Win the War, Not Just a Battle
Winning the Battle
There are too many historical situations where a combatant won a battle, but it cost them the war. Little Big Horn comes to mind, though I don’t know enough to say if it is a true or good example.
The cost of winning might come with excessive loss of resources. A Pyrrhic victory.
The anti-gun people understand this. They are sometimes willing to lose a battle to maintain battlefield dominance. In N.Y.S.R. & P.A. v. New York City the city and state fought tooth and nail. They didn’t stop fighting. We lost in the district court. We lost in the Circuit Court. We appealed to the Supreme Court, and we were granted cert.
The anti-gunners looked at this and proceeded to remove the challenged regulations for New York City gun owners. The state of New York passed a law saying that New York City could never do it again. The state then told the Supreme Court the case was moot. The case was never heard. It died.
We “won” the battle; the anti-gunners won that war.
Rahimi
The anti-gun Biden administration saw a slate of cases moving towards the Supreme Court challenging §922(g)(8), Domestic Violence Restraining Order in Possession. The best case for us was the Range case. The worst for us was the Rahimi case.
Range was a case about a man who failed to claim income from his lawn care side hustle while he was receiving aid from the state. He was charged with defrauding the government. This was a felony. He pleaded guilty. He served no time. He was told to go forth and sin no more. And he kept his nose clean.
As a convicted felon, he is prohibited from possessing firearms. He went to court to get his rights back. His case would have been a wonderful opportunity to show that non-violent felons, under the 1968 GCA, cannot be prohibited from possessing firearms.
Rahimi, on the other hand, was a violent criminal. Witnesses saw him slam his girlfriend’s head into the car. He fired his gun at witnesses. He was arrested and was in prison for multiple felonies as well as being subject to a DVR while in possession.
After Bruen was decided, the Fifth Circuit court pulled the Rahimi case back after issuing their opinion. In their second opinion, they applied Bruen faithfully and declared §922(g)(8) unconstitutional.
Merrick Garland pushed Rahimi to the front of the line, and it was heard by the Supreme Court, which issued their opinion. Rahimi is a bad man. He needs to be in prison. He is precisely the sort of person that should not have access to arms.
This means that there are bad facts. Bad facts make for bad law. In this case we ended up with an opinion that was more easily twisted by inferior courts.
Garland v. Bondi
When Rahimi was requesting cert, the Garland-controlled DOJ pushed the Supreme Court to take the case. When the DOJ asks the Court to take a case, they are more likely to take the case requested by the DOJ than other similar cases. We did not want this to happen. Yes, we wanted the Court to hear a 2A case. This was not the one we wanted in front of the Supreme Court.
We are now looking at Rush v. USA. This is another case with bad facts. Mr. Rush is not a good man. He was doing bad things, and FO was applied to him.
He had his license revoked. He drove to his court hearing. He drove away after the court hearing. The cops stopped him to ask what he was doing driving on a revoked license. During the stop they smelled and observed pot. He was arrested. While searching his car, they found an SBR.
We don’t need to go into what he had done to be in court in the first place; needless to say, not a good fact pattern.
We do not want Rush in front of the Supreme Court. In the best of worlds, we are only going to get a lackluster result. In addition, there are other vehicles in the works attacking SBR, Silencers, and SBS remaining inside the NFA.
Damning With Faint Praise
My father explained this to me in terms of how a superior officer might praise a lower ranking member with faint praise. He said nothing that can be challenged, but everybody reading the report will know what is not said.
A pitcher might be praised for how far he can spit his tobacco juice. This likely implies he’s not a good pitcher.
The DOJ must make a good faith effort to explain why cert should be denied. It has to be grounded in legal reasoning. And they do that.
Their motion is darn weak. They rely on regulations from the 19th century. The whitewash Miller‘s findings. In short, it half hearted. But they use it as a method to say:
— Rush v. USA, DOJ Response, SCOTUS 24-1259
This is on point. It is a statement that the DOJ wants the Supreme Court to hear a 2A case, just not this one.
Final Note
As we have discussed, a circuit split is useful for getting the Supreme Court to grant cert. Getting a circuit split on anti-gun laws is very difficult because anti-gun states passing infringements exist within anti-gun inferior courts. The Ninth Circuit is many to zero in favor of California infringements.
The Seventh is nearly as bad. So are the Second, Fourth, Third, and First circuits. Well, sort of.
The Third Circuit, as of Friday, was 7-6 Republican appointees. In an upcoming en banc hearing, they will be 8-6. The problem is that if one of those Republican appointed judges flips to the side of infringement, we will lose in the Third Circuit, again.
On Friday, the Senate confirmed Professor Jennifer Lee Mascott to the Third Circuit. If President Trump signs the confirmation, and she is sworn in by a Supreme Court Justice by the morning of the 15th, she will sit and hear Association of New Jersey Rifle & Pistol Clubs v. Platkin (consolidated with Firearms Policy Coalition v. Platkin, Docket Nos. 24-2002 and 24-2003).
With Judge Mascott on the Third Circuit for this hearing, there will be a 10-6 balance. Even if we were to lose one judge to the dark side, we still win the case.
If we win in the Third Circuit, we will have the circuit split on “Assault Weapons” bans.
Conclusion
All is not as it seems on the surface. You have to look beyond what we are seeing and look to the future. Pam Bondi and Trump are good for the Second Amendment. If it looks like they are not, wait a minute. Take a deep breath and figure out what else is going on.
