Second Circus Court of Appeals
Something from the late night keyboard.
Since I read it, now you get to as well. An opinion from the Second Circus Court of Appeals.
The Second Amendment, made applicable to the states through the Fourteenth Amendment, guarantees that “the right of the people to keep and bear [a]rms [] shall not be infringed.” U.S. Const. amend. II.
After Bruen, we follow a two-step framework to evaluate Second Amendment challenges. First, the plaintiff must establish that “the Second Amendment’s plain text covers an individual’s conduct.” Bruen, 597 U.S. at 24. If the plaintiff surmounts this initial textual hurdle, the burden shifts to the government to prove that the challenged law is “consistent with the Nation’s historical tradition of firearm regulation.” Id. We focus on history and tradition because the Second Amendment “codified a pre-existing right”—with a history that makes clear that this right is “not unlimited.” District of Columbia v. Heller, 554 U.S. 570, 592, 595 (2008) (emphasis in original). The right’s enshrinement in the Bill of Rights “br[ought] the old soil with it,” Sekhar v. United States, 570 U.S. 729, 733 (2013) (internal quotation marks and citation omitted)—that is, we understand the Second Amendment to “incorporate traditional limitations that existed at or around ratification, unless historical context suggests otherwise,” Antonyuk v. James, 120 F.4th 941, 968 (2d Cir. 2024) (internal quotation marks and citation omitted), cert. denied, 145 S. Ct. 1900 (2025). Historically established firearm regulations therefore inform us of the limits of the right and thereby “give content to the indeterminate and underdetermined text of the Second Amendment.” Id.
There is a piece of legal sleight of hand happening in this paragraph. The paragraph cites to Sekhar v. United States, 570 U.S. 729,733(2013)
This citation references a Supreme Court opinion published in U.S. Reports (the official reporter for Supreme Court opinions), volume 570, starting at page 729. This opinion was issued in 2013. The quote in question is on page 733 of volume 570.
If you don’t read the opinion, you might miss an important bit of context: the text “brought the old soil with it” is itself a quote. Where did that quote come from? It comes from Justice Frankfurter’s 1947 article, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537.
In other words, the Second Circus is pulling a quote from an article by Justice Frankfurter, not the words of the actual Supreme Court opinion. By the by, at least the introduction to his article is an easy read, poking fun at Congress.
In the cited opinion, The Court is using the quote to emphasize that when Congress puts words into a law, or when they exclude a word, there is intent behind that. In the particular case, the word was “coercion”. The Hobbs Act makes it illegal to extort tangible property. Things of real value, such as money, cars, houses, or intellectual property.
Coercion is the act of forcing somebody to do something; in the case at hand, it was Sekhar attempting to blackmail a New York State official to recommend his firm for a contract. A recommendation is not tangible property, therefore not extortion, and therefore not a violation of the Hobbs Act.
The meanings of “coercion” and “extortion” come from the old world legal system, thus “brought the old soil”. Here, the Second is going to use it to mean that they can use English Law to interpret the meaning of the Second Amendment.
Under this history and tradition analysis at step two, we “must ascertain whether the [challenged] new law is relevantly similar to laws that our tradition is understood to permit, applying faithfully the balance struck by the founding generation to modern circumstances.” United States v. Rahimi, 602 U.S. 680, 692 (2024) (alteration adopted) (internal quotation marks and citation omitted). “Why and how the regulation burdens the right are central to this inquiry.” Id. The Supreme Court has stressed that the Bruen framework was “not meant to suggest a law trapped in amber.” Id. at 691. Thus, this analogical reasoning “requires only that the government identify a well-established and historical analogue, not a historical twin” or a “dead ringer.” Bruen, 597 U.S. at 30 (emphases in original).
Mentioning something one time in an opinion is not “stressing” a point. In addition, the term “trapped in amber”, when read in context, is more about making sure that more restrictive laws from the past do not entangle modern life. I.e. It is in the positive for The People, not as the state uses it.
Because Bruen did not “provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment,” id. at 29, we attempted to undertake that endeavor at some length in Antonyuk. There, we explained that “courts must be particularly attuned to the reality that the issues we face today are different than those faced in medieval England, the Founding Era, the Antebellum Era, and Reconstruction.” Antonyuk, 120 F.4th at 970; see Bruen, 597 U.S. at 27 (“[C]ases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.”). Thus, a lack of distinctly similar historical regulations during one or more of those time periods “may not be reliably dispositive in Second Amendment challenges to laws addressing modern concerns.” Antonyuk, 120 F.4th at 970. “Reasoning from historical silence is [also] risky,” we said, because “[l]egislatures past and present have not generally legislated to their constitutional limits,” and it is thus “not necessarily the case that, if no positive legislation from a particular time or place is in the record, it must be because the legislators then or there deemed such regulation inconsistent with the right to bear arms.” Id. at 969.
