Today the US Ninth Circuit Court of Appeals issued their opinion in Young v. Hawaii, holding that there’s no Second Amendment right to carry firearms outside of one’s own home, whether concealed or openly. What do you need to know, and what does this mean? Here’s the opinion, with my highlights, which I discussed in the video:
This afternoon, oral arguments were held in the case of Walker v. Donahoe – the AR-15 open carry case out of Putnam County, West Virginia. I’ll discuss what happened in a live debriefing at 6:30 pm, which is in 4 minutes…..
Here’s a link to the actual recording of the arguments, if you missed it live:
Here’s an excerpt of my argument, as taken by my staff:
Here’s the video of the underlying incident, if you haven’t seen it:
If you love life, liberty, property, the Second Amendment, the Fourth Amendment and basically all civil rights, you should understand the potential lifeline of freedom that is made possible due to cryptocurrency. The easiest way to destroy the Second Amendment is to make it impossible for the firearms industry to transact business through corporate suppression of free speech and free enterprise. Even worse, the mainstream corporate financial institutions have a history of partnering with the federal government to share your private data for use in criminal prosecutions and other activities against your consent and constitutional rights.
As suggested by John Crump of the GOA (Gun Owners of America) from FIS Episode No. 45, I’m talking tonight with the co-Founder of TUSC (The Universal Settlement Coin), a decentralized, non-ICO cryptocurrency project that is focused supporting the retail firearms industry with their payments issues. Rob McNealy is a serial entrepreneur, podcaster, cryptocurrency advocate, self-defense activist and recovering corporate MBA.
Join me tonight on Freedom is Scary Live, Episode No. 46. Tonight at 6:30 p.m. Eastern:
TUSC, The Universal Settlement Coin, is an open source, pure payments cryptocurrency project built on a delegated proof of stake (DPOS) blockchain. TUSC is a decentralized, non-ICO, community project with on-chain governance. TUSC was purpose built for retailer adoption using a unique marketing model with an elected and term limited third-party vendor called the Marketing Partner, whose role is to support the onboarding of retailers and to promote TUSC through aggressive marketing and sales strategies to vertical markets and industries with recognized problems with existing payment systems.
Here’s a live video I did last night on Youtube with John Crump, from the gun rights advocacy organization, Gun Owners of America.
The big danger right now is our very own Senator Manchin siding with the anti-gun lobby in ending the filibuster. If that happens, there’s nothing stopping Biden and the Democrat Congress from doing what John Crump believes they will pass by federal legislation:
An outright ban on AR-15 style rifles; and
A federal NFA registry of all existing AR-15 style rifles (even where legal in any particular state).
Here’s the payment host discussed by John in the video (TUSC) which offers a method of buying and selling firearms and firearms accessories, ammunition, etc., in the era of Big Tech censorship and suppression:
Information on Caniglia v. Strom, currently pending at the SCOTUS, where the Court will be deciding whether law enforcement can enter and search your home without a warrant based on the so-called “community caretaking exception”:
Breaking news just this afternoon: the Walker case has been accepted for oral argument by the U.S. Fourth Circuit Court of Appeals, tentatively set for March 8 through March 12, 2021. This is the case with the video showing my client, Michael Walker, walking down the side of a public roadway in Putnam County, West Virginia, on his way coyote hunting. The video is at the link.
This is good news, being that we’re the ones appealing. Most appeals are decided with a written order and no oral argument. The ones with a good likelihood of success, or which are important issues of law, are generally set for oral argument.
Last Thursday, the ATF raided Polymer80 in Nevada, a seller of so-called “Ghost Gun” 80% kits for the home-manufacture of polymer pistols for personal use. The word on the street is, that they’ve been contacting customers. So what rights do you have if you’re a customer and the ATF comes knocking?
In 2018, West Virginia passed a wonderful pro-2nd Amendment piece of legislation, titled HB 4187, a.k.a. the “Parking Lot Bill,” which took effect on June 8, 2018. The bill prohibited businesses from banning firearms from vehicles in their parking lots. It also prohibited the hiring and firing of employees based on their possession of firearms.
