Freedom is Scary Ep. 6: Black Rifle Rights and the FBI Lawyer

Also the new 9th Circuit opinion, firearms history and I’ll show you an authentic Model 1866 Winchester Assault Rifle.

Duncan v. Becerra ruling 9th Circuit:

On Friday, a panel of the 9th Circuit Court of Appeals affirmed (by a 2-1 vote) a federal district court’s ruling that so-called “large capacity” magazines are protected by the Second Amendment. In the live cast, I discussed the ruling and the great foundation it lays for inclusion and equal treatment of AR-15 style rifles in the context of the 2nd and 4th Amendments. I may be the first lawyer to have cited this language, since it came down the same day I filed the brief in the Walker case:

“That LCMs [large capacity magazines] are commonly used today for lawful purposes ends the inquiry into unusualness. But the record before us goes beyond what is necessary under Heller: Firearms or magazines holding more than ten rounds have been in existence — and owned by American citizens — for centuries. Firearms with greater than ten round capacities existed even before our nation’s founding, and the common use of LCMs for self-defense is apparent in our shared national history.

Semi-automatic and multi-shot firearms were not novel or unforeseen inventions to the Founders, as the first firearm that could fire more than ten rounds without reloading was invented around 1580. Rapid fire guns, like the famous Puckle Gun, were patented as early as 1718 in London. Moreover, British soldiers were issued magazine-fed repeaters as early as 1658. As a predecessor to modern revolvers, the Pepperbox pistol design pre-dates the American Revolution by nearly one hundred years, with common variants carrying five to seven shots at the ready and with several European variants able to shoot 18 or 24 shots before reloading individual cylinders. Similarly, breech-loading, repeating rifles were conceptualized as early as 1791.

After the American Revolution, the record shows that new firearm designs proliferated throughout the states and few restrictions were enacted on firing capacities. The Girandoni air rifle, developed in 1779, had a 22-round capacity and was famously carried on the Lewis and Clark expedition. In 1821, the Jennings multi-shot flintlock rifle could fire 12 shots without reloading. Around the late antebellum period, one variant of the Belgian Mariette Repeating Pepperbox could fire 18 shots without reloading. Pepperbox pistols maintained popularity over smaller- capacity revolvers for decades, despite the latter being of newer vintage. At this time, revolving rifles were also developed like the Hall rifle that held 15 shots.

The advent of repeating, cartridge-fed firearms occurred at the earliest in 1855 with the Volcanic Arms lever-action rifle that contained a 30-round tubular magazine, and at the latest in 1867, when Winchester created its Model 66, which was a full-size lever-action rifle capable of carrying 17 rounds. The carbine variant was able to hold 12 rounds. Repeating rifles could fire 18 rounds in half as many seconds, and over 170,000 were sold domestically. The Model 66 Winchester was succeeded by the Model 73 and Model 92, combined selling over 1.7 million total copies between 1873 and 1941.

The innovation of the self-contained cartridge along with stronger steel alloys also fostered development in handguns, making them smaller and increasing their capacities. Various revolver designs from France and Germany enabled up to 20 shots to be fired without reloading. A chain-fed variant, the French Guycot, allowed pistols to carry up to 32 shots and a rifle up to 100 shots. One American manufacturer experimented with a horizontally sliding “row of chambers” (an early stacked magazine) through a common frame, dubbed the Jarre “harmonica” pistol, holding ten rounds and patented in 1862. In 1896, Mauser developed what might be the first semi-automatic, recoil-operated pistol — the “Broomhandle” — with a detachable 20-round magazine. Luger’s semiautomatic pistol hit the market in 1899 and came with seven or eight round magazines, although a 32- round drum magazine was widely available.

In 1935, Browning developed the 13-round Hi-Power pistol which quickly achieved mass-market success. Since then, new semi-automatic pistol designs have replaced the revolver as the common, quintessential, self-defense weapon. Many of these pistol models have increased magazine capacities as a result of double-stacked magazines. One of the most popular handguns in America today is the Glock 17, which comes standard with a magazine able to hold 17 bullets.

Rifle magazine development paralleled that of pistol magazines. In 1927, Auto Ordinance Company released its semi-automatic rifle with a 30-round magazine. A decade and a half later, the M-1 carbine was invented for the “citizen soldier” of WWII. The M-1 remained a common and popular rifle for civilians after the war. In 1963, almost 250,000 M- 1s, capable of holding between 15 and 30 rounds, were sold at steeply discounted prices to law-abiding citizens by the federal government. The ultimate successor to the M-1 was the M-16, with a civilian version dubbed the Armalite Model 15, or AR-15. The AR-15 entered the civilian market in 1963 with a standard 20-round magazine and remains today the “most popular rifle in American history.” The AR- 15 was central to a 1994 Supreme Court case in which the Court noted that semiautomatic rifles capable of firing “only one shot with each pull of the trigger” “traditionally have been widely accepted as lawful possessions.” Staples v. United States, 511 U.S. 600, 602 n.1, 603, 612 (1994). By the early-1970s, the AR-15 had competition from other American rifle models, each sold with manufacturer- standard 20-round or greater magazines. By 1980, comparable European models with similar capacities entered the American market.

