Legal

The Supreme Court issued their opinion on Trump’s use of tariffs. In a 6-3 decision, The Court ruled against Trump’s use of the IEEPA as unconstitutional.

Thomas and Kavanaugh filed dissenting opinions. Alito and Thomas joined with Kavanaugh.

Jackson was off the rails, again, in her concurrence.

We interpret the constitution’s plain text and this nation’s tradition of regulations. The meaning of the constitution is as it was understood when it was adopted. The meaning of amendments is as it was understood when the amendment was ratified. The meaning of the 14th Amendment is as it was understood when it was ratified. Its meaning when it was ratified was that the constitution, as amended, applies to the states, meaning what it was understood to mean when adopted and ratified.

In other words, the 14th Amendment is understood to be incorporating the federal constitution, not as redefining the understanding of the constitution or previous amendments.

Jackson feels that it is important to look at and evaluate the legislative history of a regulation, rather than the plain text and how that text was understood.

The Question

Given all of that, how do you feel about this decision?
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Rob Bonta has been screwing over The People of California since the day he took office. He took over exactly where his predecessor left off, working hard to deny The People of California the ability to acquire, carry, and use guns.

Around nine years ago, Virginia Duncan wanted to purchase a standard magazine. California refused to sell her a standard magazine because the state had decided that standard magazines are too dangerous.

Virginia, having a better than 3rd grade reading comprehension level, understood that “shall not be infringed” meant that the state has no say in what arms she possesses or wishes to acquire. Thus showing that even a 3rd grader has a better comprehension of our rights than the state of California and Rob Bonta.

Virginia filed a civil rights case against California. The case was assigned to Judge (Saint) Benitez. He found the magazine ban was unconstitutional.

He used a text, followed by history and tradition, as Heller directed to reach his ruling. Because he was under the Ninth Circuit, he layered it in a scrutiny decision, where he used strict scrutiny.

His ruling placed an injunction on the state, and The People of California celebrated freedom week by buying as many magazines as were available to be had. Online vendors flatly told customers that magazines being shipped to California had priority and that others would just have to wait.

The state came back and asked for an administrative stay.

Benitez granted the stay with the explicit ruling that magazines that had already been purchased but not yet received or that had been received were exempt from California’s infringement.

A 3-judge merits panel affirmed (agreed with Benitez) that the magazine ban was unconstitutional. They left the administrative stay in place because everyone knows that the state was going to petition for an en banc panel and it would be granted.

No en banc panel of the Ninth Circuit has ever found a Second Amendment infringement. Every case they have heard on gun control, they have ruled in favor of the state.

Which was precisely what happened. The Ninth Circuit heard the case en banc and ruled for the state. This was appealed to the Supreme Court.

The case became one of the dozen or so Second Amendment challenges at the Supreme Court, waiting for cert or denial of cert. New York State Rifle and Pistol Association v. New York City was granted cert. New York State then mooted the case.

In the end, the Supreme Court took up New York State Rifle and Pistol Association v. Bruen. In June of 2022, they issued their opinion in Bruen

Once Bruen issued, The Court then granted cert to a number of other Second Amendment cases, vacated the lower (circuit) court’s rulings, and remanded the cases back for review in light of Bruen.

A GVR, like this, is explicit instructions to the inferior court to rethink their original opinion, considering the instructions provided in the latest case.

A GVR is clear. If the inferior court had gotten it right, the Supreme Court would have denied cert, and the case would be over. The remand when the inferior court got it wrong.

The rogue inferior courts refuse to see it this way and continue to support infringements.

It reminds me of when I was going to arbitration over some property. I was offered $16k as a buyout. The offer came with the calculations showing how the co-owner reached that number. I pointed out that his calculations were in error.

The next week, at arbitration, he offers me $16K as a buyout. This time with a different set of (bogus) calculations. I showed how his numbers were still bogus.

The next week, $16K again. Different set of calculations. I again called him on his bogus calculations. I then stated, “$16k is all you have to offer, isn’t it? It isn’t justified by anything. It is all you have to offer.”

It turned out that his wife’s sister had given them $16K to buy me out.

These rogue inferior courts act the same way he did. They know the result they want, they get that result using some justification. When they are called on the inherent error in their justification, they don’t do it right. They get the same result using a different set of justifications.

It doesn’t matter what the rules say; they will always get the result they want.

Because the case was coming back to the Ninth Circuit, the same en banc panel took the case, again.

It is important to understand that the Ninth Circuit is so large that it is impossible to get all the judges to sit to hear a case. Instead, they draw judges at random to create an “en banc” panel of 11 judges. Smaller circuits have all active judges sit for an en banc case. This means the results of an en banc panel in the Ninth Circuit are random, leaning heavily towards the state.

The en banc panel decided that they needed more fact finding. They sent the case back down to the district court.

The district court did the right thing and once again found that magazine bans are unconstitutional.

The Ninth decided the district court was wrong.

Today, Duncan goes back into conference at the Supreme Court. It is in the same place it was in 2022 before Bruen.

Watching court cases can be interesting. Watching the legal system can be interesting. Watching the system is crucial.

Back in 2022 there was the case of New York Pistol and Rifle Association v. The City of New York. This question in this case involved the right of the people of NYC to take their permitted firearms out of the city.

As the laws were at the start of the court case, a person had to get a permit to possess a firearm. They were then given permission to have that firearm on their premises, to transport it in a disabled manner to one of seven gun ranges in NYC, where they could shoot.

