Legal

Normally, I would spend time analyzing a filing. This particular filing is by the Appellants/Plaintiffs (good guys). It is a good history of DC gun infringements over the last decades.

(1100 Words)

The Rahimi case has brought out all the normal infringers, along with a number of lesser known groups and people. They filed numerous amicus curiae briefs. I had intended to do a brief look through them all. Nope, no, forget it. Too much pain. What follows is a sampling of the first few, along with a couple of others I found interesting. Most of the text came from the table of contents. Take it for what you will.

(2300 words, mostly theirs)

If you want to go read these yourself, they are all on the Supreme Court’s webpage under the Rahimi case.
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-915.html

American’s Against Gun Violence

1. Bruen’s “text and history” test, applied in Rahimi, relied on two deeply flawed assumptions
   1. Both Bruen and Heller are based on the false premise that the text and history of the Second Amendment established an individual right to own a gun
      1. The “well regulated militia” clause refers to the right to possess and use firearms in connection with militia service
      2. The “keep and bear arms” clause refers to a right to possess firearms if needed for and in relation to military activities
      3. The Second Amendment did not codify any right inherited by English ancestors because no such individual right to own firearms ever existed
      4. The drafters of the Second Amendment knowingly did not include language to provide for an individual right to possess firearms for self-defense
      5. Heller and Bruen improperly departed from this Court’s interpretation of the Second Amendment
   2. Bruen’s framework is also improper because it compels a foregone conclusion and perpetuates the myth that gun ownership is important for individuals’ safety and self-defense
2. Heller and its progeny “threaten the breakdown of law and order” as Justice Breyer warned in the Heller dissent
   1. Gun related deaths have been significantly increasing since Heller
   2. Gun ownership conveys a greater risk than benefit
   3. Gun related deaths in the United States far exceed those of any other high-income country

American Medical Association

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Why is this of interest in the Second Amendment

It has been litigated at the Supreme Court three times now. The right of The People to keep and bear arms is an individual right. This is shown by dictionary meanings of “to bear” and “to keep”. It makes plain sense.

It is also a plain reading of the text.

The infringers want our right to self-defense to be restricted. Horribly restricted.

The easiest way to do that is to get rid of that nasty old pest, the Second Amendment.

How they do that is to attempt to make things “not arms”. They are failing. They attempt to make it not apply in this particular location. That is being challenged and they expect to lose.

They are also attempting to redefine what “The People” means to exclude most, or at least make the process of becoming a member of “The People” a matter for the state. In other words, the state wants “The People” to mean only law-abiding, responsible citizens, as defined by them.

There is another attack vector they are using. They want the Second Amendment to be a collective right, granted to the organized militia controlled by the state.

The path they are using is corpus linguistics. The gist of which is they take all the written works from that culture, as defined by location and time, and create a “normal” meaning.

Since the term “bear arms” appears primarily in the context of armies and militias, the state, and their amicus, claim that “to keep and bear arms” exists only in the context of the Militia.

Let’s take a modern version of this. The workword “Fuck”.

To fuck has a dictionary meaning of “have sex with someone” or “an act or instance of having sex.”

If we were to collect all the uses of the word “fuck” in the United States for over the last decade (or more) we would find a different “normal” meaning. That would be more of a word of contempt, “fuck you”. Or of annoyance, “Fuck it”. Or, as just a way of adding emphasis, “clean your fucking room.”

The Supreme Court isn’t stupid. They saw through this the last time it was brought forward, and many times before.

That never stops the infringers. When we are all dead and gone, if there is still a protected right to keep and bear arms, you can bet your bottom dollar that there will be infringers out there making the same tired arguments.
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B.L.U.F.
A look at an early 20th century firearm regulation.
(700 words)

I Am Not A Lawyer. I’ve never taken a prelaw course, I’ve never attended a Law School. My interactions with lawyers have been few and far between. What I am is a geek that enjoys understanding. I will often spend far too much time figuring something out that I will never use again. Until I need it.

In looking at the history of firearm regulation, the first federal firearm regulation is the National Firearms Act of 1934. It was my understanding that the next major firearms regulation was the Gun Control Act of 1968. This was followed by the Firearm Owner’s Protection Act in 1985, The Brady Handgun Violence Prevention Act in 1993, the Public Safety and Recreational Firearms Use Protection Act of 1994(AWB) and a few others since then.

