Month: February 2024

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Malicious Compliance and Other Government Malfeasance

Feb 11, 2024 Anonymous Web Angel(GFZ)

(1000 words)
As I’ve stated before, my wife is a teacher. She is absolutely spectacular at teaching.

She is not so good at understanding ramifications, potential outcomes, and intentionally setting people up for failure.

Back in 2002, she was required to be a member of the teacher’s union. At one of the regular meetings of the faculty and staff, the new government regulations were explained to them.

In particular, under the new government mandates, they could no longer hold students back, they had to be advanced. In addition, it was explained how the new regulations made it almost impossible to expel or even have out of school suspension.

There were also new requirements, from the state, requiring that all students be included. For the most part, marking the end of special education classes for students at need.

This is how it was related to me 20+ years ago, so my memory could have left some things out.

The teacher’s union was incensed that the horrible Republican Congress and President would step in where they didn’t know what they were doing and how this new mandate would destroy the education industry.

Well, they were right, in part. It destroyed our education system. The industry is doing fine.

What was the horrible, horrible legislation that brought down this new mandate from on high?
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Why yes, my eyes are a little crossed today…

Feb 10, 2024 Anonymous Web Angel(GFZ)

I wanted to write about something more interesting and stumbled down a rabbit hole. The interesting case is the one of Hunter v. Cortland Housing Authority.

For many years, Section 8 or Public Housing Assistance leases have included a clause in the lease agreement that obligates tenants, [n]ot to display, use, or possess or allow members of Tenant’s household or guest to display, use or possess any firearms (operable or inoperable) or other weapons as defined by the laws and courts of the State of New York anywhere on the property of CHA. — CHA’s Residential Lease Agreement.

In different words, the lease requires renters to give up their Second Amendment protected rights. The right to any arms for self-defense.

Of course, we know that the bad guys have plenty of weapons in public housing.

This particular filing is to have the case dismissed for lack of standing. The CHA claims that the federal court lacks subject matter jurisdiction.

I don’t know. I wanted to know, instead I got this:

Plaintiffs assert a violation of Second Amendment Rights based upon a provision in CHA’s Residential Lease Agreement (“RLA”) that obligates tenants “[n]ot to display, use, or possess or allow members of Tenant’s household or guest to display, use or possess any firearms (operable or inoperable) or other weapons as defined by the laws and courts of the State of New York anywhere on the property of CHA.” They mischaracterize this provision as a “categorical” or “wholesale ban” on the possession firearms on CHA property. They also attempt to expand this characterization by an apparent incongruity, wherein Plaintiffs attempt to utilize their status as low income to infer CHA’s lease restriction also inhibits ownership of any firearm. Plaintiffs frame their arguments by reducing the complex and unique nature of a public housing development to an overly broad and simplistic premise of a governmental entity regulating firearms within an individual’s household. Further, they mistakenly assert that this action is the equivalent to N. Doe v. East St. Louis Housing Authority, No. 3:18-cv-545 (SD Ill Mar 7, 2018) to justify the extreme remedy of a temporary restraining order and preliminary injunction.

In doing so, Plaintiffs ignore the distinctive and intricate interests involved regulating activities in public housing developments. Public housing authorities (“PHAs”) are created under state laws s to provide affordable housing for low-income households. In New York, they are expressly formed to accomplish the goals set forth in Article XVIII of New York’s Constitution. However, PHAs receive funding from the U.S Department of Housing and Urban Development (“HUD”) while also being held to the same standard as a private landlord as they are not considered to be a municipal subdivision of the state and distinct from the municipality for which they were formed by the New York Legislature. PHAs, such as CHA, are state-created, federally funded, and locally administered entities. Further, they are obligated under Federal and state law to provide “decent, safe, and sanitary conditions” to their tenants. To that end, Federal law requires PHAs to develop crime prevention plans in conjunction with local law enforcement. In addition to the foregoing governmental interests interwoven in public housing developments, there are also the property interests and liberties inherent in residential apartments and proprietary rights of a landlord. The sui generis nature of PHAs and public housing developments, and their relevantly new creation, were the type of circumstance the founding fathers could not have fathomed at the time of the signing of the Constitution. There is no equivalent entity in this nation’s history for the courts to look to for guidance in considering the balancing of the many interests at stake when a PHA regulates a person’s activities in a public housing development
[xCite item=”XCMYQ256″ p=”1-2″ pos=0]

Let’s break this down.

