Legal

On September 26, 2023, Governor Newsom signed a bunch of infringing laws into effect.

The Bad News

The bills were:

SB 2

Restricting who gets CCWs. The minimum age to get a CCW of 21. More training and making most of California a “sensitive place”.

SB 452

Require microstamping on all guns sold or transferred by 2028.

AB 28

11% excise tax on firearms and ammunition

AB 455

Prohibit people in “mental health diversion programs” from possessing firearms

AB 725

Requires reporting when chunks of aluminum or plastic or lost or stolen as if they were firearms.

AB 732

Makes it easier for the state to remove firearms from people

• AB 28 by Assemblymember Jesse Gabriel (D-Encino) – Firearms and ammunition: excise tax.
• AB 92 by Assemblymember Damon Connolly (D-San Rafael) – Body armor: prohibition.
• AB 97 by Assemblymember Freddie Rodriguez (D-Pomona) – Firearms: unserialized firearms.
• AB 301 by Rebecca Bauer-Kahan (D-Orinda) – Gun violence restraining orders: body armor.
• AB 355 by Assemblymember Juan Alanis (R-Modesto) – Firearms: assault weapons: exception for peace officer training.
• AB 455 by Assemblymember Sharon Quirk-Silva (D-Fullerton) – Firearms: prohibited persons.
• AB 574 by Assemblymember Reginald Byron Jones-Sawyer, Sr. (D-Los Angeles) – Firearms: dealer records of sale.
• AB 724 by Assemblymember Vince Fong (R-Bakersfield) – Firearms: safety certificate instructional materials.
• AB 725 by Assemblymember Josh Lowenthal (D-Long Beach) – Firearms: reporting of lost and stolen firearms.
• AB 732 by Assemblymember Mike Fong (D-Alhambra) – Crimes: relinquishment of firearms.
• AB 762 by Assemblymember Buffy Wicks (D-Oakland) – California Violence Intervention and Prevention Grant Program.
• AB 818 by Assemblymember Cottie Petrie-Norris (D-Irvine) – Protective orders.
• AB 1089 by Assemblymember Mike Gipson (D-Carson) – Firearms.
• AB 1406 by Assemblymember Kevin McCarty (D-Sacramento) – Firearms: waiting periods.
• AB 1420 by Assemblymember Marc Berman (D-Menlo Park) – Firearms.
• AB 1483 by Assemblymember Avelino Valencia (D-Anaheim) – Firearms: purchases.
• AB 1587 by Assemblymember Philip Ting (D-San Francisco) – Financial transactions: firearms merchants: merchant category code.
• AB 1598 by Assemblymember Marc Berman (D-Menlo Park) – Gun violence: firearm safety education.
• SB 2 by Senator Anthony Portantino (D-Burbank) – Firearms.
• SB 241 by Senator Dave Min (D-Irvine) – Firearms: dealer requirements.
• SB 368 by Senator Anthony Portantino (D-Burbank) – Firearms: requirements for licensed dealers.
• SB 417 by Senator Catherine Blakespear (D-Encinitas) – Firearms: licensed dealers.
• SB 452 by Senator Catherine Blakespear (D-Encinitas) – Firearms.

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The Good News

The Great News

This little form says that Judge Carney grabbed this case. He likely grabbed any others filed in C.D.Cal.

Why is great news?

This is the same judge who recently found for the plaintiffs (good guys) in Lance Boland v. Robert Bonta, 8:22-cv-01421, (C.D. Cal.). He followed Bruen and got it mostly right. This means that he can move rapidly and will likely issue a TRO and preliminary injunction shortly.

This is a case worth watching. Not to see what happens, but to see how rapidly it happens.

(Words 1200)

Just what the title says, a number of cases with either short histories or simply where the are in the process.

National Rifle Association v. Commissioner, Florida Dept. of Law Enforcement, 21-12314, (11th Cir.)

Suit filed in March 2018, Eleventh Circuit court 2 judge panel hears oral arguments heard March 24, 2022. On March 9, 2023, the panel decides that 18,19, and 20-year-olds are not Part of the People. The opinion was vacated the same day. On July 14, 2023, the Circuit Court decided to hear the case en banc

Currently waiting for scheduling orders.

United States v. Rahimi, 21-11001, (5th Cir.)

Cert granted by the Supreme Court. Oral arguments to be heard in the term starting October 2023.

United States v. Connelly, 23-50312, (5th Cir.)

A criminal case was opened in Jan. 2022. The Connelly’s were charged with a violation of §922(g)(3). The trial judge (criminal trial) found for Connelly. The state appealed to the fifth circuit on May 4, 2023. Briefings not yet submitted. Oral arguments not yet scheduled.

Ocean State Tactical, LLC v. State of Rhode Island, 23-1072, (1st Cir.)

Case opened June 23, 2022. Magazine ban law. The District court found that magazines are not arms on December 14, 2022. Appealed on January 13, 2023. Oral arguments were heard on September 11, 2023.

Waiting for the three judge panel’s opinion.
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B.L.U.F.
The Ninth Circuit has a history of ruling against The People in Second Amendment cases. I heard that they are 0 for 50. Not verified.

