Reason: US Dist. Court Issues Temp. Restraining Order against Colorado Gun and Magazine Ban

David Kopel at Reason.com writes about a US District Court Judge issuing a temporary restraining order against the enforcement of Superior, Colorado’s municipal code which banned certain firearms and magazines. Hopefully such rulings will be coming soon to a state near you.

Colorado U.S. District Court issues TRO against magazine and gun ban

Today U.S. District Judge Raymond P. Moore issued a temporary restraining order against the ban on so-called “assault weapons” recently enacted by the town of Superior, Colorado, in Boulder County. The case is Rocky Mountain Gun Owners v. Superior.

Lead attorney for the plaintiffs was Barry Arrington, one of Colorado’s top lawyers on education law, and now the victor in a major Second Amendment case. Arrington previously served in the Colorado House of Representatives, and as a trustee of the Independence Institute, where I work.

Judge Moore formerly was a corporate lawyer (Davis, Graham and Stubbs, Denver), and then head Federal Public Defender for Colo. and Wyoming. He was appointed to the bench by President Obama in 2013, and confirmed unanimously.

Like several other towns in Boulder County, Superior recently outlawed semiautomatic centerfire rifles that have at least one supposedly bad characteristic, such as an adjustable stock; various semiautomatic shotguns; various semiautomatic handguns; and magazines with a capacity of over 10 rounds.

It was obvious that such arms are “commonly used by law-abiding citizens for lawful purposes,” which is the Supreme Court’s rule from District of Columbia v. Heller (2008) for which arms are protected by the Second Amendment. First, the Colorado Attorney General and plaintiffs in an earlier case challenging the state of Colorado’s ban on magazines over 15 rounds had so stipulated. Colorado Outfitters Ass’n v. Hickenlooper, 24 F. Supp. 3d 1050, 1068 (D. Colo. 2014), vacated in part on other grounds and remanded, 823 F.3d 537 (10th Cir. 2016). (I represented 55 Colorado Sheriff plaintiffs in the case, which ended up with the 10th Circuit declaring that neither the Sheriffs nor the many other individual and organizational plaintiffs had standing.) Commonality was also found in the undisputed facts set forth in Fourth Circuit Judge Traxler’s dissenting opinion in Kolbe v. Hogan, 849 F.3d 114, 153-55 (4th Cir. 2017). The opinions of many other Circuit Courts provide additional, irrefutable proof of commonality; the banned firearms number in the millions, at least, and the banned magazines comprise over half of all magazines.

Pursuant to the Supreme Court’s recent decision in New York State Rifle & Pistol Association v. Bruen, courts are supposed to decide Second Amendment cases on text, history, and tradition. Judge may not decide based on their own opinions about good policy, nor should they defer to legislative policy judgements. The policy  balancing was already conducted by the American people when they adopted the Second Amendment.

In Bruen‘s historical approach, the most important periods are the Founding Era and Reconstruction (when the Fourteenth Amendment made the Second Amendment enforceable against state and local governments). English history is relevant to the extent that is shows an unbroken tradition that was adopted in America and continued to the Founding. Colonial history is also relevant. So is 19th century history, and (Reconstruction excepted), the earlier the better. The late 19th century is weaker, and the 20th century is far too late to show a historical tradition that could override the text of the Second Amendment.

Judge Moore wrote: “the Court is unaware of historical precedent that would permit a governmental entity to entirely ban a type of weapon that is commonly used by law-abiding citizens for lawful purposes, whether in an individual’s home or in public.”

To be precise, there are a few precedents pre-1900, but none are valid any longer…(article continues)

Reason: Stop Looking for ‘Leadership’ During the COVID-19 Outbreak

JD Tuccille at Reason has some well pointed words about leadership during the current pandemic – Stop Looking for ‘Leadership’ During the COVID-19 Outbreak

As the COVID-19 pandemic hit the U.S., pundits and opposition politicians pounded President Trump for displaying a “lack of leadership” in response to the deadly virus. And it’s true that, as always, the president was prone to minimizing inconvenient developments, bristling at critics, and contradicting members of his own team. Without a strong, focused figure in the White House (maybe somebody less deplorable?), we can’t possibly pull through this crisis, the opponents suggested. But that’s ridiculous; anybody making their responses to events contingent on political office not being held by narcissistic ass-clowns is putting their fate in the hands of circumstances they can’t control. They’re making a false virtue of dependency.

