Category Archives: Constitution

This article appeared online at TheNewAmerican.com on Friday, July 29, 2022:  

Arizona Attorney General Mark Brnovich submitted a complaint on Wednesday against the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Attorneys general from 16 other states, along with some gun-rights groups, joined him in the complaint.

At issue is the ATF’s attempt to prohibit the making of “ghost guns” by private individuals by declaring the parts needed to make them as firearms themselves and therefore subject to ATF regulation.

As Brnovich noted, the ATF seeks to “regulate unfinished, non-functional parts as if they [are] complete firearms.” This move “overshoot[s] the authority granted to it by Congress. The rulemaking is unconstitutional.”

The issuance of the agency’s “final rule,” says the complaint,

unconstitutionally subverts Congress’ authority, exercising quintessentially legislative powers in a manner that could never pass either (let alone both) houses of Congress today, which is precisely why defendants have no intent whatsoever to ask for legislative authorization to take such unprecedented actions.

In other words, the ATF action is another example of the administrative state — the unconstitutional fourth branch of government — run amok.

The complaint makes clear, from the agency’s own words, that its purpose is to eliminate ghost guns altogether by regulating their parts into oblivion:

The Final Rule can be viewed as an effort by ATF to eliminate the market for 80% frames and receivers (and DIY homemade firearms) entirely, through arbitrary standards, intimidation, and threats of criminal charges for vague federal crimes.

 

In fact, ATF admits that the Final Rule “will reduce the overall supply and demand for … firearm parts kits,” and “estimates … that 98% of such companies “will end up dissolving their businesses”….

 

The Final Rule can best be understood as an effort to eliminate entirely the market for DIY firearm parts that can be manufactured into functional firearms by law-abiding, “do-it-yourself” gun owners.

The 161-page complaint declares that

The Final Rule upends existing federal gun law, imposing onerous burdens on federal firearms licensees and private gun owners alike, and creating out of thin air a new federal crime with respect to what ATF terms “privately made firearms,” all in clear disregard for the statutory text that Congress enacted.

To create that “new federal crime,” the ATF first must create a new definition of ghost gun. The new definition reads:

Privately made firearm (PMF): A firearm, including a frame or receiver, completed, assembled, or otherwise produced by a person other than a licensed manufacturer, and without a serial number placed by a licensed manufacturer at the time the firearm was produced.

Under the new definition, any PMF that doesn’t have a serial number (none of them do) automatically becomes illegal to own.

The complaint states that the “ATF does not have the power to create new crimes,” just as the Executive Branch cannot, either through the president or one of its agencies, create criminal statutes. Under the Constitution, only Congress can do that:

Defendants may only exercise the authority conferred upon them by statute, and may not legislate through regulation in order to implement [the agency’s] perceived intent of Congress or congressional purpose behind federal gun control statutes.

The complaint spells out how the Constitution works, and how the ATF works to violate it:

Article I, § 1 of the U.S. Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

 

Article I, § 7, Clause 2 of the Constitution mandates that “[e]very Bill … shall have passed the House of Representatives and the Senate” and “shall … be presented to the President of the United States … before it become a Law….”

 

The [ATF’s] Final Rule violates these provisions, usurping legislative powers. The Final Rule represents an attempt by an administrative agency to implement policy change and enact omnibus federal gun control legislation through bureaucratic regulation, rather than through legislation.

The complaint provides a helpful analogy:

The Constitution protects the corresponding right to sell firearm components, magazines, ammunition, and accessories, just as the freedoms of speech and press protect the right to buy and sell newspapers, books, paper, and ink.

 

Indeed, it would not mean much if there was a right to make a firearm, but no ability to purchase the materials necessary to do so.

The complaint, filed in the U.S. District Court of North Dakota, asks the court to rein in the ATF by declaring that

the Final Rule is unlawful and an ultra vires [“beyond the powers”] agency action and of no force and effect;

 

the Final Rule is an act “not in accordance with law” and of no force and effect;

 

the Final Rule violates the Separation of Powers doctrine embodied in the United States Constitution; and

 

the Final Rule violates rights protected by the Second Amendment and is of no force and effect.

