the ATF enforcement" of the rule criminalizing the possession of pistol braces as short barreled rifles under the National Firearms Act. 

Governor Greg Gianforte refers to House Bill 258, which was passed and signed into law in 2021. From HB 258, now MCA 45-8-368:

Prohibition Of Enforcement

45-8-368. Prohibition of enforcement. (1) A peace officer, state employee, or employee of a political subdivision is prohibited from enforcing, assisting in the enforcement of, or otherwise cooperating in the enforcement of a federal ban on firearms, magazines, or ammunition and is also prohibited from participating in any federal enforcement action implementing a federal ban on firearms, magazines, or ammunition.

(2) An employee of the state or a political subdivision may not expend public funds or allocate public resources for the enforcement of a federal ban on firearms, magazines, or ammunition.

(3) Nothing in this section may be construed to prohibit or otherwise limit a peace officer, state employee, or employee of a political subdivision from cooperating, communicating, or collaborating with a federal agency if the primary purpose is not:

(a) law enforcement activity related to a federal ban; or

(b) the investigation of a violation of a federal ban.

 Governor Gianforte informs Attorney General Merrick Garland of the definition of a ban under the law:

Definitions

45-8-367. Definitions. As used in 45-8-365 through 45-8-368, the following definitions apply:

(1) "Federal ban" means a federal law, executive order, rule, regulation that is enacted, adopted, or becomes effective on or after January 1, 2021, or a new and more restrictive interpretation of a law that existed on January 1, 2021, that infringes upon, calls in question, or prohibits, restricts, or requires individual licensure for or registration of the purchase, ownership, possession, transfer, or use of any firearm, any magazine or other ammunition feeding device, or other firearm accessory.

(2) "Firearm" means any self-loading rifle, pistol, revolver, or shotgun or any manually loaded rifle, pistol, revolver, or shotgun.

(3) "Peace officer" has the meaning provided in 45-2-101, except that 45-8-365 through 45-8-368 do not apply to federal employees.

(4) "Political subdivision" means a city, town, county, consolidated government, or other political subdivision of the state.

Governor Gianforte then tells AG Garland the State of Montana will not assist the federal government in enforcing the new rule ,which essentially changes pistols equiped with pistol braces into short barreled rifles, requiring a special tax stamp from the ATF.

The power of state governments to refuse to cooperate with federal agencies is a long established principle of the Constitution known as the anti-commandeering doctrine. The federal government may not require the states to enforce federal laws. From the tenthamendmentcenter.com: 

 State and local governments can refuse to enforce federal laws or implement federal programs for any reason they chose. They can prohibit or limit cooperation with the feds because they think the feds are acting outside of their constitutional limits, or simply because it’s Tuesday and there is snow on the ground.

No state has to use its resources to enforce federal laws. It does not matter if the federal law is constitutional, or not. All that matters is the state has the power to direct the uses of its resources as it sees fit.

Montana has chosen not to enforce new federal gun laws as described in Statute 45-8-368. 

 

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

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NY: Goodman Found not Guilty of Murder of Shaun T. Koonce

A 49-year-old man charged in the deadly shooting last year of Shaun T. Koonce in Watervliet was acquitted of second-degree murder after arguing he shot the victim in self-defense.

An Albany County jury cleared Reginald P. Goodman of murdering Koonce, 41, after deliberating for about two  hours on Feb. 9, according to Assistant Alternate Public Defender Timothy Berry, who represented Goodman. Jurors convicted Goodman of second-degree weapon possession.

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NICS for January, 2023 Gun Sales and Background Checks track with 2022

Lines are numbers for 2022, bars are for 2023

 

The National Instant background Check System (NICS) gun sales and background checks are slightly higher for January of 2023 than they were for January of 2022. Gun sales are six percent higher and back ground checks are three percent higher than in January of 2022. Background checks continue to outnumber gun sales by over 2-1, as many background checks are done for purposes other than a gun sale.

With about 1.22 million guns sold in the NICS system in January, the United States is on track to equal the number of guns sold in 2022, about 17 million. If the trend continues, as seems likely, the estimated number of privately owned firearms in the United States will reach the half billion mark, over 500 million, in September of 2023.

Corrected for constant dollars, firearms prices are at historically low levels. Prices of quality firearms were only lower when there were millions of military surplus firearms on the market. Two examples are given below.

In 1963, M1 carbines were sold off at $17.50, with $2.50 shipping.  $20 in todays dollars would be $194.  A good SKS could be had for $100 in 1994, and ammunition was absurdly cheap. $100 in 1994 dollars would be $200 in today's dollars. Those examples are extremes. The rifles were military surplus, sold well below the market costs of production of a similar firearm.

Today, a person can purchase a new variant of the AR15 for as little as $300, if one is willing to buy a complete lower receiver and a complete upper receiver separately, and take the one minute required to connect the two.  The act of connecting the two assemblies probably removes manufacturers liabilities, as they only sold part of a firearm. A reduction in liabilities reduces the cost.

To place the $300 figure in perspective, the AR15 sold to ordinary citizens in 1965 at $189.50, or $1,785 in today's dollars. It was a Colt, name branded product, but the service life is likely the same as a current generic AR15 style rifle.

Today's firearms are approaching the relative price asked for bargain basement military surplus firearms brought when they were placed in the US market. If an adult wants a firearm and ammunition today, they are easily available for less than a week's work at minimum wage (at least $290 before taxes). Many jobs are going begging, driving up wages. As a practical matter, anyone who wants to work can find a job.

A perfectly serviceable .22 rifle can be purchased for about a $100, if you shop a bit. A serviceable .22 semi-automatic handgun can be had for $200.  Serviceable 9mm handguns can be had for $250.

Modern materials and manufacturing techniques have made practical, reliable, firearms affordable for more and more people.

Even if a person opts to purchase a fully assembled AR15, the cost has been as low as $500.  For a person on a minimum wage of $7.25 per hour, the cost is 70 hours of labor. In 1965, the minimum wage was $1.25 per hour. A Colt AR15 would have cost 151 hours of minimum wage labor.

Gun sales appear to have arrived at a new normal of about 1.5 million sales a month, or 18 million a year. Some of the new level is the normalization of domestic and international uncertainty. Some of it is the reduction of firearm costs compared to wages.

