THE COURTS, NO LESS THAN CONGRESS, IS WHERE ONE WILL FIND THE SECOND AMENDMENT EITHER SAFEGUARDED AND STRENGTHENED OR ENDANGERED AND WEAKENED.

REPUBLICAN CONTROL OF ALL THREE-BRANCHES OF GOVERNMENT IS NECESSARY TO MAINTAIN BOTH THE SOVEREIGNTY AND INDEPENDENCE OF OUR NATION STATE, AND THE SUPREMACY OF OUR CONSTITUTION AND OUR SYSTEM OF LAWS.

The mandate of a Republican controlled Congress, and of a Republican President and of a federal court system--comprising jurists who recognize the supremacy of our laws and of our Constitution over foreign laws and over the decisions of foreign tribunals and who recognize and appreciate the critical importance of the fundamental rights and liberties of the American people, as codified in the Bill of Rights--is this: to maintain our roots as a unique People; to make certain that our Country continues to exist as a free Republic and as an independent, sovereign Nation, beholden to no other Nation or to any group of Nations; and to keep sacred the supremacy of our Constitution and our system of laws, grounded in the sanctity of the Bill of Rights--a Bill of Rights that has no parallel in any other Nation on this Earth. To succeed in this mandate it is imperative that: one, Congress retain a Conservative Republican majority; two, that Donald Trump remain as U.S. President through two terms in Office; and, three, that the U.S. Supreme Court hold a conservative-wing majority and that the lower federal Courts seat a majority of  jurists who recognize and appreciate the supremacy of our Constitution and of our laws and of our sacred rights and liberties, and who render opinions with that principle omnipresent.Obviously, those malevolent forces that seek to undermine the sovereignty of this Nation, that seek to subvert the will of the American People, that seek to undercut and subordinate our Constitution, our system of laws and our fundamental rights and liberties, are working for the precise opposite. They seek to gain Democratic Party majorities in both Houses of Congress in the midterm elections, and, if they can accomplish that, they will undoubtedly pursue efforts to impeach Trump, using the tenuous, ludicrous, tax-payer funded Mueller investigation, chasing after ghosts, as a springboard to destroy the Trump Presidency. These individuals and groups, bankrolled by a shadowy, secretive, ruthless internationalist, trans-nationalist globalist “elite”, hope, as well, to create a liberal wing majority in the U.S. Supreme Court. To do that, they must win back the White House.Those who seek to destroy the sovereignty of this Nation and to undermine the true import and purport of the Bill of Rights are rankled by two specific events that they cannot, and, obviously, will not abide: one, the failure to usher Hillary Rodham Clinton into the Office of U.S. President, which they thought was an assured bet; and, two, the failure to seat Merrick Garland—the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, and President Barack Obama’s nominee—on the U.S. Supreme Court. These critical and monumental failures of the internationalist, trans-nationalist globalist “elite” who bankroll and control the Deep State of the federal Government—the forces that would dare crush this Nation and the American people into submission—have suffered an extraordinary setback in their plans for world domination. To reset the clock in accordance with their global strategy, they have been forced to show their hand. The negative forces that manipulate and control the Government of this Nation and that manipulate and control the Governments of those Nations that comprise the EU have emerged from the shadows and have forced their toadies in this Country to surface from the depths of the Deep State of the federal Government, to undermine, at every turn, the efforts of the duly elected President of the United States, Donald Trump. Not content to undermine and undercut the President's policy objectives, which they attack at every turn through the well-orchestrated media circus they control, they attack the man himself, disrespectfully, caustically, and reprehensibly; and, in so doing, they demonstrate as well their disrespect for this Nation, and  for this Nation’s core values, and for this Nation’s system of laws, and for the people of this Nation who elected Donald Trump, who was then inaugurated the 45^th President of the United States, on January 20, 2017, succeeding Barack Obama.The election of Donald Trump as U.S. President has thrown a wrench into the well-oiled and greased machine of the Deep State of the federal Government of the United States. This singularly important event has thrown the internationalist, trans-nationalist globalist elites, headed by the international Rothschild clan, into a state of consternation, of befuddlement, of rage and turmoil, of chaos. Their well-laid plans for world domination sees the United States as an important cog in an expansive industrial and financial machine comprising the New World Order, for no other Western Nation has as impressive a military and as impressive an intelligence apparatus, and as adept technological capabilities as those of the United States. As the forces that would crush this Nation and its people into submission have suffered a severe and costly set-back, they intend to set matters aright. The American people bear witness to the raw extent of the power and reach of these forces: one, the naked audacity of their actions; two, the evident contempt in which they hold the American people; three, the bald self-assurance and aplomb by which they plan and orchestrate a campaign of deliberate deception—through the mainstream media—a campaign of disinformation and misinformation through which they hope and trust they can manipulate the American people into accepting a bizarre worldview--one inimical to the needs and desires and well-being of the American people; four, the obscene loathing they express toward our Bill of Rights; five, the demonstrative malevolence they have shown toward the U.S. President and toward his Administration; and, six, the abject hatred they display toward this Nation’s Constitution, toward this Nation’s unique history, toward this Nation’s core values, toward this Nation’s system of laws and morals. And through the levers of media and of the Deep-State of Government that they control, they give mere lip-service and lip-homage to those very things Americans hold most dear.The Arbalest Quarrel has done its part. We have worked to help elect Donald Trump as President of the United States and have worked, as well, to defeat the confirmation of Judge Merrick Garland to the U.S. Supreme Court. But our work has not ended. It has, perforce, just begun.We must continue to support President Trump from the forces that, having failed to prevent his electoral success, seek, now, to place obstacles in his path, making it difficult for him to implement the policies he has promised—policies that are at loggerheads with those hostile internationalist, trans-nationalist globalist financial and industrial forces that seek global domination which, in accordance with their plans for world domination, requires the crushing of Western Nation States, including the crushing of our Nation State, the crushing of the sovereignty and independence of our Nation state; and, with that, the subordination of our laws to that of international laws and treaties and the subordination of our Courts to that of foreign Courts and foreign Tribunals; and the undermining of the sacred rights and liberties of the American citizenry. These extremely powerful, extraordinarily wealthy, and abjectly ruthless and cunning globalist forces seek eventually to topple Donald Trump and his administration. They seek also to take back control of the two Houses of Congress. We must therefore work to maintain House and Senate Republican Majorities.Further, we must work toward and anticipation of the confirmation of at least one additional, and, hopefully, two or, better yet, three conservative-wing Justices to sit on the U.S. Supreme Court. With the passing of the eminent and brilliant jurist and true American patriot, Justice Antonin Scalia, we have lost a mighty champion of liberty in the vein of the founders of this Nation, the framers of our Constitution. We hope and trust and pray that, before the end of this year, 2018, Justice Anthony Kennedy and/or Justice Ruth Bader Ginsburg and/or Justice Stephen Breyer will retire. That will pave the way for President Trump to nominate at least one and conceivably two, and optimally three more American jurists, to sit on the high Court who, as with Trump’s nominee, Judge Neil Gorsuch, hold jurisprudential values and who would apply the same methodology to deciding cases as do Justices Clarence Thomas, and Samuel Alito, which the late Justice Antonin Scalia had set the course. With strong and true conservative-wing Justices on the high Court, who hold a clear majority, we will see the Court agreeing to hear critical Second Amendment cases and, thereupon, rendering decisions that, with the Court’s untarnished and supreme judicial imprimatur, makes clear the import of the natural, fundamental rights and liberties of American citizens as codified in the Bill of Rights of the U.S. Constitution in the manner the framers’ intended.

THE ARBALEST QUARREL LOOKS BACK ON WORK COMPLETED IN 2017 AND THEN FORWARD TO OUR TASKS FOR 2018

WHAT WERE SOME OF OUR ACCOMPLISHMENTS IN 2017?

Let us step back for a moment and look at just a few of the tasks we completed in 2017, and remark briefly on tasks we have set for ourselves in 2018. Much of our work, consistent with the primary purpose of the Arbalest Quarrel involved detailed, comprehensive analyses of critical federal and State Court cases impacting the Second Amendment. One of those cases is Soto vs. Bushmaster Firearms International, LLC., 2016 Conn. Super. LEXIS 2626; CCH Prod. Liab. Rep. P19,932. Soto is an active case. The Soto case arises from the deadly attack that occurred on December 14, 2012, in Newtown, Connecticut, when a deranged young adult, Adam Lanza, 20 years old, stormed Sandy Hook Elementary School, fatally shooting twenty children and six adults, before turning a handgun on and killing himself. According to the allegations of the Soto Plaintiffs' First Amended Complaint (CM), Adam Lanza murdered these school children and school staff with a Bushmaster AR-15, model XM15-E2S rifle. Defendant Bushmaster prevailed in the lower Superior Court (trial Court), and we analyzed the Superior Court decision in depth. Plaintiffs appealed the adverse decision directly to the Connecticut Supreme Court, bypassing the State Court of Appeals, and the Connecticut Supreme Court agreed to hear argument. We will be analyzing the Briefs of Plaintiffs and Defendants in the case and will also analyze selected amicus (friend of Court) Briefs in that case. Over 50 amicus briefs were filed in that case. We also provided comprehensive analyses in an “assault weapons” case, (Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017) ), which we had hoped would be taken up by the U.S. Supreme Court—the high Court failing to have granted certiorari in an earlier disastrous “assault weapons” case, Friedman v. City of Highland Park, 784 F.3d 406, 2015 U.S. App. LEXIS 6902 (7th Cir. Ill., 2015). Alas, the high Court failed to garner four votes, allowing the case to be heard in the high Court. Had the high Court agreed to hear the case, Americans would see a definitive ruling on whether so-called “assault weapons” fall within the core of the Second Amendment’s protection. Obviously, the liberal wing of the Court and at least two "apparent" conservative wing Justices, likely, Anthony Kennedy and the Chief Justice, John Roberts, did not want to resolve this case, and, so, to date, resolution of “assault weapons” as protected firearms within the core of the Second Amendment remains in abeyance, with liberal Circuit Court of Appeal Judges ruling that semiautomatic "assault weapons" do not fall within the core of the Second Amendment and, so, are not protected.In addition, we looked at two Congressional bills that, if enacted, strengthen the Second Amendment. We looked at national concealed handgun carry reciprocity legislation, pending in Congress, H.R. 38, and looked at Congressman Chris Collins’ bill, the “Second Amendment Guarantee Act” (H.R. 3576) (“SAGA”) which has been referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, on September 6, 2017 where it presently sits. We also did our part to sidetrack Obama’s attempt to sit Judge Merrick Garland on the U.S. Supreme Court. When we feel it critical that our representatives in Congress be notified of specific and extraordinary dangers presented to our Nation, we have not hesitated to contact them. When, after the passing of the exceptional U.S. Supreme Court Justice, Antonin Scalia, we have seen that President Barack Obama wasted little time in nominating a person to serve as a new ninth member of the high Court who would, given the opportunity, assist the liberal-wing Justices—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—in unwinding case law that Justice Scalia helped to shape in his many illustrious years on the Bench. That person who President Barack Obama had hoped to see confirmed is Merrick Garland, Chief Judge of the U.S. Court of Appeals for the D.C. Circuit. The Arbalest Quarrel took strong exception to the possibility of seeing Judge Garland sitting on the high Court. We sent a letter to the Chairman of the Judiciary Committee, Senator Chuck Grassley, requesting the Senator to refrain from allowing a confirmation hearing to proceed. Had a confirmation proceeding been held, that would have resulted in Judge Merrick Garland sitting on the high Court as an Associate Justice. Of that, we have no doubt, as U.S. Senator Orrin Hatch has articulated that point. According to the liberal political commentary website, "New Republic," Senator Hatch said that there was "no question" that Judge Merrick Garland would be confirmed were a confirmation hearing held. The Arbalest Quarrel explained the singular danger Judge Merrick Garland posed to the preservation of the right of the people to keep and bear arms, codified in the Second Amendment to the U.S. Constitution if Merrick Garland sat on the U.S. Supreme Court. In our letter we took exception to pronouncements of several academicians who had also written a letter to Senator Grassley. Those academicians argued that nothing in the record of Judge Garland’s service as a Judge on the U.S. Court of Appeals suggests that an inference can be drawn concerning Judge Garland’s jurisprudential philosophy toward the Second Amendment. We disagreed with the pronouncements of those academicians. We pointed to specific examples in the judicial record that establish beyond doubt that Judge Merrick Garland holds great and abiding antipathy toward the Second Amendment; and that Judge Garland’s antipathy toward the Second Amendment is very much in evidence in the judicial record, contrary to the pronouncements of those academicians who promote the Judge’s ascendancy to the U.S. Supreme Court. Our concern was not directed to Judge Garland’s ability as a jurist. We have no doubt that Judge Garland has a bright and, conceivably, brilliant legal mind. But, when that brilliance is coupled with a philosophy at loggerheads with the philosophy of another brilliant Justice, Antonin Scalia, then we know that preservation of the natural, substantive fundamental rights of the American citizenry—particularly the right of the people to keep and bear arms—are in jeopardy. In a series of in depth articles, we have written extensively about Judge Garland’s jurisprudential philosophy. We pointed out that Judge Garland’s judicial approach is clearly antithetical to that of the late Justice Antonin Scalia, and that Justice Scalia’s illustrious work would be undone were Judge Garland to sit on the high Court. In our letter to Senator Grassley, we provided a link to the Arbalest Quarrel website and encouraged the Senator to peruse our analytical articles on Judge Garland, as the letter only touched upon the matters of concern.

THE MISSION OF THE ARBALEST QUARREL 

The mission of the Arbalest Quarrel is to preserve, protect, and strengthen the Bill of Rights, and, principally, to preserve, protect, and strengthen the Second Amendment to the United States Constitution. The Arbalest Quarrel has written dozens of articles on newsworthy and noteworthy events, impacting the Second Amendment. Many of our articles appear in Ammoland Shooting Sports News. Most of the articles we prepare are comprehensive, extremely detailed, highly analytical expositions on Second Amendment issues. Many of our articles are written as part of lengthy, continuing series. Given the exigencies of time and of new and pressing newsworthy matters, we are often compelled to sidestep continuous work on a series, returning to a series later. Since threats to the Second Amendment are constant and continuous, much of the work that we may have left uncompleted in previous weeks or months is and remains pertinent. Some work that we do, involving analysis of active legal cases, such as the Soto case, cannot, of course, be completed until further action is taken by a Court and, in that event, we must await action before continuing discussion. In other cases, such as Kolbe, where we have commenced work, as part of a series, a higher Court, in this case, the U.S. Supreme Court has denied a writ of certiorari, which means that the ruling or rulings of the second highest Court, a U.S. Circuit Court of Appeals, remains the law in that judicial Circuit. But, as those cases involve an open-ended and critically important issue that the U.S. Supreme Court will, at some point be compelled to tackle, our analysis of lower U.S. District Court and U.S. Circuit Courts of Appeal decisions are still relevant and, so, hold more than historical value in terms of their impact on the right of the people to keep and bear arms. Kolbe, for example, deals directly with the issue whether semiautomatic weapons, defined as ‘assault weapons’ fall within the core protection of the Second Amendment. As antigun groups intend to deny American citizens the right to legally own and possess “assault weapons,” and, as they seek, eventually, to ban civilian ownership and possession of all semiautomatic weapons, it is incumbent upon us and important to consider the legal arguments they present. Thus, at some point in time when the U.S. Supreme Court does deal with the issue as to the extent of or whether semiautomatic weapons defined as ‘assault weapons’ fall within the core protection of the Second Amendment or whether semiautomatic weapons, as a broad category of firearms, fall within the core protection of the Second Amendment--and the high Court will, at some moment in time have to consider the issue--we will have addressed, in depth, all or virtually all of the salient arguments that litigants happen to make. As we look back at the work over the years, we note our article, titled “The Arsenal of Destruction.” Concerning antigun groups efforts to defeat the right of the people to keep and bear arms, what we mentioned in that article is as true then as it is today. We said: Here is what we deemed then, as now, to be the salient methodologies antigun groups use to undercut the Second Amendment. There are probably more; undoubtedly, the antigun groups are busy concocting others even as we publish this list:

• ENACTMENT OF RESTRICTIVE GUN LAWS

• REWRITING/RECONFIGURING/RECONSTITUTING THE SECOND AMENDMENT TO UNDERCUT THE SIGNIFICANCE OF THE INDEPENDENT CLAUSE: “THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED.”

• EFFORTS TO REPEAL THE SECOND AMENDMENT OUTRIGHT

• INDOCTRINATION OF AMERICA’S YOUTH

• MILITARIZATION/FEDERALIZATION OF CIVILIAN POLICE FORCES ACROSS THE COUNTRY THROUGH THE MACHINATIONS OF THE DEPARTMENT OF HOMELAND SECURITY

• DIRECT MAINSTREAM NEWS MEDIA ATTACKS ON THE SECOND AMENDMENT

• USE OF PROPAGANDA AGAINST THE AMERICAN PUBLIC AND INDOCTRINATION OF THE PUBLIC BY MAINSTREAM NEWS MEDIA GROUPS

• SYSTEMATIC EROSION OF THE RULE OF LAW IN THE UNITED STATES

• DENIAL OF GUN POSSESSION TO ENTIRE GROUPS OF AMERICAN CITIZENS

• ILLEGAL ATTEMPTS BY CITIES AND TOWNSHIPS TO WEAKEN OR OVERRIDE STATE LAWS WHERE SUCH STATE LAWS ARE DESIGNED TO EXTEND SECOND AMENDMENT PROTECTIONS TO THEIR CITIZENS

• CREATING CONFUSION OVER THE CONCEPT OF ‘CITIZEN’ AND CREATING CONFUSION AS TO THE RIGHTS OF A CITIZEN OF THE UNITED STATES

• EXECUTIVE BRANCH OVERREACH/USURPATION OF THE LEGISLATIVE FUNCTION BY THE UNITED STATES PRESIDENT IN CLEAR DEFIANCE OF THE SEPARATION OF POWERS DOCTRINE SET FORTH IN AND THE MAINSTAY OF THE U.S. CONSTITUTION.

• OVERRIDING THE BILL OF RIGHTS THROUGH INTERNATIONAL PACTS, TREATIES, AGREEMENTS, AND CONVENTIONS

• FALLACIOUS REASONING OF ANTIGUN GROUPS AND ANTIGUN GROUP DECEPTION AS TO THEIR ULTIMATE GOAL: DE JURE OR DE FACTO REPEAL OF THE SECOND AMENDMENT TO THE U.S. CONSTITUTION

• ATTACK ON GUN RIGHTS’ ADVOCATES’ MORAL BELIEFS AND ETHICAL BELIEF SYSTEMS

• BATFE ADOPTION OF ONEROUS REQUIREMENTS FOR GUN DEALERS AND BATFE INTRUSION/ENCROACHMENT ON TRADITIONAL U.S. CONGRESSIONAL LAW MAKING AUTHORITY

• MISAPPLICATION/MISAPPROPRIATION OF THIRD PARTY PRODUCTS LIABILITY LAW AND LEGAL DOCTRINE TO UNFAIRLY TARGET GUN MANUFACTURERS

• FEDERAL GOVERNMENT RESTRAINT OF TRADE: COERCING LENDING INSTITUTIONS TO REFRAIN FROM GIVING LOANS TO GUN DEALERS

• MANIPULATION OF THE COMPOSITION OF STATE LEGISLATURES AND OF THE U.S. CONGRESS BY MULTI-MILLIONAIRE/BILLIONAIRE TRANSNATIONAL GLOBALISTS THROUGH THE BANKROLLING OF POLITICIANS—WHO ACQUIESCE TO THEIR WISHES, AND WHO ARE WILLING TO DESTROY THE SECOND AMENDMENT—AND THROUGH THE NAKED, SHAMELESS EXPLOITATION OF ATTACK ADS, TARGETING THE DEFENDERS OF THE SECOND AMENDMENT -- THOSE POLITICIANS WHO REFUSE TO KOWTOW TO THE ANTI-AMERICAN AGENDA OF THE RUTHLESS MULTI-MILLIONAIRE AND BILLIONAIRE TRANSNATIONAL GLOBALISTS.

• GLOBAL CENSORSHIP/CONTROL OF EXPRESSION ON THE INTERNET: UNDERMINING THE SECOND AMENDMENT BY CONTROLLING MESSAGING WITH THE AIM, ULTIMATELY, OF INSIDIOUSLY DESTROYING THE SECOND AMENDMENT THROUGH AN UNCONSCIONABLE INFRINGMENT UPON THE FIRST AMENDMENT: AS CONTEMPT FOR ONE AMENDMENT OF THE BILL OF RIGHTS IS SHOWN, SO, AS WELL, IS CONTEMPT FOR THE OTHERS DEMONSTRABLY SHOWN

• DESTRUCTION OF SOVEREIGN NATION STATES AND OF THE CONSTITUTIONS OF SOVEREIGN NATION STATES THROUGH THE CREATION OF, ESTABLISHMENT OF AND INEXORABLE EXPANSION OF AN INTERNATIONAL, NEOLIBERAL INSPIRED WORLD ORDER DEDICATED TO AND WORKING TOWARD THE DESTRUCTION OF INDIVIDUAL RIGHTS, THE DESTRUCTION OF INDIVIDUAL LIBERTIES, AND THE ERADICATION OF PERSONAL AUTONOMY

