Legal

We won, again.

These inferior rogue courts lose and the media plays it up as a win.

The short of it, the state (not bad guys) transferred Kilmar Armando Abrego Garcia to the El Salvador “super max”. Garcia was under a court order to be kept in the United States.

Garcia is a bad person. The state says he is a member of MS-18, he claims he is not. He does not appear to have a criminal record outside of being here illegally. He was detained under the Biden Puppet administration.

His transfer was a mistake. The state acknowledges this.

The District Judge issued another of those magic TROs. He overstepped his Article III power when he ordered the Government to facilitate and effectuate the return of [Garcia] to the United States by no later than 11:59PM on Monday, April 7.

To understand this win, it is necessary to understand the power of a court. When a court gives an order, it must be followed or the court can find you in contempt. Being in contempt can cause people to be arrested.

In this particular case, I believe it is Kristi Noem who would have been held in contempt.

The TRO uses two different terms with different legal meanings. The first is to “facilitate”. This is telling the Government to work with El Salvador to get Garcia back. It could be the Government paying money, it could be other diplomatic pressure, or it could be a simple “please give him back.”

The difficulty the Government has is that Garcia is a member of MS-13. Under El Salvador law, this means he is a terrorist. As a terrorist in El Salvador, he will be detained in their super max under their laws.

Under the facilitate requirement, as long as the Government was working to get Garcia returned to the United States, they were within the boundaries of the TRO.

The second term, “effectuate” is different. This is a get-it-done requirement. This requires that Garcia be back in the United States before midnight on the 7th. If the Government does not have Garcia back in the United States by that deadline, they will be in contempt.

Whatever the full reasons might be for the state not wanting Garcia back, it is unreasonable to expect the state to negotiate the return of Garcia and to have him back in the states within the deadline given by the court.

Chief Justice Roberts quashed this TRO without committing the Court. He issued an administrative stay. Because that stay took the case past the midnight deadline, there was no more threat of contempt.

Having made it past the deadline, the Court then issued an order today.

Yep, the district court was just slapped down for overreaching its power.

The government is no longer required to return Garcia, they are required to work towards getting him back. Meanwhile, they can continue the court case at the district level, which might end with Garcia staying in El Salvador.

The government is only required to share, what it can, about the steps they are taking to facilitate the return of Garcia.

“We’ve scheduled a meeting with the representative of El Salvador.” Which is 4 weeks from now. They can slow walk this thing.

Watching The Supreme Court is always frustrating. There is a tendency for things to take a long time.

David Snope filed a petition for writ of certiorari on September 23, 2024. This will be the third or fourth time he has requested a writ of certiorari from the Supreme Court.

It has been granted once, the ruling of the Fourth Circuit court was vacated, and the case was remanded back down to the Fourth for a do-over in light of Bruen.

In November 2024, we were hoping that this case and Ocean State Tactical would both be granted cert. It did not happen.

If cert had been granted by January 16th, the case would have had oral arguments in the fall, with the opinion issuing in August.

As things sit, we might not hear the outcome of this case, if granted cert, until the fall of 2026.

But there are things afoot here.

First, the court heard Bondi v. Vanderstok and published their opinion on March 26th. This was not a direct Second Amendment Challenge, it was more of an administrative challenge. We did not win. Both Alito and Thomas dissented.

Mexico’s lawfare case was heard. We will have an opinion on that before the end of the 2024-2025 term. This is a case where the Supreme Court can slap down the lower courts for abusing the Protection of Lawful Commerce in Arms Act.

Snope is in regard to Maryland’s “assault weapons” ban. It is one of the many cases where the inferior courts have said things of the sort of “well, some arms aren’t arms under the protection of the Second Amendment.”

Another case, with a docket that looks almost the same, is Ocean State Tactical challenging Rhode Island’s magazine ban. Here, the inferior courts have declared that magazines aren’t really arms under the Second Amendment.

A third case has shown up on the radar.

Antonyuk II is a Second Amendment challenge to New York State’s Bruen tantrum response bill.

The heart of this is New York designating almost every part of the state a sensitive place. Even though Bruen explicitly said that the state couldn’t declare Manhattan a sensitive place, just because there were cops and people there.

All three of these cases are being discussed by the justices, again, this Friday. If we get lucky, we will hear some movement on Monday.

At this point, my tea leaves are missing, my crystal ball has clouded up, and the wife won’t let me sacrifice a chicken to read its entrails.

I haven’t a clue what the justices are going to do. I am holding out hope.

This is an outcome that I disagree with.

This was a 7-2 option in favor of the state (the bad guys).

Thomas wrote a great dissent, I agree with him about the correct outcome.

Alito did a better job of explaining why the court got it wrong.

Emphasis added.

Facial challenges that require the Salerno test are the most difficult to win. The challengers must prove there is no case in which the regulation is legal (or constitutional).

This is what happened in Rahimi. The court found that §922(g)(8) withstood a facial challenge because a person who had been found to be a violent danger to others could be temporarily disarmed.

The Court found that there was a tradition of disarming violent persons in the late 1700s. That the disarmament could only be temporary, and it had to be properly adjudicated.

Because of the very limited scope they found, the law survives the facial challenge.

By extension, a lifetime loss of Second Amendment protected rights runs against the opinion in Rahimi.

Here, the state slipped in a statement about Salerno. The respondents (good guys) didn’t feel it needed a response, so they didn’t respond.

The majority of the Court then took this as the respondents agreeing that Salerno should control.

Now that Salerno attaches, all the state need do is find ONE example where the regulation is acceptable.

In this case, they used an example, provided by the state, of a frame that required two plastic tabs clipped and filed, and a few holes drilled. Something any of you should be capable of doing in 10 to 15 minutes.

The other was a complete kit which contained everything to assemble a firearm. The time to assemble was listed as around 21 minutes.

As Alito points out, this means that those two are firearms, as defined by the GCA of 1968. It doesn’t say anything about the rest of the frames and receivers out there.

Regardless, background checks are unconstitutional, in my opinion.

This is 12 hours late. I am working a hard deadline for a client that has to be able to handle tariffs correctly by April 2nd. Sorry about that.

Back in the depths of time, a foreign national wanted to become a U.S. Citizen. He married a young woman who was a U.S. Citizen, living in the U.S.

He received his visa to come to America.

When enough time had passed, he asked his wife to sponsor him to become a U.S. citizen. She did not want to. He offered her $5000 to do so. She refused, they divorced and he left the country.

This happens more often than you might think. It happened to a friend of mine.

She wasn’t a beautiful woman, she was very plain. A man from the Middle East in the US on a student visa “fell in love” with her. He wined and dined her. Treated her in ways nobody else had.

They got married. He got his green card. They had a beautiful girl together. She sponsored him for citizenship. He became a U.S. Citizen.

He then divorced her, took their kid back to his home country. Married the girl who had been promised to him before he came to the US.

In the case of Miss Bouarfa:

Miss Bouarfa appealed to the Board of Immigration Appeals, which agreed with the state, his visa stayed revoked. She then appealed to the Federal District Court, claiming the state lacked sufficient evidence to support their determination.

The state got the case dismissed. 8 U.S.C. §1252(a)(2)(B)(ii) has this to say:

They appealed to the Eleventh Circuit Court, which affirmed the inferior court’s ruling. His visa was still revoked.

The question the Supreme Court chose to resolve:

Conclusion

Once the back and forth with the inferior courts is completed, Khalil will lose.

The Supreme Court found, 9-0, that the Secretary has the choice to revoke any visa or green card for anything he feels is sufficient. Judicial review is not allowed under U.S. Law.

The ONLY challenge they would have is a Constitutional challenge, which they have not really made.

What is the judicial branch of the U.S. Government?

There is only one court defined in the Constitution, all the others are created by Congress and are inferior to the Supreme Court.

The Congress can establish courts, which implies that they can delete courts. This has happened in the past, I believe. We have been looking to split the Ninth Circuit into multiple circuits for several years now.

Neither the Congress nor the President can reduce the salary for Judges. They can only increase their salaries.

There are two ways to remove a federal judge from inferior court: 1) Impeach them, 2) Find that they are not exhibiting “good behaviour”.

While the Constitution established the Supreme Court and authorized inferior courts, it doesn’t, explicitly, say what authority over the other two branches it has.

The President has the power of the veto. He has command of the military and the tools required to fulfill his responsibilities as the head of the executive branch.

The Congress has the power of the purse and the ability to create laws. They can override a presidential veto.

Our government was set up to be at odds with itself. To be inefficient in creating laws. No man’s home or wallet is safe when Congress is in session.

The power of the Court came when they took it in Marbury. They didn’t justify that power grab under the Constitution. They simply declared that it is the job of the courts to say what the law is.

As part of that task, they are now empowered (authorized) to judge the Constitutionality of any law.

The Supreme Court has put guard rails on that power. While we heard it in Bruen and in Heller, it is a consistent message, first look at the plain text of the Constitution. If the proposed conduct implicates the plain text of the Constitution, then the burden shifts to the Government to show this Nation’s historical tradition of equivalent regulation.

Yes, that sort of language is in many Supreme Court opinions, not just Second Amendment Opinions. Which is part of the reason the legal people of the Second Amendment Community get upset with rogue inferior courts.

The Trump Administration’s Attack on Judges

Maybe we should say, “rogue, inferior court, judges.” These are judges, sometimes making up an entire court, that seem to feel that they have the power to overturn presidential orders.

Unfortunately, these judges step outside the guard rails constantly.

Consider just one question, “Does the President have the Constitutional authority to hire and fire personal within the executive branch?”

When we look at the plain text of the Constitution, we find that he does have the authority to hire. Sometimes that requires the Advice and Consent of the Senate. Other times it does not.

With the authority to hire comes the ancillary authority to fire. This is the same as the First Amendment’s “freedom of the press” including the right of the press to purchase ink and to be free of targeted taxation.

Trump 2.0 came into office knowing that he would be subject to lawfare. The left has already played that hand.

When I read the filings of the state (good guys), it is obvious that they were prepared for these court cases. They have been extraordinarily careful to make sure they follow the court’s orders without letting the court win.

Battle Is Waged

There seems to be credible evidence that there are people in congress that are looking to start impeachment proceedings against those judges that they feel are going rogue. Chief Justice Roberts issued a statement that impeachment wasn’t the correct path to follow when a court’s ruling goes against you. Still, the undertones suggest that impeachments are coming.

Some lawyers are suggesting going after the good behavior aspect. If the judge is not staying within the guard rails created by the Supreme Court, they are not exhibiting good behavior. This means they can be removed. Is there good case law for this? I do not know. I suspect there is not.

You are welcome to read this article from the University of Notre Dame.

Regardless, there are judges out there that are seeing that they are getting into the “FO” stage of the equation.

Enter Judge Jesse M. Furman

Judge Furman is a member of the Southern District of New York District Court. When Khalil was detained, then transported before being deported, he was the lucky judge to get the case.

The case is a writ of habeas corpus.

The gist, in this case, is that the lawyers for Khalil want him in S.D.N.Y, and they want the court to have power over him. Currently, the federal government has power over him.

Unfortunately for Khalil, the state hit hard and fast. They detained Khalil, took him to the ICE Field Office in Manhattan for processing. The ICE Field Office does not have facilities for holding prisoners for more than 12 hours. Since he couldn’t hold him there, so they transferred him.

He was transferred to the Elizabeth Detention Facility in Newark, New Jersey. Normally, this is where he would have been held until deported or released.

But, the Elizabeth Detention Facility was experiencing and continues to experience a bedbug issue that prevented [them] from accepting detainees as full transfers. In short, he couldn’t stay there.

This was known before Khalil was detained. They had transport ready and Khalil was on his way to the Louisiana Detention Facility in Jena, Louisiana shortly after he arrived in New Jersey.

This was happening so rapidly that the Judge is talking about where Khalil was at any particular minute. In some cases, he was removed from jurisdictions only a few minutes before court orders would have stopped the transfer.

Now Khalil is in Louisiana. The S.D.N.Y. did not have jurisdiction when the case was opened. That would have been in the District of New Jersey. By the time everything was sorted out, he was in the Western District of Louisiana.

This judge could claim he had jurisdiction and demand the return of Khalil. This would be fought, and is being fought. He is unlikely to win on the merits. It could be years before the Supreme Court makes a final decision. During that time, Khalil would be behind bars.

If the judge dismissed the case, his earlier TRO would be vacated and Khalil would be deported.

If the judge transferred the case to the W.D. of Louisiana, it is likely that the courts in that jurisdiction would not be issuing orders overriding the President.

Here is the thing. The Trump admin is going to put the same motions for dismissal or transfer in front of the judge in New Jersey.

How does a judge in New York decide that they don’t have jurisdiction because the person wasn’t in the district when the case was filed, believe that the case belongs in a jurisdiction where the complaint was never filed and where the person is currently being detained?

Bluntly, I think the judge in New York took a look at what was happening and decided, “I don’t want any part of this mess.” Then punted.

When my guy does something I like, I do cheer. When their guy does something I dislike, I’ll boo.

But what happens when my guy does something I like, but which I would boo if their guy did?

I worry about this.

In addition, I look at how I would react if something my guy is doing today, were to be done by their guy tomorrow. I need to be willing to accept both theirs and mine doing this thing.

I was extremely upset when Joe Biden’s masters were ignoring Supreme Court rulings. Is my guy ignoring court rulings?

One of the things to understand is how our Constitutional Republic works. We, The People, have rights. Our state has rights derived from The People of the state.

The federal government and the state government have power. They have power by existing.

The federal Constitution grants authority to the federal government to do certain things, and only those things.

Consider the following, a squad of cops breaks down your door, throws you in irons, transports you to the jail and locks the cage.

Under our Constitution, the cops only have the authority to do so if they have a warrant. If they don’t have that warrant, they do not have the authority to detain you. Did they have the power to do so? Obviously, they did because they did detain you, and they did throw you in jail.

The Supreme Court was not granted any authority under our Constitution. Our Constitution established a Supreme Court, but they didn’t explicitly give the Supreme Court any Authority.

With —Bouarfa v. Mayorkas, 2024 604 U.S. 6 the Supreme Court took the authority to arbitrate what was and what was not Constitutional.

We, as a country, have accepted this.

When we look at the courts, they have significant authority, they do not always have the power to enforce their authority.

When the judge looks down from his bench and orders a person into jail, it is Law Enforcement that executes that order. In some cases, the court employs those people. In federal court, the enforcement power rests in the executive branch, such as the federal marshals, who report to DoJ.

So, in the cases I’m looking at, the court has the authority but lacks the power.

Tren de Aragua(TdA)

What is due process as it relates to TdA?

We start with what due process do you have? You are stopped while walking down the street and the cop demands your papers.

You do not have to produce papers when a cop demands them (IANAL). In some states, you might have to identify yourself, but that does not require you to provide papers.

If you have followed your state’s laws regarding providing identification, what next?

Go watch some YouTube videos and reach out to a lawyer in your state. I have nothing to say because I just don’t know.

As a citizen, you have the right to a jury of your peers. You have the right to due process. You have the right to legal representation.

They do not have the authority to just disappear you into a cell.

You will get your day in court. If you are not found guilty, you will be released. It can be expensive, but you don’t get thrown into a cage without due process.

But what if you are here illegally?

If you are an illegal alien, then they only need to prove that you are here illegally. Once they prove that, you can be deported.

The question arises, who do they have to prove legality to? To a judge? To some nameless official? To their drinking buddies? Who?

In the case of TdA and other gangs, like MS-13, they self identify as belonging to those gangs. As part of those gangs, they are not welcome in the United States. Because they are not wanted, they do not have visa or green cards. Since they are not here legally, they can be deported.

But what if they do have a visa or green card?

Simple, those can be revoked. Being a member of such a gang is enough of a reason for the State Department to revoke a visa and/or a green card.

Once they are deported, it becomes the responsibility of the receiving country to deal with those deported.

Well, we decided to fly TdA members to El Salvador. There is an interesting law in El Salvador. According to one source, TdA are by definition criminals in El Salvador.

Under El Salvadorian law, any member of TdA can be arrested and jailed.

When these deportees arrived in El Salvador, the El Salvadorian officials determined if they were indeed members of TdA.

Since they were in El Salvador, they are, by definition, criminals. Thus, they can be jailed.

They were then in processed and get to stay in the comfort of El Salvador super max prison.

Was due process served? Yes. Could it have been abused? Yes. Will it be abused when the democrats regain power? Yes, it will.

How do I know that it will be abused by democrats? Because they did so over the last four years.

This is the current version of section §922(g). The word “felon” does not appear. All definitions are included within the list.

As you read on, notice that we have gone from actually crossing state lines to “affecting commerce”. This is a huge power grab by the federal government. The Constitution authorizes them to regulate interstate commerce.

The power grab is that they now claim the can regulate anything that might affect interstate commerce.
This is not how it started.

This does not seem to include as much as the current law does.

In October 1968, the law changed

Here we see that they have explicitly excluded misdemeanors with possible imprisonment of less than two years. The old version was greater than one year.

Read that last line carefully. In November 1968, a person who was a “prohibited person” could no receive any firearm or ammunition which had been shipped in interstate or foreign commerce. They could still keep and bear arms. They could not buy or be given guns that crossed state lines.

This means that it was perfectly legal for a prohibited person to keep all the firearms they owned before becoming prohibited and they could manufacture firearms for their use. All legal.

It also meant, that if they were to buy direct from a manufacturer, that would be legal. For example, if they lived in New Hampshire, they could go to the Sig Store and purchase a gun manufactured by Sig in NH.

Section (h) was rewritten to reference section (g) for who was prohibited. We also see that it is no longer receiving a firearm that is a crime, it is in possessing.