They were not allowed to take the gun out of the city to other ranges nor to competitions.

The plaintiffs, the good guys, argued that they owned property outside of NYC where they wanted to possess their firearms. The city and state argued that if they wanted a gun in those places, they should buy a second gun and store it in that other place, leaving it unattended when they were in the city.

The city and state of New York argued this case vigorously through the district and Second Circuit Court of Appeals. All the inferior courts found that this infringement was consistent with the Second Amendment and Heller.

When the Supreme Court granted cert, the city and state backpedaled so fast that it made Road Runner cartoons look slow in comparison. The city changed the regulation. The state passed a law saying that the city law was illegal, and the lawyers argued that the case was moot.

The Supreme Court agreed that the case was mooted, and the case was closed.

We thought this would be the end of Second Amendment cases in the Supreme Court that year, but the court choose to hear Bruen and we got one of the best opinions on the Second Amendment in years.

Watching The Case

I was watching this case. When it was mooted, I was concerned. When Bruen was decided, I was through the roof with happiness, tempered by my knowledge that there were going to be Bruen tantrum response laws.

What I didn’t realize at first was that this was a stepping stone.

We don’t get back our rights instantly. It is a war. A series of battles where we win, over and over again, only to face another battle.

Bruen is just about the right to carry outside our homes without being subjected to subjective licensing regimes.

Until you realize that it is that stepping stone.

When the Fourth Circuit heard oral arguments on Bianchi shortly after Bruen issued, I was sure we were going to see a rapid advancement of good Second Amendment Case law.

That case was heard and disappeared. The next case was Antonyuk v. Hochul. We had wins at the district level, and it looked like we were going to get wins at the appeals level. But we didn’t.

Watching cases was a disappointment. We were stuck in the same court of bad opinions as we were before Bruen. It didn’t seem like anything had really changed.

Watching the Legal System

From this I started to notice patterns. When Chicago’s infringements, oops, Illinois’s infringements were heard by the Seventh Circuit Court, a name popped up. Easterbrook. Why was his name familiar? Because he was the judge who authored the Seventh Circuit Court’s opinion in McDonald where he found that the Second Amendment didn’t apply to the people of Illinois, “Because the Supreme Court has never said that the Fourteenth Amendment incorporates the Second Amendment.”

This case also made it to the Supreme Court, where The Court proceeded to say, “The Second Amendment damn well does apply to the states, you moron.”

This is a web of legal decisions. Each layered on the last, making a stronger and stronger platform for The People to exercise their rights.

What I started to see is that there is a game being played by the infringing states. It wasn’t about winning; it was about not losing.

If a Second Amendment case makes it to this Supreme Court, The People will win. The three DEI hires on the Court are the wise Latino, Obama’s in-house lawyer, and “What’s a woman?” Jackson will not be able to convince any of the originalists to violate their morals or the law.

But what if we were to lose Thomas? If Hillary or Kamala were able to appoint another Jackson, the battle would be much more difficult.

The infringers aren’t interested in winning right now; they just don’t want to lose. They are waiting for the makeup of the Supreme Court to change to favor them instead of The People.

This is how come we saw Duncan GVRed to the Ninth Circuit Court, where they sent it back down to the District Court, where the District Court found that it was just as unconstitutional under Bruen as it was before Bruen.

Which means that Duncan still has not been decided. It is still up in the air with millions of dollars spent.

So, the infringers want to keep these cases out of the Supreme Court. One of the ways they do this is by arguing the ripeness of a case.

The gist of “ripeness” is that any controversy in law across this nation will have suits brought in different circuits. Until the circuit courts have had a chance to weigh in, the case is not ripe for the Supreme Court. The Supreme Court needs to know the opinions of the inferior courts to make good judgments.

The counter to this is when there is a circuit split.

A circuit split happens when two or more circuits come to different opinions on the same controversy. If circuit A says that assault weapon bans are constitutional and circuit B says that they aren’t, that’s a split.

In the First Circuit, they have found that MA’s infringements are consistent with the Second Amendment. So having a shell casing in MA without having the proper license/permit/permission is a felony, but cross over to NH and it isn’t an issue.

Two states with two different sets of laws, both “constitutional” according to the First Circuit, and no other circuit disagrees.

We are much more likely to see the Supreme Court take a case if there is a circuit split.

Watching the System

New Jersey had that tantrum after Bruen and decided to make as much of New Jersey a “sensitive” place, gun-free zones. It was very egregious.

The district court enjoined the laws. The administrative panel of the Third Circuit stayed most of the restraining order. When the case was heard by the merits panel, two of the three found that New Jersey’s laws were consistent with the Second Amendment and let the laws stand.

But the system worked. Trump managed to get Judge Mascott appointed to the Third Circuit. The day the case was to be heard by the en banc Third Circuit court, Mascott was sworn in at the Supreme Court, and then was in court to sit with the en banc panel.

We will win that case. And with that win, there will be a circuit split.

The system, appointing originalists to fill as many judicial positions as possible, is going to give us a win. And that win will mean that there will be bigger, nationwide wins.

But there’s more!

The Trump and Bondi DOJ seems to be for The People one day, and then argues for infringements the next day. It is enough to give a grown man whiplash.

For example, the DOJ is arguing that the registration requirements of the NFA should still apply, even if the tax is zero.

