With a number of high profile Second Amendment cases either headed towards the United States Supreme Court, or already being heard, this is a critical time for the future of our constitutionally protected rights. At the same time, we have a Court under extreme pressure to make the ‘correct’ rulings as defined by the extremist left. These politicians have made it abundantly clear that if the Court does not see things their way, it will be restructured and packed with justices who will.
Given the reprehensible conduct by some of our elected officials, this is the most dangerous time in history for significant Second Amendment protected rights cases to be brought before the Supreme Court.
The independence of the Supreme Court, one of the three branches of our government, is one of the cornerstones of our nation. Each branch has its own powers and responsibilities to ensure the government is effective and citizen’s rights are protected. The Judiciary, specifically the Supreme Court, has a role which includes the final check and balance of the constitutionality in our country.
Most of us understand this fundamental design of our government and believe in a strong and independent judiciary. Others see it as a hinderance to their plans for more government power and control, power and control stripped away from the people.
For a government official, if your legislation is a little iffy on the constitutionality side, how do you get it to survive a court challenge? Easy, you influence the courts. While simply campaigning on an issue and creating popular support for your questionably constitutional law might help, an independent judge is going to ignore public pressure and decide the case based on the Constitution and the law, as would be expected in a Republic. Therefore, the influence you need to get favorable court rulings is to seat judges who agree with your politics and will interpret the law from your political point of view.
Of course, the whole idea of liberal and conservative justices on the Supreme Court – or any court for that matter – is an abomination in the first place. There should be no political skew in either direction. There should be no other consideration at play other than the Constitution and the law. By the time any case reaches the highest court in the land, politics and the justices’ personal views should be long gone and only the law should enter into their decisions. Sadly, this is no longer the case and ‘legal’ decisions that should be unanimous are now split along political lines.
Look at how contentious the last few Supreme Court appointments were. Remember how desperately certain Senators fought to keep originalist jurists off the bench. Remember how outraged the left was at the possibility of replacing a left leaning justice with a right leaning one. A Supreme Court with a single vote, 5-4 conservative advantage could derail an entire political agenda due to constitutional challenges. It was a “threat to democracy” itself. A new strategy had to be put in place.
Remember the Senate Democrats “Heal Thyself” letter threatening to pack the Supreme Court if it didn’t moot the New York State Rifle & Pistol Association Inc. v. City of New York. This letter is widely credited with not only Chief Justice Roberts decision to moot the case but to more firmly side with the left wing of the Court. The Court was saved from being packed, at least temporarily.
Restructuring the Court and packing it with liberal appointed justices to “reduce the influence of politics” is a bold and aggressive plan. It would permanently cement the Court to a left-leaning rubber stamp for generations to come, or at least until the next Congress repacked it. This scheme would face massive opposition from both parties and the public who recognize it for what it really is, a partisan power play. But removing an unpopular Associate Justice, one who has been vilified in the press, to be replaced by a liberal appointed one, that might fly.
You now understand the never-ending defamation campaign against Justice Kavanaugh. Kavanaugh, who faced one of the most disgraceful confirmation hearings in the history of the Senate, has continued to be harassed and threatened while on the bench. Far left Democrats, including the current Vice President, have called for congressional hearings and his impeachment. Social media is awash with slanders calling him the “rapist on the Supreme Court”. (See: A Shot Across The Bow of the USS SCOTUS https://oddstuffing.com/archives/792)
Yet that alone wouldn’t be enough. They needed to apply pressure to another conservative Justice. This latest round of intimidation comes following Justice Thomas’s dissent on the Supreme Court’s denial of the GOP challenge to the Pennsylvania state court’s decision to extend mail-in ballot deadline for November’s presidential election.
Critics claimed Justice Thomas’s dissent was a tacit endorsement of the takeover of the U.S. Capitol on January 6th and convinced Amazon to remove a documentary film about Thomas, “Created Equal: Clarence Thomas in His Own Words” from their streaming service – during Black History Month.
To make their point even more clear, left-wing congressional politicians and agitators called for an investigation of Justice Thomas’ wife for her support of the January 6th D.C. rally and questioned why Justice Thomas was allowed to be on the Court at all.
