When you read court opinions, it is sometimes hard going. I use the term “emotional blackmail” to describe the type of argument which is based on feels instead of facts.
The children will die if you don’t… Women will die in back alley abortions if you… People will solve disagreements in bloody gun fights if you…
It reminds me of the teacher who once told me that she was terrified of people having a gun in the school. If she said something bad about their precious child, the parent might snap and shoot her. If a parent is willing to murder her for her attitude, why aren’t they beating the crap out of her now?
In [xCite item=”QBP3BVS2″ pos=0] all the concurring opinions start with facts. I have only double-checked Roberts’ opinion written for the court. When the liberals start their opinions, it is about goals. They want to reach a particular goal, and they tell you why that goal is good, and you should just do “the right thing” without letting that pesky constitution get in the way. Read More
B.L.U.F. A look at the recent Affirmative Action case before the Supreme Court.
Originally, I intended to take Jackson apart with her own words. Instead, this is the Constitutionalist on the Court doing it for me. Having read Roberts’, Thomas’ and Gorsuch’s opinion and concurrence, it is pretty obvious that they are not sitting silent anymore regarding the opinions issued by the least qualified justices ever(?).
It is sad when you look to Sotomayer for the “reasonable” and “well reasoned” opinion from the left.
It has been another bumper term for conservatives at the Supreme Court. We have a couple of amazing wins, again.
I want to start with the following:
ROBERTS, C.J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion. GORSUCH, J., filed a concurring opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a concurring opinion. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN, J., joined, and in which JACKSON, J., joined as it applies to No. 21–707. JACKSON, J., filed a dissenting opinion in No. 21–707, in which SOTOMAYOR and KAGAN, JJ., joined. JACKSON, J., took no part in the consideration or decision of the case in No. 20–1199
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This defines this court. On one side we have Thomas, Alito, Gorsuch, Kavanaugh, Barrett and sometimes Roberts. On the other side we have Sotomayer, Kagan, Jackson. In any case of “social impact” you can be sure that the three of them will be lock-step.
The media constantly yaps about getting one of the conservative justices to join the left. It happens. I don’t like it when it happens. The conservative judges who move over that line do so because that is what the constitution says. Not because they want a particular outcome.
In the same way, we often hear about some nasty piece of legislation where the democrats are trying to get a rhino to betray us. When Joe Manchin didn’t vote lock step with the democratic machine, I had to check the temperature in hell.
Chief Justice Roberts wrote this opinion. He made no bones about his opinion of the critical thinking of Justice Jackson:
JUSTICE JACKSON attempts to minimize the role that race plays in UNC’s admissions process by noting that, from 2016–2021, the school accepted a lower “percentage of the most academically excellent in-state Black candidates”—that is, 65 out of 67 such applicants (97.01%)—than it did similarly situated Asian applicants—that is, 1118 out of 1139 such applicants (98.16%). Post, at 20 (dissenting opinion); see also 3 App. in No. 21–707, pp. 1078–1080. It is not clear how the rejection of just two black applicants over five years could be “indicative of a genuinely holistic [admissions] process,” as JUSTICE JACKSON contends. Post, at 20–21. And indeed it cannot be, as the overall acceptance rates of academically excellent applicants to UNC illustrates full well. According to SFFA’s expert, over 80% of all black applicants in the top academic decile were admitted to UNC, while under 70% of white and Asian applicants in that decile were admitted. 3 App. in No. 21–707, at 1078–1083. In the second highest academic decile, the disparity is even starker: 83% of black applicants were admitted, while 58% of white applicants and 47% of Asian applicants were admitted. Ibid. And in the third highest decile, 77% of black applicants were admitted, compared to 48% of white applicants and 34% of Asian applicants. Ibid. The dissent does not dispute the accuracy of these figures. See post, at 20, n. 94 (opinion of JACKSON, J.). And its contention that white and Asian students “receive a diversity plus” in UNC’s race-based admissions system blinks reality. Post, at 18.
