Grey v. Jennings
In two days, we will get our next cup of tea leaves.
On the 16th, Gray waived the 14-day waiting period for distribution of Petition. They requested that the case be distributed for the January 10th conference on December 24th.
They did, indeed, get their reply in on time. Amazing how the good guys get their paperwork in on time while the state, with nearly infinite resources, is forever requesting extensions.
What does this mean?
As of the morning of the 21st, all three Second Amendment cases seeking cert are now fully briefed. Two are at final judgement and the third is about preliminary injunctions, so being in an interlocutory state is not an issue.
We have three cases teed up and ready to go.
All three cases are simple cases if the Court follows their own president.
Are “assault weapons” arms under the Second Amendment? Yes.
Is this a gun ban case? Yes.
Is this class of arms in common use for lawful purposes? Yes.
Done.
Are “large capacity magazines” arms under the Second Amendment? Yes, but with a bit more language. Magazines are to arms as ink is to free speech.
I this a ban on a class of firearms? Yes.
Is this class of arms in common use for lawful purposes? Yes.
Done.
Is a violation of the Second Amendment to the US Constitution a violation of a Constitutionally protected right? Yes.
Done. Irreparable harm has been committed if a Second Amendment protected right is violated.
Gray’s response points out that there is a circuit split. It points out that a violation of any constitutionally protected right that cannot be fixed with money is irreparable harm.
Prove it!
The state is arguing that the plaintiffs (good guys) “…failed to prove they will more likely than not suffer irreparable in jury while proceedings are pending.”
The petitioners (plaintiffs and good guys) did make a showing that they were suffering irreparable harm. They argued that violation of intangible Second Amendment rights is irreparable harm.
The state argues that they didn’t even try to prove irreparable harm. They counter with the proof is that it is irreparable harm because it is a violation of a Constitutionally protected right.
VanDerStock, things I learned
According to the Solicitor General of the United States:
And Congress made clear in the statutory history that the reason it used that term (weapon) is because there are objects out there, toys and tools, that have a well-known non-weapon use but that actually do expel projectiles through the action of an explosive.
A — a cap gun is an example of this. It — it expels bird shot, and so, therefore, it would fit within the functional definition. But it’s not a weapon because it’s not an instrument of combat or intended to be used in that way.
The gist of the ATF’s argument is that the GCA of 1968 defined a frame or receiver as something that could be readily converted into a firearm. Therefore, the defining aspect is how much time and skill it takes to convert a thing into a firearm.
If we have a small, purpose built, CNC machine which we load with a piece of 7075 bar stock, we push the button, and 3 hours later there is an AR15 lower receiver, is that 7075 bar stock a frame or receiver?
The ATF is arguing that if you sell that CNC machine along with the piece of 7075, then the 7075 is a receiver.
JUSTICE ALITO: — if I show you — I put out on a counter some eggs, some chopped-up ham, some chopped-up pepper, and onions, is that a western omelet?
GENERAL PRELOGAR: No, because, again, those items have well-known other uses to become something other than an omelet.
The key difference here is that these weapon parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use.
And I think the further evidence comes from the fact that Respondents themselves agree that a disassembled gun qualifies as a weapon. So this is on page 37 of the Anderson brief.
So, if the parts have “well-known other uses”, then it isn’t a frame or receiver? How about a business card with an etching of a firearm component? Business cards have “well-known other uses”.
JUSTICE BARRETT: General Prelogar, I just want to follow up on Justice Alito’s question about the omelet.
Would your answer change if you ordered it from HelloFresh and you got a kit, and it was like turkey chili, but all of the ingredients are in the kit?
GENERAL PRELOGAR: Yes. And I think that that presses on the — the more apt analogy here, which is that we are not suggesting that scattered components that might have some entirely separate and distinct function could be aggregated and called a weapon in the absence of this kind of evidence that that is their intended purpose and function.
So it is not a frame or receiver unless there is evidence that the intended purpose is to make a frame or receiver? Again, this means that if I have a 50% lower and the skills and instructions, that makes it a receiver?
A 0% lower is a piece of bar stock. A 50% lower is one where no machining has been done to the forging. An 80% lower is one where the surface has been decked, the buffer socket machined and threaded plus several other operations, stopping short of being a receiver
But, if you bought, you know, from Trader Joe’s some omelet-making kit that had all of the ingredients to make the omelet and maybe included whatever you would need to start the fire in order to cook the omelet and had all of that objective indication that that’s what’s being marketed and sold, we would recognize that for what it is.
