Case Analysis

B.L.U.F. — Judge Rudolph Contreras believes that banning magazines with more than some magic number is constitutional. This leads to another WTF post analysis of a Judge’s opinion.

The Question

Is D.C.’s LCM ban Constitutional?

The ban basically says that it is illegal to possess, sell, or transfer — D.C. Code § 7-2506.01(b) a magazine that holds more than 10 rounds. The exception is for tube feed .22 caliber magazines.

Background

This duffus had to go out and find another judge who is just as ignorant as he is in order to make a statement as stupid as saying that attaching a “large capacity magazine” to a handgun makes it into a semiautomatic.

He is quoting the memorandum and opinion out of the District Court of Rhode Island. He had this to say about an “LCM” challenge.

Judge John J. McConnell, Jr, chief judge of the District Court of Rhode Island

The Supreme Court has not said anything about magazines being arms, which is what allows this level of disingenuous reasoning. Regardless, reading the Ocean State Tactical opinion was an exercise in self-control. Breaking monitors does not do any good. As Mark Smith said in a video the other day, when the Judge is a Firearms person, it shows. In the same way, when a Judge is ignorant of even the most basic aspects of a firearm, we get hurt.

It is easy to tell when the state is lying when you have personal knowledge of the subject, it is harder when you are trying to figure out whose experts to trust.

Standing

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B.L.U.F. When a family is hurting, they want somebody to pay. It is easier to put that anger against a company than a dead body. Especially when there are blood vultures at work.

History

On April 15, 2021, some asshole entered the FedEx facility in Indianapolis, Indiana, and proceeded to start shooting. Eight people were killed, and more were wounded. The asshole then killed himself.

He had two rifles with him, both AR-15-style semi-automatics.

Shortly after, the blood vultures started to congregate. President Biden had flags flown at half-mast. The usual suspects jumped up and down screaming that guns were the problem.

To this day I’ve never had a single firearm give me a motive for anything it has done. That’s because all of them are inanimate objects. Any evil attributed to a firearm is a figment of a human’s mental derangement.

Bains v. American Tactical, Inc

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B.L.U.F. Another case where a Judge used Bruen to come to the correct decision. This This one is §922(g)3 and §922(d)2. This is a criminal case in front of a US Federal Judge for the Western District of Texas. It highlights how case law works.

History

On December 28, 2021 the El Paso Police Department responded to a 911 call. Transcripts are not available nor needed. When the police arrived they heard several gunshots and observed Paola’s husband with a shotgun at the neighbors house. The police then arrested Paola’s husband.

From this they managed to get permission to conduct[ed] a protective sweep of Connelly’s house &mcite; Order on Motion for Reconsideration P. 1. The cops found evidence of firearms and marijuana. From this they called in the ATF.

The ATF searched the house and found 1.2 grams of marijuana, 0.21 grams of marijuana extract, 27.74 grams of “THC Edible” and 37.74 grams of suspected psilocybin — Id. as well as multiple firearms and ammunition.

Paola through her husband under the bus, accusing him of smoking crack. She was then asked about her own drug use and told the cops …she uses marijuana on a regular basis “to sleep at night and to help her with anxiety.” — Id. at 2.

If this was the locals then it would have likely meant nothing more than the loss of her pot. Because the feds were involved, it now became a felony charge:

The second count, transfer or sale to a prohibited person is charged because the lived together. Since he had access and could have gotten the firearms the state argues that she had transferred the firearms to her husband. It is unclear who owned the shotgun he used.

October 18, 2022 Paola filed to have the charges dismissed. Her argument was that post Bruen §922(g)(3) and §922(d)(3) were unconstitutional under the second amendment because the denied her rights to keep and bear arms while the state was unable to find an similar regulation from the founding era. She also argued that the law was unconstitutional under the fifth amendment because it was vague. What does addicted mean? What does “user” mean?

She points out that under the dictionary definition, user could mean anybody that ever took a toke.

Her motion to have her indictment dismissed was denied on December 21, 2022.

The Second Try

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B.L.U.F. Those scary ammosexuals want to go bang fast but that’s scary because going bang fast is scary. So let’s ban scary bump stocks and get taken to the Supreme Court for infringing on the core civil rights of The People

The question

This case is not a second amendment case though it is a constitutional case that impacts us. Mr. Cargill (good guy) is sueing to overturn the ATF’s bump stock ban. He is asking the court to determine if:

1. Did the ATF violate Article I, §§ 1,7 and Article II §3 by amending congressionally approved statutes
2. Did the ATF violate Article I §1 and Article II § 3 non-divestment
3. Did the ATF violate Article I §1 and Article II § 3 separation of powers
4. Did the ATF violate Article I §1 because they did not have the constitutional authority to ban bump stocks
5. Did the ATF violate the Administrative Procedure ACT 5 U.S.C. §§ 706(2)(A),(C) by exceeding their statutory authority
6. Did the ATF violate the Administrative Procedure ACT, 5 U.S.C. § 706(2)(A) by making an arbitrary and capricious rule

This was case was filed on March 25, 2019.

What this comes down to is that Mr. Cargill is asking to court to find the final rule banning bump stocks to be enjoined because the ATF did not have the authority to make that rule the way they did.

Cargill demanded a trial by jury but it looks like only a bench trial was granted.

District Court Findings

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

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

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

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

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

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

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

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

The Question

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

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

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

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

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

In order to win the case, the state has to prove only one of the following:
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B.L.U.F. An example of winning in court. Oregon’s legislature rushes to moot cases and to fix parts of Measure 114.

H/T Bh.Z and OFF

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

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

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

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

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

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

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

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

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

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

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

Oregon Senate Bill 348 – Amended

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B.L.U.F. A big win out in California where parts of the Unsafe Handgun Act were enjoined. If this injunction stand it is possible that new handguns will be added to the California Roster for the first time since 2013. Side note, the say that there are some 800 handguns on the roster, this is misleading. A firearm can be on the roster multiple times because each sku is considered a different handgun. I.e. a changing the finish of a handgun makes it a different handgun in the eyes of the state.

The Question

On 2022-08-01 the plaintiffs(good guys) filed a Complaint for Declaratory and Injunctive Relief in the Federal District Court of Central California. The complaint asks does the California Unsafe Handgun Act (UHA) violate the Second Amendment by denying The People of California access to new firearms in common use throughout the country? and does the UHA violate the Commerce Clause by interfering in interstate economic activities?

Or as the plaintiffs put it:

and:

On 2022-09-22 the parties agreed to drop the second question regarding discrimination against interstate commerce.

The defendant response consists of nearly 18 pages of the Attorney General denies each and every allegation unless they are admitting to a statement of law. In that case he still denies each and every allegation and denies even the quoted regulation if it is misstated. For other paragraphs he says he just doesn’t know.

In short the AG’s answer is “Nope.”

The state then claims affirmative defenses. An affirmative defense is when the other party is required to prove. The first is that the state claims that the plaintiffs failed to state facts sufficient to bring action against the state. Given that the state denies all the allegations this makes sense.

Then there is that old bugaboo. They claim that the plaintiffs lack standing and if they did they there are adequate remedies within the law for their complaint.

The Stages

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B.L.U.F. Weird 2A case analysis. The Plaintiff(good guy?) charges that the cops removed him from his car, detained him, did a warrantless search of his vehicle, stole some cash. The Defendant(the state) claims that the presence of a legally carried firearm was justification for the search. Currently in the Second Circuit Court of Appeals waiting judgement.

History

Around 2043 on 2018-11-12 Basel Soukaneh was pulled over to the side of the road with the motor running. He was looking up a GPS location of a property he was considering buying.

He was in a bad part of town where bad things happen so when Officer Andrzejewski noticed the car pulled over to the side with the engine running he performed a “traffic stop”.

When he started his investigation Mr. Soukaneh announced that he had a permit to carry and that he did have a firearm with him in the car. At this point Officer Andrzejewski removed Mr Soukaneh from the car, put him on the ground, handcuffed him and then locked him in the back of his squad car.

Officer Andrzejewski then proceeded to search the car, including the trunk of the car. At the end of the search he wrote a traffic citation for “parking in a driveway” and released Mr. Soukaneh.

The Arguments

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B.L.U.F. The Eleventh Circuit Court covering Florida had a three judge panel decided that 18-20 year olds couldn’t buy firearms. The opinion is a hot take.

Emotional Blackmail Works

The three judge panel’s opinion was written by Circuit Judge Rosenbaum. She starts the opinion with some emotional blackmail, telling us that young adults have been shooting people for a very long time using newspaper reports from the 1870’s. She is using this to get the following statements into the opinion:

Double emphasis added.

In Bruen quoting Heller the Supreme Court established that when talking about the history and tradition of firearm regulation that the date to look at is 1791, the ratification of the Second Amendment. The founding period extends, at the latest, to 1826 when the last of the founding fathers died. Laws from the Reconstruction Era can be used to reinforce those traditions but can not be used if not supported by a tradition dating back to 1791.

Age Bans are Legal If You Use Reconstruction Era Laws

Judge Rosenbaum wants to use Reconstruction Era laws to justify the current law.
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