Legal – Page 23 – The Vine of Liberty

Case Analysis Legal

Koons v. Reynolds: NJ Kill Carry challenge

Mar 14, 2023 Anonymous Web Angel(GFZ)

B.L.U.F. This case covers the challenge to the knee jerk response of NJ to the Bruen opinion. The NJ “Kill Carry” bill follows the lead of NY’s CCIA.

On 2022-12-22 a suite was filed in the district court of New Jersey challenging the bills put into effect after Bruen and after New York’s CCIA. It uses almost the same methods to make it almost impossible for the public to legally carry a firearm.

Using the standard places at random are “sensitive places” where a legal gun owner could be charged and found guilty just for walking on the wrong side of the road with a firearm. To understand just how bad New Jersey firearms law is consider this New Jersey law:

Dum-dum or body armor penetrating bullets. (1) Any person, other than a law enforcement officer or persons engaged in activities pursuant to subsection f. of N.J.S.2C:39-6, who knowingly has in his possession any hollow nose or dum-dum bullet, or (2) any person, other than a collector of firearms or ammunition as curios or relics as defined in Title 18, United States Code, section 921 (a) (13) and has in his possession a valid Collector of Curios and Relics License issued by the Bureau of Alcohol, Tobacco and Firearms, who knowingly has in his possession any body armor breaching or penetrating ammunition, which means: (a) ammunition primarily designed for use in a handgun, and (b) which is comprised of a bullet whose core or jacket, if the jacket is thicker than.025 of an inch, is made of tungsten carbide, or hard bronze, or other material which is harder than a rating of 72 or greater on the Rockwell B. Hardness Scale, and (c) is therefore capable of breaching or penetrating body armor, is guilty of a crime of the fourth degree. For purposes of this section, a collector may possess not more than three examples of each distinctive variation of the ammunition described above. A distinctive variation includes a different head stamp, composition, design, or color.
— https://law.justia.com/codes/new-jersey/2009/title-2c/2c-39/2c-39-3

If you read through the court cases it means that you are not allowed to use JHP rounds in your carry weapon. Yep, you aren’t allowed to use personal defense rounds but the cops are. Those rounds are designed for multiple purposes, one of which is to stop over penetration.

The question

Do subparts 12, 15, 17 and 24 of section 7(a) and subpart 1 of section 7(b) of A4769/S3214 violates the right to bear arms secured by the Second and Fourteenth Amendments?

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; … [and]
private property, including but not limited to residential, commercial, industrial, agricultural, institutional or undeveloped property, unless the owner has provided express consent or has posted a sign indicating that it is permissible to carry on the premises a concealed handgun with a valid and lawfully issued permit under N.J.S.2C:58-4, provided that nothing in this paragraph shall be construed to affect the authority to keep or carry a firearm established under subsection e. of N.J.S.2C:39-6[.]

— KOONS v. REYNOLDS — Complaint

and;

A person, other than a person lawfully carrying a firearm within the authorized scope of an exemption set forth in subsection a., c., or l. of N.J.S.2C:39-6, who is otherwise authorized under the law to carry or transport a firearm shall not do so while in a vehicle in New Jersey, unless the handgun is unloaded and contained in a closed and securely fastened case, gunbox, or locked unloaded in the trunk of the vehicle…

— Id.

In short they are asking if the sensitive places limits and carry in a vehicle are constitutional. Unfortunately this is limiting and the law was likely written with severability in mind so that if one part is ruled unconstitutional the rest of the law will stand.

The Arguments

Arguments Legal

Arguments: Still not an “arm”

Mar 13, 2023 Anonymous Web Angel(GFZ)

B.L.U.F. The last article was suppose to include this but turned into taxes aren’t infringements. I’m going to try and stay on topic with the state’s arguments about why certain things are not arms.

Bullets are not arms

This has been debunked so many times it isn’t even worth addressing. The Supreme Court has ruled that ammunition is considered “arms” under the meaning of the Second Amendment. Any ban of ammunition is an infringement and under Bruen triggers “history and tradition”.

Magazines are not arms

Arguments Legal

Arguments: It isn’t within the scope of the Second Amendment

Mar 12, 2023 Anonymous Web Angel(GFZ)

B.L.U.F. In the last post I described the leftist argument that Nuclear Weapons are outside of the scope of the Second Amendment. I submit that they are within the scope of the Second Amendment but that the Supreme Court’s current opinions put them outside the Scope.

This article covers the state attempting to claim that certain arms are not within the scope of the Second Amendment.

Let’s tax guns out of circulation!

Arguments Legal

Argument: It is not an “arm” under the Second Amendment?

Mar 11, 2023 Anonymous Web Angel(GFZ)

B.L.U.F. An analysis/opinion of the State’s attempt to move certain arms out from the protection of the Second Amendment.

This is a long running argument from the anti-gun rights people. The gist is always of the “this modern thing didn’t exist in 1791 so it isn’t covered by the second amendment.” These same people are saying this on phones, computers, The Internet, which the firmly believe are covered under the first Amendment, even though those things would not have been known at the time of the founding.

The question is legitimate, so lets take it to an extreme.

Are Nuclear Weapons Protected Arms Under the Second Amendment?

Case Analysis Legal

Rupp v. Bonta — Part 3 – Revised

Mar 8, 2023 Anonymous Web Angel(GFZ)

This article is a revision of Rupp v. Bonta — Part 3 – UPDATED

I got Duncan v. Bonta mixed up with Rupp v. Bonta and wrote about magazine bans in this case when in fact this case is about semi-auto rifle bans.

You can follow the link to read the original. The only changes made were the announcement at the top. Hopefully this is a little easier to read and has fewer errors in it.

B.L.U.F. Final article analyzing the Rupp v. Bonta case currently before Judge Josephine L. Staton, U.S. District Court for the Central District of California. If this case is appealed, it will go up to the Ninth Circuit court, again.

Status of Case

This case was opened, argued in district court, the district court found for the defendants under intermediate scrutiny, the case was then appealed to the Ninth Circuit. The Appellants(good guys) asked that the case be held pending the outcome of Duncan v. Bonta before the en banc Ninth Circuit court. The Ninth Circuit court then told the parties that they felt this case would be impacted by NYSR&PA v. Bruen and “requested” either of the parties to submit a letter asking the case be held pending Bruen. Both parties responded and the case was held until Bruen was decided.

On 2022-06-28 the Ninth Circuit court vacated and remanded the case back to the district. Judge J Bumatay dissenting: For over a decade, our court has improperly interest-balanced our way around the Second Amendment. The Supreme Court has had enough of it. With a clear legal standard now in hand, we should have ordered supplemental briefing to further this case along. … Order Vacating and Remanding P.2 Internal citations omitted.

The case is expected to be heard some time after 2023-05-26. This is not set in stone. The date might move due to other reasons or either party might coincide.

The state is going to have to run a serious calculus on whether to appeal this case. If the district court rules for the plaintiffs then the “assault weapon” ban for the state of California, as currently written into law, is over but the opinion would have no real weight outside of California.

The state could then pass a different “assault weapon” ban and that ban would have to be challenged. This could go on for an extend period of time. As those cases were heard in district courts, those courts that were anti-gun would cite back to this case and then rule the same way.

If the state thinks the Ninth Circuit will rule for them, they know that the plaintiffs will appeal to the Supreme Court and if the Supreme Court grants cert. they will lose and all “assault weapon” bans around the country are gone. If the Supreme Court does not grant cert. then the California “assault weapons” ban will stay in place and the opinion of the Ninth Circuit court regarding the constitutionality of “assault weapon” bans will apply to 15 different districts across 11 states and territories.

Arguments Legal

Why are they arguing outside of Bruen

Mar 8, 2023 Anonymous Web Angel(GFZ)

B.L.U.F. A thought exercise in why the state is producing so many opinions that don’t seem to matter within the bounds of the Bruen opinion. Maybe it is because they are attacking a particular clause in Bruen

There is a classic scene in most cowboy and Indian movies where the new person is with the more experienced person and spots an Indian. The new guy points him out and the grizzled old dude says something like:

If you see him, he wants you to see him. If there is one there are a hundred

The point being that it wasn’t an accident. The Indian wanted to be seen in order to accomplish some strategic or tactical goal.

Much of combat is attempting to get your enemy to misinterpret your actions. If your troops start moving back from the front line and the enemy doesn’t believe that it is because they are pushing you back, they are going to expect a trap. If on the other hand your troops hold as long as they can before retreating, pulling the enemy into ambush, the enemy is more likely to believe they forced the retreat.

As much as we like to call the gun infringers names, like “moron” or “idiot” or “Col. USMC(Ret.) Tucker Stupid”, these are not stupid people. If you believe for one moment that AG Rob Bonta or his people are stupid then you are in for a rude awakening.

These people don’t play to lose unless it is to their advantage.

So if they are presenting huge amounts of what I have called emotional blackmail and items outside of the bounds set forth under Bruen there must be a reason.

Legal Rant

Trying to understand liars

Mar 7, 2023 Anonymous Web Angel(GFZ)

I wasn’t going to write about this but I was trying to understand citations and what was going on.

The footnote is:

Kleck Rebuttal Report, ¶¶7,11 and Deposition of Gary Kleck in Oregon Firearms Federation, Inc., et al., v. Brown, et al., taken on January 25, 2023, 20:22-21:3.
— Supplemental Sur-Rebuttal Expert Report of Lucy P. Allen in Support of Defendant

What do the “¶¶” mean? I know that “¶” means paragraph. Found out it means “paragraphs”. Since I miss read the footnote I read that Lucy was linking to paragraphs 7 through 46. That is the entire rebuttal. What was she actually referring to?

Here is the paragraph that had me scratching my head:

Dr. Kleck criticizes the focus of the Allen Report because he claims that the number and impact of public mass shootings in the Allen Report is “trivially tiny” and that the “legislative intent” behind California’s weapons bans is unrelated to these public mass shootings. 6 First, contrary to Dr. Kleck’s assertion, it is my understanding that California passed its first assault weapon ban, the Roberti-Roos Assault Weapons Control Act of 1989, in response to a public mass shooting – the public mass shooting in Stockton, CA. Second, Dr. Kleck’s claim that public mass shootings are “trivially tiny” is based on his claim that “less than 1% of all U.S. murder victims are killed in any kind of mass shooting,” and that public mass shootings are “even tinier.” Dr. Kleck’s implication that the only impact of mass shootings is based on the number of victims killed is misguided. To claim, for example, that the only impact in the Newtown, CT mass shooting was on the 27 children and adults killed ignores the greater impact that mass shootings have had on American society. For example, according to the Department of Education, 98% of public schools in the U.S. now have drills and procedures regarding active shooters. Moreover, the very source cited by Dr. Kleck to support his claim that the list of mass shootings in the Allen Report is “trivially tiny” also states that “[m]ass shootings are arguably one of the worst manifestations of gun violence” and that “the national dialogue on gun violence has been focused on mass public shootings.”
— Id. ¶ 8

Hmmm, that sounds pretty bad trivially tiny, we’ll come back to that.

She then goes on to move the goalposts. When we talk about the victims of a shooting, we are always talking about those that were shot or injured at the event. More limiting than that is that we normally exclude those that were injured or shot by friendlies.

This will get twisted a bit by different number crunchers, for example when they include the shoot in the list of victims because he was shot dead by a good guy with a gun, but in general we talk about those that were shot by the shooter, not those shot by the cops.

Lucy wants to use the impact of the mass shooting rather than victims. The impact of the cowards of Uvalidi is huge. It reverberated throughout the world. Children were murdered by some asshole while law enforcement cowarded in the hallways.

It had a huge impact, no doubt about it.

Let’s turn to what Dr. Kleck actually said though before we judge him to harshly for downplaying such horrific incidents.

Allen claims that there is substantial benefit to banning LCMs because a large share of mass shooting involve the use of LCMs (defined herein as magazines holding more than 10 rounds). She is only able to sustain this claim by limiting her analysis to a trivially tiny and unrepresentative subset of mass shootings, public mass shootings. She claims she did this because “it is my understanding that the state of California is concerned about public mass shootings and enacted the challenged laws, in part, to address the problem of public mass shootings” (p. 4). Her “understanding” is both subjective and unsupported by any evidence pertaining to legislative intent behind enactment of California’s ban on LCMs and assault weapons (AWs). Indeed, defense expert Louis Klarevas’ description of California’s legislative intent (Klarevas 2023, p. 23) indicates that concern about mass shootings was not limited to those occurring in public places. The fact that the State of California is concerned about public mass shootings does not mean it is not concerned with all the other shootings that do not fall into this narrow category. Further, Allen’s own statement concedes that California’s assault weapons ban (AWB) was enacted only “in part” to address these kinds of shootings and thus must have also been based on concerns about other kinds of gun violence. Thus, her proffered explanation does not justify her narrow focus. It will be shown later that the narrowness of her focus produces some highly misleading results.
— Kleck Rebuttal Report – ¶7

Dr. Kleck isn’t claiming that mass shootings are trivial in anyway. He is stating that Lucy limited her analysis to public mass shootings for some reason. And that the number of public mass shootings compared to all mass shootings is a trivial number.

Dr. Kleck is using language in a very studious and specific manner. He has pulled emotion out of it. He is telling the court what the numbers are and then giving his opinion of what those numbers mean.

Lucy uses the standard 2 and 3 word quote trick. Pulling such small quotes out of context that you can’t tell what the actual meaning was.

And interesting find.

Case Analysis Legal

Rupp v. Bonta — Part 3 – UPDATED

Mar 7, 2023 Anonymous Web Angel(GFZ)

This article has being revised. You can read the revision Rupp v. Bonta — Part 3 – Revised. I got Duncan v. Bonta mixed up with Rupp v. Bonta and wrote about magazine bans in this case when in fact this case is about semi-auto rifle bans.

My confusion was increased because sometimes the experts are talking about “assault weapons” and sometimes about number of rounds and it all just got me mixed up.

In addition, I managed to make more than my normal number of wrong and/or missing words plus it looks like my copy and paste lost the first character in some of the quotes.

My apology. The only changes to this article are within this section.

B.L.U.F. Final article analyzing the Rupp v. Bonta case currently before Judge Josephine L. Staton, U.S. District Court for the Central District of California. If this case is appealed, it will go up to the Ninth Circuit court, again.

Status of Case

This case was opened, argued in district court, the district court found for the defendants under intermediate scrutiny, the case was then appealed to the Ninth Circuit. While at the Ninth Circuit the Supreme Court agreed to hear Bruen at which point the plaintiffs(good guys) and defendants(bad guys, state) asked for the case to be held pending Bruen. After Bruen the Ninth Circuit Court vacated and remanded the case back to the district court, where it is now proceeding.

The case is expected to be heard some time after 2023-05-26. This is not set in stone. The date might move due to other reasons or either party might coincide.

The state is going to have to run a series calculus on whether to appeal this case. If the district court rules for the plaintiffs then the magazine ban for the state of California is over, as currently written into law, but the case would have no real weight outside of this case.

The state could then pass a different magazine ban and that ban would have to be challenged. This could go on for an extend period of time. As those cases were heard in district courts, those courts that were anti-gun would cite back to this case and then rule the same way.

If the state thinks the Ninth Circuit will rule for them, they know that the plaintiffs will appeal to the Supreme Court and if the Supreme Court grants cert. they will lose and all magazine bans around the country are gone. If the Supreme Court does not grant cert. then the magazine ban will stay in place and will apply to 15 different districts across 11 different states and territories.

Arguments Legal

Bad Arguments: Overview

Mar 6, 2023 Anonymous Web Angel(GFZ)

B.L.U.F. Overview of the types of arguments being made by the state to justify infringements. Start of a series.

There are three identified arguments that are currently being presented by the state to justify their infringements.

It isn’t within the scope of the Second Amendment
It is just a fee/cost/expense, not a ban.
There is a history and tradition of this type of regulation

Case Analysis Legal

Cases we Lost: Fyock v. Sunnyvale 9th Circuit 2015

Mar 5, 2023 Anonymous Web Angel(GFZ)

B.L.U.F. The 2008 Heller case was a huge win for us. Yet somehow it didn’t result in the changes in infringements we expected. This is one of the cases we lost which was used to keep infringing regulations in place.

In this interlocutory appeal, Leonard Fyock, William Douglas, Scott Hochstetler, David Pearson, Brad Seifers, and Ron Swanson (collectively “Fyock”) challenge an order denying their request to preliminarily enjoin an ordinance recently enacted by the City of Sunnyvale, California (“Sunnyvale”), restricting the possession of “large-capacity magazines”—statutorily defined as a detachable ammunition feeding device capable of accepting more than ten rounds. Fyock claims that Sunnyvale’s ordinance, part of a ballot measure known as Measure C, violates his Second Amendment right to keep and bear arms and will irreparably harm him if not immediately enjoined.
— Fyock v. Sunnyvale, 779 F. 3d 991 – Court of Appeals, 9th Circuit 2015

Why is this case important?

This case is important because this is one of the circuit level cases cited in multiple Second Amendment cases to support the use of intermediate scrutiny. The other commonly cited case is Kolbe v Hogan which was decided in the 4th circuit court.

These two cases came post Heller. As discussed multiple times in previous articles, when a case is decided that puts the brakes on for some sort of infringement, the infringers read through those opinions with a fine tooth comb looking for something to hang their infringements on.

Prior to Heller cases were heard and dismissed for lack of standing. Those same cases, post Heller came back through the courts and the state had new arguments to support their infringements that fit within the framework set out in Heller.

We’ve all had this type of argument. They say something you disagree with. You counter with your argument. They bring up supporting evidence and you counter. You win because you have a better grasp of the facts and reality. They immediately tell you that they didn’t have the position they had because of the reasons they just argued unsuccessfully with you, no it is this other reason.

I’m a numbers guy. My brain hears numbers and they just make sense. When we were dissolving a LLC the other people in the LLC were buying us out. They offered a sum. They justified it with a set of numbers. I pointed out their numbers were bogus. At the next arbitration they offered exactly the same sum but with an entirely different set of justification numbers.

Those were just as bogus. I shot them down. At the next arbitration they offered the same amount yet again with still a third set of numbers to justify. I showed how those numbers were bogus as well. I then asked “All you have for the buy out is that sum, right?” They looked at each other and nodded.

“Ok, then stop trying to justify that offer with bogus numbers. It is what you have and there isn’t any more.”

Sometimes these court cases feel like that. The state has but a single position and they will argue that position a dozen different ways, all as bogus as the last.

LCM in Sunnyvale California

After Heller the states didn’t have the same knee jerk reaction at the legislative level that they did after Bruen, instead the issues were fought in court. In court the state through plate after plate of spaghetti at the wall to see what would stick. As soon as one piece stuck, the rest of the infringing states incorporated that argument into their own building up case law to the point where the Heller opinion had been all but neutered.

Fyock v. Sunnyvale came about because the city of Sunnyvale decided to “do something” and passed an ordinance banning Large Capacity Magazines.

The history of LCM bans in California started with the federal “Crime Control Act” of 1994. Part of the CCA was the AWB. There was also a LCM ban as part of that. In 2000 California put into place a ban on the manufacture, sale, purchase, transfer, and receipt of LCMs. They did not ban the possession of LCMs.

They didn’t feel the need to for some reason.

In 2004, the CCA sunset ending the federal AWB and LCM ban.

The state and the Ninth Circus court declared that this created a “loophole” where people in California could possess LCMs even if they couldn’t get new ones.

In 2013, the city of Sunnyvale had a citizen driven initiative on the ballot to ban the possession of LCMs. It passed.