Wolford v Lopez (Hawaii)

After NYSRPA v Bruen negated several strategies that had been used by New York State to neuter our 2nd Amendment guaranteed rights, New York State’s misnamed Concealed Carry Improvement Act (CCIA) was enacted by our Democrat legislature and signed by Governor Kathy Hochul.  It contained numerous parts that are abhorrent to the U S Constitution.  We are not alone in being so poorly treated by our state government.  California, Maryland, New Jersey and Hawaii also enacted similar restrictions on law-abiding citizens’ right to bear arms.  Especially popular by these states was designating almost all private property as gun-free zones unless otherwise posted.  (A gun is of limited use if you can’t carry it anywhere but in your house.)

Last October, the U.S. Supreme Court (SCOTUS) accepted a private lawsuit, Wolford v. Lopez, which is a challenge to Hawaii’s gun carry restrictions in which the high court will answer: “Whether the Second Amendment allows a State to make it unlawful for concealed-carry license-holders to carry firearms on private property open to the public without the property owner’s express authorization.”

Now, the U.S. Department of Justice (DOJ) has submitted an amicus brief (otherwise known as a “friend-of-the-court” brief) to the Supreme Court that pointedly argues that, citing the Bruen (2022) decision, the “government cannot enact licensing regimes that effectively eliminate the right to public carry.”

The DOJ’s amicus brief explains that Bruen invalidated Hawaii’s prior firearm-licensing regime, “under which Hawaiians could virtually never obtain public-carry licenses. Hawaii responded by loosening its licensing restrictions, yet it simultaneously enacted a new restriction that effectively nullifies those licenses and prevents public carry. Specifically, Hawaii made it a crime for licensees to carry firearms on private property open to the public—the very places where licensees would go in their daily lives—unless those establishments provide ‘[u]nambiguous written or verbal authorization’ or post ‘clear and conspicuous signage’ allowing firearms.”

After stating that the “United States has a substantial interest in the preservation of the right to keep and bear arms …” the DOJ’s brief points out that the “‘right to carry a handgun for self-defense outside the home’ ranks among the Second Amendment’s most basic guarantees. Bruen thus held that the government cannot enact licensing regimes that effectively eliminate the right to public carry. Nor, more broadly, may the government restrict firearms without showing that the restriction fits within a discernible tradition of firearm regulation.”

If Hawaii’s law is declared unconstitutional, that should take down similar laws in states like…New York, where a lawsuit mounts a similar challenge.  Under normal circumstances, when it is a private citizen challenging the state, New York might try to ignore the SCOTUS ruling, basically saying “sue me” and forcing the private citizen to pay for the lawsuit.  But since the federal government has taken an interest – and has even deeper pockets than NY State – NY State might be less apt to ignore SCOTUS.

Baird v Bonta

Historically, the Ninth Circuit is the most leftist / progressive / district in the federal court system; it’s also the most reversed appeals court.  Well, surprise!  In Baird v Bonta, a three-judge appellate panel, composed of two judges appointed by President Trump during his first term came down on the side of ‘open carry’ when they said in their opinion’s summary:

“…the historical record makes unmistakably plain that open carry

is part of this Nation’s history and tradition. It was clearly
protected at the time of the Founding and at the time of the adoption of the Fourteenth Amendment. There is no record of any law restricting open carry at the Founding, let alone a distinctly similar historical regulation.”

This appellate decision reversed, in part, a district court’s decision.

The details from the majority opinion clearly state the issue and the reasoning:

“California's has banned open carry in all counties with a population greater than 200,000.  According to the most recent census, those counties are home to roughly 95% of the state's population. The 5% of California's population for whom open carry is not outright banned everywhere in the state are purportedly able to apply for a license that would allow them to exercise their constitutional right to open carry in just their county of residence, although their ability to secure even that license is, on the record before us, at best unclear….”

“For most of American history, open carry has been the default manner of lawful carry for firearms. It remains the norm across the country—more than thirty states generally allow open carry to this day, including states with significant urban populations. Indeed, several of our Nation's largest cities and states recently returned to unlicensed open carry by explicitly authorizing it. For example, Texas reauthorized open carry without a license in 2021. Kansas likewise transitioned back to allowing open carry without a permit in 2015. And other states that placed restrictions on open carry in recent decades have also removed those burdens.”

“Similarly, for the first 162 years of its history open carry was a largely unremarkable part of daily life in California. From 1850, when California first became a state, until the Mulford Act of 1967, public carry of firearms in California (open or concealed) was entirely unregulated...”

Bruen said "history reveals a consensus that States could not ban public carry altogether." (“Public carry” includes both open and concealed carry.)  Bruen established that modest burdens were likely constitutional as long as they do not prevent the exercise of 2nd Amendment rights and served the government’s interest in ensuring only law-abiding citizens were carrying arms.  For example, background checks, modest fees and short wait times would likely be constitutional.

Both sides used the NYSRPA v Bruen decision to justify their position, but the majority smacked down the minority’ opinion.

The third judge, a President GW Bush appointee, concurred in part and dissented in part.  His dissent said:

First, open carry is not conduct that is covered by the plain text of the Second Amendment.  

Second, following the reasoning of Bruen, California may lawfully eliminate one manner of public carry to protect its citizens so long as its citizens may carry weapons in another manner that allows for self-defense. Because California allows concealed carry, it may restrict open carry.

The majority countered the dissent: “…that is not only a basic logical error, but also obviously a wrong way to interpret language in Supreme Court opinions…. If the Supreme Court said, "States cannot ban speech altogether," nobody would think it was also implicitly saying that as long as the state allows some speech, it necessarily can ban all other speech. …” 

The dissent also assumed that California’s various local licensing schemes are all effectively “shall issue” and without onerous restrictions on place, design and function of the “allowed” firearms.  (Gun owners in California would argue that the reality is different.)

This was a good win for 2A but the judges did throw a partial loss to us. The court upheld California’s licensing requirements in counties with populations under 200,000.  The panel found that, “shall-issue” licensing schemes align with Bruen by allowing permits based on a general desire for self-defense. But the judges raised legitimate concerns about the state’s apparent subterfuge, noting that no open-carry licenses have been issued despite the legal framework.

The appellate court’s decision may be appealed to an en-banc hearing by all the judges in the Ninth Circuit or it may be appealed to the Supreme Court of the United States (SCOTUS). 

This Ninth’ Circuit’s opinion is the opposite of the Second Circuit (New York, etc.) which found in Frey v N Y City that a ban on Open Carry was constitutional.  A split like this, if it stands, is the kind of case that SCOTUS is likely to hear. 

A Christmas To Remember

The July 4th 1776 Declaration of Independence had real world consequences for the signers.  One of them, Benjamin Rush, recalled: “Do you recollect the pensive and awful silence which pervaded the house when we were called up, one after the other, to the table of the President of Congress, to subscribe what was believed by many at the time to be our own death warrants?”

Of late, our forefathers have come under a lot of undeserved criticism.  All but forgotten is the immense personal courage that it took to sign the Declaration of Independence. As Americans, we have a lot to be thankful for at Christmas and those that risked their lives to gain us our freedom need to be honored, not denigrated.

While independence was being celebrated in Philadelphia, 23,000 British soldiers and 10,000 Hessian mercenaries were being unloaded from ships in NYC Harbor, where George Washington, by order of the Continental Congress, had to defend the undefendable.

Eventually, the colonial army was driven out of New York City and it retreated across New Jersey to Valley Forge Pennsylvania, where things became even more desperate.

The enlistments of the bulk of Washington’s army were due to expire and there was little hope of many reenlistments.  Not just because of the devastating defeat in New York but the army was undersupplied in almost every area; many soldiers had no shoes and had been wearing the same clothes – now rags - for months.  Food was scarce.  Defeatism ran through the army.

There is no record of Washington contemplating giving up.  Instead, he gained control over whatever negative emotions he had and formulated a plan, which led to the most important Christmas in American history.

In the early evening of December 25, 1776, in a freezing rainstorm that lasted all night, the Continental Army loaded onto boats and crossed the ice clogged Delaware River, in three groups.  The crossing was so treacherous that one group did not make it across and a second group made it across but turned around and went back.  Only Washington’s group was able to march to the attack.

Hours behind schedule, with one-third strength, the army arrived at their target, Trenton New Jersey. 

Officers reported to Washington that the ice storm had soaked the muskets and many could not fire because of wet powder.  These officers suggested that the attack be abandoned.  Washington’s reply was the equivalent of “fix bayonets”.

While the Hessian enemy was yawning and waking up, Washington attacked.  The Continental Army was in rags with long hair and matted beards coated in rain and mud; it looked like the army-from-hell had come screaming from the depths to kill the Hessians.  The battle was brief and the Hessians surrendered. 

In what was the potential breaking point of the Revolutionary war, when all hope seemed to be lost, Washington did not despair.  He never lost sight of his goal.  He and his army persevered and they eventually won.  They set an example that should live today; we’re Americans, we’d cross a frozen river on Christmas to defeat our country’s enemies. 

Luck certainly played a part in the successful American Revolution and at Trenton.  For example: The leader of the Hessians in Trenton was Colonel Rall, Rall’s spies had told him of Washington’s attack.  The Hessians knew Washington was coming!  Rall acted properly and increased the guard and had a reserve force ready to reinforce wherever he was attacked.  On Christmas afternoon, one of Rall’s sentry posts was attacked.  The Hessians sprang into action and the attackers quickly retreated after a brief and ineffective exchange of gunfire.  Rall had little respect for Washington and the colonials. He so disrespected the colonials that he believed this was the attack he expected, so he relieved the guard and the reserve and he went to a Christmas party. 

Who attacked the sentry post?  To this day, no one knows.  The best guess is some farmers had too much “Christmas cheer” and decided to harass the Hessians.  They fired a few shots and then went back to celebrating Christmas.   But because of this, Washington was able to enjoy complete surprise.

God has been on our side. 

Prior to the 2024 election, many were dejected and in a funk over politics.  Summoning the energy to continue the fight to preserve the Constitution seems beyond some people’s wills.  To them it would be easier to, in a very real sense, surrender to the likes of Alexandria Octavio-Cortez and tell her, “You win.  We give up.  Do with the USA what you will.”   

How wonderfully things have changed in less than a year. 

Winston Churchill gave what may be the greatest college commencement speech.  It was only nine words.  “Never give up.  NEVER GIVE UP.  NEVER GIVE UP!”

SCOPE did not give up.  We remembered that many of us took an oath to preserve, protect and defend the Constitution against all enemies, foreign and domestic.  That oath had no expiration date!  (If you didn’t take that oath, it’s not too late to commit yourself to that principle.) 

The battle to preserve our constitutional rights did not end with Trump’s election.  The Left immediately counterattacked.

Thomas Paine wrote, “These are the times that try men’s souls.  The sunshine soldier and the summer patriot will, in this crisis, shrink from the service of their country…”

Sunshine soldiers and summer patriots will find other excuses to occupy their time and let the Constitution be shredded by the forces of Socialism.  Is our current situation less winnable than it appeared on Christmas morning, 1776?  Or Christmas morning 2023?

Paine also wrote, “Tyranny like hell is not easily conquered.”

When we were born in the USA, we won the lottery!  It’s time to pay the price of that lottery ticket.  Our forefathers were willing to pay that price and we need to join with them. Stand up and fight for the USA: its Constitution; its traditions; its future; and your family.  The choice is clear - get engaged or surrender.