About a year later, a national gun control group, which is really “Everytown for Gun Safety,” financed by Michael Bloomberg, using the b.s. name, “Coalition Against Domestic Violence.” Ironically, this group would forcibly disarm the very group they’re supposed to be advocating for. Victims of domestic violence would not have the option of defending themselves with firearms, from their would-be attackers, because they would have their employers enact policies (which corporations generally do) requiring that no firearms can be kept, even in their employees’ parked cars. Here’s the original lawsuit, in its entirety:
West Virginia Attorney General Patrick Morrissey is the named defendant in the suit. His lawyers filed a motion to dismiss.
Last week, U.S. District Judge John Copenhaver denied the motion. I had to read it for myself, since many were instantly outraged. Judge Copenhaver is as good as it gets. He was first appointed by President Ford, and is a workaholic, even in his 90s. I had the honor of trying a jury trial in front of him a few years back. Here is his ruling:
Keep in mind, that this is a ruling in a motion to dismiss – not a ruling on the merits of the challenge. It’s an easy standard for plaintiffs to pass in most cases. So, what were the grounds for allowing the lawsuit to proceed? Even though the gun control group is advocating for the restriction of the individual rights of West Virginia citizens, they’ve disguised their claims as seeking constitutional protections for a collection of domestic violence advocacy groups who are apparently horrified of armed attackers hiding guns in parking lots.
The motion was actually only seeking dismissal on grounds of “standing” and “ripeness,” which are both technical arguments not quite reaching the constitutionality issues. The Court rightly held that groups should be able to challenge the constitutionality of state statutes in federal court, and that they should be able to do so prior to any enforcement actions – not just afterwards. So this is a bit of a nothing-burger. At some point there will need to be a ruling on the constitutional issues.
One of the claims which will need to be decided, isn that the Parking Lot Bill violates the First Amendment – that there’s a free speech component to the being able to prohibit firearms on your business or organization property, if you don’t like guns. It will be interesting to see what happens with that, because it’s not all that different fro the claim we made in the same federal court last week in our challenge of the Governor’s mask mandate. Many laughed when I argued that compliance (or noncompliance) with a mask mandate was protected free speech. So let’s see if this similar argument gets any traction.
Recently, the 2nd Amendment advocacy organization, Gun Owners of America (GOA) submitted a petition to the U.S. Department of Veterans Affairs, on behalf of “over a quarter of a million veterans” who have had, possibly unbeknownst to them, their gun rights stolen from them:
“For years, GOA has fought against VA’s practice of submitting names of veterans who need a fiduciary to the National Instant Check System (NICS), effectively banning these veterans from owning guns,” Aidan Johnston, Director of Federal Affairs for GOA, said. “It’s a disgrace to infringe the rights of those who have taken up arms for our country abroad, only to have that right taken away when they return home.”
Basically, since the Clinton Administration, the VA has been engaging in a policy of proactively causing the loss of gun rights for military veterans who require assistance with the management of their financial affairs, and appoint a fiduciary, such as is common with temporary bouts of PTSD for returning combat veterans. The GOA has been killing it lately in their efforts at protecting the 2nd Amendment. They’re trying to fix this injustice.
The proposed rule would prohibit the VA from transmitting information about a VA beneficiary to law enforcement agencies, and specifically the National Instant Background Check System (“NICS”) run by the Federal Bureau of Investigation, solely and simply due to an appointment of a fiduciary to manage the finances of a beneficiary, without a judicial order in accordance with 18 U.S.C. § 922(g)(4).
Federal law prohibits the receipt or possession of a firearm or ammunition by anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution.” 18 U.S.C. § 922(g)(4). Federal law prohibits the receipt or possession of firearms or ammunition by anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution” in 18 U.S.C. § 922(g)(4). In 19976 and later in 2014,7 the BATFE expanded the definition of “adjudicated as a mental defective” to also include:
“[a] determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: (1) Is a danger to himself or to others; or (2) Lacks the mental capacity to contract or manage his own affairs.”
The problem is, that the VA is triggering this definition via their internal fiduciary determination process, which is occurring wholly without due process or judicial involvement or review.
