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Recent political protests and associated gun violence in Wisconsin have put a spotlight on vigilantism and the rights of Americans under the Constitution to both peaceably protest and bear arms freely.

These topics, inextricably linked these days, were the focus of a Tuesday discussion by two Duke law scholars who took part in a virtual media briefing with journalists.

Watch the briefing on YouTube.

Here are excerpts:

ON GOVERNMENT POWER UNDER THE FIRST AMENDMENT

Nicole Ligon, First Amendment expert

The government has the authority to make and enforce rules for public health, safety, welfare such as the shutdown orders earlier this year. At the same time, the First Amendment protects peoples rights to free speech and to peaceably assemble. But very few constitutional rights are absolute.

The government is able to regulate the time, place and manner of speech in public forums as long as the restriction is narrowly focused to serve a significant government interest.

ON RECENT PERVASIVE VIGILANTISM

Darrell Miller, law professor

We as a sort of society have somehow drifted to a position where persons can cross state boundaries, sometimes heavily armed, appear on the streets again heavily armed, and theres very little that can happen beforehand in terms of an ability to stop it, with sometimes violent and calamitous results.

We dont have hard statistical data on this, but it should be noted that this is quite in contrast to absolutely innocuous events that turn out very, very badly with the deaths of young black men in America. Tamir Rice in Cleveland wasnt even a teenager, he was a young boy out on a playground playing with a toy gun. The police rode up and shot him dead.

It seems like theres two trigger fingers. Theres the trigger finger for African-Americans with guns and theres the trigger finger for whites with guns.

ON INTERPRETING THE SECOND AMENDMENT

Darrell Miller

Were operating in an environment in which the constitutional law is still not very clear as a matter of judicial rulings. Lots of people are making claims about what the Second Amendment does or does not permit in a highly tense environment.

Its always important to remember the Second Amendment is a floor, not a ceiling. It does not say whether a state, for example, can allow more guns in more places. That becomes a policy matter. There are tradeoffs. If you have lots of people in a highly charged political environment, armed, it makes the ordinary, peaceful process of politics much more difficult.

ON IMPOSING CURFEW ORDERS UNEQUALLY

Nicole Ligon

To the extent that curfew orders are being differentially enforced based on viewpoint, that is viewpoint discrimination. That is not going to be permitted by the First Amendment.

Youre not going to be able to differentially apply a curfew order to someone based on viewpoint. Youre not going to be able to say Black Lives Matter protesters cant be out past a certain time, but pro-police protester can.

ON USE OF LEGAL OBSERVERS DURING PROTESTS

Nicole Ligon

Legal observers are not unique to the US. They exist all over the world and frequently document police interactions with citizens. They serve a check function. The idea is that if they are there, maybe then there will be less biased reactions, there will be more clean arrests.

We have so many examples of important protests that have happened. Legal observers help to insure that protests occur in a safer way but also that everything is being documented and reported.

They act as these neutral third-party observers. Theres a really important role they serve for the commission of justice.

These are really critical roles, and theyre good for everyone.

ARE THE FIRST AND SECOND AMENDMENTS INCOMPATIBLE WITH EACH OTHER?

Darrell Miller

I think there is at least a challenge with trying to reconcile these two things. The right in the Second Amendment is a right to keep and bear arms so people who think you have a right to have guns anywhere you happen to be, focus on the bear part. The right in the First Amendment is the right to peaceably assemble. You have the right to assemble in a way that does not disturb the peace.

The fundamental challenge is trying to square these two things where to some people, the mere presence of lethal weaponry in private hands at a protest terrifies and therefore is a potential challenge to the peace.

In a densely populated urban area where people are showing up with firearms, the norms and behaviors and expectations and the perceptions of what is happening are going to be totally different.

Do you fear going to a place to register your political views if you think there are going to be armed private individuals there?

Nicole Ligon

Its very likely that there is some element of chilling that will occur if you have protesters that are going to be met with counter-protesters who are bearing arms, brandishing weapons.

The question is not so much that these people have weapons, its why do they have them. Is it necessary to their speech for a counter-protester to be holding that weapon?

There is this element of chilling that could definitely occur. Thats something that really needs to be examined and looked at.

ON WHAT PRIVATE MILITIAS ARE ALLOWED TO DO IN PUBLIC

Darrell Miller

It really depends on what state youre in. Some states have a long track record of actually forbidding this kind of activity. For example, the state of Washington in the early part of the 20th century outlawed private organizations of armed men in part because what had happened was big moneyed interests were using private military to engage in labor suppression.

