Legal

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.

In general, people are idiots. In groups, they have a combined IQ of less than 70 and the common sense of a three year old.

Daniel Penny is a US Marine who stepped up and protected the people on the subway. He held a homeless, violent, man until the man could be arrested.

He was then interrogated for hours without a lawyer because the police interrogating him established a relationship, by being an ex-marine.

It is often said that there is no such thing as an ex-marine or a former marine. You are a marine for life. There are exceptions, the cop who interrogated Daniel Penny is an ex-marine.

Having charged and arrested this hero, they are now trying to screw him over, yet again.

Prosecutors have wide latitude in what they charge. One of the standard tricks is to bring multiple charges for the same crime, over charging at least one.

Humans like to think they are being fair and reasonable. One of the oldest and most famous instances of this is when a man was taken before a Roman Governor to be “sentenced” for claiming to be a king above Caesar.

The Governor refused to kill the man, instead sentencing him to be whipped. Even though I’ve found nothing wrong with him, he still had the man flogged. When the mob insisted he be put to death, the Governor replied, I told you — he’s not guilty! I find no reason to condemn him..

The complete tale can be found in John 19:1-25.

In other words, to appease people, an innocent man was flogged.

Prosecutors overcharge in expectations that the jury will often find the accused not guilty of the most serious charge, but to appease the prosecutor, will find the accused guilty of the lesser charge.

They can go home, secure in the knowledge that they didn’t sentence a man to 20-life but only 5 to 10. (made up numbers).

Not really internalizing that 5 to 10 is still too much for an innocent person.

The Jury deadlocked. Some members of the jury found that Daniel was not guilty of second-degree manslaughter, some insisting that he was. When they reported a deadlock, the judge charged them to work harder.

The prosecutor then did Daniel a dirty. He requested that the second-degree manslaughter charge be dismissed.

Why is this dirty pool?

If the Judge accepts the motion to dismiss the second-degree manslaughter charge, then the deadlock goes away. If the deadlock goes away, then the jury will have to deliberate over the second charge of criminally negligent homicide.

Human nature will make it easier for the jury to return a guilty verdict on the lessor charge.

The judge should have declared a mistrial. Instead, he accepted the motion to dismiss. He released the jury until Monday.

On Monday, they will start deliberation on the second charge.

I hope that they deadlock on the second charge as well.

I wish this were easy. It isn’t.

At issue is the number of people claiming that Donald Trump is a convicted felon.

Like most things legal, the answer is never simple. The reason is that many laws have internal definitions that do not match the definitions in other parts of the law. And there is the use of the common vernacular.

First, the common vernacular, and the language used by the court, is that a person is convicted when they have been adjudicated guilty. This is when the jury returns a guilty verdict or a judge, in a bench trial, finds a person guilty. This also applies to certain pleadings of the defendant, such as a pleading of guilty or nolo contendere plea.

By this definition, Hunter Biden and Donald Trump are both convicted felons.

Second, in some places in the U.S.C., they define “convicted” to mean when found guilty, when sentenced, or both. 41 USC § 8101(a)(3) uses this definition. Chapter 81 of 41 USC is the chapter on a drug-free workplace.

In other words, the definition of convicted, when talking about a drug-free workplace, uses the “when found guilty”.

The Kicker

The Criminal Resource Manual (CRM) has the following:

So what does this mean?

In my NON-lawyer opinion? Donald Trump is a convicted felon who is seeking reversal on appeal. Until he is sentenced, he is not convicted per international law.

In addition, the judgement is currently stayed, pending the outcome of the appeal.

Hunter Biden is a convicted felon who has been pardoned.

During the dark days before Heller, the rogue inferior courts, like the Ninth Circuit, came to the consensus that the phrase “a well regulated militia” was more indicative of who had the right to keep and bear arms than “the right of the people”.

The result of this piece of stupidity was that we, The People, could not challenge a law based on the Second Amendment. We had no standing.

The federal courts can only address active controversy for the people affected for which they can grant relief. You cannot go to the court and have them decide on which color is best. Nor can you challenge many government regulations, even if they are known to be bad. You have no bone in the fight. No skin in the fight.

The courts have long ruled that being a taxpayer does not grant you the right to challenge the government.

Heller says that the Second Amendment applies to the people

Yes, it does. The Court did a fantastic job of driving a spike through the heart of that bit of sophistry in Heller, ⁣ but that doesn’t mean that the inferior courts haven’t found other things they can twist.

That idea, that the only “people” that had standing to make a Second Amendment challenge were the Militia. That private Militias are banned in many states. The only “legal” militia is the National Guard. The state controls the National Guard. The only people that can challenge state infringements on Second Amendment grounds was the state.

What Part of the Constitution Authorizes the Department of Education?

When the Supreme Court issued their opinion in Missing citations for GVSH6ITR the Federal Government has used the 14th Amendment to justify prosecuting legally sanctioned discrimination.

The issue is that the Federal Government’s lust for power caused them to overstep “…to correct for persistently unequal access to resources…” Missing citations for T29JHW7B. This is all the justification they really needed to create the Department of Education.

You and I can look at this and agree that the Department of Education is not authorized under our Constitution. What can you, or I, do about it.

You would think we could run to the courts and file a lawsuit to stop the law. It doesn’t work that way.

You have not suffered a distinct and palpable injury. You would have paid taxes regardless of the law, and the only injury you, or I can point to is our tax dollars being miss-spent.

Most of the requirements that the DoE places on the state are stated in terms of getting or not getting money.

A few years ago, the school board was hearing a request to raise the price of school meals for students. There was no need to raise the price of the meals. The costs were still covered by what the students were paying.

They were required to raise prices to maintain compliance with a DoE “free lunches” program. Under the program, the schools are allowed to purchase food from the government at a significant savings.

If we had ditched the program, the cost of school meals would have gone up more than what the program required.

The board was forced to raise prices so that they could continue to offer lower priced school meals. You can’t make this stuff up.

Who has standing?

Let’s say that on day one, Trump uses Obama’s pen and phone methodology and shuts down the Department of Education. The DoE answers to the executive. He decides how the laws are enforced and carried out.

You are no longer having your money taken to give to failing schools, that will never succeed. You don’t get to keep any more of your money, that’s still going to be taken away.

But somebody is now being injured. All the people who are no longer getting the beautiful DoE money have been injured by the executive order.

This means that they have standing to file a lawsuit in federal court.

Which means the government can now argue that the DoE violates the Constitution. The plaintiffs (people wanting money from the federal government), have to argue how the Constitution authorizes the transfer of wealth to them.

Reading the plain text of the Constitution and the 14th Amendment, we can see that education is not mentioned in the Constitution, as amended.

At the first step, the plaintiffs lose. If we presume, without finding, that it is constitutionally authorized, the plaintiffs need to show a match to this Nation’s historical tradition of education regulations.

That fails as well.

In the question of Anchor Babies, the same is true. As soon as Trump says “no more anchor babies”, somebody will sue. Then it can go through the court system. During that process, they will find that the Supreme Court has already decided the question of Anchor Babies with Missing citations for NUR4L367

In other words, if the child is not subject to the jurisdiction of the United States, it is not a citizen of the United States. Welping your child on American soil does not make your child a citizen of the United States.

Life is going to get interesting, in a good way.

If you want to see a case take years and years, it goes something like this:

The plaintiffs file a suit and request a Temporary Restraining Order to enjoin the defendants while the court hears briefings and arguments for a Preliminary Injunction.

If the losing party wishes, they can appeal to the circuit court. This will be placed on the emergency docket. The emergency docket is sometimes called the “Shadow Docket”, if the court leans right because it sounds bad.

There is a three—judge administrative panel which examines these petitions on the emergency docket. They can grant a stay or grant an injunction lasting until the case is resolved at the circuit level. They can also decline to do anything, remanding the case back to the lower court.

If the administrative panel decides to accept the case, they will either grant a stay pending the outcome or leave the case in the same stance as the district court put it. They will then place the case on the schedule for a merits panel to hear the case.

Once the case is docketed for a merits panel, the parties start submitting briefs plus copies of everything filed in the lower court. Amicus briefings will also be filed.

Depending on the urgency the administrative panel placed on resolving the case, the case could be heard in a few months or much later. This is determined by putting the case on the fast track or the normal track.

Once it is in a track, a merits panel will be assigned to the case. They will set a schedule. This will state when they want briefings filed, responses filed, responses to responses filed, and when they want to hear arguments. If one of the parties wants, they can request extensions to the deadlines.

After the panel hears the arguments, they will deliberate. When they have come to an agreement, one of the judges on the winning side will write the court’s opinion. The other judge will write their dissenting opinion. This can take multiple months.

The Fourth Circuit had a situation where they heard the case and the two judges had written the opinion of the court, but the third judge was not willing to provide the dissenting opinion. Per custom, the final opinion was not issued until the dissenting opinion was ready.

This lasted so long that even the Ninth Circuit had heard a 2A case and given their opinion. As had the Seventh, Second, and First circuits had as well.

Once they were ready to release the opinion, the Fourth Circuit pulled the case from the merits panel and re-heard the case en banc.

So the case is now a year from when it was first filed.

After the en banc panel has issued their opinion, the loser can seek certiorari from the Supreme Court. They will not grant it because the case is too young. The case has been going for a year or more at this point, but it is still at the very first stage of the case.

Back at the district court level, the judge could put everything on hold pending the outcome of the appeal process. Or they might move forward with the case.

The next step in a court case is the request for a preliminary injunction. The TRO is designed to stop something while the court has time to evaluate the request for a preliminary injunction.

The purpose of a preliminary injunction is to put something on hold until the court has reached its final judgement.

The case has now spent many, many months in appeals, it is now back in the district court. The court issues its order regarding the preliminary injunction.

And the entire process starts all over again. The losers can appeal, the case then wallows in the quagmire that is the appeals process before the case starts its way through the district court again.

At the point where the case starts to move forward, the state is going to argue that the plaintiffs do not have standing, that the case should be dismissed for reasons. Depending on the state of the law that is being defended, the state might be attempting to delay the case or to move it more rapidly.

A strange thing happens when a law is enjoined, the state moves rapidly and the courts move rapidly to reach a stay or to have the injunction overturned. The same state, with the same players, can’t move at faster than a sloths’ pace when their law is there infringing on The People.

There are multiple paths forward for the court and parties. One is summary judgement. In a summary judgement, the court is asked to decide based on the base filings. This should be how most Second Amendment cases are decided.

Judge, the state is infringing on my right to bear arms. The court: State! Stop infringing! Done.

Both parties can request a summary judgement.

Another path forward is for the case to go to trial. In Second Amendment cases, these are most often bench trials. A bench trial is when the judge acts in place of a jury to make determinations of facts.

Most of the cases we are following are having full trials. The parties involved know that they are developing a facts base to support their appeal.

The bottom line is that these cases take a long time and far too much money.

That is why this case is an outstanding win for us.

They Gave Up!

That’s right. The case was kicked to a magistrate judge for mediation. On September 30th, the Mediator reported that the parties had reached an agreement and the case was settled.

This is a full win. There are still some restrictions on displaying firearms. It is still forbidden for guests to have firearms on CHA property. But this is a win.

In VanDerStok, the ATF is arguing that the term may readily be converted was not defined by congress. This makes it ambiguous. An ambiguous term is normally clarified by the rule making procedures.

The gist of the argument is ATF determination letters regarding classification of things as hunk of metal or receiver has always focused on the term “readily”. According to the ATF, the new rule merely clarifies that “readily” can be modified by the auxiliary components included with a kit or in the same purchase.

When asked if the ATF could just as easily claim that all AR-15 lower receivers are machine guns because they can be readily converted to M-16/M-4 receivers, the ATF responded that AR-15 receivers are not being restored because they never were.

The issue is twofold, first, we don’t trust the government. The second is that there is zero difference between an 80% AR-15 lower receiver and an 80% M-16/M-4 lower receiver.

Both require drilling holes for the trigger pin, the hammer pin, and the selector switch.

Both require milling out the fire control group pocket.

The M-16/M-4 lower receiver requires one extra hole.

The Pivot pins are 0.250 +0/0.003 below the deck. The hammer pin is 0.375 +/- 0.002 below the pivot pin. The trigger pin is 0.3140 +/- 0.0015 below the hammer pin and 0.8430 +/- 0.0015 to the rear. The selector is 0.2250 +/- 0.0015 above the trigger pin and 1.9680 +/- 0.0015 to the rear of the hammer pin.

1.9680 +/- 0.0015 to the rear of the hammer pin and 0.4980 above the hammer pin is a 0.1250 +0.0015 -0.0000 hole.

This hole is the difference between an M4 and an AR15 lower receiver.

If the ATF considers a piece of edgedetched steel to be a machine gun, and they consider a hunk of aluminum with a jig and instructions to be a receiver, what would stop them from deciding an AR15 receiver is an M4 receiver?

According to the Solicitor General of the United States:

The gist of the ATF’s argument is that the GCA of 1968 defined a frame or receiver as something that could be readily converted into a firearm. Therefore, the defining aspect is how much time and skill it takes to convert a thing into a firearm.

If we have a small, purpose built, CNC machine which we load with a piece of 7075 bar stock, we push the button, and 3 hours later there is an AR15 lower receiver, is that 7075 bar stock a frame or receiver?

The ATF is arguing that if you sell that CNC machine along with the piece of 7075, then the 7075 is a receiver.

So, if the parts have “well-known other uses”, then it isn’t a frame or receiver? How about a business card with an etching of a firearm component? Business cards have “well-known other uses”.

So it is not a frame or receiver unless there is evidence that the intended purpose is to make a frame or receiver? Again, this means that if I have a 50% lower and the skills and instructions, that makes it a receiver?

The last time I went to the grocery and purchased a taco kit and some ground beef, I came home and told my wife, “I brought home tacos”.

She would have smacked me upside the head if I had told her, “It’s readily convertible into tacos, so it is the same.”

The difference, in the ATF’s eyes, between an AR-15, perfectly legal to own with no tax stamp, and a “machinegun”, requiring a tax stamp, is one hole placed above the selector switch.

They are so concerned about that one hole, that if that location is even marked, it is considered a machinegun.

Never mind that you need an auto-sear, an M16 trigger, an M16 disconnector, an M16 selector switch, and an M16 hammer, just a dimple makes that receiver a machinegun.

What the Solicitor General is arguing is that it is a jig that makes a hunk of aluminum a receiver. This strongly implies that if somebody were to create a jig for drilling the hole for the auto-sear, that would make almost every AR-15 lower receiver a machine gun.

Or it could go back to the evil days of the 6 magic parts. If your AR-15 had any of the 6 magic parts in it, then it was a machine gun. If you had any one of an M16: auto-sear, hammer, trigger, disconnector, selector, or bolt carrier, then you had a machinegun.

Now it will be a simple jig. How simple? It is an L shaped piece with two holes drilled in it. The top hole is a drill guide. The lower hole has a pin press fit. Put the pin into the selector hole. Put the small leg of the L over the deck of the receiver. The small hole is in the correct place to drill for an auto-sear.

You can read the transcript if you would like. It isn’t difficult, but some arguments are difficult to follow.

There are two cases that have been granted certiorari so far. I expect there to be three or four this term.

The most important, in the long term, is Smith & Wesson Brands Inc. et al. v. Estados Unidos Mexicanos.

This is a lawfare case initiated by Mexico against a number of firearm related companies. Wholesalers, manufacturers, and retailers. It was brought in Massachusetts. The reasoning is obvious, Massachusetts hates guns. The First Circuit hates guns. The First Circuit is a known rogue inferior court.

The gist of the case is that people who make and sell guns know that some of their guns will be used illegally. They also know that they will be used illegally in Mexico. The companies did not do enough to keep guns out of Mexico. Therefore, they are responsible for the violence using guns in Mexico.

This is another attack on the PLCAA, Protection of Lawful Commerce in Arms Act. The PLCAA was passed to stop frivolous lawsuits against firearms dealers. It affords those that make and sell guns protected from responsibility for the miss use of their products. Just like every other industry in the country.

Ford Motor Company is not responsible when a drunk driver kills somebody while driving a Ford F150. Chicago Cutlery is not responsible when somebody uses a cheap kitchen knife to kill somebody. Stanley is not responsible when somebody uses one of their hammers to bludgeon somebody to death.

The firearms’ industry is the only tool that is blamed for the misuse of their products.

The district court dismissed the case as a PLCAA protected case. The bad guys appealed to the First Circuit where, of course, they decided the suit was novel and somehow outside the PLCAA. The good guys requested cert. back in April.

Cert was granted October 4th.

Why is this case so important? Because this is the second large case that has directly attacked the ability of firearm manufacturers for damages. The Sandy Hook case was part of the reason that Remington went bankrupt.

The idea is not to win these cases, the idea is to drain these companies of money. If they win, so much the better, if they lose, they still win.

It is a backdoor path to gun control.

If these large cases succeed, we will see this lawfare extend down to the smallest of entities. Every FFL will be scared of somebody suing them because a firearm they sold was misused.

The Supreme Court is highly likely to rule in favor of the PLCAA. The arguments given by the bad guys are feeble. The case is interlocutory (not completed at the district and circuit levels.) That there isn’t a circuit split. That the district court dismissed the counts against some of the good guys.

All the reasons given by the bad guys did not stop the Supreme Court from granting cert. Now we will see what the merit fillings will be.

The second case that was granted Cert. is Garland v. VanDerStok. This is the case where the ATF decided that a hunk of aluminum is a firearm because it might someday become a firearm.

The GCA of 1968 defines a “firearm” and “frames and receivers”. A frame or receiver is a thing that can be readily converted into a firearm.

An AR-15 lower receiver, with attached stock and grip, along with an FCG is not a functional gun. You have to pair it with an upper receiver to create a functional firearm.

Since this is so easy, the lower receiver is considered a firearm because it can be readily converted to one.

An AR15 lower receiver starts as either a piece of aluminum bar stock or as a forging.

It is not a “firearm” under the 1968 GCA until it reaches that stage where it can be readily converted into a functional firearm.

The ATF has long held that you can completely mill/form the outside of the receiver. That includes decking the top, establishing and threading the buffer tube connection. Forming the grip area.

You can also drill and ream the holes for the pivot pins, the trigger guard, the magazine latch, the bolt hold open, and all detent pin holes. The magazine catch slot and the bolt hold open slot can also be completely milled.

If you mark the location of the selector switch, trigger, hammer, or auto-sear pin holes, then it is enough to be a receiver, as defined by the 1968 GCA. Marking any part of the fire control pocket is also a no no.

The ATF decided that they wanted people purchasing hunks of aluminum that they intended to turn into receivers to fill out 4473s and to have background checks done. So they changed the law.

A frame or receiver is something that can be readily converted into a firearm.

The ATF no claims that something that can be converted into a frame or receiver is also a firearm.

There is no stopping this camel, once it gets its nose in the tent. The ATF could define a hunk of aluminum bar stock as a firearm. They’ve stated that hunks of plastic and aluminum with instructions are firearms. Without those instructions, they are not firearms.

An 80% frame or receiver is not a firearm, but an 80% frame or receiver with a jig is a firearm.

This is likely to be decided on process and not the Second Amendment protected rights.

