Legal

In the order list for 2025-01-13 we have information on our three Second Amendment Cases.

Gray v. Jennings on how preliminary injunctions should be handled, DENIED.

Given that they were denied, I expect that we will see the case GVR once our Second Amendment case is heard.

Correction: They were denied Cert. It cannot then be GVR. This case will go back to the district court to move past the preliminary injunction stage.

Snope Maryland’s “assault weapon” ban. Nothing in the orders. I wasn’t expecting this. I don’t know what it means.

Ocean State Tactical Rhode Island’s “large capacity” magazine ban. Nothing in the orders.

More: There is another reason that SCOTUS doesn’t put cases in the orders after conference. That is, if they have decided to deny cert, but there are one or more justices that want to write a statement regarding the denial.

If this is the case, this is bad news for us.

I hope that they will release more on the cases, in a favorable light to us, in the next day or so.

YES!

Both Snope and Ocean State Tactical are relisted for conference this Friday!

This is it. We are off to the races!

John of www.GunsSaveLife.com was kind enough to post a link back to us and to quote The Game is On! SCOTUS update

He expressed a bit of skepticism.

John is skeptical because nobody knows what is going to happen in Supreme Court conferences.
It is all “reading the tea leaves”.

The black box which is Supreme Court conferences has visible inputs. Status of the case, briefings on the case, circuit split, time after the last Supreme Court opinion on the subject and a few others.

For output, we have “Denied”, “Denied with statement”, “Granted”, “relisted” and “rescheduled”.

Why the justices decide on which output is a guess. Some people are good at those guesses. Mark Smith has a good record. I don’t have a record to stand on. We know historically that “rescheduling” happens when the justices want to see multiple cases at the same time. We know that under Roberts, cases that are relisted are almost always granted cert. and those that are not have some procedural issue with them, not merits issues.

Cases that are denied Cert generally have nothing said about them. Think of it as spending 30 minutes trying to convince your parents to do something, and at the end of that they say “no”. That’s how most denial of cert goes. Nobody cares when cert is granted. It is going to happen.

When one or more justices feels strongly that cert should have been granted, they will write a statement to go along with the order list. Occasionally, a justice will write a statement explaining to the petitioner why cert was denied so that they can address the issue.

We saw several statements from Justice Thomas on why they were not granting cert on Second Amendment challenges that were in an interlocutory state.

As of January 6th, we are on deck for THREE Second Amendment cases to be evaluated by the Supreme Court.

On January 10th, the justices will discuss all three cases, Ocean State Tactical, Snope, and Gray.

On the following Monday, or Tuesday, they will issue their orders.

The Court can:

• Grant Cert.
• Deny Cert.
• Relist the case

.

While it would be wonderful to have them just grant cert in all three cases, the more likely event will be that the cases will be relisted.

In the Roberts’ court, this is the standard for cases where the justices have agreed to hear the case, but Roberts wants to make sure there are no issues hiding in the case history.

We can expect two to four relisting before they finally decide yes or no.

At that time, we will know what the schedule will be. If the cases will be combined, or if they will all be heard on the same day.

We are on track to have a major Second Amendment opinion issued by the Supreme Court around the end of June.

So far it is only Gray v. Jennings, but it is still early.

In two days, we will get our next cup of tea leaves.

On the 16th, Gray waived the 14-day waiting period for distribution of Petition. They requested that the case be distributed for the January 10th conference on December 24th.

They did, indeed, get their reply in on time. Amazing how the good guys get their paperwork in on time while the state, with nearly infinite resources, is forever requesting extensions.

What does this mean?

As of the morning of the 21st, all three Second Amendment cases seeking cert are now fully briefed. Two are at final judgement and the third is about preliminary injunctions, so being in an interlocutory state is not an issue.

We have three cases teed up and ready to go.

All three cases are simple cases if the Court follows their own president.

Are “assault weapons” arms under the Second Amendment? Yes.

Is this a gun ban case? Yes.

Is this class of arms in common use for lawful purposes? Yes.

Done.

Are “large capacity magazines” arms under the Second Amendment? Yes, but with a bit more language. Magazines are to arms as ink is to free speech.

I this a ban on a class of firearms? Yes.

Is this class of arms in common use for lawful purposes? Yes.

Done.

Is a violation of the Second Amendment to the US Constitution a violation of a Constitutionally protected right? Yes.

Done. Irreparable harm has been committed if a Second Amendment protected right is violated.

Gray’s response points out that there is a circuit split. It points out that a violation of any constitutionally protected right that cannot be fixed with money is irreparable harm.

Prove it!

The state is arguing that the plaintiffs (good guys) “…failed to prove they will more likely than not suffer irreparable in jury while proceedings are pending.”

The petitioners (plaintiffs and good guys) did make a showing that they were suffering irreparable harm. They argued that violation of intangible Second Amendment rights is irreparable harm.

The state argues that they didn’t even try to prove irreparable harm. They counter with the proof is that it is irreparable harm because it is a violation of a Constitutionally protected right.

The trifecta of pro-Second Amendment cases

In the 60s, I can remember wrapping Christmas presents and then going to the Greyhound bus terminal with my mother. There, she would pay to have a box shipped to the Midwest. This had to be done weeks in advance.

My relatives would go down to the bus station when the packages arrived to pick them up. There were no tracking numbers, there were no promises to deliver on any particular date.

As regular people, it was how you shipped large boxes safely and “rapidly.” The US Post Office would tell you that by the early part of November you should have mailed all your Christmas presents.

When Federal-Express came into existence, the concept of getting something from here to there in less than 24 hours sprang into existence as well. For a few dollars, you could send your packages in early December and still get them there in time.

On Friday night, near midnight, I ordered a gift. It arrived Sunday morning.

Instant gratification.

The courts still move like it was in the days before the Pony Express. Everything takes more time than you want it to. Everything is slower than it should be. Everything is designed to allow for extensions to file.

Nothing is ever “fast”.

For example, you file a petition for writ of certiorari, the respondent has 30 days to file a reply. If that reply is not “We aren’t going to reply”, the petitioner has 14 days(IANAL) to file their response.

This back and forth always has a built-in delay. In addition, the parties can always ask for an extension. It is unusual for the extension to be denied.

September 16th, Petition for writ of certiorari is filed. It is a month before the state says, “we are not going to respond”.

October 28th, the court “requests” the respondent file a response. It is a month before the respondent asks for another 30 days to respond. They want 60 days to write a response.

The Court says, “No, you can have 14 days.”

The petitioner files their response on the day it is due. Do you think they wrote on the day it was due, or do you think they wrote it back when the request for a response was filed?

By the rules of the Court, the petitioner has 14 days to respond. This would put their due date as the 26th of December, past the date to distribute for the January 10th conference.

The Supreme Court conferences every(?) Friday to discuss which cases they will grant cert. These conferences are just the 9 justices. Nobody else attends them.

If the normal schedule was kept, that would mean that the case would not be conferenced until late January. Which means we might miss the 2024 Supreme Court term.

The lawyers for the petitioner (good guys) filed a short note requesting that the petition be distributed on the 24th of December for the January 10th conference. They promise to file their response on the 20th.

This puts this case on schedule for the 2024 term.

Conclusion

We might not see a response from the Court regarding this letter. What we will see is the filing of the response on the 20th.

What we want to see is the case distributed for the conference on the 24th. We are also hoping to see Snope and Ocean State Tactical distributed as well.

If that happens, then the Justices will be discussing all three Second Amendment cases on the 10th of January.

Out of that Conference, we can expect to see each case either relisted or denied. I do not expect to see any of them denied.

If they are relisted, the most likely reason is that they are being granted cert, barring anything procedurally wrong with the cases. That week, the law clerks will be researching those cases to make sure there are no monkey wrenches to be thrown.

The next week, we should expect another relisting. If we don’t see a relisting, we will see acceptance.

What we do not want to see is more than two relistings. More than two is likely to indicate something is wrong with one or more of the cases, and one or more of the Justices is writing a statement regarding that denial of cert.

Defamation: A statement that injures a third party’s reputation. It is a type of tort.

Slander: A false statement, usually made orally, which defames another person. The damages from slander must be proved by the party suing.

Libel: A method of defamation expressed by print, writing, pictures, signs, effigies, or any communication embodied in physical form that is injurious to a person’s reputation.

In other words, it is all linked together. In general, we speak of libel as written defamation and slander as spoken defamation.

E. Jean Carroll accused Trump of raping her. Trump denied the allegation he raped her. Carroll then sued Trump for defamation.

Trump lost the defamation case. I believe that the case is on appeal.

This is the case that leftists have been using to say “Trump was found guilty of rape.”

No, he was not. Rape is a criminal offense, tried in a court of law, prosecuted by the state. E. Carroll was unable to find a single prosecutor willing to charge Trump with rape.

She brought a civil case. In a criminal case, the accused must be found guilty beyond a reasonable doubt. In a civil case, it is a preponderance of the evidence. Very different.

Nobody on the left is willing to say that a court that finds in the way they want might be biased, while at the same time screaming that any court that finds against their wishes must be right-wing extremists/right leaning bias. In terms of this case, the suit was brought in a notoriously anti-Trump court.

The court allowed statements that did not directly relate to the charge.

In the end, the jury found that no rape occurred but felt that there was a sexual assault. See past articles regarding multiple charges to allow a jury to do the right thing and then give a lesser charge to make the plaintiff (in a civil suit) or the prosecutor a “smaller” win.

The jury awarded E. Carroll 5 million dollars.

Trump makes it all back, and then some

Yesterday, December 15th, Trump reached a settlement with ABC News agreed to pay $15 million to settle Trump’s defamation suit against ABC News for statements made by George Stephanopoulos.

George claimed that Trump had been found guilt of Rape. This is a false statement that damages Trump’s reputation, i.e., defamation.

Rather than a length and expensive civil trial, which they would have lost. ABC News agreed to pay $15 million for the building of the Trump presidential library. They will also pay $1 million dollars towards Trump’s legal fees.

https://www.foxnews.com/media/george-stephanopoulos-abc-apologize-trump-forced-pay-15-million-settle-defamation-suit

Divination is the art of predicting the future or reading a person using some type of indicator.

Most people can do a cold read of a person and get it mostly right. Others do a much better job.

My personal example was being on a date with a young lady while at university. We had had a nice dinner and were sitting in the rose garden on campus, watching and listening to the water of the river.

I wasn’t pushing, being mostly stupid about females at the time, I was just talking and listening.

I stopped, and said, “I’m so sorry. I didn’t know you had been raped here.” The “guess” was right. I was able to observe her discomfort, and divine what was causing it. Was it magic? No. It was simply a logical result of analyzing the situation and her no verbal cues.

One of the methods that “readers” use to do divination is “reading the tea leaves.” Tea is poured into a teacup with loose tea. The person drinks the tea, leaving the leaves behind. The reader then looks into the cup and divines something about the person, often predicting what will happen to that person.

They read the non-verbal cues to do this, frequently without even understanding the cues they are reading.

The Supreme Court is mystical in how they decide what cases to hear. It is difficult to predict how they will decide given the questioning during oral arguments. Yet, we insist on trying to predict what they will do.

The information we have to work with is typically very limited. In this case, we are attempting to predict if they will grant certiorari in a Second Amendment case.

We have access to the case histories, we have access to the opinion pieces written by others, we have the briefs filed by the parties. We know what other cases are seeking certiorari. And we know cases that will be seeking certiorari.

And we have the orders issued by the Court.

The case which is furthest along appears to be Snope v Brown. It has been fully briefed, it was scheduled to be discussed yesterday.

Snope is an “assault weapon” ban.

Another Second Amendment case is Ocean State Tactical v. Rhode Island. It has been fully briefed, it was scheduled to be discussed yesterday.

Ocean State Tactical is a “large capacity magazine” ban.

Then there is the case of Gray v. Jennings. This is one of the interesting cases because it doesn’t ask the Court to decide a Second Amendment issue directly, instead, it asks how the inferior courts should address motions for a preliminary injunction.

In September 2024, the petitioner (good guys) filed a petition for writ of certiorari. They are asking the Court to clarify a Winter factor.

Winter factors are the four questions that must be answered before a preliminary injunction is granted, or a stay is granted.

The first question is, “Is the party likelihood of success on the merits of the case?” In other words, is the party requesting the injunction or stay likely to have the winning argument.

The second question is, “Is the party likely to suffer irreparable harm without the injunction/stay?” Losing money is not irreparable harm. Losing your life is. Losing your business? That might be something that can be fixed with lots of money.

The third question is, “Does the balance of equities and hardships tip in favor of the party seeking the injunction/stay?” If the hardship is trivial, then it does not justify an injunction or stay.

The fourth question is, “What is in the best interest of the public?”

In the past, the state has often won injunction’s and stays by getting the courts to modify the order of the factors. They claim it is in the public’s best interest, the court agrees, so never looks at the likelihood of success. Or the court finds that the party is likely to win on the merits, but no harm and no hardship is happening.

The Supreme Court not only set forth the “Winter Factors” but they later ordered that the factors be done in order. Success on the merits must always be done first.

In most civil rights cases, if the party is likely to succeed on the merits of the case, they are granted the preliminary injunction or stay. Having your constitutionally protected rights infringed is always irreparable harm. You will never again be able to speak at that moment.

The balance of equities always favors the protection of The People’s rights.

The public has no interest in enforcing unconstitutional laws.

The exception, of course, has always been Second Amendment cases. Many courts believe that there is no harm in denying The People their constitutionally protected right to keep and bear arms.

Gray asks, “Is the infringement of Second Amendment [protected] rights per se irreparable injury?”

The Reading

Snope and Ocean State Tactical were both conferenced for December 13th. The state declined to respond to the petition in September/October by Gray. The case was scheduled for conference on November 8.

Five days after it was scheduled, the Court issued a demand for the state to respond.

This is tea leave one. If the Supreme Court is “requesting” a response, it means that they are looking at the case seriously. You get your response in.

The state delayed in responding, then asked for an extension. The extension was granted. The date for the state to respond was fixed at December 12th.

The response is the normal anti-gun garbage. They first claim that there is no circuit split. This is not a requirement, it is just an assumption. The Court will often let an issue simmer until there is a good case. The one place where they are more likely to step in, is if the interpretation of the law is different in different parts of the country.

Their second argument is that the plaintiffs (good guys) should have presented evidence that being unable to purchase guns and magazines was actual irreparable harm.

Finally, they argue that the Circuit court not only rejected their appeal regarding the denial of preliminary injunction on winter factor two, but on factors three and four.

Because the petitioners (good guys) are only challenging the second Winter factor, if it is a Second Amendment challenge, then it is irreparable harm. The reason is that the other two factors also favor the plaintiff, per current case law.

Conclusion

The Supreme Court likely wants to discuss all three of these cases in the same conference. When we see these three cases distributed for conference on the same day, that will be a strong indication.

The Supreme Court can decide to combine the three cases, combine two and leave the third separate, or hear all three.

Of course, they could decide to hear none of them, this is highly unlikely.

This might be the most important case regarding the Second Amendment since Heller.

Kolbe v. Hogan

This case started when the Fourth Circuit Court issued their opinion in Kolbe v. Hogan. Fourteen judges sat, en banc to hear a challenge to Maryland’s “assault weapon ban”. Only four of the judges found that the Second Amendment protected the right of The People to acquire, posses, and use “assault weapons”.

Judge King wrote the opinion of the majority. They start with story telling.

You can always tell that an opinion will be a great legal work when the opinion starts with stories of events taking place, outside the legal system. In this case, they decide that the most professional way to start an opinion is by telling their version of the evil Bushmaster AR-15 type rifle that killed so many children at Sandy Hook Elementary School.

The entire reference to human autonomy is “a gunman” Everything else is the action of those evil “assault weapons”.

They go on to list other mass shootings, all done by evil black rifles.

Using the standard tap dance of the time, the lower court found that the law implicated the Second Amendment and then decided the government should win, so selected “intermediate scrutiny.”

A three judge merits panel of the Fourth Circuit split for The People, vacating the lower court’s rulings and telling them to “do it over, using strict scrutiny.”

The Fourth Circuit could let this stand, so the en banc vacated the merit panel’s opinion and heard the case.

The en banc Fourth Circuit then decided that the proper position wasn’t strict scrutiny, nor even intermediate scrutiny. No, they decided that “large capacity magazines” and “assault weapons” don’t even implicate the Second Amendment because they are “like” “M-16 rifles.”

Bianchi v. Frosh

This Second Amendment Challenge was started as one of the many cases attempting to get another Second Amendment case before the supreme court. It was a direct challenge to Kolbe.

As such, the case barely paused for a rubber stamp at the district level. The district court, correctly, ruled that they had to follow the superior court, the fourth circuit, and found for the defendants (bad guys).

The gist of the court’s opinion was: This question has been asked and answered by the circuit court. You lose.

The plaintiffs filed an appeal, as planned.

This went before a three judge merits panel. That panel did the same thing the district court did. “The en banc has been asked this question and they answered. You lose.”

On December 20, 2021, the plaintiffs filed a petition for a writ of certiorari. At that point, this became one of a half dozen Second Amendment cases waiting for a writ of certiorari.

In the end, the Supreme Court chose to hear New York Pistol and Rifle Association v. Bruen.

Justice Thomas wrote the opinion in Bruen and it was powerful.

On Aug 1st, 2022, certiorari was granted in Bianchi. The Supreme Court vacated the opinion of the Fourth Circuit and remanded the case to “do it right”.

Moving at lighting speed, the Fourth Circuit merit’s panel scheduled and heard the case on Dec. 6th, 2022.

And then nothing. For over a year, nothing.

Then on January 12th, 2024, the Fourth Circuit granted a rehearing en banc. Nobody had requested a rehearing, the Fourth just decided to yank it from the merits panel’s hands before they could issue their opinion.

Reading between the lines and often on the lines, it was clear that the merits panel was going to issue an opinion favorable to The People. The dissenting judge refused to provide the dissenting opinion, keeping the opinion from being published.

The en banc Fourth Circuit heard oral arguments on March 20th, 2024.

The plaintiffs filed another petition for writ of certiorari, but it was denied because the case was still in an interlocutory state.

In a surprising move, the Fourth Circuit published their opinion in only 5 months. It was as bad as we expected.

The majority opinion with respectful consideration and benefit of Bruen” upheld their original judgement. They found that they had done it right in Kolbe and that “assault weapons” are outside the ambit of protection of the Second Amendment.

Snope v. Brown

This case has been going on for so long that the AG of Maryland has changed, and might change again before this case is heard. The original lead plaintiff has left the state of Maryland, making David Snope the lead plaintiff.

The petition for writ of certiorari was filed August 21st, 2024.

The state, waited to the last minute, then filed a motion to extend the time to respond. This should have been a no-brainer. They knew this case was going to be appealed. This is just the state intentionally stalling.

By September 23rd, all the plaintiff and amicus curiae supporting the plaintiff had been filed. Not a single filing by the state.