The message from Congressional Democrats is crystal clear. Incorrect rulings will be severely punished, either by removing the involved justice(s) from the Court or by a complete restructuring and packing of the Court by liberal appointed jurists. Correct rulings on the other hand, will result in the Court being allowed to continue with its current structure, albeit under the thumb of Congress.
A Supreme Court operating under outright threats and intimidation of the Executive and Legislative branches is far from independent. If the independent Judicial branch allows its decisions to be muted by political influence, it will be no different than a restructured and packed Court. We will, in effect, have two branches of government, the Executive and Legislative, with the Judicial acting only as a servant to the Legislative du jour.
The cases mentioned in Part 1 have the potential to affirm or deny the constitutionally protected rights of millions of Americans. Simply rejecting these cases in favor of addressing an issue later at a less politically dangerous time risks the very lives of those who would be on one side of a political border vs. the other. Ignoring the Bill of Rights is not an option.
The American public is waiting, but will the Supreme Court step up?
Bob
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Tag: #FourthAmendment
SCOTUS vs. The Second Amendment, Part 1 (Potential Cases)
A number of high profile Second Amendment cases are working their way towards the United States Supreme Court right now, plus one 2A related case already under consideration. The outcomes of these cases are likely to be as impactful to our Second Amendment protected rights as Heller, if not more. While you would think this would be an ideal time for them to be heard, our Supreme Court is being threatened with virtual extinction if they rule against what the left extremists demand.
The following is a quick overview of three of these cases and why I believe this is the most dangerous time for these cases to be coming before the Supreme Court. The results may not only determine the future of the Second and Fourth Amendments but also if the government is effectively reduced from three branches to two.
1. Young v. State of Hawaii
This case was recently decided by an en banc panel of U.S. Court of Appeals for the 9th Circuit. The case is a challenge to Hawaii’s highly restrictive open carry policy which requires the applicant to show “the urgency or the need” to carry unconcealed firearms, that they have “good moral character,” and that they be “engaged in the protection of life and property.” As a result, only private detectives and security guards are ever eligible. The equally restrictive conceal carry policy, which was not part of this case, effectively results in a complete prohibition of carrying a firearm in public for personal protection.
Incredibly, the 9th Circuit ruled against Young, stating that Second Amendment protected rights end at your doorstep and DO NOT extend into public. Rather than relying on a plain text reading of the Second Amendment and history of Fourteenth Amendment, they cherry picked history from 17th century English law and 19th century Hawaiian regulations to determine people have the right to “keep” arms within the own homes, but NOT TO “bear” arms anywhere outside. This is the first Circuit Court to ever make such a dramatically anti-Second Amendment ruling.
To say this is a bad ruling is putting it mildly. Even in District of Columbia v. Heller, which held the Second Amendment protects the right to keep a firearm in the home for self-defense, noted the validity of “longstanding prohibitions” such as carrying a firearm in sensitive places like schools and government buildings. Yet it was these two words the 9thCircuit used to help rationalize any place outside of the home could be prohibited.
This ruling now covers all the states in the 9th Circuit – Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. It is certain that anti-conceal and open carry government officials will immediately seize upon this decision to further restrict or eliminate carrying firearms in public.
While this is a prime example of the Circuit Courts rabid misinterpretation of constitutional law, legal precedent and an excellent case to be argued before SCOTUS, that has yet been done. SCOTUS did consider another similar case dealing with highly restrictive and subjective carry policy – New York State Rifle & Pistol Association vs. Corlett – in conference on Friday and may announce whether they will grant a writ of certiorari as soon as today.
2. Gun Owners of America v. Garland
A three-judge panel of the U.S. Court of Appeals for the 6th Circuit ruled last week the ATF could not administratively change the law regarding bump stocks and that bump stocks themselves were not considered machine guns.
In the aftermath of the Las Vegas shooting, the ATF reclassified bump stocks as machine guns under 26 U.S.C. § 5845(b) despite having no ability to fire on their own. An estimated 500,000 individuals and businesses who lawfully purchased bump stocks were forced to dispose of them without compensation or face criminal charges for illegal possession of a machine gun.
The Court’s ruling confirmed the ATF was incorrect in determining a bump stock accessory was a machine gun. It also ruled the ATF could not change the law by itself, that it must be done by Congress.
