Rant

In talking to my wife this morning, she was telling me how angry she got reading about Judge Easterbrook and Illinois’ continual attack on the Second Amendment. She couldn’t understand why they kept doing what they were doing.

There is no need to delve into the “whys” of it, it is not relevant. The only thing that does matter is that there are people who do not want guns in the hands of The People. With that, the game starts.

History

The starting point is “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.”

Until the National Firearms Act of 1934This is currently embedded in 26 U.S.C I,

In congress, there were robust arguments about how they could pass a law that was a direct infringement on the right of The People to keep and bear arms. In the end, they decided that the only way that they could limit access to evil guns was by taxing them out of the hands of The People.

Remember, this is at a time when the cost of a silencer was under $10. The cost of the Tax Stamp was $200. It still is $200.

This was not a ban. Anybody with enough money could pay for the tax stamp. Early enforcement was more as an “extra” charge put on a criminal when they were caught with an unregistered NFA item. In numerous instances, if a nominally law-abiding person was found with an unregistered NFA item, they were told to register it and that was the end of their interaction.

Today, the anti-gun people are perfectly happy that a tax has become a de facto ban. The cost of regulations and compliance has raised the cost of legally purchasing a silencer to well over $700. I would love to have a couple of cans. I’d love to have at least one can for my squirrel rifle.

In 1968, the Gun Control Act was passed. Again, this was not an outright ban on anything, it was just the state getting between you and your purchase of a firearm.

Which takes us to:

Modern History

In the late 70s moving into the late 90s, the anti-gun movement really picked up speed. The one gun rights organization was more interested in “Keep and bear arms for hunting and sporting” than in “Shall not be infringed”.

It is difficult to really understand what it means to be a lobbyist. It is a full-time job. Furthermore, it requires you to know people, to know who they are, what they like. To know who controls access to whom, and to be able to spend business hours doing nothing but lobbying.

And when the day is done, you get to do some more. Don’t like golf? Tough, learn to play, learn to play well enough to be a challenge but not so good that you make them look bad.

There were people and organizations that had the money to purchase lobbyists. And they were there in the halls of power pushing congress critters towards more and more infringements.

Out of this, multiple infringing laws were passed. These include the AW/LCM ban and all the state and local bans on carrying.

The Courts

There are three levels of courts we are interested in. The District court is the lowest federal court. They report to their Circuit Court of Appeals. In turn, the Circuit Courts report to the Supreme Court.

The Supreme Court consists of 9 judges. The Circuit courts have at least 9 members and often more.

A District court has a single Judge. They decide the legal questions presented and for all other questions of evidence, a jury is used. The parties can request that the Judge also act as the jury.

The judge decides if the plaintiff(s) have standing. Once that is determined, the case starts moving forward.

The case is documented in the court “docket”. The docket is a record of every official communication between the court and the parties.

Once the case is opened, the defendants will be informed. The defendants then start the process of responding to the accusations. This almost always starts with attacking standing. The goal is to get the case dismissed for procedural reasons.

Here’s the thing, a case dismissed for procedural reasons can be refiled if the procedural error is correct.

This process takes months.

In the simple sequence, the plaintiff (good guys) ask for a Preliminary Injunction with an optional TRO.

The TRO is to stop something from happening until the court can determine if a Preliminary Injunction should be granted. If a preliminary injunction is granted, then that remains in effect until the final opinion is issued. The final order will remove the preliminary injunction and if the plaintiffs win, then a permanent injunction will be put in its place.

The Delay Game

The defendants (bad guys) will often request additional time to brief the case. They will argue about needing more time for experts, and in general, they will drag things out as much as possible. IF there is no injunction against their infringing laws.

If the Preliminary Injunction is requested and the result goes against one party (it almost always will), that party can appeal to the Circuit court for either a Preliminary Injunction, if the District court did not grant it, or a stay, if the District court did grant the injunction.

Cases that are appealed before the final judgement are said to be in an “interlocutory” state. The superior courts do not like to hear appeals of cases that are still in an interlocutory state. They would prefer to wait until all the evidence has been presented and all the arguments and briefs made. The Supreme Court seldom takes up an appeal for a case in interlocutory state.

Regardless, the process of appealing is a great method to create a delay. An appeal to the Circuit court will ask for a stay pending appeal.

