Friday, April 30, 2021

THE DAILY FUDD: E87: "'RKBA and age."

The first thing to understand about RKBA and a person's age is that there is no constitutional provision guaranteeing ANYTHING other than voting specifically at the age of 18. 26A did not set 18 as the be-all/end-all date of majority. And neither does some aspects of our past. Indeed 14A set a "maximum minimum" voting age of 21. And so, a very brief history of ages of majority in Western civilization is called for:

Going back, in ancient Rome 21 was commonly the age of majority. In the Bible--specifically the Book of Numbers--20 is given for some purposes, including military service. And of course, the "age of consent" for sexual purposes has varied and does vary by jurisdiction today.

It is only by the converging of various factors that 18 has become the focal it has. One can vote, enlist in the military of their own accord, smoke tobacco, live on their own of their own accord (more on that later), and buy a long gun at age 18 per federal law. People generally graduate high school around their 18th birthday as well, and many financial services only become available at age 18.

Yet that is not universal. People can generally drive at age 16, though driving while using a cell phone or comparable device (save for CB radios) might be restricted until they hit 21 (if a jurisdiction allows it at all). I saw in a major discount chain that one had to be 16 to purchase a machete there. And of course, drinking outside of a family setting is prohibited until age 21 in the United States.

The reasoning behind all of this variance in age requirements--public and private--is the realization that humans take time to mature, and even after their bodies are fully functional, their minds take time to form. That mental formation is a process, with gradually increasing levels of judgment and responsibility. Mark Twain famously spoke of leaving his father at age 18, considering the man a fool. At age 21, he saw his father again, and was amazed as how much he--the father--had learned in those three years. Obviously, the import of the statement was that Twain himself had matured by virtue of his living those three years more, and thus wisdom in his older relative where before he had seen foolishness.

Indeed, it is those three years--18 to 21--that have become the focal. The latter is no longer the default it once was, yet the former is not, as stated before, fully set.  

Since 1968, handgun purchases have required being 21 or older. The idea was to restrain youth gangs, with the view that greater maturity was called for in responsibly having such a concealable arm. In our Common Law society, one's rights, including self-defense, are much more restrictive when one leaves the home. This is because one is now in the community's area of interest, rather than one more explicitly their own. "A man's home is his castle," but on the other side of the moat, the community has its say.

Long guns, though, were seen differently. People at 18 were seen as responsible enough for actions such as hunting. Long guns were--and are--less used and suited for most common criminal activity, including--perhaps especially--youth crime. And of course, there was the issue of such a personal being able to defend his home and person.

Of course, being pre-Heller, 2A and its Right to Arms really bore no legal bearing on these age settings, though it would have influenced the political debate.

In recent years, due to mass shootings by young people in that age range with long guns, movements have arisen to raise the long gun age to 21--with exceptions for those in military service--based on similar concerns. The military exception is based on the accelerated maturing--training and discipline--effect that military service tends to have on people. Add in, of course, that a person being trusted with a modern military rifle, even if borne while under military authority, would call for such a person being trusted with civilian analogs in their private lives.

Now, with that background and basis, let us examine objectively the application of age ranges to RKBA. Libertarians arguments will be largely ignored, as their proponents tend to give no credence to Common Law and constitutional jurisprudence and would have nutcakes carrying machine guns in public.

The Right to Arms extends back literally centuries to the Old Country. A key point of legislation and codification on it was the 1688/89 English Bill of Rights:

At its base interpretation, it was held to guarantee the right of a peasant to keep "a blunderbuss to ward off burglars." In other words, home defense. I have pointed out how early colonists traded their blunderbusses--"blunderbi"?--for full-size muskets and such for the challenges they would face in the New World (TDF 10). And from that, our more expansive 2A descended, with that concept of home defense--a most basic point in our Common Law tradition--at the "core," in modern jurisprudential parlance.

From this it is obvious that if one is maintaining a home, then one generally has that same sort of right, both to defense in general and to the tools of that defense in our modern era. This is all the more true given that fact that an 18-year-old can be FORCED to maintain a household. That is the age when parents can legally kick ungrateful brats--or any brat, for that matter--out of the proverbial nest. That is a failing of a general prohibition on firearms for 18-20-year-olds, no matter how well-meaning--even with the military exception. SOMETHING must be excepted. A person that age on their own has a RIGHT to something for that core purpose.

Today under 1A, journalists--even fake news insurrectionists, apparently--are protected in using modern information technology as comparable to the hard-copy printing presses of old. Likewise, 2A practitioners are to be protected in using modern firearms as comparable to the blunderbuss. But unlike the stretch of development line necessary to equate computer technology with printing presses, in the arms realm today, there is a direct technological descent from then to today. Experts on the history of firearms development over the centuries--honest and objective ones--will hold that the modern descendants of the blunderbuss are the carbine (TDF 49) and the home-defense shotgun (TDF 43/44). Thus, at a minimum, something along those lines--a HiPoint or a Mossberg--would be constitutionally protected for those 18 to 20. 