Unfortunately, the complaint doesn’t address the issue of the constitutionality of the ATF itself, or of Congress’ original abrogation of the separation of powers doctrine by granting legislative authority to the ATF in the first place. As the complaint itself states, in its effort to perform an end run around the constitutional limitations built in by the Founders,

ATF has created an informal definition, within another informal definition, within a regulatory definition, within another regulatory definition, within a statutory definition, of a statutory term.

This will continue until such time as the ATF is abolished, or the Second Amendment is abolished by it.

This article appeared online at TheNewAmerican.com on Wednesday, July 27, 2022:  

Following the Uvalde, Texas, mass shooting, Delaware’s Democratic Party — which controls the offices of governor, secretary of state, attorney general, and both chambers of the state’s legislature — rushed through nine gun-control bills in response. They largely ignored not only protections guaranteed by the Second Amendment to the U.S. Constitution, but also broader protections guaranteed by Article 1, Section 20 of the Delaware Constitution: “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.”

And they largely ignored as well the recent ruling by the Supreme Court in New York State Rifle & Pistol Association v. Bruen. Following that ruling, the high court remanded (returned) pending lawsuits impacted by that ruling to the states to comply accordingly.

On Wednesday, the Delaware State Sportsmen’s Association and several other groups and individuals sued Delaware state officials charged with enforcing the new law, asking the U.S. District Court of Delaware to render the law unenforceable.

The Delaware law makes it illegal to make, sell, purchase, or possess so-called assault weapons, including semi-automatic handguns and semi-automatic rifles such as the immensely popular AR-15 platform. It also bans possession of “large capacity” magazines, arbitrarily defined as containing more than 17 rounds of ammunition.

The law provides a long list of the newly-prohibited handguns and rifles and then, to make sure that if any were not included in the list they would also be banned, defined “assault” rifles as having detachable magazines and pistol grips, a flash suppressor, having a barrel shroud, and — unbelievably — the capability of launching grenades as well.

The lawsuit declares that “the State of Delaware recently enacted in law [a bill] which flouts the fundamental civil rights of Delawareans … by making them criminals — felons — for exercising one of their most exacted rights enshrined in both the Delaware Constitution and the United States Constitution.”

House Bill 450 and its companion Senate Bill 68 were signed into law on June 30 (the Uvalde shooting occurred on May 24) by Democrat Governor John Carney, who said at the time that “we have an obligation to do everything we can to prevent tragedies like we’ve seen around the country from happening here in Delaware.”

He said nothing about how similar bans have failed to prevent such shootings, nor did he say anything about the mental states of the shooters. It was all about inanimate objects and punishing their innocent owners in order to make a political statement.

From the lawsuit:

When House Bill 450 was signed into law on June 30, 2022, the State of Delaware criminalized possession, transportation and sale of common firearms used by law abiding citizens for lawful purposes — mislabeling them as “assault weapons” — making it a felony for law-abiding citizens to exercise their fundamental right to keep and bear such arms.

The plaintiffs

seek declaratory and injunctive relief not only on the basis that the Regulatory Scheme violates their rights under the Second and Fourteenth Amendments to the U.S. Constitution, but also on the fact that the Regulatory Scheme violates their rights under Delaware Constitution, Article I Section 20; their rights to Due Process under the Fourteenth Amendment to the U.S. Constitution and Article I, Section 7 of the Delaware Constitution; their right to Equal Protection under the Fourteenth Amendment of the U.S. Constitution.

The lawsuit referred to the Bruen decision coupled with the Heller decision (District of Columbia v. Heller, decided by the Supreme Court in 2008) which “assert that the Second Amendment protects the carrying of weapons that are those ‘in common use’ at the time.”

It derided Delaware officials who passed the law, using the phrase “assault weapons” in the text:

The banned semiautomatic firearms deemed as “assault weapons” under the Regulatory Scheme, like all other semiautomatic firearms, fire only one round for each pull of the trigger.

 

They are not machine guns.

 

What is more, the designation “assault weapons” is a complete misnomer, “developed by anti-gun publicists” in their crusade against lawful firearm ownership.

Further, banning such “assault weapons” has historically had almost no impact on mass shootings:

According to a widely cited 2004 study, these arms “are used in a small fraction of gun crimes.” See Gary Kleck, Targeting Guns: Firearms and Their Control [for] evidence [that] indicates that “well under 1% of [crime guns] are ‘assault rifles.’”