 

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

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OH: Police Investigate Potential Self Defense Shooting of Nathaniel Spears

Police are investigating whether the fatal shooting of a man on the Far East Side early Sunday was an act of self-defense.

Nathaniel Spears died just before 6:30 a.m. at a local hospital after officers found him lying in a grassy area in front of an apartment building in the 5000 block of Red Bird Court, Sgt. David Shimberg of the Columbus police Homicide Unit said.

 

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May 29, 2020, Alaska. Mike Becwar uses Knife to Fight Bear to Standstill

 cinnamon black bear which attacked Mike Becwar, 210 lbs, thin in spring.

In 2020, Mike Becwar was, without provocation, attacked by a cinnamon black bear in Alaska. He fought back with a folding knife, and survived. This is his story.

On May 29, 2020, Mike was going stir crazy. This was during the COVID restrictions. He had been pushed to extend two weeks  longer than the usual period in the remote camp at Pump Station Number 5.

He had to get out of the camp to relieve stress. He chose to take a run along the road to the camp airport, around the runway, and back into camp, about a 3 1/2 mile run. Going to the airport and back was a fairly common activity for camp workers in the remote location. He expected to be gone no more than 40 minutes.  He told camp security staff where he was going and how long he expected to be gone. Mike was 53 years old.

At the end of May, that far north, there are more than 20 hours of daylight. It is always at least twilight, because the sun does not dip far below the horizon. There are no climbable trees in the area. The temperature was 58 degrees.

Mike has been in Alaska for 28 years. He is an experienced and capable outdoorsman and hunter. He has hunted and dealt with many bears over the decades. Mike has a policy of never going outdoors in Alaska without the means to start a fire, a knife, and a firearm.  It became an impossible policy at the camp. The company authorities forbade the possession of firearms by individuals. 

Mike was carrying an SOG Trident Elite, a locking folding knife with a 3.7 inch blade. 

 

 Mike's knife still has his and the bear's blood on it.

Mike was dressed for running, in T-shirt, running shoes, running pants, and hat. When he first saw the bear, it had crossed the runway behind him, placing the bear between him and camp. The bear was about 300 yards away, near the junction of the airfield and the road back to camp. Mike yelled to let the bear know he was there, and human. He continued on his run around the runway. Mike considered going cross country to avoid the bear. It was spring in Alaska, and there was melt-water standing everywhere.  Mike had been near many black bears, much closer than this bear was. The lesser risk appeared to be to continue back to camp, carefully keeping track of the bear.

The airfield did not yield any expedient weapons. The gravel for the runway had been carefully prepared. The biggest rock was the size of a nickle. 

As Mike came back, he watched the bear. The bear ambled over near the tower, where there were fuel tanks and a parked car. Mike hung back, keeping his distance, allowing the bear to move away. The bear started down the road toward camp, then turned down a side road which led to a sort of junk yard. In his experience in Alaska, Mike had often been around black bears. He had passed them much closer than this bear was. As the bear moved away, Mike moved past the intersection. The bear was about 70 yards down the side road. Mike continued to make noise, to let the bear know he was there.

Everything changed in an instant. The bear looked at Mike, and started running toward him, moving onto the road to camp behind him. Mike was not passive. He yelled at the bear. He waved his arms and tried to look big. He kicked gravel at the bear and threw his hat at it. He had the knife out, open, and locked.

The bear charged to within 10 yards, stopped; closed to five yards, stopped; closed to arms length and paused. It happened much faster than can be told. Mike said the look on the bear's face made it clear the bear was in predatory mode. This was the bear's lucky day, and Mike was lunch!

Mike slashed the bear's snout as the bear raked his face with its claws, and hooked Mike's knee from behind to pull him down. As Mike went down, he stabbed the bear in the chest. Mike said, at that point, the bear's attitude seemed to change. Mike had hurt the bear. Mike was now not just prey, but an opponent. The bear was working hard at controlling Mike, and keeping Mike's face away from him. (When bears fight, their primary weapons are their teeth). Mike squirmed and twisted, trying to find openings to use his knife. As the bear bit his shoulders and arms, Mike managed to drive the little blade to the hilt in the bear's rib cage, three times. 

The bear broke both of Mike's shoulders, and tore up Mike's arms and face. The knife blade was not long enough to reach the bear's vitals. At one point, the bear was straddling Mike, with paws on both sides of him. Mike had lost much strength in his arms, but was able to position the knife so that he could use his leg to help drive the blade home. This was when he inflicted the six inch long gash on the bear's chest. The gash can be seen in the picture. At this point, the lock on the blade failed. Mike recovered control before his fingers were cut. The blade was very sharp.  

The bear kept tearing at him for a couple of minutes. Then it started to drag him off of the road. Mike realized the bear was taking him somewhere to eat him. Without strength in his arms, he started vigorously kicking the bear. The bear responded by fracturing his left leg and biting through his left calf. The bear went for his head. At this point, Mike remembers the bear's teeth grating on his skull. Eventually, the bear dropped Mike, came around, and stared into Mikes face from about a foot away. Mike had managed to get on his side. Mike stared back. Both of them were covered in blood. How much was from which was impossible to know. The bear turned and walked away. 

Mike gathered what energy he had, and struggled to his feet. He looked back. The road showed two areas, about six feet in diameter, covered with blood. Blood drizzled from Mike's body onto the ground. Mike had lost a shoe in the fight. He picked it up and tried to put it back on. His hands were too mangled, and his strength too spent, to accomplish the task. He told himself: just walk back to camp. He made about 10 steps before he started to pass out. His strength was spent. He had started the fight after a 3 1/2 mile run, far from fresh. He thought: just rest for a bit. He lay down on the road, his head on his shoe. He found after numerous attempts, he no longer had the ability to get up, no matter how hard he tried.

The bear had walked off at 7:13 p.m. Mike had fought the bear for 15 minutes. He knew the time because he kept track of his time while running. 

Camp security had a routine of checking the airfield at 9 p.m. Mike had told them he would be back no later than 7:15. Mike hoped they would realize he was overdue and come to see what happened to him. They found him at 8:40. Security applied first aid. They medevaced him by plane to Fairbanks, two hundred and fifty miles away. Mike was down two units of blood, a quart low.  He was in bad shape. One shoulder was fractured into several pieces.

