“No Knocks” are in the news following the Breonna Taylor shooting case. What is a “No Knock” warrant and when/how are they legal under federal constitutional law? One of my favorite topics. By favorite I mean that if I was a middle eastern dictator they would flow freely. This has been in the news now following the Breonna Taylor case. I’ll offer some analysis on that case, and also answer other civil rights constitutional law questions, if you have any – since this is LIVE.
Podcast version (audio only):
“No Knock” Warrants and Civil Rights Q&A – FIS Live Ep. 16 – thecivilrightslawyer.com –
Freedom is Scary
“No Knocks” are in the news following the Breonna Taylor shooting case. What is a “No Knock” warrant and when/how are they legal under federal constitutional law? One of my favorite topics. By favorite I mean that if I was a middle eastern dictator they would flow freely. This has been in the news now following the Breonna Taylor case. I’ll offer some analysis on that case, and also answer other civil rights constitutional law questions, if you have any – since this is LIVE.This is the FREEDOM IS SCARY livecast Episode 16. Please join me. It seems to be happening every Monday evening……thecivilrightslawyer.com
Searches and Seizures in the Home and No-Knock Warrants, i.e., the “Knock and Announce” Requirement, Generally:
In the Home: No Warrant? Presumptively Illegal: Searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal by default according to the Fourth Amendment. On the other hand, outside a person’s home, Fourth Amendment protections only apply where there is a “reasonable expectation of privacy.”
Outside the Home: No Warrant? No Need unless REP: To the contrary, the U.S. Supreme Court has found that no presumption exists outside the home, because a person does not have a reasonable expectation of privacy for most “places” outside one’s own home. These unprotected “places” include bank accounts, curbside trash, “open fields,” surrounding one’s home, and so on.
Search of home with a warrant: presumptively legal: So since the inverse is true, all searches of a home, made pursuant to a warrant are presumptively reasonable. The standard for a warrant requires only that “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” It is still a requirement, obviously, that police officers tell the truth when they make their search warrant applications. If it is discovered that false information was intentionally provided to the magistrate, the warrant will be fraudulent, and therefore ineffective. At which point, we’re back to the search being presumptively unreasonable. During the execution of a lawfully-obtained search warrant, officers may temporarily seize the inhabitants of the structure being searched, including handcuffing them.
There is a default “knock and announce” requirement under the Constitution, though it frequently is ignored. Can officers make, or apply, for a no knock entry just b/c the homeowner has a CCW? Check out the 4th Circuit case out of West Virginia, Bellotte v. Edwards (4th Cir. 2011), authored by Judge Wilkinson. Judge Gregory was also on the panel:
The knock-and-announce requirement has long been a fixture in law. Gould v. Davis, 165 F.3d 265, 270 (4th Cir. 1998). Before forcibly entering a residence, police officers “must knock on the door and announce their identity and purpose.” Richards v. Wisconsin, 520 U.S. 385, 387 (1997)….
“In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards, 520 U.S. at 394. The Supreme Court has admonished that “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.” Id. We have thus required a particularized basis for any suspicion that would justify a no-knock entry. See United States v. Dunnock, 295 F.3d 431, 434 (4th Cir. 2002)…..
Of course, the absence of a no-knock warrant “should not be interpreted to remove the officers’ authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed.” Richards, 520 U.S. at 396 n.7. But where, as here, the officers faced no barrier at all to seeking no-knock authorization at the time they obtained a warrant, “a strong preference for warrants” leads us to view their choice not to seek no-knock authorization with some skepticism. United States v. Leon, 468 U.S. 897, 914 (1984)….
To permit a no-knock entry on facts this paltry would be to regularize the practice. Our cases allow officers the latitude to effect dynamic entries when their safety is at stake, but the Fourth Amendment does not regard as reasonable an entry with echoes, however faint, of the totalitarian state…..
It should go without saying that carrying a concealed weapon pursuant to a valid concealed carry permit is a lawful act.The officers admitted at oral argument, moreover, that “most people in West Virginia have guns.” Most importantly, we have earlier rejected this contention: “If the officers are correct, then the knock and announcement requirement would never apply in the search of anyone’s home who legally owned a firearm.” Gould, 165 F.3d at 272; accord United States v. Smith, 386 F.3d 753, 760 (6th Cir. 2004); United States v. Marts, 986 F.2d 1216, 1218 (8th Cir. 1993). We recognized over a decade ago that “[t]his clearly was not and is not the law, and no reasonable officer could have believed it to be so.” Gould, 165 F.3d at 272.
The fact is, ladies and gentlemen, the distance between this platform and the slave plantation, from which I escaped, is considerable — and the difficulties to be overcome in getting from the latter to the former, are by no means slight. That I am here to-day is, to me, a matter of astonishment as well as of gratitude. You will not, therefore, be surprised, if in what I have to say I evince no elaborate preparation, nor grace my speech with any high sounding exordium. With little experience and with less learning, I have been able to throw my thoughts hastily and imperfectly together; and trusting to your patient and generous indulgence, I will proceed to lay them before you.
This, for the purpose of this celebration, is the 4th of July. It is the birthday of your National Independence, and of your political freedom. This, to you, is what the Passover was to the emancipated people of God. It carries your minds back to the day, and to the act of your great deliverance; and to the signs, and to the wonders, associated with that act, and that day. This celebration also marks the beginning of another year of your national life; and reminds you that the Republic of America is now 76 years old. I am glad, fellow-citizens, that your nation is so young. Seventy-six years, though a good old age for a man, is but a mere speck in the life of a nation…..