More recent data confirms Kleck’s 2004 conclusions. FBI crime statistics found that of the average of 14,556 homicides committed annually for the past decade, rifles typically account for just 314 of them. And in 2019, the latest year for which records are available, Delaware suffered 48 homicides, with none of them attributed to a rifle.

Of the five judges currently sitting on the U.S. District Court of Delaware, two were appointed by President Donald Trump, one was appointed by President Ronald Reagan, and the other two were appointed by Presidents Obama and Biden.

The New American will keep its readers advised of developments in the case.

This article appeared online at TheNewAmerican.com on Friday, July 22, 2022:  

Reverberations from the Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen holding that both the Second and 14th Amendments to the U.S. Constitution protect an individual’s right to carry a handgun for self defense outside the home reached Los Angeles on Wednesday.

Ernest Eskridge, assistant commanding officer for the LAPD’s Detective Bureau, announced suspension of enforcement of the city’s ban on magazines holding more than 10 rounds, effective immediately.

He saw the writing on the wall. After ruling in Bruen in June, the high court also disposed of a number of other related lawsuits, including one challenging the Los Angeles magazine ban, Duncan v. Bonta.

“Due to this ruling,” wrote Eskridge, “Department sworn personnel shall not investigate, detain, or arrest any persons … [in] possession of firearm magazines capable of holding more than 10 rounds of ammunition.”

The city’s ban was authored by LA City Councilmember Paul Krekorian, and enforcement began in November of 2015. Krekorian celebrated the event at the time:

The City Council banned the possession of large-capacity magazines to give law enforcement another tool to keep people safe and get these dangerous devices off the streets.

 

Starting next week, Los Angeles wilI start enforcing and upholding the ban. I urge anyone currently in possession of these illegal magazines to dispose of them legally at an LAPD station before enforcement begins.

That a limit on magazine capacities would somehow “keep people safe” is another gun-control myth used to justify infringing on the Second Amendment. The argument goes like this: A higher “rate of fire” from a firearm with a “high-capacity” magazine allows perps to kill more people in a shorter period of time.

The cowardly Newtown shooter fired at a rate of fire no faster than the 150-year-old lever-action Henry rifle [used during the Civil War] — even though he had ten 30-round magazines and an AR-15.

 

The despicable Fort Hood shooter was one-third slower than that, while the mass murderer at Virginia Tech was 50 percent slower.

 

Even the San Bernardino shooters, who carried AR-15s and 30-round magazines, fired at a rate no faster than one round every 3.3 seconds. This is 40 percent slower than the lever-action Henry.

 

The coward who shot up a theater in Aurora, Colorado, fired at a rate no faster than the 170-year-old single-shot Sharps rifle — even though he had a 100-round magazine. Keep in mind, the Sharps rifle has a capacity of one round!

 

Finally, the Red Lake shooter and the Columbine shooters fired at a rate of fire no faster than the 240-year-old, muzzle-loading flintlock Kentucky rifle.

In the real world, Martin explained, large magazines are heavy, make a firearm difficult to handle, and result in a higher incidence of misfires. Take the Aurora, Colorado mass shooting, for example:

The Aurora, Colorado theater shooter brought one single AR-15 magazine with him, which held 100 rounds. Not only did that make his firearm incredibly heavy and unwieldy, the magazine also failed completely after approximately 45 rounds, and his incredibly slow rate of fire (one round every four to seven seconds, no faster than a single-shot rifle) would indicate that he most likely was fighting misfeeds right up until the point that the magazine failed.

In fact, commands that magazines be limited to 10 rounds might actually increase the rate of fire:

Had he been using 10-round magazines, it’s unlikely that any failure would have occurred, and his rate of fire could have been much higher. [Emphasis added.]

Martin concluded:

When politicians who know absolutely nothing about firearms attempt to make firearms policy, they shouldn’t be surprised when their actions don’t have the desired effect.

The effects of the Bruen decision (thanks to originalists nominated to the Supreme Court by President Donald Trump) continue to resonate throughout the land, to the benefit of law-abiding gun owners specifically and the populace in general.

This article appeared online at TheNewAmerican.com on Monday, June 27, 2022:  

With the assistance of 14 Republicans in the House and 15 Republicans in the Senate, the present occupant of the White House signed the Bipartisan Safer Communities Act into law on Friday.