At the state level, there were few from 1791 through the 1850s. The first real infringements on the state level happened after the War of Northern Aggression. The first major state level bill was New York’s Sullivan Act of 1911.

I completely missed the Federal Firearms Act of 1938.

Because Robert Spitzer cited the Federal Firearms Act, I became aware of it. I found the original text.

Constitutional Basis For the Infringement

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B.L.U.F.This case is before Judge Benitez. I believe he has a hearing scheduled for mid-September on the merits of the case. In response to the defendants (bad guys/state) whining that the case should be evaluated through the eyes of an expert or historian. Judge Benitez ordered the defendants to declare their experts and to allow the plaintiffs (good guys) the opportunity to dispose them.

The state went back to the well of Spitzer and Vorenberg for another set of declarations. They added Jennifer M McCutchen to the list of infringement loving experts as well.

(2300 words)

Who Are the Players

Jennifer M McCutchen is an Assistant Professor at the university of St. Thomas, Minnesota.

Michael Vorenberg, associate professor of history at Brown University. In his words:

We round out our merry band of word weasels with Robert Spitzer, in his words:

Robert’s Attempt at Matching

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B.L.U.F. The United States filed a brief with the Supreme Court where they argue that the definition of “The People” is in the hands of the state. And other reasons why the state gets to decide when the Second Amendment applies.

(3,800 words)

The Question

The question is well-formed and well suited to an opinion by the Supreme Court. This is a dangerous gamble for the state. While they are looking at specifically §922(g)(8) there is nothing to keep the Justices from looking at all of §922(g).

If the Justices decide to look at more than just §922(g)(8) they could very well throw out much of the GCA. In addition, it is likely to put a hurting on many other infringements and infringement arguments.

Double emphasis added.

That one sentence is what all infringements hang on since Heller. “Not unlimited” means that the states have been searching for the limit ever since. They will push until a court stops them.

Post Bruen they are losing, but this one sentence is still their foundation.

It is also important to note that Scalia was explicit about “felons and the mentally ill”, but omitted all the other prohibited classifications. This is reading into dicta what was not said. Doing it from our side is just as bad as when the state does it from their side. Though I like to think that the side of the Constitution gets it correct more often than not.

In my opinion, the nothing in our opinion should be taken to cast doubt on … was added to this opinion to get the more left—leaning Justices to sign on, in particular, Justice Roberts.

The Statements with Embedded Assumptions

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Hopefully, a short one.

4473 and the Gun Control Act of 1968, as amended

All of us have had the pleasure of filling out a form 4473, waiting for some bureaucrat decides that we are good enough to exercise our right to keep and bear arms, and finally give us permission. Most of form 4473 is bogus. It is designed to do a few things.

To capture owner identification and associate it with one or more firearms, a registry. To for the seller to keep an accurate inventory. And to catch people out in lies or mistakes.

The ONE reason it supposedly exists, is to allow the government to do a background check. Are you a prohibited person?

Now, let’s say you or I go in and lie on the 4473. It doesn’t matter where, it is a lie designed to allow us to purchase this particular firearm. If we are not prohibited people, we are guilty. On the other hand, the courts have ruled that it is a Fifth Amendment violation for a prohibited person to self report on a 4473.

Yep, if you are an actual prohibited person, and you lie about it on a 4473, you don’t get in trouble. If you are not a prohibited person and lie, you do get in trouble.

All the authority for the ATF to force the 4473 on us comes from the Gun Control Act of 1968, as amended. In particular, §922(g).

§922(g) is the list of things that make you a prohibited person.

§922(g)3 is the prohibition on being an “unlawful user” of a controlled substance. I.e., they partake of marijuana or other drugs.

Our Story

Our story begins when Patrick Darnell Daniels, Jr, was driving along, minding his own business, when a couple of LEOs pulled him over. They pulled him over for driving without a license plate.

It just so happened that one of these officers was a DEA agent. It is almost as if the DEA agent was looking for reasons to “investigate” vehicles he was interested in.
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B.L.U.F. A follow on to the Hoover case regarding sentencing.

Yesterday, in Policies are not laws, we discussed how sentencing guidelines work. A short recap:

The courts use a rubric to decide the range of sentences that should be imposed. One axis is the “level” of the crime, the other is the category of criminal. Before sentencing, the court gathers all the information required to use the table. This is done by the Bureau of Prisons using local community resources.

Once the PSR is completed, the prosecutor reviews it, makes changes where required, presents it to the defense. At a hearing, the parties argue over the PSR, and then it is in the Judge’s hands.

The prosecutor will recommend a sentence based on the guidelines. The judge gives the final sentence.

The facts in this case are that Dayonta McClinton and his friend robbed a pharmacy. Afterward, the two got into a dispute and McClinton’s friend was shot and killed.

McClinton was arrested and charged with robbery and murder.

The base level for First Degree Murder is 43 points, which is for premeditated. It looks like the shooting was Second Degree Murder at 38 points.

McClinton was found not guilty of murder in a jury trial. The prosecution was not happy with this.

McClinton was found guilty of robbery. I am going to assume armed robbery. The base level for robbery is 20 with a modifier of 6 for a total of 26 points.

At 26 points, he is up for 63 through 150 months, depending on Criminal History Category. The category is based on how often he has been incarcerated and for how long. There are also modifiers for doing crime while being on probation.

My Google foo is not up to finding criminal histories. My guess is that he is a Category III with 3 to 6 points.

In our table, that gives a sentencing of 78–97 months, or 6.5 to 8 years.

That seems like a reasonable punishment for armed robbery, if the criminal did not achieve room temperature during the act.

Unfortunately for McClinton, that isn’t what happened.

Even though McClinton had been acquitted of murder, the prosecutor used the accusation/charge of murder to modify the location on the sentencing table. This could have been adjustments for the Armed Robbery, or it could be adjustments in the Criminal Category.

If McClinton is bumped up just one category, his sentencing range goes from 78–97 to 92–115. That is a maximum duration of 9 2/3 years, up from 8 years.

But let’s say that the prosecutor added 3 points to the level and bumped him that one category. That takes us to 121–151 months, 10 to 12 1/2 years.

All because he is being sentenced based on a crime he was found not guilty of committing.

The supreme court denied certiorari on the case. Some justices feel that the use of an acquitted charge is wrong. Others feel that the issue isn’t ripe because the sentencing guidelines are being reworked. And Alito took issue with what he felt was Sotomayer advocating for the sentencing committee to make the changes she wants.

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We read about the number of criminals that are being set free on a catch and release basis. This is happening in the prosecutor’s office. The prosecutor looks at the person being charged and decides on what charges to bring. PoC in blue city, low charges, white cis, higher charges. The prosecutor looks at what the cops say they are charging the person with. He then decides what the actual charges will be.

Example, a white female, 85 years of age, no criminal history, walking in the people’s house taking pictures. Charged by the special investigator with unlawful entry and interfering with an official proceeding. The prosecutor, looking at the totality of the person, the person’s history, the charges brought to them by the special investigator, decides to charge her with all of the above as well as incitement. He tells the court that she is a flight risk.

Counter example, a black male, 19 years of age, two felony convictions, a long history of gang involvement, multiple charges of violence against person. The cops picked him up for stabbing a pregnant white woman, at the scene, with the bloody knife in his pocket. He has previously attempted to evade arrest when warrants were issued. Including out of state flight. The prosecutor charges him with illegal possession of a weapon recommends that he be released with no bail.

This is “prosecutorial discretion”. It means that when the suspect gets to court, the court will try him for illegal possession of a weapon. That’s it. The attempted murder will never be heard by the court.

This is not what this article is about.

This article is about what happens after the suspect is found guilty.

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B.L.U.F.Brick by Brick, Row by Row, we build our freedoms.

The 9th Circuit court of Appeals got it right. What does it mean? What did the state attempt? How did the court opine?

In April 2019, another legal battle began. A long shot case that the plaintiffs knew would drag out for years if they made any progress, or they would be shutdown almost immediately.

This is from the good guys. In the original complaint, they are giving the state the presumption of the power to regulate. They also give the state the power to regulate “unusually dangerous arms”. This is not what Heller said, and we know this because the Bruen court made it absolutely clear that it is dangerous and unusual. If the arm is in common use, it is not unusual, and it cannot be banned.

This was Bruen quoting and explaining Heller

This is the equivalent of watching the puppy cower when their owner comes home. They try so hard to be good, but they fear being smacked again. Or maybe the battered spouse is a better analogy.
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