This low standard, based upon a bureaucratic determination, is not commensurate with the BATFE’s higher standard of a determination by an authority such as a court that a person is for example of subnormal intelligence or a danger to others. The VA’s seriously flawed interpretive guidance sweeps up for reporting to NICS a host of persons who Congress never intended to disarm. Commitments and adjudications are done by the judicial system, not by VA bureaucrats. And the terms “mental defective” and “committed” apply to persons who, as a result of a marked subnormal intelligence or capacity, are permanently unable to function in society and historically were often institutionalized.
So what’s happening is this: a combat veteran returns from deployment and temporarily suffers from mild post-traumatic stress – even temporarily – and even if they rely on a family member to assist them with their finances, or balancing their checkbook, they are coming within the broad Department of Veteran Affairs definition, which is in turn coming within the definition of federal and state criminal statutes prohibiting the possession of firearms on mental health grounds.
This has been happening because, since 1998, the Clinton Administration DOJ began reporting to the FBI, for addition in the NICS index those beneficiaries who require a fiduciary to manage their VA benefits under VA regulations. In 2016, Congress provided for some due process protections in that bureaucratic framework in the “21st Century Cares Act” requiring notice and a hearing, and an opportunity to present a defense. However, the case remains that we are unnecessarily subjecting our veterans to a loss of their gun rights with a lower standards than the rest of the American population.
In contrast to Section 922, which pertains to disarming those “adjudicated as a mental defective or who ha[ve] been committed to a mental institution, 38 C.F.R. § 3.353’s determinations of incompetency pertain to the capacity of a veteran “to contract or to manage his or her own affairs, including disbursement of funds without limitation,”10 for the specific purposes of insurance and disbursement of benefits, and are made according to “the beneficiary’s social, economic and industrial adjustment.” 11 Not only the standard, but the intention and scope of the criminal statute, used to justify reporting veterans in the fiduciary program to the NICS database, differ from those of the VA regulation so substantially as to make clear the inapplicability of the VA fiduciary process as a reasonable determination of “mentally defective” requiring reporting to the NICS database.
The GOA’s proposed change in VA rules would prevent this from happening, and would protect the 2nd Amendment rights of veterans – or at least make them equal to the rest of us. They could still be adjudicated mentally defective, as with anyone else. But there would be no systematic deprivation of rights, such as has existed since 1998.
Then, on top of this, some states have enacted, or attempted to enact, so-called “Red Flag Laws,” such as the one enacted in Virginia, which allows “authorities to convince a judge that a person would be a danger to themselves or others….” and does so in the absence of due process, but rather based on the word of some other individual. What follows, is law enforcement being sent to the individual’s home to confiscate guns. There have already been innocent people killed as a result of these laws, such as occurred in Maryland. The fact is, there are over 1.6 million disabled veterans with service-connected adjudication by the VA of “mental illness,” including one million vets with PTSD. These determinations, if and when made, should be made on a case-by-case basis, and should not be systematic, nor made by bureaucrats at the VA, or elsewhere.
Election Day! Who knows what’s going to happen tonight and the next few days. Understand your state’s “Stand Your Ground” law, if it has one. And if not, understand what the self defense laws are in your state. As of January 1, 2020, 34 states have stand-your-ground laws or have expanded castle doctrine to apply beyond the home. Eight states have expanded castle doctrine to motor vehicles or the workplace.
“There is nothing so likely to produce peace as to be well prepared to meet an enemy.”
– George Washington
“The right of self-defense never ceases. It is among the most sacred, and alike necessary to nations and to individuals.”
– James Monroe, Second annual message to Congress, November 16, 1818
“Our nation was built and civilized by men and women who used guns in self-defense and in pursuit of peace. One wonders indeed, if the rising crime rate, isn’t due as much as anything to the criminal’s instinctive knowledge that the average victim no longer has means of self-protection.”
– Ronald Reagan
The criminal does not expect his prey to fight back. May he never choose you, but, if he does, surprise him.
– Jeff Cooper
“Though violence is not lawful, when it is offered in self-defense or for the defense of the defenseless, it is an act of bravery far better than cowardly submission.”
– Mahatma Gandhi
Standard castle doctrine states that a person in his or her own home does not have a duty to retreat prior to using force, including deadly force, in self-defense.
‘STAND YOUR GROUND’ LAW
A stand-your-ground law varies by state, and generally provides that people may use deadly force when they reasonably believe it to be necessary to defend against a threat of death, serious bodily harm, and other serious crimes, differing slightly between states, without there being a duty to retreat before using such deadly force in self-defense.