The same is true at Harvard. See Brief for Petitioner 24 (“[A]n African American [student] in [the fourth lowest academic] decile has a higher chance of admission (12.8%) than an Asian American in the top decile (12.7%).” (emphasis added)); see also 4 App. in No. 20–1199, p. 1793 (black applicants in the top four academic deciles are between four and ten times more likely to be admitted to Harvard than Asian applicants in those deciles).
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Attempts to minimize? That is very harsh language from one Justice to another. We see Justice Jackson attempting to lie with statistics and being called on it. If we say that there is a 25% failure rate, that sounds harsh. If we’ve only done 4 tests and only the first one failed, it is not so bad.
On the other hand, saying that 100s of people are dying at amusement parks it sounds pretty bad. Until you run the numbers and find that it 201 deaths over 20 years when amusement parks are handling millions of visitors each per park. (Busch Gardens Tampa Bay theme park averaged 4 million visitors per year from 2009-2019. It fell off during the panic.)
Jackson attempted the same thing. She claims that because 65/67 == 97.01% and 1118/1139 == 98.16% that Asian applicants are who actually have the advantage.
The importance of “The Question” is shown in footnote 2:
Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. §2000d. “We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.” Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although JUSTICE GORSUCH questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself.
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Emphasis added. The court was not asked to give their opinion on Title VI vs. the Equal Protection Clause of the Fourteenth Amendment. Because they were not asked, they leave things as they currently are. This is an important takeaway.
Just because the Supreme Court doesn’t strike something down as unconstitutional, that doesn’t mean that it is constitutional. If they aren’t asked, they aren’t supposed to give an opinion.
This is why dicta is important. It tells the inferior courts([xCite item=”8Q2H79PQ” art=”3 § 1″ pos=3]) how to rule in cases in the same areas. The idea being that the inferior courts will “do the right thing”, follow the lead of the Supreme Court.
The Supreme Court has said that there is a right to keep and bear arms. The inferior courts should follow that lead. Unfortunately, too many of the inferior courts would prefer that there was no individual right to self-defense.
Roberts takes another pot shot:
For that reason, one dissent candidly advocates abandoning the demands of strict scrutiny. See post, at 24, 26–28 (opinion of JACKSON, J.) (arguing the Court must “get out of the way,” “leav[e] well enough alone,” and defer to universities and “experts” in determining who should be discriminated against). An opinion professing fidelity to history (to say nothing of the law) should surely see the folly in that approach.
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And:
JUSTICE JACKSON contends that race does not play a “determinative role for applicants” to UNC. Post, at 24. But even the principal dissent acknowledges that race—and race alone—explains the admissions decisions for hundreds if not thousands of applicants to UNC each year. Post, at 33, n. 28 (opinion of SOTOMAYOR, J.); see also Students for Fair Admissions, Inc. v. University of N. C. at Chapel Hill, No. 1:14–cv–954 (MDNC, Dec. 21, 2020), ECF Doc. 233, at 23–27 (UNC expert testifying that race explains 1.2% of in state and 5.1% of out of state admissions decisions); 3 App. in No. 21–707, at 1069 (observing that UNC evaluated 57,225 in state applicants and 105,632 out of state applicants from 2016–2021). The suggestion by the principal dissent that our analysis relies on extra-record materials, see post, at 29–30, n. 25 (opinion of SOTOMAYOR, J.), is simply mistaken.
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Math says that about 700 in state applicants and 5,400 out of state applicants were determined solely based on their race.
This appears to be the gist of the dissents’ argument, as expressed by Roberts.
The dissenting opinions resist these conclusions. They would instead uphold respondents’ admissions programs based on their view that the Fourteenth Amendment permits state actors to remedy the effects of societal discrimination through explicitly race-based measures. Although both opinions are thorough and thoughtful in many respects, this Court has long rejected their core thesis. The dissents’ interpretation of the Equal Protection Clause is not new. In Bakke, four Justices would have permitted race-based admissions programs to remedy the effects of societal discrimination. 438 U. S., at 362 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part). But that minority view was just that—a minority view. Justice Powell, who provided the fifth vote and controlling opinion in Bakke, firmly rejected the notion that societal discrimination constituted a compelling interest. Such an interest presents “an amorphous concept of injury that may be ageless in its reach into the past,” he explained. Id., at 307. It cannot “justify a [racial] classification that imposes disadvantages upon persons … who bear no responsibility for whatever harm the beneficiaries of the [race-based] admissions program are thought to have suffered.” Id., at 310.