We all know this is BS. Trump ordered his DOJ to become defenders of the Second Amendment; why would they argue for the NFA? That’s just stupid.

Except it isn’t.

Trump ordered the DOJ to defend the Second Amendment. If Newsom were to become president, he is just as likely to order his DOJ to go back to infringing.

What the pen can do, the pen can undo.

On the other hand, if the Supreme Court were to rule that without the tax requirement, there is no hook for Congress to regulate suppressors and SBR, that is much more concrete.

It is a system. You need to look at all the moving parts to see just how complicated it actually is. You can’t just take a single snapshot and claim that is representative of the system. You have to look from many different angles.

In this analysis, I’m not going to be doing as much quoting. There are others that do so. Instead, I’m going to attempt to distill the argument or line of questioning.

Alan A. Beck, lawyer for the good guy

The Second Amendment is implicated. Hawaii has not met its burden to prove there is a historical tradition of firearms regulation that matches this law. This is a presumptive ban on The People’s right to bear arms, even if not stated explicitly.

Thomas: You argue that the law prevents access to about 97% of public areas? how did you arrive at that?

Beck: The entire package of laws is 96.4%, this law is less. We got that value from an architecture firm that went through public records of the County of Maui.

Sotomayor (interrupting Thomas): It’s not really 97%, right? This law is much less than that. People can carry in other places, Right?

All right. So you say that there is a constitutional right to carry a gun on private property?

Beck: Yes.

Sotomayor: I’ve never seen that right. I mean, I understand that there is a right to carry a gun on private property with an owner’s consent, express or implicit, correct?

Me: I did read it in the Constitution: the right of the people to keep and bear arms shall not be infringed. And she just said it, she gave it away. You have that right if you have the right to carry on public property if you have the owner’s express or implicit consent. And that is what property open to the public means: you have explicit consent to enter, and you have the implicit consent to carry.

The state of Hawaii removes that implicit consent to carry.

Sotomayor then goes on to try to conflate carrying where you are legally allowed to go with trespass. It is difficult to follow because she wants it to be difficult to follow. She is attempting to make the case about property rights. Which is not at question.

Nobody is arguing that private property owners can forbid trespass and can set rules for entering their property. “No shoes, no shirt, no service” is exactly that. A “No Guns” sign means I’m shopping somewhere else.

She then goes on to yap about the “custom” of carrying on private property with implied consent. She then pulls a quick one by trying to say that since Hawaii has a 200 year custom of forbidding firearms, this is the custom that should stand now. Beck fires back that it is a “custom of the nation”, not the state. Falling into her verbal trap.

There are no laws in this Nation’s historical tradition of firearms regulation that takes away that implied consent.

Sotomayor and Beck get into a back and forth regarding a previous Supreme Court case, McKee. Sotomayor claims it was talking about the customs of just the state of Missouri, while Beck points out that Justice Scalia used the term “Nation” multiple times. I’ll take Beck’s word over the second dumbest justice to sit on the Supreme Court.

She then tries to bring in laws from 1721, 1722. There’s a huge issue with this. The laws of 1721, 1722 are the laws of England, not this Nation.
Even if the laws were applicable, they all dwelt with closed lands. Lands that were not open to the public.

Barrett and Beck agree that Hawaii could pass a law that prohibited carrying on closed lands as a property right.

Dumber (Jackson) now opens her mouth. Justice Thomas takes off his glasses, leans back in his chair and waits for the magpie to stop making noise.

This is just a property right issue. Property rights trump Second Amendment rights.

Beck calls her BS saying the issue implicates the right to keep and bear arms. Jackson says it doesn’t. It is just property rights.

Gorsuch: This law destroys the right to bear arms in Hawaii. Where does this fit into the Bruen framework?

Beck: Carrying is implicated by this law. The burden must shift to state to prove a match with this Nation’s historical tradition of firearms regulation.

Sotomayor: So the 96% doesn’t really matter? There’s no means end scrutiny? Hawaii has a right to regulate a custom. That means the Second Amendment isn’t implicated.

Using a 1763 for the colony of New York, they banned trespass on private land; that means Hawaii can ban carry on public land.

Sotomayor’s method is to talk over, to interrupt the lawyers she disagrees with. She doesn’t listen to what Beck has to say.

She is actually doing performative art. She and Jackson are both saying things that can be quoted later and which they will quote in their dissent about why this was wrongly decided.

Sotomayor ran this guy out of time. And even when Chief Justice Roberts says he is out of time, Sotomayor talks over Roberts for another paragraph or two. Beck tries to answer; Sotomayor cuts him off before Roberts cuts Sotomayor’s line of questioning off.

Roberts uses a gas station and a home on the side of the road to highlight that there is a difference between private property closed to the public and private property open to the public. Beck does a fantastic job of pointing out that all other rights extend to the door. As Roberts says, “A stranger can walk off the sidewalk and go up to the door?” Beck, “Yes, up to the door, Your Honor”

Alito asks if there are any other objects besides guns that a person may not possess when they enter private property open to the public.

Sotomayor goes back to the Hawaii custom of denying rights to prove that they should still be able to deny The People the right to keep and bear arms.

And she is snarky about it; it looks like she yanks some number out of her ass: So 78 percent of Hawaii residents and 64 percent of Hawaii gun owners do not think that loaded concealed weapons should be allowed into businesses at all, correct?

Beck: I’m unaware of that statistic, Your Honor.