The Senate passed the bill, S. 2938, by a vote of 65-33 on Thursday, with 15 Republicans voting aye to break the 60-vote filibuster threshold that otherwise would have kept the bill from moving forward. Later that day the House rubber-stamped the bill, 234-193, supported by 14 Republicans, before sending it to the Oval Office.

Biden read this from his teleprompter:

From Columbine to Sandy Hook, to Charleston, Orlando, Las Vegas, Parkland, El Paso, Atlanta, Buffalo, Uvalde, and for the shootings that happen every day in the streets … how many times have we heard that, “just do something, for God’s sake just do something”?

 

Today, we did.

What he did was something that wouldn’t have happened if those Republicans had kept their oaths of office to support and defend the Constitution. Instead, they looked the other way and voted aye.

The fourteen House Republicans who voted for the bill include: Steve Chabot (Ohio), Liz Cheney (Wyo.), Brian Fitzpatrick (Penn.), Tony Gonzales (Texas), Anthony Gonzalez (Ohio), Christopher Jacobs (N.Y.), David Joyce (Ohio), John Katko (N.Y.), Adam Kinzinger (Ill.), Peter Meijer (Mich.), Tom Rice (S.C.), Maria Elvira Salazar (Fla.), Michael Turner (Ohio), and Fred Upton (Mich.).

Of those 14, five are retiring at the end of their terms, and Congressman Rice just lost his primary.

The fifteen Senate Republicans who voted for the bill included Senate Majority Leader Mitch McConnell (Ky.), along with Roy Blunt (Mo.), Richard Burr (N.C.), Shelley Moore Capito (W.Va.), Bill Cassidy (La.), Susan Collins (Maine), John Cornyn (Texas), Joni Ernst (Iowa), Lindsey Graham (S.C.), Lisa Murkowski (Alaska), Rob Portman (Ohio), Mitt Romney (Utah), Thom Tillis (N.C.), Pat Toomey (Pa.), and Todd Young (Ind.).

Four of them are leaving office this year (Portman, Blunt, Burr, and Toomey), while all but two (Murkowski and Young) aren’t up for reelection until 2026 (except Romney, whose election is in 2024).

The law now allows the U.S. Treasury, with the assistance of the Federal Reserve, to create billions in new digital currency in order to fund it. The law contains many onerous and unconstitutional programs, including funding for state mental-health services and school security.

It targets the so-called “boyfriend loophole,” which allows those convicted of domestic abuse to have guns unless they have been married to, lived with, or had a child with the victim.

But the most egregious is the camel’s nose into the tent: $750 million to bribe states without red flag laws to pass them.

The attempt to appease so-called Republican gun rights supporters to go along with the travesty included this hat tip to the Constitution in the bill:

[State red flag laws must include] pre-deprivation and post deprivation due process rights that prevent any violation or infringement of the Constitution of the United States, including but not limited to the Bill of Rights, and the substantive or procedural due process rights guaranteed under the Fifth and Fourteenth Amendments to the Constitution of the United States, as applied to the States, and as interpreted by State courts and United States courts (including the Supreme Court of the United States).

 

Such programs must include, at the appropriate phase to prevent any violation of constitutional rights, at minimum, notice, the right to an in-person hearing, an unbiased adjudicator, the right to know opposing evidence, the right to present evidence, and the right to confront adverse witnesses.

First, there is no assurance that states accepting the bribe and creating red flag laws will include such niceties as respecting the Fourth and Fifth Amendments. Second, as a practical matter, judges presented with a demand that they issue immediately an “extreme risk protection order” (ERPO) or else a potential killer might run loose will issue one first and worry about following the law afterwards.

Thirdly, nothing in the law requires states already able to flag their citizens with ERPOs to reinstate the Fourth Amendment’s demand that “no warrants shall issue, but upon probable cause” in place of the much lower “reasonable suspicion” presently enacted.

Fourth, there is no assurance that red flag laws will have any impact on gun violence. New York has a red flag law in place and it failed to prevent the Buffalo shooter from wreaking havoc. Texas doesn’t have such a law in place, but it has similar laws available to law enforcement that failed to prevent the massacre in Uvalde.

As this writer declared last week:

The “bipartisan” act is an indirect but effective attack on the Second Amendment. It has nothing to do with stemming gun violence. It has everything to do with confiscating, under the color of law, every firearm from every gun owner in the country, thus paving the way for the imposition of a communist dictatorship on the once-free United States of America.