Legal

B.L.U.F. An example of winning in court. Oregon’s legislature rushes to moot cases and to fix parts of Measure 114.

H/T Bh.Z and OFF

On January 9th, 2023 Senate Bill 348 was introduced. The bill was short. It was a bill giving the Oregon Department of Justice a requirement to …study ways to address the unlawful possession of firearms.— Senate Bill 348. The DoJ was given until December 31,2024 to provide the report back to the legislature. On January 2, 2025 the first section of the bill would be repealed.

On its face this doesn’t sound all that bad, directing some government entity to do a study is a way of spending taxpayer money to get “facts” to use against The People in infringement cases, but better a study than another infringement.

Oregon Firearms Federation sent an alert telling its members that this was a bill to observe as it was likely there as a gut and stuff bill. Often times a legislature has rules to protect The People from the state. Things like a bill must be read 3 times before it can be voted on. That there must be a certain amount of time between readings. That the bill has to be analyzed by the appropriate committees to make sure it will be “legal”.

But there is an important part of these rules to remember, amendments are not subject to the same rules. The idea being that members have had enough time to analyze the bill and are not going to propose “fixes” and “changes” to make the bill better. When those amendments are presented the body votes and if the amendment gets enough votes the amendment is applied to the bill.

If the bill is in both chambers of a bicameral legislature there will be a reconciliation phase that takes place if the two bills are actually different. If both the Senate and the House versions are the same then it is deemed to have been reconciled and it moves forward to the Governor or President for signature to turn the bill into a law.

A “gut and stuff” bill is a bill that is specifically designed for this amendment process. When the bill is read an amendment is offered that “guts” the entire text of the bill and then “stuffs” entirely new content in place of the original text. Suddenly you have a bill with the same identifiers that has been through the pre-vote approval process with totally new content ready for a vote.

This is where the famous Nancy statement comes from “We have to pass the bill to see what is in it.” The bill in question then was ObamaCare and it was gut and stuffed into an entirely different bill with a short timeline to a vote. With 2000+ pages of new text it was impossible for any one person toi read the entire bill before the vote.

In infringement bills it is often the case that they legislature doesn’t want The People to have time to react.

The watchers have to spot the bill. They have to see the amendment go into place. They have to craft an alert. The alert has to make it to The People and only then can The People respond with email, calls and faxes.

In person responses take even long. This is why the NYS S.A.F.E act was so bad on a procedural level. Even though there are laws in place to give people time to respond, the infringers got it passed in an emergency session before those alerts and responses could take place.

With the NYS CCIA the republicans only had the press release until the very last minute. It wasn’t possible to respond until they got the text of the bill and they didn’t get the text until the last minute.

Oregon Senate Bill 348 – Amended

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When looking at Boland v. Bonta, the “Unsafe Handgun Act” out of California, it was nice that the judge “got it right”.

Unfortunately the reasoning that he had in his opinion niggled at me. There was something wrong. It should have been this hard.

Then Mark Smith applied the clue-by-four and it made things obvious.

The UHA is a gun ban. Full Stop.

Consider a law that said “A firearm with a barleycorn front sight is banned” We would instantly recognize that as a gun ban. If it is a gun ban then the plain text of the Second Amendment is touched on and it then the state must prove that there is a history and tradition of regulating classes of guns with particular features.

When the feature was “pistol” then Heller found that a ban was Unconstitutional. The holdings of the Supreme Court have shown that it doesn’t have to be a complete ban, it only has to touch the plain text of the second amendment in order for regulation to be presumptively unconstitutional. It is up to the state to prove history and tradition.

But what if we turned the statement around? What if we said “Any firearm without a barleycorn front sight is banned”. This is still a ban, the state has just inverted the logic from “can’t have” to “must have”. It is a ban. Treat it like a ban in court.

Now if the state chooses to hide that ban inside a bunch of other regulations, it might be harder to see.

For example what if the law said “you can only buy firearms on this list” and “We are only going to put firearms with barleycorn front sights on the list”. It is still a ban, it is just a two step process.

Think of it the same way we think of machine guns. According to the law, machine guns are not banned. You are free to buy them if you can find somebody willing to sell them to you. All you need is to jump through NFA hoops.

But because of the Hughes amendment no NEW machine guns have been added to the transferable NFA list. This has caused the cost/value of machine guns to sky rocket.

I don’t think any gun infringer really wants to be told that the difference between an AR-15 and a M-16 is $75 in parts and an extra hole. Which means that the cost of a machine gun should be about the same as its semi-auto version.

The closing of the NFA registry for machine guns is a ban on machine guns.

The UHA is also a ban. No matter how much lipstick is slapped on that pig, it is still and always will be a gun ban.

Everything in this article that is not a quote is my understanding. I AM NOT A LAWYER so the odds of me getting something wrong is non-zero.

In Boland v. Bonta: Another District Court Win “UHA” I quoted and wrote.

I should have spent some more time figuring out what this all means.

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We are the children of the “right now” age. I am old. I remember my mother going to the Grayhound bus depot and paying them to deliver two huge boxes to her hometown in the midwest. This was the only way to get a package that big that far in a reasonable amount of time.

Reasonable amount of time? About a week or so. At which point my grandparents would go to the bus depot to get pick up the packages.

When I was a child working on motorcycles I would create a parts list and then once a month we would go into the big city and I could purchase parts at the motorcycle dealership(s).

We would dig through our Scholastic book pamphlet and pick out the books we wanted. Three or four weeks later our books would arrive. We’d look though the Sear’s catalog and place an order. A few weeks later it would arrive.

The other day I needed replacement “Plackers”. I spent less than two minutes online to locate what I wanted, purchased more for much less than I could locally and they were delivered as soon as we had cleared our driveway.

Everything today happens quickly. I can send an email around the world in less time than it takes to print that same letter. I can have a response back before I close my email program.

My introduction to The Internet was when I noticed that if we dropped UUCP messages in one node in Michigan it would show up in California with a timestamp only seconds different than the arrival time.

We are spoiled. Everything should be moving as fast as online shopping and online communications.

Not everything is fast

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I reached out to Michael & Associates, PC for a short write up about their firm. They have been doing great work for the Second Amendment community for years. They are based out of California.

Thank you very much for their hard work supporting the Second Amendment.

This is what they sent:

Michel & Associates, PC is one of the nation’s most recognized and well-respected firearms law firms. Our attorneys are among the world’s most experienced successful Second Amendment advocates. Our extensive firearms law and litigation experience enables us to address increasingly complex issues to help our clients. Our attorneys have expertise in the mandates of federal and state firearm laws and regulations. We wrote the book on gun law in California: California Gun Laws, A Guide to State and Federal Firearms Regulations (www.calgunlawsbook.com).

Michel & Associates’ attorneys appear at agency and legislative rule-making proceedings that impact firearms owners’ interests, assist in drafting firearms legislation, represent clients in firearm licensing matters, represent firearms manufacturers, wholesalers, and retailers in product liability litigation, defend against firearms-related criminal charges, and challenge ill-conceived or unconstitutional state laws and local ordinances in court.

We advise manufacturers, wholesalers, retailers, clubs, ranges, and firearm owners on regulatory compliance requirements, defend against criminal or government agency regulatory enforcement actions, and represent various clients challenging gun control laws on Second Amendment and related grounds.

Our clients include non-profit associations, industry trade associations, gun show promoters, firearm importers, manufacturers, distributors, and retail dealers, indoor and outdoor shooting ranges, law enforcement agencies and officers, special-effects companies, prop houses, armories, pyrotechnicians, and individuals and companies facing firearms-related federal or state licensing and compliance issues or criminal charges.

Michel & Associates has challenged dozens of laws and regulations on Second Amendment grounds. Litigation and test cases moving through the courts today will establish the parameters of the right to keep and bear arms for future generations. We are proud to be on the front lines of the self-defense civil rights battle.

Update

Please go visit the California Rifle and Pistol Association. Give them some love for all they are doing for the Second Amendment community.

B.L.U.F. A big win out in California where parts of the Unsafe Handgun Act were enjoined. If this injunction stand it is possible that new handguns will be added to the California Roster for the first time since 2013. Side note, the say that there are some 800 handguns on the roster, this is misleading. A firearm can be on the roster multiple times because each sku is considered a different handgun. I.e. a changing the finish of a handgun makes it a different handgun in the eyes of the state.

The Question

On 2022-08-01 the plaintiffs(good guys) filed a Complaint for Declaratory and Injunctive Relief in the Federal District Court of Central California. The complaint asks does the California Unsafe Handgun Act (UHA) violate the Second Amendment by denying The People of California access to new firearms in common use throughout the country? and does the UHA violate the Commerce Clause by interfering in interstate economic activities?