The point of our long march through the history of firearms is this: The record shows that firearms capable of holding more than ten rounds of ammunition have been available in the United States for well over two centuries.7 While the Supreme Court has ruled that arms need not have been common during the founding era to receive protection under the Second Amendment, the historical prevalence of firearms capable of holding more than ten bullets underscores the heritage of LCMs in our country’s history. See Heller, 554 U.S. at 582.”

Read the order here:

https://www.firearmspolicy.org/9th-circuit-holds-large-capacity-firearm-magazines-protected-2nd-amendment

Walker Case – the AR-15 Open Carry Case – Opening Brief is filed

Well, here’s our opening brief in the Walker v. Putnam County, et al. open carry case. This went from a relatively simple search and seizure Section 1983 civil lawsuit, to a battle over gun rights and whether or not the AR-15 is entitled to equal treatment under the law at the U.S. Fourth Circuit Court of Appeals. This is the case where my client was stopped, harassed, and called a co@ksucker, twice, for trying to mind his own business and go coyote hunting. Just one nugget out of the video:

It is your fault! Because you co$ksuckers . . . start it.  I ask you for ID – when a law enforcement officer asks you for ID, it’s not “I don’t have to provide it,” it’s “here it is, sir,” because, by law, you fucking got to give it, when you are asked for it.  And if you think you don’t, [then] press the issue, we’ll find out; I’ll hook you, book you, jamb you in the jail; and then you can’t answer to a God damned judge.

At the urging of Putnam County (W. Va.), the Court ruled against us at the trial court level, and well, ruled against AR-15 style rifles as well:

Here, Walker’s possession of an AR-15-style rifle under these circumstances was unusual and alarming. Whereas possessing an AR-15 at a shooting range or on one’s own property would not raise an eyebrow, there was no obvious reason for the rifle’s possession here. Unlike a holstered handgun, like that at issue in U.S. v. Black, AR-15s are not commonly carried for self-defense. 707 F.3d at 535. Nor are they traditionally used for hunting. 

Seeing Walker at 6:00 p.m. in February in an urban area would further diminish an inference that Walker possessed the rifle for hunting because the sun would soon set and hunting after dark is generally prohibited. The rifle being uncased, ready to fire at a moment’s notice, and Walker’s camouflage pants also contributed to an unusual presentation of the firearm. 

(Read the ruling itself here: https://thecivilrightslawyer.com/2020/03/02/federal-court-rules-against-us-in-the-walker-case-let-the-appeal-begin/)

Why might you care about these issues? If you live in the jurisdiction of the Fourth Circuit (WV, VA, MD, NC, SC), and in particular one of the open carry states therein (WV, VA, and NC) then the outcome of this case will affect your rights one way or the other. We’ve had a couple of really bad gun rights decisions handed down in the Fourth Circuit in 2017 (US v. Robinson and the Kolbe case). If we lose this one, our last vestige of gun freedoms, contained in the holding of US v. Black (2013) will be overturned.

Since AR-15 style rifles are completely legal to possess in West Virginia, including in the context of open carry, we had to appeal, and we had to cover a lot of ground in our opening brief. Mind you, there’s a page limit, and I spent hours deleting great arguments I had already written, as well as great quotes I wanted to include, in order to bring it under the page limit:

Here’s a live video I did on the case last night. The entire incident was recorded, and is shown/discussed at around the 12:00 mark. The original video’s still up on our channel as well.

Here’s the original video, if you haven’t seen it already:

The legal challenge to the WV Governor continues

Here’s the live cast video I did yesterday on the ongoing fight against the West Virginia Governor’s COVID related executive orders, such as the so-called “mask mandate” and other restrictions:

There was a great article in The Federalist yesterday by Molly McCann, titled, “Governors Can’t Use Coronavirus To Indefinitely Declare A State Of Emergency. This is exactly what I’ve been saying:

Supreme Court Justice Antonin Scalia often noted that the primary safeguard of our constitutional liberties is the structure of our government. Every banana republic has a bill of rights, he once said, but the strength of the American system is the separation of powers.

At the federal level, there are three separate, co-equal branches of government that must operate together for our representative republic to function properly, and this balance of power is mirrored at the state level. Unhappily, our system today is not functioning as designed.

There’s technically nothing currently protecting us from experiencing what’s happening in Australia right now. A governor – especially in WV – could just order us to stay in our homes indefinitely, and nothing currently in place would be able to stop them. The longer we allow unchecked executive control to continue, the greater the damage to our system of government. We in WV have even less protections than other states when it comes to a governor instituting an indefinite state of emergency power grab. At the very least, we’ll still have the ballot box (if the governors don’t restrict us to mail-in voting, of course):

Most state statutes automatically terminate emergency authority after a 30- or 60-day period, unless specifically extended by the governor. This highlights that emergencies are assumed to be of short duration. Our current quandary is that governors are using COVID as an excuse to extend their authority indefinitely.