The bigger challenge here is that in some ways, a combination of beliefs about the Second Amendment and what it stands for, fairly generous laws about open carry and Stand Your Ground, and self-defense, and the low, low barriers to coordinating lots and lots of people through social media has made it plausible to have many, many armed individuals show up in the public square and not really be members of a private militia as much as a group of individuals with firearms that show up. It has the same, potentially pernicious effect in terms of risk of injury and risk of confrontation.

We have to understand that the tolerance or the norm of having your political position in the public square supported by arms is not something we think of in a well-ordered society. This is something you see in other countries that have fragile democracies.

ON WHAT CAN BE DONE TO IMPROVE THE SITUATION RIGHT NOW

Nicole Ligon

A greater appreciation for viewpoint diversity. These protests again are so incredibly personal, but I do wish as a society we werent so quick to say, I know what that protest is about and I dont support those people.

I think were doing a lot of blending of things we dont like and were conflating them with messages we decide offhand we dont agree with.

It has been really disappointing to see how some people talk about these Black Lives Matter protests. I really wish we did a better job of understanding why are these viewpoints necessary to be heard, where people are coming from and being able to differentiate who is really involved in a moment and who is opportunistically engaging in something that is completely separate.

Darrell Miller

Martin Luther King Jr. and the Student Nonviolent Coordinating Committee in its early years recognized violence in the public square, or threats of violence, has the damaging feature of undermining the message youre trying to send. If youre trying to send a message that police brutality is unacceptable, it undermines your message to engage in violence or threat of violence.

If youre concerned that the reopen (movement) is not happening fast enough, it feels like it undermines your moral position to not engage with others as equal citizens but to threaten violence in order to persuade others about your political position.

Faculty Participants

Nicole LigonNicole Ligon is a lecturing fellow and the supervising attorney of the First Amendment Clinic at Duke Law School, where she teaches First Amendment law. Before coming to Duke, she litigated First Amendment issues in private practice.

Darrell MillerDarrell Miller is a law professor who specializes incivil rights, constitutional law, civil procedure and state and local government law at Duke University. He also co-directs theCenter for Firearms Lawat Duke Law School. His scholarship on the Second Amendment has been cited by the U.S. Supreme Court.

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Duke experts on a variety of topics related the election and politics can be found here.

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How First and Second Amendments Apply in Protests - Duke Today

Photo credit: Gage Skidmore

President Donald Trump remarked that a Joe Biden presidency would mark an end for your Second Amendment rights. He said this at an event in Jupiter, Fla., on Tuesday.

Well uphold your right to hunt, and we will protect your right to keep and bear armsyour Second Amendment, said President Trump. If Joe Biden gets in, your Second Amendment is gone. Its goneeither obliterated to a point of being gone or gone itself.

Joe Biden clearly supports some of the most anti-freedom proposals ever placed on an official platform by a major partys nominee for president. His anti-gun wish list includes bans on the most-popular firearms and magazines, gun registration, licensing schemes and much more. When Trump said Biden would either obliterate the Second Amendment or render it functionally ineffective, he is clearly just pointing to Bidens official record.

Bidens running mate, Kamala Harris, has also made her stances on the Second Amendment clear. Like Biden, she supports a long list of gun-control measures, but she didnt stop there.

While running for the very nomination Biden secured, Harris said that if Congress did not pass her desired anti-Second Amendment legislation within her first 100 days in office, she would take executive action to make it happen. She even advocated for the confiscation of firearms, which she euphemistically referred to as a mandatory buyback; a position Biden has also said he supports while campaigning.

Meanwhile, Biden said Beto ORourke would help him take care of the gun problem. ORourke, another failed presidential candidate, said Hell, yes were going to take your AR-15, at a primary debate last fall.

President Trump, meanwhile, has remained steadfast in his defense of our rights. And the pressure put on me in the last four years to make massive changes to the Second Amendment, which would have really rendered it worthless. Trump said if he is reelected, Your Second Amendment will remain powerful, will remain strong, will remain with you.

Trumps comments come as Americans are choosing to arm themselves in record-setting numbers. Whether it is due to uncertainty or the potential of a Biden presidency, given what Biden would do with your rights if elected, it is clear that the Second Amendment is being exercised now more than ever.

Such is why the NRA-PVF endorsed President Trump for reelection.

See the article here:
Trump: The Second Amendment Will Be Gone if Biden Elected President - America's 1st Freedom

The opinion holds that even if butterfly or balisong knives are protected by the Second Amendment of the Constitution, a state law banning any possession, manufacture or transport of such knives is constitutionally valid.

U.S.A. -(AmmoLand.com)- U.S.A. -(AmmoLand.com)- The Hawai'i Federal District Court has issued an opinion in Teter v. Connors that guts the Second Amendment.

