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”
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.
An interesting thing is happening within the circuit courts, those judges who are tired of seeing the majority rubber stamp any infringement a state wants, are speaking out.
They are taking their lead from Thomas, Van Dyke and others who have spoken up to shed light on just how badly these rogue judges are behaving.
This unorthodox procedural posture bears some explanation. After hearing the case in December 2022, the initial panel majority reached a decision and promptly circulated a draft opinion. Yet for more than a year, no dissent was circulated. The panel thus held the proposed opinion in accordance with our custom that majority and dissenting opinions be published together. A year later—as the proposed opinion sat idle—a different panel heard arguments in United States v. Price (No. 22-4609), which also involved interpreting and applying Bruen. The Price panel quickly circulated a unanimous opinion that reached a conclusion at odds with the Bianchi majority’s year-old proposed opinion. Facing two competing proposed published opinions, the Court declined to let the earlier circulated opinion control. Rather, in January 2024, we “invoked the once-extraordinary mechanism of initial-en-banc review.” Mayor of Balt. v. Azar, 799 F. App’x 193, 195–96 (4th Cir. 2020) (Richardson, J., dissenting). I hope that we will not find ourselves in this posture again soon. Cf. United States v. Gibbs, 905 F.3d 768, 770 (4th Cir. 2018) (Wynn, J., voting separately) (suggesting that majority opinions may be issued without awaiting dissenting opinions to prohibit those dissenting opinions from exercising a “pocket veto” to “deny or delay fairness and justice”).
—No. 114 Dominic Bianchi v. Anthony Brown, No. 21-1255, slip op., n. 2 (4th Cir.) Richardson, dissenting.
This explains the game. The majority of the Bianchi merits panel found for The People. The minority refused to write his dissent. Because of “traditions”, the merits panel did not issue their opinion, instead waiting for the dissent.
Meanwhile, the Fourth was waiting for another 2A case to show up. That would be Price.
The Price panel decided the “plain text” question was worthy of considerable attention. Since Mr. Price was charged with a criminal act, the panel decided he wasn’t a part of The People. To use their words:
Again, Bruen’s first step requires us to evaluate whether “the Second Amendment’s plain text covers an individual’s conduct.” Bruen, 597 U.S. at 24. The Bruen Court asked three questions to resolve this inquiry: (1) whether the petitioners were “part of the people whom the Second Amendment protects”; (2) whether the weapons regulated by the challenged regulation were “in common use” for a lawful purpose, in that case, “self-defense”; and (3) whether the Second Amendment protected the petitioners’ “proposed course of conduct.” Id. at 31–32 (cleaned up).
—United States v. Price, No. 22-4609, slip op. at 11,12 (4th Cir.)
Boy is it cleaned up.
1) It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. —New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022) So the fourth is going down the path that the definition of “The People” in the Second Amendment is a subset of The People as used in the rest of the Constitution.
2) In common use, was not part of “plain text”. It was a reference to Heller‘s work, which states that the state cannot ban weapons in common use.
This is essential to note and understand. A weapon that is in common use cannot be banned. This does not mean that weapons that are NOT in common use may be banned. If a weapon is not in common use, then the government bears the burden of proving that there are firearms regulation in this Nation’s history which match the modern-day infringement.
3) “Shall not be infringed?” That appears to be pretty clear-cut.
There are 84 pages of this twisting of language in Price all to get to the point where they say “The plain text of the Second Amendment does not encompass the proposed conduct.”
The gist of this argument is the self-centered arrogance of the Fourth Circuit and the Seventh Circuit. When Justice Thomas wrote: Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. …—id. at 10 he did not claim that any of the Circuit Courts got it right, just nearly so.
Nevertheless, the Fourth circuit believes that Justice Thomas was speaking about them as having been “broadly consistent” with Heller in the past. Since they are the exception, they must have gotten it right the last time. Thus, they are correct in thinking that “plain text” has anything to do with common use.
In common use is only of use to The People. If an arm is in common use, it cannot be banned.
In Bianchi, the Fourth issued Price first, used that to justify their “We were broadly consistent before, we still are.”
So, in the minds of the Fourth circuit court, “plain text” is a sophisticated problem requiring detail examination of the etymological meaning of each word and phrase, ignoring the Heller Court doing exactly that, for them.
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, slip op., n. 2 (4th Cir.) to claim that the Second Amendment only protects militias.
We see this when they misconstrue —United States v. Price, No. 22-4609, slip op. at 11,12 (4th Cir.) to mean that “presumptively constitutional” means that any infringement is constitutional.
We see this when they misconstrue —New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022) 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.
—id. at 10 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 amberMissing 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
I grew up in an innocent age of TV and movies. The heroes were the guys in the blue uniforms and the white hats. The lawyers were evil men working for evil criminals, or they were good men doing good deeds. The press was there to expose the truth, to give us the facts.
The whole truth and nothing but the truth.
What I learned about the court system was that everything happened in the courtroom. It was where all the excitement was. Paying attention because some lawyer was going to expose the truth at the last minute to make their case.
Even modern legal dramas suffer from the same tropes.
As I have been reading and listening, I’ve found that most of the hard work comes long before the jury is sworn in. The excitement is buried in hundreds of words and page after page of motions.
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.
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.
In August 2022, Thomas and Diane Lamarco filed suit in the eastern district of New York. This is a different challenge to §922(g).
If you read §922(g), or you are familiar with from 4473, you know there is a long list of people that are prohibited from possessing firearms. We are currently arguing about the constitutionality of most of §922(g).
In Rahimi the Supreme Court said that people who have been adjudicated guilty in a court of law of being a credible threat of physical violence to another, can be temporarily denied their Second Amendment protected rights.
The Supreme Court has not said anything about non-violent people, nor about people who have served their time.