If the governors are empowered to declare and continue a state of emergency, what is the remedy? The Founders believed the first and most powerful check on the executive would be the ballot box. In modern practice, one of the best checks on the individual policies an executive contemplates has been the resistance of the electorate in real-time. The coronavirus crisis has once again proved that state and local races matter deeply.

Unfortunately, West Virginia’s emergency statute does not have an automatic shut-off valve. It continues until the Governor steps down from the throne, or until a majority of the legislature votes to stop it. Then we have the issue of the legislature not being in session to do so until February of 2021….

As Ms. McCann opines, when the legislature does get a chance to do its thing, rather than just squabble over federal COVID money, they need to take immediate action to stop future gubernatorial tyrants, who very well may be worse than the one we have right now:

To declare emergencies, to close businesses and confine Americans to their homes, to mandate masks, to limit access to churches, to suspend your civil liberties, the governors point to power enumerated by statute—that is, defined by the legislature. Where the legislature defined the terms, it can redefine the terms. Where they are empowered to do so, state legislatures must begin to declare the emergency at an end, rebuke the governors’ power grabs, and recalibrate the allocation of power to its proper balance among the branches.

Unfortunately, rather than reclaiming authority from governors, many state legislatures right now are fighting over which branch gets to decide how to spend the federal dollars states are receiving in emergency aid. It is not clear that the balance of power will naturally revert to normal any time soon.

(emphasis added)

Under West Virginia law, the legislature may not delegate its core legislative responsibility to a governor. They’ve tried before, and were smacked down by the State Supreme Court. But to the extent that it has done so already, or to the extent that the Governor thinks they did so, it needs to be nipped in the bud as soon as possible. The legislature should completely re-write the emergency powers statute to protect the people. And to protect themselves, frankly.

BJJ and Police Use of Force – Freedom is Scary Livecast No. 3

In “Freedom is Scary” LIVE No. 3, I discuss Brazilian Jiu-Jitsu (“BJJ”) with former law enforcement officer and BJJ academy owner/coach, Adam Martin.

Why? Because ever since the death of George Floyd, “chokehold” has been the word of the day. Trump brought them up in his June 16, 2020 Executive Order, and now many states have issued orders, or enacted legislation, banning the use of so-called “chokeholds” by police officers.

The problem is, that the term doesn’t mean what they think it means, and in doing so, they’re changing the rules of self defense for police officers. As with other civil rights, if you allow it to be done to one group of people, it always grows like a virus to include groups of people who were not intended to be affected. In this video we discuss what that means.

On June 16, 2020, President Donald Trump (R) issued an executive order, titled Executive Order on Safe Policing for Safe Communities, addressing changes to policing on June 16, 2020.The order directed the U.S. Department of Justice to create an independent credentialing body that would develop a set of criteria for state and local law enforcement agencies to meet in order to be awarded federal grants. The order stated that the criteria should address excessive use of force, include de-escalation training, and ban the use of chokeholds, except when the use of deadly force is lawful.

The chokehold provisions of Trump’s E.O.:

(i)   the State or local law enforcement agency’s use-of-force policies adhere to all applicable Federal, State, and local laws; and

(ii)  the State or local law enforcement agency’s use-of-force policies prohibit the use of chokeholds — a physical maneuver that restricts an individual’s ability to breathe for the purposes of incapacitation — except in those situations where the use of deadly force is allowed by law.

Just what in the hell does that mean anyways…..

Many states have followed suit, banning “chokeholds.” Most notably, I’ll point out that Connecticut actually got the terminology correct, successfully banning pretty much every good submission you’ll see on the UFC.

On July 31, 2020, Governor Ned Lamont (D-Conn.) signed a policing policy bill into law. Under HB 6004, the following was enacted, according to the governor’s office:

On June 15, 2020, Lamont signed an executive order to change law enforcement strategies. The order banned “the Connecticut State Police from using chokeholds, strangleholds, arm-bar control holds, lateral vascular neck restraints, carotid restraints, chest compressions, or any other tactics that restrict oxygen or blood flow to the head or neck,” according to a press release from the governor’s office.

You’ll have to watch the discussion to see what Adam has to say about this policy, but it has something to do with not being a state trooper in Connecticut…..

Update: Podcast version: https://thejohnbryanpodcast.podbean.com/e/freedom-is-scary-no-3-bjj-training-and-police-use-of-force/

Freedom is Scary Livecast No. 2 – WV Delegates Jim Butler and S. Marshal Wilson

Today’s “Freedom is Scary” Livecast discussion with West Virginia patriot legislators, Marshal Wilson and Jim Butler. On our lawsuit against the WV Governor, freedom, history, the gubernatorial race, and more.

Download or listen to the audio-only Podcast version: https://thejohnbryanpodcast.podbean.com/e/freedom-is-scary-episode-2-lawsuit-against-wv-governor/

WV Governor’s proposed Travel Ban is unconstitutional

Yesterday our Governor, Jim Justice, in one of his live-stream briefings, threatened to order a travel ban of sorts, where any West Virginia resident who leaves the state will be forcibly tested for COVID-19 and quarantined. Before I even get to the potential Fourth Amendment violations which he’s proposing, the restrictions on interstate travel – that is traveling between states – is about as clear-cut of a violation as you can get.

