Where Are the Neon-Hatted Proud Boys?

It’s time to start asking questions about who hasn’t been arrested for their participation in January 6, including a group of orange-hatted “Proud Boys.” Who are they, really?

by Julie Kelly for American Greatness

A steady drip of information continues to reveal that the Federal Bureau of Investigation played a much larger—perhaps central—role before and during the Capitol protest than initially believed. And unanswered questions as to why certain co-conspirators or alleged instigators have not yet been charged while others who played a far lesser role face serious charges are fueling mounting suspicions that January 6 was an inside job rather than an “insurrection” incited by President Donald Trump.

After months of speculation about the use of FBI assets, first raised by Darren Beattie at Revolver News, the New York Times confirmed in September that at least two informants embedded with the Proud Boys were in close contact with their FBI handlers that day. 

“In a detailed account of his activities contained in the records, the informant, who was part of a group chat of other Proud Boys, described meeting up with scores of men from chapters around the country at 10 a.m. on Jan. 6 at the Washington Monument and eventually marching to the Capitol,” reporter Alan Feuer wrote, adding, “the F.B.I. also had an additional informant with ties to another Proud Boys chapter that took part in the sacking of the Capitol.”

A new investigative series published by the Washington Post disclosed at least one FBI informant was working with a separate so-called “militia group,” the Three Percenters. “A confidential informant voluntarily sent his FBI contact dozens of exchanges the next day between self-described members of the Three Percenters,” the Post reported last week, referring to a text exchange on a December 20 group chat. The Post also described the activities of “a bureau informant in the Midwest” who was tracking chatter among “militias” planning to travel to Washington for the January 6 rally and protest.

Verification that FBI assets infiltrated the Three Percenters before January 6 not only bolsters claims that the agency was more deeply involved than the public believes—and that officials such as FBI Director Christopher Wray have suggested—but provides another connection to the FBI-concocted plot to “kidnap” Michigan Governor Gretchen Whitmer in 2020: a longtime FBI informant and convicted felon who aided the scheme by organizing and paying for events related to the hoax also was a frontman for the Wisconsin chapter of the Three Percenters.

In fact, the “militias” Wray still insists pose a dire threat to national security have been under government surveillance for almost two years. 

Wray launched Operation Cold Snap in spring 2020, ostensibly to foil violent anti-lockdown rallies in capital cities across the country. “[The] FBI began an investigation earlier this year after becoming aware through social media that a group of individuals was discussing the violent overthrow of certain government and law enforcement components,” the Justice Department said in an October 2020 press release.

It’s increasingly apparent, however, that Operation Cold Snap was less a safety mission and more like human fly paper.

BuzzFeed’s investigative report into the Whitmer case, which exposed the use of at least 13 FBI undercover agents and informants, described Operation Cold Snap as a “far-reaching, multi-state domestic terrorism investigation” into alleged militia groups; the 13 non-FBI perpetrators of the Whitmer kidnapping scheme were ensnared, or entrapped as their lawyers argue, under the ruse of Operation Cold Snap.

Given the nature of the fabricated Whitmer caper, which required the extensive use of multiple FBI assets, and media reports that FBI informants infiltrated at least two “militia” groups in advance of January 6, one can now safely assume the nation’s top law enforcement agency accelerated Operation Cold Snap throughout 2020. One Proud Boys informant on the ground on January 6, the Times reported, started working with the FBI in July 2020.

Further, defendants now are in the process of receiving long-delayed discovery from the Justice Department that will gradually reveal the full extent of the FBI’s involvement in several January 6 cases. In a filing last month for Glenn Croy, a Trump supporter from Colorado who pleaded guilty to one misdemeanor, Croy’s defense attorney informed the court that recent discovery disclosures confirmed “FBI agents were in the crowd” at the Capitol that day.

This information directly contradicts Chris Wray’s “gee shucks, if we only knew” Senate testimony earlier this year, in which he disingenuously bemoaned the fact his agency didn’t know enough to thwart the events of January 6. 