It is generally required that the individual who is standing his ground be in a place where he or she is lawfully present. Stand-your-ground laws generally cannot be invoked by someone who is the initial aggressor, or who is otherwise engaged in criminal activity. The exact details vary by jurisdiction.
YE OLD DUTY TO RETREAT
The alternative to stand your ground is “duty to retreat.” In states that implement a duty to retreat, even a person who is unlawfully attacked (or who is defending someone who is unlawfully attacked) may not use deadly force if it is possible to instead avoid the danger with complete safety by retreating.
Even duty-to-retreat states generally follow the “castle doctrine,” under which people have no duty to retreat when they are attacked in their homes, or (in some states) in their vehicles or workplaces.
BREAKDOWN OF STATES
Laws in at least 25 states allow that there is no duty to retreat an attacker in any place in which one is lawfully present.
(Alabama, Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah and West Virginia.)
At least ten of those states include language stating one may “stand his or her ground.” (Alabama, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Oklahoma, Pennsylvania and South Carolina.)
Pennsylvania’s law, amended in 2011, distinguishes use of deadly force outside one’s home or vehicle. It provides that in such locations one cannot use deadly force unless he has reasonable belief of imminent death or injury, and either he or she cannot retreat in safety or the attacker displays or uses a lethal weapon.
Idaho’s law, passed in 2018, expanded the definition of justifiable homicide to include not only defending one’s home against an intruder, but also defending one’s place of employment or an occupied vehicle.
Self-defense laws in at least 23 states (Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Montana, New Hampshire, North Carolina, North Dakota, Oklahoma, Ohio, Pennsylvania, South Carolina, Tennessee West Virginia and Wisconsin) provide civil immunity under certain self- defense circumstances.
Statutes in at least six states (Hawaii, Missouri, Nebraska, New Jersey, North Dakota and Tennessee) assert that civil remedies are unaffected by criminal provisions of self-defense law.
*In 2018, the Ohio House and Senate voted to override the Governor’s veto of House Bill 228. The bill places the burden of disproving a self-defense claim on the prosecution.
WEST VIRGINIA, SPECIFICALLY:
West Virginia is a “stand your ground state,” and does not require a person to retreat before using force, including deadly force:
(a) A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder’s or attacker’s unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.
(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection (a) of this section.
(c) A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his or her home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his or her residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker.
(d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force.
W. Va. Code § 55-7-22(a)-(d).
Of course, there are exceptions. The absolute immunity afforded by Section 55-7-22 does not apply in the following circumstances:
– The person who would invoke Section 55-7-22 was attempting to commit, committing, or escaping from the commission of a felony;
– The person initially provoked the use of force against himself, herself, or another with the intent to use such force as an excuse to inflict bodily harm upon the assailant;
– Otherwise initially provokes the use of force against himself, herself, or another, unless the individual withdraws from the physical contact and clearly indicates to the assailant the desire to withdraw, but the assailant continues to use force.
W. Va. Code § 55-7-22(e)(1)-(3). Case law considering Section 55-7-22 is sparse. See State v. Samuel (No. 13-0273, Mem. Dec.) (Nov. 8, 2013); United States v. Matheny (No. 2:12-CR-00068, S.D. W. Va., May 8, 2012).
STILL NO BOOBY TRAPS:
Nothing in Section 55-7-22, however, permits the creation of a hazardous condition on or in real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct (e.g., spring-loaded shotguns). Nor does Section 55-7-22 authorize or justify a person to resist or obstruct a law-enforcement officer acting in the course of his or her duty. W. Va. Code § 55-7-22(g).
The Civil Rights Lawyer explains how to handle a traffic stop – a discussion on constitutional law issues surrounding traffic stops and gives commentary on Do’s and Don’ts for both drivers and police officers during the course of traffic stops. TUE 10/27 at 6pm.
Set your reminder, notifications, and subscribe. Bring your experiences, your issues, and your questions, live for Freedom is Scary Live Episode No. 22. This will somewhat of a continuation from FIS No. 21, since so many issues arise in the context of traffic stops. Firearms, searches, lying….. lots of issues and topics.