These are his words:

Mandatory testing and quarantining when residents return to the state from out of state travel “is on the table,” Justice said.

Gov. Justice says mandatory testing and quarantining are ‘on the table’ for out of state travel after increase in COVID-19 cases and hospitalizations

The Governor in Kentucky tried this and was shot-down in federal court. Kentucky attorney, Chris Weist, sued the Kentucky Governor in federal court in response to his “travel ban,” and the Court found it to be clearly unconstitutional. The Kentucky ban “limited the reasons that Kentucky residents could leave the state and required that any person who left the state without a valid reason be self-quarantined for 14-days after their return.”

As outlined in Beshear’s two executive orders, order 2020-206 and 2020-258, individuals were only permitted to leave the state for employment, to receive or provide health care, to obtain groceries or other needed supplies, and when they were required to do so by a court order. The orders also allowed a resident to travel outside the state to assist in caring for the elderly, a minor, dependants, or vulnerable or disabled persons.

Kentucky’s Covid-19 Travel Ban Ruled Unconstitutional

The U.S. District Court for the Eastern District of Kentucky struck it down:

After careful review, the Court concludes that the Travel Ban does not pass constitutional muster. The restrictions infringe on the basic right of citizens to engage in interstate travel, and they carry with them criminal penalties.

The “‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence.” Saenz v. Rose, 526 U.S. 489, 498 (1999) (quoting United States v. Guest, 383 U.S. 745, 757 (1966)). Indeed, the right is “virtually unconditional.”Id. (quoting Shapiro v. Thompson, 394 U.S. 618, 643 (1969)). See also United States v. Guest, 383 U.S. 745, 757 (1966) (“Theconstitutional right to travel from one State to another … occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established andrepeatedly recognized.”).

Roberts v. Neace, et al., Civil Action No. 2:20-cv-054, E.D. KY., May 4, 2020.

The federal court in Kentucky went on to say that it is possible that it might be constitutional if it were less restrictive. For instance, if it was a “request,” or “guidance,” rather than something that was going to be forcibly enforced. Or at least attempted to be enforced.

The key is that restriction on travel must be narrowly tailored so as to choose the least drastic means of achieving the objective. The federal court in Kentucky gave the following examples of individuals who would be unconstitutionally affected by the Kentucky ban:

  1. A person who lives or works in Covington would violate the order by taking a walk on the Suspension Bridge to the Ohio side and turning around and walking back, since the state border is several yards from the Ohio riverbank.
  2. A person who lives in Covington could visit a friend in Florence, Kentucky (roughly eight miles away) without violating the executive orders. But if she visited another friend in Milford, Ohio, about the same distance from Covington, she would violate the Executive Orders and have to be quarantined on return to Kentucky. Both these trips could be on an expressway and would involve the same negligible risk of contracting the virus.
  3. Family members, some of whom live in Northern Kentucky and some in Cincinnati less than a mile away, would be prohibited from visiting each other, even if social distancing and other regulations were observed.
  4. Check points would have to be set up at the entrances to the many bridges connecting Kentucky to other states. The I- 75 bridge connecting Kentucky to Ohio is one of the busiest bridges in the nation. Massive traffic jams would result. Quarantine facilities would have to be set up by the State to accommodate the hundreds, if not thousands, of people who would have to be quarantined.
  5. People from states north of Kentucky would have to be quarantined if they stopped when passing through Kentucky on the way to Florida or other southern destinations.
  6. Who is going to provide the facilities to do all the quarantining?

Most, if not all, of the same examples would occur here in West Virginia, if the Governor had his way. There can be little doubt that a federal challenge would be successful. The question is, does he care?

ALSO, DON’T FORGET TO SUBSCRIBE BY EMAIL. NO SPAM, JUST POST NOTIFICATIONS.

UPDATE: the Livecast:

Also, here’s the link to the 1969 law review article I discussed:

Constitutional Protection for Freedom of Movement: A Time for Decision by Sheldon Elliot Steinbach, Kentucky Law Journal, 1969

And here’s the quote and cite for the 1849 case I mentioned:

For all the great purposes for which the Federal Government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members ofthe community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.

Smith v. Turner, 48 U.S. 7 283, 292 (1849).

UPDATE 8/18: the podcast audio from the live cast:

https://thejohnbryanpodcast.podbean.com/e/freedom-is-scary-episode-2-lawsuit-against-wv-governor/

FRIDAY FIGHT – LIVE UPDATE

LIVE AT NOON TODAY. Watch here, on Youtube Live, or an Facebook Live.