We intended to do an article on each of these 21 strategies within the series. We didn’t complete the series, but we did write on several of these strategies and some of the strategies were touched upon in other articles. For example, our most recent article on the NY Times new “gag order” policy preventing its employees from exercising their freedom of free speech on their own time in vehicles other than the New York Times newspaper, actually is a response to two strategies we delineated on in “The Arsenal of Destruction":ONE: GLOBAL CENSORSHIP/CONTROL OF EXPRESSION ON THE INTERNET: UNDERMINING THE SECOND AMENDMENT BY CONTROLLING MESSAGING WITH THE AIM, ULTIMATELY, OF INSIDIOUSLY DESTROYING THE SECOND AMENDMENT THROUGH AN UNCONSCIONABLE INFRINGMENT UPON THE FIRST AMENDMENT: AS CONTEMPT FOR ONE AMENDMENT OF THE BILL OF RIGHTS IS SHOWN, SO, AS WELL, IS CONTEMPT FOR THE OTHERS DEMONSTRABLY SHOWN; and,TWO: USE OF PROPAGANDA AGAINST THE AMERICAN PUBLIC AND INDOCTRINATION OF THE PUBLIC BY MAINSTREAM NEWS MEDIA GROUPS.Our principal mission and raison d’etre—as mentioned, supra—is to preserve, protect, and strengthen the Second Amendment to the U.S. Constitution. In fact, the preservation of, protection of, and strengthening of the Second Amendment all go hand-in-hand. There exist forces both inside and outside this Country that would like to repeal the Second Amendment. Of course, they realize that repealing, de jure, any one of the Ten Amendments to the U.S. Constitution that comprise the Bill of Rights is virtually impossible. As natural rights, there is no mechanism for repealing these rights and liberties anyway, since no man created them. The Framers of the Constitution merely codified the rights that exist intrinsically in each American citizen. That doesn’t mean that a sacred right cannot be ignored or de facto repealed which effectively reduces the right to a nullity even as the words remain intact. Thus, if the words remain, but the intent behind the words is absent, hollowed out, the right, in essence, ceases to exist. We have seen this before. The fundamental right of Americans to be free from unreasonable searches and seizures has been hollowed out, as Government agencies like the CIA and NSA download and keep digital records on everyone and everything. This is patently illegal, but Federal Government agencies do it anyway. The fundamental right of free speech is beginning to be hollowed out, too, as censorship, in the guise of “political correctness” is taking its toll on free speech. The fundamental right of the people to keep and bear arms was dying a slow death until the majority of the U.S. Supreme Court in two seminal cases, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), and McDonald v. Chicago, 561 U. S. 742, 780, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010)), made clear what that right entails. The high Court made poignantly and categorically clear that this right—a right that must be recognized by both federal Government and by the States—is an individual right, a right, then, not connected to one’s service in a militia. Still, those Legislators and Jurists who seek to disembowel the Second Amendment have either ignored the holdings of the U.S. Supreme Court or have actively tinkered with it, working around the edges of the Heller and McDonald holdings to slowly weaken the Second Amendment. But, to weaken the right is tantamount to destroying it; for the rights codified must be understood in the context the framers of the Constitution intended, as absolute imperatives. This doesn’t mean restrictions ought not be enacted that operate as deprivations on some individuals but, this deprivation is justified only if the threat posed by the one threatens the lives of millions of others, or where the threat posed by an individual undermines the sovereignty of this Nation.Consider the Second Amendment. Federal law bars persons adjudged mentally incompetent from owning and possessing firearms. Thus, the absolute right to own and possess firearms infringes the right of a person adjudged mentally incompetent but this is necessary to protect the lives of millions of innocent, law-abiding Americans. Federal law also prohibits illegal aliens from owning and possessing firearms. And, in so doing, we protect the sanctity of the notion of a Nation State comprising a unique citizenry. Antigun groups, though, don’t perceive the Bill of Rights as a set of natural rights, existing intrinsically in the individual, endowed by the Creator to the individual. They see the Bill of Rights in the same vein as do internationalist, trans-nationalist globalist “elites,” as mere man-made creations-- statutes enacted and repealed at the will and the whim of the of the rulers that draft and enact them. As they see nothing positive in the right of the people to keep and bear arms, they see nothing that mandates the preservation and strengthening of that right. So, those who attempt to restrict the right of the people to keep and bear arms do not consider restrictions on the exercise of that right from the standpoint of the restriction's negative impact on the majority of rational, responsible, law-abiding American citizens, who wish to exercise their right, but, rather, see restrictions on the exercise of that fundamental right from the utilitarian consequentialist position. Consistent with utilitarian consequentialism, it is firearms in the hands of law-abiding rational, individual, not the occasional criminal or lunatic, that is perceived as posing the real danger, the real threat. And, what is that threat? It is a threat perceived as directed against society— against an amorphous collective “hive”—a threat perceived, eventually, as one directed against the entirety of the “free” world, a free world constituted as a "New World Order." It is not the criminal or lunatic possessing a firearm that concerns those that hold to the utilitarian consequentialist theory of morality that poses the greater threat to the well-being of society. In a constant flurry of new draconian firearms bills introduced in Congress, we see, in the draft language of these bills, that it is really the average law-abiding individual--the rational, responsible, law-abiding American citizen--against whom restrictive gun measures are really targeted and leveled. These restrictive gun bills are drafted and enacted in clear defiance of the right guaranteed in the Second Amendment.Our mission, our raison d’être, is to call out those disreputable groups and to call out those legislators and to call out those Hollywood film stars and moguls and to call out those mainstream news commentators and journalists and "comedians" and to call out those inordinately wealthy, extraordinarily powerful, extremely secretive, and absolutely ruthless internationalist, trans-nationalist, globalist forces that mean—all of them—to destroy our Nation State and that mean to destroy our Bill of Rights, and that mean to do so all the while claiming their efforts have a rational, ethical basis. But their actions belie their assertions. Their actions belie their true intent. These individuals, these groups, these cold-hearted ruthless internationalist, trans-nationalist, globalist “elites” that control the levers of finance and industry, that control major media organizations, that operate within and control the Deep State of Government within our own Nation mean to destroy the sovereignty and independence of this Nation and they mean to upend and to destroy the supremacy of our laws and of our Constitution.These individuals distort truth; they sow seeds of discord; they confuse and confound the ill-informed masses by challenging the Nation's core values and by interposing false substitutes for those core values. They rail against and dare to rewrite our Nation's history. They attack our Judeo-Christian ethic and our Christian heritage and traditions. They mean to destroy our Nation and our sacred Bill of Rights to pave the way for an antireligious, morally bankrupt trans-global corporate New World Order conglomerate—an amorphous, muddled indistinguishable conglomeration of once proud and unique independent Nation States—a union of populations comprising the entirety of the “free” world, which these internationalist, trans-nationalist globalist financiers and captains of industry plan to rule. We are beginning to see what this portends for the U.S. as they consolidate their power in the EU, with the assistance of their technocrats, their puppets.In their concerted effort to destroy the structure of and the very notion of the sanctity and sovereignty of Nation States, and of the sanctity and sovereignty of our Nation State in particular, we see insidious and perverse attempts by these internationalist, trans-nationalist globalist “elites”—through the mainstream media whom they control and through members of Congress whom they have bought—to play with language—to suggest that the notion, the idea of ‘American,’ of what the word ‘American’ means is simply a matter of personal belief. Why is such a ridiculous notion fostered? It is fostered for a reason. For, if what it means to be an ‘American,’ or, for that matter, what it means to be a Frenchman, or German, or Italian, or Canadian, for example, comes down to personal opinion and belief, then, the bonds between a person and that person’s Country is tenuous, amorphous, fragile, elusive, even illusive, and, ultimately, unimportant. This has serious ramifications for Nation States and repercussions for the people residing in a Nation State. Thus, if a person is to be deemed an American, for example, who simply and essentially believes him or herself to be an American, then, on that basis, alone, may presumptuously presume a right to live in this Country, to emigrate to this Country and to be endowed with all the rights and liberties that the United States Constitution provides.This open-ended concept of what it means to be an ‘American’ is deliberately and unconscionably fostered by those who seek an end to the very notion of a Nation State; who seek to portray people not as citizens of this or that Country but, literally, as “citizens of the world”—who may freely move about as they wish. This “open borders” philosophy is anathema to the concept of the primacy and sovereignty of Nation States which demands that independent, sovereign Nation States have a right and duty and responsibility to maintain and control their borders, and, in so doing, forestall emigration of undesirables to this Country. To allow essentially anyone and everyone to emigrate to this Country, is to denigrate and ultimately destroy the very foundation of the sovereignty and independence of a Nation State. A Nation State’s core ethical and religious and social values are in danger of erosion. That Nation’s historical roots are in danger of erosion. That Nation’s jurisprudential values and core economic principles are in danger of erosion.When educators, along with news organizations and legislators in the United States proclaim that illegal aliens are Americans, the Arbalest Quarrel has stepped in to set the record straight. Co-Founder and President of Arbalest Group, LLC., Stephen L. D’Andrilli wrote a reply to an article written by the Vice President of the United Federation of Teachers that appeared in the Union’s publication. The Arbalest Quarrel's response was published in Ammoland Shooting Sports News. Stephen has penned other cogent responses to the UFT that we, as strong supporters of America’s Bill of Rights, have taken exception with.

THE WORK AHEAD FOR THE ARBALEST QUARREL IN 2018

In 2018 we will continue to analyze federal and State gun laws; federal and State gun bills; and federal and State Court cases. We anticipate seeing one and perhaps two openings on the U.S. Supreme Court. It is imperative that President Trump have the opportunity to nominate one or more individuals to serve on the U.S. Supreme Court.It is in the Courts, no less than in Congress that our Bill of Rights and, especially, our Second Amendment, will be preserved, strengthened, and expanded. We will otherwise see our Bill of Rights debilitated, weakened, and restricted.The House and, more importantly, the U.S. Senate must remain firmly in the hands of Republicans and, more especially, in the hands of those who espouse a conservative philosophy, reflective of the views and philosophy and sensibilities of the Founders of our Nation, the Framers of our Constitution, the Creators of our Free Republic—not those Centrists like Paul Ryan and Mitch McConnell, who hold to a decidedly globalist philosophy, who demonstrate globalist sympathies, and whose support of our Bill of Rights is lukewarm at best.The Democrats intend to take control of both Houses of Congress and they intend to weaken our Bill of Rights and to weaken especially the First Amendment Freedom of Speech, and the Second Amendment right of the people to keep and bear arms. They intend, in league with their internationalist, trans-nationalist, globalist benefactors, to weaken, debase and eventually curtail our natural, fundamental rights and liberties. For they mean to draw us insidiously into the arms of a New World Order. They intend to do this through the vehicle of international pacts and treaties and through mainstream news organizations that condition the American public to accept open borders and to accept an amorphous notion of what it means to be a citizen; and by conditioning the American public to accept the legitimacy of foreign courts to hear cases impacting our fundamental rights; and to condition the American public to accept the supremacy of international law over that of our Constitution, and over our system of laws, and over our jurisprudence; and to condition the public to accept historical revisionism, to accept bizarre, alien notions of morality and gender identity; and to condition the public to accept the dismantling of a Nation that is grounded in Christianity and in notions of self-reliance and initiative, individual responsibility. All these things are on the table, as Democrats and many Centrist Republicans seek to weaken the foundation of a Nation as designed and understood by the Founders of it.

IN CLOSING, WE SET FORTH THE FOLLOWING POINTS AND CAUTIONARY IMPERATIVES FOR OUR READERS:

If the American people are to maintain their unique roots, we must work, first and foremost to keep sacred the Bill of Rights, and that means we must understand the import and purport of the Bill of Rights as the drafters intended, and we must insist that rights and liberties be preserved, protected, and strengthened. We must argue for the continued primacy of this Country as a sovereign, independent Nation State and we must insist that the federal Government’s first order of business, as servants of the American people, is to see to the needs of and well-being of, and security and safety of the American people. And, who are the American people? They are the citizens of this Country and those citizens, the American people, do not include anyone who resides here illegally, whatever that person's motive or circumstance for being here. And, no individual who resides elsewhere has a right to emigrate to this Country simply because that person seeks to live here, for good or for ill; and no one who has entered this Country illegally, whether consciously or through no fault of their own, can demand, as a matter of right, as a matter of law, the right to remain here. For law is not ad hoc. If Congress deigns to allow illegal aliens to remain here, then Congress must refrain from granting such individuals, citizenship. For, to grant citizenship to those who have consciously or not ignored our law, or who claim an exception to law that does not presently exist in law will serve only to destroy our system of laws. To change law or to ignore law on a whim sets a poor precedent and such action, in the seeming moral sense of it, will destroy this Country from within.We must hold to our core values. We must not be seduced into accepting notions of moral and legal relativism and we must not fall prey to historical revisionism. These notions are poisonous, pernicious, debilitating. We are a People with one common language, English. No Nation has remained a separate and distinct Nation State that has inculcated, internalized a notion of bilingualism or multilingualism or that has abided bilingualism or multilingualism.No one, whether inside or outside Government, shall indoctrinate the American people. Each American citizen has a right to free expression and to freely express his or her mind. That an individual may wish to express an idea or to possess a physical item that another individual may personally dislike, or even abhor, so what of it? The founders of our free Republic and the framers of our Constitution did not undertake to institute or to insinuate into the natural and fundamental rights and liberties of the American people a notion of “political correctness.” Such a notion is of modern invention and vintage, designed to serve an ulterior purpose. Indeed, had the founders of our Republic thought of such an absurd concept at all they would undoubtedly have held political correctness to be decidedly politically incorrect. Nothing is more devastating or destructive to the citizenry of this Nation or, for that matter, to the citizenry of any nation state, than the sins of hypocrisy and sanctimony. Unfortunately, both are in abundance in this Nation. We can for that thank the arrogance of mainstream media and of those with power and money and influence, both here and abroad, who wish to dictate a mode of thought the rest of us are obliged to adhere to. The American people should be particularly wary of those legislators and those presumptuous “elites” who bandy about such expressions as “rule of law,” and “living Constitution,” and “open borders,” and “citizen of the world” and “job creator,” and “commonsense gun laws,” and “social Darwinism, and “identity politics,” and “political correctness.” These expressions, and there are others, have become trite and dangerous clichés, shorthand simplistic sloganeering, that are either misunderstood and therefore misused, or are otherwise given to suggest or convey something overtly positive, even exemplary, when, in fact, their utilization is meant to harm the American citizen, meant to harm you! Always be mindful of seemingly noble sounding and high-minded verbiage thrown out to the masses for consumption like so much popcorn and roasted peanuts and cotton candy. Be observant, be cautious, think critically before throwing your lot in with everyone else simply because everyone else is “doing it” or “believing it.” You are no longer in high school. There is no longer any need for you to belong to this or that “clique,” in order to "fit in."The framers of the Constitution glorified the right of the individual to be individual and to accept personal responsibility for one’s actions. Our sacred rights and liberties as codified in the Bill of Rights are a testament to that fact. That is our birthright. The right of free speech; freedom of association; the right to be free from unreasonable searches and seizures; and the right of the people to keep and bear arms. These are not mere platitudes. These are a few of the most important natural rights, codified in the Bill of Rights. They are absolute and unconditional, and they are slowly being eroded. Americans should consider, critically, how the words of a news commentator, or of a Hollywood star, or of a mega-sports star, or of a legislator, or of a financier, or of a government bureaucrat, or of a highly paid comic on nighttime  television meant to cajole or persuade Americans would impinge on or infringe those rights and liberties before you throw your lot in with them. For you may be hoodwinked into giving up everything of real consequence._________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

HEARING OF THE U.S. SENATE COMMITTEE ON THE JUDICIARY ON NICS REPORTING AND FIREARM ACCCESSORY REGULATION

WHAT IS THE GOAL OF CONGRESS: TO REPAIR AND IMPROVE NICS REPORTING REQUIREMENTS OR TO TURN NICS INTO A MASSIVE FIREARMS REGISTRATION SCHEME?