Mike has a lot of experience with bears in Alaska. He has dealt with numerous bears, and hunted many. He told camp security the bear would be back between five and nine p.m. the next day. Camp security showed up at the airfield at five p.m. The bear showed up at 5:05. Security shot at the bear with an AR15 rifle in .223. The bear ran off, and they could not locate it. 

Personnel searched for the bear the next morning. The bear was spotted from the air. The bear charged the security team personnel.  They shot the bear  with a 12 gauge shotgun, loaded with 2.75 inch Federal low recoil slugs. The bear was killed.

Mike has recovered much in two and a half years. The damage was extensive. He has lost considerable capability. 

The necropsy on the bear showed it was a fully adult boar, with a 12 inch long skull, 8 inches wide. In Alaska it would be a six foot bear, by the way hides are measured. The bear had a problem with its stomach. It could not ingest very much food at one time. It was probably always hungry. It was considered in "poor shape" but not emaciated. It was spring, and bears tend to be thin after winter hibernation.

Mike's policy is to carry a handgun with him everywhere, especially outdoors in Alaska. His policy was thwarted by the company banning privately owned guns in camp.  Mike says if he had a handgun, he could have solved the problem. 

"If I would have had a handgun, I could of killed him a dozen times. I would have a cool story instead of a really bad time."

As with many survivors, Mike finds himself often thinking about and re-living the life changing attack.  In Mike's words:

"What could I, what should I, have done to make this better?"

 
"He visits me every day, mostly at night, and we fight again".

Mike says he knew the risks, and went ahead anyway. Many others took the same risks and were not attacked. Mike thinks black bears in the area are more aggressive, because there are no trees to climb. It is mostly grizzly country. The theory is they need to hold their own against grizzly bears to survive. Cinnamon bears in the area seem to have been involved in more human conflicts in recent years. 

Mike and I considered the fact that bears which are not hunted are not afraid of humans. There is a corridor, five miles on each side, along the Alyeska pipeline, where hunting with firearms is not allowed. Mike said bears in the camps are often pampered, given names, and tolerated. 

Mike does not believe bear spray would have solved the problem. He pointed out examples where people sprayed bears and were attacked. Some were killed. Researchers have noted predatory black bears appear to be resistant to bear spray.

 

Opinion: 

Mike and this correspondent agree. If a bear shows no fear of humans, and approaches to less than 10 yards, it should be met with gunfire. There are plenty of black bears in Alaska. Removing the bears which are not afraid of humans will not have a measurable effect on the bear population, except to remove potentially dangerous bears. 

Bears are powerful predators. They are unpredictable, and can inflict enormous damage very quickly.

Banning Alaskan workers from having firearms appears to be a relatively recent policy in historical terms. From this correspondent's reading, attitudes toward firearms changed in the middle 60's.  

Workers should be allowed the option of having a firearm for defense when they leave the camp perimeter. Many do so for exercise, to fish, to pick berries, to relieve the stress and boredom which comes with camp life.

Camps could provide a range to help workers sharpen their skills. Most people in Alaska know how to shoot. There is plenty of space for small ranges in Alaska. It would be another way to recreate. 

 

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

Gun Watch

TX: Houston Hotel Clerk Turns Tables on Armed Robber

A man in Houston attempted to rob a hotel while carrying a rifle, but appeared to be shocked when the hotel clerk pulled out a handgun of her own. (Credit: Houston Crime Stoppers)

A man in Houston attempted to rob a hotel while carrying a rifle, but appeared to be shocked when the hotel clerk pulled out a handgun of her own.

The incident happened on Jan. 16 when a man entered the hotel lobby.

Houston police say that the suspect went to the counter with a rifle and demanded that a hotel clerk give him money from a cash drawer.

As the hotel clerk was being held at gunpoint with the rifle, police say that she pulled out a handgun of her own and pointed it at the suspect, who then fled the scene.

 

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GA: Three Armed Customers Stop Armed Robbery at Ellijay Ideal Mart

Gilmer County Courthouse in Elijay, Georgia, public domain

 

According to Ellijay Police, on January 9, 2023, at about 6:30 p.m., Shawn Sutton, 39 years old, and a convicted felon, posed as a customer ready to purchase an energy drink at the Ideal Mart on at 31 Old Northcutt Road in Ellijay Georgia.

Ellijay is the county seat of Gilmer County, Georgia, about 60 miles north of Atlanta. Gilmer County was founded in 1832, on the junction of the Coosawattee River and the Etoway River. It is a thriving rural county with 31,000 residents.

There were two real customers and a store clerk inside the Ideal Mart with Sutton. Outside, there was one customer at the gas pumps. Melody Sutton, Shawn's wife, was in a parked car outside the store.

The suspect, Shawn Sutton, obtained the energy drink, then pulled a pair of women's panties from around his neck to cover his face. Sutton went behind the counter and pointed a .45 caliber handgun at the head of the clerk. Sutton demanded all the money.

One of the customers produced his concealed firearm and intervened. The other customer went outside to retrieve his pistol from his vehicle, and returned to help subdue Sutton. The third armed customer, at the gas pumps, came inside to assist, as Sutton was attempting to leave. The first armed customer told the other two armed customers not to shoot Sutton, as Sutton had been disarmed.

At this point in time, law enforcement officers arrived at the scene.  It was 6:36 p.m. Sutton was still attempting to leave. One officer ordered the suspect to get down. Sutton did not comply. The officer used a Taser to engage the suspect, who was then taken into custody. As other officers arrived on the scene, one of them discovered Melody Sutton in the parked car. She was taken into custody without incident. The couple were from Blue Ridge, Georgia. Blue Ridge is 18 miles northeast of Ellijay on the Zell Miller Mountain Parkway.

Officers from three departments, Ellijay, East Ellijay, and the Gilmer County Sheriff's office, all responded to the 911 call, arrived at the scene, and assisted in taking the suspects into custody.

Shawn Sutton is charged with one count of Armed Robbery, one count of Aggravated Assault, and one count of Possession of a Firearm by a Convicted Felon. Shawn and Melody Sutton are being held without bond.

Georgia became a member of the Constitutional (permitless) Carry club on April 12, 2022. Georgia became the 25th state where  no permit is necessary for a law abiding person to carry a loaded firearm, openly or concealed. No permit was required in 1791, when the Second Amendment was ratified.