I haven’t yet begun to fight, is the theme of the week. Many fights are ongoing, and many are waiting on deck. In this video, I give an end-of-the-week update to many of the civil rights cases we’re currently fighting, as well as some of the current real civil rights issues, in my opinion, of course. Some of the thecivilrightslawyer.com blog posts from this week, in case you missed them:

Delegating our Freedom to a Czar: https://thecivilrightslawyer.com/2020…

COVID Tyranny and the Truth: https://thecivilrightslawyer.com/2020…

Radio Interview Responding to the Attorney General: https://thecivilrightslawyer.com/2020… The Imminent Eviction Wave: https://thecivilrightslawyer.com/2020…

Follow on Facebook: https://www.facebook.com/JohnBryanLaw

Note: Maryland’s highest court affirms that police can’t use the smell of marijuana to search and arrest a person

ETA: during the live cast I mentioned my hemp-law-guru who told me about the MD marijuana case. I should have mentioned, that’s Jennifer Mason, Esq. She’s the go-to person for up-to-date hemp law around the country.

Delegating our Freedom to a Left-Wing University

I watched a little bit of the West Virginia Governor’s daily live press conference. After he finished mumbling, he introduced our “Czar,” Dr. Clay Marsh, who is apparently the person running our State (as a Czar does) this summer, and doing so in the nature of a Far East authoritarian regime. See Singapore. This is being done without any involvement of the “free people” of West Virginia, as our Constitution calls us. Nor our elected representatives.

Our “Czar” speaking to his people today during the live cast.

This is a “Czar” by the way – the first one, actually. His name was Ivan the Terrible. He ruthlessly crushed the Russian aristocracy (you know, like the billionaire coal barons) and established autocratic (dictatorship) rule in Russian, which would continue all the way through modern times.

Who is our unelected Czar? He’s the chief health officer at WVU, overseeing their hospitals and medical school. This may provide some context as to why a Red State governor is acting like a Blue State governor, in terms of unconstitutional restrictions on individual liberties. Like most other public universities in 2020, WVU is a bastion of left-wing politics which is far out of line with the conservative West Virginia populace.

Case in point: Just a few days ago at WVU, the Chief of their campus police department was participating in a Zoom meeting – apparently an “online diversity event – and onlookers observed a #thinblueline flag inside his home. Obviously this is a pro-law enforcement flag. My town has one on the official town welcome/goodbye sign, along with the civic groups and church signs. I think people misunderstand what it actually means. But in any event, it has become a symbol of support for police officers. My criticism has always been that it implies that good cops protect the bad ones. But clearly, it means just pro-police to most people. And now the volunteer fire guys and EMS guys have their own versions. There’s probably twenty types now. It’s certainly nothing you would be surprised to find in the home of a police officer, or a bumper sticker, or whatever.

The Chief and the TBL flag.

This guy wasn’t even publicly flying his flag – it was in his house. His house!

Within hours of this TBL flag being spotted in his home, WVU professors were demanding that he be fired, and he was forced (presumably) to issue an apology, which is still now prominently displayed on WVU’s website.

“I am committed to rebuilding that trust beginning today. I am taking the flag down from my office wall,” he concluded.

Literally a screenshot off WVU’s main website. Taken today.

Even after apologizing, WVU professors were still demanding his resignation. WVU’s English Department professor retweeted the apology and commented that “[t]he Blue Lives Matter flag is associated with white supremacy.”

Professor of Biochemical Genetics, Vagner Benedito, was still calling for his resignation.

Professor Benedito continued his comments, as reported by Campus Reform:

“Campus police chief is a position we all should trust. POC will not be trusting his leadership. Moving forward, he must resign to make sure there is inclusions and equality regarding the police actions on campus!” Benedito wrote.

Benedito told Campus Reform that it while it would be “ludicrous” to expect Chedester to remove the flag from his office, he does “expect the police on campus to defend everyone, including minorities,” and believes that Chedesters’ possession of the flag demonstrates his unwillingness to do so. 

“As you already know, that flag was crafted to oppose the Black Lives Matter movement, even though historically police lives have always mattered while black lives have been taken away by systematic police brutality over and over again,” Benedito said.

Benedito added that he did not find Chedester’s apology letter “convincing.”

“If he was indeed ignorant about its meaning, he should not be in a position of so much power for being so much misinformed about the current situation of the country, especially in matters involving the police,” Benedito told Campus Reform.

“To be clear, the diverse community at WVU and allies are demanding the replacement of WVU Chief Police moving forward,” Benedito said.

https://www.campusreform.org/?ID=15266

If it were me, I would have let them fire me, and then I would have sued them for retaliation against my First Amendment rights to freedom of speech. That would be a very clear case, and it would probably do well (Hint, hint). But there’s much more.

This is the same WVU that is promoting the anti-American “1619 Project,” in an attempt to destroy our history, culture, way of life, and Constitution. This is an effort led by left-wing academics and social justice warriors to “reframe” American history. Instead of America’s founding being 1776, they teach now that the date is 1619, when the first African slaves were brought to Virginia.

https://diversity.wvu.edu/resources-and-training

Never mind the inconvenient truth that the Colony of Virginia attempted to make slavery illegal in 1763, but the bill was vetoed by King George III and Parliament (hence the phrase “no taxation without representation”). In fact, the Declaration of Independence included 27 Grievances, the first of which included complaints that England had stopped American colonies from banning or restricting slavery in their colonies, including Virginia.