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The liberals on the court believe that we have to enforce racial discrimination to combat racial discrimination. It reminds me of the often quoted line from Vietnam, “We had to destroy the village in order to save it.”
The dissents here do not acknowledge any of this. They fail to cite Hunt. They fail to cite Croson. They fail to mention that the entirety of their analysis of the Equal Protection Clause—the statistics, the cases, the history—has been considered and rejected before. There is a reason the principal dissent must invoke Justice Marshall’s partial dissent in Bakke nearly a dozen times while mentioning Justice Powell’s controlling opinion barely once (JUSTICE JACKSON’s opinion ignores Justice Powell altogether). For what one dissent denigrates as “rhetorical flourishes about colorblindness,” post, at 14 (opinion of SOTOMAYOR, J.), are in fact the proud pronouncements of cases like Loving and Yick Wo, like Shelley and Bolling—they are defining statements of law. We understand the dissents want that law to be different. They are entitled to that desire. But they surely cannot claim the mantle of stare decisis while pursuing it.
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Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown. 347 U. S., at 495 (emphasis added). It depends, says the dissent.
That is a remarkable view of the judicial role—remarkably wrong. Lost in the false pretense of judicial humility that the dissent espouses is a claim to power so radical, so destructive, that it required a Second Founding to undo. “Justice Harlan knew better,” one of the dissents decrees. Post, at 5 (opinion of JACKSON, J.). Indeed he did:
[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy, 163 U. S., at 559 (Harlan, J., dissenting).
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For the best fun in reading this opinion, just look at the footnotes. That is where they take shots at each other. There is also a nod from Thomas back to the Bruen opinion.
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Government over stepping its bounds has been of interest to me for many years. I take notice when something comes past that is especially egregious. We talk about how long we’ve been fighting for our rights, this is the story of a couple that has been fighting the EPA since 2004.
Some of this is from memory, some is prompted by some of the cited sources in this case.
In 2004, the Sacketts purchased a 1/2 acre of land near Priest Lake in Idaho. This was their dream property, they were going to build their dream home there. Thier property was set back from the lake, with a road between them and the lake.
They got all the required permits and started construction. Part of that was site preparation. This included flinging in some areas that got boggy when it rained. There was no running water from their property to the lake. There was no standing water on their property.
They got big puddles when it rained.
Along came the EPA, who told them that they needed to get a permit from the EPA because they were erasing a federally protected wetland[xCite item=”FJZBX26N” pos=0]. Since they had not gotten a permit before starting the site preparation, the EPA found them in violation.
They were told to put the property back the way it was. If they did not, then they would be fined something like $10,000 per day. When they attempted to get a hearing to challenge the ruling, they were told “yes, but if you are found in violation, you will be held liable for the $10,000 per day fine.”
In other words, to challenge the ruling, the Sacketts would need to be prepared to pay all the outstanding fines.
They decided to fight this. The Pacific Legal Foundation took up their case.
Earlier this week, the Supreme Court found in their favor.
More coming tomorrow now that I have a better idea of why my citation engine is/was failing.
Meanwhile, feel free to read the article that irritated me enough to start another of my short articles on legal stuff:
Cam Edwards covered this Monday or Tuesday of this week. The Gun Owners Action League of Massachusetts is working on an analysis of the bill. I’ve not read it, I don’t want to read it.
If you live in Massachusetts, if you travel through Massachusetts, you need to be aware of the proposed law. Once it hits the courts, I’ll look at the cases.
B.L.U.F. What was supposed to be a short article regarding why we see “self-defense” in so many challenges turned into a 5000-word article covering the opening statements of the NFA hearings in 1934 plus random musings on yelling fire and other historical legal stuff.