“You can be darn tootin’ that we are focused very, very hard on how can we get better sources, better information, better analysis so we can make sure that something like what happened on January 6 never happens again,” Wray assured Senator Amy Klobuchar (D-Minn.) during a hearing on March 2.

So, let’s get this straight: Multiple FBI informants infiltrated militia groups for months and worked directly with FBI handlers in numerous cities and who-knows-how-many FBI agents were mixed in the crowd on January 6, but Wray still couldn’t stop a bunch of unarmed retired military LARPers, organic furries, and Midwestern meemaws from taking selfies in the Rotunda?

Color me skeptical.

Speaking of color, what about the dozens of alleged Proud Boy associates who wore bright orange knit caps on January 6? While the message went out from the top that Proud Boys would dress incognito during the Capitol protest, eschewing the group’s yellow insignia for all black to throw off Antifa, several Proud Boys inexplicably chose to wear orange neon hats.

A video montage of the day produced by the New York Times shows a crowd of neon-hatted protesters reportedly aligned with the Proud Boys walking with the group’s leaders, Joseph Biggs and Ethan Nordean, from the Washington Monument to Capitol Hill, the same group the Times identified as including at least one informant. “Many are marked with orange tape or hats,” the Times’ narrator explained. 

Other video shows neon-hatted Proud Boys storming past the first police barrier on the west side of the Capitol—a breach led by Ryan Samsel after a brief conversation with Ray Epps, another unindicted January 6 instigator suspected of government ties—and getting close to the building, a restricted area for which others have been cited for trespassing.

Archived footage show these neon-hatted demonstrators bolting up a set of stairs again past police near the inauguration platform.

But while Biggs, Nordean, and two other Proud Boys have been incarcerated since last spring, denied bail despite having no criminal record and being charged with only nonviolent offenses, none of the neon-hatted “Proud Boys” has been arrested or charged. Of the nearly 1,500 photos posted on the FBIs most wanted list for January 6, not one suspect is wearing an orange neon cap.

Evidence in two separate multi-defendant indictments against other Proud Boys members does not indicate that any wore these distinctive neon hats.

So, what happened to these glow worms?

As Darren Beattie has noted in several reports, the more salient questions at this point revolve around protesters or participants who have not yet been arrested; this list includes Stewart Rhodes, the founder of the Oath Keepers, who is Person One in every indictment but still hasn’t been charged.

The same thinking applies to the gang of neon-hatted Proud Boys. Were they informants or undercover agents? Is it mere coincidence these “protesters” wore orange, a color often associated with Donald Trump for his orange-ish skin tone? Was the glowing gear a way to signal to law enforcement they were on their side in case things got more out of hand?

And if, as the Justice Department and news media claim, the Proud Boys were “key instigators” of the Capitol breach, why have fewer than 20 Proud Boys been charged when many more were on the ground that day and, according to criminal complaints, at least 60 participated in group chats before January 6?

For now, as Joseph Biggs, Ethan Nordean and two other Proud Boys leaders rot behind bars awaiting a trial that won’t begin until at least May 2022, dozens of other Proud Boy “perpetrators” remain off the hook and unidentified.

Were they part of the set-up or did they just get lucky? Given the FBI’s recent history, the former seems more likely than not.

X22, Christian Patriot News, and more-Nov 9th

 

Evening. Here's tonight's news:

Durham Indictment of Danchenko Reveals Role of Clinton Advisor in Dossier Creation

by Jeff Carlson & Hans Mahncke for Epoch Times

Igor Danchenko, the primary source for Christopher Steele’s dossier, has been indicted on a five-count charge of making false statements to the FBI in the Eastern District of Virginia. The indictment and arrest of Danchenko was confirmed in a statement issued by the Office of Special Counsel John Durham, who noted that his “investigation is ongoing.”