The ATF/DOJ will most certainly appeal this ruling to an en banc panel in the 6th Circuit, as well as attempt to make other modifications to firearm definitions to circumvent this ruling. Yet the importance of this case cannot be understated. With the ATF’s recent moves against pistol braces and the 80% market, the possibility of the ATF/DOJ again administratively banning and restricting firearms and non-firearm parts in a similar overreach is real.
3. Caniglia v. Storm
This case was recently heard by SCOTUS and while not strictly a Second Amendment case, it has a direct impact on Second Amendment protected rights. The case questions whether the “community caretaking” exception to the Fourth Amendment warrant requirements extends to the home.
The officers in this situation used “community caretaking”, an exception created by the court to generally deal warrantless searches of abandoned or impounded vehicles, to enter a private home and seize firearms and ammunition. This was after the officers promised the owner who went to the hospital for an evaluation (and was immediately discharged) they would not confiscate them and falsely telling his wife he had in fact consented to the confiscation.
While there are warrantless exceptions to entering a home without a warrant, these “exigent circumstances” cover emergency situations such as to prevent an imminent or in progress assault or to render emergency aid for someone inside, such as a heart attack victim. No “exigent circumstances” were claimed here.
Had this case involved the seizure of drugs, stolen property or anything other than firearms, likely nobody would have given a rat’s *ss about it. Yet by attempting to use a “community caretaking” exception to remove firearms from a private residence against the owner’s will, it directly imperils Second Amendment rights.
Consider what could be rationalized by government officials as “community safety” to enter your home and remove your firearms without a warrant. An argument with a neighbor who knows you have firearms? Someone seeing you come back from the range with a large “cache of weapons”? An argument inside the house where firearms are “registered”, overheard by someone passing in the street? Someone known to own firearms being upset after being terminated from a job?
Side note: In this case as well as another case recently settled by SCOTUS (Torres v Madrid), the government argued the officers themselves were not liable due to “qualified immunity”. This is the same qualified immunity the same government is demanding be stripped from law enforcement officers in the name of police reform at the local, state and federal level.
The Court’s ruling on these cases could significantly impact your right to be free from unreasonable search and seizures in your home as well as your right to keep and bear arms outside the home.
Continued in Part 2 (And Then There Were Two)
Bob
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My Home, My Heath, My Choice – Interrogating Our Children At School
Last week Vermont’s RINO Governor announced changes to the program that monitors the symptoms of students and teachers in the state’s schools. Following the Thanksgiving break, students will be grilled on if they had Thanksgiving with anyone OTHER THAN their immediate family. Anyone who has will not be admitted for in-person education and must quarantine for two weeks, or one week followed by a negative COVID test. While this sounds like a simple addition to the state’s daily symptom check, it represents another HUGE intrusion into the personal lives of the state’s residents. If we allow this, what will be next the question asked in the name of health?
Vermont’s daily online Wellness Check Survey, plus a temperature check at the school, is required to be admitted to all schools in the state. Anyone whose symptoms match what the state considers a COVID symptom is given a big red X on their computer screen and will not be allowed to attend that day. A green check mark means you are cleared for the day, pending having your temperature taken and any follow up questions at the school.
So why does this bother me so much? Because I wouldn’t appreciate any school questioning my child about what goes on in our home. For the record, I no longer have any children in school in Vermont, but that doesn’t mean I no longer care OR that parents in the state should allow their children to be subjected to this line of questioning.
Simple questions like “Did you see your grandparents for Thanksgiving” or “Did you go anywhere for Thanksgiving” can lead to a kid being evicted from in-person school for two weeks. This comes as the state says they recognize how vital in-person classes are to educational and emotional development.
Of course, you could tell your child not to answer this question, but do you really think the health screener and principal are going to allow that? No, of course not. They’re going to berate the kid until they get an answer or just kick them out based on their refusal. Do you really think Fifth Amendment protections apply to your children in school? Alternatively, you could tell your child to lie. What a great life lesson that would be for your child to not tell the truth to teachers, principals and health professionals.
Oh I know, this is only for the pandemic. It’s a public health emergency. But what else has been declared a public health emergency? Alcohol, drugs and of course gun violence have all been given this label. It’s not a stretch at all to believe other questions aren’t going to be included in the “health screening” as kids come into school.
Do your parents drink adult beverages?
Have you ever seen any drugs in your house?