We still see that the limitation is on firearms that cross state lines. We see this in many federal laws. They will reference something crossing state lines being regulated. This is because that is all the Constitution authorizes the federal government to regulate.

These changes were part of “Firearms Owners’ Protection Act”. I just love it when something that is about protecting my rights adds more limits on rights. Yeah, I know, bad people.

In 1996, §§ 921-922 were amended to add definitions and text to prohibit who has been convicted in any court of a misdemeanor crime of domestic violence..

In 1998, in an “Omnibus Consolidated Appropriations” bill, they changed the definition of an illegal alien.

Conclusion

1) reading lawsuits is easy compared to reading “Public Laws”. They write bills like patch files. Instead of showing us the new version with strike through and underline to show removed and new text, they say things like (I) by inserting “transfer of a firearm to or” before “receipt”; and (II) by striking “(g) or (n)” and inserting “(d), (g), or (n) (as applicable)”.

I read that stuff all the time, but I have tools that make it easy to see the changes.

2) The law expands little by little, infringing more and more. What starts with something that feels reasonable ends with something that is totally unconstitutional.

This is an interesting and challenging case, for me.

This is a Constitutional challenge to Mahmoud being detained and then deported. His claim is that this is a violation of his First and Fifth Amendment protected rights. Because it is a violation of his rights, the court should grant him relief.

Mahmoud is an Arab that claims to be a Palestinian. He entered the United States in December 2022 on a student visa to study for a Master’s degree at Columbia University in New York. He completed that degree in December 2024 and is going to graduate in May 2025. He married in November 2024 and got a green card.

He was granted a green card because he was married to a US citizen. He is still an alien, just not illegal. He has not overstayed his visa, nor is he required to leave when his visa expires.

His lawyer describes his actions in this way:

This describes his actions as speech. Regardless of how reprehensible that speech might be, it is still protected. The First Amendment protects reprehensible speech, not just the words we want to hear. It is easy to believe in “free speech” if the only allowed speech is that which we agree with.

This case is seeking the following relief:

1. Assume jurisdiction over this matter
2. Declare that the state violated Mahmoud’s First amendment and Fifth Amendment protected rights
3. To keep Mahmoud in New York
4. Release Mahmoud
5. Pay Mahmoud’s legal fees

Item 3 is mooted because Mahmoud was out of New York before the case was filed. In a later filing they requested that he be returned to New York.

So we look at the Constitutional challenge. One of the things to note is that not all the Constitution applies to everyone. Some apply to Citizens and some apply to “the people”. The rights limited to citizens are called out by the term “citizen”. The rest of the time the founders use the terms “the people”, “person”, and “the accused.”

The Supreme Court has issued many opinions that restrict “The People” to those with a strong connection to the community politic.

With these in mind, it seems clear that Mahmoud is a member of the people. His rights are protected by most of the Constitution.

Is he challenging a federal law prohibiting the free exercise of or abridgment of his speech? Not directly.

Instead, he challenges the law as applied to him, His claim is that he can’t speak while detained and that the threat of detention has a chilling effect on his ability to speak freely.

The state has not justified his detention in court documents — yet. Instead, they are fighting the most relevant parts first. Bluntly, I don’t care if this asshole is deported or rotting in a jail cell. He’s not out there intimidating the people of the United States.

What the state did was they revoked his visa and his green card.

When can a green card be revoked?

What this means is that the state need only prove that Mahmoud was part of or assisting a terrorist group. Hamas is a designated terrorist group.

Conclusion

The left loves to talk about hate speech. They love it because it allows them to justify their violence. Hate speech is always in the eye of the offended.

“Violent” speech is violence, according to the left.

Violence can be countered with violence.

Therefore, you saying something that they disagree with is hate speech, which in turn is violence, which means they can punch you.

In the other direction, any real, physical violence they engage in is “just protests” and is “speech” protected by the Constitution.

They are going to lose this one. I’ve seen to many good filings from this administration to believe they aren’t going to win. Maybe not at the district level with all the rogue inferior judges, but they will win higher up.

This case is distributed for Conference on 3/28/2025. This adds an interesting twist on our Second Amendment cases before the Supreme Court.

Could this be combined with the Snope (assault weapon bans) and Ocean State Tactical (magazine bans)?

This case is where New York State’s Bruen tantrum replaced “proper cause” with “good moral character” and then proceeded to make almost all of New York State a sensitive place.

We are living in interesting times.

I wrote this morning’s post last night, before Mark Smith had posted.

I felt I got it right.

It feels wonderful to hear him saying the same things I was trying to write about.