Sotomayor: “I wasn’t aware of your 97 — 96 point — percent number”

She would have been aware of his numbers if she had read the fillings. Thomas knew. Thomas mentioned it, not Beck.

Kagan: Hasn’t the state met its burden with the many historical regulations it has cited? And they have multiple references to legislation that flipped the default.

Beck: No. The poaching laws limited carrying on private lands for poaching, not for self-defense. The other laws cited are black code laws. Laws designed to discriminate against blacks. We’ve moved past that.

Kagan: Well, yes, they are anti-pouching laws, and yes, they did allow people to carry for self-defense, but that is close enough to banning armed self-defense on private property, right?

Kagan: You see, the anti-poaching laws were about preventing injuries to private property, and Hawaii’s law is about preventing injuries also.

Me: No, anti-poaching laws were to stop people from stealing food on the hoof.

Beck: This entire line of questioning is irrelevant. The laws you are referring to were closed property; Hawaii’s law is for property open to the public.

Gorsuch: The laws being referenced are a New Jersey 1771 anti-poaching law. The other is an 1865 Louisiana law that a Reconstruction governor explained was aimed at the freedmen. A black code law. Do you think that black codes should inform our decision-making?

Beck: Hell no.

Gorsuch: Well, the state claims it is a dead ringer for this statute.

Beck: The 1865 law was expressly passed to discriminate against African Americans that were newly freed slaves. And I just don’t see how a law like that can be used to be analogized to a modern-day law, this modern-day law, Your Honor.

Barrett asks if Beck agrees with everything the government said in their brief. Beck thinks she is talking about the state of Hawaii. Barrett clarifies that she is speaking of the US federal government, which filed supporting The People and will be arguing next. Beck corrects himself and there is a bunch of laughter.

Barrett: The government that’s on your same side.

Beck: Yes, I understand.

(Laughter.)

Beck: I agree with every —

Barrett: I’m not asking you to throw your case away.

(Laughter.)

Beck: I fully endorse the United States’ brief, Your Honor.

Barrett asks for clarification regarding “open to public” and “closed to public” and the 1865 black code law. Beck replies that there might be something to discuss there, but the fact that it is a black code law means it is not part of this Nation’s historical tradition of firearms regulation.

Jackson is back for another whiff at bat: Chief Justice Roberts asked about a gas station on the side of the road. We don’t get to enter that gas station because of a Constitutional right but because the owner of the gas station has given us consent. That consent has limits, and the owner can set those limits, and the state can set limits, right?

Beck: You have a constitutional right to carry your firearm onto that specific gas station.

Good going, Mr. Beck. Don’t let Jackson distract you.

Goodness, is Jackson dumb or just incompetent? She is attempting to set a word trap, and she’s nowhere near as good as Sotomayor, and Sotomayor is bad at it. She denies there is a constitutional right to carry on private property. She then says that there is an implied license. Then claims that there is a historical tradition of requiring a license to enter private property.

This is so convoluted. Nowhere do you need a “license” to enter private property. She is using an obsolete definition where “license” is the same as “permission”. She then continues to use the term “license” to say that you require a license to enter. This type of language will be used in the dissent to justify Hawaii’s licensing (permission) scheme.

Cringe warning

Jackson:

(I had to take a break after that.)

She goes on, saying that when Thomas wrote “this Nation’s historical tradition of firearms regulations” he said that we were bound by history. Since 1865 is part of our history, then that should be part of the Bruen test. Which also means that any law ever passed becomes part of our history and thus becomes justification for all future infringements, even if that law is later struck down.

Ms. Harris is the Principal Deputy Solicitor General for the Federal DOJ. She was acting solicitor general before D. John Sauer was confirmed as solicitor general. She is now the second in command of the office of the solicitor general. John Sauer was presenting on a different case the day this case was argued.

In other words, she’s way the heck up there. Trump->Pam Bondi->John Sauer->Ms. Harris. And she’s arguing for us!

Harris: Hawaii is lying about why they passed this law. It is aimed at only legal gun owners with CCWs. There are no other items these laws affect. Besides, the only law they can use to support their current law is an unconstitutional black code.

There is back and forth regarding pretextual laws. The example given is of English game laws. These laws were to “preserve game” but were designed to prevent commoners from hunting.

The gist is that when looking for an analog firearm regulation, the real reason is looked at, not the pretext. Hawaii says it is protecting property rights for safety reasons. Just because they say it is for safety and property rights doesn’t mean that laws dealing with property rights and safety are a match to this law.

You have to look for the true reason for the law. In this case, the vampire laws are designed to keep people from carrying because there are too many places where it is illegal.

Kagan opines that The Court doesn’t look at the motives a law was passed. Harris fires back that if the stated purpose and the text show a fundamental mismatch, it belies the asserted motive of the legislature.

Kagan says The Court can’t do that because that would be means-ends scrutiny.

It is clear that the three crones of the Supreme Court are trying to neuter Bruen.

Kavanaugh has had enough of this.

Harris: Absolutely!

This is a trap that “smart” people fall into. They get distracted by the details. Instead of focusing on the big picture, they get lost in the weeds, and then instead of deciding based on the big picture, they end in a major fight over details.

Harris is fighting a different battle here, though. She is fighting to make it clear that doing an end run around the limits the Supreme Court sets out is not acceptable to the United States. She is clearly targeting New York, California, and the rest of the states that had Bruen tantrum response bills.