This is the story of just one 2A case. It is very long. About 4 hours of writing and research. Even if you don’t want to read my description of the history of this case, please take the time to read the dissents. (link updated to work.)

(3900 words)

In May 2017, a hero steps forth to do battle with the great leviathan which is the California anti-gun state.

Virginia Duncan files a lawsuit challenging California’s magazine ban. Since 2008, when the Heller Court stated that the Second Amendment protected an individual, the rogue courts had been rubber-stamping every gun control regulation the states could dream up.

She was just another Don Quixote, tilting at windmills, hoping to accomplish something. There was little or no chance of winning. Even the most inferior courts, the district courts, would be against her.

A judge was pulled at random and assigned to her case. Judge Roger T. Benitez was his name. Luckily for Virginia, he was a rogue judge.

A rogue judge or court is a court that mouths the words of their superiors, yet finds ways to disobey even the clearest of instructions.

Judge Benitez was just such a man. In the plaintiff’s motion to dismiss, they state it bluntly, California’s magazine ban is unconstitutional.

It is important to note that they are using the most powerful case law available to them, Heller. In particular, they make the claim that “in common use” means that it can’t be banned. If the item is an arm that is in common use today, then it is protected under the Second Amendment.
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B.L.U.F.
A gag inducing opinion from a rogue court.
(2900 words)

Who is Dimke

Dimke graduated from Pepperdine University in 1999 before entering Vanderbilt University School of Law, where she graduated with a J.D. in 2002. From there she went to clerk for Alan B. Johnson, a Reagan appointee. Likely because he did his undergraduate work at Vanderbilt. From there, she moved on to clerk for Richard C. Tallman on the Ninth Circuit.

Tallman is a Bill Clinton appointee. His professional career starts in the government. He was a DoJ lawyer and then Assistant United States Attorney in Seattle. From there, he went into private practice, focusing on white-collar criminal defense.

According to Wikipedia, his notable opinion was:

After clerking for Tallman, Dimke became a DoJ Trial Attorney, then an Assistant U.S. Attorney. From 2012 through 2016 she was the Assistant U.S. Attorney for the Eastern District of Washington.

In 2021, Biden nominated her as a Judge for the Eastern District of Washington.

This is a person who has spent her entire career working for the government. As a government lawyer, she gets to choose what cases she prosecutes. If she doesn’t think she can win in court, she can plead the charges down or get some other “win” without having to go to trial.

Her job for all those years was to get wins for the state.

Steps To a Win

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B.L.U.F.
On September 22nd, Judge Benitez entered his decisions, finding that California’s ban on magazines was unconstitutional. Later that afternoon, the state gave notice of its appeal to the Ninth Circuit. On October 2nd, the temporary stay issued by Judge Benitez will expire. If the Ninth Circuit does not issue a stay before then, California will have its second freedom week in four years.

If there is such a tight schedule, why did the state delay until Tuesday the 26th to file for an Emergency Stay?
(1800 words)

The state is arguing that they need the stay because having magazines “flood into the state” will cause death in the street and more mass shootings. Emotional blackmail.

What is their reason for an appeal?

Lower courts would rather not be first in any major decision. This is likely why the Fourth and Second Circuit haven’t released their opinions. They would prefer those first cases to come from some other circuit, so they don’t get slapped down.

When arguing a case, the parties want to be able to reach for the highest authority they can. Citing legislation, legislative history, doesn’t work very well. What works is when the party can point to a superior court’s ruling on the legislation.

Some kid says, “I don’t have to identify because the law says I only have to identify if I have been lawfully arrested. I’m not under arrest, I don’t have to ID.” This might be true. It doesn’t mean much. If that same kid points to a district court ruling that says the same thing, that might mean something, but only if that district court oversees this area.

If the circuit court overseeing the area has said the same thing, that holds still more weight.

Strangely enough, a Supreme Court ruling does not. That’s because the Supreme Court’s rulings have to be “interpreted” by the appeals court.
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B.L.U.F.Is this the next case to head to the Supreme Court? The 10th Circuit found that a convicted felon does not have a constitutionally protected right to possess firearms.

(1000 words)

In 2020, Melynda Vincent filed to have §922(g)(1) overturned as applied to her. In 2007, she was a drug addict and tried to pass a bad check for less than $500. She was arrested and put in to drug rehabilitation. She came out of drug rehab before her court case and has been clean since then.

In court, she pleaded “guilty”. This has a sentencing guideline charge for multiple years with no option of probation. The court sentenced her to 0 years in prison and probation. She completed her probation early. She has had no other negative interactions with the law/courts.

At the district court level, the court used the Tenth Circuit Court’s opinion in United States v. McCane. McCain was a felon in possession case, which the Circuit court ruled in 2009 was constitutional.

The important part of their decision was that they did not do means-end to make that determination. Instead, they relied on Heller.

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B.L.U.F. Hunter might get off the hook on counts 1 and 2 if count 3, §922(g)(3) is struck down for constitutional reasons.

(450 words)

Emphasis added.

Form 4473 asks a series of questions, as well as having several places for you to fill in your information. It is pretty clear that if you lie in the section asking questions to determine if you are a prohibited person, you are lying about a material fact. What if you were to write the wrong county down? Is that a “material fact” with respect to acquiring a firearm?

It doesn’t seem to be. While it would not surprise me to learn that the ATF pulled an FFL’s license because somebody misspelled the county name, I don’t think anybody has been prosecuted for misspelling the county name on a 4473.

Emphasis added.

The information required is only required if it is a “material fact”.

The short of it is that if this was anybody with an R after their name instead of a Biden, counts 1 and 2 would hold. Even if count 3 and 1 are tossed, count 2 would likely still hold.

Hunter’s lawyers will use Bruen and the other cases against §922(g)(3) to argue that the law is unconstitutional. They are likely to win. Biden, don’t you know.

If count 3, §922(g)(3) is tossed, does §922(a)(6) still stand? If being a user of a controlled substance in not a “material fact” then count 1 goes as well.

This means that only count 2, §924(a)(1)(A) still stands. If being a user of a controlled substance is not material, then is the information required?

All in all, it looks like a good case for the Second Amendment, a poor case for justice. As more than one pundit has pointed out, this is one of the few crimes that Hunter could have been charged with that does not implicate his father.

H/T Mark Smith

B.L.U.F.

The Attorney General of New Jersey has filed a brief (100 pages!!!!) explaining why New Jersey’s de facto carry ban is actually constitutional.
(1900 words)

Analysis and Rant

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B.L.U.F.
Mr. Fraser is the lead plaintiff in a challenge to 18 U.S.C. §922(b)1. Normally, we are concerned about the different parts of §922(g), prohibited persons. §922(b)1 is the probation on those under 21 purchasing handguns or handgun ammunition.

We won. The case is held pending appeal to the Fourth Circuit court.
(1500 words)

Case History

The Plaintiffs (good guys) filed this case on June 1st, 2022. Just a few days before Bruen. The original complaint says §922(b)(1) “violates the fundamental rights of millions of responsible, law-abiding American citizens …”—ECF No.1

Nearly a half year later, the state responds with:

1. You can just get your mommy or daddy to buy a gun for you
2. We’ve always had the ability to deny the sale of firearms to people under the age of 21
3. At the founding, those under 21 were infants and minors
4. Their claim of Fifth Amendment violation fails because your age isn’t protected data.
5. Besides, the court can offer any relief to the plaintiffs, so there.

That bit about the Fifth is saying that you can’t incriminate yourself by giving your age. Therefore, it is not protected information. They, of course, fail to mention that it is incriminating when you would be inviolate of regulation by your conduct at a particular age.

As for “History and Tradition” they have 20 some pages of regulations, the earliest in 1856, the rest 1876 or later. Not really a history nor a tradition, but this is one of the early cases post Bruen where the state was still feeling out just how underhanded they could be.

And like a bad penny, we see Giffords, Brady, Everytown jump into to agree 100% that the plaintiffs don’t have standing.

In an interesting turn, they are suing Garland and Dettelbach in both their official capacity and as individuals.

Wouldn’t it be wonderful if some of these state actors were actually held responsible for what they do?

Commercial Sales And Purchase of Firearms That Are Not Unusually Dangerous Constitute Conduct Within The Scope of The Second Amendment. … ECF No. 28. Double emphasis added. This is horrible phrasing and every lawyer who uses it should be taken out behind the woodshed and given 50 lashes.

The correct phrasing is dangerous and unusual. “Unusually dangerous” is a subjective opinion. “Unusual” is an objective measurement, as stated in [xCite item=”ACUPYBTA” pos=0]

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This is a 99.9% win for the good guys.
(750 Words)

Back in 2015, Maggie Smith filed a class action suit against the District of Columbia.

She alleges that the District had created a total ban on gun ownership and a total ban on carrying outside the home. She points out that the District did this in such a way as to avoid the appearance of a total ban.

The District first put into place laws that required all hand guns and ammunition to be registered. Then they created so many obstacles to registering a hand gun that it became a de facto ban.

In addition, the registration scheme was only available to residents of the District, meaning that it was impossible for people that didn’t live in the city to be able to carry a hand gun.

For those of you that don’t know, DC used to be 100 square miles, 10 by 10. 50 square miles came from Maryland and 50 square miles came from Virginia. When Virginia seceded from the Union, it took back its land. Most of the remaining 50 square miles is filled with office buildings, government buildings, public buildings and some apartments.

There are also the slums.

Most of the people that work in the District commute into the District. They drive to just outside the beltway and then ride the Metro into the city proper. Fast, easy, convenient.

What this means is that most of the people you see in DC don’t live in DC. Under the District’s registration scheme, most of the people who worked in DC had no chance to legal own a hand gun.

Yes, it was that difficult. It made getting a CCW in New York City seem easy.

On Monday, we got some great news.

This is that big of a win because it won’t be appealed. Since both parties agreed to the settlement there is nobody to contest or appeal.

Every so often the good guys do win.
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