If you get anything out of this, please at least click the like button. I’m having trouble justifying to myself the effort I’m putting into these articles.
I find myself increasingly troubled that so many cases rely on self-defense, or being part of an unorganized militia, or whatever, as a justification for the right to keep and bear arms. Just as the right to free speech doesn’t (or shouldn’t, anyway) depend on what you’re intending to be talking about, the right to bear arms shouldn’t depend on to what purpose you intend, so long as it’s lawful.
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Boris, you are correct. I agree that it is extremely irritating to hear, over and over again, that our rights are dependent on “self-defense” or being a member of the militia or “sporting purposes” and on and on and on.
This is a stepping stone. It took us a long time to get back to this level of Second Amendment protected rights.
Consider the testimony in Congress over the National Firearms Act. Read More
According to one of the lawyers that speaks on Second Amendment rights, the policy of the courts on accepting amicus curiae from anybody is a rather recent policy change with the courts. It used to be that you had to show real reasons to be considered a friend of the court.
Of the hundreds of pages submitted to the Supreme Court in [xCite item=”U9EQ7W4I” pos=0] most are from amicus curiae submissions. In appeals, it is the same. There are the actual pleadings by the parties, and then there are all the amicus curia submissions.
He is just one guy. He doesn’t belong to any group. His claim to fame is that he has written a number of books advocating for infringing on the Second Amendment and calling anybody and everybody who thinks that the right to “keep and bear arms” gives an individual the right to keep and bear arms an idiot or worse.
It is very uncommon to see a person or entity submit a motion for leave to file an amicus brief and then to have the court reject it. When this, ORDER re: Motion for leave to file amicus brief. John Cutonilli’s motion to file an amicus brief is DENIED. [74] showed up in Celeb Barnett v. Kwame Raoul I needed to find out why.
The first question to ask is, “Who is John Cutonilli?” A quick Google search turns up “Cutonilli v. State of Maryland”. This is a reference to a case from 2015. Read More
Prior to the Bruen opinion, the Fifth Circuit Court of Appeals heard the case of United States V. Rahimi.
On June 8, 2022, just a few weeks before the Bruen opinion, the Circuit court affirmed Mr. Rahimi’s convection.
A federal grand jury indicted Rahimi for possession of firearms in violation of sections 922(g)(8) and 924(a)(2).1 Later, Rahimi pleaded guilty. At sentencing, the presentence investigation report (“PSR”) detailed Rahimi’s lengthy criminal history. Relevant to this appeal are the state charges that were pending against him for offenses that occurred from December 2019 to November 2020. Three pending state charges resulted from Rahimi’s use of a firearm in the physical assault of his girlfriend in December 2019,2 and another state charge arose from an aggravated assault with a deadly weapon of a different woman in November 2020. Rahimi objected to the PSR, arguing that the pending charges described relevant conduct to the instant offense such that the sentence for the instant federal offense should be ordered to run concurrently to the state sentences. The district court overruled the objection, adopted the PSR, and ordered the federal sentence to run consecutively to the pending charges because they were not relevant conduct. Rahimi appeals, arguing that the district court clearly erred by concluding the pending charges were not relevant conduct.
1) Rahimi moved to dismiss the indictment on the ground that section 922(g)(8) on its face violates the Second Amendment and the district court denied the motion. Rahimi appeals this decision but acknowledges that it is foreclosed by our finding precedent. United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020), cert. denied, 141 S. Ct. 1397 (2021).
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Briefly, Rahimi was a bad dude, doing bad things. When he was arrested, he had a firearm. He had not been convicted of a crime. Along with all the state level charges brought against him, he was also charged as a prohibited person in possession of a firearm under §922(g)(8) and §924(a)(2).
The Circuit court had already ruled in 2020 on the exact question.
We again confront a Second Amendment challenge to a federal law prohibiting individuals subject to certain domestic violence protective orders from possessing firearms or ammunition for any purpose. 18 U.S.C. § 922(g)(8). Appellant Eric McGinnis, convicted by a jury of violating § 922(g)(8), claims the statute is a facially unconstitutional restriction on his right to keep and bear arms. This court rejected a virtually identical challenge two decades ago in Judge Garwood’s landmark decision in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001). Much has changed in Second Amendment jurisprudence since then, and so we consider whether § 922(g)(8) still passes muster under our contemporary framework. It does.