Fellow Citizens, I am not wanting in respect for the fathers of this republic. The signers of the Declaration of Independence were brave men. They were great men too — great enough to give fame to a great age. It does not often happen to a nation to raise, at one time, such a number of truly great men. The point from which I am compelled to view them is not, certainly, the most favorable; and yet I cannot contemplate their great deeds with less than admiration. They were statesmen, patriots and heroes, and for the good they did, and the principles they contended for, I will unite with you to honor their memory.
They loved their country better than their own private interests; and, though this is not the highest form of human excellence, all will concede that it is a rare virtue, and that when it is exhibited, it ought to command respect. He who will, intelligently, lay down his life for his country, is a man whom it is not in human nature to despise. Your fathers staked their lives, their fortunes, and their sacred honor, on the cause of their country. In their admiration of liberty, they lost sight of all other interests.
They were peace men; but they preferred revolution to peaceful submission to bondage. They were quiet men; but they did not shrink from agitating against oppression. They showed forbearance; but that they knew its limits. They believed in order; but not in the order of tyranny. With them, nothing was “settled” that was not right. With them, justice, liberty and humanity were “final;” not slavery and oppression. You may well cherish the memory of such men. They were great in their day and generation. Their solid manhood stands out the more as we contrast it with these degenerate times.
How circumspect, exact and proportionate were all their movements! How unlike the politicians of an hour! Their statesmanship looked beyond the passing moment, and stretched away in strength into the distant future. They seized upon eternal principles, and set a glorious example in their defense. Mark them!…..
At a time like this, scorching irony, not convincing argument, is needed. O! had I the ability, and could I reach the nation’s ear, I would, to-day, pour out a fiery stream of biting ridicule, blasting reproach, withering sarcasm, and stern rebuke. For it is not light that is needed, but fire; it is not the gentle shower, but thunder. We need the storm, the whirlwind, and the earthquake. The feeling of the nation must be quickened; the conscience of the nation must be roused; the propriety of the nation must be startled; the hypocrisy of the nation must be exposed; and its crimes against God and man must be proclaimed and denounced.
What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour.
Go where you may, search where you will, roam through all the monarchies and despotisms of the old world, travel through South America, search out every abuse, and when you have found the last, lay your facts by the side of the everyday practices of this nation, and you will say with me, that, for revolting barbarity and shameless hypocrisy, America reigns without a rival…….
Fellow-citizens! there is no matter in respect to which, the people of the North have allowed themselves to be so ruinously imposed upon, as that of the pro-slavery character of the Constitution. In that instrument I hold there is neither warrant, license, nor sanction of the hateful thing; but, interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT. Read its preamble, consider its purposes. Is slavery among them? Is it at the gateway? or is it in the temple? It is neither. While I do not intend to argue this question on the present occasion, let me ask, if it be not somewhat singular that, if the Constitution were intended to be, by its framers and adopters, a slave-holding instrument, why neither slavery, slaveholding, nor slave can anywhere be found in it. What would be thought of an instrument, drawn up, legally drawn up, for the purpose of entitling the city of Rochester to a track of land, in which no mention of land was made? Now, there are certain rules of interpretation, for the proper understanding of all legal instruments. These rules are well established. They are plain, common-sense rules, such as you and I, and all of us, can understand and apply, without having passed years in the study of law. I scout the idea that the question of the constitutionality or unconstitutionality of slavery is not a question for the people. I hold that every American citizen has a right to form an opinion of the constitution, and to propagate that opinion, and to use all honorable means to make his opinion the prevailing one. Without this right, the liberty of an American citizen would be as insecure as that of a Frenchman……
Now, take the Constitution according to its plain reading, and I defy the presentation of a single pro-slavery clause in it. On the other hand it will be found to contain principles and purposes, entirely hostile to the existence of slavery……
He ended the speech with this poem:
God speed the year of jubilee The wide world o’er When from their galling chains set free, Th’ oppress’d shall vilely bend the knee,
And wear the yoke of tyranny Like brutes no more. That year will come, and freedom’s reign, To man his plundered fights again Restore.
God speed the day when human blood Shall cease to flow! In every clime be understood, The claims of human brotherhood, And each return for evil, good, Not blow for blow; That day will come all feuds to end. And change into a faithful friend Each foe.
God speed the hour, the glorious hour, When none on earth Shall exercise a lordly power, Nor in a tyrant’s presence cower; But all to manhood’s stature tower, By equal birth! That hour will come, to each, to all, And from his prison-house, the thrall Go forth.
Until that year, day, hour, arrive, With head, and heart, and hand I’ll strive, To break the rod, and rend the gyve, The spoiler of his prey deprive — So witness Heaven! And never from my chosen post, Whate’er the peril or the cost, Be driven.
Even assuming it was constitutional, it doesn’t work. The virus is/was going to take its course. Where the lockdown measures were most tyrannical, the virus spread at the same rate, or even worse. Then there’s the unintended consequences and side effects of keeping people locked down, and destroying their small businesses, which is the reason why we weren’t supposed to attempt lockdowns in the first place.