In case you didn’t know, the slave trade was a major component of the British economy throughout the 18th century, as well as in the early 19th century. England didn’t even abolish slavery until the 1840s, which I’m sure was wholly unrelated to the reality that the market no longer existed for the most part, due to the loss of many of their colonies in the New World.

Even well known historians are pissed about this.

Over the last few months, a number of respected historians in America have had very critical comments about the New York Times endeavor. Jarrett Stepman, author of The War on History: The Conspiracy to Rewrite America’s Past, has collected the opinions of these historians.

Allen Guelzo is a renowned historian and professor at Gettysburg College. He called the 1619 Project an example of bad history wrapped in destructive ideology. He added that it amounted to a “conspiracy theory” that is attempting to “tarnish capitalism.”

Gordon Wood is a well-known historian of the American Revolution. I have a number of his books on my shelf. He has criticized the 1619 Project in a number of interviews. He said he was surprised that the New York Times could be “so wrong in so many ways.” He is also concerned that the material is “going out into the schools with the authority of the New York Times behind it.” He fears it will “color the views of all these youngsters who will receive the message of the 1619 Project.”

James McPherson is another respected historian. He observed that the project “left most of the history out” and was appalled that it was put together by “people who did not have a good knowledge of the subject.”

The 1619 Project, by Kerby Anderson, Point of View, https://pointofview.net/viewpoints/1619-project/

But this is what WVU is pushing/teaching. Oh, there’s more. Straight off of WVU’s website:

If it isn’t clear to you that WVU is knee deep in left-wing politics and social engineering, there’s a lot more out there on the topic if you care to look. Heck, take a look at the political donations made by WVU employees since the early 90s. Almost all to Democrats.

Let’s look specifically at the WVU Health Sciences, the WVU Medical School and the WVU Health Sciences Center, who’s guiding our feeble leader at the moment:

Again, this is from 1990 to the present. Look at how politically engaged they are. And look who they support. Look who they don’t support. Do you still think there’s no politics involved here? Do you think our Governor even knows he’s being controlled by left-wing academia? And by extension we are being controlled. I suppose the term, “Czar,” isn’t necessarily subtle irony.

COVID Tyranny: the truth, and why we need our elected representatives to do their job

You probably saw the news that the tech giants are censoring the doctors from the capitol hill press conference yesterday. But, you may have missed the fact that a few days ago a leading researcher – HARVEY A. RISCH, MD, PHD , Professor of Epidemiology at Yale School of Public Health – published an op-ed in Newsweek about a politically-suppressed paper he recently published in the American Journal of Epidemiology. Dr. Risch gave us the astonishing news that we basically already have what amounts to successful and inexpensive cure to COVID-19! But because of politics and corporate greed, the cure (and his research) is being suppressed. I mean, why stop thing now that the governors are just getting their groove on? Am I right?

As professor of epidemiology at Yale School of Public Health, I have authored over 300 peer-reviewed publications and currently hold senior positions on the editorial boards of several leading journals. I am usually accustomed to advocating for positions within the mainstream of medicine, so have been flummoxed to find that, in the midst of a crisis, I am fighting for a treatment that the data fully support but which, for reasons having nothing to do with a correct understanding of the science, has been pushed to the sidelines. As a result, tens of thousands of patients with COVID-19 are dying unnecessarily. Fortunately, the situation can be reversed easily and quickly.

The Key to Defeating COVID-19 Already Exists. We Need to Start Using It | Opinion, by HARVEY A. RISCH, MD, PHD , PROFESSOR OF EPIDEMIOLOGY, YALE SCHOOL OF PUBLIC HEALTH, https://www.newsweek.com/key-defeating-covid-19-already-exists-we-need-start-using-it-opinion-1519535
A screenshot of Dr. Risch’s profile on Yale’s website.

Dr. Risch was flabbergasted that the success of the highly inexpensive Hydroxychloroquine treatment was being downplayed in favor of some potential future vaccine, which no doubt is going to be extremely expensive and difficult to obtain.

On May 27, I published an article in the American Journal of Epidemiology (AJE) entitled, “Early Outpatient Treatment of Symptomatic, High-Risk COVID-19 Patients that Should be Ramped-Up Immediately as Key to the Pandemic Crisis.” That article, published in the world’s leading epidemiology journal, analyzed five studies, demonstrating clear-cut and significant benefits to treated patients, plus other very large studies that showed the medication safety.

The Key to Defeating COVID-19 Already Exists. We Need to Start Using It | Opinion, by HARVEY A. RISCH, MD, PHD , PROFESSOR OF EPIDEMIOLOGY, YALE SCHOOL OF PUBLIC HEALTH, https://www.newsweek.com/key-defeating-covid-19-already-exists-we-need-start-using-it-opinion-1519535
A description of Dr. Risch’s experience on Yale’s website.