"The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. . . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." ~ Thomas Jefferson’s Literary Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774—1776On Wednesday, December 6, 2017, the United States Senate Committee on the Judiciary, presided over by Chairman Chuck Grassley, R-IA, held a three-hour Hearing on firearms, titled, “Firearm Accessory Regulation and Enforcing Federal and State Reporting to the National Instant Criminal Background Check System (NICS).” The full Committee attended. That included the Ranking Democratic Member of the Committee, and virulent opponent of the right of the people to keep and bear arms, Dianne Feinstein, D-Calif.  CSPAN televised the Hearing.Two panels convened. The first one included senior officials of the ATF, FBI, the Secretary of the U.S. Air Force, and the Inspector General of Department of Defense. The second panel convened included, inter alia, a survivor of the Las Vegas mass shooting tragedy, Heather Gooze, who was the first to speak; two Second Amendment legal experts, David Kopel and Stephen Halbrook; and the Montgomery County Chief of Police and Major Cities Chiefs Association President, J. Thomas Manger.The two mass shooting incidents—one occurring during the Harvest Music Festival in Las Vegas, Nevada, on October 1, 2017 and the second occurring at First Baptist Church in Sutherland Springs, Texas, roughly one month later, on November 5, 2017—served, evidently, as the impetus for and the backdrop for this Hearing. The Senate Judiciary Committee focused its questioning of the first panel on: one, the mechanics of criminal and mental health reporting requirements, two, the sharing of data or lack of sharing of data between State and federal police agencies, and, three, the failure of Governmental agencies, both federal and State, to maintain accurate, reliable, and complete databases on those individuals who are not permitted to possess firearms. The Senate Judiciary Committee focused questioning of the second panel on firearms—semiautomatic rifles—that the killers, Stephen Paddock and Devin Patrick Kelley allegedly utilized to murder innocent people.The purpose of this article is not to delve into the interstices and intricacies of the Senate Hearing but to inform the American public of the fact of it and the specific concerns addressed during it that cast in high relief the dangers posed to preserving the sacred right embodied in the Second Amendment.Antigun proponents, through their Congressional representatives—Senate Democratic Party members of the Senate Judiciary Committee, including ranking Democratic Party member, Dianne Feinstein, and her principal cohorts, Patrick Leahy, Richard Blumenthal, Dick Durbin, and Sheldon Whitehouse, among others—wish to move the National Instant Criminal Background Check System (NICS) and other criminal and mental health databases into an efficient and massive and broad digital firearms registration scheme, embracing more and more individuals and incentivizing the military and the States to add comprehensive criminal and mental health data into NICS and other databases. Through this Hearing, and through recent comments of antigun proponents in news broadcasts, we see renewed efforts by antigun proponents, stoked by the recent mass shooting incidents—to weaken the Second Amendment beyond past efforts. Emboldened, we see efforts afoot by antigun proponents to transform NICS and other federal and State databases into a comprehensive digital firearms’ registration scheme, wrapping it into a more restrictive, draconian criminal and mental health background check scheme.If successful, these efforts by the antigun movement would infringe not only the basic, natural and fundamental right of the people to keep and bear arms, embodied in the Second Amendment, but would also infringe the fundamental right embodied in the unreasonable searches and seizures clause of the Fourth Amendment, and infringe, too, the Takings Clause of the Fifth Amendment. And, the antigun movement does not stop there. Not content to ban some semiautomatic firearms—that Federal Statute (the Federal Assault Weapons Ban (AWB)) at one time, defined certain semiautomatic firearms as ‘assault weapons,’ until the AWB expired in 2004, and which several States, with their own assault weapon ban statutes, in full force, presently prohibit—the antigun movement now seeks to ban all semiautomatic firearms.There are efforts afoot to enact federal law not unlike the National Firearms Act of 1934 (NFA). Under the NFA, the ATF heavily regulates civilian ownership and possession of from possessing fully automatic machine guns and submachine guns and selective fire assault rifles. And, the civilian population is prohibited altogether from owning newly manufactured fully automatic weapons.So, even as the House in recent days passed the Concealed Carry Reciprocity Act of 2017 (H.R. 38), a bill that strengthens the Second Amendment, which now goes to the U.S. Senate for consideration, we see--in stark contrast and contradistinction to pro-Second Amendment efforts to strengthen the right of the people to keep and bear arms--efforts by antigun Legislators mobilizing and gearing up to dispossess American citizens of semiautomatic firearms—all semiautomatic firearms, not merely those bizarrely categorized as ‘assault weapons.’ Antigun proponents evidently feel that they can hoodwink the American public, given the recent mass shooting incidents—which they use to their advantage—as they work unceasingly toward their ultimate goal to dispossess all Americans, eventually, of their firearms.During the questioning of the first panel, senior Officials of the Federal Government admitted that the NICS system was incomplete and faulty. The reason for this is that the military, especially, but also the States, have been remiss in entering data pertaining to individuals convicted of crimes that preclude these individuals from possessing firearms. Senator Ted Cruz, in his opening remarks, also made the pertinent point that individuals who falsify information to obtain a firearm have violated federal law, but that these crimes are rarely prosecuted and, so, all too often go unpunished.Falsifying information to obtain a firearm when an individual is not permitted to possess a firearm is a serious crime. 18 USCS § 922(a)(6), titled, “Unlawful acts” sets forth clearly, categorically, and unequivocally that: “it shall be unlawful for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.” Senator Cruz was making the point, albeit tacitly, that laws that have no legal consequences do not amount to laws at all. Enforcement of federal firearms laws is lackadaisical at best, a point often made by NRA and a point perfunctorily ignored by antigun proponents whose real goal, after all, is to go after the millions of law-abiding gun owners, even as they profess to express concern over those individuals, alone, who are absolutely prohibited by law “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign  commerce.” See United States Code, 18 USCS § 922(g) and 18 USCS § 922(n), titled, “Unlawful Acts,” as set forth in Title 18, “Crimes and Criminal Procedure,” of Part I, “Crimes,” of Chapter 44, “Firearms.”During the hearing, Legislators on the Judiciary Committee uniformly expressed concern over faulty federal NICS record-keeping and they requested, from the panel of senior Government officials, an explanation for the failure of these Government Offcials to keep the criminal databases up-to-date. But, it is one thing to repair the NICS record-keeping system; it is quite another to contemplate dumping ever more people into it, essentially, eventually, encapsulating minutia of mental health details of every American, along with details of every infraction committed by every American during every period of his or her life—every spat between husband wife or boyfriend and girlfriend, and an accounting of every instance, every bout of depression or anxiety an American citizen at one time or another may have had. Democratic Party members of the Judiciary Committee—alluded to expanding NICS and other criminal and mental health databases into a comprehensive and permanent digital—as opposed to merely manual—database of every firearm’s transaction and tying that to and in tandem with a universal background check schema.Clearly, the aim of the Democrats on the Senate Judiciary Committee is, then, more ambitious and grandiose than merely repairing a faulty NICS system. We are headed toward a universal registration system if antigun proponents have their way. Every firearm owner becomes suspect. Hence, every American, who owns a firearm must be carefully screened, and those licensed and therefore “privileged” to own and possess a firearm, will be carefully and continuously observed for signs of anti-social behavior, predicated on subjective standards of assessment. The implication of a universal criminal and mental health background check system tied into a permanent NICS databases are dire from the standpoint of Constitutional privacy concerns.Then, there are the firearms themselves. During the questioning of the second panel, it became clear that it wasn’t Stephen Paddock or Devin Patrick Kelley who were being castigated for the horror they caused. Rather, it was the semiautomatic weapons that were the target of and the focus of the Senators' ire--those Democratic Party members who sit on the Senate Judiciary Committee.One speaker on the second panel, who was the first to speak, was a young woman named Heather Gooze. She detailed her personal experiences during the Las Vegas shooting episode and resulting carnage. This survivor’s anguished account of holding and attempting to aid and comfort a dying stranger, who had been shot by Paddock, was poignant, graphic, heart-rending, heartfelt, and deepfelt, as it was meant to be—but, for all that, it was also irrelevant. The fault for the tragedy in Las Vegas was not laid at the feet of the maniac, Stephen Paddock, the sole cause of the carnage—assuming there were no others that abetted Paddock. No! The fault for the crime is laid on inanimate objects—the weapons Paddock used in the commission of his heinous acts. But, if civilian access to an entire category of weapons, semiautomatic rifles, in common use by millions of law-abiding, sane, responsible Americans, is to be curtailed, then, those who would ban civilian possession of semiautomatic weapons  must propound sound legal and logical arguments in support of their case. Arguments amounting to emotional rhetoric, however endearing and heartfelt and honest they may be, are not rational substitutes for sound reasoning.What was on display during the Hearing, was unabashed grief and anger. That is what we heard from the young woman, Heather Gooze: a plaintive and soulful, if tacit, cry for a universal ban on semiautomatic weapons, and that is what the Senators on the Judiciary Committee got from her. This appeal to sympathy for one's cause, derived from heartfelt pain, is representative of a common fallacy. It's one an undergraduate college student learns about in a course on informal and formal symbolic logic. The Latin expression for this informal fallacy is argumentum ad misericordiam (argument from pity or sympathy or misery, or compassion). The fallacy of argumentum ad misericordiam is committed when pity, or sympathy, or compassion, or misery is appealed to for the sake of getting someone to accept a conclusion predicated on emotion, alone, sidestepping the salient issue.Appealing to pity, compassion, or sympathy, or misery avoids dealing with the pertinent legal questions. The pertinent legal question here is this: do semiautomatic weapons fall within the core of the Second Amendment’s protection? Antigun proponents use the argument from pity incessantly to sidestep this legal issue—the real issue—because they do not wish to hit the issue head-on. Appealing to sympathy or pity, or misery, or anger operates as a convenient substitute for cogent and sound legal and logical reasoning. It is unfortunate that the U.S. Supreme Court has, at least twice, decided not to take up the issue whether semiautomatic weapons do fall within the core of the Second Amendment’s protection, as appellants in the cases failed to garner four votes necessary to secure high Court review. See, Friedman vs. City of Highland Park, Illinois, 784 F.3d 406 (7th Cir. 2015), cert. denied, 136 S. Ct. 447, 193 L. Ed.2d 483 (2015); and, recently, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. Md., 2016), cert. denied, 2017 LEXIS 7002. The Arbalest Quarrel has written extensively on both these cases.The legal and logical weaknesses of the antigun proponent’s position, apropos of semiautomatic weapons, would be all too apparent were they to try to evince an argument. The public is hit with emotional rhetoric and pious sentiments, instead. Such emotional outrage has clout, even as it is devoid of substance. Heather Gooze used it to good effect during the Hearing. Her testimony before the Senate Judiciary Committee was as much a plea for action from the public as it was a plea for action from the Senate. No doubt, that was the reason she was invited to speak before the Committee at this public Hearing.Antigun proponents invariably take the argumentum ad misericordiam out of their sack of tricks whenever a tragedy involving the misuse of firearms occurs. They know that tragic events tug at the heartstrings of anyone who has a modicum of compassion in his or her heart, which are the majority of us—and which do not include psychopaths, who have no inkling of and therefore have absolutely no understanding of the concept of compassion. And, these individuals, who lack a modicum of compassion include, as well, common criminals who might understand the concept but simply don’t care since a consideration of compassion during the commission of a crime interferes with their personal selfish ends.Appealing to sympathy as an argument to dispossess millions of law-abiding firearms owners of their firearms operates as a useful makeweight, a convenient scapegoat, for antigun proponents, allowing antigun proponents to avoid factoring in the complex legal, logical, historical, cultural, and ethical ramifications of taking firearms away from millions of sane, rational, honest Americans. Essentially the antigun proponent’s argument, in various forms and permutations, boils down to this:“semiautomatic ‘assault weapons’ are weapons of war and have no legitimate use in civilian hands other than to commit murder and to do so on a large scale. And, manufacturers market these weapons to the entire civilian population which includes, then, mentally ill individuals and criminals who should not have them. These weapons have incredible firepower and no legitimate civilian use. Just look at what happens when a poor, deluded person gets hold of this ‘weapon of war.’ Just look at the harm he calls. Anyone who has a heart at all should see that semiautomatic assault weapons will only cause bad things to happen and will cause good people to do bad things. If you don’t want to see an innocent child, a vulnerable woman, a weak old man harmed—and what caring, compassionate human being does—then you will agree with us that there is no place for these ‘weapons of war’ in a civilized society, and you will write or call your Congressman or Senator, asking your Legislator to enact legislation that permanently bans these awful weapons of war, to ban them for the good of society so that no other person will ever suffer the needless tragedy that these weapons of war cause.” Well, if there is a sound reason for banning semiautomatic weapons from civilians, this isn’t it. Apart from appealing solely to one’s emotions, the argument embraces false assumptions, hyperbole, and irrelevant considerations. And, if you think our illustration of the fallacy of argumentum misericordiam amounts itself to a fallacy—the straw man fallacy, as some, who challenge our position, may claim—it does not. The remarks, concerning semiautomatic weapons as ‘assault weapons’ and ‘weapons of war,’ “weapons that have no legitimate civilian use,” and the notion that firearms manufacturers market these “weapons of war” to criminals and to the mentally ill are not suppositions the Arbalest Quarrel has invented to illustrate an argumentum misericordiam, for the purpose simply to knock down a straw man. No! These remarks are not our invention at all. These remarks, purporting to be arguments against civilian possession of firearms, are utilized constantly, incessantly by antigun proponents. And, more to the point, these remarks, as set forth in our example, comprise, in part, allegations taken from an actual formal legal pleading—namely and specifically the First Amended Complaint of the Soto Plaintiffs, in Soto vs. Bushmaster Firearms International, LLC., 2016 Conn. Super. LEXIS 2626; CCH Prod. Liab. Rep. P19,932. The Arbalest Quarrel has written extensively on this case and continues to write articles about it. See, for example, our in-depth article, titled, “Soto vs. Bushmaster: Antigunners Take Aim at Gun Manufacturers.” We also wish to point out that a detailed account of one’s personal experiences, as related to the reader or listener—those of Heather Gooze, during the Senate Hearing—amount to a series of declarations that have no appreciable epistemic value. In other words, her account of the tragedy in Las Vegas, that occurred during the Harvest Music Festival, is not the sort of thing that one can reasonably challenge, or that need be challenged, or is expected by anyone to be challenged, as false.The Arbalest Quarrel accepts the account of Heather Gooze, as related at the Senate Hearing, as true, and does not quarrel with it. There is no reason to. There is no reason to consider her personal account as false. We say this because the remarks of Heather Gooze have no concrete epistemic value on the salient issue whether semiautomatic weapons fall within the core of the Second Amendment. Her remarks or declarations of events as she experienced them at the Harvest Music Festival do not serve as a sound reason for banning semiautomatic weapons from the millions of average, law-abiding, rational, responsible American citizens who own and possess them, notwithstanding that the Democratic Party Senators on the Judiciary Committee happen to believe the account of Heather Gooze to be relevant to the issue whether semiautomatic weapons are the sorts of firearms that properly belong in the hands of the average, rational and responsible American citizen. The remarks of Heather Gooze simply attest, at best, to a matter that everyone can agree with: that criminals, psychopaths, Islamic terrorists, and other assorted lunatics—the flotsam and jetsam of society—should not have access to any firearm. One might by the same token argue that the worst elements of society should not have access to anything that can feasibly be used to cause great harm to others and to many individuals at one time. Consider for example: a knife, an automobile or truck, or chainsaw. What we are getting at here is that common criminals, and members of drug cartels and criminal gangs, and psychopaths, and Islamic terrorists, and other assorted lunatics and maniacs and riffraff who pose a danger to others, as these individual do, should be removed from our society. It is not the firearm that should be removed from American society.That common criminals, terrorists, psychotics, or psychopaths may happen to get their hands on a semiautomatic rifle or on any other firearm to harm others does not serve as a sound legal or logical reason for banning semiautomatic weapons en masse from millions of average, law-abiding, responsible, rational American citizens. And, make no mistake, Senator Dianne Feinstein and the other Democratic Party members of the Senate Judiciary Committee do seek to ban and do work feverishly to ban all semiautomatic weapons, just as fully automatic weapons and selective fire weapons have been essentially banned from civilian possession, since 1934, with passage of the National Firearms Act (NFA). In fact, Senator Dianne Feinstein would accomplish this feat through enactment of a very devious bit of legislation, which was referred to during the Senate Hearing.Roughly two months ago, on October 4, 2017, Senator Feinstein introduced the following bill in the U.S. Senate:Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, This Act may be cited as the "Automatic Gunfire Prevention Act".POSSESSION OF CERTAIN FIREARM ACCESSORIES. Chapter 44 of title 18, United States Code, is amended-   in section 922, by inserting after subsection (u) the following:   "(v)(1) Except as provided in paragraph (2), on and after the date that is 180 days after the date of enactment of this subsection, it shall be unlawful for any person to import, sell, manufacture, transfer, or possess, in or affecting interstate or foreign commerce, a trigger crank, a bump-fire device, or any part, combination of parts, component, device, attachment, or accessory that is designed or functions to accelerate the rate of fire of a semiautomatic rifle but not convert the semiautomatic rifle into a machinegun.   This subsection does not apply with respect to the importation for, manufacture for, sale to, transfer to, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof."; and   in section 924(a)(2), by striking ", or (o)" and inserting "(o), or (v)". Attorneys David Kopel and Stephen Halbrook, sitting on the second panel, and testifying at the Senate Hearing—were acutely aware of this Senate bill. David Kopel pointed out that the language of Feinstein’s bill, the "Automatic Gunfire Prevention Act," makes very clear that any change at all to any semiautomatic weapon—lightening the trigger pull, for example, or even cleaning a firearm—can effectively serve to increase the rate of fire of the weapon. Thus, any semiautomatic rifle can, were Feinstein’s bill enacted, serve as the basis to ban outright all semiautomatic rifles. When faced with David Kopel’s critical, astute remarks, Senator Feinstein demurred, seemed agitated and, evidently, perplexed, asserting, disingenuously, that the bill was drafted by capable attorneys, suggesting, perhaps, or, then again, perhaps not, that her bill only targets certain types of accessories or components for semiautomatic weapons, such as the “bump-fire device” (“bump stock”) that are specifically mentioned, and not, ipso facto, all semiautomatic weapons. But, that doesn't seem to be the case; and, if that is not the case, then this would suggest that the drafters of Feinstein’s bill either know very little about the operation of semiautomatic rifles or know the operation of semiautomatic weapons all too well. If the former supposition is true, then the bill has unintended consequences: positive consequences for antigun proponents; negative consequences for everyone else. This means that all semiautomatic rifles can and eventually would be banned. This is consistent with the plain meaning of the bill. If the latter supposition is true, then, given the plain meaning of the bill, the bill is a subterfuge. This would mean that those who drafted Feinstein's bill intended, all along, not merely to suggest that only some accessories for semiautomatic rifles would be banned, but that, in fact, all semiautomatic weapons would be banned, as this is what antigun proponents want and have wanted all along and this is what the bill says: no semiautomatic weapons in the hands of American citizens qua civilians. Either way, Senator Feinstein would derive from her bill, if enacted, exactly what she had long sought—a universal ban on semiautomatic weapons defined as ‘assault weapons’—meaning, of course, that all semiautomatic weapons would be banned because all semiautomatic weapons are, ipso facto, ‘assault weapons,’ as Senator Feinstein sees it.Never underestimate the deviousness of antigun proponents and never trust them when they assert that they do not seek to defeat the right of the people to keep and bear arms as codified in the Second Amendment. These antigun groups, and antigun legislators, and their billionaire benefactors, and their fellow travelers in the mainstream media and in Hollywood, will not rest easy until each and every average American citizen qua civilian—apart from the so-called “elites” in society, like Senator Feinstein, herself—is prohibited, by law, from owning and possessing any kind of firearm._________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

