Punching Back Twice As Hard

With the settlement in the Defense Distributed and SAF's lawsuit against the State Department, the gun prohibitionists have gone bonkers. They realize, correctly I might add, that the ability to make one's own firearm is the death knell for gun control. Particularly egregious have been the actions of the Attorney General of New Jersey, Gurbir Grewal, and the City Attorney of Los Angeles, Michael Feuer. Both have sent threatening letters to Cody Wilson and Defense Distributed demanding he not put his CNC and 3-D printing files online.

In response, Defense Distributed and the Second Amendment Foundation filed suit yesterday in US District Court for the Western District of Texas naming both of these individuals in both their official and individual capacities. The suit seeks declaratory and injunctive relief against their treats as well as for compensatory damages due to lost advertising fees and attorney fees. I anticipate the Commonwealth of Pennsylvania will be added to this suit as they have sought a temporary restraining order to prevent Defense Distributed from making their files available to Pennsylvania residents. As with LA and New Jersey IP addresses, those from Pennsylvania will be blocked for the time being.

The complaint says that the defendants have waged "an ideologically-fueled program of intimidation and harassment" against Defense Distributed. It goes on to say:

Alas these state and municipal officers from across the country cannot veto Defense Distributed’s constitutionally-protected and federally-licensed speech. The Defendants’ threatened legal actions violate the First Amendment speech rights of Defense Distributed and its audience, including SAF’s members; run afoul of the Dormant Commerce Clause; infringe upon the Second Amendment rights of those who would make use of the knowledge disseminated by Defense Distributed; constitute a tortious interference with Defense Distributed’s business; and are in any event, federally pre-empted by Congress’s export control laws as well as Defense Distributed’s export license, by which the State Department has explicitly authorized the speech that the Defendants are seeking to silence. Plaintiffs are entitled to declaratory and injunctive relief, damages, and attorney fees.

The actions of the officials of New Jersey, Los Angeles, and now Pennsylvania are an assault on the First and Second Amendments. Moreover, the suit alleges their actions interfere in matters where Federal law is supreme including interstate commerce and export control law. It should be noted that this court has already turned down an attempt by a coalition of gun prohibitionists groups to interfere in the settlement between Defense Distributed and the State Department.

The attorneys for Defense Distributed are Alan Gura and Prof. Josh Blackman.

The Green Wall Between NC And Tennessee

I had to meet with a couple of clients today in the Tri-Cities area of Tennessee and Virginia. Driving up Interstate 26 and crossing into Tennessee at Sams Gap (Elevation 3,760) it struck me that the border between Tennessee and North Carolina is essentially a green wall of mountains from the south to the north. You can see some of the ridges of my drive on this webpage and in the picture below.

In TN looking NW towards Johnson City

When I cross the state line on Interstate 40 from Haywood County, NC to Cocke County, TN, I have to drive through the Pigeon River gorge. Again, it is a green wall.

It is no wonder that the Appalachian Trail runs along the state line for about 200 miles.

The roughness of the borderlands between the two states got me to thinking about how determined and hardy the first white settlers who crossed from NC to TN must have been. It is no wonder that the state of Tennessee (or the State of Franklin) was settled first by Virginians and not by North Carolinians.

The first settlement in Tennessee; that is, the North Holston settlement in the present county of Sullivan, and the South Holston settlement, on the Watauga, in the present county of Washington, were effected between the treaty of Hard Labor in 1768, and the experimental survey of the Virginia-North Carolina line in 1771, while all the territory so settled was still believed to be a part of Virginia. There are geographical reasons sufficient to explain why the founders of these settlements should have come, in the main, from Virginia rather than from North Carolina. In the first place, the Blue Ridge that separates Virginia from Tennessee numbers among its range of towering hills Mt. Mitchell, the highest peak east of the Rocky Mountains, and was at that time almost impassable.a Even as experienced and able woodsman as James Robertson, when crossing the range in 1770, was lost in the trackless mountains and wandered, without food, for fourteen days; and finally owed his extrication to his good fortune in meeting up with some hunters, who relieved his distress and enabled him to reach his home in safety. On the other hand, the Appalachian Valley was an easy and natural route from Pennsylvania and Virginia to the Southwest. When the watershed changed from the Alleghany Mountains to the Blue Ridge, it left the valley open, like the mouth of a funnel, to empty the population from the eastern watershed in Virginia to the western watershed in North Carolina; whose north line had not yet been located and was still unknown.

Until I read this, I didn't realize that the westward migration into Tennessee actually was more of southwestward migration and not due west from the coastal plains and Piedmont sections of North Carolina. Nonetheless, those early settlers of the Volunteer State, whether from Virginia, Pennsylvania, Maryland, or North Carolina were hardy men and women and I salute them.

A Win For Carry In The 9th Circuit

I know you are probably saying, "what the hell? The 9th Circuit?" It is true. Today the 9th Circuit issued its opinion in Young v. State of Hawaii. The 2-1 decision found that the Second Amendment does protect the right to openly carry a firearm in public for self-defense. You will remember in Peruta v. San Diego that the 9th Circuit ruling en banc said there was no constitutional right to carry concealed in public and that the Supreme Court refused to grant certiorari on appeal.