That’s not to say we shouldn’t listen to people who have expertise. Epidemiologists shared widely reported warnings in January of “the spread of 2019-nCov within and outside mainland China.”

“The more we learn about it, the greater the possibility is that transmission will not be able to be controlled with public health measures,” Toronto-based Allison McGeer, an infectious disease specialist, cautioned at roughly the same time.

Even China’s awful political rulers, who muzzled medical whistleblowers after they warned of the disease (there’s leadership!), admitted by the end of the month that the situation was out of control.

Just weeks later, the World Health Organization, as clumsy and prone to stroking authoritarian regimes as it is, said the virus had “pandemic potential,” while the Centers for Disease Control and Prevention warned of “severe” disruptions to American life from “community spread” of the new virus.

Anybody paying attention had the opportunity to get ready for what was comingif they were allowed to do so by our fearless leaders.

It’s worth noting that, when political officials act, their most positive efforts come from getting out of the waythat is, by undoing the “leadership” they demonstrated on earlier matters.

President Trump announced “compassionate use” easing of restrictions on patients’ use of drugs that don’t yet have FDA approval for treating COVID-19.

Congress extended liability protection for makers of protective N95 face masks so that hospitals can directly purchase equipment that isn’t specifically approved for medical purposes under cumbersome FDA rules.

Eased regulation enforcement, announced by the Centers for Medicaid and Medicare Services (CMS), means the government won’t take action against health insurers who modify their catastrophic plans to cover COVID-19 diagnosis and treatment for their customers.

Licensed physicians can also now practice across state lines, under CMS waivers that ease a host of other rules that bind the practice of medicine in red tape. The feds played catch-up on that one: states including Arizona, California, Florida, Louisiana, Massachusetts, Mississippi, North Carolina, Tennessee, and Washington had already moved to ease restrictive licensing of medical providers before the feds jumped on the issue.

Even the Transportation Security Administration is joining in, modifying its insistence that doom is found in any liquid container of more than 3.4 ounce capacity so that travelers can carry 12-ounce bottles of hand sanitizer on airplanes.

“The coronavirus is forcing authorities to admit many of their regulations are unnecessary,” Reason‘s Nick Gillespie noted…(continues)

Click here to read the entire article at Reason.com

Clarence Thomas: Faith and Reason Are Mutually Reinforcing

The following is excerpted from a speech given by association Supreme Court Justice Clarence Thomas at the October 2019 dedication ceremony for a new chapel at Hillsdale College.

…Although a chapel is a place for many activities, it also serves as a statement about the importance of those activities. The construction of a college chapel, in particular, is a public declaration that faith and reason are mutually reinforcing. And in 2019, the construction of a chapel is a bold act of leadership at a crucial time in our nation’s history. So I would like to underscore briefly the broader significance of the decision that Hillsdale College has made in building Christ Chapel.

Beginning in the early 1900s, many elite private colleges and universities began to face questions about the continuing relevance of religious instruction on campus. These questions would have surprised the founders of those schools, many of which were created in part for the express purpose of providing religious instruction. But as time went on and as schools moved away from their religious roots, the relevance of religion to higher education was increasingly questioned, and campus chapels, in particular, came to be viewed as relics of a bygone era.

With the completion of Christ Chapel, Hillsdale College has staked out its position in this debate, and its decision serves as an example for all of us. The construction of so grand a chapel in 2019 does not happen by accident or as an afterthought. Christ Chapel reflects the College’s conviction that a vibrant intellectual environment and a strong democratic society are fostered, not hindered, by a recognition of the Divine. Hillsdale College affirms, with the writer of Proverbs, that, “The fear of the Lord is the beginning of wisdom, and the knowledge of the Holy One is insight.”

By constructing this Chapel, the College upholds the continued importance of its Christian roots, even as it respects the rights of each person to worship God according to the dictates of his own conscience. Our country was founded on the view that a correct understanding of the nature of God and the human person is critical to preserving the liberty that we so enjoy.

John Adams wrote, “Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.” He recognized that the preservation of liberty is not guaranteed. Without the guardrails supplied by religious conviction, popular sovereignty can devolve into mob rule, unmoored from any conception of objective truth.

As I think about our political culture today, I am reminded of Ronald Reagan’s warning that, “Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. The only way they can inherit the freedom we have known is if we fight for it, protect it, defend it, and then hand it on to them . . . [to] do the same.”

Each generation is responsible both to itself and to succeeding generations for preserving and promoting the blessings of liberty. Faith in God, more than anything else, fuels the strength of character and self-discipline needed to discharge ably that responsibility. That is why I am so encouraged by the construction of Christ Chapel…

The full speech can be heard in the video below.

Reason: Problems with Expanded Background Checks for Gun Buyers

This article comes from Reason magazine, detailing some of the problems with Attorney General Barr’s proposal to expand background checks for buyers of firearms.

Here Are the Problems With the Attorney General’s Plan To Expand Background Checks for Gun Buyers

Attorney General William Barr is reportedly floating a proposal to expand background checks for gun buyers that is similar to an unsuccessful 2013 bill sponsored by Sens. Joe Manchin (D–W.Va.) and Patrick Toomey (R–Pa.). The proposal would require background checks for “all advertised commercial sales, including gun sales at gun shows.”

Manchin and Toomey’s Public Safety and Second Amendment Protection Act would have required that federally licensed firearm dealers, who are already required to conduct background checks, be involved in all sales at gun shows and all transfers resulting from online or print ads. It explicitly exempted transfers “between spouses, between parents or spouses of parents and their children or spouses of their children, between siblings or spouses of siblings, or between grandparents or spouses of grandparents and their grandchildren or spouses of their grandchildren, or between aunts or uncles or their spouses and their nieces or nephews or their spouses, or between first cousins.”

Barr’s proposal would do pretty much the same thing, but it also would authorize licenses for “transfer agents” to help gun owners comply with the background check requirement. The idea, presumably, is that the new category of licensees would make compliance easier by providing an alternative to firearm dealers.

This proposal is less sweeping than the Bipartisan Background Checks Act of 2019, which the House of Representatives approved last February. That bill, which was supported by 232 Democrats but only eight Republicans, would ban almost all gun transfers by people who are not licensed dealers. It applies to any sale, whether or not it happens at a gun show and whether or not the firearm was advertised.

The House bill makes an exception for “a transfer that is a loan or bona fide gift between spouses, between domestic partners, between parents and their children, including step-parents and their step-children, between siblings, between aunts or uncles and their nieces or nephews, or between grandparents and their grandchildren.” If money changes hands, in other words, a background check would be required even for transfers between relatives.

Both proposals share the same problems as any other effort to expand the reach of background checks. First, the categories of prohibited buyers are irrationally and unfairly broad, encompassing millions of people who have never shown any violent tendencies, including cannabis consumers, unauthorized U.S. residents, people who have been convicted of nonviolent felonies, and anyone who has ever undergone mandatory psychiatric treatment because he was deemed suicidal.

Second, background checks are not an effective way to prevent mass shootings…

Click here to read the entire article at Reason.com.

Reason: When Nonviolence Isn’t Enough

Jason Brennan, professor of ethics, economics, and public policy at Georgetown University, over at Reason.com has a longer article up, examining government authority, briefly touching on civil disobedience, and then going on to explore when you are justified to go beyond civil disobedience.

When Nonviolence Isn’t Enough: Does the right to self-defense apply against agents of the state?

In August 2017, Richard Hubbard III stopped at a red light in Euclid, Ohio, but his front bumper went a few feet past the white line. The cops pulled him over. That’s no surprise: Police in Euclid, Cleveland Heights, and the surrounding cash-strapped towns strictly enforce traffic rules. But officers didn’t just give the driver a ticket.

The police demanded Hubbard—a black man—step out of his vehicle. Dashcam footage shows that he calmly complied. Yet one officer immediately spun Hubbard around, bent his arm, and slammed him against his Hyundai. He flipped Hubbard again, punched him in the face, and kicked his groin. Hubbard screamed and put his arms up to protect himself. The other officer joined in.

They threw Hubbard to the ground but continued to punch, hammer, and kick him. When he tried to protect his face, they chanted the informal motto of American police, “Stop resisting!” Even when Hubbard was subdued, prostrate with his hands behind his back and two large officers pinning him down, one officer continued to pummel his skull.

Imagine you witness the whole thing. A thought occurs to you: You’re armed. You could shoot the officers, perhaps saving Hubbard’s life or preventing him from being maimed and disabled. May you do so?

Below, I defend a controversial answer: Yes, you may. Shooting the cops in this case is dangerous—they may send a SWAT team to kill you—and in many places it’s illegal. But it is nevertheless morally permissible, indeed heroic and admirable. You have the right to defend yourself and others from state injustice, even when government agents act ex officio and follow the law…