But did you know that there is another entire group of prohibited people? There is.
These are the people that reside on the same property as a prohibited person. The state assumes that if a person resides at a property, they have access to any of the firearms at that property. It doesn’t matter whether the firearm is secured or not. The state assumes the prohibited person has access.
At some point, officers responded to a “mental health assistance” call for somebody else at the residence. This response, in Suffolk County, means that the other residents lose their gun rights.
The LaMarcos make no effort to explain how the suspension of their pistol licenses supposedly constitutes a Second Amendment violation. Rather, they audaciously assert that they are not required to do so. They contend that under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022) (“Bruen”), decided after the suspensions, defendants must affirmatively justify their actions because the possession and carrying of handguns for self-defense is within the “plain text” of the Second Amendment.
—No. 114 Dominic Bianchi v. Anthony Brown, No. 21-1255, slip op., n. 2 (4th Cir.)
They want to keep and bear arms. The Second Amendment is implicated. The burden shifts to the state to prove a historical tradition of matching firearms regulations in this Nation’s history.
This was filed on July 1st. The court was having none of it.
In its papers, the Suffolk County Attorney fails to argue the proper application of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111 (2022) by dodging the issue, asserting that the subject matter of this case is somehow outside the ambit of the Second Amendment. See Docket Entry 28-35 at 11-13. This assertion is spurious, seemingly interjected for dilatory purposes. It is obvious that this case involves the proper application of the Second Amendment, and arguments surrounding Bruen are critical to its proper resolution. Indeed, Ms. Zwilling, the Assistant County Attorney handling this case, is well aware of the applicability of the Second Amendment given her work in Torcivia v. Suffolk Cnty., New York. 409 F. Supp. 3d 19, 36 (E.D.N.Y. 2019), affid, 17 F.4th 342 (2d Cir. 2021) (“There can be no question that [Suffolk County’s] Revocation and Seizure Policies implicated conduct within the scope of the Second Amendment. At least least one of the Policies resulted in the revocation of Plaintiff’s pistol license and the temporary seizure of Plaintiff’s firearms, and limited Plaintiff’s ability to possess handguns.”). Moreover, the County’s assertion that Bruen is not retroactive is equally preposterous. See, e.g., Passalacqua v. Cnty. of Suffolk, No. 19-CV-5738 (GRB)(SIL), 2022 WL 21795141, at *3 (E.D.N.Y. Dec. 9, 2022) (“Further, the fact that the events at issue took place prior to the Supreme Court’s decision in Bruen has no bearing on its applicability to the present motions.”) (citation omitted). Notably, Ms. Zwilling also represents the County in Passalacqua. Thus, the County is DIRECTED to file a supplemental brief of no more than 10 pages setting forth its position on the proper application of Bruen and United States v. Rahimi, No. 22-915, 2024 WL 3074728 (U.S. June 21, 2024) to the pending motion within 10 days. Counsel for plaintiffs shall have two weeks to file a response. Given the absence of a good faith basis for the County’s position, the Court will, pursuant to Rule 11, award Plaintiffs’ attorneys’ fees for the preparation of this supplemental brief. Ordered by Judge Gary R. Brown on 7/2/2024.
This is a text order, there is no citation to a paper. It is in the docket for the case.
This is a spanking of the state. No doubt about it. Good news.
The process for an appeal is to request that a case be heard. When the superior court Grants that appeal, the case is moved to a final opinion. One of the possible outcomes is that the inferior court’s opinion is Vacated.
When an inferior court’s opinion is vacated, the superior court has an option to Remand the case back to the inferior court for a do-over.
When the superior court does this without hearing anything from the parties outside the request to be heard, it is called “GVR”.
If the superior court were to just “GVR” a case, it wouldn’t be helpful to the inferior court. Nobody learns from “You are mistaken, do it over.” There needs to be some level of feedback.
On July 2nd, 2024, the Supreme Court issued their final orders of the 2023 term.
The State of Illinois enacted a law that makes it a felony to possess what Illinois branded “assault weapons,” a term defined to include AR–15s. See Ill. Comp. Stat., ch. 720, §5/24–1.9(a)(1)(J)(ii)(II) (West 2023). “The AR–15 is the most popular semi-automatic rifle” in America and is therefore undeniably “in common use today.” Heller v. District of Columbia, 670 F. 3d 1244, 1287 (CADC 2011) (KAVANAUGH, J., dissenting); see also Garland v. Cargill, 602 U. S. 406, 430–431 (2024) (SOTOMAYOR, J., dissenting) (describing “semiautomatic rifles” such as the AR–15 as “commonly available”). Petitioners sought a preliminary injunction against the enforcement of the law, arguing that the law violates their Second Amendment right to “keep and bear Arms.” The Court of Appeals for the Seventh Circuit rejected petitioners’ request for a preliminary injunction, concluding “that the AR–15 … is not protected by the Second Amendment.” Bevis v. Naperville, 85 F. 4th 1175, 1197 (2023). According to the Seventh Circuit, the rifle selected by millions of Americans for self-defense and other lawful purposes does not even fall within the scope of the Arms referred to by the Second Amendment.Ibid. This Court is rightly wary of taking cases in an interlocutory posture. But, I hope we will consider the important issues presented by these petitions after the cases reach final judgment.
—No. 114 Dominic Bianchi v. Anthony Brown, No. 21-1255, slip op., n. 2 (4th Cir.) Statement of Justice Thomas
We knew that Sotomayor wasn’t the sharpest crayon in the box, I love how Justice Thomas cites to her opinion saying that AR-15s are in common use.
…does not even fall within the scope of …: That should have Easterbrook and Woods looking for a rock to crawl under. That is a strong rebuke, coming from the Supreme Court.