Opinion:

Armed robbery is a dangerous occupation in the middle of an armed population. The armed customers demonstrated good situational awareness, discipline, cooperation, and restraint. The police and armed citizens worked together to resolve a dangerous situation and take a felon into custody. When the population and police trust each other and work together, low crime rates are the result.

 

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

Gun Watch

AZ: Man Shoots up Phoenix Restaurant, is Shot, Killed

Detectives who took over the investigation reported that the man who was killed had entered the restaurant with a gun and fired a number of rounds inside the building.  

"The man detained and questioned by police was inside the restaurant during this incident and had shot the individual ending this confrontation," Bower said.

The detained man declared it was self-defense and many witnesses supported his statement, police said.

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Velocities of Subsonic and Suppressor ready .22 Cartridges fired in Pistols

Published velocities for .22 Long Rifle cartridges are generally available for rifle length barrels. Finding the velocities for pistol length barrels is more difficult.  Searches on the Internet did not yield results for several of the subsonic .22 Long Rifle cartridges. This article shows velocities measured from three pistols for five different cartridges.

Velocities in a particular barrel length can vary with individual barrels. Some barrels are smoother than others. Even the temperature of the cartridge, when the round is fired, can make a measurable difference. To see the differences for pistol length barrels, three handguns were used, because they were handy and were threaded for suppressors.  The use of a suppressor can affect velocity, but the amount is usually small, and can be in either direction. Different lots of the same ammunition may have differences in velocity, usually small.

The three pistols used were a Kel-Tec CP33 with a 5.5 inch barrel, a Taurus TX22 with a 4.1 inch barrel, and a Kel-Tec P17 with a 3.93 inch barrel.

The cartridges tested were, in order of published velocities:

• CCI 45 grain Quiet .22 Semi-Auto  835 fps
• Aguila 60 grain SniperSubSonic 950 fps
• Federal American Eagle 45 grain suppressor 970 fps
• Winchester 45 grain Super Suppressed 1060 fps
• CCI Standard Velocity 1070 fps

Velocities shown in the chart are the average for five shots. The temperature varied form 56 to 76 degrees Fahrenheit.  Velocities were measured 10 feet from the muzzle, with a Caldwell Chronograph G2. Five shots should be sufficient to give a good idea of pistol velocities from 4 and 5.5 inch barrels. Differences between the 4.1 inch and 3.93 inch barrels were expected to be small.

 

 

As can be seen from the chart, all of the rounds tested were reliably subsonic from the pistols tested. While the speed of sound varies with temperature, even at 40 degrees below zero, the speed of sound is above 1000 fps. As the temperature rises, so does the speed of sound. At freezing, it is 1087 fps. At 70 degrees Fahrenheit, it is 1128 fps. At 100 degrees F, it is 1159 fps.  Atmospheric pressure has little effect on the speed of sound. As relative humidity increases, there is a slight increase in the speed of sound, just a few fps. It is expected few shots will be fired from a suppressed .22 pistol at temperatures lower than 40 below zero.

As a purely subjective measurement, the quietest ammunition, from a suppressor, was the CCI Quiet .22 Semi-Auto. The next quietest was the Federal suppressor American Eagle 45 grain load. The CCI Standard Velocity seemed a little louder.  The Winchester 45 grain was a bit louder yet. The Aguila 60 grain SniperSubSonic seemed to be the loudest. It appeared to contribute considerable noise from the chamber area, perhaps because of the short case.  With a suppressor, it was much quieter than fired without a suppressor. Subjectively, it seemed to be the noisiest. This writer suspects it would do best out of manually operated rifles. 

The average difference in velocity between the 5.5" barrel and the 3.93" barrel, looking at all five cartridges, was only 25 fps. The 4.1 inch barrel was in between.

The 60 grain bullets of the Aguila need a faster twist than 1 in 16 inches to stabilize properly. The Kel-Tec CP33 and P17 both have 1 in 14 twists, which seem to stabilize the long bullet a little better. The new Taurus Compact TX22 has a 1 in 10 twist, which should stabilize the 60 grain Aguila load. It has a 3.6 inch barrel, so velocities of about 750 to 760 fps would be expected out of the shorter barrel, with the 60 grain bullet.

 

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

Gun Watch

IL: Armed Chicago Homeowner Holds Burglary Suspect for Police

A Chicago man is facing burglary charges after a concealed carry holder caught him red-handed and held him at gunpoint until cops arrived, prosecutors said.

Tyler Hamlin, 31, already had two active felony warrants, and now he’s charged with burglary.

The concealed carry holder received a security alert showing someone was on his porch with a flashlight in the 3500 block of North Fremont in Wrigleyville around 8:30 p.m. Monday.

 

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CO: Gunfight at Stolen Auto, 12-Year-Old Suspect Killed

In a press release, Denver Police say they received a report of an auto theft Sunday while the vehicle's owner, an adult male, was tracking the stolen vehicle using an app on his phone.

"When the vehicle’s owner approached the car, he was involved in an exchange of gunfire with occupant(s) in the stolen vehicle," the press release said.

Police say a juvenile male then drove the stolen car a few blocks, roughly 0.2 miles, where he was found by officers who discovered he had a gunshot wound.

 

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TN Followup: Richard Woodson found Not Guilty in Home Invasion Death of Deontrea Milligan in Complicated Case

The lone suspect who didn’t take a plea in a 2021 home invasion slaying has been found not guilty by a Montgomery County jury.

A jury found Richard “Kenny” Woodson not guilty of first-degree murder and especially aggravated burglary charges at the end of the trial on Jan. 30.

The home invasion occurred Nov. 15, 2021, around 11:45 p.m. Three men entered a Dandelion Drive residence through an unlocked door, according to police. There were multiple adults and two children inside. At some point, shots were fired, resulting in the death of one of the intruders Nicoli Jefferies, 37, and Deontrea Milligan, 33, a resident of Dandelion Drive. They were both pronounced dead at the scene.

 

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TX: Homeowner Shoots Man who acted Violently, Irrationally, Threatened Fiancé

Houston, Texas, public domain.

On February 4th, 2023, a man entered a home at 15731 Treasure Cove in Tyler, Texas. The homeowner informed deputies the man insisted the homeowner's truck belonged to him. This initiated a sequence of event which ended in the man's death by gunfire, as the police were on their way.  Sgt Christian gave information to kltv.com: 

The homeowner reportedly forcefully removed the intruder from his residence and was able to lock the door.