So on January 1st, 2020 you file a suit claiming a law infringes on your protected rights.
By the end of January, most of the starting paper work is done, and you’ve moved on to the Preliminary Injunction or Summary Judgement.
The court will schedule arguments. He will give time for the first set of briefings. This seems to be in the 3 to 6 week mark. I’m confident that in more complex cases there is more time given. At the end of that time, there will be time for a response to be filed. About 2 weeks or so, more on larger cases. There is then time for a short response to the response.

There will be time in the schedule for the court to read all the briefings and other submissions. The Oral Arguments will be heard.

At the District level, it seems to take only a couple of weeks before an order is issued.

At this point, you are in late March, mid-April.

Let’s say that the plaintiffs get a preliminary injunction. The state will appeal for an emergency stay from the Circuit court. This request will be evaluated by one judge on the Circuit. Within a few weeks, that temporary stay will be granted.

You are now getting close to May. The Circuit court will then have a three judge administrative panel decide if they will hear the appeal. If they grant the stay on an expedited calendar, that does not mean that there will be an expedited calendar for hearing the appeal.

This was attempted in the Second Circuit court. They granted a stay on an emergency basis. They granted a stay pending the appeal. And then didn’t bother to schedule the appeal. In the normal course of appeals, this could take 6 to 12 months, or more, before the appeal is heard.

During this time, the District case is on hold. There is no reason for them to move forward.

For the first act of the game, you are now into November 2020 when the appeal is heard. After the oral arguments are given, it is going to take months before the circuit court issues the opinion.

Assuming that nobody wants to actually appeal to the Supreme Court, the case is now remanded back to the District court for them to take up where they left off.

You are likely into January 2021 before your case starts moving forward again. In that time frame, massive amounts of papers have been filed by both parties. You might get your case heard by April. The court will then issue its final order a month or more after that.

You are now in it for a year and a half. If the Preliminary Injunction argument is appealed to the Supreme Court, that can take a month or more before they issue their opinion.

And every time a superior court issues an opinion, the inferior court has to start over again. In Duncan v. Bonta, the case was all the way to the Supreme Court. The 9th Cir.’s opinion was vacated, and the case was remanded back to the 9th. There they waited for months before a 3 judge panel decided to vacate the District Court’s order (which was opposite of what the 9th said and what the Supreme Court just vacated.)

The reason for the vacating and remanding is to allow both parties to provide briefs that consider the reason for the case being vacated.

To put this in perspective, we are about 40 days from the one-year anniversary of the Bruen opinion. The current standing is that The People’s ability to get carry permits has gotten better, but the risks in carrying have gone up. Not a single law has been struck down. Not a single case has made its way to the Supreme Court.

Not a single Circuit Court has issued an opinion striking down a weapons ban or a Bruen spasm response bill.

The Seventh Circuit court likely just mooted the need for the Supreme Court to step in on the AW/LCM bans in Illinois.

(more later)

For the last couple of weeks, I’ve been working with a great group of people at the CourtListener site. They are one of a number of projects that are supported by the Free Law Project.

All of this started because I asked for help uploading a document I had paid for. The project lead helped and asked for an error report. I gave it and in the midst of that asked, “How do you do X?” His reply was geek to geek. “That is a feature people have been asking for. Feel free to write it.”

I did.

Since then, I’ve been contributing little bits and pieces, but that is not the point of this article…

I asked for a simple link I could press to get proper citations. Citations that I can use here. They didn’t have one. Worse, they explained to me how I’m wrong…

It took me a week of being told wrong before somebody actually bothered to say what I was doing wrong. Part of that is because they have their own use cases, and we do not fit into their world view.

Most of the time, what I get is a short screenshot with the YouTuber, maybe giving me a little more context.

If I am a bit luckier, I might get something like this:

From this, I need or want to find the actual case. That should be pretty easy, right? Not so much.

The header on this document indicates that it came from PACER. That is not enough to actually locate this particular document.

To locate this document, you have to find it. The case number, 3:23-cv-00209-SPM, is not unique. I’m not sure what the leading three means. “23” means that this case was filed in 2023. “cv” means that it is a civil case and not a criminal case. It is case “00209” in this court. “SPM” are the initials of the judge hearing the case.

There is not enough information to find the actual case. For that, you need to the actual court, which is under the header. “In the United States District Court for The Southern District of Illinois.” That is a mouth full. You need to look that up in “Table T9 and T12” WTF? Yeah, that is what I said.

The answer is that “Tables” are published in The BlueBook. It is one of those textbooks that every lawyer has. It is also expensive as heck, and the online version is only available as a subscription.

Within those tables, you find that “Southern District” is abbreviated “S.D.” and that “Illinois” is abbreviated as “Ill.”

Thus, you are looking for case 23-cv-00209 in S.D. Ill. in 2023.

Unfortunately, that isn’t a very useful citation. Nobody remembers numbers like that.

If you look that case up, you will find a more formal citation Barnett v. Raoul, 3:23-cv-00209, (S.D. Ill.).

This is a bad citation. It looks good, but it is not. It is not a good citation because legal people don’t cite to cases. Instead, they cite to documents within a case.

A more correct citation to the document I show above would be the following:

Order Mot. for Prelim. Inj. at 5, Barnett v. Raoul, No. 23-cv-00209 (S.D. Ill. Apr. 28, 2023), ECF No. 99

And that would tell a lawyer type person exactly where to find that document. For you, I link to it. There is no reason to make you do the search.

But let’s say you aren’t trying to reference a document from a pending or undecided case, but instead wanted a document from a decided case.

First, lawyer type people don’t really seem to care about the documents filed, they care about the final decision. This is the “Opinion” or “Order” or both.

These are either published or unpublished. If they are published, they are published in a “reporter”. Each reporter has a unique name and a unique abbreviation.

In the lawyering world (sort of like the wizarding world but not nearly as much fun to visit) they might say something like “410 U.S. 113” or, if they are researching from a different source, “98 S. Ct. 705” or even “35 L. Ed. 2d 147”. These all mean the same thing. Roe v. Wade

“U.S.”, “S. Ct.” and “L. Ed. 2d” are reporters. The leading numbers indicate the volume, and the trailing number is the page number which starts the decision.

A citation into this opinion would look something like:

To do that citation, I had to find an actual PDF of the opinion from one of the reporters to have good page numbers. Often there are text versions of the opinion with the page numbers stripped off or, worse, with the page numbers not matching the citation. In other words, you might click on 410 U.S. 113 and the site you are visiting my take you to the 98 S.Ct. 705 version. The only differences being the page numbers. And since the reporters can use different font choices, the page numbers might not match with a constant offset.

What all of this means is that I’m working with the people that truly care about doing this correctly. I’ve got a couple of subject-matter experts working with me to figure out the best way to automate the citation process to give the best results.

Meanwhile, I’m trying to figure out if our readers would prefer to see: Order Caleb Barnett v. Kwame Raoul, 23-1825, (7th Cir. May 04, 2023) ECF No. 9 OR Order Barnett v. Raoul (7th Cir.)?

Last year the people of Oregon, by a bare majority, voted in a truck load of infringements. These included permit to purchase, gun registries, magazine bans, and many other Bruen FU’s.

This was Measure 114. The measure was so bad that even the political class didn’t want it to go into effect immediately.

It did.

Having gone into effect, it was challenged. Because it was a direct infringement case the suit was filed in the federal district court of Oregon. In one of the first cases, Oregon Firearms Federation, Inc. v. Brown (2:22-cv-01815) the district court first denied the motion for a TRO and for a Preliminary Injunction.

The plaintiffs(Good Guys) appealed the District Court’s decision to the Ninth Circus court. This appeal was withdrawn by the plaintiffs.

A number of other cases where joined with this as the lead case.

While all of this was going on in the district court, another case was filed in state court. That state court found FOR the plaintiffs(good guys) and enjoined part of Measure 114. The state appealed to the state supreme court which declined to hear the case.

What this means is that all or part of Measure 114 is enjoined from being enforced. It is stopped.

Of course the state can’t have a lose on any infringement.

They decided to “moot” the cases currently in district court. There are things that the legislature can do which will allow them to claim that the dispute before the court no longer exists.

If the cases reference Measure 114 then if it becomes a bill/regulation it might moot. If some of the wording changes, it might moot the cases.

This is exactly what the legislature in Oregon is doing:

There are more infringements but they threw in this kicker:

The state calls it “forum shopping” if you are filing the case in your home county. The state isn’t “forum” shopping when they pick the state court where challenges must be filed.

There are a number of things going on in these cases, hopefully we’ll see some good progress soon.

[visual-link-preview encoded=”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”]

When looking at Boland v. Bonta, the “Unsafe Handgun Act” out of California, it was nice that the judge “got it right”.

Unfortunately the reasoning that he had in his opinion niggled at me. There was something wrong. It should have been this hard.

Then Mark Smith applied the clue-by-four and it made things obvious.