The opinion holds that even if butterfly or balisong knives are protected by the Second Amendment of the Constitution, a state law banning any possession, manufacture or transport of such knives is constitutionally valid. From the opinion:

The popularity of an all-encompassing class of weapon (the knife, or even the folding knife)is immaterial when only one narrow subset of the class (the butterfly knife) is banned here.The Court declines to treat the ban on butterfly knivesa relatively obscure weaponthe same way the Heller Court viewed the ban on handgunsthe quintessentialself-defense weapon. Doing so would neglect the Supreme Courts emphasis on the regulated weapon at issueand by extension much of the Courts reasoning that led to its ultimate holding. This case simply does not amount to the same level of destruction of the [Second Amendment] right as Heller.

The plaintiffs are appealing the decision to the Ninth Circuit Court of appeals.

The Supreme Court has been deadlocked and unable or unwilling to protect the exercise of those rights. Without the election of Donald Trump and the appointment of Justices Gorsuch and Kavanaugh, the Second Amendment would be dead letter law across the United States. Instead, federal appeals courts in circuits hostile to the Second Amendment have been using the lack of SCOTUS action to slice away most meaningful Second Amendment protections in several Circuits, notably the Ninth and the Second Circuits.

The first salami slice is the claim that Heller is a very narrow decision, only protecting the defense of self and others in the home with commonly available handguns.

The Supreme Court has not corrected this extreme position, allowing lower courts to claim Second Amendment protections do not extend outside the home; do not cover semi-automatic rifles; do not cover magazines; do not cover ammunition; do not cover the ability to sell guns, do not cover the ability to store unlocked firearms in the home, ready for use.

This is the core of the argument used in the Hawai'i District Court opinion.

In this extreme view, handguns in the home are the only core of what is protected by Second Amendment rights.

In this view, knives are not mentioned in Heller, therefore the court is free to declare that certain knives are not as protected as handguns.

The particular Hawaii law only bans a particular type of knife. The Court's opinion in Teter v. Connors is the law is Constitutional because it does not ban all knives. Heller rejected this viewpoint with Caetano, unanimously clarifying the Second Amendment applies to all bearable arms.

With the salami approach to the Second Amendment, laws banning all magazines which hold more than one round of ammunition, all ammunition of greater power than a .22 short, and all knives except for butter knives, could be banned, bit by bit, and pass Constitutional muster.

Laws banning carry outside the home are already in effect in New York City and Hawaii.

It is absurd. It shows the arrogance of the District Court, and its belief the Supreme Court will do nothing to prevent a wholesale ban of most weapons in most circumstances, as long as it is done salami slice by salami slice.

The District Court mentioned the Caetano decision, which makes clear knives are protected by the Second Amendment. The Hawai'i opinion defines the protection of the Second Amendment as so close to zero, in its view, as to be effectively meaningless.

The logic, as such, is this: even though butterfly knives are covered by the Second Amendment, they are not part of the core right: therefore they may be banned by the state.

The District Court goes on to say intermediate scrutiny applies; it cites appellate courts where intermediate scrutiny has devolved to a mere rational basis.

The Court repeatedly cites the N.Y.State Rifle & Pistol Assn, Inc. v. City of N.Y., N.Y., (N.Y.S.R.P.A.). The N.Y.S.R.P.A. case was so certain of being overturned by the Supreme Court, the City of New York and the State of New York changed their law and regulatory framework, to moot the case, so the Supreme Court would not hear it.

The opinion in Teter, from Hawai'i, cites N.Y.S.R.P.A. no less than nine times.

For those unfamiliar with the scrutiny framework, strict scrutiny means the court can deny the exercise of the right in only the most extreme circumstances. For example, the exercise of Second Amendment rights can be denied to a prisoner.

The next level is intermediate scrutiny. This is supposed to be a somewhat lower standard. The law or regulation being considered is supposed to affect the Constitutional right in a peripheral way. Intermediate scrutiny is supposed to require the government to prove the particular law serves an important government objective, and the law is substantially related to achieving that objective. In intermediate scrutiny, the government is to bear the burden of proof.

The lowest level of scrutiny is rational basis. Almost all laws pass this level. At this level, the plaintiff, not the government, must prove the law is not related to any rational objective in any way. It is an almost impossible burden.

Several appellate court decisions have degraded intermediate scrutiny, as applied to the Second Amendment, to a mere rational basis, which Heller explicitly forbids. The Circuit courts avoid the ban on the use of rational basis, by calling their rational basis scrutiny intermediate scrutiny.