With that in sight, let us focus on the handgun restriction. Heller puts handguns into a special category in home defense (TDF 28 and TDF 49), and it could be argued this supersedes the "modern blunderbuss." How a court would rule on that point probably depends on how much value they give the mental development factor. 

But the real factor on handguns in this regard is the matter of "bearing." It is here the best chance for overturning the ban exists. But to pursue that first requires the Court to render judgment on out-of-home carry in general (see TDF 68 for more on that). But even with a SCOTUS decision upholding traditional regulatory power on local carry, there would remain the issue of long-distance traveling. "Bear" was an American development on the Right to Arms, and its explicit mention in 2A should be held to at least guarantee some sort of being armed while on a journey. This is where handguns come in explicitly, as in our modern times CCW is the standard. That said, an argument can be made that an 18-20-year-old can transport his above-noted "modern blunderbuss" on a trip as a carveout, as it would at least at a baseline provide for the intent of defense of self and others.

UPSHOT: There is room for age-based distinctions within RKBA (and there should be with other rights as well.) It goes to the nature of the right. Those 18-20 are 2A-guaranteed a carbine or shotgun for home defense, and travel with it.

This is, of course, a minimalist interpretation and analysis. An honest court applying strict-scrutiny would likely be more expansive. The problem we face--and this is what TDF is intended to prepare Patriots for is the reduced RKBA destined to come. "Principle" is not the issue. Firepower is.

Thursday, April 29, 2021

THE DAILY FUDD: E86: "Ammo costs: More evidence that 'market forces' don't work in non-economic situations."

Is this how "supply and demand" is supposed to work? The things in supply cost MORE than the things NOT in supply.


"Just tell me how much fuel and ammo are gonna cost, and I'm done with economic matters." -- Me

We should take the money going to drug treatment and use it to subsidize military-grade ammo production for civilians. Not just in the current crunch, but, like, forever.

THE DAILY FUDD: E83: "A Tale of Three Fudds, Part 1: The arms."

The Supreme Court can


Three permutations possible from a baseline 2A interpretation:


KEEP: The original 1688/89 English Bill of Rights "blunderbuss," modern style.
BEAR: Handgun, added in American experience.

LOW: Manual action: Shotgun and CCW.

MIDDLE: Pistol-caliber with higher-than-ten-round magazines.

HIGH: Featureless military-grade rifles (expanded from blunderbusses by American experience) with 10-round magazines; 20-round magazines for pistol-caliber arms.

Wednesday, April 28, 2021

THE DAILY FUDD: E85: "'Why should I have to...' -- Childish responses that handicap the good guys."

Americans have become a spoiled people. Between our prosperity and our freedom--or should I say, "freedom"--we have come to expect what we want when we want it the way we want it, AND for some magical power in the form of constitutional provisions or senses of "rights" and "freedoms" to automatically provide for the sustainment of all of that.

The Left manipulated this in the 1960s by demanding certain things like "free speech," which they promptly used to run down American heritage and then convert into a club called "Political Correctness" to squash the free speech of anyone opposing their anti-American/White/Western agenda. In the process, they cast a double blow against our heritage: First, the aforementioned destruction, but second, they drove those on the Right--perhaps a bit surprisingly, many in the 2A community--into that exact same approach.

What those on the Right didn't realize is that unlike themselves, the Left didn't play fair. Add in the natural differences of Right and Left vis a vis the human condition and human nature, and frankly nature itself, and it failed completely. (Research Herbert Marcuse's "Liberating Tolerance.")

Libertarians, followers of the most self-defeating sociopolitical philosophy imaginable short of intentional self-genocide, became childlike, unwilling to work for the social policies they wanted (except on drugs, of course). Purists similarly expected constitutions and laws to work automatically. And both leaned on their "rights" to avoid having to explain to the general population why they should have their rights. "Rights don't have 'needs' attached!" they say, even though "necessary" is the sixth word of their first (or second, for the religious Right) favorite point of the Bill of Rights.

They forgot (discussion of Teabrainery omitted here) that we have a COMMON LAW system, not a libertarian one, and our federal and State constitutions are written in that context (TDF 79). They seem to ignore that we have a system where leaders are dependent on the votes of the common schmucks to be in power (well, at least until the 2020 Election Steal--which these same 2A-championing, "resistance to tyranny"-preaching selfish folks allowed to occur, with only a few of us calling for the Federalist 46 State action vision of the Founders). Some are opportunists, just drawing a following, but many genuinely think the opinion of the vast swath of Americans makes no difference. Either that, or they have deluded themselves into think most Americans support their "purist" (I won't quibble over semantics today) views of our Right to Arms--full auto, artillery, CCW without permits, and especially for libertarians: every criminal, drughead, and nutcase with all of the above.