Do your mommy and daddy have guns?
COVID-19 has given socialist / dictator inclined governors and mayors a once in a lifetime opportunity to intrude into and control our daily lives, all in the name of protecting public health. They have clearly shown your natural, constitutionally protected rights are of no concern to them.
Among the ridiculous rules we’ve been given this Thanksgiving, we’ve been told who can come into our own homes, if any at all. That we have to eat outside, on single use disposable dishes. That we can’t allow anyone to serve themselves. We can only allow people to use our restroom if we disinfect it often. That we must social distance outside and wear masks except to briefly eat and drink. That we cannot sing or play music. That we can only gather for two hours. That we must report our friends and neighbors if we see them gathering with family and friends.
Across the country, businesses deemed “non-essential” have been closed while big box retailers have been allowed to remain open. With their competition eliminated, “essential” businesses have reaped record profits while their “non-essential” counterparts have been forced out of business, many forever. Families have been thrown into poverty and lives lost.
Meanwhile, our elected officials scheme and debate over how much social change COMPLETELY UNRELATED to COVID and helping people survive they can cram into relief programs designed to keep you dependent on government handouts forever.
And just how well have the government restrictions worked so far? Apparently, they’ve done nothing because we’re told our COVID infection rates are now higher than when we started the original “Two Weeks To Flatten The Curve” over six months ago.
We were told masks and social distancing was the only way to stop the spread. We were told that closing businesses and staying home was the only way to stop the spread. We were told political rallies infected thousands and killed hundreds UNLESS it was a “mostly peaceful” riot or celebration for the right candidate, and then there was no spread. We were told testing is the only way to stop the spread, then told you can’t really rely on tests to say you don’t have COVID.
As if teachers calling the police based on what is inside children’s rooms during Zoom classroom sessions, and barring parents from observing online classes wasn’t enough, we will now have health professionals, teachers and principals grilling our children about who they spent their holidays with and punishing them for their parents making decisions the government doesn’t like.
Maybe the government doesn’t actually know what is best for everyone’s health and welfare. Maybe the people know what their own risk factors are and how to best provide and care for their own family. Maybe the government should stop trying to control every aspect of the people’s lives inside and outside their homes.
And maybe the government should just provide an education to our children and not use them as a means to intrude on people’s Constitutionally protected rights inside their homes.
Bob
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This Is NOT The New Normal
Even as the COVID-19 pandemic begins to wind down and businesses start reopening, we are still faced with overly oppressive restrictions on where we can go, what we can do and how many people can be in one place at a time. In many places, wearing facemasks (of highly questionable effectiveness) are mandated for anyone out in public, and businesses and houses of worship must collect information on people who enter for contact tracing. Politicians and the media now tell us this is the “new normal” until a cure can be found. In reality, it is nothing more than another way for tyrannically inclined politicians to control us, strip away our rights and make us more dependent on the government for our daily existence.
In many parts of our country, it’s as if the Constitution and Bill of Rights has been shredded. Mandatory Stay At Home orders, closing businesses, restricting the ability to travel outside of your own neighborhood, prohibiting the ability to practice your religion, associate freely with those you choose, the ability to protest your government and purchase a firearm or ammunition have been eliminated.
Governors and local politicians have made winners and losers by deciding who is essential and who is not. Big box retailers are essential, mom & pop shops are not. Alcohol and marijuana retailers are essential, firearm retailers are not. Purchasing food at a grocery store is essential, growing your own food from seeds or fishing by yourself in a lake is not.
When the pandemic closures began, the forecast for closing our country was two weeks, a month at the most to flatten the curve. We are going on three months in many areas, with no end date in sight. In contrast to the need to “flatten the curve” before reopening the economy, we are now told it will not happen until there is a cure, an upgraded goal from having a vaccine available or the population developing “herd immunity”. What is crystal clear is the politicians who are keeping their states, counties or cities closed are going to do everything they can to drag out the pain suffered by their constituents.