DID THE FEDERAL COURTS IN THE FOURTH CIRCUIT BETRAY AMERICA’S FUNDAMENTAL RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS? IT APPEARS SO.

MARYLAND’S FIREARM SAFETY ACT: ATTACKING THE CORE OF THE SECOND AMENDMENT THROUGH THE VENEER OF PROMOTING PUBLIC SAFETY.

KOLBE VS. HOGAN

PART TEN

Despite the need for deference to our federal and State court systems, we must speak out and speak out harshly when it is clear, on both legal, logical, and, not least of all, ethical grounds, that a court disregards U.S. Supreme Court precedent and does so, not out of ignorance of the law as it exists, but with apparent deliberate disregard to Supreme Court law, and more so when it acts with clear disdain for Supreme Court, rendering decisions at odds with Supreme Court precedent with impunity. We certainly see the hallmarks of this in recent lower federal Court decisions and in higher federal appellate Court decisions. The disdain for U.S. Supreme Court precedent in matters involving our Nation’s Second Amendment is not, today, unfortunately, a unique, or, at worst, rare, happenstance. No! disdain for high Court rulings in matters involving our sacred Second Amendment has become no less prevalent—contrary to what Americans might think—in the decisions handed down in the seminal Second Amendment U.S. Supreme Court cases: District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), and McDonald v. Chicago, 561 U. S. 742; 780, 130 S. Ct. 3020; 177 L. Ed. 2d 894 (2010).The Kolbe vs. Hogan case ((Kolbe vs. O’Malley, 42 F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)), is a case in point: a case that demands harsh criticism. The ultimate decision must be deemed no less than a betrayal; and, lest some believe we use the harsh word, ‘betrayal,’ here as mere hyperbole, we wish to controvert that belief. We are deadly serious in our choice of words to describe the ultimate decision handed down by the majority of the U.S. Court of Appeals for the Fourth Circuit.

WHY WE ASSERT THAT THE ULTIMATE DECISION OF THE FOURTH CIRCUIT COURT OF APPEALS OPERATES AS A BETRAYAL

The decision in Kolbe stands as a betrayal first because the rulings of the lower U.S. District Court that first heard the case, and the rulings of the full panel of the U.S. Court of Appeals that had the last word in the case, applied legal reasoning in clear contravention of and in contradistinction to U.S. Supreme Court case law precedent as set forth in District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), and in McDonald v. Chicago, 561 U. S. 742; 780, 130 S. Ct. 3020; 177 L. Ed. 2d 894 (2010).The rulings of the U.S. District Court of Maryland and those of the U.S. Court of Appeals for the Fourth Circuit that reviewed the case, en banc, cannot be reconciled with the rulings of the high Court, try as some jurists on those Courts might, opining that Maryland’s outrageous gun legislation does not offend the Second Amendment and, therefore, that it is consistent with or otherwise compatible with the holdings and reasoning of Heller and McDonald. Yet, the fact of the matter is that the rulings and reasoning of the U.S. District Court of Maryland, and of the full panel of the U.S. Court of Appeals for the Fourth Circuit that had the final word in the case, are not consistent with the rulings and reasoning of the high Court’s majority and cannot be legally or logically reconciled with those rulings and reasoning, and, so, operate as blots on our case law—opinions resisting high Court rulings—manifesting a federal Circuit’s defiance of a bedrock principal of U.S. jurisprudence: adherence to case precedent. The ultimate rulings in Kolbe vs. Hogan operate as a betrayal, second, on an elemental level. They operate as a betrayal to our Constitution, to our Nation, and, not least of all, to the American people, namely and specifically, as a betrayal of the natural right of self-defense existent in the right of the American people to keep and bear arms. The rulings of the lower U.S. District Court, as affirmed by the full panel of the U.S. Court of Appeals for the Fourth Circuit, defiantly and decisively and rudely attack this sacred, fundamental right of the U.S. citizenry as codified in the Nation’s Second Amendment of the Bill of Rights.How did the federal Courts of the Fourth Circuit display their disenchantment with the right of the people to keep and bear arms and by what tortuous reasoning did those Courts come to disenfranchise a substantial number of American people of their natural right to keep and bear arms?

THE U.S. DISTRICT COURT OF MARYLAND HAS FIRST CRACK AT THE OBSCENELY RESTRICTIVE FIREARMS SAFETY ACT OF MARYALND

Before the Kolbe case wended its way to the U.S. Court of Appeals for the Fourth Circuit for an en banc review, the lower U.S. District Court of Maryland had first crack at it, and did so, falling back on its own faulty, indeed benighted, case law precedent, in clear and abject derogation to and defiance of case law precedent set by the U.S. Supreme Court. But the Fourth Circuit is not alone in their tacit condemnation of U.S. Supreme Court precedent in Second Amendment matters. Other federal Circuits have acted similarly: relying on their own faulty case law precedent and on similar rulings of sister federal Courts in other jurisdictions, such as, and principally, those of the Second, Seventh, and Ninth Circuits, and those of the D.C. Circuit—all of which continue to defy high Court case law precedent, as if to suggest that the combined rulings and reasoning of multiple Appellate Courts outweigh the singular holdings and reasoning of the highest Court in the Land, even as these Appellate Courts, as one, pretend, insincerely, to apply the rulings of the high Court in the decisions they render. The Kolbe case is simply the latest major Second Amendment case coming out of any Circuit that, as with decisions emanating from sister Courts that hold the same disdain toward the Second Amendment, reflects hostility toward, rather than deference toward the rulings, reasoning, and methodology of the high Court Majority in the landmark Heller and McDonald cases.The Kolbe case was first heard in the United States District Court of Maryland, where the case was captioned, Kolbe vs. O’Malley, 42 F. Supp. 3d 768; 2014 U.S. Dist. LEXIS 110976; 2014 WL 3955361 (U.S. Dist. Md. 2014). The Governor, at the time, Martin J. O’Malley, was named as a Party Defendant in the case. His name, as a Party Defendant, was replaced by that of Larry Hogan, who became the new Governor of Maryland as the Kolbe case slowly, inexorably wended its way through the federal Court system.The Kolbe case remains noteworthy in two important respects. First, the case illustrates the extent to which a federal Court will go to disregard United States Supreme Court reasoning and rulings when that lower federal Court permits its personal philosophical predilections to interfere with sound legal judicial decision-making. Second, the decision of the U.S. Court of Appeals for the Fourth Circuit that heard the case, en banc, negatively impacts the fundamental rights and liberties of the American people.But, it is one thing for a lay person to happen to hold a negative if aberrant view toward possession and ownership of firearms and toward the Second Amendment because that negative viewpoint does not of itself translate into the infringement of another American’s fundamental, natural right to keep and bear arms. It is, though, quite another thing for a jurist, deciding a case that impacts millions of law-abiding gun owners, to thrust his or her personal viewpoint on other Americans and place the judicial imprimatur on a matter that unconstitutionally intrudes on the rights and liberties of Americans who do not happen to share that jurist’s philosophical bent toward gun possession and gun ownership and, more to the point, when that philosophical viewpoint, culminating in a judicial decision, is contrary to the rulings and reasoning of the highest Court in the Land, the United States Supreme Court. But that is what we have here and what, unfortunately, we see in many lower U.S. District Court and what we see in higher U.S. Circuit Courts of Appeal decisions involving the core of the Second Amendment to the United States Constitution.

THE U.S. DISTRICT COURT OF MARYLAND’S DECISION WAS DECIDED ON MOTION; THE CASE NEVER WENT TO TRIAL.