The plaintiffs say that their Second Amendment Rights are violated because they are not allowed to display, use, or posses arms in their homes.

In response, the state argues(?) that the plaintiffs ignore how hard it is to regulate people in public housing.

The plaintiffs assert that because they are low income, they are denied the right to possess any firearm. I read into this that the full argument is that they can’t afford to safely store firearms off the property.

The state argues that doesn’t count. They could do it, that’s all that is required.

The Court employs and elaborates on the text, history, and tradition test that Heller and McDonald require for evaluating whether a government regulation infringes on the Second Amendment right to possess and carry guns for self-defense. See District of Columbia v. Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561 U. S. 742 (2010). Applying that test, the Court correctly holds that New York’s outlier “may-issue” licensing regime for carrying handguns for self-defense violates the Second Amendment.
[xCite item=”75DAVPP7″ pos=1] Kavanaugh, concurring.

The state filed that steaming pile on 2024/01/03. A year and a half after Bruen. 16 years after Heller. 14 years after McDonald. Yet, they believe that the plaintiffs have to prove something more than their proposed conduct is within the scope of the protections of the Second Amendment.

Is the proposed conduct within the scope of the protections of the Second Amendment?

Yes!

The burdens then shifts to the state to prove a history and tradition of analogous regulations from the time of the ratification of the Second Amendment.

It is obvious that they know this as well. The final lines, talking about how public housing is “new” so there couldn’t be any regulations in 1791, so they are allowed to infringe as much as they want.

Justice Thomas’ powerful language regarding one step too far when discussing means-end didn’t seem to register with the state when they asked the court to considering the balancing of the many interests.

The state didn’t provide a single regulation from the founding era. Not one.

Argh!!!!

[xCiteBib]

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Friday Feedback

Feb 9, 2024 Anonymous Web Angel(GFZ)

I’ve been experimenting with highlighting. It seems to be working ok. My test subjects have not known what I was testing yet have given good feedback.

There have been a couple of bad opinions out of the Ninth and Hawaii’s supreme Court. Makes me angry to read them.

Casinator is on hold right now.

Last Friday, a client contacted to tell me they had a situation. I asked if the client was down or did I have 30 minutes for lunch? I got my 30 minutes. I got back to things blowing up. Turns out that it was more urgent than I understood it to be.

That took me into multiple meetings, hours, and hours of fixing, and it is still going on. I’m in the process of learning another programming language, while attempting to get documentation for a software package that has been EOL for more than 15 years.

Lots and lots of fun.

Thank you for all the great comments. I feel bad when I dump 3300 words on you guys, then realize that I’ve culled that from 50,000+ sometimes and I guess it isn’t as bad as all that.

Have a fantastic day and a better weekend.

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Sorry Hawaii,

Feb 8, 2024 Anonymous Web Angel(GFZ)
Article I, section 17 of the Hawaiʻi Constitution mirrors the Second Amendment to the United States Constitution. We read those words differently than the current United States Supreme Court. We hold that in Hawaiʻi there is no state constitutional right to carry a firearm in public.
[xCite item=”WD838ZW3″ p=”1-2″ pos=0]
We reject Wilson’s constitutional challenges. Conventional interpretive modalities and Hawaiʻi’s historical tradition of firearm regulation rule out an individual right to keep and bear arms under the Hawaiʻi Constitution. In Hawaiʻi, there is no state constitutional right to carry a firearm in public.
[xCite item=”WD838ZW3″ p=3 pos=1]
In December 2017, at about 11:00 p.m., Flyin Hawaiian Zipline owner Duane Ting saw men on his fenced-in property via video surveillance. Ting reported the matter to the Maui Police Department. Officers headed to Ting’s property. Meanwhile Ting, driving an all-terrain vehicle, corralled Wilson and his three companions. Armed with an AR-15 assault rifle, he detained them until the police arrived. Then Wilson volunteered to the officers: “I have a weapon in my front waist band.” The police lifted his shirt. Wilson had a Phoenix Arms .22 LR caliber pistol, loaded with ten rounds of .22 caliber ammunition. A records check reported that the pistol was unregistered in Hawaiʻi, and Wilson had not obtained or applied for a permit to own a handgun. Wilson told the police that he legally bought the gun in Florida in 2013.
[xCite item=”WD838ZW3″ p=4 pos=2]

At the time, it had been over 20 years since the Maui Police Department had issued a permit to carry to a member of the public.