And it — it doesn’t stretch plain English to say, I bought omelets at the store, if you bought all of the ingredients that were intended and designed to make them, especially under statutory language that refers to something like breakfast foods or things that can be readily converted to make breakfast.
The last time I went to the grocery and purchased a taco kit and some ground beef, I came home and told my wife, “I brought home tacos”.
She would have smacked me upside the head if I had told her, “It’s readily convertible into tacos, so it is the same.”
JUSTICE BARRETT: I have a question about AR-15s. So Judge Oldham expressed concern that because AR-15 receivers can be readily converted into machine gun receivers, that this regulation on its face turns everyone who lawfully owns an AR-15 into a criminal.
GENERAL PRELOGAR: That is wrong. So I want to be really clear about our interpretation of the statute. We are not suggesting that a statutory reference to one thing includes all other separate and distinct things that might be readily converted into the thing that’s listed in the statute itself.
The difference, in the ATF’s eyes, between an AR-15, perfectly legal to own with no tax stamp, and a “machinegun”, requiring a tax stamp, is one hole placed above the selector switch.
They are so concerned about that one hole, that if that location is even marked, it is considered a machinegun.
Never mind that you need an auto-sear, an M16 trigger, an M16 disconnector, an M16 selector switch, and an M16 hammer, just a dimple makes that receiver a machinegun.
What the Solicitor General is arguing is that it is a jig that makes a hunk of aluminum a receiver. This strongly implies that if somebody were to create a jig for drilling the hole for the auto-sear, that would make almost every AR-15 lower receiver a machine gun.
Or it could go back to the evil days of the 6 magic parts. If your AR-15 had any of the 6 magic parts in it, then it was a machine gun. If you had any one of an M16: auto-sear, hammer, trigger, disconnector, selector, or bolt carrier, then you had a machinegun.
Now it will be a simple jig. How simple? It is an L shaped piece with two holes drilled in it. The top hole is a drill guide. The lower hole has a pin press fit. Put the pin into the selector hole. Put the small leg of the L over the deck of the receiver. The small hole is in the correct place to drill for an auto-sear.
You can read the transcript if you would like. It isn’t difficult, but some arguments are difficult to follow.
Next Step In the Battle for the Second Amendment
The Second Amendment should be a viable defense for anybody charged with a “gun crime”. Found carrying with an expired CCW? Second Amendment defense. Cross an imaginary line and your right to carry disappeared? Second Amendment defense.
We should have seen 100s if not 1000s of cases over the years where the defendants argued that their actions were protected by the Second Amendment.
The reason was actually pretty simple, the courts refused to give those defenses any weight. No defense lawyer was going to bring up a 2A defense when they knew it would just upset the court.
Add to that the many circuit courts that had determined that The People had no right to keep and bear arms. The right to keep and bear arms was reserved for the militia.
As it stood in 2007, private militias were illegal in most states, the National Guard was either formally or informally declared “the [state] militia”, the state AG was charged with bringing any state level constitutional challenges, AND the state AG was charged with defending state laws against constitutional challenges.
In the Ninth Circus court of appeals, the only group that could challenge California’s gun laws was California.
In 2008, the Supreme Court issued their opinion in Heller.
This cut through the crap, said clearly that the Second Amendment was protecting an individual right. It went further, defining almost every word and phrase in the Second Amendment to absolutely define what the protected right was.
Rogue courts immediately pivoted to a new reason to stomp on the rights of The People, the Second Amendment protected rights of The People were not as important as the important things the state wanted to do.
Until 2022, this was the state of the right to keep and bear arms. For states that were not infringing, nothing changed. For states that were infringing, the rogue courts balanced our rights away.
In 2022, Bruen was decided. Bruen reaffirmed Heller. It laid out, in kindergarten language that even a rogue court could not misunderstand, exactly how to apply the law in Second Amendment challenges.
The two cases of interest that were not decided, but instead were Granted certiorari, the lower court’s opinion was Vacated, and the cases were Remanded back to the circuit courts to do over in light of Bruen
were Duncan and Bianchi.
It was my opinion, at the time, that we would have a decision from the Fourth Circuit court on Bianchi within 6 months.
We got that opinion August 6th, 2024, two years after the case was GVRed.
It took the Fourth Circuit court two years to get around to issuing their opinion after they were told to do it over again, correctly. Since they were outcome-driven, the results were, predictably, the same.
With the respectful consideration and benefit of Bruen, we now uphold the judgment below. The assault weapons at issue fall outside the ambit of protection offered by the Second Amendment because, in essence, they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense. Moreover, the Maryland law fits comfortably within our nation’s tradition of firearms regulation. It is but another example of a state regulating excessively dangerous weapons once their incompatibility with a lawful and safe society becomes apparent, while nonetheless preserving avenues for armed self-defense.
—No. 114 Dominic Bianchi v. Anthony Brown, No. 21-1255 (4th Cir.)
—No. 114 Dominic Bianchi v. Anthony Brown, No. 21-1255 (4th Cir.)
AR-15s and their ilk are not “arms” as defined in the Second Amendment. At least that’s what the Fourth says. Mind you, the option is around 59 pages long. The dissent is 120 pages long.
The opinion is full of references to news reports, articles from all over the place. What it is lacking is references to this Nation’s historical tradition of firearms regulation. In addition, they misrepresented the Supreme Court’s holding in Bruen.
The Supreme Court said that when the inferior courts were using the two stage means-end balancing method to find every state infringement “Constitutional”, they got the first part right, where they said “This is covered by the Second Amendment”, and the rogue inferior courts were getting it wrong when they balanced our rights away.
The Fourth says that since the circuit courts were getting it right on the first part, and their first step was to find that assault weapons were not covered by the Second Amendment, even though they did means-ends, they still were right to declare assault weapon bans constitutional.
Bianchi v Frosh has been going on so long that they had a change in AGs, the case became Bianchi v. Brown. The case is now seeking cert from the Supreme Court as Snope v. Brown. Dominic Bianchi moved out of Maryland and lost standing.
Duncan is still stuck in the Ninth Circuit court, back in California. We are unlikely to hear anything from them in the next 6 months or more.
But, we might see Snope make it back before the Supreme Court in the next session. Which means that it will be argued in the 2025 term, which starts in October 2025.
It is my opinion that the Fourth Circuit delayed issuing their opinion until it was too late for Snope to request cert for the 2024 term.
Lawyers are strange?
Barnett v. Raoul, 3:23-cv-00209, (S.D. Ill.) is one of the cases filed in response to the Illinois Bruen tantrum. It was opened January 24, 2023.
It was decided at the district court level in favor of The People. It was part of the group of cases that went to the Seventh Circuit where Judge Easterbrook and Jude Wood decided that the plain text of the Second Amendment actually means, something besides what the plain text says.
It was remanded down to Judge McGlynn’s court for a do-over.
The state went into the “we need more time” dance. Judge McGlynn was having nothing to do with delay tactics, instead moving the case towards final judgement as rapidly as possible.
Of note, he had the plaintiffs, the good guys, file extra briefings to counter what the circuit court said. He has done everything in his power to establish a good record for appeal.
The case went to trial on Monday, the 16th, and is continuing for a few more days.
Yesterday, they heard testimony from one witness, James Ronkainen. He testified for around 4 and a half hours. They presented just shy of 60 exhibits.
In addition to his testimony on Monday, Mr. Ronkainen was disposed for hours. The transcript of his deposition runs for 240 pages.
So what makes this strange? There was an hour of discussion to define what a MSR was? This was mind-numbingly difficult to read. I gave up after 80 pages.
I am eagerly awaiting to hear what Judge McGlynn has to say in a couple of weeks.
You can read James Ronkainen’s deposition yourself, if you wish.
U.S.A. v. Jackson
One of the hard things to accept is that so many inferior courts think that when a case is vacated and remanded, it isn’t for good reason.
The courts speak in polite ways. You don’t call out a judge for being an idiot. No matter how often they open their mouth to remove all doubt.
In Bianchi, the Supreme Court granted cert, vacated the Fourth Circuit’s judgement, and remanded it back to the Fourth Circuit for a do-over.
If my boss comes to me and tells me that I got it wrong, here is the documentation, read the documentation and do it over, right. I’m going to read that documentation.
If that documentation suggests that I’m right, I know that is the zebra in the herd of horses. Why? Because my boss told me to do it over.
If I read his documentation, use it to reason to the same method/result, I’m making a mistake.
Unfortunately, our court system doesn’t allow an easy method for an inferior court to say, “I’m too stupid to understand what you said, what does this line mean?”
One of the cases that was before the Supreme Court before Rahimi was U.S.A. v Jackson. It was not granted cert until after Rahimi was decided. At that point, the case was granted cert, the Eighth Circuit’s opinion was vacated, and the case was remanded back to the inferior court with instructions to “do it over, follow the documentation in Rahimi”
When the Arguments Are that Bad: Nguyen v. Bonta
This case involves California’s one gun per month infringement.
On Dec 18, 2020, nearly 4 years ago, Michelle Nguyen and others filed a complaint against Xavier Becerra, the Attorney General of California asking for injunctive and declaratory relief.
Because this happened before the Bruen opinion issued, it is couched in terms of Heller and levels of scrutiny. Remember, arguing that interest-balancing was wrong was a losing argument at that time.
They claimed that their rights were being infringed because “arms” is plural and limiting the purchase of guns to just one per month is singular. Thus making the law unconstitutional, on its face.
This case was a series of motions and counter motions. Both parties trying to limit what the other party could present as “evidence”. On Dec 6, 2023, three years after the case was filed, a motion hearing was held. This is the place where the parties argue why their motions are better before the judge.
On March 28, 2024, the court issued its judgement. This brings this case to completion at the district level.
The court found for the plaintiffs. The good guys. The court issued an injunction against California Penal Code §§ 27535 and 27540(f) as violating the Second Amendment and the Fourteenth Amendment.
Knowing the state would appeal, Judge Hayes put a 30-day administrative stay on his ruling. This is perfectly normal.
The state filed their appeal the next day.
The Ninth Circuit administrative panel, continued its unbroken record in Second Amendment cases, issued a stay pending appeal.
Appellants have established a sufficient likelihood of success on the merits of this appeal and made a sufficient showing on the relative equities to justify a stay pending appeal.
This is pure spite. The Supreme Court has said, on multiple occasions, how the Winter’s factors are to be addressed. First, the merits of the case, second that irreparable harm, third the balance of equities, and finally that the injunction is in the public interest.
The order by the administrate panel did not address the merits of the case. This is an instant showing of a rogue court.
If the case is a civil rights case, and the party seeking the injunction is likely to win on the merits, the analysis is over. The denial of a civil right is “irreparable harm”. The balance of equities always tips to the party being irreparably harmed, the public has no interest in enforcing an unconstitutional law.
Thus, this admin panel did a crackerjack job of ignoring the law.
The administrative panel issued their stay on April 24, before the administrative stay expired.
The case is then calendared to be heard by a merits panel.
That took place on August 14th, 2024. It was a complete disaster for the state.
There are more than a few channels that have done reviews of the oral arguments.
So how bad were the arguments by the state? Their stay pending appeal was reversed.
The order (Dkt. 9) granting Defendants’ motion for a stay pending appeal (Dkt. 3) is REVERSED.
Before: Owens, Bade, and Forrest, Circuit Judges.
It took the merits panel less than a day to issue the order reversing the stay pending appeal, in the Ninth Circuit Court of Appeals.
This is a good time to buy stock in heater vendors in hell, it has done froze over.
When the State wants more weasel words
The state is constantly looking for weasel words in Supreme Court opinions to further their arrogant subjugation of their subjects. We see this in how they misconstrued the language of —No. 114 Dominic Bianchi v. Anthony Brown, No. 21-1255 (4th Cir.) to claim that the Second Amendment only protects militias.
We see this when they misconstrue Missing citations for LPGQXCDT to mean that “presumptively constitutional” means that any infringement is constitutional.
We see this when they misconstrue Missing citations for 75DAVPP7 to mean that anyplace can be designated as a “sensitive location” where infringements are required. Like defining all of Times Square as a sensitive place.
The state is constantly looking for any words that could be taken to mean that infringement is allowed.
Missing citations for UETRMP2L has far too many weasel words for the state to latch onto. Bad facts make for bad laws.
Schoenthal v. Raoul in Chicago shows exactly this.
After Rahimi was issued, the state in every case rushed to bring that opinion into their arguments. Not because their case had anything to do with individuals found to be credible threat of physical violence to another who had a court of law issue a domestic violence restraining order against them, but because they wanted to use the weasel words.
In Schoenthal the state wanted a status hearing to set a supplemental briefing schedule. This is the official way to get more arguments before the court, regardless of the current status of the case.
The state says it is a joint motion. This is true in fact, but not in spirit.
The state wants to brief the court regarding how wonderful Rahimi is for their case. The plaintiffs (good guys) just want equal time, if the court allows the state to submit additional arguments.