There are a few other cases teed up. These include the Maryland Assault Weapon/Large Capacity Magazine ban. The California’s LCM ban, if the Ninth actually issues an opinion this decade. In addition, there are a couple of cases coming out of Illinois that would look very nice on the Supreme Court docket.

Our first case, VanDerStock will be heard on October 8th, 2024. This coming Tuesday.

The Second Amendment should be a viable defense for anybody charged with a “gun crime”. Found carrying with an expired CCW? Second Amendment defense. Cross an imaginary line and your right to carry disappeared? Second Amendment defense.

We should have seen 100s if not 1000s of cases over the years where the defendants argued that their actions were protected by the Second Amendment.

The reason was actually pretty simple, the courts refused to give those defenses any weight. No defense lawyer was going to bring up a 2A defense when they knew it would just upset the court.

Add to that the many circuit courts that had determined that The People had no right to keep and bear arms. The right to keep and bear arms was reserved for the militia.

As it stood in 2007, private militias were illegal in most states, the National Guard was either formally or informally declared “the [state] militia”, the state AG was charged with bringing any state level constitutional challenges, AND the state AG was charged with defending state laws against constitutional challenges.

In the Ninth Circus court of appeals, the only group that could challenge California’s gun laws was California.

In 2008, the Supreme Court issued their opinion in Heller.

This cut through the crap, said clearly that the Second Amendment was protecting an individual right. It went further, defining almost every word and phrase in the Second Amendment to absolutely define what the protected right was.

Rogue courts immediately pivoted to a new reason to stomp on the rights of The People, the Second Amendment protected rights of The People were not as important as the important things the state wanted to do.

Until 2022, this was the state of the right to keep and bear arms. For states that were not infringing, nothing changed. For states that were infringing, the rogue courts balanced our rights away.

In 2022, Bruen was decided. Bruen reaffirmed Heller. It laid out, in kindergarten language that even a rogue court could not misunderstand, exactly how to apply the law in Second Amendment challenges.

The two cases of interest that were not decided, but instead were Granted certiorari, the lower court’s opinion was Vacated, and the cases were Remanded back to the circuit courts to do over in light of Bruen were Duncan and Bianchi.

It was my opinion, at the time, that we would have a decision from the Fourth Circuit court on Bianchi within 6 months.
We got that opinion August 6th, 2024, two years after the case was GVRed.

It took the Fourth Circuit court two years to get around to issuing their opinion after they were told to do it over again, correctly. Since they were outcome-driven, the results were, predictably, the same.

AR-15s and their ilk are not “arms” as defined in the Second Amendment. At least that’s what the Fourth says. Mind you, the option is around 59 pages long. The dissent is 120 pages long.

The opinion is full of references to news reports, articles from all over the place. What it is lacking is references to this Nation’s historical tradition of firearms regulation. In addition, they misrepresented the Supreme Court’s holding in Bruen.

The Supreme Court said that when the inferior courts were using the two stage means-end balancing method to find every state infringement “Constitutional”, they got the first part right, where they said “This is covered by the Second Amendment”, and the rogue inferior courts were getting it wrong when they balanced our rights away.

The Fourth says that since the circuit courts were getting it right on the first part, and their first step was to find that assault weapons were not covered by the Second Amendment, even though they did means-ends, they still were right to declare assault weapon bans constitutional.

Bianchi v Frosh has been going on so long that they had a change in AGs, the case became Bianchi v. Brown. The case is now seeking cert from the Supreme Court as Snope v. Brown. Dominic Bianchi moved out of Maryland and lost standing.

Duncan is still stuck in the Ninth Circuit court, back in California. We are unlikely to hear anything from them in the next 6 months or more.

But, we might see Snope make it back before the Supreme Court in the next session. Which means that it will be argued in the 2025 term, which starts in October 2025.

It is my opinion that the Fourth Circuit delayed issuing their opinion until it was too late for Snope to request cert for the 2024 term.