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A Concurrence Worth Read

04/22/2023 8:00 PM | Anonymous

A Concurrence Worth Read  by Tom Reynolds

Yesterday, we wrote about the 5th Circuit’s decision on Domestic Violence Restraining Orders and the pressures on judges to grant those orders.  Today, we would like to deal with the 5th’s decision as it reflects the NYSRPA v Bruen decision, which reemphasized how important “Bruen” is to our 2nd Amendment rights. 

Judge James C. Ho wrote in his concurrence:

“The right to keep and bear arms has long been recognized as a fundamental civil right.  Blackstone saw it as essential to ‘the natural right’ of Englishmen to ‘self-preservation and defence.’” 

“But the Second Amendment has too often been denigrated as “a second-class right”.  In response, the Supreme Court has called on judges to be more faithful guardians of the text and original meaning of the Second Amendment.  Our court today dutifully follows the framework recently set forth in N.Y. State Rifle. It recognizes the absence of relevant historical analogues required to support the Government’s position in this case. I am pleased to concur.”  (Emphasis added.)

In addition, Judge Ho’s concurrence takes a shot at recent changes in bail laws that leaves dangerous criminals free to roam the streets.  Judge Ho’s concurrence is worth reading by all who would protect the 2nd Amendment and also by those that believe the recent bail law changes have abandoned the idea of protecting innocent citizens.  It is quoted below, without the footnotes and legal references:

“I write separately to point out that our Founders firmly believed in the fundamental role of government in protecting citizens against violence, as well as the individual right to keep and bear arms—and that these two principles are not inconsistent but entirely compatible with one another.”

“Our Founders understood that those who commit or threaten violence against innocent law-abiding citizens may be arrested, convicted, and incarcerated. They knew that arrest and incarceration naturally entails the loss of a wide range of liberties—including the loss of access to arms.”

So, when the government detains—and thereby disarms—a member of our community, it must do so consistent with the fundamental protections that our Constitution affords to those accused of a crime. For example, the government may detain dangerous criminals, not just after conviction, but also before trial. Pre-trial detention is expressly contemplated by the Excessive Bail Clause and the Speedy Trial Clause. And it no doubt plays a significant role in protecting innocent citizens against violence.”

“Our laws also contemplate the incarceration of those who criminally threaten, but have not (yet) committed, violence. After all, to the victim, such actions are not only life-threatening—they’re life-altering. “

“In sum, our Founders envisioned a nation in which both citizen and sovereign alike play important roles in protecting the innocent against violent criminals. Our decision today is consistent with that vision. I concur.”


By an interesting coincidence, this hit yesterday’s (Thursday’s) news, the same day we sent our e mail about Restraining Orders.

Katie Porter – an anti gun California Democrat Congresswoman - is a possible replacement if Diane Feinstein caves to pressure and resigns.

On April 13th, Fox News reported that her ex-husband: “said he does ‘not recant’ his domestic abuse allegations against the congresswoman after her campaign said that he did.  The allegations against Porter include claims that she dumped hot potatoes on her then-husband’s head and smashed a glass that led to him being cut by flying shards. Porter has separately faced accusations of running a toxic, emotionally abusive workplace by former staffers.”

According to divorce documents received by Fox News Digital, Porter and her ex-husband, Matt Hoffman, both filed domestic violence restraining orders against each other after an April 2013 altercation at the home they shared while legally separated.

It’s not known if porter had a gun but many California Democrats (and especially Governor Gavin Newsome) practice do as I say and not as I do.

A 2nd Amendment Defense Organization, defending the rights of New York State gun owners to keep and bear arms!

PO Box 165
East Aurora, NY 14052

SCOPE is a 501(c)4 non-profit organization.

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