POST-VIDEO UPDATE: I will be filing a federal lawsuit on behalf of the Bridge Cafe & Bistro in Putnam County, West Virginia, challenging the constitutionality of both the “Stay at Home Order” as well as the Governor’s “Mask Mandate.” You may recall this restaurant’s Facebook post expressing their First Amendment protected speech pertaining to the concept of forcing people to cover their faces:
This social media post, on what is obviously an intense political topic of current days, resulted in the Putnam County Health Board (they’re located in Hurricane, West Virginia) threatening administrative closure, for which they physically inspected the restaurant twice for mask compliance, and then charged them for it. They were dragged through the (actual) media, and through social media, in response to the substantive content of their speech, which is allowable for private citizens to do, but is a big no-no for the Government. Because, the First Amendment. Here’s some of the media aftermath:
Threatened with closure if they didn’t change the content of their opinions, and comply with the unconstitutional “Mask Mandate,” they had no choice but to comply:
We’re suing in federal district court for First Amendment retaliation, under Section 1983, and we’re also challenging the constitutionality of the “Mask Mandate” itself, as well as the “Stay at Home Order,” as it applies to this restaurant and the family who owns it. I’ll post the Complaint as soon as it’s filed. Due to the great timing, we’re now incorporating some of today’s ruling out of Pennsylvania. More about that below:
UpdateNo. 2: Today a federal judge in the Western District of Pennsylvania issued an opinion striking down the Pennsylvania Governor’s order closing “non-life-sustaining” (i.e., non-essential) businesses, as well as the order restricting large gatherings. It was a great opinion, and great timing as well, since we can now incorporate some of it into our federal lawsuit against the West Virginia Governor. It’s not binding in any way in our federal courts, since Pennsylvania is in a separate federal circuit. But it will be great guidance for the Court, and it also incorporates some of the federal rulings in Kentucky, which clipped the wings of their tyrant governor. Some of the highlights:
The fact is that the lockdowns imposed across the United States in early 2020 in response to the COVID-19 pandemic are unprecedented in the history of our Commonwealth and our Country. They have never been used in response to any other disease in our history. They were not recommendations made by the CDC. They were unheard of by the people this nation until just this year. It appears as though the imposition of lockdowns in Wuhan and other areas of China—a nation unconstrained by concern for civil liberties and constitutional norms—started a domino effect where one country, and state, after another imposed draconian and hitherto untried measures on their citizens. The lockdowns are, therefore, truly unprecedented from a legal perspective…..
As with the lockdown, Defendants’ shutdown of all “non-life-sustaining” businesses is unprecedented in the history of the Commonwealth and, indeed, the nation. While historical records show that certain economic activities were curtailed in response to the Spanish Flu pandemic, there has never been an instance where a government or agent thereof has sua sponte divided every business in the Commonwealth into two camps—“life-sustaining” and “non-life- sustaining”—and closed all of the businesses deemed “non-life-sustaining” (unless that business obtained a discretionary waiver). The unprecedented nature of the business closure—even in light of historic emergency situations—makes its examination difficult from a constitutional perspective. It simply does not neatly fit with any precedent ever addressed by our courts. Never before has the government exercised such vast and immediate power over every business, business owner, and employee in the Commonwealth. Never before has the government taken a direct action which shuttered so many businesses and sidelined so many employees and rendered their ability to operate, and to work, solely dependent on government discretion. As with the analysis of lockdowns, the unprecedented nature of the business shutdowns poses a challenge to its review. Nevertheless, having reviewed this novel issue in light of established Due Process principles, the Court holds that the business closure orders violated the Fourteenth Amendment….
An economy is not a machine that can be shut down and restarted at will by government. It is an organic system made up of free people each pursuing their dreams. The ability to support oneself is essential to free people in a free economy. The late Justice William O. Douglas observed: The right to work, I had assumed, was the most precious liberty that man possesses. Man has indeed as much right to work as he has to live, to be free, to own property. The American ideal was stated by Emerson in his essay on Politics, ‘A man has a right to be employed, to be trusted, to be loved, to be revered.’ It does many men little good to stay alive and free and propertied, if they cannot work. To work means to eat. It also means to live. For many it would be better to work in jail, than to sit idle on the curb. The great values of freedom are in the opportunities afforded man to press to new horizons, to pit his strength against the forces of nature, to match skills with his fellow man. Barsky v. Board of Regents of University of State of New York, 347 U.S. 442, 472 (1954) (Douglas, J, dissenting). In a free state, the ability to earn a living by pursing one’s calling and to support oneself and one’s family is not an economic good, it is a human good.
Following many instances of violence, rioting and intimidation in recent months, I’ve seen it said by some of the participants, usually members of so-called Antifa, or BLM, or affiliated groups, the conduct is justified under the auspices that they were engaged in the righteous act of “fighting fascists.” They had no choice. But, as that one guy in Princess Bride once said, you keep saying that word, but I don’t think you understand what that word means . . . .
What is Fascism?
Benito Mussolini created the Fasci Italiani di Combattimento, the precursor to the fascist party, on March 23, 1919 in Milan, Italy. It was basically violent authoritarianism, but with a new name. Basically, using squads of violent militant supporters, they beat and killed their fellow Italians until they complied with their political agenda.
The word “fascism” comes from the Italian word, “fascio,” which means “bundle” – i.e., bundles of people. In ancient Rome, the “fasces” was a bundle of wood with an ax head, which was carried by leaders. We’re often told by the modern leftist movements, involving BLM and Antifa, that you’re either with us, or against you. In other words, you cannot be neutral. This isn’t a new idea. In fact, it’s a classic component of both fascist and communist political movements and regimes. Ruth Ben-Ghiat, an expert on first fascist dictator Benito Mussolini and a professor of History and Italian Studies at New York University, explained in a Time Magazine article last year:
“On March 23, 1919, the Fasci Italiani di Combattimento — a group that grew out of a number of earlier movements that had also used the image of the fascio in their names — met for the first time in Piazza San Sepolcro in Milan. At this rally, Mussolini said that membership in the new group “commits all fascists to sabotaging the candidacies of the neutralists of all parties by any means necessary.”
“Mussolini thought that democracy was a failed system. He thought that liberty of expression and liberty of parties was a sham, and that fascism would organize people under state power,” Ben-Ghiat says. “Their idea was you would be freer because you wouldn’t have any class consciousness. You’re just supposed to worship the nation. It’s nation over class.”
Violence was seen as beneficial to society. Those who did not conform to the ideas, or join the group, were seen as disruptive, and therefore subject to violence.
Who was Mussolini before being the first fascist dictator?
Mussolini was a journalist. He founded the Milan-based newspaper, Il Popola d’Italia, after he left the ranks of the Italian Socialist Party, where he advocated militarism and irredentism (a movement to reunify parts of what was supposed to be “Italy”similar to what Hitler was attempting to do in reunifying the Nazi perception of the true “Germany”). He created an offshoot of socialism, and was very much a socialist, as far as policy goes. The word “socialist” was displayed on the newspaper’s masthead until 1918. See Philip Morgan (2003), Fascism in Europe, 1919-1945, New York: NY: Routledge, p. 27.
So were the fascists also socialists?
Viewed in the context of World War I, Mussolini was a socialist, but disagreed with the Socialist Party on issues of foreign policy – namely, whether to go to war. He left the party when he went to fight in World War I. Accordingly, the fascists declared the socialists to be the enemy over their anti-war policies. Other than the foreign policy issue of whether to fight a war, their domestic policies were substantially the same. This formed the prototype for Hitler’s vision of the Third Reich:
“In the past, there was this idea that Mussolini copied Hitler, but it was actually the other way around for a very long time,” she adds. “Mussolini was in power 11 years before Hitler. He had things all worked out by the time Hitler came to power. Hitler was [initially seen as] a total loser. No one wanted to buy Mein Kampf. No one was interested in him. Then the Great Depression came, and he boomed. [Fascism] is a very important part of Nazism. It began with Hitler wanting to adapt what Mussolini had created. Hitler was such a fan of Mussolini; he was writing him, trying to get an autographed picture, trying to meet him.”
Therefore, fascists were socialists who wanted to go to war. Nazis modeled themselves on the fascists. Consequently, Nazis were socialists – hence their name, The National Socialist German Workers’ Party. Only in English, did we refer to them as just “Nazis.” They were a militaristic, pro-war, socialist party, in Germany.
Were the fascists also communists?
Looking back at the creation of fascism, the Russian Revolution had just occurred, and Mussolini feared the spread of communism would threaten his rise to power. Like the socialists, the communist party didn’t so much differ with him all that much on domestic policies, but they weren’t Mussolini.
“The main way the fascists got to power was by killing off and intimidating what was the largest and most popular party, the Socialist Party,” Ben-Ghiat explains. “Squadrists — terrorists who would descend upon towns in trucks, uniformed in black shirts — had knives and they killed thousands of people in the years 1919 to 1922. The killing went on after Mussolini became prime minister.”
Authoritarian regimes maintain power by force and suppression of opposing ideas and enemies – even if similar. Both communism and fascism glorify an autocratic, centralized and all-powerful government, suppressing individualism. The individual is meaningless in both forms of government. Whereas communism the government owns all means of production and land, fascism allows nominal private ownership – subject to the all-powerful ability of the central government to restrict or destroy such ownership, or course. This looks a lot like the current state of affairs in communist China, where nominal ownership is allowed – if the state allows it because the owner is useful to the state.
Both communism and fascism abolish the concept of religion. The central government – the party, or the State – are the new religion. Again, the large distinction is that “communism” is an international movement, designed to spread beyond borders, like a virus seeking power within each of its new hosts. For obvious reasons, such a movement was the enemy to Benito Mussolini. Italy was not open to the infection of communism, because Benito Mussolini was the sole dictator in Italy – not the Marxists in the Soviet Union.
At the core, fascism and communism both were political viruses designed to spread and take over new territory. Communism sought to spread everywhere. Italian fascism sought to reclaim what Mussolini believed to be his inheritance from the Roman Empire and the Italian Renaissance. Nazism would likewise seek the restoration of traditional lands – “breathing space” – which in turn brought race and ethnicity as a central policy issue. Communism, on the other hand, sought to overwhelm everyone, everywhere, equally destructive to all races and classes of people. Thus, Italian fascists, who didn’t threaten Nazi fascists, and vice versa, were natural allies because they each claimed separate territories. For the same reason, they both opposed the spread of communism. Because such a spread would challenge their primary purposes of maintaining authoritarian dictatorships over their specific geographical area of traditional and cultural importance.
Again, they weren’t all that opposed to each other when it comes to domestic policy goals. Mussolini had originally praised the Bolsheviks in the Russian Revolution of 1917 and publicly referred to himself in 1919 as the “Lenin of Italy.” See Peter Neville, Mussolini, Oxon, England, UK; New York: NY, Routledge, 2004, p. 36; Denis Mack Smith, Modern Italy: A Political History, University of Michigan Press, 1997, first publish in 1959, p. 284.
The Blackshirts were the paramilitary wing of the National Fascist Party, and known as the Squadrismo. They were based upon the Arditi, which was an elite group of Italy’s World War I troops, whose loyalty Mussolini had sought, and obtained. The Blackshirts was largely comprised of affluent intellectuals, rather than peasants, or laborers. They were black uniforms, and used violence and intimidation against Mussolini’s political opponents – growing more violent over time, as Mussolini’s power increased.
Hitler later copied Mussolini, creating his own version of blackshirts – the Brownshirts, who became the Nazi storm troopers.
During the high tide of “squadrismo,” members of the Fasci Italiani di Combattimento movement, who would form the official Fascist party by 1922, mobilized tens of thousands, even hundreds of thousands, of Italian men who carried out thousands of acts of brutal violence within their own communities and neighboring cities, towns, villages, and hamlets…. Fascist attacks against Socialists, according to Benito Mussolini, were like assaults “on an Austrian trench.” He declared, “This is heroism…This is the violence of which I approve and which I exalt. This is the violence of Fascism.”
Like the literal “fascists,” many modern leftist groups, such as BLM and Antifa, have ironically themselves adopted fascist tactics (which in reality are equally attributable to communists). They haven’t reached the level of the Blackshirts, as of yet, but the Blackshirts didn’t build their new Rome in a day. As Mussolini rose in power and strength, so too rose the level of their violence and intimidation:
Fascists interrupted meetings, beat elected officials, and made impossible the work of local government. Socialists in particular were intimidated, threatened, and even beaten until they resigned. The consequences for the Socialist Party, which was entirely unprepared to counter organized, paramilitary violence, were disastrous….
Throughout northern and central Italy, Fascists replicated this feat. Having conquered major provincial centers, Fascists spread out into small towns and hamlets. Major cities provided launching points for attacking other cities. Having consolidated power in these places, the squads then moved into more peripheral areas…. The peasant leagues, cooperatives, labor halls, and social clubs—the entire infrastructure of the Socialist “state”—were intensely parochial institutions, organized around popular, charismatic political and labor leaders.8
Fascist squads thus practiced highly personal, localized strategies of violence and intimidation, attacking the most prominent and influential “subversives” within a given province, town, or comune. Fascists sometimes beat these men, occasionally with homicidal intent, but perhaps more commonly intimidated them until they were forced to leave town, thereby decapitating their organizations. The Fascists spent their weekends chasing prominent peasant leaders across the countryside.
The Blackshirt playbook was really not a whole lot different than “terrorism” as it became to be defined in the post-millineum – albeit, without the religion. It was all about instilling fear, or rather terror, in the minds of the enemy. Not just the enemy either, but in the minds of their innocent family members at home:
Thus, life for labor leaders became terror-filled, especially because Fascists did not limit their attacks to the public sphere. Nowhere was safe. Late at night, 10, 30, or even 100 Blackshirts, as these squad members became known, sometimes traveling from neighboring towns, might surround a home, inviting a Socialist, anarchist, or Communist outside to talk. If they refused, the Fascists would enter forcibly or threaten to harm the entire family by lighting the house on fire.9
In small towns, where everyone knew everyone, Fascists inflicted ritual humiliation on their enemies, a powerful strategy of terror understood by all. Blackshirts forced their opponents to drink castor oil and other purgatives, and then sent them home, wrenching with pain and covered in their own feces. In some cases, squads forced their enemies to defecate on politically symbolic objects: pages of a speech, a manifesto, a red flag, and so on. After administering a castor oil treatment, Fascists sometimes drove prominent anti-Fascist leaders around in lorries in order to reduce them in the eyes of their own supporters.10 They also accosted their opponents in public, stripped them naked, beat them, and handcuffed them to posts in piazzas and along major roadways.11
Although individual working-class leaders might have been willing to live under the constant threat of physical attacks, most were unwilling to subject their families to such danger. Deprived of leadership, meeting places, offices, records, and sympathetic Socialist town councils, the landless peasantry became subject to the landowners’ conventional tactics of strike breaking and intimidation. Having broken the leagues, the Fascists then forced the laborers into “politically neutral” (Fascist) syndicates. Vulnerable peasants had little choice but to join….
The squadrists’ most explicit goal—destroying “Bolshevism”—was rapidly achieved, yet the violence continued unabated. Only by perpetuating this “revolutionary” situation could the Fascist movement undermine the liberal state and continue its push for political power. Additionally, at the local level, violence and criminality persisted more or less independent of any immediate larger political goals. The power of the Ras and the bonds of squadrist camaraderie depended on Fascists sustaining a state of lawlessness and initiating new attacks.12 Illegal activities increased feelings of belonging and emotional interdependence among squadrists, making it more difficult for individual Blackshirts to pull out of the squads or refrain from violent acts. Any retreat, any return to normalcy, would have required dealing with potentially serious legal and psychological consequences.13 Violence thus became cyclical and self-sustaining. Squads perpetuated the environment of terror by constantly identifying new victims. Not surprisingly, due to its intimate nature, Fascist violence was shaped by local conditions: petty feuds, personal rivalries, and other motives beyond mere class warfare.
Scenes of burning and stomping on flags, national, cultural and historic symbols…. It’s all a performance, shrewdly designed to have an effect on the minds of the people who would otherwise be neutral. Remember, you’re either with us, or against us:
Having “conquered” and “pacified” Socialist communities, Fascists next asserted domination over the political and symbolic use of public space. The Fascists tore down red flags, busts of Marx, and Socialist slogans, replacing them with the Italian flag, busts of the king, and the fasces. Marches, parades, and political ceremonies reinforced the perception that the Fascists now dominated public spaces only recently occupied by Socialists. This “performance” of Fascist dominance intimidated real and potential enemies, while also fostering cohesion and solidarity among the Blackshirts. It also served to reassure the provincial bourgeoisie that their dominant social position had been restored. Conservative and even moderate liberal provincial newspapers expressed support for the Blackshirts, praising their “patriotism” and respect for “law and order.”
The new Fascist “state within a state” was very different from the preceding two years of Socialist hegemony. Through illegal violence, rather than elections, Fascists controlled government administration and destroyed the offices, newspapers, and cultural and social organizations of the Socialists, trade unions, and peasant leagues. Cyclical violence directed against local leaders prevented Socialists from reorganizing. Mass demonstrations, supported by the police and property-owning classes, were patriotic, reaffirming the primacy of the nation over internationalism. Politically, economically, and socially, traditional elites had reasserted their dominance over the laboring classes….
Fascists also raided the homes of nationally prominent politicians—including the former prime minister, Francesco Nitti—throwing their books and furniture out the window and lighting the pile on fire. Meanwhile, in the provinces, Fascists seized control of local administrations that had resisted up until then. By the end of 1922, Fascists or pro-Fascists controlled virtually every communal administration in Italy. Finally, the freedom of the press was severely curtailed. In the days following Oct. 28, 1922, Fascists prevented most major dailies from publishing news of events.
On Oct. 29, 1922, the Italian king appointed Mussolini prime minister. Mussolini presided over a mixed cabinet consisting of Fascists, Nationalists (who were absorbed by the Fascists in 1923), Liberals, and Popolari. Many political elites assumed that a Mussolini government would bring an end to two years of violent disorder, but it did not. By taking the portfolio of minister of the Interior for himself, he controlled the Italian police. Political violence in the years after the March on Rome continued to serve the same purposes as before: it suppressed opposition, replaced Socialist and non-Fascist administrations, and extended Fascist control over the rest of Italy. Mussolini occasionally decried the illegal activities of the squads, but they operated as the motor that drove his government along the road to dictatorship.
In 1932, Antifaschistische Aktion (a.k.a., Antifa) was formed in the Weimar Republic by members of the Communist Party of Germany. The modern-day “Antifa” has appropriated their name and a modified version of their logo. They’re not the only ones. The Maoist Communist Party in China did the same, along with other later Marxist authoritarian regimes and groups. It’s been a common tactic utilized by communists ever since the 1930s. While 1932 Germany did indeed have a problem with actual fascists in the government, in true communist fashion, the epithet “fascist” didn’t necessarily refer only to a Nazi. Rather, it was used to describe capitalist society in generally and virtually any anti-Soviet or anti-Stalinist activity or opinion. The term anti-fascist became ubiquitous in Soviet and communist party usage, where it became synonymous with the party line. See Pike, David (1982). “German Writers in Soviet Exile, 1933–1945”. The American Historical Review. 88 (1): 8–9. doi:10.1086/ahr/88.1.133-a. ISSN 1937-5239.
Thus, when the “Antifa” rioters, or the BLM “peaceful protestors” are engaging in what appears to be violence and/or intimidation, similar to what the Blackshirts used to do, they justify their actions utilizing a theory that the ends justifies the means, because they’re “fighting fascists.” The big difference between 2020 United States and 1932 Europe, is that they literally are not fighting fascists. There are many things. But they literally are not fighting fascists. Fascists are not Republicans, nor Maga-hat-wearing Trump supporters. No historical component of the United States had anything to do with fascists, except being the actual one’s to finally destroy the literal fascists – Nazi Germany and Mussolini’s Italy. And also the Soviet Union, which is basically the same thing, as far as domestic policy goes. Fascists do not promote, protect and preserve religion. Fascists do not believe in the natural rights of man to life, liberty and the pursuit of happiness. Antifa is literally fighting against non-fascists. Whether they’re neutral, or Maga-hat-wearers, or whether they’re so-called right-wing militia types, they’re literally not fascists. If they were, they’d probably be the best of friends, because in theory, they only disagree on foreign policy issues. And even Trump, the head fascist of 2020, is vocally anti-war compared to his Republican Neocon predecessors.
So what’s the end-goal? Where is this all going? What does Antifa/BLM/communism want? Just as history tells us what fascism is, and what communism is, by what their actions have been in the past, and how they were created and maintained their power, history also teaches where they will take us, if given the opportunity.
Spanish Civil War
The culmination of the real fascists in 1930s Europe, competing with the real communists of 1930s Europe, as well as communists led by the Soviet Union, resulted in a civil war of epic proportions in Spain, which illustrated the real end-game of so-called anti-fascist groups. This is where the want to go, assuming they are sufficiently supplied and supported. It lasted from 1936 to 1939. An unknown number of people, from 500,000 to one million, would die in the war, ending in an even-more brutal dictatorship which would rule Spain well into the 1970s.
Leading up to the Spanish Civil War, there was an eerily familiar environment of violence and polarization. According to Stanley Payne, by July 1936, the situation in Spain had deteriorated massively. Spanish commentators spoke of chaos and preparation for revolution, foreign diplomats prepared for the possibility of revolution, and an interest in fascism developed among the threatened. Payne states that, by July 1936:
“The frequent overt violations of the law, assaults on property, and political violence in Spain were without precedent for a modern European country not undergoing total revolution. These included massive, sometimes violent and destructive strike waves, large-scale illegal seizures of farmland in the south, a wave of arson and destruction of property, arbitrary closure of Catholic schools, seizure of churches and Catholic property in some areas, widespread censorship, thousands of arbitrary arrests, virtual impunity for criminal action by members of Popular Front parties, manipulation and politicisation of justice, arbitrary dissolution of rightist organisations, coercive elections in Cuenca and Granada that excluded all opposition, subversion of the security forces, and a substantial growth in political violence, resulting in more than three hundred deaths.”