The State opposed the motion. It presented records from Florida and the Department of Justice Bureau of Alcohol, Tobacco, Firearms, and Explosives to refute Wilson’s remark about when and where he had purchased the gun. The records showed: (1) Wilson had not applied for or been issued a concealed weapon or firearm license pursuant to Florida law, and (2) in April 2011 someone not named Christopher Wilson purchased the pistol from a licensed firearms dealer in Florida.
[xCite item=”WD838ZW3″ p=5 pos=3]

What a messed up state, where they believe that Wilson was somehow obligated to apply for a “firearm license”. I’m not sure what a “firearm license” is, maybe somebody in Florida has heard of them. And there is no reason for him to have applied for a CCW. It is NOT required.

In the same way, Wilson’s remark, as quoted, did not say he purchased the firearm from an FFL. Only that he had legally acquired it in Florida.

We hold that the text and purpose of the Hawaiʻi Constitution, and Hawaiʻi’s historical tradition of firearm regulation, do not support a constitutional right to carry deadly weapons in public.

We conclude that HRS § 134-25 and § 134-27 do not violate Wilson’s right to keep and bear arms under article I, section 17 of the Hawaiʻi Constitution and the Second Amendment to the United States Constitution. Since Wilson lacks standing to challenge HRS § 134-9, we do not take up his Second Amendment challenge to that law.
[xCite item=”WD838ZW3″ p=8 pos=4]

The reason that Wilson lacked standing is that he didn’t bother to pay for and go to the trouble of applying for a permit that would not be granted. There is plenty of case law that says a person does not have to do something that they know will fail before they have standing.

Rather, this court frequently walks another way. Long ago, the Hawaiʻi Supreme Court announced that an “opinion of the United States Supreme Court … is merely another source of authority, admittedly to be afforded respectful consideration, but which we are free to accept or reject in establishing the outer limits of protection afforded by … the Hawaiʻi Constitution.” State v. Kaluna, 55 Haw. 361, 369 n.6, 520 P.2d 51, 58 n.6 (1974). Further, “this court has not hesitated to adopt the dissents in U.S. Supreme Court cases when it was believed the dissent was better reasoned than the majority opinion.” State v. Mundon, 129 Hawaiʻi 1, 18 n.25, 292 P.3d 205, 222 n.25 (2012).
[xCite item=”WD838ZW3″ p=13 pos=5]

The Hawaii supreme court has been thumbing their noses at the US Supreme Court since at least 1974. “Merely another source of authority” and “not hesitate to adopt the dissents … [we] believed the dissent was better reasoned than the majority”. What arrogance.

Because the text of article I, section 17, its purpose, and Hawaiʻi’s historical tradition of weapons regulation support a collective, militia meaning, we hold that the Hawaiʻi Constitution does not afford a right to carry firearms in public places for self-defense.
[xCite item=”WD838ZW3″ p=19 pos=6]

There is more of this profoundly unreasoned opinion. The gist is that they claim that the state constitution provides more rights to the defendant, and thus the state constitution should be followed. Then interpret the state constitution in a stricter light than the Supreme Court does the US Constitution.

This reasoning is half right. The rights of The People should always be the greater of the state’s constitution and the federal constitution. But when what is more restrictive than the other, the one that offers more protection wins.

Enjoy your second dose of courts doing stupid things.

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Annnnnd in this ring, Judges Clifton and Thomas of the 9th Circuit

Feb 8, 2024 Anonymous Web Angel(GFZ)

Judge Benitez wrote a powerful final judgement in Rhode v. Bonta. He said, “Ammunition is within the scope of the Second Amendment, see [xCite item=”3GPYVIGP” pos=0 pos=0 pos=0]” and [xCite item=”6R5C4HCQ” pos=1]. Besides, we had testimony provided by Robert Spitzer and Michael Vorenberg, this proves that the Second Amendment is implicated.