Danchenko is the third person to be arrested as part of Durham’s ongoing probe into the origins of the FBI’s investigation into alleged ties between the Trump campaign and the Kremlin. Former FBI lawyer Kevin Clinesmith was convicted of doctoring a document in relation to the FBI obtaining a FISA warrant on Trump campaign adviser Carter Page. Former Hillary Clinton campaign lawyer Michael Sussmann pleaded not guilty last month to a charge of lying to the FBI while allegedly attempting to induce the FBI to investigate a false Russia conspiracy theory.

Danchenko’s indictment appears to be the most significant development in the Durham investigation to date. As Steele’s “primary sub-source,” Danchenko was ostensibly responsible for most of the content within Steele’s dossier. The dossier was later used to obtain the FISA warrant on Page. Steele’s dossier was commissioned by opposition research firm Fusion GPS on behalf of the Clinton Campaign.

A summary of the dossier was also attached to the January 2017 Intelligence Community Assessment that blamed Russia for interfering in the 2016 election to help then-candidate Donald Trump. That assessment played a key role in efforts to investigate Trump, culminating in the appointment of special counsel Robert Mueller.

Danchenko is charged with lying to the FBI about two specific facts.

Durham Reveals Democrat Party Operative as a Source for Steele’s Dossier

Count One of Durham’s indictment relates to denials from Danchenko to FBI agents that he had spoken with “PR-Executive-1,” now identified as Charles Dolan, about any material contained in Steele’s dossier. As Durham’s indictment lays out, Dolan, described as a “long-time participant in Democrat party politics,” was actually Danchenko’s source for many of the allegations within Steele’s dossier. Dolan’s role in the creation of the dossier was not known publicly until yesterday.

Dolan’s identity as PR Executive-1 has been confirmed through a brief statement from his lawyer, who also noted that Dolan was a “witness” in Durham’s ongoing case.

Danchenko, who had worked at the left-leaning think tank Brookings Institute from 2005 to 2010, was introduced to Dolan in February 2016 by another Brookings employee, Fiona Hill, who had previously introduced Danchenko to Steele in late 2010. Following this introduction Danchenko began working for Steele in 2011. Hill would later become known to the public in 2019 during her testimony at the impeachment hearings of then-President Trump.

Former UK intelligence officer Christopher Steele in London, UK, on July 24, 2020. (Tolga Akmen/AFP via Getty Images)

Durham notes in the indictment that Dolan’s role was “highly relevant and material” to the FBI’s review of Steele’s allegations because Dolan “maintained pre-existing and ongoing relationships with numerous persons” named in Steele’s dossier.

Additionally, as Durham’s indictment notes, “allegations sourced to [Dolan] by Danchenko formed the basis of a [dossier] report that, in turn, underpinned” the FISA applications made by the FBI on Trump campaign adviser Page.

Durham repeatedly notes that if Danchenko had not lied to the FBI regarding Dolan’s role, the FBI might have taken further investigative steps, including interviewing Dolan. While this assertion may be accurate, it also appears that the FBI failed repeatedly to investigate specific details or events that could have been easily verified or disproven.

Dolan and the Clintons have a lengthy history that dates back to the 1990s. In 2008, Dolan served as an adviser to then-Sen. Clinton’s presidential campaign and he “actively campaigned” on behalf of Clinton’s 2016 presidential campaign.

Clinton Adviser’s Role in Dossier and His Russian Connections

From 2006 to 2014, Dolan handled public relations for the Russian government and a state-owned energy firm. According to Durham, Dolan maintained relationships with the then-Russian Ambassador to the United States and the head of the Russian Embassy’s Economic Section in Washington. As Durham notes, both men would later appear by name in Steele’s dossier.

Durham’s indictment details Dolan’s communications with a number of high level Russian officials that took place at the same time that Clinton was accusing Trump of communicating with the Kremlin. Dolan’s ongoing work for Russia makes it likely that he should have been required to register with the Department of Justice under the Foreign Agents Registration Act, but Durham’s indictment does not address this matter.

Information from Dolan was featured in an Aug. 22, 2016, dossier report from Steele that ostensibly described the reasons behind the departure of Paul Manafort from the Trump campaign. Dolan told Danchenko that he had received this information from a “GOP friend.” But Dolan later acknowledged to the FBI that he had “fabricated” the meeting and instead relayed information he had obtained from public reporting.

It also appears that Dolan may have played a role, unknowingly or otherwise, in some of the more salacious aspects of Steele’s dossier. In what was described as a “June 2016 Planning Trip,” Dolan stayed at a Moscow hotel. As Durham’s indictment notes, Dolan was given a “tour” of the hotel’s presidential suite, and met with the manager and other staff of the hotel. During the tour, it was mentioned to Dolan that Trump had stayed in the presidential suite, but Durham notes that Dolan claims there was no mention of “any sexual or salacious activity.”

Allegations of a “pee tape” made at the hotel’s presidential suite during Trump’s stay were contained in Steele’s June 20, 2016, report. Steele’s dossier falsely attributed the story to American businessman Sergei Millian–but Danchenko later claimed that he had characterized the alleged activity to Steele as “rumor and speculation.” Danchenko, who initially told the FBI he was at the hotel in June with Dolan, later admitted that he had not visited the hotel until October 2016.

Clinton Adviser’s Involvement in Dossier Apparently Extensive

Durham also includes an email from Dolan that appears to reference former UK Ambassador to Russia, Sir Andrew Wood. In an email discussing Steele, Dolan writes that he is “[a]lso in conversation with former British Ambassador who knows [Steele].”

Wood famously brought the Steele dossier to the attention of then-Sen. John McCain (R-Ariz.) at a meeting in November 2016 during a private meeting in Nova Scotia, Canada. McCain sent an associate, David Kramer, to London to meet with Steele on Nov. 28, 2016. Kramer gave a copy of Steele’s dossier to McCain who, in turn, provided a copy of the dossier to then-FBI Director James Comey on Dec. 9, 2016.

The FBI logo is seen outside the headquarters building in Washington, D.C. on July 5, 2016.
(Yuri Gripas/AFP/Getty Images)

All the charges against Danchenko center around statements that he made in Eastern Virginia—likely at his home. Durham might be strategically inclined to focus on these particular charges as they allow him to file outside of the Democratic-leaning D.C. courts. The geographic focus of the indictment may also explain why some of the material claims made in the dossier were either not discussed or mentioned only in passing in the indictment.

Durham’s indictment notes a number of other meetings, conversations, and emails between Dolan and Danchenko showing that Dolan passed along other information also used in Steele’s dossier.

Durham’s indictment also reveals that Dolan may have provided some assistance to Danchenko. Durham notes that on June 10, 2016, Dolan emailed an acquaintance regarding efforts to assist Danchenko in obtaining a U.S. visa, stating that Danchenko “owes me as his Visa is being held up and I am having a word with the Ambassador.”

Additionally, Dolan appeared to have promised another alleged dossier source, Olga Galkina, a position in the Clinton State Department if Clinton was to win the 2016 presidential election. Galkina is cited in Durham’s indictment as telling associates that Dolan would “take me to the State Department if Hillary wins.” The implication behind Galkina’s claim is that Dolan was promised a role in Clinton’s administration himself.

Durham also describes how Danchenko recommended Dolan and his public relations firm to Galkina, who at the time was serving as Alexi Gubarev’s personal secretary. Gubarev, a Russian internet entrepreneur, ultimately hired Dolan as his PR adviser. Strangely, Gubarev would end up being falsely accused in Steele’s dossier of working with Russian hackers to infiltrate the Democratic National Committee’s computer systems. When Gubarev later sued Fusion GPS for defamation, Dolan served as Gubarev’s spokesman.

The Fictitious Sergei Millian Phone Call

The remaining four charges laid out in Durham’s indictment of Danchenko relate to Sergei Millian, an American national of Belarus descent. Many of the details behind these charges were already known to those who had been investigating the Russia-Collusion stories.