Payne & Palacios 2014, p. 117.
Society was severely polarized, with constant confrontations between the left and the right (i.e., the communists and fascists, so more accurately left vs. other left):
Laia Balcells observes that polarization in Spain just before the coup was so intense that physical confrontations between leftists and rightists were a routine occurrence in most localities; six days before the coup occurred, there was a riot between the two in the province of Teruel. Balcells notes that Spanish society was so divided along Left-Right lines that the monk Hilari Raguer stated that in his parish, instead of playing “cops and robbers”, children would sometimes play “leftists and rightists.”
Balcells, Laia. Rivalry and revenge. Cambridge University Press, 2017. pp. 58–59.
The government was allowing one side to commit acts of violence and to destroy property, and to get away with it, while the other side would be prosecuted. In addition, there was a purposeful class warfare and social justice propaganda, bringing tensions to a boiling point:
Within the first month of the Popular Front’s government, nearly a quarter of the provincial governors had been removed due to their failure to prevent or control strikes, illegal land occupation, political violence and arson. The Popular Front government was more likely to persecute (i.e., prosecute) rightists for violence than leftists who committed similar acts…
Workers increasingly demanded less work and more pay. “Social crimes” – refusing to pay for goods and rent – became increasingly common by workers, particularly in Madrid. In some cases this was done in the company of armed militants. Conservatives, the middle classes, businessmen and landowners became convinced that revolution had already begun.
Seidman, Michael (2011). The Victorious Counter-revolution: The Nationalist Effort in the Spanish Civil War. University of Wisconsin Press.
Tragically, the Spanish Civil War was characterized by the inability for historians to even determine the number of people who died in the process. Both sides utilized what were essentially death squads, killing both civilians and combatants. Maybe the one thing that everyone can agree on, is that Spain was destroyed in the process, and never really recovered.
We’ve already had one Civil War, and there can be no doubt, if you look at the history of communist “anti-fascists,” that’s where they want to take us.
A Maryland state employee was just fired for political opinions he privately posted on Facebook. Freedom of Speech is a vital part of our Republic; so important that our Founding Fathers put it right no. 1 in the Bill of Rights – in the First Amendment. The right to express your opinions on political issues of the day, without the government punishing us for doing so. However, this is exactly what’s been happening on social media, as illustrated by the case of Arthur “Mac” Love, a former state employee in Maryland, who was just fired for posting political opinions and political memes on and from his private Facebook page.
Some intolerant left-leaning politicians in Maryland decided that opposing, or conservative, points of view could not be expressed by a state employee, and pressured the Governor of Maryland to fire this man, which he abruptly did, apologizing for having an employee who expressed speech that many would deem unpopular or controversial.
However, Americans have a right to freedom of speech, do they not? If they suffer retaliation for their free speech expressions, even on social media, that’s called First Amendment Retaliation, and is a civil rights violation, just as being unnecessarily beaten or shot by the police is, and justice can be sought through a civil lawsuit under 42 U.S.C. 1983.
Join me in Freedom is Scary, Episode 10, on this very topic. Live on here, Youtube, or Facebook.
What are our “rights” as law abiding citizens and/or property owners, when it comes to violent rioters or protestors? Are AR-15s treated differently? Episode 9 of FIS gets to the heart of the concept that “freedom is scary,” so questions need to be discussed. Join me LIVE and bring your own questions, if you’ve got them. Here are some good ones:
Can you unlawfully possess a firearm and then lawfully use that firearm in a self defense situation?
Can you and should you be able to defend private property with deadly force, and if not, can the law be changed in your state?
Were there new information releases today relevant to the probable legality of self defense for Kyle Rittenhouse?
Does the mention of “militia” in the 2nd Amendment have any applicability?
What federal circuit covers Wisconsin and has it been favorable to the exercise of 2nd Amendment rights and the right of self defense in the context of AR-15 style rifles?
The Rittenhouse shootings were the next logical step of violent riots, combined with government leaders who allow them to occur. What happens when the right to riot collides with the natural rights or life, liberty and the pursuit of happiness? Or more specifically, the right to life, i.e., the right to self defense? It may be a new normal in 2020, but we build courthouses for a reason: to sort out the facts, and apply the law. The difficult part is to ensure a fair trial without the media poisoning the potential jury pool with misinformation, and misnomers, such as “armed vigilante,” “assault rifle,” “peaceful protestors,” and so on, and to let the true facts fall where they may. In the end, our Founders demanded, and ensured, that we have the right to a jury of our peers for a very good reason. That’s the only thing standing in between an individual in this position, and a lifetime of being locked away in a cage.
The facts can be sorted out. There are multiple videos of the incident. There will be many pictures and screenshots, and slow motion, or frame by frame versions of the incidents. Easier to determine is, what sort of laws will be applied here?
Possession of Firearms in Wisconsin and Illinois:
Wisconsin firearms law provides for open carry of loaded rifles and pistols for those 18 and older not otherwise prohibited from possessing firearms. Unless Rittenhouse’s age has been incorrectly reported he would be in violation of these statutes. Similar statutes exist in Illinois. Further, in Wisconsin and Illinois, providing an underaged individual with a firearm is a felony. It seems safe to assume that Rittenhouse’s enthusiasm for firearms was supported at least in some measure by his legal guardians. If they knowingly lent him use of the AR he carried in Kenosha they may face charges under these statutes.
Transportation of Firearms between Wisconsin and Illinois:
Federal law pre-empts the prosecution of illegal transportation via 18 U.S.C. §?926A which provides:
“Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.”
Any number of state statutes in Wisconsin or Illinois may govern the illegal importation or exportation of firearms where the “peaceable journey” exemption of 18 U.S.C. § 926A does not preempt. Rittenhouse is in jeopardy here if his age is reported correctly as he is not legally able to possess the AR platform he possessed in Kenosha in either Wisconsin or Illinois.
In general, and Wisconsin is no exception, a “self-defence” defence to homicide (i.e. “justifiable homicide” or “excusable homicide”) or the use of deadly or potentially force requires several elements. Those claiming self defence must:
1. Have the reasonable belief that… 2. …they or another person… 3. …are in imminent… 4. …danger of death or great bodily harm, and… 5. …that the use of deadly force is necessary to prevent said harm.
Key elements of the defence to hone in on are:
Reasonability. Would a reasonable person fear for your life under the circumstances presented?
Imminent. Is the threatened death or great bodily harm about to occur that moment, or at some other time? It has to be literally about to occur.
Wisconsin incorporates these elements in its excusable homicide statute thus:
“A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.” (Wisconsin Updated Statutes 2019 § 939.48(1))
Further, many jurisdictions do not permit defendants to use self-defense as an argument if deadly force was used in a confrontation the defendant him or herself precipitated. Wisconsin is one such jurisdiction, terming the restriction “Provocation” providing:
“A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defence against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defence, but the person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.
The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.
A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defence.” (Wisconsin Updated Statutes 2019 § 939.48(2))
Use of Deadly Force By Rittenhouse
Was there a reasonable belief of imminent death or great bodily harm?
Did Rittenhouse provoke the aggressors? In both episodes, Rittenhouse appears to be attempting to retreat. In the first, he is shown on video being chased, and having something thrown at him. In the second episode, they are clearly chasing him, and attacking him. One attacker had a skateboard, and another had a pistol. Moreover, he appears to be using every effort at escaping, i.e., exhausting his reasonable means to escape, in the second episode.
What about the illegal possession of a firearm? That remains to be seen. Self-defense should still apply, whether or not it utilizes an illegally possessed firearm, which is not a requirement of the basic self-defense analysis. Then again, I’m not a Wisconsin lawyer, so…….
(Update: Life under the new normal of “State of Emergency” government. Why it’s unconstitutional, unAmerican, and the danger ahead. Freedom is Scary, Episode 7. Recorded live on August 19, 2020. Skip ahead to different topics: Discussion about the constitutionality of our “State of Emergency” at about 3:00. Discussion about scientists’ concerns about children wearing masks at 20:15. Discussion about the Franklin Templeton-Gallup Research Project showing an insane level of misinformation about the threat posed by COVID-19 and the economic consequences at 25:15. Really interesting discussion with my brother’s longtime girlfriend, Diana, at around 39:00 discussing life in communist Romania, where she was born and her family still lives, and the similarities to the new normal of 2020 United States. Discussion about wearing masks in public at 1:09:50. Discussion regarding WV School Reopening and the Rainbow Code at 1:11:08. Discussion on suppression of school choice and freedom by governors at 1:25:45. The CDC Director’s opinion about kids and reopening schools at 1:33:45. Separation of powers violations by the governors at 1:41:20. Discussion on the Nanny State and JFK, Democrats, and third world economies here in WV at 1:48:00.)
On March 16, 2020, Gov. Justice declared a “State of Emergency” under W. Va. Code § 15-5-6. In the proclamation, the Governor provided the following substantiation for his declaration of a “State of Emergency”: The COVID-19 epidemic constitutes a disaster under W. Va. Code § 15-5-2; COVID-19 has been deemed a pandemic by the World Health Organization and the President of the United States has declared a national emergency; It is in the best interest of the citizens of West Virginia that we are able to stand up emergency operation centers and allow boards and agencies to suspend certain rules that inhibit them from responding effectively. At that time there hadn’t even been one positive diagnosis in the State.
Fast forward to August 19 – over five (5) months later – and every county in the State of West Virginia is still being ruled by executive fiat, by one man, in what has become an indefinite “State of Emergency” style of government, which so far has lasted 5 months. And there appears to be no end in sight.
So where in the Governor’s proclamation did he mention his constitutional powers, and where in our State Constitution does the phrase “State of Emergency” appear? Moreover, where does the Constitution describe how the Governor gets to become a de-facto dictator, so long as he alleges a disaster zone exists? Even in counties which still after 5 months have had zero deaths from COVID-19, but numerous deaths from all the usual leading causes of death (mostly heart disease)?
Did you know that the legislature is not allowed to delegate their legislative responsibilities to the Governor? So even if an emergency powers statute attempted to do so (which it doesn’t), it would be unconstitutional.
1. Americans still misperceive the risks of death from COVID-19 for different age cohorts—to a shocking extent; 2. The misperception is greater for those who identify as Democrats, and for those who rely more on social media for information; partisanship and misinformation, to misquote Thomas Dolby, are blinding us from science; and 3. We find a sizable “safety premium” that could become a significant driver of inflation as the recovery gets underway.
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.”
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.
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: