Legal

B.L.U.F. — Judge Rudolph Contreras believes that banning magazines with more than some magic number is constitutional. This leads to another WTF post analysis of a Judge’s opinion.

The Question

Is D.C.’s LCM ban Constitutional?

The ban basically says that it is illegal to possess, sell, or transfer — D.C. Code § 7-2506.01(b) a magazine that holds more than 10 rounds. The exception is for tube feed .22 caliber magazines.

Background

This duffus had to go out and find another judge who is just as ignorant as he is in order to make a statement as stupid as saying that attaching a “large capacity magazine” to a handgun makes it into a semiautomatic.

He is quoting the memorandum and opinion out of the District Court of Rhode Island. He had this to say about an “LCM” challenge.

Judge John J. McConnell, Jr, chief judge of the District Court of Rhode Island

The Supreme Court has not said anything about magazines being arms, which is what allows this level of disingenuous reasoning. Regardless, reading the Ocean State Tactical opinion was an exercise in self-control. Breaking monitors does not do any good. As Mark Smith said in a video the other day, when the Judge is a Firearms person, it shows. In the same way, when a Judge is ignorant of even the most basic aspects of a firearm, we get hurt.

It is easy to tell when the state is lying when you have personal knowledge of the subject, it is harder when you are trying to figure out whose experts to trust.

Standing

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B.L.U.F. When a family is hurting, they want somebody to pay. It is easier to put that anger against a company than a dead body. Especially when there are blood vultures at work.

History

On April 15, 2021, some asshole entered the FedEx facility in Indianapolis, Indiana, and proceeded to start shooting. Eight people were killed, and more were wounded. The asshole then killed himself.

He had two rifles with him, both AR-15-style semi-automatics.

Shortly after, the blood vultures started to congregate. President Biden had flags flown at half-mast. The usual suspects jumped up and down screaming that guns were the problem.

To this day I’ve never had a single firearm give me a motive for anything it has done. That’s because all of them are inanimate objects. Any evil attributed to a firearm is a figment of a human’s mental derangement.

Bains v. American Tactical, Inc

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B.L.U.F. — What’s with all these court cases and what does it all mean in the grand scheme of things?

How Come We Have To Work So Hard At This?

If everything was as it should be, when the Bruen Court issued their opinion all of the states would have looked at the laws they currently had in place, looked at what would not pass muster, and then would have created new legislation to bring the state into line with the Bruen decision. The infringing states could not bring themselves to do the right thing.

In fact some (all?) of the infringing states jumped on the “Bruen Response” bandwagon to see who could do the most harm to gun owners the fastest.

This starts the long, slow march back to the Supreme Court to get more of these infringements knocked down.

There is a game that is played to accomplish this because the infringing states want to continue to infringe.

In the best of their imaginary worlds only the people they control who are loyal to them would have guns. And those firearms would not be allowed out of the control of dear leader. In their warped world view a cop would travel to work on public transport, they would be issued their duty weapon(s) and would then do a tour. At the end, they would turn in all their duty weapons and ride public transport home.

There would be nobody to stand up to their will.

To get this they need to disarm The People. This means passing regulations that disarm the people.

The Fight, Standing

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B.L.U.F. Another case where a Judge used Bruen to come to the correct decision. This This one is §922(g)3 and §922(d)2. This is a criminal case in front of a US Federal Judge for the Western District of Texas. It highlights how case law works.

History

On December 28, 2021 the El Paso Police Department responded to a 911 call. Transcripts are not available nor needed. When the police arrived they heard several gunshots and observed Paola’s husband with a shotgun at the neighbors house. The police then arrested Paola’s husband.

From this they managed to get permission to conduct[ed] a protective sweep of Connelly’s house &mcite; Order on Motion for Reconsideration P. 1. The cops found evidence of firearms and marijuana. From this they called in the ATF.

The ATF searched the house and found 1.2 grams of marijuana, 0.21 grams of marijuana extract, 27.74 grams of “THC Edible” and 37.74 grams of suspected psilocybin — Id. as well as multiple firearms and ammunition.

Paola through her husband under the bus, accusing him of smoking crack. She was then asked about her own drug use and told the cops …she uses marijuana on a regular basis “to sleep at night and to help her with anxiety.” — Id. at 2.