From Reuters:

The ruling issued by a three-judge panel on the 9th U.S. Circuit Court of Appeals, based in San Francisco, came a year after the U.S. Supreme Court declined to rule either way on the carrying of guns in public.

Two of the three 9th Circuit judges voted to reverse a decision by the U.S. District Court in Hawaii that state officials did not infringe on the rights of George Young, the plaintiff, in twice denying him a permit to carry a gun outside.

“We do not take lightly the problem of gun violence,” Judge Diarmuid O’Scannlain wrote in Tuesday’s ruling. “But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense.”

 I would be extremely surprised if this decision does not go to an en banc hearing in the 9th Circuit.

I have not had time to read the whole decision but you can read it here.

Tidbit From Judge Kavanaugh's Questionnaire

All nominees for Federal judicial nominations submit answers to a standardized questionnaire from the Senate Judiciary Committee. The questionnaire has answers to questions regarding everything from date of birth and education to significant cases in which the nominee participated.

The questionnaire for Judge Brett Kavanaugh has been received by the Senate Judiciary Committee is now online. Scanning through it I found this tidbit. Question 13 (i) asks the nominee to provide citations to significant opinions that he or she authored on federal or state constitutional issues.

Number one on Judge Kavanaugh's list is his dissent in Heller II (Heller v. District of Columbia, 670 F.3d 1244 (D.C. Circuit, 2011) (Kavanaugh, J., dissenting). These citations are not listed in chronological order which would seem to indicate that Judge Kavanaugh considers this dissent one of his most important opinions.

I like that and it speaks well to where he stands on the Second Amendment. It gives me hope that future Second Amendment cases might just get a hearing once Judge Kavanaugh becomes Justice Kavanaugh.

What Wonderful Dissents In Mance V. Holder (now Sessions)

Mance et al v. Holder et al was a case brought in Texas that sought to overturn the Gun Control Act of 1968's ban on the sale and immediate transfer by FFLs of handguns to out of state purchasers. It was a win at the District Court level when Judge Reed O'Connor of the Northern District of Texas ruled that part of the Gun Control Act unconstitutional.

Unfortunately, the government appealed their loss to the 5th Circuit Court of Appeals and won in January. The plaintiffs including the Citizens Committee for the Right to Keep and Bear Arms appealed and sought an en banc review.  This was turned down in an 8-7 vote that was released on Friday.

What is most notable about this loss are the dissents from this decision. They make it abundantly clear that there are still some appellate level judges who value the Second Amendment.

Judge Jennifer Walker Elrod, a George W. Bush appointee, had this to say in part:

Simply put, unless the Supreme Court instructs us otherwise, we should apply a test rooted in the Second Amendment’s text and history—as required under Heller and McDonald— rather than a balancing test like strict or intermediate scrutiny.

Judge Elrod then ends her dissent with a quote from Judge Brett Kavanaugh's dissent in the Heller II case.

Following Judge Elrod's dissent is one from Judge Don Willett that is, in my opinion, absolutely wonderful. I won't quote the whole thing but I feel like it.

Constitutional scholars have dubbed the Second Amendment “the Rodney Dangerfield of the Bill of Rights.” As Judge Ho relates, it is spurned as peripheral, despite being just as fundamental as the First Amendment. It is snubbed as anachronistic, despite being just as enduring as the Fourth Amendment. It is scorned as fringe, despite being just as enumerated as the other Bill of Rights guarantees.

The Second Amendment is neither second class, nor second rate, nor second tier. The “right of the people to keep and bear Arms” has no need of penumbras or emanations. It’s right there, 27 words enshrined for 227 years.
The core issue in this case is undeniably weighty: Does the federal criminalization of interstate handgun sales offend We the People’s “inherent right of self-defense?” This merits question turns upon a method question: What level of judicial scrutiny applies to laws burdening the Second Amendment? In other words, when the government abridges your individual gun-ownership rights, how generous is the constitutional strike zone?

Judge Willett goes on to note that this case deals with a matter of exceptional importance and that it adds a significant methodological component in how Second Amendment cases should be decided - tiers of scrutiny vs. "text, history, and tradition".

Finally, Judge James Ho takes issue with what he calls a prophylactic ban saying it is not narrowly tailored to a compelling government interest. He also states that he would have voted to affirm the District Court's judgement. His dissent may also be one of the first times the word "hoplophobia" was used in a decision.

No one disputes that the Government has a compelling interest in preventing dangerous individuals from purchasing handguns. But as the district court held, and the panel properly assumed, handgun restrictions must be narrowly tailored to serve that interest. Law-abiding Americans should not be conflated with dangerous criminals. Constitutional rights must not give way to hoplophobia.

The ban on interstate handgun sales fails strict scrutiny. After all, a categorical ban is precisely the opposite of a narrowly tailored regulation. It applies to all citizens, not just dangerous persons. Instead of requiring citizens to comply with state law, it forbids them from even trying. Nor has the Government demonstrated why it needs a categorical ban to ensure compliance with state handgun laws. Put simply, the way to require compliance with state handgun laws is to require compliance with state handgun laws.

The Government’s defense of the federal ban—that state handgun laws are too complex to obey—is not just wrong under established precedent, it is troubling for a more fundamental reason. If handgun laws are too complex for law-abiding citizens to follow, the answer is not to impose even more restrictive rules on the American people. The answer is to make the laws easier for all to understand and follow. The Government’s proposed prophylaxis—to protect against the violations of the few, we must burden the constitutional rights of the many—turns the Second Amendment on its head. Our Founders crafted a Constitution to promote the liberty of the individual, not the convenience of the Government.

I would love to see this case come before the Supreme Court with a Justice Kavanaugh on it. I doubt he would need to recuse himself just because his own words were quoted in the dissents.

Will This Be Considered A School Shooting?

It seems any act of violence with a firearm in or near a school is considered a "school shooting". It matters not that the act of violence had nothing to do with the school, happened after hours, or involved no one affiliated with the school as either the shooter or the victim(s).

By now many, if not most, have seen the shootout during a car chase between Las Vegas Metro Police and two suspects in black Ford Expedition. All the major mainstream news channels have shown video from it. The shootout featured one officer shooting at the fleeing suspects through his windshield. This was after the suspects started shooting at the police chasing them. If you are like me, you worried that he would have permanent hearing loss.

You can watch and listen to the chase from the body camera footage of Officer William Umana who is a 17 year veteran of LVMPD.


At the end of the chase you can see the SUV crash into a wall. That wall is part of Howard Hollingsworth Elementary School in Las Vegas.

Thus the question will be do the gun control prohibitionists and their media allies consider this a "school shooting"?  Obviously it isn't but that hasn't stopped them in the past.

SHOT Show Expanding

The Las Vegas Review-Journal is reporting that the SHOT Show will be expanding their venues in order to allow more exhibitors. While the Sands Expo Center will still be the primary location through 2027, they will expand to the MGM Grand Convention Center in 2020 and to the planned Caesars Forum in 2021.

The National Shooting Sports Foundation recently signed a contract with MGM Resorts International and Caesars Entertainment Corp. to bring the four-day trade show to their future convention spaces, said Chris Dolnack, senior vice president and chief marketing officer for the Connecticut-based foundation.

The SHOT Show has a number of companies on a waiting list for either exhibition space or for the chance to expand their booths. Currently, they have about 1,000 companies waiting for space according to Chris Dolnack who heads the SHOT Show. The amount of space will expand from 650,000 square feet of exhibition space to over 950,000 square feet of space by 2021 when the Caesars Forum comes online.

Scheduled to open in December 2018

Dolnack made the point that the SHOT Show is not just firearms companies but also ammunition, optics, and other manufacturers.

Exhibitor growth is coming from cartridge, equipment and optics manufacturers as well as producers of accessories, he said. More than 400 equipment manufacturers exhibited at the show this year.

“By further diversifying the show and having a larger number of new companies, we will attract retailers every year that may currently come every other year,” Dolnack said by telephone on Tuesday.

“No one ever walks into a show and says ‘show me what is old.’ This will give retailers the opportunity to see several hundred new companies and pick up some more products.”

The Caesars Forum is expected to cost approximately $375 million and open sometime in 2020. The Forum will be located behind LINQ with the Flamingo and Harrahs on either side of it.

Artist rendition from Caesars Entertainment

 I would imagine that the convention industry in Las Vegas is pretty excited by this. If you think about it, you will now include most of the length of the Strip in the SHOT Show. It will be anchored by the Sands Expo on the north and the MGM Grand Convention Center on the south with Caesars Forum occupying a mid-Strip location.

I think this is a great expansion but the amount of walking will increase exponentially. I know I usually walk miles daily at the SHOT Show and this will only increase it. I still wish they'd consider holding it in Orlando or other eastern US location but given the contract with Sands goes through 2027 I can keep wishing.

Do You Want Sunday Hunting On Game Lands In NC?

The North Carolina Wildlife Resources Commission is conducting an online survey now through the end of August to determine if there is interest in opening up certain public game lands to Sunday hunting. The restriction on Sunday hunting with a firearm had been in place since 1869. However, in 2015, the General Assembly removed this restriction from private land. In 2017, the General Assembly gave public land managers including the Wildlife Resources Commission the authority to implement new options for hunting on public lands including game lands.

My own feelings are that banning Sunday hunting on game lands discriminates against those for whom their Sabbath is a day other than Sunday. This would include Seventh Day Adventists and Jews among others. Furthermore, the average work week is Monday through Friday which leaves Saturday as the only hunting day for many people. Finally, it is in the public interest to encourage the growth of the hunting population for a variety of reasons including not the least of which that hunters support conservation management with their licenses and ammo purchases.

To take the survey, go here. I see no restriction that says it is limited to North Carolinians.