Not only that, it was remanded to Judge Benitez to evaluate in light of the Bruen opinion. All pretty good indicators that the conduct, purchasing ammunition, is within the scope of the Second Amendment.

He explained clearly that this met the first step of the Heller, the plain text of the Second Amendment.

On December 12, 2022, he ordered the state to bring forth “relevant statutes, laws, and regulations” from the time of the adoption of the Second Amendment (1791) through 20 years after the ratification of the Fourteenth Amendment (1868+20=1888). He further required that the state provide that in a spreadsheet, in chronological order.

The state refused to follow instructions. Instead of 1791 through 1888, they provided 54 entries from 1403 through 1787. They then provided 53 entries for the allowed time period.

2 possession by a minor
1 without cause to carry or drunk
50 Racist restrictions

That’s it within the allowed time frame. All 50 of those racists laws were declared unconstitutional under the Fourteenth Amendment.

They provided another 40 that were after 1888.

In other words, for “history and tradition”, the state could bring forth only 3 regulations, from 1853, 1868, and 1881.

The Judges with clown noses, Clifton and Thomas, wrote:

The motion to stay the district court’s January 30, 2024 permanent injunction and judgment (Docket Entry No. 4) is granted. See Nken v. Holder, 556 U.S. 418, 434 (2009) (defining standard for stay pending appeal).
— Rhode v. Bonta 24-542 (9th Cir.)

Nken v. Holder is a 31-page opinion from the Supreme Court in 2008. The question is about stays vs. injunctions and if the Fourth Circuit had the power to stay a deportation of an illegal alien.

The Supreme Court said, Traditional stay factors, not the demanding § 1252(f)(2) standard, govern a court of appeals’ authority to stay an alien’s removal pending judicial review. [xCite item=”FYFEG2K6″ pos=2].

The “traditional stay factors” are outlined in [xCite item=”C97QH2PX” pos=3]. The most important Winter factor is the likelihood of success on the merits.

For these to judges to suggest that the Winter factors were not properly used is a profound error. To not even bother to say why, these homo sovieticus prove they are more interested in putting their thumbs on the rights of The People than they are in following the law.

Judge Callahan, on the other hand, understands that he is a member of an inferior court, sworn to uphold The Constitution above petty tyrants.

I would deny the motion for a stay pending appeal. I do not believe appellant has met his burden of showing a likelihood of success on the merits or that irreparable injury will occur absent a stay.
— Rhode v. Bonta 24-542 (9th Cir.)

[xCiteBib]

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Rhonda Ezell v. City of Chicago

Feb 7, 2024 Anonymous Web Angel(GFZ)

Legal History
B.L.U.F.
A look back at a case that was used against us for many years. Today, it can be used in our favor to combat any attack on our Second Amendment protected rights through “it isn’t really an arm”.
(3300 words)

We reverse. The court’s decision turned on several legal errors. To be fair, the standards for evaluating Second Amendment claims are just emerging, and this type of litigation is quite new. Still, the judge’s decision reflects misunderstandings about the nature of the plaintiffs’ harm, the structure of this kind of constitutional claim, and the proper decision method for evaluating alleged infringements of Second Amendment rights. On the present record, the plaintiffs are entitled to a preliminary injunction against the firing-range ban. The harm to their Second Amendment rights cannot be remedied by damages, their challenge has a strong likelihood of success on the merits, and the City’s claimed harm to the public interest is based entirely on speculation.
[xCite item=”3GPYVIGP” p=3 pos=0]

Wow, that is powerful language from the Seventh Circuit court. They are saying that the lower court done messed up, big time. You don’t normally think of the Seventh Circuit court as siding with The People on anything, much less a Second Amendment challenge.

It gets better
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GD&T, oh my, I still don’t get it.

Feb 5, 2024 Anonymous Web Angel(GFZ)

“Oh, what a tangled web we weave, when first we practice to deceive!” attributed to Sir Walter Scott, 1808.