An important government interest is safety. Safety has become a catchall reason in any Second Amendment case. No court has required the government to show whether safety is actually improved with a law infringing on the Second Amendment. As for whether the law is substantially related to achieving the objective of greater safety, the court simply takes the government's word for it.

For infringements on the Second Amendment, no proof has been required. In the Hawai'i case, the government did not show a single crime where a butterfly knife was used.

The opinion cites several appellate court cases to justify its definition of intermediate scrutiny as no more than a different name for rational basis.

If intermediate scrutiny were to have any actual bite in this case, the government would have to prove banning butterfly knives, while leaving the vast majority of knives unregulated, would have an actual effect on crime. The opinion does not require proof. It assumes the government knows best.

If these definitions are accepted as the correct way to determine what level of regulation is permissible under the Second Amendment, it is difficult to imagine what arms are forbidden for the government to ban. Perhaps we would be allowed five shot .22 revolvers, which would be required to be unloaded and locked up, separate from any ammunition, when not actually carried on our person, in our home.

These arguments make the Second Amendment dead letter law, by reducing the limits on government power to irrelevant and minuscule restrictions, which have little practical effect.

It is the long-running dispute between two philosophical views of the Constitution.

Progressives state the Constitution is living document, the meaning of which is whatever a set of judges wants it to mean, at any given time. Words mean whatever they wish them to mean. In the view of Progressives, the Constitution is an impediment to government power, which can easily be worked around with sufficient legislative wordsmithing.

The corrosive effect of the Supreme Court refusing to correct the obvious error by the lower courts is well illustrated by the opinion in Teter v. Connors, citing of the N.Y.S.R.P.A. case. All parties understood N.Y.S.R.P.A. was a terrible decision, obviously violating Second Amendment protections.

By refusing to hear the case after the City and State went to great lengths to make it moot, the case is now being cited to restrict and degrade Second Amendment rights in the Ninth Circuit case in Hawaii.

The appellate courts showing open hostility to the Second Amendment must be corrected. Teter v. Connors may be a way for the court to correct them. The case involves knives, not guns. The court was willing to hear Caetano, which was about electric stun guns, not firearms.

It is possible a three-judge panel on the Ninth Circuit will reverse Teter.

Both avenues of redress become moot if President Trump loses the election. Supreme Court justices hostile to the Second Amendment will be added to the Supreme Court. The court will start hearing Second Amendment cases, in order to reverse Heller.

If the Senate is flipped to Democrat, the court will likely be packed with six more Progressive judges to bring the total to 15 justices. Both the Second Amendment, the First Amendment, and the electoral college will be effectively destroyed.

Unfortunately, our liberties rest on the outcome of the 2020 election.

This is what happens when a philosophy hostile to the idea of limited government has been taught in the schools for three generations.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Visit link:
Second Amendment Knife Case in Hawaii: Dangerous Opinion - AmmoLand Shooting Sports News

This weeks publication of Inside the NRA: A Tell-All Account of Corruption, Greed, and Paranoia Within the Most Powerful Political Group in America is a new blow to the reeling organization.

Written by Joshua L. Powell, the former second-in-command to Chief Executive Wayne LaPierre, the book is a full-throated indictment of the National Rifle Association and its leader, who is likened to a con man.

Wayne abandoned the advocacy of the Second Amendment years ago and became exactly what he himself had once railed against in countless speeches and commercials the elite, the Establishment, lost in a made-up dystopian world that he had created and sold to our members, writes Powell, whom the NRA fired last winter, allegedly for improper spending.

In August, New York State Attorney General Letitia James brought a complaint against the NRA that seeks the gun groups dissolution. Powell and LaPierre are named in the complaint, which details years of waste, fraud, and self-enrichment implicating NRA leadership.

In an interview with USA Today, Powell disputed some of the allegations in Jamess complaint and expressed desire to cooperate with her. In an interview with The New York Times, Powells attorney suggested that his clients expenditures only became an issue after the organization turned on Powell and that restitution was made.

The National Rifle Association is one of the most powerful special interest groups in America.We're investigating how it spends its money.

Im neither the villain nor the hero of this story, Powell writes. Instead, I feel like Im kind of a pilgrim who lost his way, who abandoned his principles and lost his footing, for a time.

The NRAs default approach to raising money and rousing the faithful, he writes, has been to stoke anxiety and fear of stricter gun laws, violent crime, civil disorder while remaining defiant. We only knew one speed and one direction: Sell the fear, Powell writes. LaPierre used the tactic time and again to boost flagging donations. A boogeyman, like a Democrat in the White House, always helped. It was a crazy time, Powell writes of President Barack Obamas eight years in office. The membership money and donations were an open spigot at that point. And if we needed more, Wayne would just pour gasoline on the fire, as he put it.