On October 9th, the state requested another 30 days. This was limited to just two extra weeks. This is a big win for The People.

The Supreme Court is now in the 2024 term. This runs from August 2024 through June 2025. All briefings and arguments need to be completed in time for the court to come to a decision and write their opinions before the end of the term.

This means that any case that will be heard in the 2024 term must be granted cert. before the end of January. With final briefings filed by November 12th, the case is conferenced for December 13th. If the state had gotten a 30-day extension, the case might not have been conferenced until mid-January, pushing oral arguments into the 2025 Term.

Remember, this was before the election. The state was hoping that they could push the case into the next presidential term and hope for a more favorable to the state Supreme Court.

In every case before the Supreme Court, the most important part is making sure the question presented is representative and will focus the opinion correctly.

Here is how the state put the question:

Wow, that is difficult to parse. I think it might be a question, there is a question mark at the end of the paragraph.

Translation:

1. Is Maryland’s assault weapon ban consistent with Heller?
2. Did the Fourth Circuit faithfully apply Bruen?
3. Is there a need to resolve a conflict among the lower courts?

I was once a teaching assistant for a computer science professor. His examines were horrible. He thought I was there to proctor the exam. Instead, I took the exam. Scored my answers against the answer sheet outside in the hall. Then told him which questions he would be throwing out as bad questions.

He loved to add negatives to his questions. I can’t even write a question the way he did. It wasn’t uncommon for one of his multiple choice questions to have four or more negatives in it. I taught the students to count the number of negatives. If it was an odd number, then it is a true negative. If it was an even number, then it was a positive.

This increased the grades of all the students significantly.

As normal, the next lecture was students challenging questions on the exam. After the second challenge, he took my list, read it to the class stating, “These are the questions that Chris said to remove. I’m going to remove them.”

He gained 75% of the lecture time back. After the next exam, he didn’t even let the challenges start. He read the list of questions that were being tossed.

This “question” reminds me of attempting to decode Dr. Reed’s exam questions.

Compare the state’s convoluted “question” with the plaintiff’s question:

Hmm, that is much easier to parse.

Conclusion

We should know by mid-January if this case is granted cert. If it is, you can expect all the usual suspects to jump in with amici curiae briefs. Some will be fun reading, most will be emotional blackmail.

In 2017, Mr. Wilson was arrested for trespass. When searched, it was discovered he had a firearm on him. He did not have a license to carry.

His case was heard in the lower courts of Hawaii, later it was appealed to the Supreme Court of Hawaii.

There, the court found that because he had not attempted to get a carry license, he could not claim a Second Amendment defense. They then took multiple nasty shots at the Supreme Court of the United States and in the Bruen opinion.

Mr. Wilson then filed a petition for writ of certiorari. On the 9th of December, that petition was denied.

Justice Thomas wrote respecting the denial of certiorari. Justice Alito joined him. Justice Gorsuch also wrote a statement.

No justice wrote to say they would have granted cert. Thomas, Alito, and Gorsuch all agreed that cert. should be denied.

Oh my, the Hawaii Supreme Court was spanked, hard.

The Second Amendment litigators were also chastised. Thomas et al. have stated clearly, “We are not going to grant certiorari on cases that are still in an interlocutory posture.”

As a Second Amendment litigator, stop appealing during the interlocutory phase. If you win, great. You can find in the appeals. If you are going to lose, lose as quickly as possible, then appeal.

Appealing TROs and preliminary injunctions just delays getting a win. I’m not even sure it is worth asking for TROs and preliminary injunctions. Again, it is just a delay.

In the jurisdictions where these battles are being fought, the appeals courts are not on our side. If you request a TRO and it is not granted, the appeal to the circuit court will lose, but it will add months of time to the process, and it increases the costs as well.

If you request a TRO, and it is granted, the state is going to appeal. Having appealed, the circuit court will stay the TRO, the case then will be scheduled for oral arguments months later.

We are much better off moving to final judgement as quickly as possible.