Before deputies arrived, the homeowner, armed with a shotgun, went outside to check on his truck; the suspect then returned to the property and the homeowner informed him that police were on the way and instructed him to sit down, the release said. The homeowner reported that he believed the suspect was having a mental episode, as he was shouting an unknown female’s name. During this time, the homeowner’s fiancé came outside, and her presence seemed to agitate the suspect, who came toward them aggressively, according to Christian. The homeowner reportedly warned the suspect several times to stop walking toward them or he would shoot, but the suspect allegedly refused and made death threats toward them; as the suspect charged toward the homeowner and his fiancé, the homeowner shot the suspect once in the chest, Christian said.

In spite of police efforts to apply CPR on the suspect, he was pronounced dead at the scene. Police investigated and are reported to have identified the dead man as Mark Anthony Correro, 50 years old. Correro was a prominent criminal and civil attorney with law offices in Houston. Tyler is about 180 miles north of Houston.  Mark Correro was a very successful attorney, who wrote law articles in a variety of scholarly publications. From justia.com:

Mark Correro is one of the founding members of Correro & Leisure, P.C handling civil litigation cases. He is also a partner at the Houston criminal defense firm Stornello & Correro Law Firm, PLLC. He earned his law degree from South Texas College of Law. During this time, he served as assistant articles editor for the South Texas Law Review and editor for the Texas State Bar’s Construction Law Journal. He has published fourteen scholarly articles in a variety of prestigious publications. In 2013 and 2015, he was selected for inclusion in the list of Texas Super Lawyers®, an honor that less than 5% of attorneys receive. Mark is also a member and Fellow of the Texas Bar Foundation.

There is certain to be an investigation about what happened to Mark Correro during the last few days. Prominent attorneys are seldom killed in such bizzare circumstances.

Opinion:

Upon reading the facts reported about this incident, this correspondent immediately suspected the influence of drugs. Even prominent attorneys can be affected. Similar incidents have occurred when people have been under the influence of meth. There are other plausible possibilities, such as mental problems associated with various physical maladies.  The homeowner reported he thought Mark Correro was "having a mental episode". 

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

Gun Watch

 

 

NC: Gunfight in Rocky Mount Motel, Attacker Killed, Defender Wounded

Rocky Mount police said no charges will be filed in a deadly shootout Sunday at a Rocky Mount motel.

Police said Damien Williams was killed when he and two other men forced their way into a room at the Executive Inn on North Wesleyan Boulevard to rob the two men inside.

Officers say there was an exchange of gunfire and Williams and Johnny Lyons were shot. Lyons received non-life-threatening injuries and was one of the men inside the room before the robbery went down.

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NC: Homeowner Shoots Armed Intruder as Intruder breaks through Front Door

Mt. Airy police said a man armed with a gun broke through the front door of a home before he was shot in the neck by the homeowner as soon as he stepped inside.

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Fifth Circuit: Domestic Accusation not sufficient to Ban Rights Protected by Second Amendment

 

 A three judge panel on the Court of Appeals for the Fifth Circuit has ruled a mere restraining order is insufficient to ban rights protected by the Second Amendment.  The decision follows the long judicial practice in the United States. Fundamental constitutionally protected rights may not be removed without a criminal conviction in a court of law. 

Restraining orders have the merest hint of due process. They are often granted without any representation on the part of the individual accused.  The utility of restraining orders and the removal of rights because of them have long been in doubt. Intimate partner homicides decreased sharply in the decades previous to 1996, when the federal law banning possession of firearms from those who were subject to a restraining order went into effect. Then, they leveled off. 

The United States Supreme Court, in the Heller decision of 2008, affirmed the longstanding view of the Second Amendment as protecting an individual right, a view which had been ignored by Progressive judges in the appelate courts since 1941, where they either misinterpreted the Miller decision of 1939, or deliberately refused to follow it, as in the Cases decision in 1942. 

The Supreme Court refused most Second Amendment cases from 2010 to 2022, allowing some of the appellate courts to concoct a convoluted scheme to render the Second Amendment irrelevant. In the Bruen decision of 2022, the Supreme Court reasserted its findings in Heller (2008), McDonald (2010), and Caetano (2016). The rights protected by the Second Amendment must be protected at the same level as the First Amendment. The rights protected by the Second Amendment rights are not a second class set of rights. 

Bruen gave explicit instructions to the lower courts. Rights protected by the Second Amendment may only be infringed if those infringements were understood as acceptable when the Second Amendment was ratified or, to a lesser extent, when the Fourteenth Amendment guaranteed those rights protection against infringment by the States.  

It was never acceptable to ban the exercise of rights protected by the Second Amendment without criminal conviction under due process of law.

Mere restraining orders are not a criminal conviction under due process of law. From the Fifth Circuit decision (bold added):

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. §922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.

Separately, a District judge in the Fifth circuit also found the restraining order law unconstitutional under the Second Amendment. The two cases are not related, but the recent decision by the Fifth Circuit is likely to apply to the Perez-Gallan case heard by Judge Counts.  The two cases may be combined in the future. 

It is unknown if a request to hear the current case, United States v. Rahimi, en banc (by the whole Fifth Circuit), will be made.  

One of the judges in the three judge panel, Judge Ho, wrote a separate opinion, concurring with the decision, but elaborating on it. Judge Ho wrote:

So when the government detains—and thereby disarms—a member of our community, it must do so consistent with the fundamental protections that our Constitution affords to those accused of a crime. For example, the government may detain dangerous criminals, not just after conviction, but also before trial. Pre-trial detention is expressly contemplated by the Excessive Bail Clause and the Speedy Trial Clause. And it no doubt plays a significant role in protecting innocent citizens against violence. See, e.g., United States v. Salerno, 481 U.S. 739, 755 (1987) (permitting“the detention prior to trial of arrestees charged with serious felonies who . . . pose a threat to the safety of individuals or to the community”).

Our laws also contemplate the incarceration of those who criminally threaten, but have not (yet) committed,violence. After all, to the victim, such actions are not only life-threatening—they’re life-altering. See, e.g., United States v. Ackell, 907 F.3d 67 (1st Cir. 2018)(upholding criminal stalking law); United States v. Gonzalez, 905 F.3d 165 (3rd Cir. 2018)(same); United States v. Osinger, 753 F.3d 939 (9th Cir. 2014)(same); United States v. Petrovic, 701 F.3d 849 (8th Cir. 2012)(same); see also People v. Counterman, 497 P.3d 1039 (Colo. Ct. App. 2021) (same), cert. granted, _ U.S. _ (2023).

In sum, our Founders envisioned a nation in which both citizen and sovereign alike play important roles in protecting the innocent against violent criminals. Our decision today is consistent with that vision. I concur.

Mere restraining orders have little due process. Fundamental constitutional  rights may not be taken from individuals on mere accusations.

A Zacky Rahimi is currently in custody awaiting trial on  several felony charges, including three Aggravated Assault with a Deadly Weapon, in Tarrant County, Texas.  Tarrant County has a hold to notify the U.S. Marshals Service before he is released. As a prisoner, he does not have legal access to weapons. He is likely to be convicted of at least one of he felony counts.  He is likely the same Zachey Rahimi in the Federal Fifth Circuit case.

 

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

Gun Watch

 

MD: Spouse of Cheif Master Sergeant of Air Force Fires at Intruder

WASHINGTON (AP) — The intruder who breached Joint Base Andrews, the home of Air Force One, reached the residence of one of the Air Force's top leaders before her spouse opened fire, the air base said Tuesday.

Chief Master Sergeant of the Air Force JoAnne Bass confirmed that the intruder had reached her home on Monday. The chief master sergeant is the Air Force's top enlisted leader.

 

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TX: Harris County Robbery Suspect Shot, Killed by Victim

Based on the preliminary investigation, the sheriff’s office says they believe a man and a woman were trying to rob another man at the complex.

The man who was being robbed was able to get away, went to his truck, and got a gun, investigators say.

The sheriff’s office says, when he was confronted again by the suspects, he shot the male suspect.

 

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KS: Gunfight in Principlal's Office: 19-Year-Old Pleads Not Guilty

Elmore is accused of shooting school resource officer Erik Clark in the March 4 shooting in the assistant principal's office at Olathe East High School.

Prosecutors allege Elmore, who was a senior at the time, was called to the office when he refused to allow school officials to search his backpack after reports that he had a gun.

Clark and Elmore shot each other during the scuffle, according to court documents. The assistant principal was hit by bullets “most likely” shot by Clark during the confrontation, investigators said.

 

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MT: Intruder, Shot by Homeowner, Dies at Hospital

“A homeowner encountered a male attempting to gain access into his residence. The homeowner gave multiple warnings advising the male to stop. The male continued to enter the residence, broke through his screen door, the front entrance, where he gained entrance into the residence. The homeowner then shot him multiple times," Missoula Police Department spokeswoman Whitney Bennett told MTN News.

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OK: Ban on Gun Possession for Marijana Users Unconstitutional under Second Amendment

On May 20, 2022, the defendant, Jared Michael Harrison, was pulled over by the Lawton Policed department for an alleged traffic violation. The officer smelled marijuana. Officers searched the car and found some marijuana and a pistol. Harrison was on bond from Texas, and was wearing an ankle monitor. 

Harrison was arrested and is awaiting trial. There are pending state charges. On August 17, 2022, a federal grand jury returned an indictment for possessing a firearm with knowledge he was an unlawful user of marijuana, in violation of Statute 18 U.S.C. § 922(g)(3).

Harrison argued, among other things, the charge violated the Second Amendment under the Supreme Court Bruen decision.  The United States District Court for the Western District of Oklahoma, Judge Patrick R. Wyrick presiding, heard the case.  The court is in the jurisdiction of the Tenth Circuit Court of Appeals.

The Court found the prohibition on the possession of firearms, as an unlawful user of marijuana, was unconstitutional, because there is no historical tradition of removing the right to keep and bear arms from people who use intoxicating substances. Here is a summation of the Court order. From the order, p. 1:

Before the Court is Defendant Jared Michael Harrison’s Motion to Dismiss the Indictment (Dkt. 17), which argues that the statute he is charged with violating, 18 U.S.C. § 922(g)(3), is unconstitutionally vague, in violation of the Due Process Clause, and unconstitutionally infringes upon his fundamental right to possess a firearm, in violation of the Second Amendment. For the reasons given below, the motion is GRANTED.

Here is the exact wording of the statute in question.  From Law.cornell.edu, 18 U.S.C. § 922(g)(3):

 (g) It shall be unlawful for any person—

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The court noted the ban on possession is fairly recent, and was not enacted until 1986. From the opinion p. 5: 

Section 922(g)(3) does not have deep roots; it wasn’t enacted by Congress until the Gun Control Act of 1968. The statute initially prohibited any individual who was “an unlawful user of or addicted to marihuana or any depressant or stimulant drug . . . or narcotic drug” from receiving a firearm, but it was amended in 1986 to broadly prohibit the receipt or possession of a firearm by any person who “is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).”  In its modern form, § 922(g)(3) thus strips a person of their fundamental right to possess a firearm the instant the person becomes an “unlawful user” of marijuana. And in the United States’ view, all users of marijuana are “unlawful users.”

Without a historical tradition of infringing on rights protected by the Second Amendment of those who use intoxicating substances, the statute is unconstitutional. From the order; p. 7

The question here is thus whether stripping someone of their right to possess a firearm solely because they use marijuana is consistent with the Nation’s historical tradition of firearm regulation. If it is not, then § 922(g)(3) cannot be constitutionally applied to Harrison—no matter the reasonableness of the policy it embodies.

The court goes on to show, while there were occasional laws prohibiting possession or use of firearms while intoxicated, there were no laws prohibiting possession of firearms merely because the possessor used intoxicating substances.  The previous laws, which were not common, only prohibited carry or use in very narrow circumstances, sometimes only on very narrow dates, such as December 31 to January 3rd. 

In short, there is no historical tradition of banning the right to keep and bear arms, simply because a person uses intoxicating substances. The conclusion of the court is clear.  From the order:

Because the Court concludes that 18 U.S.C. § 922(g)(3) violates Harrison’s Second Amendment right to possess a firearm, the Court declines to reach Harrison’s vagueness claim. The Motion to Dismiss the Indictment is GRANTED. Accordingly, the Indictment is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED this 3rd day of February 2023.

The court noted the late provenance of the ban, which did not occur until 1986. This shows how the slippery slope works in practice. There was no such ban in 1938, when the first list of federal prohibited providers was created. The "users or addicted to" group was added in 1968. It only applied to receiving firearms, not to possessing them. Finally, the group was significantly enlarged in 1986, and the prohibition enlarged to include mere possession.

The slippery slope facilitating many infringements on rights protected by the Second Amendment has moved court jurisprudence a long way since 1942. The Supreme Court has an originalist and textualist majority for the first time in 80 years. They are beginning to uphold the Second Amendment as written.

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

Gun Watch

TX: 32-Year-Old Hispanic Man Shot Attempting to Rob Convenience Store

A 32-year-old Hispanic man was shot while attempting to rob a convenience store in northeast El Paso Monday, according to El Paso police sergeant Robert Gomez.

The shooting took place at the DK convenience store at 5201 Fairbanks Drive around 12:28 p.m.

 

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VA: Roanoak Food Lion Shooting Appears to be Self Defense

ROANOKE, Va. (WDBJ) - WDBJ7 has learned new details about a shooting over the weekend at a Food Lion in Northwest Roanoke. Roanoke City’s commonwealth’s attorney told WDBJ7 the suspect was released because there is a substantial argument for self defense.

Saturday night, there was a disagreement at the store on Peters Creek Road. Investigators say one man threw a punch at another man, who then took out his gun and shot several times.

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Details of Bear Defense with .22 in 1962, Mentioned by Louis Kris, Revealed

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 Image courtesy of Rock Island Aucitons

In the research done by this correspondent and colleagues, much credit must be given to those who sent in detailed information about bear attacks and pistol defenses.

As incidents of defense against bears with pistols mounted, some did not have enough information to be considered documented. One of those was mentioned by Warden Louis Kis in "More Alaskan Bear Tales" by Larry Kaniut on page 276. In previous articles it was mentioned as an incident requiring more information. Reader were asked to provide information. The information was presented thus:

1. Early 1960s, North Fork of the the Flathead river in Montana, .22 H&R 9 shot revolver, grizzly bear.


The worker approached a bear in a black bear snare. The bear charged the worker, who shot it with the .22 revolver. The bear died, but it took some time to do so, as told by game warden Louis Kis. p.  276, More Bear Tales

There was no name of a person who did the shooting, no date, no specific location.

The request for more specific information has been answered.

Allen Schallenberger is a long time Montana resident. He was a helper of Chuck Jonkel in 1963. Jonkel had killed the grizzly bear the previous year, in 1962. Chuck told Allen about the incident and allowed Allen to shoot the H&R revolver he had used to kill the grizzly. The incident was well known in Montana Fish & Game, which is how Lois Kis heard about it decades later.

"It is not surprising that Kis got most of the story correct, but did not have all the details, and got one or two things wrong.  Allen continued with Fish & Game  and did significant grizzly bear research in Montana. Here are excerpts from the letter by Allen Schallenberger:

 I assisted on black bear research trapping with Chuck Jonkel, MT Fish and Game Dept. for most of June 1963 on the head of Big Creek and other smaller drainages such as Hallowat Creek and Skookolleel Creek, all north of Whitefish on the North Fork of Flathead River. Chuck and his wife and small son James lived in Whitefish. I believe the Aldrich snare Louis Kis talked about was incorrect. It was used later in Montana. I used it on grizzly bear research in the 1970’s. We were using steel, double spring bear traps with an approximate 3/4 inch gap in the jaws in 1963. They were fastened to a double hook drag with approximately 6 feet of log chain. We lived in a 16 FG camp trailer which a grizzly bear had tried to enter by ripping all the aluminum siding off one side. He did not make it through the plywood. I stayed there alone whenever Chuck went home to Whitefish. We ran the trap line with an FG Jeep Wagoneer. 

The incident with the grizzly bear happened in the 1962 spring trapping season. Another worker was helping Chuck then. I met the guy once but have forgotten his name. A 500-pound male grizzly bear was caught in the steel jawed trap and took it and the tangled up drag about two miles where the bear hid in an aspen patch. Chuck and his helper tracked the grizzly on foot. The helper was armed with a 12 gauge shotgun and all Chuck had was his nine shot Harrington and Richardson Model 939, double action, .22 revolver in a holster on his belt.The grizzly charged and Chuck stood still waiting for his helper to shoot. He looked around and the helper was running off with the shotgun. Chuck turned to run and tripped over a tree root and fell to the ground. The 500-pound male grizzly ran up to Chuck and stood up on his hind legs over him with the trap on a front paw. Chuck pulled out his .22 revolver and fired all nine shots in it. Some missed, some glanced off the grizzly’s skull and one went into an eye socket, killing the bear. I shot that .22 when working for Chuck in 1963. It was first manufactured in 1958. 

Allen Schallenberger believes the bear trap was probably a Newhouse Number 150. Such traps with chain and drag are reported to be about 21 and a half pounds.  The traps used in the research did not have teeth, and had a 3/4 inch gap between the jaws.  Allen says they did not do much damage to the bears.

Over 20 lbs of steel on a bears paw would be a fearsome weapon, even if used unintentionally.

It is entirely believable a .22 Long Rifle slug could be fired into a big bear's brain, killing it. The most famous case was Bella Twin killing a world record grizzly with a single shot .22 rifle in 1953.  She is reported to have used .22 long cartridges.

Now we know Chuck Jonkel killed a 500 lb grizzly boar, with a .22 pistol, in self defense, on Big Creek on the North Fork of Flathead River, in the spring of 1962.

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

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WA: Father Attempts to De-escalate at Dog Park, Shoots, Kills Attacker

Multiple people called 911 around 2:30 p.m. to report a man was acting erratically at the dog park at 1399 S. 48th Ave., according to a Yakima Police Department news release. 

The man, later identified as Daniel Ortega, 22, of Yakima, was interacting with another man and his child at the park, and "attempted to endanger the life of the small child with his words and actions," the police news release said.

The father told Ortega to leave his family alone, and attempted to leave the park, the release said. When his attempts to de-escalate the incident failed, the 28-year-old Yakima man "discharged his legally owned firearm in defense of himself and his child," the release said.

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MT: Billings Woman Shoots two men Who attacked Her

BILLINGS - A Billings woman shot two men who attacked her outside her residence.

Billings police said Monday the 25-year-old woman shot the two men, ages 29 and 37, in an apparent case of self-defense.