If this was the locals then it would have likely meant nothing more than the loss of her pot. Because the feds were involved, it now became a felony charge:

The second count, transfer or sale to a prohibited person is charged because the lived together. Since he had access and could have gotten the firearms the state argues that she had transferred the firearms to her husband. It is unclear who owned the shotgun he used.

October 18, 2022 Paola filed to have the charges dismissed. Her argument was that post Bruen §922(g)(3) and §922(d)(3) were unconstitutional under the second amendment because the denied her rights to keep and bear arms while the state was unable to find an similar regulation from the founding era. She also argued that the law was unconstitutional under the fifth amendment because it was vague. What does addicted mean? What does “user” mean?

She points out that under the dictionary definition, user could mean anybody that ever took a toke.

Her motion to have her indictment dismissed was denied on December 21, 2022.

The Second Try

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B.L.U.F. Those scary ammosexuals want to go bang fast but that’s scary because going bang fast is scary. So let’s ban scary bump stocks and get taken to the Supreme Court for infringing on the core civil rights of The People

The question

This case is not a second amendment case though it is a constitutional case that impacts us. Mr. Cargill (good guy) is sueing to overturn the ATF’s bump stock ban. He is asking the court to determine if:

1. Did the ATF violate Article I, §§ 1,7 and Article II §3 by amending congressionally approved statutes
2. Did the ATF violate Article I §1 and Article II § 3 non-divestment
3. Did the ATF violate Article I §1 and Article II § 3 separation of powers
4. Did the ATF violate Article I §1 because they did not have the constitutional authority to ban bump stocks
5. Did the ATF violate the Administrative Procedure ACT 5 U.S.C. §§ 706(2)(A),(C) by exceeding their statutory authority
6. Did the ATF violate the Administrative Procedure ACT, 5 U.S.C. § 706(2)(A) by making an arbitrary and capricious rule

This was case was filed on March 25, 2019.

What this comes down to is that Mr. Cargill is asking to court to find the final rule banning bump stocks to be enjoined because the ATF did not have the authority to make that rule the way they did.

Cargill demanded a trial by jury but it looks like only a bench trial was granted.

District Court Findings

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Last year the people of Oregon, by a bare majority, voted in a truck load of infringements. These included permit to purchase, gun registries, magazine bans, and many other Bruen FU’s.

This was Measure 114. The measure was so bad that even the political class didn’t want it to go into effect immediately.

It did.

Having gone into effect, it was challenged. Because it was a direct infringement case the suit was filed in the federal district court of Oregon. In one of the first cases, Oregon Firearms Federation, Inc. v. Brown (2:22-cv-01815) the district court first denied the motion for a TRO and for a Preliminary Injunction.

The plaintiffs(Good Guys) appealed the District Court’s decision to the Ninth Circus court. This appeal was withdrawn by the plaintiffs.

A number of other cases where joined with this as the lead case.

While all of this was going on in the district court, another case was filed in state court. That state court found FOR the plaintiffs(good guys) and enjoined part of Measure 114. The state appealed to the state supreme court which declined to hear the case.

What this means is that all or part of Measure 114 is enjoined from being enforced. It is stopped.

Of course the state can’t have a lose on any infringement.

They decided to “moot” the cases currently in district court. There are things that the legislature can do which will allow them to claim that the dispute before the court no longer exists.

If the cases reference Measure 114 then if it becomes a bill/regulation it might moot. If some of the wording changes, it might moot the cases.

This is exactly what the legislature in Oregon is doing:

There are more infringements but they threw in this kicker:

The state calls it “forum shopping” if you are filing the case in your home county. The state isn’t “forum” shopping when they pick the state court where challenges must be filed.

There are a number of things going on in these cases, hopefully we’ll see some good progress soon.

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We were asked “Why don’t we see juries involved in all of these Second Amendment cases? The simple answer is “they are not needed”. Read on for why.

Court cases are decided in two different ways, on the merits of the case, and procedurally.

Consider the question “Does the District of Columbia’s restriction on having a functional firearm within the home violate the Second Amendment?”

Prior to 2008 many courts were using the collective right interpretation of the Second Amendment. With this in mind the most of these cases were dismissed for procedural reason. I.e. if you were not the militia challenging the restriction you did not have standing. Standing is a procedural issue.

Cases that are decided on a procedural basis can be brought up again once the procedural issue is corrected.
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It was suggested by it’s just Boris that a founding era firearm safety requirement could be used to support the California Roster system. In particular, they suggested that proof testing would be a close enough match.

It isn’t. Proofing a firearm is entirely different from the idea of requiring or forbidding features.

The original proofing was done to make sure that guns did not blow up in your face. Because of the metallurgy of the time it was not a good idea to trust a pressure vessel until it had been tested. To this end “proofing” was required.

Emphasis added.

What is very important about the requirement for “proofing”, from a Second Amendment view, is that no class of arm, “pattern” was outright banned.

What was happening is that a level of third party quality control was being performed, by the government.

At times the proofing wasn’t done a the royal proofing houses but was instead done at the manufacturer’s location.

With the California roster, the concept is that if California doesn’t like the weapon it is banned. Not that the weapon has to perform as designed and not blow up.

In addition, while proofing was required in Europe, I can find no regulations that actually require the proofing of firearms from 1790-1799. I used both Google and Duke Center for Firearms Law. It is likely that with a bit more work I could find something at Duke but the real proof is that the state has not made the argument in any of the cases I’ve read.

B.L.U.F. In a strategic move the State of California is appealing to the Ninth Circus Court of Appeals in the “Unsafe Handgun Act” case. The district judge found the UHA unconstitutional by requiring Chamber Load Indicator(CLI), Magazine Disconnect Mechanism (MDM), and microstamping. The state is appealing the CLI and MDM but NOT microstamping.

US District Court Judge for the Central District of California, Judge Cormac J. Carney, came to the right decision but his analysis to get there was and is weak. This has lead to the likelihood of this appeal being granted. It was likely to be granted by the Ninth Circuit Court because the en banc court hasn’t seen an infringement they didn’t support.

The Ninth Circuit court is so anti-gun that when a three judge panel found in favor of the plaintiffs(good guys) in Duncan v. Bonta the Second Amendment community was shocked. One of the judges on that panel wrote an opinion explaining exactly how the en banc court was going to find for the state infringements.

In Boland v. Bonta the judge did not find that the UHA was a ban, instead he found that requiring CDL, MDM, and microsamping created a de facto ban which made that part of the UHA unconstitutional.

Consider a regulation that says “You are not allowed to have any firearm with a barleycorn front sight”. This reads like a ban because it is a ban. Now consider a regulation that says “You are only allowed to have firearms with barleycorn front sights.” This is also a ban. It just doesn’t read as clearly as the first.

Now consider a regulation that says “You are only allowed to have firearms that are on this approved list.” That sounds sort of like a ban but maybe not. If the list is comprehensive to the point where you can buy whatever you want it doesn’t feel like a ban. In order to even have standing to challenge the ban you would have to prove to the court that you wanted to purchase a firearm not on the list and had attempted to do so.

Now what if we add another part to the regulation “only firearms with barleycorn front sights can be placed on the list.” This has exactly the same effect as “You are only allowed to have firearms with barleycorn front sights.” It is a ban. If the state changes the list of firearms that it allows, it is still a ban.

This is how the state of California bans handguns. They just don’t put modern handguns on the rooster and thus ban them from the State of California.

The Question

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B.L.U.F. District Court of Delaware Judge Richard Gibson Andrews decided on 2023-03-27 that a ban on some firearms and some magazines was constitutional in denying a preliminary injunction.
Slight updates to correct spelling and Judge’s name.
Delaware State Sportsmen’s Association, Inc v. Delaware Department of Safety and Homeland Security (1:22-cv-00951)

Prior to Bruen the courts used a two step analysis that first determined if the regulation touched on the core right of the Second Amendment, self-defense. If it did then they then used a means-end balancing act where they considered just how much infringing was being done (just how much rape was done to you Mrs Jones? If it wasn’t too much rape then it really isn’t a big case and we don’t need to prosecute him as a felon.)

Once the courts had determined there was infringement and had established just homehow much that infringement harmed the individuales core civil rights it used a balancing act against the public need as defined by the state. Thus if the state said that the regulation was going to make the public safer that would be balanced against just how much the individual was effected. The individual almost always lost this game.

Post Bruen there are still two steps, the first step is determine whether ‘the Second Amendment’s plain text covers an individual’s conduct’ — Memorandum Opinion at P.6 quoting Bruen. If the answer is yes, then the burden shifts to the state to show a history and tradition of analogous regulation from the time of the founding.

If it is an arm then the individual’s conduct is presumptively protected by the Second Amendment.

In order to win the case, the state has to prove only one of the following:
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