So what are we supposed to expect in this so-called “new normal”, projected to be at least 12 to 18 months? No gatherings of 100 persons or more, effectively eliminating sports, concerts and conferences. Dine-in restaurants, businesses and theaters will only be able to operate by restricting capacity to 25% to 50% to enforce social distancing. Patrons will be required to have their temperature taken and provide identifying information for contact tracing in order to enter. Schools, if allowed to reopen, will stagger the arrival and departure times throughout the day and dramatically restrict movement of students who will spend their class, lunch and recreation time in the same room with the same teacher. Airlines will screen all passenger’s temperature, block middle seats (unless it prevents the flight from being profitable) and may require “immunity passports” proving they have had and recovered from COVID-19, or have been administered the as of yet available vaccine.
What I want to know is how exactly businesses that operate on small margins are going to be able to survive? We’ve already seen thousands of small, medium and large businesses across the nation close permanently due to the losses incurred from the economic shutdown while the big box retailers deemed essential and awarded a monopoly in their communities are thriving. Millions of “non-essential” employees are out of work and now fully dependent on the government to pay their rent and feed their families.
Consider also that health departments in about two thirds of the states are now sharing the addresses or names and addresses of patients who have tested positive for COVID-19 with law enforcement, fire and emergency medical services. While this would normally be considered a massive HIPPA (Health Insurance Portability and Accountability Act) violation, “guidance” from U.S. Department of Health and Human Services simply dismisses this legal concern. It’s amazing how many states have readily accepted this federal guidance yet ignored the Department of Homeland Security guidance on firearm retailers being essential. Nor is it a violation of your privacy for your cell phone company to provide tools to health departments to conduct “digital contact tracing” with or without your consent. Snitch lines are available around the country so you can report your neighbors for not following social distancing guidelines.
While the courts have been mixed in their reactions to challenges of the economic and social shutdowns, the people themselves have been making their objections extraordinarily clear. As I’m writing this, I’m seeing news feeds of citizens around the country exercising their constitutional rights to peaceably assemble and to petition the government for redress of grievances, all in defiance of the oppressive and arbitrary closure orders in their area. The people are saying it is time to reopen the country and allow them to take care of their families themselves.
I refuse to believe the way we are being forced to live is going to be the new normal. With every communicable disease from the common cold and flu to H1N1 (Swine Flu) of 2009, we have been able to effectively keep our country running and take care of our sick. Yet with COVID-19, we’ve been told our entire way of life must change for the foreseeable future. Or perhaps, if we vote ‘correctly’, it will only last until the elections are over.
It does NOT take increasingly draconian control measures from oppressively inclined government officials to keep you from passing on or catching COVID-19. The most basic level of personal responsibility, social distancing and sanitation, is enough to stop this, without giving up our rights.
Bob
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Contact Tracing
As our nation begins to emerge from the overly hyped COVID-19 pandemic and businesses and recreational venues open, a new front in the fight against the virus is being touted, contact tracing. So critical is this new (basically really old) tool that it is now a requirement for many businesses and houses of worship to open. What is it? At the basic level it is interviewing infected persons to determine who they have been in contact with and getting assistance to those individuals. If that was it, there wouldn’t be a problem. Unfortunately, it is being taken to a frighteningly new electronic level using our own possessions against us. Quite bluntly, this level of intrusion on our privacy scares the crap out of me. Once it’s an accepted practice during a pandemic, it will become accepted practice in everyday life.
Contact tracing itself is an old concept. When someone is diagnosed with an infectious disease, health officials interview the person to determine who they have had contact with in order to get that person the appropriate medical treatment. Think the stereotypical VD (venereal disease) clinic diagnosis and telling the doctor all the people you’ve had sex with. Embarrassing yes, but it helps to stop the spread of the disease.
To meet the needs for COVID-19, states have already hired thousands of new contact tracers with a projected goal of approximately 100,000 nationwide. This new army of public employees is tasked with tracing the movements and contacts of every individual diagnosed with COVID-19.
If that was all there was to it, there wouldn’t be a problem. But as tyrannical governors, county, city and health officials around the country have learned, they can infringe on every one of your constitutionally protected rights under the pretext of a “health emergency”. As such, your privacy means absolutely nothing them.
How they plan on achieving their contact tracing is where the privacy concerns begin. In some areas, a precondition to allowing businesses and houses of worship to open is mandatory recording of everyone who enters. Name, address, phone number and email addresses must be recorded as well as the time they enter and leave. Houses of worship have been required to compile and turn over lists of all their members.
For houses of worship, it’s easy to see how this information might be used to infringe on First Amendment rights. Even a cursory look at current events and history will show numerous abuses, suppression and elimination of those who hold certain religious views. Beyond that, tracking customers of any business can not only lead to abuse but stymie businesses efforts to reopen as potential customers won’t want to give up their personal information just to purchase a product or meal.
But even this isn’t enough. The CDC’s (Center for Disease Control and Prevention) own guidance is that digital monitoring will be necessary. The mechanism for this is already in place and simply needs to be enabled. It is of course, the smartphone.
An estimated 81% of the US population owns a smartphone. Most smartphone users carry their devices with them 24/7, everyplace they go – including the bathroom. We wouldn’t dream of going to the store or even the mailbox without our phones. Contrast this to a time when we used to drive across the country with nothing but a roll of dimes for payphones.
Given this reality of our smartphone appendage, it’s easy to see how valuable they are as a tracking device. With GPS and Bluetooth features, your location and who you associated with can be determined anytime, anywhere. Keep in mind, every byte of data about your location is recorded somewhere. A number of states have already tapped into these features to measure the effectiveness of their Stay At Home orders. While using supposedly anonymized data, they can see how many people are leaving their homes every day and how far they are going. Of course, knowing you left your home isn’t exactly randomized.
But this new frontier in contact tracing isn’t using anonymized data, it’s looking directly at YOU and your movements. Apple and Google, the largest providers of cell phones, have joined forces to modify their operating systems and infrastructure to allow digital contact tracing. New apps have been developed by government entities using the Apple and Google toolkits to allow individuals to track their own movements and proximity to other cell phone users. This is currently voluntary in the United States but mandatory in other countries. Once someone is determined to be infected, it sets off a chain of notifications for anyone who has been near them. Note that it will not be necessary to have a contact tracing app installed on your own smartphone for you to be tagged and notified of a potential infectious contact.
Apple and Google have vowed that this is a temporary measure and will only be used for health purposes and for the duration of the pandemic. Once it is over, they have promised the infrastructure will be dismantled. Of course, we all know that no public emergency will ever be over and there will always be another ‘emergency’ down the road.
So what do the health authorities do when they identify a contact of someone who has tested positive? If the system is working the way it should, medical assistance should be offered in case they are infected. But that’s not exactly what is going on. Mandatory testing and 14-day quarantine orders are made with the help of law enforcement and National Guard troops.
Health departments around the country are constantly threatening and walking back claims they will remove infected individuals, adults or children, from their homes. So far, violators of quarantine orders have been arrested and incarcerated or fitted with tracking devices like common criminals. What we haven’t seen yet is what will happen to individuals who do not cooperate with testing or quarantine orders based solely on either manual or digital contact tracing.
A look at how other countries are handing digital contact tracing and quarantining provides a glimpse into our future. Taiwan uses their telecom providers to track all those in quarantine and integrates it with their police systems to check if people are out of quarantine. Poland uses a mandatory smartphone app to track those in quarantine.
China fits everyone coming into the country with a digital wristband and required smartphone app install to track their mandatory 14-day quarantine. China has recently added a color coded “health code” that must be scanned to allow access to public facilities or transit. The exact requirements for a green (likely COVID-19 free), yellow (at risk of COVID-19), or red (likely COVID-19 positive) have not been disclosed but are believed to incorporate the user’s location and their medical and travel history.
What this boils down to is how much of our privacy, our basic natural rights, we are willing to give up in a health or other public emergency. Our experiences so far with COVID-19 has shown a huge national tolerance for infringements on just about all our First Amendment, Second Amendment and Fourth Amendment protected rights. But that tolerance has worn incredibly thin as the nation’s economy and way of life have been shut down for two months.
If you believe the opinion polls, our nation’s population is equally split over the use of digital contact tracking. Even the CDC notes there will be resistance to this approach, but it may be more accepted in the future. Personally, I disagree there is that much acceptance to 24/7 government tracking of every place we go and everyone we are in close proximity of. I see this as just another COVID-19 related excuse to infringe on the rights of American citizens.
Our Constitution and Bill of Rights contain no provisions for suspension of rights in case of a “health crisis”. If fact, our natural rights take on more significance as tyrannically inclined governments pick and choose what rights can be exercised, and whom among us are allowed to enjoy them.
Bob
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