"As far as the victim using a firearm for self-defense the law is pretty clear on people’s right to use self-defense when they can articulate a threat to themselves or others," police Lt. Matt Lennick said in a statement about the incident to Q2. "Like all cases of this nature the case will be reviewed by the County Attorney’s Office and they could bring fourth criminal charges against the shooter if they deemed the threat didn’t meet the level of force used."

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SHOT Show: Browning New .22 LR, 45 grain, Subsonic, Pistol Load

At the SHOT Show, Browning ammunition has introduced a subsonic, 45 grain, suppressor optimized .22 Long Rifle load for pistols. It uses the heavy, 45 grain bullet to increase energy from a pistol at subsonic velocities. It is loaded to reliably stay subsonic from pistols. If fired in rifle length barrels, it may reach supersonic velocities, with the resultant sonic barrier snap produced by bullets exceding the speed of sound.

Browning ammunition is produced by Winchester, which does the research, testing, marketing, and production, branded with the Browning name.  

This is the first introduction, of which the author is aware, of .22 Long Rifle rimfire being produced for optimum subsonic energy from pistols.  It is optimized for suppressor use, with black copper plated bullets to reduce fouling. According to this correspondent's calculations, a 45 grain bullet at 1060 feet per second, produces a bit more than 111 foot-pounds of energy. That is about 9% more energy than a CCI standard velocity 40 grain bullet produces at the muzzle of a .22 rifle.  On the boxes produced for the SHOT Show, the graphic designers mistakenly placed an energy number of 100 foot-pounds. The error will be corrected before the new ammunition is shipped out.

The energy level and bullet weight makes the cartridge an interesting contender as a self defense cartridge for .22 pistols. In this correspondent's opinion, what is wanted in a .22 for self defense, is penetration. The 45 grain bullet is 12.5% heavier than the standard 40 grain bullet. It is not a hollow point, so it should penetrate about 12.5% more than the 40 grain bullet, at the same velocity. Theory needs to be tested to validate the concept, of course.

Optimizing the round for suppressed pistols may mean the powder burns a little faster. This would help suppressors reduce the sound signature a bit. The concept behind the cartridge is sound, pun intended.

This correspondent looks forward to testing some of the ammunition, once it becomes available. A conversation with Jimmy Wilson, Winchester Product Manager, indicated it could reach dealers in early summer.

Winchester produces a similar product for rifles. It is a suppressor optimized .22 Long Rifle, 45 gr black copper plated, bullet, rated at 1060 fps from rifle barrels. The one box this correspondent obtained last year appeared promising, but no more has been seen. The product manager said they only do about one production run a year, and another is expected this spring. 

Suppressors are becoming more and more common in the United States, in spite of the heavy regulation and extreme taxes on these safety devices. The last data from the ATF, over two years old, showed about 2.5 million legal suppressors in the USA. There could easily be more than 3 million now. Once you have used a suppressed .22, the utility of these devices becomes obvious. They are excellent training devices for new shooters, and help preserve hearing throughout a lifetime.

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

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KS: Salinas Man Fires Shots to Scare off Intruder

When they arrived, they found a 44-year-old Salina man with a Glock handgun standing outside his residence. The man told police that he had been in his residence, into which he had moved approximately a week before, when another man entered the residence through a basement door.

The intruder was described as being skinny with long hair and wearing a black jacket and blue jeans. The resident told police the intruder was holding something in his hand, which he thought could either be a weapon or a flashlight.

The resident fired a total of three shots inside his home to scare off the intruder, who did flee the scene, Forrester said. Police do not believe that the intruder was shot.

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Self Defense Case Builds Trust in the Justice System

In Ada, Oklahoma, about 9 p.m. on December 31, a few hours before the new year, Jassmone Ashton was minding his own business outside the Sunset Market Valero gas/convenience establishment. Jassmone had very important business to watch: protecting his life. He had filed a protective order against Denavarie Brooks in 2021. Jassmone is 35 years old. Denavarie Brooks was 37 years old. It is not clear what the issues between them were.

According to police, who did a 10 day investigation, and intensely examined surveillance video, Jassmone was pumping gas at the Valero store before the shooting. From the prosecutor, District Attorney Erik Johnson:

"It's obvious by watching the video that Denavarie Brooks came into that gas station. He had passed Jasmonne and witnessed him at the gas pumps and then pulled back around, pulled in aggressively in an aggressive manner, came up, and approached Jasmine from behind," Johnson said.

On January 12, 2023, District Attorney for District 22, Erick Johnson, stated he will not file any charges against Jassmone Samuelle Ashton. From theadanews.com: 

Johnson indicated he believes it was a matter of self-defense and made his determination after spending the past 10 days reviewing all the evidence available, which included watching video footage of the shooting dozens of times.

“I don’t make these decisions in a vacuum,” Johnson said, “ultimately, this is my decision, no one else’s. No one else has this responsibility to make this decision. (However), I have very talented and experienced investigators in my office, I have the benefit of having a professional police department assist me in making this determination, and I’ve got experienced prosecutors who also reviewed all this evidence, and we all came to the same conclusion. So, it was my call and my call alone, but I believe it was the right call.”

In Oklahoma, as in many states, a person who is legally in a public place, is not required to flee from an attacker. However, in this case the prosecutor believed Ashton did not really have a choice, because of the speed of Brooks approach. 

The prosecutor stated, during the investigation, they discovered other people who had been threatened by, and had altercations will, Denavarie Brooks. There was a history of Brooks having violent altercations with Jassmone Ashton as well, which was the reason for the restraining order in 2021. 

At the gun violence archive, the categorization of the shooting has not been changed as of this writing.  From  the gunviolencearchive.org:  the shooting is listed as "Shot - Dead (Murder, accidental, suicide). There does not appear to be a "justified" block in this incident.

Opinion: 

The "woke" narrative is a black man, who defends themself with a firearm, will be either immediately executed by police, or locked up without any serious investigation.

This case shows  an intensive investigation, due dilligence, and a decision by the prosecutor not to charge the man who defended himself. 

Oklahoma is a "constitutional carry" state, where no permit is required to carry a firearm, openly or concealed. The firearm was in the victim's vehicle. The surveillance video showed the whole incident.

How many people have been sent to prison, simply because the laws in their state infringed on the rights protected by  the Second Amendment, to keep and bear arms for their defense? 

Treating self defense cases with respect for the law and the facts builds trust in the justice system.

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

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