Separately, McGinnis argues his conviction should be vacated because his protective order does not track the requirements of § 922(g)(8). He also asserts the district court abused its discretion by imposing a written special condition of supervised release not orally pronounced at sentencing. We affirm the conviction but remand for the limited purpose of conforming McGinnis’s written judgment to the district court’s oral pronouncement.
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Because of this earlier case, Rahimi’s case wasn’t a foregone conclusion.
Back in December 2022 in the case of Antonyuk v. Hochul the state didn’t like the District Court enjoining the New York State CCIA. New York’s Bruen spam response law.
Appellants request a stay pending appeal of the district court’s order dated November 7, 2022 (N.D.N.Y. 22-cv-986, doc. 78), enjoining Appellants from enforcing certain aspects of New York’s Concealed Carry Improvement Act (“CCIA”). Having weighed the applicable factors, see In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007), we conclude that a stay pending appeal is warranted. Accordingly, upon due consideration, it is hereby ORDERED that the motion for a stay pending appeal is GRANTED and the district court’s November 7 order is STAYED pending the resolution of this appeal. To the extent that the district court’s order bars enforcement of the CCIA’s provisions related to persons who have been tasked with the duty to keep the peace at places of worship, airports, and private buses, such categories are EXCEPTED
from this order. Appellees’ motion to expedite the resolution of the matter is GRANTED.
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This is the entirety of the order granting the stay. This was in response to 180+ pages that the District Court wrote explaining why the CCIA was a crap law and that the state was likely to lose on the merits.
The entire explanation exists somewhere on page 170 of a 2007 2nd Cir. Opinion.
Digging down the rabbit hole, we find:
The four factors to be considered in issuing a stay pending appeal are well known: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;[1] (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 95 L. Ed. 2d 724 (1987); see Cooper v. Town of East Hampton, 83 F.3d 31, 36 (2d Cir.1996). We have applied these same factors in considering whether to vacate a stay. See Mohammed v. Reno, 309 F.3d 95, 100 (2d Cir.2002). We have also noted that the degree to which a factor must be present varies with the strength of the other factors, meaning that “`more of one [factor] excuses less of the other.'” Thapa v. Gonzales, 460 F.3d 323, 334 (2d Cir.2006) (quoting Mohammed, 309 F.3d at 101).
Having heard the interlocutory appeal after full briefing, we are in a position to evaluate the Appellants’ probability of success in a more focused way than could the motions panel. Although we are not prepared at this time to resolve all of the many issues arising on the merits of the appeal, we can conclude that there is now a lesser probability than might have previously appeared that the Appellants will succeed in preventing at least some of the Plaintiffs’ claims to proceed into at least the discovery stage of the litigation.
The second factor irreparable injury to the stay applicants remains the same as before: any proceedings in the District Court pending appeal will irreparably impair, at least to some extent, their alleged claim to immunity from suit. The third factor substantial injury to the parties opposing the stay has increased in significance with the passage of time since among the Plaintiffs are many people with life-threatening injuries, some of whom have died since the litigation began.
This effect of the passage of time upon the Plaintiffs’ interests also has a bearing on the public interest, which is to be considered as the fourth factor, although there are public interest considerations on both sides. On the one hand, there is a public interest in having any of the Plaintiffs who might be entitled to recovery receive compensation while still living and able to use it to cover medical costs and improve the quality of their lives. On the other hand, there is a public interest in vindicating the immunity of any of the Defendants who might be entitled to immunity from suit. At this point, we cannot predict whether any Plaintiffs will ultimately obtain compensation if immunity from suit is not available to the Defendants, nor are we prepared to adjudicate the jurisdictional challenges and immunity claims without a thorough consideration of the substantial issues presented to us. Nevertheless, a decision whether to maintain the stay must be made. On balance, we conclude that the public interest favors permitting pretrial proceedings to resume, *171 thereby hastening the trial that might result in compensation for at least some Plaintiffs during their lifetimes, even though that course will impose upon the Defendants the burdens of pretrial discovery, thereby denying them immunity from suit during the interval from now until such time as it might ultimately be determined that their claims for immunity from suit are valid.