Reagan on Legislation

Ronald Reagan laid out a basic part of his successful legislative philosophy; that he didn’t need a complete victory as long as it moved towards his ultimate goal.   Reagan was willing to take a partial victory, if it was a step in the right direction, and then he would come back for more.  Unfortunately, Republicans did not pick-up this philosophy, but Democrats did adopt it.  Over the last 40 years, Democrats - on all issues and especially on gun control - were willing to take a step in the left direction and then come back for more.  It has worked for them.

Trump’s Big Beautiful Bill” (BBB) amended the National Firearms Act (NFA) and eliminated the tax stamp for certain firearms, suppressors, short-barreled rifles, short-barreled shotguns, and the NFA’s “any other weapons” category, but still kept the paperwork and registration requirements.   

A lawsuit challenges the NFA, as it is amended, as now being unconstitutional because it was a tax law and now there is no tax.  The Trump DOJ has filed an ‘Amicus Brief’ to protect what is left of the NFA.

One ‘no-compromise’ 2A organization calls the DOJ’s Amicus Brief the “ultimate betrayal” of the 2nd Amendment.  Their idea of ‘no-compromise’ flies directly in-the-face of Reagan’s philosophy.

This past weekend, on Tom Gresham’s Gun Talk radio show, Gresham was asked his opinion on what 2A organizations he would suggest donating to (in Colorado, I believe.)  He didn’t name any he opposed but without mentioning Reagan’s philosophy he drove home the point that no-compromise would not work in an American legislative system based on compromise.  Gresham wants to take a win and then come back for more.

What was Pam Bondi’s DOJ thinking when it filed the Amicus Brief?  Perhaps, the idea of the entire NFA being declared unconstitutional and automatic weapons (machine guns to the Left) being sold over-the-counter was a bit too much.  The Left and its media propogandists would have a field day if ‘machine guns’ were completely legal.

The field is still wide open for new efforts to remove other items, like suppressors, off of the NFA’s list. After all, over 40 states have made suppressors legal, subject to the NFA’s provisions.  (Guess which state is not one of them?)

The Trump administration has been declared by some as the most pro-2A administration in history.  They certainly have had some early successes.  Trump is a deal maker and that requires some long-term, strategic goals.  It’s quite likely that the ‘Amicus Brief is just a short-term tactical move in the grand political scheme.  We don’t know, at this point, and only time will tell.

Few would disagree that the Republican Party has disappointed 2A defenders, over the years, and it is appropriate to call them to task for it and let the politicians know we are watching.  But, like Trump, we 2A defenders need to pick our fights and it seems much too early to start condemning our friends over one issue.  We have too much in common to let one step divide us.

Is that Amicus Brief a bad thing?  It’s your opinion that counts and it should be based on the complete picture. 

The idea of a strategic goal also reinforces the need for gun owners to get out and vote.  A long-term strategy requires a political majority for the party that supports 2A.

DOJ’s 2nd Amendment Section

On April 8th, Attorney General Pam Bondi announced the creation of a Second Amendment Enforcement Task Force. This task force was created to continue the Department of Justice’s (DOJ) ongoing work to implement Trump’s Executive Order 14206 (Protecting Second Amendment Rights) and protect the fundamental right secured by the Second Amendment. The Task Force was principally charged with developing and executing strategies to use litigation and policy to advance, protect, and promote compliance with the Second Amendment.

Bondi serves as the Chair of the Task Force and the Associate Attorney General serves as the Vice Chair and the Task Force was composed of representatives from multiple areas of the DOJ.

This task force sounds more like a committee to study the issue.  But unlike most committees, something came from this one.

On December 8th, Harmeet Dhillon, the DOJ’s Assistant Attorney General of the Civil Rights Division said that her division had started a 2nd Amendment Section: a gun rights-focused section.  She promised "a lot more action" on gun rights enforcement.

This is important.  The 2nd Amendment has moved beyond a task force studying the issue to a full blown operational section focusing on the 2nd Amendment and with enforcement powers.

One of the focuses mentioned in Dhillon’s announcement was fighting a variety of state and local courts on gun issues, particularly difficulties around concealed carry permits.  “Some of the things we're seeing, and that is going to be the focus of our work around the country, includes multi-thousand-dollar costs for citizens to apply for concealed carry permits…Other jurisdictions are having unreasonably long delays. Other jurisdictions are outlawing guns that should be protected by the Second Amendment under the recent Supreme Court precedent."

This could be huge as many deep blue Democrat districts practice the above in order to deprive us of our gun rights.  This is something that SCOPE and other 2A defenders have complained about for years but Democrat districts have ignored the complaints, even when the Supreme Court of the U.S. has told them to stop.

Dhillon also stressed something gun rights defenders have emphasized: gun rights "equalizes the ability of those of us, women, people with disabilities, and others who might otherwise be more vulnerable to be able to protect ourselves."  That is true “equity.”

She finished by saying, “So stay tuned. You're going to see a lot more action from this Department of Justice to protect your Second Amendment rights."

We’ll definitely stay tuned.  The DOJ has a history of attacking gun rights so this 180 degree switch in direction will have some bumps, as the DOJ’s portion of the “Deep State” won’t go quietly.  But so far in President Trump’s term, there have been successes and this seems poised to produce even more.

The November / December edition of the SCOPE newsletter, The Firing Lines,
is available for download here.

A New Interpretation

Almost ninety years ago, something worth remembering was happening in Germany.  Author David Roll describes it in his book George Marshall, Defender of the Republic.  Roll writes about Hitler: “…Adolph Hitler engineered a political revolution by captivating German voters, especially the country’s six million unemployed…Hitler was a singularly gifted speaker and performer.  Between 1928 and 1932, his Nazi party shocked the German establishment by increasing its share of the vote in the Reichstag (parliament) from 2.6 percent to 37.4 percent.  By the end of July 1932…the president of Germany’s crumbling Weimar Republic, was persuaded by right wing advisers to ask Hitler to become Reich Chancellor (supposedly a coalition of cabinet would curb Hitler’s extremism)…It wasn’t as if Hitler hid his intentions.  He had spoken and written of restoring Germany to greatness by…destroying Jews and Bolsheviks…But the politicians discounted his stated intentions as overblown rhetoric and they underrated his abilities.  After all, Hitler was just a lunatic that had emerged from the lunatic fringe…”

Remember, NAZI was the abbreviation for National SOCIALIST German Workers Party.

Is there a lesson in this for us, today?  We certainly have a lunatic fringe representing the Socialist movement in America that ignores history in their search for power.  And there are leaders of this movement who are gifted speakers and performers. One is constantly praised for his smile.  Don’t discount them.    

It’s fair to label these leaders of the current lunatic left as anti-2nd Amendment, just like the NAZI’s.  But wait!  There is a new movement creeping into the academic world (See Columbia University "On Gun Registration, the NRA, Adolf Hitler, and Nazi Gun Laws: Explodi" by Bernard E. Harcourt.)   The socialist Left wants to revise history and remove the gun control label from the NAZI’s because the NAZI’s ‘relaxed’ gun prohibitions.  Like much of the current anti-2A rhetoric, it twists facts to suit its purpose.  To forewarn and forearm you about something that is coming, let’s review a few facts about NAZI gun control.    

The Versailles Treaty of 1919, which ended WW1, imposed strict gun control on Germany.

A 1928 law eased gun control – sorta.  Weapon purchase permits were introduced - but the law only allowed "authorized persons" to purchase and possess firearms. (Requiring a permit to purchase a gun; could that happen here in NY State?  Sarcasm intended.) 

And check out the wording in NY State’s Concealed Carry Improvement Act [CCIA] for similarities to ‘authorized persons’.) 

The law also introduced mandatory registration of weapons, which gave the government a list of weapon owners and their weapons to facilitate confiscation.  (The current Left denies that gun owner lists would be used for confiscation.) 

The purpose of this NAZI law was described as ensuring that firearms were only issued to "reliable individuals" – as the government defined ‘reliable’.  (CCIA replaces ‘reliable’ with ‘good moral character.’)

In 1933, Jews were defined as ‘unreliable.’  The weapons’ laws were then used to confiscate weapons and disarm Jews.  “Searching for weapons" was used as the justification for raids and searches of homes.  (Albert Einstein’s summer residence in Caputh was searched in spring 1933.)

Because the law gave the police the authority to issue or withdraw weapon permits, Jewish weapon owners were disarmed through warrants issued by the police and later – starting in 1935 - by order of the Gestapo. Self-defense of Jews had been abolished.

Why does the socialist Left now say the NAZI’s eased gun control?  The key to this new interpretation of NAZI gun control laws is a 1938 law which the Left sometimes describes as a relaxation of existing regulations. Sort of true; it relaxed the law for ‘certain groups’ of officials who no longer needed a permit for weapons possession.  Of course, it is ignored that ‘certain groups’ only included privileged members of the Nazi Party and its associated organizations.  In addition, the new Left’s interpretation ignores that the 1938 laws also prohibited the possession of any weapons by other groups of people, namely Gypsies and all individuals who lost their "Civil Honors" or who were under supervision of the police, which included people convicted due to homosexuality.

Directly after ‘Kristallnacht’ the possession of any weapons by Jews was prohibited.  It’s reported that some rationalized this as good because it kept Jews from committing suicide.  (Sounds like a current theory of the anti-2A left.)

Under the NAZI’s, the privileged – as the NAZI’s defined them - saw their access to guns relaxed while all others and especially Jews, Gypsies, etc. saw the right to a firearm completely taken away.  That doesn’t really sound like relaxing gun control.  But it does sound like the twisted logic being used today to justify gun control.

Frey / Cheng v NY City

In the decision New York Rifle & Pistol Association v. Bruen, the Supreme Court of the U.S. (SCOTUS) stated that certain areas could be designated as “sensitive,” such as court and government buildings - but the designation must be used sparingly. It cannot be applied simply because a large number of people gather in a location.

Shortly after the Bruen decision, the NY Legislature met in an emergency session and passed the Concealed Carry Improvement Act (CCIA) which, amongst other things, banned firearms in Times Square because of the large number of people gathered there. (Many other places were also included as “sensitive.”) Various lawsuits have emerged and one of the cases was Frey / Cheng v NY City. The case challenged three provisions of CCIA:

• The ban on carrying guns in Times Square, the New York City subway, and the Metro-North commuter rail system.

• The state ban on open carry.

• The requirement that even licensed gun owners obtain a separate, city-specific permit to carry in New York City.

The District Court judge ruled that the plaintiffs did not have standing to sue over the restrictions imposed by the CCIA. This would have killed the case if not appealed.  The plaintiffs did appeal to the United States Court of Appeals for the Second Circuit.

In September, the Appeals Court Three-Judge Panel disagreed with the District Court and decided that the plaintiffs do have standing to sue.  This was not a final ruling on the law’s constitutionality.  The panel only decided that the plaintiffs have standing to sue. The case now returns to the lower court to hear the actual case.

The plaintiffs also sought to put the law on hold until the case could be decided.  However, the three-judge panel would not issue a stay in the enforcement of the law while the case is being decided.  For now, carrying a firearm in Times Square, on the subway, or on commuter trains remains a felony—even for licensed concealed carriers. Open carry remains entirely banned statewide, and anyone licensed outside New York City still needs a special city permit to carry there.

It is interesting to consider one of the reasons the appeals court used when deciding that the plaintiffs are “unlikely to succeed on the merits.”

The Bruen decision says laws have to have historical analogies going back to the ratification date of the 2nd Amendment; what was the meaning of the words and historical analogies at that time? Most consider that date to be the ratification date of the Second Amendment in 1791. However, some argue it is the ratification date of the Fourteenth Amendment in 1868, when 2A was applied to the states.  One of NY State’s examples of a ‘historical tradition’ was far removed from either founding era; a North Hampton law from the 1300s having to do with Fairs.

The judges said they took a “flexible” approach to applying the Bruen standard and upheld the law.  The judges wrote: “There is perhaps no public place more quintessentially crowded than Times Square…In short, Times Square is our modern-day, electrified, supersized equivalent of fairs, markets, and town squares of old. We therefore need not stretch the analogy far,’ to conclude that [the law] is entirely consistent with our historical tradition of regulating firearms in quintessentially crowded places.”

The decision wasn’t the one that plaintiff Jason Frey wanted to hear, but he was not too surprised because of past anti-gun rulings from the Second Circuit.  He said: “The mental gymnastics used to reference laws from before the nation was formed show us just how deep the hatred for our Second Amendment is to some of these people that currently hold positions of power.”

The plaintiffs’ attorney, Amy Bellantoni, blasted the decision: “The Second Circuit decision is disappointing, but not unexpected considering its palpable disdain for the Second Amendment.”

As to the stay in enforcement while the case is being heard, the plaintiffs could request an en-banc review from the full bench of the appeals court or could go directly to SCOTUS. There is no guarantee that either request will be granted.  As of this date we have not heard of a decision.

The actual case is still to be heard in the district court.

CPRC

Dr. John Lott’s Crime Prevention Research Center (CPRC) is heavily involved In the Gun Control debate.  CPRC does extensive research - often used by SCOPE - and submits many Amicus Briefs (Friend of the Court) on important 2A lawsuits, including the Bruen decision.  Here is a link to a few of the important briefs: Amicus Brief Archives - Crime Prevention Research Center  Here is a link to some of its research: CPRC original research Archives - Crime Prevention Research Center

Basically, it’s an important resource for the pro 2nd Amendment community.

Some organizations are ‘top heavy’ in where they spend their money, so SCOPE reviewed CPRC’s 990 (annual financial report.)  Total revenue and expenses are about equal at $500,000 and Lott gets paid $116,000 (which is not out of line.)  Lott is the only one making more than $100,000.  Based on the amount of 2A output, CPRC is using the money for 2A work and not abusing its purpose.

Most of CPRC’s revenue comes from donations and it is currently having a fund raising effort.  This is from their newsletter: We currently have two matching grants—one from retired law professor Joe Olson and another from a donor who will match contributions up to $10,000 and $15,000, respectively. So some donations will be double matched.

Donations are down this year, even though much work needs to be done. If you can help, please follow this link. 

SCOPE is a rare non-profit in that we support other organizations that bring 2A lawsuits; the cost of these lawsuits is huge and beyond SCOPE’s ability to totally fund, on our own.  We have submitted an Amicus Brief in the past, which isn’t cheap.  We have suggested that members donate to these lawsuits, in the past, and members have generously responded.  (Even though this may reduce potential donations to SCOPE, we realize you don’t have a bottomless pile of money to support 2A and we are all on the same side.) 

SCOPE encourages 2A defenders to support CPRC and consider donating at this time when donations are doubled.

One Man One Vote

Most would agree that there is a huge political divide on almost everything between New York City and most of the state.  Because of the population difference between NY City and upstate, ‘tyranny of the majority’ reigns. One solution to that ‘tyranny’ might be to overturn the Warren Court’s wrongful ruling that established the “One Man One Vote” principle.  (Or as Congresswoman Tenney suggested to me, “One Citizen One Vote)     

The Supreme Court (SCOTUS) under Chief Justice Earl Warren was one of the most liberal SCOTUS that the USA has ever had and, hopefully, ever will have.  Many of the divisive issues we face today are directly related to rulings during Warren’s reign. Associate Justice John Marshall Harlan II accused the Warren Court of repeatedly amending the Constitution through its opinions, rather than waiting for the lawful amendment process. 