Kavanaugh is say to keep it simple. Hawaii didn’t meet their burden. Done and done.

Gorsuch brings up First Amendment case law that addressed a similar issue. Harris uses Lamont as her example. In Lamont they flipped the script on mail delivery. The rule was that you got mail of all sorts unless you explicitly said “no”. The law in question in Lamont flipped it to require a person to explicitly request mail on a “very easy-to-send postcard”. This was firmly rejected by The Court.

Jackson is back with another attempt to make this only about property rights. Harris gives a perfect example of how stupid this argument is. She points out that today a politician can have somebody come to your door to campaign. But if this law was followed in a First Amendment situation, the homeowner would have to post a large sign on their property before that door knock could take place.

Alito sends a soft pitch asking about why antipoaching laws are not an appropriate analogue. Harris knocks it out of the park. You know why.

Alito then asks what is the purpose of the Second Amendment right is. Harris, self-defense, and other lawful purposes.

Alito focuses on Heller, which he wrote, to point out that the wording was about self-defense but that other lawful purposes also existed. Harris does a good job in the answers.

Sotomayor is back. Still attempting to make it all about property rights and the owner’s consent. She tries to use Hawaii’s tradition of screwing over The People’s right to keep and bear arms over the last 200 years as the tradition that allows Hawaii to pass the vampire laws.

Harris fires back, stating clearly that local customs in a state doesn’t allow that state to have its own Second Amendment. The meaning of the Second Amendment doesn’t change as you move from state to state.

Ok, this is good!

Harris:

It is almost as if Harris had this response lined up before it was asked. Great response.

In an interesting exchange between Kavanaugh and Harris, Kavanaugh asks about sensitive places as mentioned in Heller. He attempts to get Harris to agree with Heller as is. Instead, Harris goes with, We agree with the principle as stated that there are obviously sensitive places. You determine them with respect to the history of firearm regulation.

This is a massive statement by the DoJ. It says they are not arguing that sensitive places do exist, but that it isn’t as easy as saying, “That’s a sensitive place,” to get guns banned. You can’t declare the island of Manhattan a sensitive place. So New York declared Times Square a sensitive place.

Barrett asks about anti-poaching regulations. Harris points out that poaching was and is a problem.

In my state, and most states that I know, you have to post your land to keep hunters out. Hunters are presumed to be able to hunt on any land that is not posted. In my state the limit on where you hunt is 100 yards of an occupied dwelling. And they mean occupied as people living in, not that nobody is home.

JUSTICE JACKSON: So I guess I really don’t understand your response to Justice Gorsuch on the black codes. And here I thought that Jackson had gotten her “I don’t understand” under control. There is so much she doesn’t understand.

She’s arguing that black code laws, laws that have been found unconstitutional, can be used to justify more unconstitutional laws.

More tomorrow.

The process to get a case to the Supreme Court is difficult and expensive. For Eva Marie Gardner, she has done it with no visible help.

In January 2021, Eva Gardner was driving her car on I-270 in Maryland. This expressway extends out of D.C. to Frederick, MD. From there it is just a short distance into PA. It is one of the feeder highways for people that work in D.C. but who can’t afford to live in or near D.C.

While driving, an unlicensed driver “forced” her off the road with the use of a “PIT” maneuver. Both the other driver and Ms. Gardner exited their vehicles. Ms. Gardner stated that she displayed her handgun to deter him.

When the cops arrived, the alleged assailant spoke to them comely. The assailant was unable to provide a valid driver’s license, “proof of car ownership” which I take to mean registration, nor proof of insurance. Note, Maryland is a state that requires you to have car insurance.

Having listened to the two parties, the police let the alleged assailant depart, never to be heard from again. They arrested Ms. Gardner for violation of Maryland Criminal Law § 5-203, carrying a firearm without a Maryland permit.

She would have had an attorney for her criminal trial. She then went through the appeals process pro se, meaning without a lawyer, representing herself.

She had a valid Virginia CCW. If I’m reading her petition correctly, PA doesn’t recognize her VA permit either.

How common is this?

This type of case happens way to often. I refer to the state south of me as “Mordor.” If I were to accidentally carry a shell casing into that state, I would be committing a felony under MA state law. You are required to have a permit to own ammunition or ammunition components, much less an actual firearm.

Post Bruen, it takes around 9 months to get a non-resident CCW, which includes in person interviews.

People violating reciprocity laws is very common. There is a mall that is famous among CCW holders; there are parts of the mall that exist in freedom and others where you are subject to the crown of MA. You can be walking through a store, legally carrying your firearm, take a step over and suddenly you have committed a felony.

There is a scene in the movie Sergeant York where he is at the bar, orders a drink, and goes to sit down with it. The barkeep stops him because he would have crossed the county line into a dry county. He could drink whiskey all day long on one side of the room, but not the other.

That is what it is like. There is no path you can take out of VT, NH, and ME where you don’t have to pass through a gun hating state. MA to the south, NY to the west, and Canada to the north.

I would guess this sort of violation of imaginary lines on a map happens 1000s of times a day.

What makes this case interesting?

Absolutely nothing. This was a pro se case. The Supreme Court sees hundreds, if not a few thousand, pro se cases a year. Most are submitted by jailhouse lawyers. Most are summarily denied cert.

Ms. Gardner is likely a felon for this single stop. She’s no different from all the rest.

The case is so uninteresting that the state of Maryland officially declined to submit a response. This was submitted on an editable PDF. In other words, they couldn’t be bothered to even type something up. Somebody filled in the blanks in the PDF and sent it off.

The petition for writ of certiorari was filed on 2025/10/22. Maryland said “Not interested” on 2025/11/03. The case was distributed for conference 3 days later. (That’s fast).

On 2025/11/12 the Supreme Court “requested” a response from Maryland by 2025/12/12.

On 2025/11/19 the panic had set in. Maryland asked for a 45 day extension, claiming they had not looked at the case and were busy with 7 other important cases, two of which were also Second Amendment Cases.

The extension was granted.

Yes, the Supreme Court told the country, “Pay attention to this case”.

That simple request set the wheels in motion. The request was picked up in the weekly orders. People said, “Huh, what case is this?” and looked it up.

What happened?

Word got out in the Second Amendment legal community. Washington Gun Law mentioned it, then did a video on it. So did Mark Smith and a few others.

This means that on 2025/12/11 the first of the reinforcements showed up.

First up was the Second Amendment Foundation with NRA backing via the California Rifle & Pistol Association (CRPA) and more. The basic argument is that this Nation’s historical tradition of firearm regulation made exceptions for travelers when travelers were in locations demanding permitting or licensing.

The Heller Foundation points out that Supreme Court precedents permit only modest, ministerial burdens on visitors. Maryland’s “preclearance regime” is not modest. They point out that Maryland is forcing travelers to forgo one right for another. And that Maryland’s regime is an outlier.

Thank all the constitutional carry states for that bit.

Ted Cruz and his fellow Senators spoke up. Their contribution might be the better statement of the question. It will be interesting to see what the question SCOTUS presents when they grant cert.

This brief focuses on errors in the inferior courts opinions. The inferior courts used footnote 9 from Bruen.

The Cato Institute hammers on the right to travel is a constitutionally protected right. You have to either give up your right to travel or your right to armed self-defense.

Virginia, New Hampshire, and 22 other states provided their input as well.

What are we hoping for?

First, we are hoping that this case does not become an as applied opinion. We want the case to be granted cert and for The Court to find that CCWs are just like driver’s licenses. It doesn’t matter which state issues your license; it is good in all states.

When you add Constitutional Carry to the mix, this means that citizens of half the states in the Union would be able to carry anywhere in the states with just proof of residence in their home state.

This might also be a stepping stone for ending the bs about buying firearms out of state.

Many years ago my mentor explained to me how the director of the lab had almost gotten himself in trouble. The sort of trouble that ends with “I hereby sentence you to X years.” All because he failed to honor the color of money.

“Color of money” is a term of art within some parts of the government. In this case the lab had a considerable budget. They had been authorized by Congress to purchase a supercomputer. They ordered the supercomputer but were told it would be a while to get it. “A while” was measured in quarters.

The lab needed a supercomptuter now. They were offered a different model that could be delivered and set up within a couple of months.

This is what they decided to do. The problem was they required a few million dollars to buy this second supercomputer. This required another authorization from Congress.

The request was put in, money was coming, it would be there in just a few weeks.

The issue?

That second computer was very popular. There were other people who had cash now to buy it.

The lab director decided he used money that he was authorized to spend to buy the supercomputer. That money was marked (colored) for a different use later in the year.

A few weeks later, Congress authorized money for the second supercomputer, and all the accounts balanced perfectly.

The issue? Using the wrong colored money was technically not allowed. It was the sort of thing that gets you jail time if the powers that be decide they don’t like you.

It appears that this is what happened to Trump

the President relied on 10 U.S.C. §12406(3)

This statue has specific language: unable with the regular forces to execute the laws of the United States..

And that is what happened. The government argues that “the regular forces” means regular federal employees and law enforcement. The courts are saying that “the regular forces” means the military.

Since the administration did not argue that they could not take care of the problem by deploying the U.S. Marines, they had not met the requirement of “unable with the regular forces”.

Now this is where it gets interesting. The court did not address the question of “Can the administration deploy regular forces?”

The Posse Comitatus Act forbids deploying regular forces to enforce laws except under certain circumstances.

But, as Justice Kavanaugh pointed out, there are other statutes the administration can use to authorize the deployment of “the regular forces”.

In other words, it looks like the city of Chicago is about to get what they asked for, good and hard.

This poor dude was run through the system, chewed up and finally spat out. He was released to a halfway house yesterday.

What was his huge crime?

He gave the middle finger to the ATF.

There is a gizmo called a Lightning Link. This thing is supposed to function like an autosear in an AR-15. They were never very reliable and were offered more as a proof of concept than anything else. These are not drop-in autosears.

A drop-in autosear functions to carry a regular autosear but without a need for the third hole. They work well when they are a quality build.

The thing about the autosear is that very few of them were registered as machineguns. This was a $5-10 part that required a $200 transfer stamp.

There are likely no registered Lightning Links because they work so poorly that it is unlikely that anybody registered a $1 junk part, if it even had a serial number.

Matt Hoover had a semi-popular YouTube channel. He was making money from his channel. Somebody contacted him from Wisconsin, if memory serves, and together they came up with a thump nose at ATF plan.

To have a better understanding, understand that cryptographic “stuff” is or used to be an “arm” under export control. The same as an M1 tank. Exporting a cryptographic device would land you in jail, for a long time.

When RSA was first published, there was no issue. It was First Amendment protected to publish the RSA algorithm. The same is true with DES, IDEA, BlowFish, and later, AES. These were all protected speech.

What wasn’t protected, was software implementing them. The government ignored this for the most part until Pretty Good Privacy, or PGP.

This changed the game, in the mind of the government.

The idea behind PGP was that you would use public key cryptography, in the form of RSA keys, to encrypt a small block of information. That block would contain the actual cryptographic key to decrypt the rest of the message.

This means that people can publish their public key with no fear. You can publish it in a newspaper or any web page. Anybody can then send you a message that could not be decrypted except by the person with the matching private key.

To get PGP out of the country legally, they printed it in an OCR font and just walked through customs with a printed book. The book was fully protected by the First Amendment. Once in a country that had more reasonable cryptographic export laws, development continued.

Matt Hoover and his partner decided to use the same idea. Instead of an “Arm” as defined by export law, they would print a “machine gun” as defined by the NFA.

They contracted to have a credit card sized piece of stainless-steel laser etched with an image of a Lightning Link. Except they were going to play it safe.

When the manufacturer suggested they etch the image deep enough that the pieces could be “popped out”, they refused. This was just an etching.

What came out later is that they didn’t even get the dimensions right. Again, this was intentional. If you were to actually cut the pieces out of that card, they would not create a functional device.

There was no way to make that piece of stainless-steel into a Lightning Link without extensive machining and other information.

In other words, it was no better than an expensive piece of stainless-steel.

Matt and his partner were charged with distributing machine guns; they were found guilty, and both were sentenced to prison.

Matt has cancer and has been given a compassionate release, if I understand the reports correctly.

So two dudes who were exercising their free speech rights, thumping their noses at the ATF, found out that the ATF has no sense of humor and were sentenced to prison for a crime they did not commit.

Oh, what was the proof of them selling machine guns? The ATF lab destroyed multiple autolink cards before they managed to get a modified AR-15 to malfunction. They got a second shot when the hammer followed the bolt down and fired the second round.

This could not be made to happen in any reliable way. In other words, they broke an AR and claimed it was a machine gun.

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.

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.

This is another Rahimi in the making. In Rahimi, The People didn’t lose, but our win was limited. Chief Justice Roberts wrote the opinion, leaving weasel words for the infringers to use against us.

The often quoted statement in the legal business is, “Bad facts make bad law.”

The Fact Pattern

From the indictment:

This is it. He was arrested and charged under 18 U.S.C. §922(g)(3) because a search of his parents’ home found pot and a handgun in his possession.

The state explained the search this way:

It is important to note that promethazine is not a controlled substance. It is a prescription-only drug. IANAL, I have no idea how that relates to buying and selling controlled substances or things like cocaine.

It looks like his family were mild drug users. Cocaine and marijuana being their drugs of choice.

The statement “Hemani confessed that he had purchased the 4.7 grams of cocaine that was found…” may not be a fact in evidence. As far as I can tell, none of this statement has been determined to be factual, but, again, I am not a lawyer.

The state goes on to say that only “law-abiding” citizens are part of The People protected by the Second Amendment. This is a moronic take on Heller and Bruen. Rahimi had not been decided at the time of this filing. If Rahimi had been decided, the fact that Mr. Rahimi, a bad, bad man, was still considered to be part of The People protected by the Second Amendment would hold in this case.

Even though the state claims that Mr. Hemani is not a part of The People, they then say that the standard litany of “in the terror” and “while intoxicated” and other safety regulations are a match.

Here is the interesting thing: in the state’s entire section on meeting their burden of proving a match to this Nation’s historical tradition of firearm regulation, they did not cite a single firearm regulation. They didn’t cite a single regulation.

Instead they cited books of “expert” opinions. This does not count towards meeting their burden.

The Defense

Mr. Hemani filed a motion to dismiss the charges in an as-applied and facial challenge to §922(g)(3) as a violation of his Second Amendment protected rights. He also challenged under the Fifth Amendment on a vagueness claim.

The magistrate judge in the case heard the argument to dismiss and wrote a recommendation to the court.

The magistrate immediately finds that Mr. Hemani is part of The People. He is a U.S. Citizen who has resided in the U.S. his entire life.

This single finding shifts the burden to the state to prove that §922(g)(3) has a match in this Nation’s historical tradition of firearm regulation.

The magistrate continues, finding that intoxication laws are not sufficiently analogous to 18 U.S.C. §922(g)(3). He also rejects Reconstruction-era state laws as being too late in time.

It was interesting to me because these historical regulations were used in the Wolford case out of the Third Circuit. I used a less formal presentation to knock the same laws out of contention there as the magistrate does here.

In conclusion, the magistrate recommends that 18 U.S.C. §922(g)(3) be found unconstitutional after Bruen.

Later the district trial court granted Mr. Hemani’s motion to dismiss on the ground that 18 U.S.C. §922(g)(3) is unconstitutional as applied to Mr. Hemani.

Because the court found §922(g)(3) didn’t apply to Mr. Hemani, they dismissed his facial challenge as moot. In other words, Mr. Hemani won, but The People did not get a piece of that cake.

The state appealed.

The Fifth Circuit merits panel affirmed (agreed with) the district court.

In my opinion, this was an easy out. No inferior court really wants to say that any part of §922(g) is unconstitutional on its face. To do so would be to break so much of the gun control legislation in this country.