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The first paragraph in the quote is the standard reasons for why an injunction is granted because that is the same reason for a stay to be granted stopping an injunction.
we can conclude that there is now a lesser probability than might have previously appeared[xCite item=”7MS22MGU” pos=2] That wording, applied to the Antonyuk reads like “we know better than the District Court because we said so.”
It also seems to say that the question of irreparable injury fails. While we know that any constitutional right denied is an irreparable injury, the courts have often balanced the Second Amendment injury away. In the Court’s mind, it is better for a gun owner to be denied their rights than to have the state’s legislation enjoined.
Finally, it seems to say that a delay is not really a problem because “PEOPLE WILL DIE IF THIS LAW ISN’T ALLOWED TO STAY IN PLACE!!!”
The point being, that we had to dig into a different opinion and need to guess at what the 2nd Circuit Court’s reasoning is. Because we are guessing, it is much more difficult to say “you are wrong” when taken up by the Supreme Court.
In addition, in the cited case, World Trade Center Disaster Site Litigation, the 2nd Circuit did not actually cite to the Supreme Court. All of their citations, in the quoted work, are back to themselves. Or, as my mother said on more than one occasion, “If I’ve told you once, I’ve told you a thousand times.” That doesn’t mean her reasoning was any better this time than it was in the previous 999 times.
If we needed to know more about the reasoning, we would have to go read those other opinions.
We see the same sort of general waving of hands in Koons v. Platkin. The Court’s entire reasoning is expressed as as we conclude the applicable factors warrant such a stay, see In re Revel AC, Inc., 802 F.3d 558, 568 (3d Cir. 2015)[xCite item=”CDUFQ46W” pos=3]. We have to look at the cited opinion and then guess at what words out of that page were being used to justify this stay.
The Sliding-Scale Approach to Balancing the Stay Factors
Under Federal Rule of Bankruptcy Procedure 8007, a party can move to stay the effect of a bankruptcy court order pending a resolution on appeal. See Fed. R. Bankr.P. 8007. The factors considered “overlap” the familiar ones courts look to in ruling on applications for preliminary injunctions. See Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (observing that “similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined”). To repeat essentially what was already noted above, the following factors come into play:
whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits;
whether the applicant will be irreparably injured absent a stay;
whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
where the public interest lies.
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We see the same language as the 2nd Circuit Court used, that’s because it is common across all jurisdictions. Guessing makes me think that where the public interest lies might hold more weight with the Court.
Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). In order not to ignore the many gray shadings stay requests present, courts “balance[e] them all” and “consider the relative strength of the four factors.” Brady v. Nat’l Football League, 640 F.3d 785, 789 (8th Cir.2011) (quoting Fargo Women’s Health Org. v. Schafer, 18 F.3d 526, 538 (8th Cir.1994) (internal quotation marks omitted)); see also 16A Charles Alan Wright et al., Federal Practice and Procedure § 3954 (4th ed. 2008) (“The four factors should be balanced; thus, for example, if the balance of harms tips heavily enough in the stay applicant’s favor then the showing of likelihood of success need not be as strong, and vice versa.” (footnotes omitted)).
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Here, the 3rd Circuit brings up “balance” multiple times. This almost always results in the court balancing rights away.
“[T]he most critical” factors, according to the Supreme Court, Nken, 556 U.S. at 434, 129 S.Ct. 1749, are the first two: whether the stay movant has demonstrated (1) a strong showing of the likelihood of success and (2) that it will suffer irreparable harm — the latter referring to “harm that cannot be prevented or fully rectified” by a successful appeal, Roland Mach. Co. v. Dresser Indus., 749 F.2d 380, 386 (7th Cir.1984) (Posner, J.). Though both are necessary, the former is arguably the more important piece of the stay analysis. As Judge Posner has remarked, it isn’t enough that the failure to obtain a stay will be “a disaster” for the stay movant but only a “minor inconvenience to the defendant,” as “[e]quity jurisdiction exists only to remedy legal wrongs; [thus,] without some showing of a probable right[,] there is no basis for invoking it.” Id. at 387.