The Second has explicitly stated that “…this Nation’s historical tradition of firearm regulation…” means other countries’ laws from before the founding, 1791 and the pre- and post-Civil War eras. The 1868 time frame was ripe with racist gun control laws to disarm blacks.
In addition, the Second has decided that the burden the state must meet is not a long standing firearm regulation forming a tradition in this Nation, but they can also suggest that the legislators of those eras could have passed analogous laws but didn’t bother, for reasons.
It goes on and on like this. The Second trundles along in their clown car claiming that even the lack of a law doesn’t mean anything. They ignore Bruen telling New York, explicitly, that they can’t just make the island of Manhattan a sensitive place, just because it is crowded or has a strong police presence.
Instead, they make Times Square a sensitive place and just about anywhere else people might need to carry.
You Don’t Hate NY State Government Enough
Back in 2022, after Bruen, Antonyuk v. Hochul, 1:22-cv-00986, (N.D.N.Y. Nov 04, 2025) was filed. This case has gone up and down the court system multiple times. It has even made it to the Supreme Court seeking certiorari at least once.
While it is an interesting case, it won’t become worth writing about again until something worthwhile happens. They will continue to win at the district court level, they will continue to lose at the circuit court level, and they are unlikely to be granted certiorari this term.
That doesn’t mean that I don’t keep an eye on the case, and something popped up the other day worth mentioning.
In the state of NH, CCW permits are granted by the local police chief. In California and Massachusetts, it is also the police that grant carry permits. In the state of New York, it is not the local police that hold sway over who does and who does not get a carry permit.
Instead, it is state judges.
There does not appear to be anything inherently wrong with this arrangement. It is just as reprehensible as every other firearm licensing scheme.
That is until you get into the weeds.
If your local sheriff or police chief denies you your permit, you can sue to get your permit. Just walk down to the local courthouse and file the paperwork, and it happens.
Will you win? That is an entirely different question. And it is a question that has a path to the Supreme Court.
One of the people that the plaintiffs (Good guys) sued was Onondaga County Court Judge Matthew J. Doran, in his official capacity. I assumed that he didn’t grant a permit or something of that sort. I’m too lazy to look up what he did wrong to get sued.
He has now moved the district court to be removed from the case.
The Second Circuit’s recent ruling in Kellogg v. Nichols, 149 F.4th 155 (2d Cir. 2025), is an intervening change in governing law that requires dismissal of all claims against Judge Doran. Kellogg establishes that the licensing activities at issue in this case are judicial actions over which there is no federal subject-matter jurisdiction. In Kellogg, two plaintiffs sued a Columbia County Court judge, asserting that denying their firearms permit applications violated the Second and Fourteenth Amendments. Judge Hurd granted a motion to dismiss, relying on the Second Circuit’s previous decision in Libertarian Party of Erie County v. Cuomo, 970 F.3d 106 (2d Cir. 2020), abrogated in part on other grounds, NYSRPA v. Bruen, 597 U.S. 1 (2022), to conclude that licensing decisions by state judges are judicial in nature and protected by absolute immunity, that the plaintiffs lacked standing because a judge is not an adverse party, and that the text of Section 1983 barred injunctive relief against a judicial officer. See Kellogg v. Nichols, 703 F. Supp. 3d 367 (N.D.N.Y. 2023).
— Antonyuk v. Hochul, 1:22-cv-00986, (N.D.N.Y. Nov 04, 2025) ECF No. 159, at 5
— Antonyuk v. Hochul, 1:22-cv-00986, (N.D.N.Y. Nov 04, 2025) ECF No. 159, at 5
Judges cannot be sued for decisions they make as part of being a judge. They can’t be sued for any ruling they make from the bench.
Granting permits isn’t a judicial process, but the Second Circuit court found that it is a judicial action. If it is a judicial action, then the judge has absolute immunity from any decision he makes.
The state of New York has made it impossible for The People to sue when their rights are violated by a judge deciding to not grant a CCW.
- Antonyuk v. Hochul, No. 1:22-cv-00986-GTS-CFH (N.D.N.Y. filed Sept. 20, 2022), ECF No. 159 (Nov. 4, 2025) (motion to dismiss claims against Judge Doran), available at CourtListener.
- Kellogg v. Nichols, 703 F. Supp. 3d 367 (N.D.N.Y. 2023), available at Justia.
- Kellogg v. Nichols, 149 F.4th 155 (2d Cir. 2025), available at Justia.
- Libertarian Party of Erie Cnty. v. Cuomo, 970 F.3d 106 (2d Cir. 2020), abrogated in part on other grounds byN.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), available at FindLaw.