Durham’s indictment alleges that Danchenko lied to the FBI on four separate occasions, each time claiming that he’d had a phone conversation in the summer of 2016 with someone he believed to have been Millian. For his part, Millian has always stated that he never met Danchenko, in person or by phone. Millian’s assertions are emphatically proven in Durham’s indictment of Danchenko where it is repeatedly stated that “Danchenko never spoke to Chamber President-1 [Millian].”

Millian differed from all of Steele’s other purported sources in that he had no actual contact with anyone within Steele’s orbit—including Danchenko. Steele has demonstrated a preference for his targets to be physically present with his operatives. And indeed, Steele told the FBI that he believed Danchenko had met with Millian on “two or three separate occasions.”

The allegations attributed to Millian are crucial to the Steele dossier. Steele used Millian as the supposed source for his allegations of a “well-developed conspiracy of cooperation” between Trump and Russian President Vladimir Putin, which was foundational to the Trump-Russia collusion narrative. Steele further attributed Millian as the source for allegations regarding secret communications between Russian Alfa Bank and Trump. Also ascribed to Millian were the Wikileaks email dump and the salacious “pee tape” story. All from a person whom neither Steele nor Danchenko had ever met with or spoken to.

Danchenko admitted to the FBI that his first outreach to Millian was on July 22, 2016, via email, which is cited in Durham’s indictment. But by this point, Steele, apparently believing that Danchenko had actually met Millian, had already published two reports in his dossier that attributed specific allegations to Millian. As Danchenko admitted to the FBI in a November 2017 follow-up interview, Steele erroneously believed that there had been in-person meetings between Danchenko and Millian, a belief which Danchenko did not correct.

It is unlikely that Steele would have placed so much emphasis on Millian as a major source without a plausible scenario for how these stories were obtained.

FBI Continued Investigation of Trump Despite Danchenko Contradictions

Although Steele named Millian as one of his sources to the media, State Department officials, and the FBI, he was more guarded when it came to his other alleged sources. Their identities were only uncovered last year after internet sleuths extrapolated information from Danchenko’s interview notes with the FBI. These individuals, friends and acquaintances of Danchenko, did not have any pertinent information about Putin’s thoughts or intentions, nor were they in a position to obtain any such information.

All six of these alleged sources have recently come forward and signed affidavits denying having ever told Steele or Danchenko anything in relation to the dossier.

While some commentators, including ex-FBI agent Peter Strozk, are now suggesting that the FBI was duped by Danchenko, that is categorically not the case. Durham’s revelations with respect to Millian were known to the FBI by late January 2017 as they knew that Steele had attributed information in early dossier reports to Millian. At the same time, the FBI also knew that Danchenko had not yet reached out to Millian at that point. Similarly, Millian’s alleged phone call could have been easily investigated and shown to have been fabricated by Danchenko.

However, instead of taking these simple investigative steps, the FBI forged on with their investigation, a process that tied up the Trump administration for the next three years.

One important question remains. When Danchenko was interviewed by the FBI in January 2017, he was given what is known as a ‘queen for a day’ immunity deal, which gave him the opportunity to walk away from the entire dossier affair, provided he told the FBI the truth. Danchenko had every incentive to tell the FBI the truth, but for reasons that remain unknown he chose not to do so.

6 Things We Just Learned About The Supreme Court’s Gun Rights Case

No matter the approach it takes, the Supreme Court needs to clear up key questions, as 10+ years have left Americans’ gun rights confused.

Margot Cleveland reporting for The Federalist

Last week the U.S. Supreme Court heard oral arguments in the first gun rights case to reach the high court in more than a decade. The case, New York State Rifle and Pistol Assoc. v. Bruen, concerns the constitutionality of New York’s law banning the carrying of handguns outside the home for self-defense, absent a license—something the state will only issue if the applicant establishes a unique need for self-defense.

For an overview of the case, read here. A more in-depth analysis of both the case and the current state of Second Amendment jurisprudence is available here. For six take-aways from the argument, read along.

1. New York Concedes The Second Amendment Secures an Individual’s Right to Bear Arms Outside the Home

When the individual New Yorkers challenging the law, Robert Nash and Brandon Koch, along with the New York State Rifle and Pistol Association, first asked the Supreme Court to hear their appeal, they sought to entice the high court to take the case by stressing how important the underlying constitutional principle at issue is, writing: “Perhaps the single most important unresolved Second Amendment question remaining” after Heller and McDonald established the individual right to bear arms, “is whether the Second Amendment secures the individual right to bear arms for self-defense where confrontations often occur: outside the home.”

Not only was that question unanswered by the Supreme Court in Heller and McDonald, but after Heller and McDonald the lower courts disagreed on the scope of the Second Amendment outside of one’s house.

But last Monday’s argument made the issue a non-issue, with New York conceding the question. The “history is so clear that New York no longer contests that carrying a handgun outside of the home for purposes of self-defense is constitutionally protected activity,” Paul Clement, the attorney arguing on behalf of the petitioners challenging the state’s restrictive licensing law, stressed during oral argument.

2. Nice Little Right—I Mean, Privilege—You’ve Got There

While New York conceded the Second Amendment applies beyond one’s threshold, Solicitor General Barbara Underwood quickly forgot that the Bill of Rights protects rights—it doesn’t define privileges. For instance, in discussing the regulation of firearms outside the home, Underwood started to say that “these regulations are all an effort to accommodate the right,” but then backtracked, saying the regulations seek to “respect the right of self-defense.”

The slip of the tongue was telling, however: It means New York state doesn’t truly view the Second Amendment right to keep and bear arms as a right, but as a privilege it will accommodate — when governmental officials deem it appropriate.

Justice  Samuel Alito exposed this reality more clearly when he asked New York’s solicitor general whether an employee leaving a New York City building at midnight had a right under the state’s licensing scheme to carry a concealed weapon if she feared walking home through a high-crime area. Underwood acknowledged that under the New York licensing scheme, the cleaning woman would not be entitled to a permit.

“How is that consistent with the core right to self-defense, which is protected by the Second Amendment?” Justice Alito countered.

“Because the core right to self-defense doesn’t . . . allow for all to be armed for all possible confrontations in all places,” New York’s attorney replied.

While true, the response ignores the reality of New York’s position, which Justice Alito spelled out: Celebrities, retired police officers, and judges can carry guns, but not “the kind of ordinary people who have a real, felt need to carry a gun to protect themselves.”

Several times throughout the argument, the lawyer for those challenging New York’s law stressed the same point, telling the justices: “In order to exercise a constitutional right that New York is willing to concede extends outside the home, you have to show that you have an atypical need to exercise the right that distinguishes you from the general community. That describes a privilege. It does not describe a constitutional right.”

3. Feels Matter More Than Truth for Some Justices

Sadly, the state of New York was not the only one viewing Second Amendment rights as second class—so were several of the justices. In this regard, Justice Stephen Breyer proved the most transparent of the Democrat-appointed justices, pivoting between the statistics presented by social “scientists” and his discomfort with guns.

What is New York “supposed to say,” Breyer asked early on: “You can carry a concealed gun around the streets or the town or outside just for fun?” “I mean, they are dangerous, guns,” he added. Justice Breyer later returned to this point, noting “a concealed weapon” “is a dangerous thing,” and “you want to carry a concealed weapon, you go shooting it around and somebody gets killed.”

Justice Breyer brought home his point by noting some of the amicus curiae briefs by “social scientists” that claimed, statistically, the more liberal a government is “in allowing people to carry concealed weapons who are good character people and there is a greater risk of crime or harm, where that happens, there are more deaths of innocent people.”

Brian Fletcher of the U.S. Department of Justice encouraged this line of “reasoning” during his time arguing on behalf of the federal government as an amicus curiae, or friend of the court, in support of New York’s restrictive licensing law. “What I can tell you is that we do share the concern behind the New York law, which is the concern that having more guns on the street does escalate — does complicate and increase the danger inherent in citizen/law enforcement encounters,” he said.

In his rebuttal, though, while arguing on behalf of the petitioners seeking the ability to carry handguns in self-defense Clement told the court—specifically addressing Justice Breyer—that for “empirical evidence,” the court should look at the “English brief.”

The “English brief” referred to the amicus curiae brief filed by Professor William English. In that brief, English noted that he has “conducted the largest-ever nationally representative survey of firearms owners in order to estimate reliably the frequency of firearm carriage and use for self-defense.” The Georgetown University professor also recently “authored the first statistical study utilizing estimates of state carry permits issued each year in order to accurately assess the effects of shall-issue laws—also known as right-to-carry laws—on violent crime and murder rates.”

As Clement highlighted, the English brief provides empirical evidence that negates the running narrative that the more legal guns on the street, the more crime. What you see, if statistics are done right, Clement noted, is that there is no difference in the crime rate, and “the only difference you really see is that people who have a handgun for self-defense end up with a better outcome. They’re not shot. They’re — they’re not made victims.”

4. New York Twisted Itself Into a Paradox

How the justices handle the competing statistics in the Supreme Court’s eventual opinion will prove entertaining, but likely not as entertaining as the pretzel New York twisted itself into in trying to justify its blanket ban on licenses for all except those who can prove an individual need to self-defense.

Throughout the argument, Solicitor General Underwood stressed that New York’s licensing scheme was necessary because the government did not want guns in densely populated areas of the state, such as New York City, while in “back country areas,” the carrying of concealed weapons was not as problematic since no one was around.

Justice Roberts was quick to point out, however, that Heller relied on the right to self defense as a basis for its reading of the Second Amendment and that need is most acute in a high-crime area in New York City.

“If you’re out in the woods, presumably, it’s pretty unlikely that you’re going to run into someone who’s going to rob you on the street,” Roberts reasoned, continuing: “On the other hand, there are places in a densely populated city where it’s more likely that that’s where you’re going to need a gun for self-defense . . . And it seems to me that what you’re saying is that’s probably the last place that someone’s going to get a permit to carry a gun.”

Underwood countered that, “Where there is dense population, there is also the deterrent of lots of people and there is the availability of law enforcement.” The contradiction did not escape Justice Roberts, though: “It’s paradoxical that you say a place is a high-crime area, but don’t worry about it because there are a lot of police around.” After all, Justice Roberts then quipped, “How many muggings take place in the forest?”

Justice Alito also pointed out the problem with the state’s purported concern that it didn’t want a lot of guns in New York City. “There are a lot of armed people on the streets of New York and in the subways late at night right now, aren’t there?” the justice asked. At first, Underwood claimed she didn’t “know that there are a lot of armed people,” but after realizing his point, she acknowledged, “There are people with illegal guns, if that’s what you’re referring to.”

“How many illegal guns were seized by the New York Police Department last year?” Justice Alito pushed. While she didn’t have a number, Underwood acknowledged that “it’s a substantial number.” But while “they’re walking around the streets,” Justice Alito queried, “the ordinary hard-working, law-abiding people I mentioned, they can’t be armed?”

Here the state’s attorney returned to the emotional plea, noting that the “idea of proliferating arms on the subway is precisely, I think, what terrifies a great many people.” The fear factor may sell gun control to a mass market of moms, but it tells the court nothing of the constitutionality of New York’s licensing scheme.

5. Text, History, and Tradition, or Something Else

How, then, will the court analyze the constitutionality of New York’s licensing scheme?

Throughout the argument, the court focused on the “text, history, and tradition” of the Second Amendment and the right to keep and bear arms. But for anyone listening (or reading the transcript), what exactly was the history and tradition at the time of the Founding, or later when the 14th Amendment was ratified—which period was the appropriate one to consider, Justice Thomas asked—was a muddle. More on that shortly.