The judge said “No”.
Now, the language the state is trying so hard to get into the record is suggest a law trapped in amber
Missing citations for UETRMP2L. This is where the Supreme Court explained how to do regulation matching. The state latches on to “it doesn’t have to be an exact match, so our horrible, not even close, matches should be allowed.”
So the state made a second motion to brief Rahimi to the court. This time they included the language they felt would save their case.
The judge said “no” a second time.
So the state, instead of requesting permission to brief the court on Rahimi, submitted a notice of supplemental authority regarding Rahimi. This was not the simple, “We wish to bring to the court’s attention that Rahimi was decided, no, this was a short brief with the state’s arguments.
Therefore, the court said “no” again, a bit more forcibly.
MINUTE entry before the Honorable Iain D. Johnston: Ms. Foxx’s notice of supplemental authority [106] is stricken. The Court is aware of Rahimi and has already denied two motions raised in light of Rahimi. The Court is making every effort to issue its opinion in a timely manner, and these filings are hindering those efforts. Please stop.
Missing citations for NWF7WIGT
Missing citations for NWF7WIGT
Alec Baldwin Gets Away with Murder?
Alec Baldwin’s case was dismissed with prejudice.
What does this mean, IANAL view point
Alec Baldwin was charged with involuntary manslaughter after he shot and killed his cinematographer, Halyna Hutchins.
The relevant facts: Alec Baldwin was holding a real gun. Alec Baldwin pointed the gun at a person. Alec Baldwin cocked the gun (pulled the hammer back and set it on the sear). Alec Baldwin then pressed the trigger, causing the gun to fire, killing Halyna Hutchins.
Irrelevant facts: Somebody told Alec Baldwin that the gun was unloaded (Treat every gun as if it is loaded). Somebody said they loaded dummy rounds into the gun (Treat every gun as if it is loaded). He says he did not pull the trigger, (Never point your gun at something you are not willing to destroy/kill.). In addition, he injured the director(?) (Be sure of your target and what is beyond it).
Other irrelevant facts: Baldwin is just a trained monkey. He can’t be expected to know the safety rules. Baldwin is so stupid that he should never have been handed a real gun. It was somebody else’s responsibility to make sure that the gun was “safe”.
Things went wrong on that set. Some of it appears to be Baldwin’s responsibility. Including rushing the safety crew, disregarding safety “suggestions” and overall shitty safety.
Case Dismissed, They Miss Trump, Again
There were several cases GVRed at the end of June. This is one of the methods the Supreme Court uses to communicate with the inferior courts.
What they are doing is telling the inferior courts, all of them, that this opinion we issued, applies to these sorts of cases.
The Loper Bright case was the death of Chevron. Chevron was the horrible opinion out of the Supreme Court that said, if the agency administrating a law thinks it is ambiguous, then it is ambiguous. If it is ambiguous, the courts must use the agency’s interpretation of the law.
Since the Chevron opinion, the Supreme Court has been attempting to “fix it”. The problem was that they needed the inferior courts to do rational, reasonable things. Too many of the inferior courts did not do reasonable, rational things.
Chevron became a catch-all for any power hungry agency.
The Loper Bright opinion told the inferior courts, “Stop avoiding your job. You are the final arbitrator on questions of law, not any party. Get out there and read the law and do the right thing.”
Judge Aileen M. Cannon did exactly this.
Trump’s team had filed a motion to dismiss his case based on the theory that Jack Smith did not have the authority to bring charges.
While everybody has been calling Jack Smith “The Special Counsel”, that is a position that must exist.
The Trump motion points out that the Constitution defines how “Officers of the United States” are appointed. Those officers are separated into “inferior” or “principal” officers.
Principal officers must be appointed by the President and confirmed by the Senate.
Jack Smith argues that he is an inferior officer.
While inferior officers can be appointed by the President and confirmed by the Senate, the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in Heads of Departments.
— U.S. Constitution
The state, through Jack Smith, argued that his appointment was lawful because it was done under an ambiguous law. Since it is an ambiguous law, the DoJ was able to say, under Chevron that of course they got it right.
But with Chevron dead, the Court looked at the law and determined that the DoJ did not have the authority to create the position. Since they could not create the position, Jack Smith had no special standing. I.e., his authority was no more than yours or mine.
This is another win for us. And this case was decided without a need for looking at Presidential Immunity for official acts.