Any time I express doubt about the premise that we have to live forever in a “new normal” with restricted liberty and rights, I get mocked for not being an epidemiologist. Well here’s an epidemiologist for you:

Physicians who have been using these medications in the face of widespread skepticism have been truly heroic. They have done what the science shows is best for their patients, often at great personal risk. I myself know of two doctors who have saved the lives of hundreds of patients with these medications, but are now fighting state medical boards to save their licenses and reputations. The cases against them are completely without scientific merit.

The Key to Defeating COVID-19 Already Exists. We Need to Start Using It | Opinion, by HARVEY A. RISCH, MD, PHD , PROFESSOR OF EPIDEMIOLOGY, YALE SCHOOL OF PUBLIC HEALTH, https://www.newsweek.com/key-defeating-covid-19-already-exists-we-need-start-using-it-opinion-1519535

He explained that he believes (and this is a shocker) that politics have been injected into what should be a basic medical discussion:

Why has hydroxychloroquine been disregarded?

First, as all know, the medication has become highly politicized. For many, it is viewed as a marker of political identity, on both sides of the political spectrum. Nobody needs me to remind them that this is not how medicine should proceed. We must judge this medication strictly on the science. 

The Key to Defeating COVID-19 Already Exists. We Need to Start Using It | Opinion, by HARVEY A. RISCH, MD, PHD , PROFESSOR OF EPIDEMIOLOGY, YALE SCHOOL OF PUBLIC HEALTH, https://www.newsweek.com/key-defeating-covid-19-already-exists-we-need-start-using-it-opinion-1519535

And the results are continuing to look good for this inexpensive treatment:

Since publication of my May 27 article, seven more studies have demonstrated similar benefit. In a lengthy follow-up letter, also published by AJE, I discuss these seven studies and renew my call for the immediate early use of hydroxychloroquine in high-risk patients. These seven studies include: an additional 400 high-risk patients treated by Dr. Vladimir Zelenko, with zero deaths; four studies totaling almost 500 high-risk patients treated in nursing homes and clinics across the U.S., with no deaths; a controlled trial of more than 700 high-risk patients in Brazil, with significantly reduced risk of hospitalization and two deaths among 334 patients treated with hydroxychloroquine; and another study of 398 matched patients in France, also with significantly reduced hospitalization risk. Since my letter was published, even more doctors have reported to me their completely successful use.

The Key to Defeating COVID-19 Already Exists. We Need to Start Using It | Opinion, by HARVEY A. RISCH, MD, PHD , PROFESSOR OF EPIDEMIOLOGY, YALE SCHOOL OF PUBLIC HEALTH, https://www.newsweek.com/key-defeating-covid-19-already-exists-we-need-start-using-it-opinion-1519535

Want to read the paper for yourself? Here it is. This is the “abstract” summarizing the paper’s research and findings. The research itself, albeit with watermark, follows:

More than 1.6 million Americans have been infected with SARS-CoV-2 and >10 times that number carry antibodies to it. High-risk patients presenting with progressing symptomatic disease have only hospitalization treatment with its high mortality. An outpatient treatment that prevents hospitalization is desperately needed. Two candidate medications have been widely discussed: remdesivir, and hydroxychloroquine+azithromycin. Remdesivir has shown mild effectiveness in hospitalized inpatients, but no trials have been registered in outpatients. Hydroxychloroquine+azithromycin has been widely misrepresented in both clinical reports and public media, and outpatient trials results are not expected until September. Early outpatient illness is very different than later hospitalized florid disease and the treatments differ. Evidence about use of hydroxychloroquine alone, or of hydroxychloroquine+azithromycin in inpatients, is irrelevant concerning efficacy of the pair in early high-risk outpatient disease. Five studies, including two controlled clinical trials, have demonstrated significant major outpatient treatment efficacy. Hydroxychloroquine+azithromycin has been used as standard-of-care in more than 300,000 older adults with multicomorbidities, with estimated proportion diagnosed with cardiac arrhythmias attributable to the medications 47/100,000 users, of which estimated mortality is <20%, 9/100,000 users, compared to the 10,000 Americans now dying each week. These medications need to be widely available and promoted immediately for physicians to prescribe.

Abstract, Early Outpatient Treatment of Symptomatic, High-Risk Covid-19 Patients that Should be Ramped-Up Immediately as Key to the Pandemic Crisis American Journal of Epidemiology, kwaa093, https://doi.org/10.1093/aje/kwaa093
Published: 27 May 2020

Read it for yourself:

So with the West Virginia legislature out of session, and apparently willing to sit this “once-in-our-lifetimes” emergency out, who’s responsibility is it to sort through the facts? Do West Virginians have access to Hydroxychloroquine? Are our medical “Czars” who are making the decisions about whether our businesses get closed or not, reviewing all of the data? Or are they just playing politics?

Do you see why our wise forefathers gave us a system of representative Democracy? We have decision-makers, who have little microphones at their seats so they can argue with each other over disputed facts and policy, with hand little rule-books so that the process is organized. They’re called our delegates, and our senators. We elect them to act on our behalf. And in return they will be accountable to us. Right now nobody is accountable.

“A body of men holding themselves accountable to nobody ought not to be trusted by anybody.” – Thomas Paine.

Radio Interview this morning responding to the Attorney General

Since I mentioned it numerous times during the Tom Roton Show this morning (https://www.iheart.com/podcast/512-tom-roten-morning-show-28270078/episode/civil-right-attorney-says-wv-ag-69145900), here is a copy of our 40 page brief explaining why the Governor’s executive orders are unconstitutional under our State Constitution, before you even get to the lack of due process and so forth. I’ll post a link to the interview when it’s up on the inter-webs.

Yesterday the Attorney General went on the show to explain why he’s not challenging the Governor’s executive orders, and why he believes our lawsuit was required to fail. So I responded. He stated, “The Governor does possess broader powers here to take action than in other places…. but Executive Action must be checked…. so you look to see what is the compelling interest of the Government (strict scrutiny)?”

No, actually the Governor of W. Va. does not have broader powers here as compared to other states. There may be a problematic lack of time constraints, as there should have been in the statutory language, but the actual statutory text itself is pretty narrow, and more restrictive than many other states, as the W. Va. Supreme Court has noted in a previous case interpreting those powers.See State ex rel. Dodrill v. Scott, 352 S.E.2d 741, 177 W.Va. 452 (W. Va. 1986) (“We note that the New Jersey Disaster Control Act defined “disaster” to include “any unusual incident.” Although we express no opinion on the merits of the Worthington cases, we are of the opinion that the term “any unusual incident” is substantially more expansive than either “natural or manmade disaster of major proportions” or “disasters of unprecedented size and destructiveness.”).

Here’s our emergency statute:

§15-5-6. Emergency powers of Governor. 

inds that an attack upon the United States has occurred or is anticipated in the immediate future, or that a natural or man-made disaster of major proportions has actually occurred or is imminent within the state, or that an emergency exists or may be imminent due to a large-scale threat beyond local control, and that the safety and welfare of the inhabitants of this state require an invocation of the provisions of this section. 

The primary authorization under this statute upon which the Governor has relied in the issuance of his executive orders is:

W. Va. Code 15-5-6(c)(6).

To control ingress and egress to and from a disaster area or an area where large-scale threat exists, the movement of persons within the area and the occupancy of premises therein.

This is what the Governor has cited in each of his executive orders as the statutory authorization for his orders. I don’t know about you, but I don’t see anything in there about a statewide stay at home order with no due process. I don’t see anything about mask mandates. I don’t see anything about restrictions on private businesses in counties where there has been no death in 4.5 months of a so-called “State of Emergency.”

For instance, my county – Monroe County – last I checked a few days ago had 5 active cases and 0 deaths since the beginning. Next door, Summers County had 2 total cases and 0 deaths. Gilmer County had 0 cases and 0 deaths. Clay County had 4 cases and 0 deaths. Lewis County had 4 cases and 0 deaths. Roane County had 2 cases and 0 deaths. Wirt County had 1 case and 0 deaths. Ritchie County had 0 cases and 0 deaths, and so on…..

How can any Governor claim that any of these counties were ever a disaster area requiring citizens to stay at home and mandating the closure of their private businesses? He can’t. Not according to the Constitution and the emergency powers statute, anyways.

The Attorney General implied during his interview that, regarding the so-called “mask mandate,” he might feel differently if the Governor imposed sanctions on the violation of his orders. Where has he been? I’ve been contacted already by two separate restaurants in different parts of the state who have been threatened with immediate shutdown for expressing their First Amendment speech pertaining to the mask order. But don’t take my word for it. Here’s the Governor’s own words:

And then there was the elderly barber in the eastern panhandle who was actually arrested for trying to earn a living. He must have missed that. And what about the hundreds of small businesses around our fragile state economy who were forced to close, many of which will probably never reopen? Was that not a sanction imposed without due process? Did anyone have the right to a hearing? To be heard? Did any of those supposedly “free” people even have the right to make the argument that COVID-19 hadn’t created a disaster area in their area?

The AG puts the responsibility of reigning our Governor in on the shoulders of the legislature, because under our Constitution, with a 3/5 vote, they can call themselves into session. No.

Let’s look at basic constitutional law.

The action, or inaction of a legislature cannot amend, suspend, or rescind any text of the Constitution. The Governor’s powers cannot increase by virtue of the legislature not protecting against the Governor attempting to take their constitutional powers. The Governor’s powers cannot increase by virtue of a legislature voluntarily granting the Governor it’s powers. They are not allowed to do so – they have tried.The legislature’s cowardice, bravery, or indifference in interacting with a Governor is a red herring. It’s beside the point.

Why is the Doctrine of Separation of Powers important? Why was it so important that the founding fathers of our state wrote it into our Constitution?

The accumulation of all powers, legislative, executive, and judicial, in the same hands, whether one, a few, or many, whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. – James Madison, Federalist No. 51, 1788