Legal

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.

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.

This story showed up in my feeds. I took note of it because, of course, they blamed the death of this poor black man on the conservative Supreme Court justices.

The three liberals, would have granted the stay, but the six justices that insist on following the law did not.

So what is the actual case?

On August 11, 1998, F.G. was murdered in her home. A jury convicted Marcellus Williams of first-degree murder, first-degree burglary, and first-degree robbery, and two counts of armed criminal action.

The court then sentenced Williams to death for the first-degree murder.

The case was State v. Williams, 97 S.W.3d 462, 466 (Mo. 2003) (Williams I).

Williams then appealed to the supreme court of Missouri. After briefings were received, they issued a unanimous option denying Williams’s appeal and affirming the lower court’s judgement of convection and sentence.

In 2013, Williams filed a writ for certiorari with the Supreme Court, which was denied.

Williams asserted that DNA evidence would show that he was innocent.

The case went up and down multiple times before that issue was put to rest. Remember, the lack of DNA does not mean that a person did not commit the crime.

One of the most famous cases of this was the Central Park five. A young woman was stopped in Central Park by a pack of animals. They beat and raped her, leaving her severely injured. I do not remember when/if she died.

Of that large pack of animals, 5 were brought to trial and found guilty. The evidence that convicted them was their confessions. These confessions were given with their mothers present.

As an example, one of them stated, “I didn’t rape that woman, I just held her down while ??? raped her.”

This is an admission of guilt of the crime of rape.

Was his DNA found in or on the victim? No. It doesn’t matter. He admitted to doing the crime. He was found guilty by a jury of his peers.

Later, a jailhouse confession by a man serving life sentence(s), with no option to ever leave prison, confirmed that the convict did rape the victim.

This does not change the guilt of the original animals. The juries knew that there were unindicted individuals who took place in the gang rape. The juries knew that the animals on trial did not physically penetrate the victim. It does not matter.

20+ years after the crime, they were set free. They were “innocent”. No, they were not.

Back to Mr. Williams, his conviction was by jury. Multiple attempts to overturn that conviction happened. His case was before the Supreme Court, asking for a writ of certiorari 3 or 4 times. It was denied every time.

In the latest trip to the Supreme Court, there were 6 conservative justices. There was a majority of liberal, results-based justices on the court when the case was appealed originally. Those majorities did not grant cert. either.

The new appeal claims, not that Mr. Williams is innocent of the crimes for which he was convicted, no. It is a claim that he was only convicted because the prosecutor was racist.

When a case is going before a jury, the parties get to evaluate the potential members of the jury. These people are formerly known as “venirepersons”.

Each party has several peremptory strikes. These can be used to exclude any venireperson. No reason needs to be given. They can be excluded because the party thought they read too much, or too little. They are allowed.

In addition to the peremptory strikes, the parties can challenge a venireperson for cause. “Do you know any of the people involved with this case?” “Yes, you prosecuted my little brother last year.”

There were 131 venirepersons in total. Only 7 were black. The prosecutor struck six of them peremptorily.

What was the racist thing that the prosecutor did? He dismissed one of those six men because he thought the two men looked similar.

So, the left is very upset. They are very upset that a murder was executed for murdering a woman over 25 years ago.

They have not proven that he was innocent. He had the presumption of innocents when on trial before a jury of his peers. In his appeals he has to prove that he is innocent or that new evidence, if the jury had known about it, would have caused them to reach a different verdict.

This murder was long overdue, his chance to present his case to Saint Peter.

Creating rules for anything, a game, a business, the interaction between parties, there can be negative rules, or there can be positive rules.

You can have a set of negative rules. You cannot touch the ball with your hands. This is a rule in soccer.

What was the original intention? We don’t know. What we do know is that it is legal to hit the ball with your head, knees and body, as long as you don’t touch the ball with your hands.

This means that what is not forbidden is allowed.

If on the other hand, the rules are written in a positive mode. You can only touch the ball with your legs from the thigh down. You have inverted the restrictions. What is not permitted is not allowed.

You don’t have to state “you cannot touch the ball with your hands”. This is subsumed from the default negative. If it is not permitted, you cannot do it.

Our Constitution was written as a set of positive rules for the government. The government is authorized to do X, Y and Z. They are, by design and default, not allowed to do A through W.

When the Bill of Rights was ratified, we added negative rules. “Congress shall make no law…”

There is no conflict between the amendments and the original Constitution. The Bill of Rights made explicit that which was implicit. The government shall not do C, G, and W!

Unfortunately, this left the door open for the government to do evil. “Since the Constitution doesn’t say anything about A, B, and D, we can intrude in that area!”

The explicit addition to our Constitution made this argument possible.

Since the state always seeks to increase their power over The People, this is a fight that has been going on for decades.

In Bruen, the Court made it clear that the state must …demonstrate that the regulation was consistent with this Nation’s historical tradition of firearm regulation. —No. 114 Dominic Bianchi v. Anthony Brown, No. 21-1255 (4th Cir.).

The state bears the burden of demonstrating to the court that the law is consistent.

Not the plaintiffs, (Good Guys), nor the court, but the state.

For the state, this is a losing position. “Shall not be infringed!” is powerful language. They want that history to be as open as possible and as wide-reaching as possible.

In the early post-Bruen cases, they through the legal dictionary at the wall to see what would stick. In Duncan, the first iteration of “historically reinvent” regulations ranged from the 1500s through the mid-1900s. They were forced to reduce that for their second iteration, I think it was limited to 50 or 100.

Today, they are attempting a different path. Using the Rahimi language, Bruen was “not meant to suggest a law trapped in amber.Missing citations for GE7W7FBY as amplified by Justice Barrett:

Under Bruen, silence in the historical record indicates that the current has no support in this Nation’s historical tradition of firearms regulation. Now, the state claims that silence does not mean a loss. Instead, they claim that it just indicates that they didn’t wanna at the time. They could have, if they wanted to. Since they could have, the state is now authorized to do so today.

This shifts the burden to The People to show that the state in 1791 not only didn’t want to pass such regulations, but instead were prohibited by the Second Amendment.

Nasty stuff.

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.

In the best of worlds, the courts would work to enforce the laws as they were meant. We wouldn’t have judges and justices that are so goal-driven that their wants forces a predetermined outcome.

The state passes a bad law. The People file a suit challenging the law. They request a temporary injunction, a preliminary injunction, and summary judgement.

The court looks and agrees that the law is likely bad and grants the TRO. The parties file briefs, the court grants the preliminary injunction as well. The case does or does not succeed on a summary judgement and moves to arguments.

The case is heard by the court, the court issues their final judgement, or they issue the summary judgement in favor of The People

The state files an appeal. The administrative panel reads the court’s judgement, allows it to stay in place, schedules the case for a hearing before a merits panel. The merits panel looks at the case law and the lower court’s opinion and finds for The People.

The state pleads for an en banc hearing. The court denies the request.

The state file a motion for certiorari with the Supreme Court. The Supreme Court denies cert, case over. The People win.

Unfortunately, that is seldom how it works.
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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”

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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 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:

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. Missing citations for 75DAVPP7 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. …Missing citations for 75DAVPP7 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 (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.