Explainer

In VanDerStok, the ATF is arguing that the term may readily be converted was not defined by congress. This makes it ambiguous. An ambiguous term is normally clarified by the rule making procedures.

The gist of the argument is ATF determination letters regarding classification of things as hunk of metal or receiver has always focused on the term “readily”. According to the ATF, the new rule merely clarifies that “readily” can be modified by the auxiliary components included with a kit or in the same purchase.

When asked if the ATF could just as easily claim that all AR-15 lower receivers are machine guns because they can be readily converted to M-16/M-4 receivers, the ATF responded that AR-15 receivers are not being restored because they never were.

The issue is twofold, first, we don’t trust the government. The second is that there is zero difference between an 80% AR-15 lower receiver and an 80% M-16/M-4 lower receiver.

Both require drilling holes for the trigger pin, the hammer pin, and the selector switch.

Both require milling out the fire control group pocket.

The M-16/M-4 lower receiver requires one extra hole.

The Pivot pins are 0.250 +0/0.003 below the deck. The hammer pin is 0.375 +/- 0.002 below the pivot pin. The trigger pin is 0.3140 +/- 0.0015 below the hammer pin and 0.8430 +/- 0.0015 to the rear. The selector is 0.2250 +/- 0.0015 above the trigger pin and 1.9680 +/- 0.0015 to the rear of the hammer pin.

1.9680 +/- 0.0015 to the rear of the hammer pin and 0.4980 above the hammer pin is a 0.1250 +0.0015 -0.0000 hole.

This hole is the difference between an M4 and an AR15 lower receiver.

If the ATF considers a piece of edgedetched steel to be a machine gun, and they consider a hunk of aluminum with a jig and instructions to be a receiver, what would stop them from deciding an AR15 receiver is an M4 receiver?

“Management Agency” is the key here.

In leadership courses we hear the phrase “Either lead, follow or get the fuck out of the way.” There is a strong reason for this, projects fail when leadership is weak.

“A bad decision now is better than a good decision too late,” is another.

What this means is that in a situation where leadership is needed, we need a good leader, and then we need to follow them. If we are not following, then we might be the de facto leader. If we are not following, and we are not leading, we are the problem.

If you want to see a prime example of failed leadership, consider your local PTA. There are reputations at stake, there is money on the table. And there are a dozen voices, all attempting to get their way.

A natural leader has an ability to lead that comes from their nature, and their upbringing. They might have augmented that natural ability with training. They are still few and far between.

Trained leaders are those that have been through training on how to lead. They might be able to lead, but they are likely to be uncomfortable leading. This causes failure in trust and mistakes.

In a disaster, leaders will step up at the time of the event. These will be those that who are natural leaders. The “trained” leaders are likely to be slow to step up, hoping that someone else will take on the mantel of leadership.

This is precisely what we saw in the current disaster. The natural leaders got up and did.

These people heard the call of duty, put their lives on hold, grabbed what they could and went into action. When they arrived at the scene, they self organized. That is to say, leaders stepped forward and did what was needed.

Because they are doers, things got done. The right people were in the right place doing the right thing.

When FEMA arrives, they bring two things with them, a checkbook and “management”.

If the management is good, then they will slide into the existing system, their natural or trained leadership skills will shine through, and they will make it easier for the doers to get things done.

The horrible truth is that the people that FEMA brings to the party are unlikely to be natural leaders. Natural leaders do not find themselves as low-level government employees.

These examples of petty bureaucrats arrive on scene and start following their scripts. Just like they were taught in class.

They start by making an inventory of the goods and capabilities they have on hand. According to the book, this is more important than actually seeing those goods and services being delivered to those in need.

A primary goal is to make sure that those most in need get the help they need. This means holding back on the supplies at hand, to have a reserve for when they find those in desperate need.

Because they are a management team, when they step in, they take over all the prepositioned goods and services.

Being management, they need to make sure that they are rested and prepared for the next day’s work.

As you might guess, this is written from the perspective of the petty bureaucrat. They believe they are doing good. They believe they know better. They believe they are the saviors.

The correct answer is that they should arrive with hat in hand and ask, “how can I help?”. Instead, they know they are supposed to lead, and leaders take control and bark orders.

FEMA is a failure at this point.

That, and they have been used to funnel money to illegal immigrants, makes it all the worse.

“We are from the government, we are here to help.” is a strong indication that it is time for SSS.

Or Cultures of Honor.

Most people in western civilizations understand the concept of Honor. Or, at least, they think they do. Most understand, “do the honorable thing.”

It is a question of right and wrong. It is a moral decision.

The honorable thing to do is to return the wallet you find on the sidewalk. The honorable thing to do is to protect the lives of the innocent over your own. The honorable thing to do is to put yourself between the bad guys and the innocents.

This is honor in western culture and civilization.

An “Honor Culture” or a “Culture of Honor” is not about doing the honorable thing. It is about personal honor.

Scotland was an honor culture for hundreds, if not thousands, of years. This is what led to clan wars. These people weren’t attacking other clans because they intended to take land or goods, so much as “honor demanded it”.

At some point in the past, the offending clan had done something to “dishonor” the clan. So the entire clan is at war with the offending clan.

There is new jargon, To “Dis'” somebody. This means to show them disrespect. To dishonor them.

Dissing somebody often escalates into verbal or physical violence.

You don’t disrespect somebody in an honor culture unless you are ready and willing to defend yourself. And to those members of an honor culture, you are the instigator.

Calling somebody the “N” word when not a member of that sub-culture is to dishonor them. It is to disrespect them. As such, you have invited violence upon yourself.

The Scots migrated from Scotland to the United States. Many of them came to live in the south. They brought their honor culture with them.

Thomas Sowell discusses this in —U.S.C. Title 26 - INTERNAL REVENUE CODE § 5845, (last visited Oct. 13, 2024).

One of the signs of an honor culture is a tendency to “defend my honor”. Dueling. When the south was fully invested in being an honor culture, duels were common.

Later, as the honor culture dissipated, the number of duels, both gun, knife and fist, decreased.

According to Sowell, that honor culture didn’t just disappear, though. It was adopted by the slaves. When the slaves became freedmen, they didn’t forgo that honor culture. Instead, they took it with them.

That honor culture survives today in “the hood”.

For the most part, honor societies in the west exist as a decoration we wear. It is blustering over a football game. It is taking a joking offense at some perceived slight.

In an honor society, you do not joke about some ones honor. “Them’s fighting words”

Other primitive cultures still exist as honor cultures.

It is dishonorable for a woman to have sex outside marriage. The woman’s owner is dishonored by this. Because his honor has been harmed, he is entitled to punish her. Like having her stoned to death.

He is dishonored if _____. Fill in the blank. A Jew defends himself and stops an attack. They have dishonored the attacker.

When I use the term “honor society” or “honor culture”, I am not talking about an “honorable society” or even a society that is governed by being honorable. I am talking of the horrific, barbarous, back world “honor culture” that hangs gays from construction cranes, and kills women who have been raped.

There are two basic types of devices, an embedded system, and a general system.

There are embedded systems everywhere. Your smart TV. The Chromecast you have attached to your “dumb” TV. Your coffee maker, your washing machine or drier.

These are a few of the embedded systems you use every day. There are some that are “critical” systems. Your car, likely, has an embedded system. If that system were to be modified, it could cause “bad things” to happen.

Medical devices are also considered to be critical systems. The computers that control your IV medical drip, even the automatic blood pressure machines or any of the machines that are used for monitoring are critical.

While the blood O2 monitor, attached to your finger, might not seem critical, if the values it is reporting are in error, your health care professional (doctor) could miss diagnose something.

Other examples of critical systems include: many military computer systems, voting systems, systems processing classified information, alarm systems, spacecraft control systems.

Your computer and laptop are not normally considered to be embedded systems, yet they have a part that is embedded. That is the BIOS on your computer and laptops.

Your phone and tablets are a sort of hybrid, where a large part is embedded, but there is an easy way to add other software.

Update A System

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I grew up in an innocent age of TV and movies. The heroes were the guys in the blue uniforms and the white hats. The lawyers were evil men working for evil criminals, or they were good men doing good deeds. The press was there to expose the truth, to give us the facts.

The whole truth and nothing but the truth.

What I learned about the court system was that everything happened in the courtroom. It was where all the excitement was. Paying attention because some lawyer was going to expose the truth at the last minute to make their case.

Even modern legal dramas suffer from the same tropes.

As I have been reading and listening, I’ve found that most of the hard work comes long before the jury is sworn in. The excitement is buried in hundreds of words and page after page of motions.

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We are a society of instant gratification. You go to Amazon, click two buttons, and the next day that thing arrives at your door.

Your kid sends you a written message from a different continent, three times a day. You snap a picture of your cat, develop it, do some touch up, decide you can do better, reshoot the photo, edit, and share it with your 42 followers.

When I was doing photography, I stared developing my own film and processing my prints. That way, I could see what I shot within a day of shooting.

The courts are not instant gratification. Not even close.

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B.L.U.F.
The babblings of a not lawyer about just how good a weekend order from the Ninth Circuit was for The People.
(1500 words)

There is a name that should be familiar to us, but which is not, Federal Judge Jack Weinstein. He sat on the Eastern District of New York district court from 1967 until 2020.

Why is he important? He was the federal judge that oversaw a number of mass tort cases. The one of interest to us, in the Second Amendment community, is the cases involving Diethylstilbestrol, or DES.

DES was prescribed to pregnant woman to reduce the risk of complications from 1940 through the early 1970s.

It turned out that it caused significant medical complications.

Of course, being America, once it was determined that there was an injury and that somebody might be at fault, lawsuits were filed.

But here is the thing, every pharmaceutical company made DES. Each of the pills was the same. It was almost impossible to tell the manufacture of a DES pill.

More than that, most people just don’t know. When I look at my medication bottles, there is no indication of who manufactured that particular lot of pills. I can go to my pharmacist and find out. On the other hand, I would have a difficult time finding out who manufactured the pills I took when I lived in Maryland. I’m not even sure what pharmacy I used, at that time.

This is where Judge Weinstein comes in. His name was pulled as the judge to hear the first suit filed in the eastern district of New York. From the start, it looked like he was sympathetic to the plaintiffs, the people suing. More suits were opened in the Eastern District.

Instead of a judge being drawn at random, the plaintiffs would request that their case be handled by Judge Weinstein. For judicial expectancy, these requests were granted. This is normally a good thing. This is what happened in California when Judge Benitez was the judge to hear so many Second Amendment challenges.

The defendants stood up in court and said, “Hey, it wasn’t me, and they can’t prove it was me. Dismiss me from the suit.”.

This is because no plaintiff could point to any particular defendant and prove that the defendant in question was the company that manufactured the pills that the defendant took. Since there was no way of figuring out which defendant was responsible for which plaintiff, it looked like the cases would be dismissed.

Judge Weinstein reviewed this and came up with a plan. His plan was a type of joint responsibility. He reasoned that for any particular year, each defendant held a particular market share. Company A held 50%, company B held 25%, company C held 15%, and D, E, and F held the remaining 10%. His ruling was that each company was responsible for a portion of the fine based on their market share.

Thus, for every $100 award, company A paid $50, company B paid $25 and so on.

But how did this intersect with the Second Amendment?

It turns out that Judge Weinstein was a rabid anti-gun person. There wasn’t a thing about guns he approved of, unless it was protecting his sorry arse.

The anti-gunners were not winning in the courts in ways to completely ban guns, but they reasoned that they could “get rid of guns” if there were no more sellers or manufacturers of guns. To this end, they started suing gun manufacturers and sellers.

And they filed in the Eastern District of New York. And they requested that the cases be assigned to Judge Weinstein because these gun suits were just like the lawsuits filed in the DES cases. Judge Weinstein gleefully accepted these cases.

Even if the defendants (good guys), won the suits, the costs of litigation were so high it drove smaller companies out of business.

This ended with Congress passing several bills to stop it, the current version is the PLCAA.

Lawfare

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B.L.U.F.
A quick update regarding some 2A cases kicking around. Touching on how bad case law begets bad case law.
(1200 words)

In June 2022, the Supreme Court issued the Bruen opinion. This case answered one question: Is New York’s “proper cause” requirement for a CCW constitutional?

The Supreme Court answered with a resounding “NO!”.

In dealing with the question, they stated that subjective criteria was not acceptable. They went on to explain how they reached their opinion using text, history, and tradition. In the associated dicta, they told the Article III inferior courts how they should analyze any Second Amendment challenges.

It is important to understand that the Supreme Court gives explicit answers regarding the question they are answering and instructions on how the inferior courts can do it themselves.

When an inferior court says that the Supreme Court hasn’t issued an opinion on something, that is the court being cowardly, ignorant, or attempting to subvert The Constitution.

If the plaintiffs make a Second Amendment challenge, they are responsible for proving that the proposed conduct implicates the plain text of the Second Amendment.

To take just one example, a 16-year-old wishes to purchase a firearm. They are refused because they are underage.

The text of the Second Amendment reads; A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The state might argue that 16 year-olds are not part of the people for reasons. But this is not the first step.

The plaintiffs wish to purchase a firearm. All firearms are arms. Thus, the “Arms” requirement is met. They wish to purchase, possess arms. This satisfies “to keep and bear arms”.

They are a part of “the people”. That means the plain text of the Second Amendment is implicated.

If the state starts arguing that they are not part of the people protected by the Second Amendment, that is part of the second step: history and tradition.

Anytime the state is arguing that something is not an arm, or it is not being kept, or it isn’t bearing, or they are not part of the people, they are attempting to subvert the clear intentions of the Supreme Court.

Once the plaintiffs have proved that the proposed conduct implicates the plain text of the Second Amendment, the burden shifts to the state. The plaintiffs are done.

In that second stage, the plaintiffs can argue why particular regulations are not analogous, or not of the correct period. That is their job, to eliminate the regulations presented by the state from being considered.

Everything else the state brings up can be challenged as being irrelevant. If an expert is giving an opinion on legal matters, that is inappropriate. The legal experts are the attorneys and the Court, experts give opinions about non-legal issues.

The First Domino

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B.L.U.F.
What is the difference between an as applied challenge and a facial challenge to law?
(1550 words)

In Antonyuk v Hochul, the plaintiffs challenged parts of New York’s CCIA on facial grounds. This is to say, they claimed that the challenged legislation is always unconstitutional.

For example, it has been established that a ban on all handguns is unconstitutional. There is no case in which it would be considered constitutional. The state argues around the fringes, if a ban on all handguns is unconstitutional, how about a ban on some guns?

Consider a different civil right, a right protected by the constitution, the right to assemble for free speech.

In my town we have a commons. It has a pretty gazebo and during the summer months they will have open air concerts and art festivals and discussions and all sort of assemblies. If I want to show up and start playing my fiddle (badly) at the gazebo, there is no issue.

On the other hand, if I would like to have an ‘event’, I need a permit.

The first question asked is, “Does this touch fingers with a core civil right?” The answer to that is an unequivocal “YES”.

Since the proposed conduct, having an event on the public commons, implicates the plain text of the First Amendment, it meets the first prong of a facial challenge.

Permitting is well established, so only a lawyer interested in fleecing me would take the case, but assume it got into court.
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B.L.U.F.
Circuit Judge Ho of the Fifth Circuit writes a letter to the Supreme Court explaining what they did in Rahimi and why the Fifth Circuit’s opinion should stand.
(1600 words)

When I read some arguments made by the state, I want to scream about how bad those arguments actually are. The more I read and understand, the more I would like to learn how to write and submit my own amicus curia briefs. The problem is that I would need a lawyer to submit them through.

Besides all of us poor regular people, there is another group of people that are not allowed to submit briefs to the superior courts. That is the judges themselves.

Judge Benitez doesn’t get to submit a brief to the Ninth Circuit rebutting what the state said in Duncan. He is limited to what he wrote in his final judgement. He has developed a robust history in Duncan, but he doesn’t get to point out what parts of that history are important.

Circuit Judge James C. Ho sits on the Fifth Circuit court of appeals. He is part of the group that decided a number of the Second Amendment cases that have been through the Fifth Circuit. That includes the Rahimi case.

On Friday, the 17th of November, the Fifth Circuit court issued their opinion in US v. Kersee, a case that has nothing to do with the Second Amendment. Kersee is a case involving domestic violence allegations.

Case History

Starting from the beginning, Mr. Kersee is a strong candidate for the J. Kb.’s pedophile rehabilitation program. He pled guilty to one count of unlawfully transporting a minor over state lines with intent to engage in sexual activity. He was sentenced to 10 years in prison and 5 years of supervised release.
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