Month: March 2023

The Ninth Circus Court three judge panel has again displayed its dislike for the rights of The People by staying the district courts preliminary injunction against the state.

The District Court found that the plaintiffs(good guys) were likely to succeed on the merits and had all the other requirements to be granted a preliminary injunction. In order to keep things from yo-yoing the court put a 14 day stay in order for the state to appeal to the Ninth Circus Court.

The preliminary injunction is stayed as to the chamber load indicator and magazine disconnect mechanism requirements of California’s Unsafe Handgun Act. — Order of the Ninth Circuit Court

The Ninth Circus Court is ordering opening brief by April 28, 2023 (bad guys). Answering brief by May 26, 2023 from the good guys. And the reply from the bad guys within 21 days of the answering brief being filed.

This means that the Ninth Circus will not hear the case until at least June, likely longer. In the meantime only the microstamp requirement is enjoined.

It was suggested by it’s just Boris that a founding era firearm safety requirement could be used to support the California Roster system. In particular, they suggested that proof testing would be a close enough match.

It isn’t. Proofing a firearm is entirely different from the idea of requiring or forbidding features.

The original proofing was done to make sure that guns did not blow up in your face. Because of the metallurgy of the time it was not a good idea to trust a pressure vessel until it had been tested. To this end “proofing” was required.

Emphasis added.

What is very important about the requirement for “proofing”, from a Second Amendment view, is that no class of arm, “pattern” was outright banned.

What was happening is that a level of third party quality control was being performed, by the government.

At times the proofing wasn’t done a the royal proofing houses but was instead done at the manufacturer’s location.

With the California roster, the concept is that if California doesn’t like the weapon it is banned. Not that the weapon has to perform as designed and not blow up.

In addition, while proofing was required in Europe, I can find no regulations that actually require the proofing of firearms from 1790-1799. I used both Google and Duke Center for Firearms Law. It is likely that with a bit more work I could find something at Duke but the real proof is that the state has not made the argument in any of the cases I’ve read.

The GFZ admin had a short discussion and decided that we do want to add links for those organizations that are fighting for the Second Amendment. To that end, if you have a favorite organization let us know in the comments.

There have been a number of cases that are making progress, I’ll continue to bring updates as I get them or I find new cases.

Hagar has a couple of new articles out and J.Kb and Miguel keep cranking them out.

In the next week I’m going to do an article on PACER and RECAP. PACER is where you buy court documents. RECAP is a site that collection PACER documents for others to use. I’m looking at being able to put out a call for our readers to add documents from PACER to RECAP. Since you get $30 dollars worth of PACER documents per bill period free, this might work well for us.

We are going to be doing some site work later this week as it is time for a WordPress update. This will cause a brief outage.

Anything else you want to tell us about, feel free in the comments.

B.L.U.F. In a strategic move the State of California is appealing to the Ninth Circus Court of Appeals in the “Unsafe Handgun Act” case. The district judge found the UHA unconstitutional by requiring Chamber Load Indicator(CLI), Magazine Disconnect Mechanism (MDM), and microstamping. The state is appealing the CLI and MDM but NOT microstamping.

US District Court Judge for the Central District of California, Judge Cormac J. Carney, came to the right decision but his analysis to get there was and is weak. This has lead to the likelihood of this appeal being granted. It was likely to be granted by the Ninth Circuit Court because the en banc court hasn’t seen an infringement they didn’t support.

The Ninth Circuit court is so anti-gun that when a three judge panel found in favor of the plaintiffs(good guys) in Duncan v. Bonta the Second Amendment community was shocked. One of the judges on that panel wrote an opinion explaining exactly how the en banc court was going to find for the state infringements.

In Boland v. Bonta the judge did not find that the UHA was a ban, instead he found that requiring CDL, MDM, and microsamping created a de facto ban which made that part of the UHA unconstitutional.

Consider a regulation that says “You are not allowed to have any firearm with a barleycorn front sight”. This reads like a ban because it is a ban. Now consider a regulation that says “You are only allowed to have firearms with barleycorn front sights.” This is also a ban. It just doesn’t read as clearly as the first.

Now consider a regulation that says “You are only allowed to have firearms that are on this approved list.” That sounds sort of like a ban but maybe not. If the list is comprehensive to the point where you can buy whatever you want it doesn’t feel like a ban. In order to even have standing to challenge the ban you would have to prove to the court that you wanted to purchase a firearm not on the list and had attempted to do so.

Now what if we add another part to the regulation “only firearms with barleycorn front sights can be placed on the list.” This has exactly the same effect as “You are only allowed to have firearms with barleycorn front sights.” It is a ban. If the state changes the list of firearms that it allows, it is still a ban.

This is how the state of California bans handguns. They just don’t put modern handguns on the rooster and thus ban them from the State of California.

The Question

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Enjoy a win!

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B.L.U.F. District Court of Delaware Judge Richard Gibson Andrews decided on 2023-03-27 that a ban on some firearms and some magazines was constitutional in denying a preliminary injunction.
Slight updates to correct spelling and Judge’s name.
Delaware State Sportsmen’s Association, Inc v. Delaware Department of Safety and Homeland Security (1:22-cv-00951)

Prior to Bruen the courts used a two step analysis that first determined if the regulation touched on the core right of the Second Amendment, self-defense. If it did then they then used a means-end balancing act where they considered just how much infringing was being done (just how much rape was done to you Mrs Jones? If it wasn’t too much rape then it really isn’t a big case and we don’t need to prosecute him as a felon.)