Geometric Dimensioning and Tolerancing, or GD&T, is a system of symbols, definitions, and practices designed to eliminate miscommunications between the description of an item and its real-world implementation. It removes unintentional deceptions.

This was supposed to be sharing my understanding, instead it highlights, to me, that I do not fully understand.
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Jackson v. San Francisco (9th Cir. 2014)

Feb 4, 2024 Anonymous Web Angel(GFZ)

Legal History
B.L.U.F.
A look at a decision in the Ninth Circuit where The People lost.

Today, that lose is a win. The Ninth and, by reference, the Seventh have given The People powerful case law to fight the rogue states and courts.
(1600 words)

Sometimes bad case law gets unusually good results.

This appeal raises the question whether two of San Francisco’s firearm and ammunition regulations, which limit but do not destroy Second Amendment rights, are constitutional. We conclude that both regulations withstand constitutional scrutiny, and affirm the district court’s denial of Jackson’s motion for preliminary injunction.
[xCite item=”6R5C4HCQ” pos=0]

We can see just how well the Ninth Circuit honors the constitution. The unqualified command is “shall not be infringed”. It doesn’t say “shall not be destroyed”. The arrogance of these rogue judges drives me mad.

The law being challenged was a gun storage law and a ban on hollow point ammunition. The Ninth made interesting findings about the conduct implicating the Second Amendment. They then said that since the infringement didn’t destroy the Second Amendment protected right, that intermediate scrutiny should be applied.

Having decided on intermediate scrutiny, the state merely stated that they believed it would be good for the state, and the Ninth gave the infringement their stamp of approval.

We aren’t concerned about Jackson losing, that is done with, we care about the findings that we can use today.

Do Arm Storage Laws Implicate the Plain Text of the Second Amendment?

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Judge Roger T. Benitez

Feb 3, 2024 Anonymous Web Angel(GFZ)
Applying Bruen’s new lesson, this Court’s conclusion remains the same: the California ammunition background check laws violate a citizen’s right to bear arms. Once it becomes clear that acquiring ammunition is conduct covered by the plain text of the Second Amendment, it should be no surprise to discover that the government is unable to do that which it must now do: demonstrate that California’s first-of-its-kind sweeping statewide restriction on buying firearm ammunition is consistent with this Nation’s historical tradition of firearm regulation. Because these laws are not consistent with the Nation’s history and tradition, they must yield to the Constitution.
[xCite item=”W35VJSB2″ pos=0]
All agree that the ammunition necessary to use a gun is covered by the Second Amendment’s protection for keeping and bearing arms. The Attorney General correctly concedes that, “[e]ven though the Second Amendment does not reference a right to acquire or purchase Arms or mention ammunition, it ‘protects ancillary rights necessary to the realization of the core right to possess a firearm for self-defense.’” The Attorney General agrees that the core right to possess a firearm for self-defense, “would include a ‘corresponding right’ to ‘obtain bullets necessary to use’ firearms for self-defense.”
[xCite item=”W35VJSB2″ pos=1]
In contrast, the Attorney General makes two arguments to end the case here, at the textual level, before he has to shoulder the burden of demonstrating a history and tradition of constitutional ammunition background checks. First, he retreats and says that purchasing ammunition without a background check is not really covered by the plain text of the Second Amendment or any ancillary right. Second, he says that the background check laws are simply “presumptively lawful regulatory measures.” Neither argument is persuasive. The first argument employs a rhetorical device to over-describe in detail the asserted constitutional wrong. Having over-described the alleged constitutional right, it is then argued that the detailed description of the asserted right is not covered by the plain text of the Constitution.
[xCite item=”W35VJSB2″ pos=2]

I’m going to end here with the following, it is important to learn the arguments of our enemies. Here the method they are using is “over-describing”.

The right is the right to keep and bear arms. Those words do not include the words “to stop bad guys when they burst into my home.” Yet the state does argue that the plain text does not cover the more descriptive words.

We must remain focused on using the right argument, the right conduct. The conduct we wish to do is to keep and bear arms. That includes the right to acquire arms. It includes the right to acquire the acquirements to outfit and use those arms.

The state can not ban magazines nor can they ban optics. Those are both arms and both are protected.