In addition to the “text, history, and tradition,” test discussed throughout last week’s argument, however, lower courts have applied or considered other standards, as Justice Neil Gorsuch stressed. “Some lower courts have refused to apply the history test, for example,” Justice Gorsuch noted, saying “they will not extend Heller outside the home until this Court does.”

Other courts have applied strict scrutiny, he noted, a standard of review that requires the government to have a compelling interest for a law to pass constitutional muster, and then only if the law is narrowly tailored to that interest. Still other courts, Gorsuch added, have suggested an “intermediate scrutiny,” that looks to whether there is an important governmental interest and if so, if the law is substantially related to that interest.

What standard should we apply, he then asked? The attorneys all seemed to agree that the appropriate analysis was to consider the text, history, and tradition of the Second Amendment and then, if that analysis proved insufficient, the court should turn to the scrutiny analysis. Unsurprisingly, the petitioners sought review under strict scrutiny, while the government pushed for review based on the easier-to-satisfy intermediate scrutiny standard.

No matter the approach taken, however, the Supreme Court needs to clear up the question for the lower courts, as ten-plus years have left the lower courts confused—some purposefully so, because of a desire to uphold gun restrictions.

6. Rights for the Win—But How Big?

While there was some discussion on a governing standard of review, the majority of the justices seemed focused on the “text, history, and tradition” analysis set forth by Heller and MacDonald as the appropriate approach for judging the constitutionality of the law. From there, the breakdown seemed to fall with Justices Elena Kagan, Sonia Sotomayor, and Breyer all reading the history of the Second Amendment as providing New York the power to ban the possession of handguns outside the house absent an applicant establishing a specific need of self-defense.

The remaining six justices all seemed more inclined to strike the statute, although with varying levels of tells for how they would vote. This bodes well for a win for the right to keep and bear arms, but how big is unclear.

The Supreme Court could provide a detailed analysis that not only specifies the text, history, and tradition analysis as controlling, but also provides for the highest level of scrutiny for laws for which the text, history, and tradition provide no answer. But even just clarifying that the text, history, and tradition test adopted by Heller and MacDonald governs will go a long way toward returning the Second Amendment to its rightful place in the realm of fundamental rights.

If that happens, future cases will need to explore the contours of that right. Hopefully, the high court will not wait another decade before next delving into the question.

Biden Admin Stockpiles More Than 55 Million Gun Owner Records Amid 2A Crackdown

Jordan Davidson reporting for The Federalist

The Biden administration is using the Bureau of Alcohol, Tobacco, Firearms, and Explosives to collect and store millions of gun owners’ records that could be used to swiftly carry out President Joe Biden’s anti-Second Amendment wishes, The Washington Free Beacon reported.

According to the documents obtained by the Free Beacon, Biden’s ATF collected 54.7 million out-of-business paper records and 887,000 electronic records detailing gun transactions and other private firearm information in the 2021 fiscal year alone. These records are reportedly kept in a federal warehouse managed by the ATF in West Virginia.

The large-scale stockpiling not only signals the Biden administration’s eagerness to crack down on gun owners across the nation but has also concerned gun store owners that the ATF is overstepping its bounds by creating a federal database recording gun owner information. The creation of a national directory is strictly prohibited under the Firearms Owners Protection Act of 1986, but an ATF spokesman claimed to the Free Beacon that “those out of business records do not constitute an initiation or continuation of any federal gun registry.”

While gun shops are required under the Gun Control Act of 1968 to turn over their records to the ATF when they go out of business, they are not required to keep their reports beyond a 20-year period. The Biden administration and anti-gun groups, however, want to change that and are largely in favor of heavier federal oversight that mandates a digitized registry that can be searched.

If a national database is created, thousands of gun owners could be sought out by the administration to “register or destroy” any firearms or related equipment that the Democrat administration seeks to restrict or even ban.