Powell describes the NRA as dysfunctional. I saw incredible incompetence, a culture of political backbiting and a Game of Thrones atmosphere that people outside our Merchants of Death bubble would never believe. Rather than being a well-oiled, data-driven lobbying machine, we were stuck back in the Dark Ages. There was no war room at the NRA, no coordinated effort between our lobbyists. There was no data machine that kicked out metrics the way a top-notch lobbying shop would have. As Wayne said to me on many occasions, Josh, come on, you know its all smoke and mirrors. The Wizard of Oz, just pull back the green curtain.

LaPierre is intelligent and shrewd about politics, according to Powell, but an abysmal leader. He fears confrontation, Powell says, and is unable to manage the organizations many egos, allowing crises of all sorts to fester. Powell describes La Pierre as temperamentally ill-suited to his post, and writes that he would often disappear, to God knows where, for a few days, or a week or two at a time, checking in but not divulging where he was. LaPierre feels little duty to others, Powell suggests, and has failed to acknowledge how his own missteps have contributed to the NRAs current predicament. Wayne feels that he has sacrificed everything to the NRA, Powell writes. That he is the NRA. That he is owed something, somehow. That he is the Jesus Christ of the Second Amendment, hands nailed to the cross. And that is how he justifies his actions in his mind. Why do I think that? Because I heard it from him for years.

Most surprisingly, Powell faults the organization for its reluctance to give even modest ground in the debate over firearms in America. In the book he states his support for a slew of measures, from improved data collection and research on gun violence to implementing universal background checks, which he predicts could move the debate in a more productive direction. At the top of Powells list however, is regime change at the NRA, which he alleges has fueled a toxic debate by appealing to the paranoia and darkest side of our members, in a way that has torn at the very fabric of America.

More:
NRA Tell-All Says Wayne LaPierre Sees Himself as Jesus of the Second Amendment - The Trace

Crook County resident hosting event to encourage conservatives to get informed, get engaged and get connected

In a time where the COVID pandemic, the Black Lives Matter movement and gun control legislation remain ongoing hot-button issues, a Crook County resident is hoping to encourage politically conservative locals to "rise up."

Chuck Banks, who has called Prineville home since 2012, is a registered Republican who feels that now is an important time for his fellow conservatives to get informed, get engaged and get connected. To spur that action, he has launched "Rise Up America Wake the Sleeping Giant," a local rally that will feature patriotic music, three guest speakers, and a question and answer forum. It will take place at 5 p.m. on Thursday, Sept. 17 in Ochoco Creek Park.

Banks believes the U.S. is under attack, but unlike the Pearl Harbor attack where the country faced a foreign invader, he contends America is battling domestic forces from within.

"They seek to overthrow our constitution, our republic and our American way of life," he said. "Their goal is to change our form of government into socialism or communism."

The rally is intended to bring conservatives together, arm them with reputable information and encourage them to use what they learn to speak up and affect change. What Banks hopes to avoid, however, is the shouting matches and altercations that have marred other recent protests, locally and throughout the country. He contends that no minds were changed by that behavior and the heated, personal attacks prevented the intended message from being heard.

Banks said that he has seen a lot of people address the personal issues of elected officials, speaking out against their personality or other decisions and traits that are not directly related to public policy.

"I don't make my decisions based that way. I base them on policy issues," he said. "When I look at policy issues, the bottom line is who do you agree with and place your vote according to who you agree with."

The rally is geared toward conservatives, although Banks said people of any political leaning are welcome. It will lead off with the playing of patriotic music. A local pastor will then give an invocation and then a local resident will sing the national anthem. Guest speakers will take the stage next. Chris Brumbles from Oregon Federation of Firearms will lead off, speaking on Second Amendment and constitutional issues. Dr. Vern Saboe Jr., whom Banks said will be flown in by Oregon Sen. Tim Knopp, will speak next, addressing the current COVID pandemic. The final speaker will be current Oregon House District 55 Rep. Vikki Breese-Iverson. The Prineville-based Republican took office 2019.

The event will conclude with a question and answer session during which audience members can ask questions or offer comments to the guest speakers or to the audience.

Banks expects the rally to last about two and a half to three hours depending on when it starts getting dark. He said he has been in communication with local law enforcement throughout the planning process, and he hopes the way the event is organized an informative presentation rather than a protest will keep it civil.

"My hope is it is going to be an encouragement to conservatives to do your homework, get engaged in the process and basically vote and let your voice be heard," he said.

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Local rally to focus on Second Amendment, COVID and more - Pamplin Media Group