These folks run down anyone of rational thinking willing to engage the legislative process to mitigate the damage of anti-gun legislation. The Heller case in 2008 has, in a sense, gone to their heads, and they believe a four-word incantation--"SHALL NOT BE INFRINGED!"--somehow changes the fact that legislation that may indeed infringe can indeed still get passed, and even honest courts may not see them as infringing, thus leaving them to do the damage to RKBA that they do. Yes, folks, rational people might differ on things like this, given our Common Law basis. Then add in the reality of biased, corrupt, and packed courts, and the approach is more destined to fail than ever.

"Why should I have to do such-and-such a thing, when by 'right' I shouldn't?" is a question I used to hear from liberals and children as they attempted an emotional blackmail to get their way. The answer was obvious, and often given to them: "Grow up. Maybe you shouldn't have to, but that doesn't change the fact that you do have to." What we've seen in the past couple or three decades, though, is that approach taking root on the Right. And unlike with liberals, too many on the conservative/Right actually believe it's valid! They have genuinely come to regard the "should" in that question far more than the "have." Unlike the Left, they have come to believe their own propaganda--even if it was copied from their opponents. (And of course, our side's use of it validated it for the other side and invalidated the adult response to it.) Again, the Heller case affirming RKBA as a constitutional right had its impact, as up till then there was still official ambiguity, and it was harder for these people to build up the mental lock. 

The result is that today, when we face increasing liberalization of the nation and the ultimate challenge to RKBA--the potential of a packed Supreme Court that could reverse Heller and eviscerate 2A as a private rightl--the prevailing response of the 2A community is to double down with over-the-top demands and refusal to defend them substantively. Rather than try to salvage as much RKBA firepower as possible, with an eye on baseline necessities (TDF 73) and tactical realities (TDF 46) of our time (TDF 70), they take a self-defeating NATO approach of "If they take one gun, we might as well let them take all guns."

So, here are the answers to various categories that would ask that question (see also TDF 67):

LIBERTARIANS: "Grow up. It's a Common Law constitutional system, not a libertarian system. Accept that and work with it."

PURISTS: "Grow up. It's a Common Law constitutional system, which means there are contexts, precedents, and procedures. And not everyone of good reason will agree with you on interpretation and scope of RKBA. And no, abuses and overreaches of other rights don't warrant the same to 2A. The answer to that is the reversion of our laws and jurisprudence to something more akin to our past--i.e., move Right."

FOLLOWER-SEEKING HACK WITH RADIO SHOW: "Give me your show."

GROW UP! (TDF 72) Now.


Tuesday, April 27, 2021

THE DAILY FUDD: E84: "CCW prediction with SCOTUS CCW cases."

 Please read TDF 68 for the background of this prediction.

PREDICTION: SCOTUS will use the facts laid out in TDF 68 (below) to say that "bear" (off property) in 2A refers to long journeys and certain specific circumstances in Common Law--e.g., process serving, following hue and cry, etc., but not toodling around town. Back in the day, even going to the next town was a "long journey," so in terms of geography, city travel was the exception.

In TDF 68, I laid out argumentation to save local CCW. It is unknown whether such ideas will impact SCOTUS before or after packing, but it seems likely that libertarians and purists will block it from being pushed by the good guys.

THE DAILY FUDD: E68: "'Shut up, libertarians & purists. We can actually win on CCW permits,' or 'Why I don't use the term "constitutional carry."'"

FOLKS, TAKE THIS SERIOUSLY. CALLING FOR POLICIES THAT WILL NEVER BE ADOPTED DOES NOTHING TO HELP THE SITUATION.

Settlement of the English colonies in North America made BEARING a much larger part of the Anglo Common Law Right to Arms. In the Old Country, the right in terms had largely focused on one's home 
(e.g., the 1688/89 English Right to Arms provision being interpreted as a blunderbuss in a peasant's home to ward off burglars). Long-distance traveling in the colonies sometimes involved being armed being legally required. But local carry around your "familiar haunts," as Arkansas courts would later describe them, was seen as subject to regulation. Texas as well regulated handgun possession when not "traveling"--defined by Texas authorities to me personally circa 2000 as crossing three county lines and staying overnight. Such prerogative for regulation will likely carry over in post-Heller 2A and 14A jurisprudence, meaning that while such local carry would ultimately be protected, some localized regulation--such as a Shall-Issue permit with non-egregious and equitable prerequisites--would stand as a long-standing element within that constitutional concept.

TIER 2: Regarding "familiar haunts" and such: Back in the day, long-distance travel was more of a hassle, and more of a danger, hence the right--sometimes even requirement--to be armed while doing so. Once one arrived at a locale, one often would deliver their arms to an appointed place, conduct their business, and then retrieve their arms as they left town. Communities were generally considered relatively safe, as people were generally better and locals had arms in their homes and businesses, and thus could deter and defend visitors against criminality.

Today, we live in a more urbanized setting, but one where often our "familiar haunts" don't include parts of the buildings in which we live. We simply don't know our neighbors the way we once did. Travel within a community is more extensive than some inter-community travel back in the day. And what would qualify as "familiar haunts" can readily be in far more diverse and separated locations. (Un-PC point: In addition, criminality is more rampant due to our more cosmopolitan settings.) 

So today, the arguments back in the day deprecating local carry versus travel carry hold less water. Putting 2A matters under strict scrutiny, it should thus be notably harder to justify heavy regulation. Today we have stories of women raped in their own apartment buildings, whereas a century ago a rape in New York's Central Park would have been almost unheard of. Local travel--be it "familiar haunts" or within a community one is visiting--has lost its safer character. (Interestingly, Texas eliminated some restrictions on local carry by declaring in statute that a person is to be presumed "traveling" if found armed.) Quite frankly, today "local" carries the same "right of self-defense" call for carry as long-distance travel.



CONCLUSION: 2A with 14A should be recognized as indeed protecting both local and travel carry. Within that RKBA tradition, communities have the prerogative for limited regulations on local carry-- such as concealed versus open carry, non-egregious permits and requirements, discharge outside of recognized gun ranges, and some specific locations (though an argument could be made that such locations need to offer a "gun check" service, much like hats and coats back in the day).

The term, "constitutional carry" is at best premature, and politically self-endangering. While libertarians are so used to losing politically that they don't care about the community impact of either their policy ideas or the defeat of certain policy positions, Patriots do indeed care. We ought not push for policy positions that lead to loss for those supposed to benefit from the polities--and that includes personal rights. The well-being of our communities are key to our survival and success, and our rights mean nothing if the conditions are the ground make community tranquility impossible. Plus, to demand a supposed purism that is politically destructive only aids those in opposition to such rights.

Use of this term, however sincere and well-meaning, sets the stage for consternation should jurisprudence develop in the most likely direction--the accurate one, which I described above. Does the 2A community accept a SCOTUS ruling saying such, and thereby guaranteeing general CCW? Or does it go the libertarian route, gripe a lot, and end up alienating the vast swath of the general population on the matter, leading to its loss? Let us hope not.

Our heritage--including our traditional rights--includes community authority. In regard to RKBA, local carry has for centuries been an area where such authority has notably ranked, even with State constitutional guarantees. Even as slander prohibitions are within "freedom of speech," history shows--for better or worse--that carry regulations are within historic RKBA.

The Constitution is not libertarian, and neither is our Common Law tradition. I personally would love to see CCW--and some very particular open carry--as much a a part of our social order as neckties on men (which I'd actually like to see banned as torture devices) and boob accentuation on women (yes, I'm a pig). But let us not push our preferences or personal visions at the expense of the functional purposes of whatever tradition, convention, or constitutional right might be in sight.

RKBA and CCW have their function. Let us work for and preserve THAT.


TDF INDEX: Cats, Guns, and National Security: THE DAILY FUDD index.  https://catsgunsandnationalsecurity.blogspot.com/2021/03/the-daily-fudd-index.html

Black lives' priorities: ARTICLE: "Ban on Menthol Cigarettes Will Lead to More Confrontations Between Black People and Police."

So they're saying police need to buy more ammo. That's bad, given the shortage.

They're saying Black folks are so devoted to flavored coffin nails they'll break the law for them. That's bad, considering what it says about them.

They're saying there will be more encounters with police. that could lead to violence and death of Blacks. That's... interesting.




Monday, April 26, 2021

The Ashi Babbitt killing: Whether it was set-up of Trump supporters or recognition Trump side is more benign (it's one or other), THIS is a coverup.

https://www.conservativehq.org/post/the-murder-of-ashli-babbitt-precedent

The Murder Of Ashli Babbitt Precedent

In an act truly unprecedented in American law and history, after a secret process in which no public testimony was taken and no media were allowed in to report on the proceedings, the

U.S. Attorney’s Office for the District of Columbia and the Civil Rights Division of the U.S. Department of Justice announced the government will not pursue criminal charges against the U.S. Capitol Police officer involved in the fatal shooting of 35-year-old Air Force veteran and Trump supporter Ashli Babbitt.

We say unprecedented because over the long course of American history – from the pre-Revolution Boston Massacre in 1770 to the Kent State shootings in 1970 – the armed authorities deployed in this country have always had their actions publicly reviewed and been held accountable for shooting into unarmed crowds

But today, we know more about the participants and defendants in the Boston Massacre than we know about who killed Ashli Babbitt and what their justification was for shooting into an unarmed crowd.