On Petition For Certiorari

Interestingly, the state didn’t immediately appeal to the Supreme Court. Instead they requested an extension while they considered the appeal.

In the end, the DOJ petitioned The Court for an answer to the question:

Most of the DOJ’s argument is a repeat of out-of-time-frame regulations, intentionally conflating “temporary” with “lifetime” prohibitions. As Mr. Hemani pointed out, being found guilty under §922(g)(3) means that you are now prohibited under §922(g)(1). Thus, (g)(3) is a lifetime prohibition.

The state then brings up §925(c). This is the method by which a person can get their Second Amendment protected rights back.

There are more than a few issues with this. Until very recently, and it still might be the case, the U.S. Congress had not allocated any funding towards implementing §925(c). You can request your rights back, but there is nobody to process your request. Therefore, no getting your rights back.

I believe that this might have been addressed in the current budget. If so, this allows this argument to stand. Actually, if I had read the next paragraph, the DOJ says just this, That program was effectively disabled from 1992 until 2025…

Unfortunately, to use §925(c), you have to admit to a violation of §922(g). That doesn’t sound like a wise thing. If the government decides you don’t get your rights back, you’ve admitted to a crime, for which you can be punished.

Certiorari

• Petitioner’s Brief on the Merits: Due December 4, 2025
• Amicus Curiae Briefs in Support of Petitioner or Neither Party: Due December 11, 2025
• Respondent’s Brief on the Merits: Due January 3, 2026
• Amicus Curiae Briefs in Support of Respondent: Due January 10, 2026
• Petitioner’s Reply Brief: Due February 2, 2026
• Oral Arguments: Expected in March 2026 (not yet scheduled)

This will be a big case.

IANAL Analysis

There are some serious problems with this case. Mrs. Hemani, the mother of Ali, is an active Muslim. A real little Satan, big Satan, martyr-loving barbarian. She was interviewed in Iran, telling the world that she wanted her sons to become martyrs. She made Facebook posts saying the same thing. All in all, she is a piece of garbage, exactly the sort of person I wish we could deport.

There does not seem to be any facts in evidence that Ali Hemani is a drug-dealing piece of garbage, but the district court detained him for the duration of his trial. He’s not a good person.

This Supreme Court is a law and order court. This administration is a law and order administration. This means that Mr. Hemani deserves to be imprisoned for being a despicable lowlife human.

This does not mean that it is constitutional to do so.

By stating the question as an “as-applied”, the DOJ is giving The Court an opportunity to find a way to throw Mr. Hemani in prison for up to 15 years while not messing up the progress we’ve made in Second Amendment jurisprudence.

We want Justice Thomas to write the opinion for Wolford v. Lopez. We don’t want Chief Justice Roberts writing another one of his easily twisted opinions here. Justice Alito would be a good choice.

Regardless, I expect a splitting of the baby. I expect we will hear more about “temporary” and “non-violent”, building on Rahimi.

I’m also hoping that we see another clear statement that “the plain text” is a simple test; the inferior courts got it right.

We might even see more on what time period is the correct time period for analogous regulations.

In short, I’m hopeful but not expecting this to be a total win for The People.

Wolford is in an interlocutory state. They are appealing a preliminary injunction.

The purpose of the trial court is to gather evidence, hear legal arguments, and then decide based on evidence and the legal standing.

What the Supreme Court has said is that Second Amendment challenges do not need evidence. They are legal decisions, decided by the courts.

The law says “x”. The challenger says the plain text of the Second Amendment covers the conduct regulated by the law. The burden shifts to the state to show that the current law is consistent with this Nation’s historical tradition of firearms regulation.

There is no evidence to present. The court decides if the plain text covers the conduct. The court decides if the government has proven a history of firearms regulation that matches the current law. If the state fails to meet its burden, then the law is ruled unconstitional.

If the state wishes to bring in expert testimony regarding this Nation’s historical tradition of firearm regulation, that expert must be a lawyer. Not only must they be a lawyer, they must be part of the case.

Friends of the court can express their opinion, but the only place those opinions have any weight is if they are legal arguments regarding regulations from the time of the founding or somehow relevant to finding that the conduct is not covered by the Second Amendment.

At this point, everybody in Wolford has agreed the plain text of the Second Amendment is implicated. The state can present their arguments to the Supreme Court just as easily as to the trial court. There is no value the trial court will add to the analysis the Supreme Court will do.

Which leads us to, when will we hear back from the Supreme Court?

Cert was granted on October 3, 2025. Per rule 25 of the Supreme Court, the Petitioner (Plaintiff) must have their briefing in within 45 days. November 17, 2025. It is unlikely that this date will be pushed. Amici briefs supporting the Petitioner are due 7 days after.

The Respondent’s (defendant’s) brief is due 30 days after that, on December 17th. Again, Amici briefs the Respondent or neither are due 7 days after.

The Petitioner gets to reply to the Respondent’s brief. That is due 30 days after the respondent dockets their brief, putting us at January 10, 2026.

If everything goes as scheduled, oral arguments will be heard in February, with the opinion issuing in May.

I expect we will see at least one other Second Amendment case this term. If the Court is looking at Wolford to address sensitive places, then there will be no other sensitive places challenges heard.

That leaves a case dealing on what “arms” means. When that case is heard, they will address the proper usage of the “in common use for lawful purposes” shortcut to a Second Amendment win.