Once the courts had determined there was infringement and had established just homehow much that infringement harmed the individuales core civil rights it used a balancing act against the public need as defined by the state. Thus if the state said that the regulation was going to make the public safer that would be balanced against just how much the individual was effected. The individual almost always lost this game.

Post Bruen there are still two steps, the first step is determine whether ‘the Second Amendment’s plain text covers an individual’s conduct’ — Memorandum Opinion at P.6 quoting Bruen. If the answer is yes, then the burden shifts to the state to show a history and tradition of analogous regulation from the time of the founding.

If it is an arm then the individual’s conduct is presumptively protected by the Second Amendment.

In order to win the case, the state has to prove only one of the following:
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The post WWII trials saw many many of the accused murders claim that they were “just following orders”. There was always somebody higher up that ordered them to murder people.

What isn’t as well known is that the population, when asked “Why didn’t you try and stop these mass murders?”, replied with “We didn’t know.”

The US military has rules that say you should not follow an illegal order.

We have lost one of our commenters due to violation of The One Rule.

The rule is still in effect even if you were kind enough to support us by purchasing a subscription.

AWA for the GFZ admin team

B.L.U.F. An example of winning in court. Oregon’s legislature rushes to moot cases and to fix parts of Measure 114.

H/T Bh.Z and OFF

On January 9th, 2023 Senate Bill 348 was introduced. The bill was short. It was a bill giving the Oregon Department of Justice a requirement to …study ways to address the unlawful possession of firearms.— Senate Bill 348. The DoJ was given until December 31,2024 to provide the report back to the legislature. On January 2, 2025 the first section of the bill would be repealed.

On its face this doesn’t sound all that bad, directing some government entity to do a study is a way of spending taxpayer money to get “facts” to use against The People in infringement cases, but better a study than another infringement.

Oregon Firearms Federation sent an alert telling its members that this was a bill to observe as it was likely there as a gut and stuff bill. Often times a legislature has rules to protect The People from the state. Things like a bill must be read 3 times before it can be voted on. That there must be a certain amount of time between readings. That the bill has to be analyzed by the appropriate committees to make sure it will be “legal”.

But there is an important part of these rules to remember, amendments are not subject to the same rules. The idea being that members have had enough time to analyze the bill and are not going to propose “fixes” and “changes” to make the bill better. When those amendments are presented the body votes and if the amendment gets enough votes the amendment is applied to the bill.

If the bill is in both chambers of a bicameral legislature there will be a reconciliation phase that takes place if the two bills are actually different. If both the Senate and the House versions are the same then it is deemed to have been reconciled and it moves forward to the Governor or President for signature to turn the bill into a law.

A “gut and stuff” bill is a bill that is specifically designed for this amendment process. When the bill is read an amendment is offered that “guts” the entire text of the bill and then “stuffs” entirely new content in place of the original text. Suddenly you have a bill with the same identifiers that has been through the pre-vote approval process with totally new content ready for a vote.

This is where the famous Nancy statement comes from “We have to pass the bill to see what is in it.” The bill in question then was ObamaCare and it was gut and stuffed into an entirely different bill with a short timeline to a vote. With 2000+ pages of new text it was impossible for any one person toi read the entire bill before the vote.

In infringement bills it is often the case that they legislature doesn’t want The People to have time to react.

The watchers have to spot the bill. They have to see the amendment go into place. They have to craft an alert. The alert has to make it to The People and only then can The People respond with email, calls and faxes.

In person responses take even long. This is why the NYS S.A.F.E act was so bad on a procedural level. Even though there are laws in place to give people time to respond, the infringers got it passed in an emergency session before those alerts and responses could take place.

With the NYS CCIA the republicans only had the press release until the very last minute. It wasn’t possible to respond until they got the text of the bill and they didn’t get the text until the last minute.

Oregon Senate Bill 348 – Amended

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Matt is out there fighting for the safety of the people of New Jersey. You know this because Louis tells you so. But it is fun to look some of the fun things he has to say Here in New Jersey, we have the fourth-strongest gun laws in the country. We also have the third-lowest rate of firearm deaths in the country and the lowest rate of firearm ownership with just 8.9% of New Jersey households reporting to own firearms. Id.

Is he proud his state has some of the worse gun right infringements in the country. He is proud of the infringements in the concealed carry permitting. He is proud of the infringements on individuals making firearms. He is proud of the infringements on people right to purchase firearms without permission. He is proud of being a tyrant.

But he is very upset that some people aren’t taking a knee to these infringements. Unfortunately, this was almost instantly challenged by gun-rights groups who claimed the law was unconstitutional because it violated the Second Amendment. id.. Yep, you read that right, they claim it was an infringement, not that it was.

And it just gets worse for him. To add insult to injury, the Supreme Court ruled in June that the Constitution provides a right to carry a gun outside the home Id. How horrible it is that the Supreme Court reaffirmed in Bruen that Heller is still good law and that if it is an arm in common use it is covered by the Second Amendment and if it is even a little infringement it is too much.

So Louis doesn’t get to have Matt go to the courts and whine that his law should make people safer so it should pass constitutional muster.

But let’s take a look at some of Louis’s claims, that New Jersey is somehow special in the reduction of violent crimes. Of course he might be cherry picking to just crimes committed with firearms:

Every statistic tracked in violent crime in the FBI’s UCR shows that crime is decreasing. That might be meaningful.
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