- N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), available at Supreme Court.
Range Day
Shooting is a perishable skill. New guns shoot differently. You go through ammo faster with 17-round mags than with 7-round mags.
I have decided that I will be using my Sig P365-XMacro as my competition gun. According to my math, this means I need to be able to hit a 10″ round target at 65 ft.
Miggy was telling us a recent zinger. Mrs. Miggy asked him why he could hit steel at 40 yards with his Sig P365-RS but couldn’t hit the hamper with his socks at five feet.
Now 40 yards is 120 ft., and with a shorter barrel than what’s on my XMacro and with smaller grips. I should be able to hit steel at 60 ft consistently, right?
Wrong.
As far as I can tell, I’m pulling low and left consistently. Time for more practice with the dry fire system. Remove ammo from the room. Set up the Mantis; make sure the pistol is safe. Rack, holster. Draw, take sight, press trigger. Make sure the pretty little dot is where it is supposed to be.
For what I took to be 8″ steel, maybe 6″ at around 15-20 yards, I was aiming at the right edge slightly above center to consistently knock plates over.
I did notice that I wasn’t centering the front sight correctly at times. I also noticed that when I had the pad of my finger flat on the trigger, I did better. And finally, when I was carefully pressing the trigger, making sure not to jerk, things went better.
Printing on paper showed low left, which I was able to correct to center center, but only by changing my point of aim.
I believe that my old results were a result of correcting point of aim, not in correcting my shooting.
The problem with that is that the point of aim changes depending on distance. What works at 30 ft will not work at 60 ft and I’m not that good at judging distance, yet.
Question of The Week
What project(s) have you started and found to be bigger than you expected?
The wife decided it was time to paint the hallway. This required emptying the hallway. Which was a task she expected.
She then needed to remove the popcorn covering on the walls, which was much larger than she expected. Even though I bought a power wall sander for her.
The result was no more popcorn/textured walls. But there were dings, scrapes, and other damage on the walls. We could have just painted over and it would have been ok.
I decided we needed to apply a skim coat. Which meant I had to learn that what I wanted to do was a skim coat. Then I had to learn how to do it. Then try and fail. Then try again and fail differently. Something about having just the right amount of water in the plaster.
I have 3/4s of one wall completely ready for the primer. The the rest of that wall and 2.5 other walls are ready to be sanded, and I still need to apply the skim coat on about 60 sq ft of wall.
Damn that is a skill I do not have.
So That’s How You Do It?
I’ve been carrying my Sig P365-RS since my holster from We The People Holsters arrived. It is a very comfortable holster.
The model I purchased was the “Freedom” system. This consists of a form-fitted shell for your firearm and another for a magazine. These shells have many holes in them for mounting the belt loops. They claim over 2500 different ways to attach your shell to your body.
I’m to fat to do the appendix carry, but they have systems that work for that. They have tuck belt loops that clip over your belt and allow you to tuck your shirt between your firearm and your belt. It looks nice but is not how I do it.
My preferred method is inside the waistband (IWB) with the tuck style loops.
Strong hand at the 4 O’clock position or even the 5 o’clock.
For true concealed carry, I love it. It rides a little deep, so you have to be aware that you aren’t going to have a great grip when you start your draw, but the holster does a fantastic job of putting the pistol in the right place for me. When I have finished presenting, everything is just right.
The holster for the P365-XMacro arrived, and I configured it for OWB instead of IWB. The holster was still excellent, but I wasn’t totally satisfied with how the gun was presenting.
By the end of the first day of wearing it, I realized the hilt was tilted out about 40 degrees. It felt like it was flopping away out there.
With about 60 seconds with that powered screwdriver, I had reconfigured the holster. I moved the belt loops from the inside to the outside, then ran my belt through the loops and over the holster.
The holster now sits firm against my body. It is in the right place; it isn’t flopping around.
I just need to control myself so I don’t end up with a dozen holsters from them.
It is nice having a holster this comfortable.
Tuesday Tunes
I love how many different themes I can hear in this piece that I’ve heard many times before.
Article III orders Article II to violate Article I
So this gets complicated.
Article I establishes the legislative branch, Congress. Congress controls the purse. They decide how money is to be spent and what tax rates should be.
Once Congress allocates money, it is the responsibility of the Article II executive to spend the money.
The Article III judiciary is there to make sure that what Article I and Article II branches are within the boundaries of the Constitution.
Congress decided that they were not allocating money for non-essential work for the 2025-2026 budget year, which started October 1st.
This means that only essential money can be spent.
SNAP is not considered an essential expenditure. And before you get upset about this, the military is something in the Constitution, and they are not considered essential.
This means that The Executive, The President, ordered the United States Department of Agriculture to stop SNAP payments.
SNAP benefits are administered at the state level. The state gets money from the federal government, skims a bit off the top, and then sends the money to those with EBT cards. Note, having an EBT card doesn’t mean you are on SNAP. EBT cards are bought and sold all the time. Yes, that’s illegal.
A group went to a district court in Massachusetts. Why? Because it is a progressive hell hole.
They claimed that it was illegal for the president to turn off the SNAP spigot. The judge agreed and issued a temporary order requiring the Article II Executive to take money from a pot of money that Congress had allocated for something else and send it to the SNAP program.
The Article II Executive appealed to the First Circuit Court of Appeals, claiming that the Article III district court did not have the power or authority to order the Article II Executive to break the law and send money that Congress did not allocate to the SNAP program.
The First Circuit looked at the facts; the petitioner is the Trump administration, and they lose.
This ran out the clock. Even if a judicial order is illegal, you must follow it or face contempt charges.
The money was stolen from one program, sent to the USDA, which then sent it to the states. The states then sent it to the EBT cards.
The Article II Executive appealed the case to the Supreme Court on the emergency docket. KJB then issued an administrative stay. Yeah, even a broken clock is right once or twice a day.
The USDA then started the clawback process, demanding the money back.
The states said, “We don’t have it, we sent it out.”
The states should have clawed back all the unspent money on EBT cards.
Regardless, those states now owe the federal government all the money they spent.
The good news is that 8 Democrat Senators have voted for a CR through January.
Insulation
I have a horrible habit of getting invested in something, learning the skill, then moving on to something else. A few years ago I decided to learn how to build a house.
The design was a 8×12 ft. hut with a loft. Instead of a peaked roof, it uses a sloped roof. The bottom floor has an 8 ft ceiling, and the loft is on 6 in joists with a 3 ft wall height (I think) on the low side and 4ft on the high side. It could be 4 and 5 but I didn’t measure today.
This was built on concrete blocks, so it is not a permanent structure. The loft doesn’t allow you to stand up right, so it isn’t a two story structure. Taxes are weird that way.
Because it was just a hut, I used 2×4 studs for the walls. The children got to pick the window sizes, a mistake on my part. After it was framed and the exterior cladding put on, we wrapped it. I used the rubber waterproofing where required. Then tarpaper for the roof. I built the door out of plywood and then put pine siding on. I think it is called shiplap.
The shiplap was resawn 2×6 because that was lower cost than buying the boards precut.
Then I ran out of money and time. To finish the exterior siding, I need to get the windows installed. I had intended to make the windows from scratch, but that never happened, and I was afraid of $500 window costs. So there the hut sat, used for storage and waiting for more attention.
When we had the new roof put on the house, I asked how much to put a roof on the hut. My roofers did the hut for no extra cost.
I decided to turn the hut into my woodworking shop for the winter. I moved the workbench to the hut, cleared out a bunch of garbage, measured the size of the front window, and got a quote.
The custom window is on its way. Once I have it installed, I’ll finish the siding on that wall. I’ve decided to put T1-11 on the two remaining walls and just cover up the two window openings. No big deal.
This leaves the problem that the hut will be damn cold in the winter. Temps around here often get down to below freezing. I want to be able to work out there.
Enter Rockwool insulation.
This stuff is pricier than old-fashioned pink, but man oh man, what a difference.
Instead of coming in a roll, it comes in 47″ batts. The batts that I purchased fit perfectly between studs on 16-in. centers. The thickness is almost exactly 3.5 inches, so it fits the voids between studs perfectly. For the voids that aren’t on 16″ centers, this stuff cuts easily with a standard knife.
I hate working with fiberglass insulation. I always end up with the itches and little fiberglass splinters. This stuff does create dust, but it is much less than fiberglass, and it doesn’t cause the same itching.
And it is R15; standard Owens Corning Pink is R11.
Just insulating the front wall has dropped road noise to almost nothing. What noise I do hear is coming from the window opening. That opening that is just house wrap now. I expect that to drop as well when we put the window in.
I’m going to be picking up another couple of batts of the stuff to finish out the first floor before doing the loft.
Oh, I have a military heater that I might use; if I don’t use that, it will be a small wood stove.
Rockwool does not burn or melt. Well, at less than around 2000°F. I’m going to put in a heat shield made of 20-gauge steel on 1 in. standoffs. That allows me to get my stove close to the wall. I don’t remember the distance, but 6 in. is what I expect it to be.
I’ll run single-wall flue up to the proper distance from the ceiling, put in an elbow, and then into double-wall flue. I’ll have a double-wall thimble through the wall into a T, then a double-wall flue up to the proper height.
The only issue is that double-wall flue is expensive.