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As I dig through this litigation, I find that concerns that we have about Second Amendment Rights are echoed by other groups, and we see the same sorts of things happening. I don’t know anything about the case cited here. What I find interesting is that the Court pulled a small amount of text from a Supreme Court Opinion, Nken but then turned to the 7th Circuit Court to find an interpretation of those words that this Court approves of.
It appears that the Court is saying that winning on the merits is more important than the harm being caused to either party. That sounds good…
And finally, For our Court, a sufficient degree of success for a strong showing exists if there is “a reasonable chance, or probability, of winning.” Thus, while it “is not enough that the chance of success on the merits be `better than negligible,'”, the likelihood of winning on appeal need not be “more likely than not,”[xCite item=”IGVYV9A3″ p=”568,569″ pos=7] internal citations omitted.
The Third Circuit Court doesn’t think there is a high enough probability of the plaintiffs winning to allow the injunction to remain in place. They believe that the sensitive places language of Chapter 131 will be found constitutional.
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The Third Circuit Court of Appeals has ordered an expedited briefing schedule. The original order was Appellants’ opening brief and the joint appendix must be filed on or before July 7, 2023; Appellees’ briefs must be filed on or before August 4, 2023; Appellants’ reply brief, if any, must be filed on or before August 18, 2023. The Court intends to schedule the appeal for disposition during the week of September 11, 2023[xCite item=”2RXU7HR4″ pos=0 pos=0] The state asked to have it delayed, and the new briefing schedule is Appellants/Cross-Appellees and Intervenors shall file their opening briefs and the joint appendix on or before July 20, 2023; Appellees/Cross-Appellants shall file their opening/response brief on or before August 10, 2023; Appellees’ shall file their response brief on or before August 21, 2023; Appellants/Cross-Appellees and Intervenors shall file their response/reply briefs on or before September 4, 2023; and Appellees/Cross-Appellants shall file their reply brief on or before September 18, 2023[xCite item=”2RXU7HR4″ pos=1]
In the meantime, the Circuit court has stayed parts of the injunction: The requested stay is GRANTED as to the preliminary injunction of N.J. Stat. Ann. Section:Section: 2C:58-4.6(a)(6), (a)(9), (a)(10), (a)(12), (a)(15), (a)(17), (a)(18), (a)(21), as we conclude the applicable factors warrant such a stay[xCite item=”CDUFQ46W” pos=2]
What does that mean? It means that the following places are still “sensitive” places where carrying firearms is verboten.
within 100 feet of a place where a public gathering, demonstration or event is held for which a government permit is required, during the conduct of such gathering, demonstration or event;
a nursery school, pre-school, zoo, or summer camp;
a park, beach, recreation facility or area or playground owned or controlled by a State, county or local government unit, or any part of such a place, which is designated as a gun-free zone by the governing authority based on considerations of public safety;
a publicly owned or leased library or museum;
a bar or restaurant where alcohol is served, and any other site or facility where alcohol is sold for consumption on the premises;
a privately or publicly owned and operated entertainment facility within this State, including but not limited to a theater, stadium, museum, arena, racetrack or other place where performances, concerts, exhibits, games or contests are held;
a casino and related facilities, including but not limited to appurtenant hotels, retail premises, restaurant and bar facilities, and entertainment and recreational venues located within the casino property;
a health care facility, including but not limited to a general hospital, special hospital, psychiatric hospital, public health center, diagnostic center, treatment center, rehabilitation center, extended care facility, skilled nursing home, nursing home, intermediate care facility, tuberculosis hospital, chronic disease hospital, maternity hospital, outpatient clinic, dispensary, assisted living center, home health care agency, residential treatment facility, residential health care facility, medical office, or ambulatory care facility;
B.L.U.F.Matthew Hoover and Kristopher Ervin thumbed their noses at the ATF, daring the ATF to do something. The ATF did, they arrested both of them for multiple counts of conspiracy to sell a “combination of parts” that would convert a gun into a machine gun. Both were found Guilty. They have not been sentenced yet. Having been found guilty, both are asking for the court to acquit them.
Hard cases make good law. There is so much tied up in this case that it is hard to dissect. This might be such a case.
History
Matthew Hoover was a YouTuber who created gun content. I had watched some of his videos, but his content wasn’t of significant interest to me. His content would be recommended to me from time to time. At some point, he started advertising the “Auto Key Card” and it was obvious that he was selling this card.
The “Auto Key Card” was a dimensionally correct etching on a stainless-steel card of a “lighting link.” A lighting link can convert an AR-15 style platform from semi-automatic to full-automatic, i.e. a machine gun.
But what does it do? It is both complicated and simple at the same time.
On the AR-15 platform, when you have charged the rifle, you have cocked the internal hammer. The hammer has a small notch in it called a sear.
When you press the trigger, the arm in front of the trigger rotates down. As it does, it clears the sear on the hammer. The hammer then moves forward to hit the firing pin and fire the weapon.
The bullet flies down the barrel, as it passes the gas port some of the gas is diverted into the gas tube. That gas flows back towards the receiver, where it acts on the bolt carrier to shove the bolt carrier towards the rear of the gun. The bolt carrier pulls the bolt out of the chamber. It also pushes the hammer back down.
This happens so fast that you do not have time to release the trigger. As the bolt carrier is shoved forward by the recoil spring, the hammer rides down the back of the bolt carrier and may or may not drive the firing pin into the next round, firing git.
The disconnector interrupts this process. The hook at the front of the disconnector catches the hook on the back inside the hammer and keeps the hammer from following the bolt forward.
When the trigger is released, the nose comes up and is ready to catch the hammer. As the trigger is released more, the disconnector is pulled back out of the hook on the hammer and the hammer starts forward, only to be stopped as the sear catches on the nose of the trigger.
We are now ready for the next trigger press.
In a full auto AR-15 platform, we add one more piece and modify some of the other pieces. The first piece of interest is the selector switch. This will push down on the back of the disconnector, so its hook will never catch the hammer hook. If this was all that was happening, the hammer would ride the bolt carrier back down and the firearm might slam fire. But this is not controlled and might not actually happen.
What we want to have happen is for the hammer to stay back until the bolt is in battery and then for the hammer to fall, picking up speed, until it strikes the back of the firing pin. This is where the auto sear comes into play.
When the bolt carrier to the rear, the hammer is down and the auto sear is rotated such that it catches the hook on the back of the hammer. This holds the hammer down as the bolt carrier moves forward, driving the bolt into battery. As this happens, the back of the bolt carrier catches the rear of the auto sear and rotates it. This releases the hammer, allowing the gun to fire a second time.
The thing that makes an AR-15 receiver a “machine gun” is the little hole for the auto sear pivot pin. Without that hole and the auto sear, it is not a machine gun.
Before 1986, people were manufacturing “drop in auto sear” This was a block of milled steel with the auto sear and pivot pin integral to the unit. When put into a receiver with a correctly milled shelf for the auto sear and when the rest of the fire control group had the right type of disconnector, trigger, selector switch, and hammer, the drop in auto sear worked just like a normal auto sear.
If that little chuck of metal was properly serialized and registered before 1986, it is legally a machine gun. They sell for thousands of dollars.
A cheap version of the drop in auto sear was the “lighting link”. This was a much simpler device made from a couple of pieces of thin stamped metal. It performed the same function. Unfortunately, it wasn’t very reliable. They had to be carefully tuned to fit a particular receiver and even then, it couldn’t be trusted the same way a real M-16 and drop in auto-sears could.
Dimensional draws of the lighting link are available on the internet and in some old tyme books.
All of this brings us back to the Auto Key Card. The Auto Key Card is a dimensional drawing of a lighting link. The card is made from stainless-steel and is laser etched. That is all it is.