One of the Warren Court’s worst decisions was Reynolds v Sims, which ignored the Constitution and took political power from conservative rural areas and gave it to liberal cities; it’s known as “one man one vote”.

A brief history:  

In 1789, the U.S. Constitution gave legislative powers to two separate houses; one based on population and one with each state having equal representation no matter what the population. Most states followed that example.  This was meant to prevent the ‘tyranny of the majority.’   

In 1946, before Warren was appointed to SCOTUS, in Colegrove v. Green the court continued its long-standing position that legislative apportionment was a “political thicket” into which the judiciary should not intrude.  

In 1962, in Baker v. Carr, the Warren Court ignored SCOTUS’ own precedent and forced the Tennessee legislature to reapportion itself on the basis of population.

In 1964, using its own precedent to validate its action, the Warren Court cited the above Baker case as a precedent and held in Reynolds v Sims that both houses of a two-house state legislature had to be apportioned according to population. This is known as “one man one vote”. 

As a result of Reynolds v Sims, virtually every state legislature was reapportioned, ultimately causing rural areas’ political power to be given to urban areas.

Every issue must be viewed in context; statements can mean very different things when taken out of context.  The U S Constitution set up the rules and overall framework for how the federal government would operate, but it also had another purpose; to protect the minority from the ‘tyranny of the majority.’  Every part of the Constitution should be interpreted within the context of protecting the minority from the ‘tyranny of the majority.’  “One man one vote” goes against that principle.

The Constitution contains many examples that contradict “one man one vote: 

• The power to make laws is vested in our elected representatives in the House and Senate, not in a vote by the majority of the people (Article I Section 1). Each state has two Senators, no matter what the population (Article 1 Section 3 and Amendment XVII).

• One person, the President, has the executive power to run the government and enforce laws (Article II Section I).

• The President is elected by the Electoral College, where each state has the number of votes equal to its total number of Representatives and Senators (Article II Section I).  Almost all states allocate their Electoral College votes on a winner take all basis, not a percentage of votes (state laws). 

• In case no one gets a majority of the electoral votes, the decision is made by the House of Representatives where each state has only one vote for President, no matter what the population. (Amendment XII)

• Only the House of Representatives is based on population and it is not truly “one man one vote”.  The smallest state gets at least one vote (Article I Section 2). Six states are below the average representation.

• Congress passed the law that sets the number of SCOTUS judges at nine and there is no requirement that they equally represent the USA.

Why is it important to gun owners that our Constitution is not in any way based on one man one vote?  Currently, New York has a bicameral (two house) legislature where both houses are based on an equal percentage of the population.  What if, instead of “one man one vote”, the NY State Senate was apportioned by each county having one Senator, no matter what the population was of the county?  Rural counties would then have a voice that is currently denied them because of NY City’s overwhelming population.  In NY State, the principle of “one man one vote” effectively means that people in rural counties have no vote.  Rural counties are subject to the ‘tyranny of the majority.’

Stare decisis is a legal principle where courts rarely go against principles established in previous rulings.  Unless of course you are a liberal court, then the only principle that matters is your current political position.  Liberals respect stare decisis only when it works in their favor.  The Warren Court frequently ignored Stare Decisis.  Unfortunately, Stare Decisis also protects bad rulings as we have seen with “one man one vote”.

Federal judges are nominated by the President and confirmed by the Senate (Article 2 Section 2); they are not elected; another example that goes against “one man one vote”.  If liberals gain control of the Presidency and the Senate, the Senate could run rampant in approving far left judges who will make political rulings, such as the Warren Court made, instead of judgments based on the Constitution.  Elections have consequences and we need to ensure that future Presidents and Senates only appoint conservative judges who believe in the rule of law. 

Perhaps, someday, we will have judges who recognize that “one man one vote” was another constitutional aberration of the Warren Court and needs to be overturned.  That would overcome the ‘tyranny of the majority’ that is now the rule of law in NY State and give gun owners and Upstate NY a voice in their government that is currently denied to them.