The UHA is a gun ban. Full Stop.

Consider a law that said “A firearm with a barleycorn front sight is banned” We would instantly recognize that as a gun ban. If it is a gun ban then the plain text of the Second Amendment is touched on and it then the state must prove that there is a history and tradition of regulating classes of guns with particular features.

When the feature was “pistol” then Heller found that a ban was Unconstitutional. The holdings of the Supreme Court have shown that it doesn’t have to be a complete ban, it only has to touch the plain text of the second amendment in order for regulation to be presumptively unconstitutional. It is up to the state to prove history and tradition.

But what if we turned the statement around? What if we said “Any firearm without a barleycorn front sight is banned”. This is still a ban, the state has just inverted the logic from “can’t have” to “must have”. It is a ban. Treat it like a ban in court.

Now if the state chooses to hide that ban inside a bunch of other regulations, it might be harder to see.

For example what if the law said “you can only buy firearms on this list” and “We are only going to put firearms with barleycorn front sights on the list”. It is still a ban, it is just a two step process.

Think of it the same way we think of machine guns. According to the law, machine guns are not banned. You are free to buy them if you can find somebody willing to sell them to you. All you need is to jump through NFA hoops.

But because of the Hughes amendment no NEW machine guns have been added to the transferable NFA list. This has caused the cost/value of machine guns to sky rocket.

I don’t think any gun infringer really wants to be told that the difference between an AR-15 and a M-16 is $75 in parts and an extra hole. Which means that the cost of a machine gun should be about the same as its semi-auto version.

The closing of the NFA registry for machine guns is a ban on machine guns.

The UHA is also a ban. No matter how much lipstick is slapped on that pig, it is still and always will be a gun ban.

We are the children of the “right now” age. I am old. I remember my mother going to the Grayhound bus depot and paying them to deliver two huge boxes to her hometown in the midwest. This was the only way to get a package that big that far in a reasonable amount of time.

Reasonable amount of time? About a week or so. At which point my grandparents would go to the bus depot to get pick up the packages.

When I was a child working on motorcycles I would create a parts list and then once a month we would go into the big city and I could purchase parts at the motorcycle dealership(s).

We would dig through our Scholastic book pamphlet and pick out the books we wanted. Three or four weeks later our books would arrive. We’d look though the Sear’s catalog and place an order. A few weeks later it would arrive.

The other day I needed replacement “Plackers”. I spent less than two minutes online to locate what I wanted, purchased more for much less than I could locally and they were delivered as soon as we had cleared our driveway.

Everything today happens quickly. I can send an email around the world in less time than it takes to print that same letter. I can have a response back before I close my email program.

My introduction to The Internet was when I noticed that if we dropped UUCP messages in one node in Michigan it would show up in California with a timestamp only seconds different than the arrival time.

We are spoiled. Everything should be moving as fast as online shopping and online communications.

Not everything is fast

Read More

I’m tired. We got our power back after around 30-36 hours. We did not suffer but we had to work a bit harder than normal.

I was responsible for clearing a 1/4 mile of driveway that had snow ranging from 30cm to nearly 90cm deep. The first pass was a pain because our snowblower is only good to about 70cm of depth. This means that you drive the blower into the snow, it shoots the snow off to the side and you let it start to climb. When it has climbed to about a 30degree angle you stop the drive wheels and pull the damn thing back

Then you do it again. It has no trouble with the ramp it left behind but shortly after that it will do the climb thing. Each pass gets you about 75cm of progress.

Once you get the first path done it is much easier. In my case I had a kid walk the path with a shovel and pull down a foot or two of snow. Then the blower throws that out of the drive. Relatively easy.

All in all I spent about 6 hours yesterday and today removing snow.

Duncan v. Bonta

You got to love the lie of omission. It won’t work with Judge Benitez but they still had to try. The state of California wrote a letter to Judge Benitez telling him of the decision in the 11th circuit court (Florida way) where the three judge panel found that Florida’s ban on 18-20yo owning a class of firearms is constitutional.

The decision was so egregious that the plaintiffs(good guys) didn’t even have to request an en banc hearing. At least one judge on the 11th circuit judge went “WTF?” and held the opinion pending a decision of the 11th Circuit court as a whole on whether to hear the case en banc to give an opinion.

The state just left out that part where it was found so egregious that the 11th circuit stayed their own opinion.

Koons v. Reynolds

Judge Bumb is not somebody you want to mess with. While the case was brought by plaintiffs(good guys) Koons et all against Reynolds in his official capacity for the state of NJ the Senate and the General Assembly wanted to get their arguments in as well.

They applied to become “Intervenors” which just means they want official recognition from the court to lawyer stuff such as give oral arguments. It isn’t clear to me when they were allowed to join as Intervenors but they are.

When Judge Bumb was threatened with with the state appealing to the Third Circuit court on March 8th if she doesn’t rule on the preliminary injunction in a timely basis she slapped them down and set the date for oral arguments for the March 17, 2023 at 10am.

There is this back and forth going on where the state wants more time to get the historical and traditional laws in front of the court while the court is telling them “The legislature said they had those laws at hand before the passed the law, what gives?” So the state wants to slow walk some parts and “get it done right now!” on the other hand. I think it depends on if they think they are going to have the law stayed or not.

Well the intervenors wrote to the Court telling her that one of the attorneys was in Florida and wouldn’t be back by the 17th and could they please attend virtually. A bit later the other lawyer for the intervenors wrote to the court asking for a ruling.

Judge Bumb gave them that ruling yesterday:

I wasn’t going to write about this but I was trying to understand citations and what was going on.

The footnote is:

What do the “¶¶” mean? I know that “¶” means paragraph. Found out it means “paragraphs”. Since I miss read the footnote I read that Lucy was linking to paragraphs 7 through 46. That is the entire rebuttal. What was she actually referring to?

Here is the paragraph that had me scratching my head:

Hmmm, that sounds pretty bad trivially tiny, we’ll come back to that.

She then goes on to move the goalposts. When we talk about the victims of a shooting, we are always talking about those that were shot or injured at the event. More limiting than that is that we normally exclude those that were injured or shot by friendlies.

This will get twisted a bit by different number crunchers, for example when they include the shoot in the list of victims because he was shot dead by a good guy with a gun, but in general we talk about those that were shot by the shooter, not those shot by the cops.

Lucy wants to use the impact of the mass shooting rather than victims. The impact of the cowards of Uvalidi is huge. It reverberated throughout the world. Children were murdered by some asshole while law enforcement cowarded in the hallways.

It had a huge impact, no doubt about it.

Let’s turn to what Dr. Kleck actually said though before we judge him to harshly for downplaying such horrific incidents.

Dr. Kleck isn’t claiming that mass shootings are trivial in anyway. He is stating that Lucy limited her analysis to public mass shootings for some reason. And that the number of public mass shootings compared to all mass shootings is a trivial number.

Dr. Kleck is using language in a very studious and specific manner. He has pulled emotion out of it. He is telling the court what the numbers are and then giving his opinion of what those numbers mean.

Lucy uses the standard 2 and 3 word quote trick. Pulling such small quotes out of context that you can’t tell what the actual meaning was.

And interesting find.

B.L.U.F. Fluff piece because I can’t stand reading another word of Bonta’s so called “experts”

Through one of my feeds I get a notice of some case that is happening and interesting. If I’m very lucky there will be a link to that case in some way. Most of the time there is not.

If the source is a news article it is highly likely that not only have they failed to link to the case or legislation, they have likely miss named it as well. For example the “Don’t say gay” Florida bill that didn’t have those words in the bill. All searches for “don’t say gay” will take you to propaganda pieces telling you how bad the “Don’t say gay” bill is but with no links and no text.

Once I find some official documentation I next attempt to find the case number.

This has been a learning curve for me. It turns out that case names and numbers change as cases move through the courts. So what was filed as “Steven Rupp; Steven Dumber; Cheryl Johnson; Michael Jones; Christopher Seifert; Alfonso Valenceia; Troy Willis; and California Rifle & Pistol Association, Incorporated vs. Xavier Becerra, in his official capacity as Attorney General of the State of California; and DOES 1-10” had a case number of 8:17-cv-00746 assigned to it.

This became “Steven Rupp, et al v. Xavier Becerra” with a case number of “8:17-cv-00746-JLS-JDE” when it got to the ninth circuit court. The turned into “Steven Rupp; et al v. Rob Bonta, in his official capacity as Attorney General of the State of California” case number 19-56004.

When the case was vacated and remanded back to the district court the case number became 8:17-cv-00746-JLS-JDE and became known as “Steven Rupp, et al. v. Xavier Becerra, in his official capacity as Attorney General of State of California”.

And the case is known as “Rupp v. Bonta” for the most part. It is all the same case.

Read More