Critical as this Second Amendment case is to the rights and liberties of law-abiding Americans, the case never went to trial. The U.S. District Court of Maryland decided Kolbe on Motion, specifically on arguments presented in Defendants’ Motion for Summary Judgment (“MOSJ”). An MOSJ is governed by Fed R. Civ. P. 56(a). How does that Rule work?Fed R. Civ. P. 56(a) sets forth that a Party’s Motion will be granted only if the movant shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. But, an MOSJ requires a Court to consider the Motion in a light most favorable to the nonmoving Party, in this instance, the Party Plaintiffs, Plaintiff Kolbe and others. Did the Court follow this directive of the Rule? Hardly!

THE CENTRAL ISSUE BEFORE THE U.S. DISTRICT COURT OF MARYLAND THAT HAD FIRST STAB AT KOLBE.

How a Court frames the issues before it, often goes a long way, in determining how that Court will ultimately decide a case.The central question before the U.S. District Court went to the constitutionality of Maryland’s Firearm Safety Act. What does the Act say? In critical part, it says this:The Firearm Safety Act of 2013 provides in general that, after October 1, 2013, a person may not possess, sell, offer to sell, transfer, purchase, or receive ‘assault pistols,’ ‘assault long guns,’ and ‘copycat   weapons’ (together, ‘assault weapons’). Md. Code Ann., Crim. Law (‘CR’) §§ 4-301(d), 4-303(a)(2). In addition, the Act states that a person ‘may not manufacture, sell, offer for sale, purchase, receive, or transfer a detachable magazine that has a capacity of more than 10 rounds of ammunition for a firearm.’ Id. § 4-305(b). A person who violates the Act ‘is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 3 years or a fine not exceeding $5,000 or both,’ although different penalties are provided for a person who uses an assault weapon or LCM in the commission of a felony or a crime of violence. Id. § 4-306.” The Firearm Safety Act of 2013 is a highly restrictive gun control Act. Maryland’s gun control attacks the very core—the very heart—of the Second Amendment and it does so in a particularly blatant fashion. No doubt about it. The Party Plaintiffs rightly, appropriately challenged the constitutionality of it, asserting that a State ban on firearms lumped into the amorphous category, ‘assault weapons,’ and a ban on critical components of those firearms, referred to as “LCMs” (large capacity magazines), impermissibly violates the Second Amendment. Plaintiffs also argued the Act violated the Equal Protection Clause of the Fourteenth Amendment and that the Act is void for vagueness.For relatively quick final resolution of the case both Party Plaintiffs and Party Defendants, together, agreed the District Court ought to bypass consideration of Plaintiffs’ prayer for a preliminary injunction and should proceed immediately on consideration of the case on its merits. The Court did so.

THE SECOND AMENDMENT CHALLENGE

Did the Court prejudge the case? Consider: In the first paragraph of the Opinion, the Court asserted, “On May 16, 2013, in the wake of a number of mass shootings, the most recent of which claimed the lives of twenty children and six adult staff members at Sandy Hook Elementary School in Connecticut, the Governor of Maryland signed into law the Firearm Safety Act of 2013. The Act bans certain assault weapons and large-capacity magazines (‘LCMs’).”  Kolbe vs. O’Malley, 42 F. Supp. 3d 768, 774; 2014 U.S. Dist. LEXIS 110976; 2014 WL 3955361 (U.S. Dist. Md. 2014).The assertion is simply a presumptive rationale for enactment of a draconian antigun Act that the U.S. District Court of Maryland bought into. It has no pertinent legal merit. It should not have been included in the Court’s Opinion.If the U.S. District Court felt compelled to make the assertion, the Court could have done so and ought to have done so merely in a footnote to the Opinion, as a parenthetical matter. Instead, the Court’s assertion became the touchstone of its decision—the paramount ground upon which it rendered its decision, having agreed that Maryland’s public policy objective justified banning an entire category of weapons, commonly used by millions of Americans, thereby accepting, on its face, the constitutionality of the governmental action, rather than scrutinizing it in terms of its deleterious impact on a fundamental Constitutional right.The District Court’s analysis was wrong, blatantly wrong. In fact, the late Justice Antonin Scalia, writing for the majority in District of Columbia vs. Heller, pointed out—cautioned Courts of review—that certain policy choices are off the table precisely because they effectively and essentially obliterate exercise of the right of the people to keep and bear arms enshrined in the U.S. Constitution. Justice Scalia said this:“We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns [citation omitted]. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct." District of Columbia vs. Heller, 554 U.S. 570, 636; 128 S. Ct. 2783, 2822; 171 L. Ed. 2d 637, 684 (2008), The U.S. District Court did not heed Justice Scalia’s directive. Instead it went its own way, either oblivious to the import of Justice Scalia’s warning or exhibiting a deliberate disdainful attitude toward it.

WHAT IS THE APPROPRIATE STANDARD OF REVIEW A COURT SHOULD EMPLOY WHERE THE VERY CORE OF THE SECOND AMENDMENT IS ATTACKED?

Since the standard employed will have decisive impact on the result obtained, it is incumbent on a Court of competent jurisdiction to use the correct Standard of review. There are three traditional standards of review: rational basis, intermediate scrutiny, and strict scrutiny. These three standards of review of a governmental action may be considered tiers or levels of scrutiny. What are the differences? Generally, as one scholar asserts “The essential difference among rational basis review, intermediate scrutiny, and strict scrutiny lies in the extent to which the Court is willing to examine empirically the nexus between the challenged statute’s ends and the means by which they are sought. Depending on which test is applied, the classification must either be ‘rationally related,’ ‘substantially related,’ or ‘narrowly tailored’ to a ‘legitimate,’ ‘important,’ or ‘compelling’ state interest. The varying levels of scrutiny used to keep the state in line with the Constitution represent the reality that while policymakers are granted considerable leeway in achieving societal goals, there are occasions where we prefer not to grant them a presumption of benevolence in their policy choices.” NOTE: HIV-Positive, Equal Protection Negative.” 81 Geo. L.J. 375, 383, by Sean Doyle, J.D., Georgetown University. Although the focus of that article is directed to the “extent to which traditional equal protection jurisprudence and the current Supreme Court will protect individual rights when policymakers attempt to control the spread of AIDS,” Id. at 378, the author’s brief description of the salient differences among the traditional standards of review have general application. The author of the Note added this remark: “When it is likely that ignorance, prejudice, or antipathy has informed the judgment of policymakers, courts will review the legislation from a more critical standpoint in order to safeguard the equitable promise of the Equal Protection Clause.” “HIV-Positive, Equal Protection Negative.” 81 Geo. L.J. 375, 383, by Sean Doyle, J.D., Georgetown University. That remark is more of a hope than a promise for, where, as here, a Second Amendment issue comes before a federal Court where a Court is biased against an American’s exercise of his or her Second Amendment right to keep and bear arms, that Court will invariably find an infringement of the right to be acceptable, notwithstanding the extent to which the infringement of the right is particularly onerous, even absolute.The question we must ask here is: how do these three standards “stack up” when a Second Amendment challenge to a Governmental action is raised? And, more to the point, we need to ask: should a Court even invoke a standard of review when it is evident that the core—the very heart of the Second Amendment—is attacked? And, if no standard of review should be employed, what does that mean? How is a challenge to a Statute that attacks the Second Amendment--a Statute that attacks the very core of the Second Amendment-- to be resolved?These questions would not have been given serious consideration—a few of them might not have even been asked—prior to Heller and McDonald, but, post Heller and McDonald, a Court of review must be mindful of these questions and be ready to answer them and be wary of any governmental action directed against the Second Amendment.Government actions that impinge on and infringe upon the Second Amendment—should reasonably, at the very least, invoke the highest level of review—strict scrutiny and, if that standard of review were properly employed, any highly restrictive gun legislation would be summarily struck down. And, where the very core of the Second Amendment is attacked, a governmental action that attacks the very core of the Second Amendment should be summarily struck down without need of a Court to resort to any standard of review. {We will discuss this latter idea in detail, in a future article}.Yet, the Second Amendment has been, for decades, in many federal and State Courts, treated as a secondary, subordinate right rather than as a fundamental right, notwithstanding that its station in the Bill of Rights is overt, manifest--not left to conjecture. Be that as it may, some federal Circuits, to this day--and in clear contravention to the dictates of Heller and McDonald--still use rational basis--the most lenient--standard--to test the constitutionality of even the most draconian of gun laws such as, and particularly, the New York Safe Act which was signed into law by Governor Andrew M. Cuomo in January 2013.The New York Safe Act is the model for restrictive gun legislation in various jurisdictions across the Country. Antigun Legislators in Congress had hoped the NY Safe Act, operating in the vanguard for federal legislation, banning so-called “assault weapons” and so-called "high capacity magazines," would pave the way for such federal legislation. Recall that the Majority Speaker of the House—at the time, Harry Reid (D-Nevada)—would not allow Senator Dianne Feinstein’s notorious bill, the"Assault Weapons Ban of 2013," introduced in January 2013, on the heels of the NY Safe Act, to come up for a vote on the Floor of the Senate. Dianne Feinstein was furious, but could do nothing to change Senator Reid’s mind. Reid realized that he did not have the votes. But, had Dianne Feinstein’s bill been enacted, it would have banned, nationally, 150 semiautomatic weapons, along with magazines that hold more than ten rounds of ammunition. Now that a Republican Majority holds both Houses of Congress, the possibility of federal antigun legislation is, thankfully, dead and buried. So efforts of antigun politicians and groups have now been redirected toward exacting a toll on the Second Amendment through enactment of semiautomatic weapon bans and "LCM" bans piecemeal across the Country--which, time-wise, is a lengthy, drawn-out process, but one which antigun groups and their friends in Congress and in State Legislatures and in the mainstream media are grudgingly accepting.One way to throw a wrench in the efforts of antigun groups is for Republicans to use their Majority position to enact National handgun carry reciprocity legislation. A second way is for the U.S. Supreme Court to hear the Kolbe case and to reverse the decision of the U.S. Court of Appeals for the Fourth Circuit. Both sequence of events can occur in tandem if both Congress and the U.S. Supreme Court have the will to proceed to assert the right of the people to keep and bear arms, as the framers of our Constitution fully intended.The latest example of a State sponsored semiautomatic gun ban--and one operating as a suppurating sore on the Second Amendment--is Maryland’s Firearm Safety Act—an Act that can potentially impact States beyond Maryland—namely, and specifically, those within the jurisdiction of the Fourth Circuit. Those States in the ambit of the Federal Fourth Circuit, apart from Maryland, include North and South Carolina, Virginia, and West Virginia. Governments of each of those States may impose the same bans on possession of similar semiautomatic weapons and on so-called “LCMs,” knowing that the U.S. Court of Appeals for the Fourth Circuit has already given its blessing on such onerous gun laws that may be enacted in the States of that Circuit.

THE U.S. DISTRICT COURT OF MARYLAND'S HORRIBLE, DISASTROUS, ERRONEOUS DECISION PAVED THE WAY FOR THE DECISION OF THE U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT, EN BANC, THAT AFFIRMED THE DECISION OF THE LOWER COURT, FINDING MARYLAND'S FIREARM SAFETY ACT NOT TO OFFEND THE SECOND AMENDMENT TO THE U.S. CONSTITUTION, ALTHOUGH THE DECISION STANDS IN CLEAR, ABJECT CONTRAVENTION TO U.S. SUPREME COURT REASONING AND LAW.

The U.S. District Court of Maryland handed down a decision favorable to the Government of Maryland. On the Second Amendment issue the Court said, inter alia: “the evidence demonstrates that the banned weapons pose a threat to law enforcement and public safety because of a combination of features of which the ability to penetrate soft body armor is just one [citation omitted]. Once finding that the ban will sufficiently further the government's substantial interests in protecting public safety and preventing crime—including murders of police officers—to pass intermediate scrutiny, the court cannot question the legislature's judgment that the Firearm Safety Act was the appropriate balance of various interests when compared to other possible regulations.” Kolbe vs. O’Malley, 42 F. Supp. 3d 768, 796 (D.C. Md. 2014). The U.S. District Court applied “intermediate scrutiny.” having applied that standard of review, would there be --could there be--any doubt as to the outcome? None, of course. The Court concluded, saying, “In sum, the defendants have met their burden to demonstrate a reasonable fit between the Firearm Safety Act and the government’s substantial interests in protecting public safety and reducing the negative effects of firearm-related crime. Accordingly,  the Act does not violate the Second Amendment. Kolbe vs. O’Malley, 42 F. Supp. 3d at 797.But how did the U.S. District Court come to apply intermediate scrutiny in Kolbe? Through what tortuous legal and logical reasoning did the U.S. District Court of Maryland come to believe that intermediate scrutiny was the appropriate standard of review to be used to test the constitutionality of Maryland’s Firearm Safety Act—an Act that banned outright any firearm the State Government of Maryland sought, arbitrarily, to place within the domain of firearms that the State defined as 'assault weapons;' and an Act that banned outright magazines for those weapons that happen to hold a number of rounds that the Government arbitrarily deemed to be illegal for the average law-abiding American residing in Maryland to own and possess?We deconstruct the U.S. District Court’s reasoning in the next article of this continuing series.______________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

DOES THE SECOND AMENDMENT CODIFY NATURAL LAW, PREEXISTENT IN THE INDIVIDUAL, OR IS THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS A MAN-MADE CONSTRUCT?

Maryland's Firearm Safety Act: Attacking The Core Of The Second Amendment Through The Veneer Of Promoting Public Safety

KOLBE VS. HOGAN

PART SEVEN

The Underpinnings Of The Second Amendment Right Of The People To Keep And Bear Arms

Against the backdrop of every major Second Amendment case rests a fundamental and profound philosophical question. The question is this: does the right of the people to keep and bear arms exist as a quality, feature, attribute, aspect, condition, or characteristic intrinsic to the individual, existing, then, within the individual, or is the right to be perceived as an endowment, bestowed on the individual by others, something, then, extrinsic to the individual—existing, if at all, outside the individual? If the right of the people to keep and bear arms is extrinsic to the individual, this means the right is a human invention. It is a construct, convention, or contrivance. It is a thing created by and then granted to, licensed to, or bestowed upon the individual by another entity, say the State, through Government. But, if it is a thing bestowed upon the individual by the State, then the right does not belong to the individual. The right belongs to the State. The State may, then, at its discretion, at its whim lawfully withdraw or rescind the right so bestowed upon the people. That means the right of the people to keep and bear arms is less a right than a privilege of the people to keep and bear arms—a privilege which the State may grant, or cede, or license to an individual, for a time, and, thereafter, at the State’s pleasure, rescind or withdraw. The individual has no legal recourse to contest the privilege rescinded or withdrawn except to the extent that law set forth in statute—also a creation of the State, through the State's government, yet another man-made construct—allows.If, however, the right of the people to keep and bear arms is an inherent quintessential quality, feature, attribute, characteristic, condition or aspect of each person, existing within an person qua an autonomous individual, this means, by logical implication, the right exists outside of and independently of the State. If so, the right of the people to keep and bear arms operates as an extraordinary constraint on the State’s power, through Government to regulate and control the exercise of the right. For the right is indefeasible, immutable, archetypal, preexistent in the soul of man, and therefore resting beyond space and time. In its purest application, the right of the people to keep and bear arms is absolute. The right cannot be constrained without also restraining and constraining the sanctity and inviolability of the individual soul. The right of the people to keep and bear arms--the operative clause of the Second Amendment--is not, then, a creation of man. The Second Amendment to the U.S. Constitution is simply a codification of, and an acknowledgment of the right preexisting in the individual. It is not a thing that can, lawfully, be defeated through legislation or really destroyed by the State, through government since it was never a thing enacted through legislation or granted or licensed to the individual by grace of the State through the State's Government. To suggest otherwise is mere pretense and artifice. The right of the people to keep and bear arms as a right, preexisting in the individual, is not a novel idea. The U.S. Supreme Court made the point in 1879, as Justice Antonin Scalia reminds those jurists who may have forgotten this critically important fact or who may simply have chosen to ignore it or belittle it. Justice Scalia says, "The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.' As we said in United States v. Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588 (1876), '[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed. . . ." Columbia vs. Heller, 554 U.S. 570, 592; 128 S. Ct. 2783, 2797-2798; 171 L. Ed. 2d 637, 657-658 (2008). How a Court perceives the right of the people to keep and bear arms informs a Court's resolution of all Second Amendment cases that come before it. Does a Court perceive the right of the people to keep and bear arms as a primordial, preeminent right preexisting in the individual, consistent with the framers' beliefs when the framers codified the right within the Bill of Rights as the Second Amendment to the U.S. Constitution, and as recognized by the U.S. Supreme Court as early as 1879 in the Cruikshank case and as reiterated by Justice Scalia, writing for the majority, in the 2008 Heller case, or does a Court simply view the right of the people to keep and bear arms as a man-made construct or invention, no more so nor less so than any man-made statute, code, rule, regulation, or ordinance? If a Court chooses to deny, or chooses to ignore, or, if a Court  simply chooses, seemingly and  conveniently, to forget the import of the operative clause of the Second Amendment--the right of the people to keep and bear arms--as several United States District Courts and United States Circuit Court of Appeals are wont to do, as the United States Court of Appeals for the Fourth Circuit has done as seen in its disastrous Kolbe decision, the Second Amendment will lose its strength, its efficacy. The right, though, does not cease to exist. It cannot ever cease to exist because the right is deathless. The right exists in a person's very being. But, if a Nation fails to recognize and accede to the import of the right of the people to keep and bear arms, the right remains dormant, and a nation, any nation--but, in particular, our Nation--will loses its soul that would seek to deny to the individual his or her natural birthright. Tyranny will, then, inevitably, rear its ugly head, and if tyranny should arise, our Free Republic will surely fall, for the existence of a Free Republic is incompatible with the existence of autocracy even as government heads assert the continued existence of a republic in an attempt to assuage public consternation, public doubt, public enmity, and to quell rebellion--rebellion that would be impossible to effectuate anyway with the loss of a citizen army with the denial of one's natural right to keep and bear arms. Thus, the philosophical underpinnings of the sacred right embodied in the Second Amendment to the United States Constitution cannot be overstated. It is the hallmark of this Nation and of this Nation's regard for the autonomy, sanctity, and inviolability of the individual, as this is in accord with the framers' own core beliefs in codifying The right of the people to keep and bear arms within the Bill of Rights as the Second Amendment to the U.S. Constitution, and as, subsequently recognized by the U.S. Supreme Court in 1879 in the Cruikshank case and as reiterated by Justice Scalia, writing for the majority, in 2008, in the seminal Heller case. And it is the ultimate "fail-safe device" against tyranny. The attempt, any attempt by a Court to denigrate the right of the people to keep and bear arms is nothing less than an apostasy.Unfortunately, as we have seen, although Courts will acknowledge the seminal Second Amendment case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), as they must when faced with a Second Amendment issue, this acknowledgement does nothing, of itself, to restrain courts from often blatantly ignoring the rulings of that seminal case, and, in so doing, ignoring the jurisprudential principles that ought guide judicial conduct in the resolution of a case before it, and, more so, committing the cardinal sin of undercutting the sacred precepts of our Nation. The Heller case has cast the right of the people to keep and bear arms in stark relief. Lower Federal District Courts and higher Circuit Courts of Appeal can no longer hide their animus toward the Second Amendment by contending that the import of the Second Amendment has never been adequately resolved by the Courts or by academicians. The Heller case makes abundantly clear, in no uncertain terms, that the right of the people to keep and bear arms is a fundamental right and, more, a preexisting right, intrinsic to the individual, a right unconnected with one's service in a militia.The high Court has provided clear guidance for resolution of cases that involve government actions that attack the core of the right of the people to keep and bear arms. Lower federal courts that ignore the clear intent of and clear reasoning of the seminal Heller case, do so at their peril. For they can no longer hide behind obfuscating language if they choose to ignore the holdings of the case and the reasoning of the Court's majority in rendering those holdings. They can no longer claim that the meaning and purport of the right of the people to keep and bear arms is still in doubt. The Kolbe case ((Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)) is the latest in a line of poorly decided and poorly reasoned--and extremely dangerous--cases cascading through the legal system from Courts that directly and routinely and unabashedly attack the core of the right of the people to keep and bear arms. Kolbe is a case that aptly illustrates a U.S. Circuit Court of Appeal’s caustic attitude toward Heller, and, by extension, aptly illustrates the Court's disregard for application of case precedent to the Second Amendment cases before it; the Court's disregard for the sanctity of the American citizen as an autonomous individual; and the Court's refutation of the importance of adherence to the core traditions, values, and belief system as reflected in the Constitution and in the Republican form of Government that our framers created and passed down to us.The Kolbe case aptly demonstrates that, once a Court disagrees with the philosophical underpinnings of the Second Amendment—that the right of the people to keep and bear arms exists within man, and not as a thing extrinsic to man—that Court will invariably rule for the State, against the individual. It will do so in clear contravention to and in clear defiance of case precedent, as set by the U.S. Supreme Court in Heller, and will do so in ostensible contemptuous disregard of our Nation’s historical traditions and in disregard of our Nation’s substantial jurisprudential history, manipulating law to derive a result consistent only with the Court's personal flawed philosophy, remarking, in its opinion, what, in the Court's view, the Second Amendment ought to say, rather than in adhering to what the Second Amendment does say, as clarified through the rulings and reasoning of the Heller majority.

THE BILL OF RIGHTS, AS A COMPONENT OF THE U.S. CONSTITUTION, STANDS PREEMINENT; FOR THE BILL OF RIGHTS, UNLIKE THE CONSTITUTION’S ARTICLES AND SUBSEQUENT AMENDMENTS, CODIFY NATURAL LAW, NOT MAN-MADE LAW.

The framers of our Constitution accepted, as axiomatic, that a critical component part of that Constitution —the normative rights and liberties, of the Bill of Rights—are, in a critical manner, wholly unlike the main body of the Constitution. For, although the structure of Government is man-made, the rights and liberties codified in the Bill of Rights, are not man-made. The rights and liberties, set forth in the Bill of Rights are not social or political constructs, conventions, contrivances, or mechanisms. The framers knew that any Governmental form they created could, even with the best checks and balances in place, can still devolve into tyranny. The framers understood that the greatest threat to the sanctity and inviolability of each person, each American citizen—is the threat that the Federal Government might one day devolve into autocracy, into totalitarianism, into tyranny. To guard against this possibility, to offset the insinuation of tyranny, lurking behind the corner of every government formed by man, the founders of our Nation and framers of our Constitution, established, as a critical component of our Nation’s Constitution, an indelible Bill of Rights.The Bill of Rights comprises a set of primary, primordial, fundamental, natural laws that Government must adhere to lest Government devolve into tyranny. These natural laws rest well beyond the power of the Federal Government, lawfully, to destroy. Preeminent among the natural laws that constrain the possibility of a despotic Government is the Second Amendment to the U.S. Constitution.The framers understood that an armed citizenry protects the entirety of the Bill of Rights and that an armed citizenry is the single best guardian against and check on a Federal Government run amok and that an armed citizenry is the ultimate bastion against tyranny. Some jurists, though, do not appreciate the threat posed to a free Republic, in the absence of an armed citizenry. They don’t accept this. They are philosophically predisposed to regard an armed citizenry with trepidation, with suspicion; as a potential threat against public order. So, they don't accept the necessity of an armed citizenry. They do not and will not accept the emphatic command to the State, to a State's Government, to the Court itself, as a component of the State, of the Government. They do not accept, will not accept the idea that the Second Amendment is to be revered, respected, preserved, strengthened, exalted, as the framers intended. They don't accept this. But, they must. The Heller holdings and the legal and logical reasoning of the Court's majority, as penned by the late Justice Scalia, fell upon those courts, that find the Second Amendment anachronistic, like a ton of bricks. They don't like the holdings and they do not agree with the Heller majority's reasoning. So, they slither around Heller, pretending to adhere to it rather than truly complying with it, rendering decisions, antithetical to Heller, and, therefore, antithetical to the import and purport of the Second Amendment.