Or as the plaintiffs put it:

and:

On 2022-09-22 the parties agreed to drop the second question regarding discrimination against interstate commerce.

The defendant response consists of nearly 18 pages of the Attorney General denies each and every allegation unless they are admitting to a statement of law. In that case he still denies each and every allegation and denies even the quoted regulation if it is misstated. For other paragraphs he says he just doesn’t know.

In short the AG’s answer is “Nope.”

The state then claims affirmative defenses. An affirmative defense is when the other party is required to prove. The first is that the state claims that the plaintiffs failed to state facts sufficient to bring action against the state. Given that the state denies all the allegations this makes sense.

Then there is that old bugaboo. They claim that the plaintiffs lack standing and if they did they there are adequate remedies within the law for their complaint.

The Stages

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B.L.U.F. Weird 2A case analysis. The Plaintiff(good guy?) charges that the cops removed him from his car, detained him, did a warrantless search of his vehicle, stole some cash. The Defendant(the state) claims that the presence of a legally carried firearm was justification for the search. Currently in the Second Circuit Court of Appeals waiting judgement.

History

Around 2043 on 2018-11-12 Basel Soukaneh was pulled over to the side of the road with the motor running. He was looking up a GPS location of a property he was considering buying.

He was in a bad part of town where bad things happen so when Officer Andrzejewski noticed the car pulled over to the side with the engine running he performed a “traffic stop”.

When he started his investigation Mr. Soukaneh announced that he had a permit to carry and that he did have a firearm with him in the car. At this point Officer Andrzejewski removed Mr Soukaneh from the car, put him on the ground, handcuffed him and then locked him in the back of his squad car.

Officer Andrzejewski then proceeded to search the car, including the trunk of the car. At the end of the search he wrote a traffic citation for “parking in a driveway” and released Mr. Soukaneh.

The Arguments

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Often times the police are looking for evidence of a crime of significance. The bigger the crime the bigger the charges. This leads to an escalation process. The process of escalating a search warrant to cover what you are actually looking for.

Consider a search warrant to locate stolen property. The property you are looking for is a workbench taken from the local school.

Since the search warrant lists what the specifics are that the search are searching for it limits where they can search. The would not be allowed to look in your wife’s intimates drawer. There is no way a “desk” could fit in a drawer. They would be allowed to open closet doors to make sure the desk wasn’t in a large closet.

That doesn’t actually mean that it has to be logical. Our linen closet is not deep enough for a desk. If you look at the rooms around it and visualize the amount of space for that closet there is no way that it could hide a desk. But you could “hide a desk in a closet” so they warrant would allow the police to look in the closet. It would not allow them to look in containers in that closet.

Now say the police are executing a search for that desk and sitting on your coffee table in front of the sofa is a crack pipe that looks like it was used.

That cop now has new evidence in “plain view” of a potential crime. They still can’t go looking for the crack to go with that pipe. Or other drugs. They can only search where the warrant allows them.

At this point the cop contacts the Judge or magistrate and says “look, we were executing the search of this scums house looking for stolen property and we found drug paraphernalia along with a drug scale. We need a search warrant to extend to looking for drugs.”

The Judge or Magistrate issues the warrant and when that warrant is in hand the cops now can tear the house apart looking for “drugs”. They are no longer limited to searching place where a desk could be hidden, they are looking for places where drugs could be hidden.

If in the process of looking for drugs they find evidence of other illegal activities they can act on that evidence. So finding a “rape kit” could be used as evidence because during a search for drugs that kit, hidden in the back of a closet, under the floor, in a box could have held drugs. When it was opened to check for drugs the “rape kit” was in plain sight.

In the case listed the teacher was suspected of stealing from the local school. Some of the things he was suspected of stealing were tools belonging to the school. This could have meant things like table saws and milling machines but it could, and more likely was, small hand tools. For example a Fluke meter.

That would have given the cops the ability to check anywhere something the size of a Fluke multi-meter could be hidden. That would include anyplace large enough to hide a firearm.

Now that they are able to look in places that could hide firearms they find the dudes firearms. In New York state there are such things as “illegal guns” and “illegal magazines”. There doesn’t seem to be any laws requiring guns to be stored unloaded to the “loaded magazines” in the original article is not meaningful.