WHY THE HELLER CASE IS TRULY CRITICAL TO U.S. SUPREME COURT JURISPRUDENCE

The Heller case is generally cited for its principal holding: that the right of the people to keep and bear arms is an individual right, exclusive of a person’s connection with a militia. But, in dicta, the Court's majority spoke, at several points, of the “natural right” of self-defense and resistance. To the framers of our Constitution, the right of the people to keep and bear arms is not a creation of government. The right exists intrinsic to man, as natural law, not man-made law. Justice Antonin Scalia refers to the right of the people to keep and bear arms as a natural right several times in the opinion he penned for the majority of the high Court, citing to the historical writings of the Second Amendment that he reports in the Heller case. Not surprisingly, the dissenting Justices for their part, notably Justices Stevens and Breyer, who penned penned two separate dissenting opinions, do not. The dissenting Justices do not even allude to the notion of a right of the right of the people to keep and bear arms in the context of natural law and natural rights.The dissenting Justices on the high Court do not accept the facticity of the rights and liberties of man as codified in the Bill of Rights, as natural rights. These Justices—and many other judges that fill the seats on the lower U.S. District Courts and that fill the seats on the higher U.S. Circuit Courts of Appeal—do not and will not accept as axiomatic that the Bill of Rights comprises a set of indefeasible rights and liberties.The liberal wing of the high Court and the liberal jurists of the lower Federal District and higher Federal Appellate Courts take as a jurisprudential principle, that the right of the people to keep and bear arms is no less a social, political, and legal construct than any other part of the law. For such jurists, the idea that the right of the people to keep and bear arms bespeaks natural law, outside one’s service in a militia, is not only false, it is patently ridiculous. Their opinions are infused with the notion that the Bill of Rights may be lawfully violated if utilitarian demands so dictate. None of the dissenting Justices in Heller would, though, make such a remark overtly and none have done so. But, since none of the dissenting Justices accept as axiomatic that the right of the people to keep and bear arms codifies a natural right, they fail to see how discordant their position is when they proclaim that such right of the people to keep and bear arms that exists is contingent only on one’s service in a militia. For, one might reasonably ask that, if a person's right to keep and bear arms is tenable only in the event one serves in a militia, then under what circumstance or set of circumstances might an individual ever vindicate the right so violated, if such right operates only in connection with one's service in a militia? And, if the right cannot be vindicated, is the right, then, not simply nugatory?Justice Stevens, in his dissenting opinion, joined by Justices, Souter, Ginsburg and Breyer, attempts, unsuccessfully, to skirt as de minimis the question whether the Second Amendment codifies an individual right to keep and bear arms as opposed to a collective right. In the first sentence of his dissenting opinion, Justice Stevens says, “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.” District of Columbia vs. Heller, 554 U.S. at 636; 128 S. Ct. at 2822.* How is the individual right to be vindicated legally--indeed, how is the individual right to be vindicated logically--if that "individual" right is subsumed under or in connection with one's service in a militia? Is that right not, then, a mere "collective" right? But, if the right of the people to keep and bear arms is a "collective" right, how is that collective right to be vindicated? Is a collective right of the people to keep and bear arms, a right in any legal or logical sense at all?Justice Stevens undermines the import of his own remark as he directs the entirety of his argument to the thesis that the right of the people to keep and bear arms is merely and solely tied to one’s service in a militia. The scope of the right is, apparently, the issue Stevens seemingly wrestles with in his dissenting opinion because he must realize the logical flaw inherent in it. Justice Stevens attempts to respond to Justice Scalia's logical argument that, on Justice Stevens' interpretation of the right codified in the Second Amendment, there is nothing in "the scope of the individual right" left to be protected. Justice Stevens cannot and does not adequately argue that there is something left of the individual right to be protected on his peculiar interpretation of the Second Amendment, because, once Justice Stevens accepts, as a premise, that the right of the people to keep and bear arms rests principally upon the person’s service in a militia, he cannot escape the implication of that premise, namely that there exists no individual right of the people to keep and bear arms left to be protected, as he has severed the right, which exists only in the operative clause of the Second Amendment, from the prefatory clause, and, in so doing, he attempts, unsatisfactorily and unjustifiably, and, indeed, incoherently, to insinuate the right into the prefatory clause. But, there is no legal or logical, or linguistic way in which he might reasonably do this. Thus, the right of the people to keep and bear arms cannot be protected, which is to say vindicated, in any manner, because the right is contained, according to Justice Stevens, in the prefatory, dependent clause of the Second Amendment. The prefatory clause, though, has, in its very language, no operative force. It talks of no right at all. So, there is nothing in the prefatory clause that can be vindicated. Justice Scalia laid bare the problems with Justice Stevens argument. Justice Stevens, for his part, had no adequate rejoinder. Justice Scalia, writing for the majority, pointed out that, "The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, 'Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed [citation omitted]. . . . Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, 'A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.'" District of Columbia vs. Heller, 554 U.S. at 577; 128 S. Ct. at 2789; 171 L. Ed. 2d at 648, 649 (2008).** Moreover, if one assumes for purpose of argument that a right does exist or can be implied in the prefatory clause of the Second Amendment, that somehow carries over to the independent, operative clause, that still doesn't help to salvage Justice Stevens' argument. For, the State, through Government is, then, and, in fact, must be, the final arbiter not only of what firearms the individual may possess but whether the individual may possess any firearms at all, outside of that individual’s connection with a militia. But, if that were so, then, once it is posited that the Government has sole authority to regulate the kinds of firearms a person may possess in his or her individual capacity, or whether a person may possess any firearms at all, then, the right of the people to keep and bear arms, as a right exercised by the individual, is subject to the whim of Government. The right, then, is not a real right at all, as the "right" may very well be regulated out of existence. The right, then, is ephemeral. It simply falls away. This is the salient problem with Kolbe and those cases that, like Kolbe, accept, at least tacitly, the absolute power of Government to dictate the kinds of firearms that Americans may possess and, ultimately, whether Americans may possess any firearms at all.We continue with our exegesis of Kolbe in light of the Heller case in Part Eight of this series._________________________________________________________*Did Justice Stevens pilfer from a law review article having failed to acknowledge the source? Consider and compare the remarks in the first paragraph of Justice Stevens' dissenting opinion in Heller to the following statements that appeared in a law review article written nine years before the high Court decided Heller: "There are two relevant Second Amendment questions. The first question is whether the right belongs to the individual. Professor Yassky [David Yassky, The Sound of Silence: The Supreme Court and the Second Amendment - A Response to Professor Kopel, 18 St. Louis U. Pub. L. Rev. 189, 190 (1999) (debating scope of individual's rights under Second Amendment)] believes the question to be confused because 'all constitutional rights - even those most obviously concerned with government structure rather than individual freedom - ultimately belong to individuals in the sense that individuals can sue to vindicate them.' The proper question assumes that the  Second Amendment recognizes some individual right but asks what the scope of the right is. This article argues that the scope of the individual right is limited to those circumstances in which the individual participates in a government militia." From, "The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate Over the Right to Bear Arms," 16 St. John's J.L. Comm. 41 (Winter 2002), by Robert Hardaway, Elizabeth Gormley, and Bryan Taylor. **Curiously, after Justice Stevens retired from serving on the United States Supreme Court, he attempted, apparently, as set forth in his book, published in April of 2014, titled, "Six Amendments: How and Why We Should Change the Constitution," to come to grips with if not to circumvent the problem, with his thesis as pointed out by Justice Scalia. Justice Stevens' contended, as set forth in his dissenting opinion in Heller, that a way exists through which the right of the people to keep and bear arms" may be vindicated. Justice Scalia explained that, under Justice Stevens approach, though, that, under Justice Stevens' thesis, there is no manner in which the individual right of the people to keep and bear arms can be vindicated, that, under Justice Stevens' thesis, the right is nugatory. Justice Scalia had proved that the right of the people to keep and bear arms cannot be vindicated through the prefatory clause, "A well-regulated militia being necessary to the security of a free State," because the right--on the plain meaning of the language of the Second Amendment--does not exist in the prefatory, dependent clause and cannot logically be transported into "the right of the people to keep and bear arms shall not be infringed" exists in the operative, independent clause only, for that is where the right is expressly stated.There is no logical, rational reason or basis for inserting the right of the people to keep and bear arms into the prefatory clause and tying the intrinsic right of the individual, inextricably, to that individual's connection with a militia. For, there is no mechanism for vindicating the right when the right is tied to one's connection with a militia. Thus, there is no right to be vindicated and the Second Amendment, as a codification of and assertion of a right, would be, must be nugatory. Apparently realizing this and not acceding to the idea that the right of the people to keep and bear arms is an individual right, preexisting in the individual, not connected with service in a militia--as these ideas are not philosophically acceptable to Justice Stevens--Justice Stevens suggests, in his book, that the Second Amendment should be rewritten as: "A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms when serving in a militia shall not be infringed." Justice Stevens apparently sees this rendition of the Second Amendment--which, by the way,  does not comport with any such suggestion by any of the framers of our Constitution--as a tenable way to get around the late Justice Antonin Scalia's contention   that, on Justice John Paul Stevens interpretation of the right of the people to keep and bear arms, there is nothing left of the right to be vindicated. Justice Stevens apparently believes that, in his novel rendition of the Second Amendment, the right of the individual is, now, successfully limited but still vindicated, and the Second Amendment is not, then, nugatory as he has now tied the right of the people to keep and bear arms specifically, linguistically, indisputably, to a person's connection with a militia. The right is duly limited but expressly stated in the operative clause. But, there is still a problem, and it is a problem quite apart from the fact that Justice Steven's reworking of the Second Amendment fails to comport with any view of the import of the Second Amendment as set forth by any of the framers of the U.S. Constitution, and it is a problem that cannot be surmounted through the rewriting of the Second Amendment, which, is, by any account, an extremely drastic way to respond to the fatal flaw in his argument. For, even accepting, on logical grounds, that there is something to be made of Justice Stevens' redraft of the Second Amendment as a way to avoid the flaws in his position, as he has set forth that position in his dissenting opinion in Heller, the question arises how a group right, that is to say, a collective right, is to be vindicated. Justice Scalia had remarked on this point as well, in pointing to another flaw in Justice Stevens' position, that Justice Scalia referenced in the majority opinion he penned, in Heller. How, one might ask, might one petition the Courts for vindication of a right purportedly tied to one's service in a militia? Moreover, suppose the militia, "necessary to the security of a free State" though it be, as set forth in the prefatory clause, ceases to exist. Wherein is the right, that one may exercise, be vindicated if there is no right left to be exercised? What, really, is there left of the right? One may ask: was there ever truly a right that might be vindicated at all?  As Justice Scalia pointed out, the necessity for the armed citizen lay not in the existence of the militia but in the force of arms of the citizenry that the citizenry brought to the militia and that made a militia possible. Justice Scalia, writing for the majority said, ". . . the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right--unlike some other English rights--was codified in a written Constitution." District of Columbia vs. Heller, 554 U.S. at 599; 128 S. Ct. at 2801; 171 L. Ed. 2d at 662 (2008). It is the right of the people to keep and bear arms, that is to say, in the individual ownership of and possession of firearms, in and of itself, that is critical to the exercise of and vindication of the right, a right unconnected to service in a militia or in connection with any other man-made creation; and in that exercise of the right intrinsic to, immutable, indestructible, preexisting in each person, where each person is perceived as an autonomous individual, whose individuality must remain sacred and inviolate, would the security of a free State be preserved. An armed citizenry resides in what remains, today, of the true militia, namely, the unorganized militia, and that unorganized militia is not equivalent to or equated with, nor is it to be considered equivalent to or equated with the "organized militia," namely, the National Guard of each individual State that exists as a reserve military arm of and for the Federal Government, as dictated by Federal Statute.Better it would have been for Justice Stevens to accept that his thesis regarding the Second Amendment is wrong and that Justice Scalia is correct and that Justice Scalia was correct all along. But, Justice Stevens doesn't accept the plain meaning of the Second Amendment; he refuses to do so on a deep, visceral level. Justice Stevens absolutely refuses to accept the plain meaning of the Second Amendment as set forth in the Constitution, and in refusing to accept the plain meaning of the Second Amendment, Justice Stevens is taking exception with and contending with the deeply held beliefs of the framers of our Constitution. So, Justice Stevens is compelled to hold onto the legally deficient, logically unsound, and ethically dubious notion of an individual right of the people to keep and bear arms that happens to be tied to and exercised only by one's service in or connection with a militia.In point of fact, though, the "organized militia," as such no longer exists. It has been subsumed into and, more accurately, replaced by the "National Guard," which has become a reserve component of the federal Government, subject to federal control. This might not bother Justice  Stevens although it might be of concern to others. Justice Stevens seems to be more concerned with the logical coherency and consistency of his position, as well he should be, that requires that a right exercised by an individual must, in a logical sense, to be considered a true right at all be capable of vindication if violated. Justice Stevens seems less concerned over the practical application of the right that is to be vindicated, though, which, consistent with his thesis, is a contingent matter, after all, contingent on the existence of a militia. If there exists no militia, then, apparently, the failure of the condition precedent does not negatively impact the fact that a right may, at least, logically, if not empirically, that is to say, factually, be vindicated. In other words, the right to be exercised, albeit, one tied to the militia, under Justice Stevens' thesis, does always exist. For, Justice Stevens does, after all, in his redraft of the Second Amendment, retain the words, "shall not be infringed." So, if the militia exists, then the right may, Justice Stevens would argue, be vindicated. If the militia does not exist, the right, although it still exists, cannot be exercised and cannot be vindicated. The success or failure of a right to be vindicated is a function of the existence of the militia. But, then, what does it mean to say the right, supposedly, always exists? This is a tortuous attempt at legal and logical manipulation of concepts to give credence to an idea that Justice Stevens, doesn't even truly accept--that the right of the people to keep and bear arms {a right that shall not be infringed by anyone or any entity} if such right truly exists, beyond the power of the State to lawfully destroy, must be a right  preexistent, immutable, indestructible, and absolutely capable of exercise in all instances, for all time, beyond the possibility of any conceivable contingency that might serve to make the right impossible of exercise (as for example the nonexistence of a militia). Thus, merely tacking on this or that phrase to a proposition, in a dubious attempt to erode an indestructible right and in an attempt to overcome an insurmountable, logical flaw that exists in his argument, the retired Justice, John Paul Stevens cannot successfully sidestep the problem inherent in Justice Stevens' thesis that the late Justice Antonin Scalia had perceptively pointed to in Heller. Anyway, the proposed redraft of the Second Amendment, insufferable and ludicrous as that proposed redraft is, appears, then, to be, in part, at least, Justice Stevens belated answer to the late Justice Antonin Scalia's sharp attack on the weaknesses of Justice Stevens' argument as evinced in Justice Stevens' dissenting opinion in Heller.________________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.