Regardless, if the cops found an AR-15 style weapon they would be allowed to determine if it was an “illegal gun” and the same with the magazines. Once a gun was determined to be “illegal” under NY law, the dude could be charged with violating gun regulations.

This case might end up in court and it might be that the defendant(dude in question) argues that the law making the guns and magazines “illegal” is unconstitutional and he might be able to get those charges dropped.

A number of lawyers tell you to not talk to the cops. You have to understand exactly how much you should say and then you need to know to shut up and keep your mouth shut. The cop is looking for you to give him the probable cause to do more.

Pulled from a number of advise articles: Why does a cop start his interaction with you at a traffic stop with “Do you know why I pulled you over?” If you tell answer him his job just got so much easier. If you reply with a polite “Why did you pull me over, Officer?” you haven’t admitted to anything.

B.L.U.F. The Eleventh Circuit Court covering Florida had a three judge panel decided that 18-20 year olds couldn’t buy firearms. The opinion is a hot take.

Emotional Blackmail Works

The three judge panel’s opinion was written by Circuit Judge Rosenbaum. She starts the opinion with some emotional blackmail, telling us that young adults have been shooting people for a very long time using newspaper reports from the 1870’s. She is using this to get the following statements into the opinion:

Double emphasis added.

In Bruen quoting Heller the Supreme Court established that when talking about the history and tradition of firearm regulation that the date to look at is 1791, the ratification of the Second Amendment. The founding period extends, at the latest, to 1826 when the last of the founding fathers died. Laws from the Reconstruction Era can be used to reinforce those traditions but can not be used if not supported by a tradition dating back to 1791.

Age Bans are Legal If You Use Reconstruction Era Laws

Judge Rosenbaum wants to use Reconstruction Era laws to justify the current law.
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I’m tired. We got our power back after around 30-36 hours. We did not suffer but we had to work a bit harder than normal.

I was responsible for clearing a 1/4 mile of driveway that had snow ranging from 30cm to nearly 90cm deep. The first pass was a pain because our snowblower is only good to about 70cm of depth. This means that you drive the blower into the snow, it shoots the snow off to the side and you let it start to climb. When it has climbed to about a 30degree angle you stop the drive wheels and pull the damn thing back

Then you do it again. It has no trouble with the ramp it left behind but shortly after that it will do the climb thing. Each pass gets you about 75cm of progress.

Once you get the first path done it is much easier. In my case I had a kid walk the path with a shovel and pull down a foot or two of snow. Then the blower throws that out of the drive. Relatively easy.

All in all I spent about 6 hours yesterday and today removing snow.

Duncan v. Bonta

You got to love the lie of omission. It won’t work with Judge Benitez but they still had to try. The state of California wrote a letter to Judge Benitez telling him of the decision in the 11th circuit court (Florida way) where the three judge panel found that Florida’s ban on 18-20yo owning a class of firearms is constitutional.

The decision was so egregious that the plaintiffs(good guys) didn’t even have to request an en banc hearing. At least one judge on the 11th circuit judge went “WTF?” and held the opinion pending a decision of the 11th Circuit court as a whole on whether to hear the case en banc to give an opinion.

The state just left out that part where it was found so egregious that the 11th circuit stayed their own opinion.

Koons v. Reynolds

Judge Bumb is not somebody you want to mess with. While the case was brought by plaintiffs(good guys) Koons et all against Reynolds in his official capacity for the state of NJ the Senate and the General Assembly wanted to get their arguments in as well.

They applied to become “Intervenors” which just means they want official recognition from the court to lawyer stuff such as give oral arguments. It isn’t clear to me when they were allowed to join as Intervenors but they are.

When Judge Bumb was threatened with with the state appealing to the Third Circuit court on March 8th if she doesn’t rule on the preliminary injunction in a timely basis she slapped them down and set the date for oral arguments for the March 17, 2023 at 10am.

There is this back and forth going on where the state wants more time to get the historical and traditional laws in front of the court while the court is telling them “The legislature said they had those laws at hand before the passed the law, what gives?” So the state wants to slow walk some parts and “get it done right now!” on the other hand. I think it depends on if they think they are going to have the law stayed or not.

Well the intervenors wrote to the Court telling her that one of the attorneys was in Florida and wouldn’t be back by the 17th and could they please attend virtually. A bit later the other lawyer for the intervenors wrote to the court asking for a ruling.

Judge Bumb gave them that ruling yesterday: