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Over the past 2 years we’ve been told that losing and calling into question the results is a threat to democracy. Thank goodness it is a threat to democracy because I don’t live in a democracy. I live in a representative republic.

Of all of the things that a president does, I believe that the most important is appointing judges. Most importantly appointing judges to the Supreme Court. The people that sit on the bench make decisions that affect us all for years, maybe decades, after a president leaves office.

A good choice moves things in the correct direction, a bad choice moves things in the wrong direction.

For the left, the job of a justice is to look at society and make judgements to modify existing law to better match what is best for society or which “most” of society wants. For the right the job of a justice is to follow the law as written.

We call judges making rulings from the bench to overturn laws to fit society “legislating from the bench.” If congress passes a law that says that federal highway funds can not go to a state with any speed limit in excess of 55 MPH that is very likely within their constitutional powers. The power to tax and the power to budget are defined in the Constitution.

The President ordering that Customer And Border Patrol follow the law and apprehend people crossing the border anywhere it is not a port of entry is well within the constitutional powers granted to the President.

We, the people, granted certain powers to the federal government. Those that we did not grant to the federal government are retained by us or the states.

Laws are created in a very well defined way. A bill is created, it is voted on by a chamber, if it passes it goes to the other chamber where it is voted on, if it passes both houses it is sent to the President for him to sign or veto.

But any federal judge can place an injunction on any law extending over the entire country. We saw this with multiple executive orders under Trump and even some laws that were signed by him.

In this case, one man, unelected, gets to decide on what is or is not allowed. One man can look at an amendment to the state constitution and declare that the amendment is unconstitutional by the state constitution.

I really wish we could do that one. “Oh look, they passed an amendment restriction gun ownership to people in the militia which is the federal military. But it is unconstitutional because of the 2nd.” That is not how the amendment process works. If they were ever to pass an amendment affecting the right to keep and bear arms you can be darn sure that anything to do with the 2nd would not be allowed.

So the left lost the Supreme court. Trump managed to get three judges on to the court wich moved the court from the “living constitution” methodology to the “originalist” methodology. As the court has stated, the people had their say in regards to the constitution, when they ratified the original constitution and when they ratified every amendment to the constitution. The people spoke.

Leftist don’t get to say “well we want a do over! Things changed!” THey scream this, but that’s not how it works.

So they are attacking the court has hard as the can. I’m seeing as many as 20 articles a week denouncing the supreme court. People that had no issues with a court decision that split along party lines for the left now have weeping jags and whine that the court isn’t fair when it splits along party lines for the constitution.

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The other day we reported that the Oregon Firearms Federation had filed suit against Measure 114.

OFF was unhappy because they didn’t see any of the nation organizations helping them.

Well maybe somebody in the GOA or FPC reads this blog or got forwarded the email from OFF but for whatever reason yesterday the GOA signed on to the OFF suit.

In addition the FPC filed a complaint (suit) for declaratory judgement and injunctive relief.

1. The State of Oregon has criminalized one of the most common and important means by which its citizens can exercise their fundamental right of self-defense. By banning the manufacture, importation, possession, use, purchase, sale, or transfer of ammunition magazines capable of holding more than 10 rounds (“standard capacity magazines”), the State has barred law-abiding residents from legally acquiring or possessing common ammunition magazines and deprived them of an effective means of self-defense.

2. Absent relief from this Court, Defendants will violate the constitutionally protected rights of Oregon’s law-abiding citizens and reinforce the erroneous notion that the right to keep and bear arms is nothing more than “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010).

3. Worse yet, Defendants will commit these constitutional violations without any realistic prospect of diminishing the misuse of firearms or the incidence of horrific mass-shootings. The State’s ban on standard capacity magazines will do nothing to address or ameliorate these public policy concerns. All it will do is leave law-abiding citizens more vulnerable to attack from better-armed and more ruthless assailants.

The battle goes on. It is good to see the GOA and FPC step up. I was thinking they would not as they were already doing battle in the ninth circuit court with cases from California. It will be interesting to see what the Federal Judge in Portland decides.

Regardless, I was wrong and I’m glad I was.
COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

In 2005 congress passed Protection of Lawful Commerce in Arms Act often referenced as “PLCAA”. this was a bipartisan bill where both Democrats and Republicans worked together to protect the arms industry.

There are people out there that hate that we possess firearms. They look at the instrument and believe that if the instrument is no more than there will be no more violence committed with guns. They are correct, if there are no more guns then there will be no more gun crime.

The reality is that there will never again be a time when there are no guns. In countries with almost total gun bans bad people still have guns. Japan has some of the most stringent firearm laws in the world. Almost nobody owns a gun. Yet a man was able to build a gun and use it to assassinate a politician.

The fact that their goal is not obtainable has never stopped them from trying to rid the country of all guns. Their goto argument is “it would be worse without the gun control laws that are already in place.” We see this with every win where we claw back more of our right to keep and bear arms. “The streets will run red with blood if you let people own guns legally!”

The almost always leave off the “legally” part because if they actually said it outloud people might start to question how a law that makes it illegal to possess/carry a gun affects a person that has decided to commit a crime like murder.

There are a number of posts about how they fight the battle in the chambers of state and in the courts, but there is another attack vector, that of making it too expensive to own or commerce in arms.

Consider the case of Kyle Rittenhouse. Kyle did nothing illegal. The firearm he was carrying was legally purchased. He was legally carrying it. He was in the place he was legally. He did nothing illegal.

Then a mentally deranged criminal started to chase him. He ran and when he could run no more he fired killing that criminal. He started to render aid when the mob started after him. He ran again.

When the mob had chased him down they attacked him. They tried to kill him with a club (long board) and when he responded with a shot they started to back off but one did not and attacked him again. He fired and killed that attacker, also a convicted criminal. A fourth man started to attack him but stopped. Kyle did not fire. That fourth man then did attack and Kyle fired again, destroying that man’s arm.

All of this was caught on multiple different cameras.

Kyle is still being punished for this. First he was prosecuted criminally. He spent time in jail and had to raise huge amounts of money for his defense. When he was found innocent of all charges he was set free. At that point the civil cases started and they are ongoing as of November 2022. It is unlikely that he will be free of these attacks via lawfare for many many more years to come.

The process is the punishment.

People entered the capitol building on Jan 6th, 2021. Those people are suffering from lawfare. Some have been held in jail for so long that they are pleading guilty just to have a chance of getting their lives back.

Prior to the PLCAA the gun grabbers where getting laws passed as fast as they could to make it as difficult as possible to legally purchase or carry a firearm. They were not satisfied. Even with all of their infringements people were still buying guns.

The answer they came up with was to remove firearm stores and manufacturers from the civilian market. The method they choose was to haunt the grieving like ghouls from a horror film. The parents grieving because their gangbanger son had been shot robbing the local store were prayed upon by these ghouls.

The ghouls showed up and whispered sweet nothings into the ears of the grieving. “Your son was executed.” “Your son never had a chance.” “He shouldn’t have shot your son, he should have called the cops and waited.” “If he hadn’t of had a gun your son would still be alive.” “He is responsible for the cold blooded murder of your son.” “Not only him, but the guy that sold him the gun.” “The guy that sold him the gun got it from manufacturer who has lots of money.”

In just a few days the parents or loved ones go from grieving the loss with anger and revenge in their hearts to having a target for all that hurt and anger. Not only the man that shot their son, but the entire chain that lead to that instant.

And the ghouls did this time and time again. These cases would be filed and the defendant would need to hire a lawyer to represent them. Even if it is a cheap lawyer it is going to cost in excess of $10k to go to court. And in cases like this, where the plaintiffs are well funded, that will skyrocket.

Just listen to the adds selling “CCW insurance.” $100K before you see the courtroom and upwards of a million after.

This was driving small businesses out selling firearms. The gun grabbers with their ghouls were succeeding.

That is until the people reached out to their representatives and pushed for the PLCAA. With the PLCAA the cost of being sued because somebody else did something wrong fell greatly. To the point where it was almost possible to write a short note to the court yourself saying “PLCAA” and having the case dismissed.

The gun grabbers have hated the PLCAA since the day it was signed and they have been looking for away around it.

After Sandy Hook the ghouls showed up and pretty soon the lawsuits were filed against all the regular targets.

And they got tossed out under the PLCAA.

The ghouls went back to the well and regrouped. They decided to go after Bushmaster. Bushmaster had been sold to Remington so this was seen as very deep pockets.

The gravamen of the plaintiffs’ complaint was that the defendants negligently entrusted to civilian consumers an assault rifle that is suitable for use only by military and law enforcement personnel and violated the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.) through the sale or wrongful marketing of the rifle. The plaintiffs’ first theory
of liability was that the rifle is a military grade weapon that is grossly ill-suited for legitimate civilian purposes such as self-defense or recreation, that the rifle and other similar semiautomatic weapons have become the weapon of choice for mass shootings and, therefore, that the risks associated with selling the rifle to the civilian market far outweigh any potential benefits, that the defendants continued to sell the rifle despite their knowledge of these facts, and that it therefore was negligent and an unfair trade practice under CUTPA for the defendants to sell the weapon, knowing that it eventually would be purchased by a civilian customer who might share it with other civilian users.

The plaintiffs’ second theory of liability was that the defendants marketed the rifle, through advertising and product catalogs, in an unethical, oppressive, immoral, and unscrupulous manner by extolling the militaristic and assaultive qualities of the rifle and reinforcing the image of the rifle as a combat weapon that is intended to be used for the purposes of waging war and killing human beings. The plaintiffs alleged that the defendants advertised this rifle differently from how they would promote and sell rifles intended for legal civilian purposes such as hunting and recreation. In connection with this second theory of liability, the plaintiffs also alleged that the defendants’ marketing of the rifle to civilians for offensive assault missions was a substantial factor in causing the decedents’ injuries in that L’s attack, had it occurred at all, would have been less lethal if L had not been encouraged by the defendants’ marketing campaign to select the rifle in question as his weapon of choice.

Bushmaster moved to have the case dismissed via the PLCAA. The lower court agreed. The appeals court agreed. Then the Connecticut supreme court got involved.

For the reasons set forth in this opinion, we agree with the defendants that most of the plaintiffs’ claims
and legal theories are precluded by established Connecticut law and/or PLCAA. For example, we expressly reject the plaintiffs’ theory that, merely by selling semi-automatic rifles—which were legal at the time1—to the civilian population, the defendants became responsible for any crimes committed with those weapons.

So the court says that Bushmaster can’t be sued for selling the weapon as that was protected under the PLCAA. Unfortunately they go on:

The plaintiffs have offered one narrow legal theory, however, that is recognized under established Connecticut law. Specifically, they allege that the defendants knowingly marketed, advertised, and promoted the XM15-E2S for civilians to use to carry out offensive, military style combat missions against their perceived enemies. Such use of the XM15-E2S, or any weapon for that matter, would be illegal, and Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior. Following a scrupulous review of the text and legislative history of PLCAA, we also conclude that Congress has not clearly manifested an intent to extinguish the traditional authority of our legislature and our courts to protect the people of Connecticut from the pernicious practices alleged in the present case. The regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise of the states’ police powers. Accordingly, on the basis of that limited theory, we conclude that the plaintiffs have pleaded allegations sufficient to survive a motion to strike and are entitled to have the opportunity to prove their wrongful marketing allegations. We affirm the trial court’s judgment insofar as that court struck the plaintiffs’ claims predicated on all other legal theories.

In other words, what Bushmaster did was perfectly legal, but they can be sued for the deaths because they advertised incorrectly.

DONNA L. SOTO, ADMINISTRATRIX (ESTATE OF VICTORIA L. SOTO), ET AL. v. BUSHMASTER FIREARMS INTERNATIONAL, LLC, ET AL.

This was appealed to the Supreme Court but certiorari was denied.

Remington Arms Co. v. Soto

At this point Remington was bankrupt and out of business. They were selling of the different parts of the company to pay creditors. When all that was left there was only a legal shell which was still being sued. The only people at risk at this point where the insurance carriers. They were on the hook for a great deal of money if they lost in court and they were on the hook for a great deal of money if they continued the fight.

If they would have continued the fight the case would have been heard by the lower court in CT. Nobody knows how they would have ruled. Regardless of that ruling it would have been appealed at the state level back to the CT supreme court. At that point it is likely that the parties would have again appealed to the US Supreme Court which may or may not have granted certiorari.

While many have decried the insurance companies settling out of court we really can’t fault them. They are not part of gun culture in the least. They are money people and they see everything in terms of money.

We should be faulting the CT Supreme court. If you read the 148 pages of the opinion you will find that not all of the Judges agreed. That it sounds an awful lot like a group of people attempting to get the results they wanted rather than what was legally required.

At this point we see another Lawfare case going on. Down in Uvalde. The plaintiffs have a long list of defendants. All of the police officers are going to duck out of the final case because they have no duty to protect. If any of the officials of the school district or city are found guilty the taxpayers will pay the bill. When everything is said in done, it is likely that this case will end up only against the gun manufacturer and retailer.

The question will become, will the state courts of Texas all apply the PLCAA correctly and how much will it cost to have that happen.

Preemption is another battle heading our way. The gun rights infringers posit this as “local control” or “local government.” They talk about all the other things that conservatives want done at a local level so why not “gun safety” laws?

It is another method of lawfare. It is another method of making it difficult for people to carry for fear of accidentally stepping over an invisible line.

As an example, the state of Massachusetts as a requirement for an FOID. You need a FOID or CTL in order to possess a firearm or ammunition in the state. There are no exceptions for “just visiting.”

A few years ago a student had a fit when he saw a civil war musket ball on his teachers desk. He was arrested for having “ammunition component”. This went to trial and the judge found that the professor had indeed broken the law and that having “ammunition component(s)” was the same as having ammunition which is the same as having an firearm.

Jail time.

Say you were visiting a friend in VT and went shooting. You had a blast and went through a few hundred rounds. You say thank you to your friend for letting you shoot their guns and their ammunition and home to PA.

During your trip through Massachusetts you get pulled over for speeding. During the interaction the cop sees a shell casing that has fallen out of your jacket. It got caught there when you were shooting. He asks you what it is and you explain and he arrests you.

All because you traveled over an invisible line into a place with different laws.

Many states have a preemption statute in regards to firearms. These preemption statutes say that a local government can not make laws regarding firearms. Some just say laws that are at odds with state laws.

Not all states.

This leads to the case where laws can change not only as you travel from state to state, but could change as you travel within a state at county, city or town lines. A Democrat in Tennessee just introduced a bill which would require you to have a carry permit if the area you are in is a metropolitan area with a population over 500,000 OR a county with a population over 900,000.

SB0010 An Act to amend Tennessee Code Annotated, Title 39, Chapter 17, Part 13, relative to firearms.

The standard infringers want to remove preemption for the state statutes. If they can do this it means that any rinky-dink village, town, or city can pass a “regulation” that makes some it more difficult to carry or own a firearm.

Now most of these would be struck down in court. Unfortunately each and every one of them would have to be individually challenged in court. And as soon as one was knocked down another would be put in its place.

As long as our representatives are able to pass laws that are unconstitutional without consequences they will continue to do so. And “voting them out” isn’t enough. Do you think that Nancy or Burnie really care if they get reelected? They have made millions as representatives living on salaries that should not have created that much wealth.

Just as a side note, I’ve had the privilege of working with a number of SES people in the government. They get paid $135k-$204k. A US Senator or Representative gets paid $174,000 per year. The ones that I worked with were rather high up in the SES pay scale. None of them were millionaires.

AOC managed to go from a poor broke bartender to a millionaire in just over two years on $174,000/year living in DC buying at least one very expensive car and maintaining a residence in her home district.

If you hear people talking about preemption, know that it is good when it comes to gun laws.

Depression is a horrible thing. Large or small it harms. In 22 years ago I lost my mentor, my safety net, my mentor.

He was coming home after having pizza with a friend of ours. This was unusual because the friend had not wanted to go to the regular restaurant. He was driving home on the interstate in a light rain. About a half mile from his exit he came up over the crest of a hill at around 65-70MPH.

In his lane was a stopped car. He swerved into the lane and missed the stopped car but spun out ending up pointing south in the north bound lanes. An Este semi-trailer also doing around 65-70 MPH slammed into his car.

My friend was killed. According to the autopsy it was “instant.”

A car with a doctor pulled over and people rushed to give first aid as there were some four or five vehicles involved. The doctor that was the passenger got out and attended to the living.

In the post accident report it was found that only one person had any alcohol in their bloodstream and at way below legal limits. The doctor who wasn’t driving. He had had a glass of wine with dinner. He had his wife drive because of that glass of wine and the fact that he had had a very long day.

My world ended the next morning when I got an email from my mentor’s father stating that his brother had died the night before. I didn’t think his father had a brother so called to find out. Turns out that his sister had used their fathers email account to send out the message to the mailing list.

I was the person to tell all his friends that it wasn’t his uncle that had died, it was him.

It hurts even now.

For the next 3 or 4 years I lived in depression. I rode my bike on a 100 mile one way commute three times per week. On the way home, alone in my helmet I would look at every overpass and say “Just aim right there and it will all be over. It will be painless.” And each time for dozens of overpasses I would say “not tonight”.

I don’t remember if I was on any medication for depression at that time but if I was, it didn’t seem to help. My depression stayed with me but my will to live exceeded any drive to suicide when my wife-to-be became pregnant. It was something to live for.

But depression remains. It has cost me clients. There is this place where I knew what had to be done but there was always something else I wanted to do. It was hard to talk to people because I knew I was disappointing them.

Earlier this year I decided that yes, I was actually clinically depressed and got help. A little blue pill. Not that one you dirty minded folks. I did not want to do it for fear they would “red flag” me. They didn’t.

It took about two months before I started functioning on a more normal basis.

Suicide is no longer something that is just a step away. It isn’t a consideration.

One of the things I remember is reading how Bob Owens had driven to the end of his street and used his firearm to kill himself. As a voice in the 2A community it hit hard. I vowed that I would never disgrace the 2A with a firearm. It helped.

So I give you this song. It is from the movie and is longer than the version on the TV show.

Suicide is NOT painless. It hurts. It hurts you and it hurts those around you. There are people there to help. Don’t be afraid to reach out if you are hurting. There are people that care for you, even if you can’t see or feel them.

If you or someone you know may be struggling with suicidal thoughts, you can call the U.S. National Suicide Prevention Lifeline at 800-273-TALK (8255) any time day or night, or chat online. Crisis Text Line also provides free, 24/7, confidential support via text message to people in crisis when they dial 741741.

It is important to understand how the courts are structured in the US to understand when and where cases are filed.

There are the state courts along with a bunch of administrative courts, such as bankruptcy court, tax court, and EPA court. The administrative courts are some of the worse because the entire court is paid for by the agency that they are judging for. Just how often do you hear that an IRS hired, paid and compensated judge rules against the IRS?

The state courts lead upwards to the state supreme court. In some situations cases can be moved from the state court system to the federal court system for appeals.

Court cases are expensive. Even if your lawyers work for you it is expensive and most lawyers that do second amendment work are very expensive. Think $1000/hour upwards.

The different organizations need to be selective in how they spend their money. Given that the states have unlimited funds to fight a case it doesn’t cost them anything extra to delay and to have another hearing or require another filing or to have the case go to a different court.

Part of the reason that nobody showed up for the Miller case was that the original lawyers were no longer being paid. Miller, the defendant, had won on appeal and been set free. Nobody expected the government to appeal to the Supreme court. By the time that the case was appealed, the original lawyers were no longer interested and Miller was missing. Many presumed he was dead.

Cases get heard by the Supreme court if they are “important” or if there are multiple differing rulings from the different circuit courts. Thus, if the fifth circuit court hears a Texas case and decides that a restraining order or court order making you a prohibited person is unconstitutional and the ninth circuit court hears a California case and decides that the same law is constitutional then that conflict makes it more likely that the Supreme Court will accept the case.

This goes back to the American system of “Common Law”. Laws are applied in common across all jurisdictions and all people. If something is unconstitutional in Texas it should also be unconstitutional in California as well. Since the circuit courts are considered equal, when there is conflicting opinions at the circuit court level the Supreme Court needs to step in to clarify.

So we can take a look at the cases that are of interest to us right now.

Nothing is happening right now in the first circuit court area. ME and NH are pro-gun, MA, RI and CT are anti-gun. It is a 50/50 guess which way the first circuit will go but I’d bet on following Heller, McDonald, and Bruen.

In the second circuit court we have the New York CCIA. This is getting lots of attention and at the district level the state is losing. There are two cases moving forward. One being heard by judge Suddaby and the other by judge Sentra, JR. The second circuit court is as anti-gun as it gets. I fully expect them to rule that the CCI is constitutional on appeal.

In the third circuit court we have lawsuits coming out of NJ. The third is a little more pro-gun than the second but not by much. We’ve not heard decisions out of the district courts yet so we don’t know how the states will react and how the circuit court will respond.

In the forth circuit court we have a lawsuit against the MD AWB and standard magazine capacity bans. The forth is more pro-gun with WV, VA, NC, SC being pro-gun and only MD being anti-gun.

I don’t know of anything happening in the DC circuit court, at this time.

The fifth circuit court is hearing an appeal from the State of Texas defending an anti-gun law. The fifth is likely to side with the district court and rule against Texas. There have been a couple of articles saying that it is likely Texas appealed in order to lose at the circuit court level.

In the sixth circuit court there are some lawsuits coming out of MI.

I don’t know of anything coming in the seventh, eighth, tenth, or eleventh circuit court.

Which leaves that ninth circus court.

The ninth circuit court is famous for having the most decisions overturned by the Supreme court. They get it wrong 80% of the time when a case gets to the Supreme Court. Only the sixth circuit has a higher overturn rate at 82%. The ninth circuit court is also the largest court. It has 16 Democratic appointed and 13 Republican appointed with one pending.

The ninth circuit court had multiple cases remanded to them after the Bruen decision. Instead of just doing the right thing they remanded those cases back down to the district level where they are being heard.

While OR horrible measure 114 is highly likely to be found unconstitutional at the Supreme court level, it is likely to win at the district and circuit level. Since there are already multiple cases in the ninth circuit court it is not a good case for the national organizations to take up.

In addition, the district court hearing the California cases is very much an originalist. He wrote his last decision before Bruen and in it quoted Heller. That opinion was nearly as good as Thomas’.

There is more happening behind the scenes, I’m sure. But for now we have more than a few cases being tracked and mostly wins for us.

From Pistoleer B.Zh comes the following.

Oral arguments are scheduled for Measure 114 injunction suit Dec 2. in good health from behind enemy lines:

11.25.2022

Things are moving quickly in our suit to put Mz 114 on ice.

While there is a long battle ahead of us, the first job is to get an injunction to prevent it from going into effect while we demonstrate that it is clearly unconstitutional.

Though we had expected others, including large national gun rights groups and representatives of the firearms industry, to take legal action, as of today none, to our knowledge, have.

That makes our case even more critical.

Yesterday, Thanksgiving Day, the Federal Court took the unusual step of acting on a Federal holiday and scheduling oral arguments for Dec 2nd.

While this greatly reduces the time our legal team has for preparation, we are hoping it means the court has recognized the need to act quickly. But only time will tell.

OFF wants to assure you that we recognize the gravity of this case. Not only are the livelihoods of thousands at risk, for too many to count, their very lives could be at risk.

The promoters of this measure were more than happy to crush small businesses across the state and send a message to the most vulnerable Oregonians that their safety and privacy are meaningless. They have callously placed security guards and off duty police at risk of being seriously outgunned by criminals.

They continue to lie about the measure and its impacts.

And people who should know better keep giving out ridiculous advice to gun owners who face jail time for simply being in possession of constitutionally protected magazines they have owned for decades.

“To prove a gun owner had possession of higher-capacity magazines prior to Measure 114 going into effect , the owner could take a photo with a timestamp of the magazines, state police Capt. Stephanie Bigman suggested”

This clearly preposterous suggestion will only serve to mislead and endanger people.

Obviously, magazines cannot be identified in a photograph since they all look exactly the same. And it’s laughable to think a court is going to accept a “time stamped” digital photo when, as you can see, they can be so easily altered.

Once again, we want to thank everyone who has been contributing to this fight. The opening salvo comes on Dec 2nd. But no matter how the court rules, this is just the beginning, and your continued support is critical.

Please share this link with your friends and family as we are going to need all the help we can get.

https://oregonfirearms.ejoinme.org/MyPages/DonationPage/tabid/70447/Default.aspx
Thank you. We will not back down.

You can view this email in a browser here:
https://www.oregonfirearms.org/court-date-set

It is unclear if it should be the fight for the Second or if it is the fight against the second. Regardless it is best to know your enemy.

In the best of worlds, what would happen when a new law was being proposed is that the lawmakers would look at the constitution and say “This isn’t constitutional.” and it would die. It doesn’t happen that way. The number of letters I’ve gotten from my Senators and representatives saying “I support the Second and this bill will not infringe on the rights of gun owners.”

The battle is waged between those that know what is happening with the troops of the ignorant sounding off.

“It is my right to possess and carry arms!” is the battle cry but regardless of how true that statement is, the Evil and their minions can’t accept that simple statement.

The attack on the Second falls into different vectors but they are always the same.

1. The Second Amendment doesn’t apply to you.
2. The Second Amendment doesn’t apply to that.
3. The Second Amendment doesn’t apply there.
4. The Second Amendment is wrong for today so it doesn’t apply to ____.
5. The Second Amendment is not unlimited and must be balanced against societies needs as expressed by the government.

Argument 1 is based on the word “Militia” within the Second. The infringers, correctly, point out that until Heller the Supreme court had never ruled that the Second was an individual right. This is because until the infringers started to claim it was a collective right there was no need for a Supreme Court ruling.

The reason it took so long to be heard by the Court is because nobody had standing for the longest time and if they did have standing the State was often willing to take a loss rather than let a case get to the Supreme Court.

Heller eviscerated the “Collective” right argument. They went through each and every part of the Second and defined and explained what each part meant.

The second applies to YOU. That’s the end of it.

You can see that in the way that the legal landscape changed after Heller.

Argument 2 is that some arm or part of an arm isn’t covered by the Second. Since there were no center fire cartridges in 1791 then the Second doesn’t apply to center fire pistols and rifles. It only applies to muskets. The argument is so ridiculous as to be barely worth noting. Except it is repeated over and over again.

The Supreme court addressed this in Heller by explicitly stating that it does apply to all arms. Not just arms as they existed in 1791.

Argument 3 was already in effect in 2008 but it became the goto argument for the time being. It being that since Heller identified a purpose of the Second, defense of self within the home, that that was the only place were you could exercise your Second Amendment rights.

This was slapped down with McDonald which stated that the right to bear arms extended outside of the home. This turned every state that was “No Issue” into a “May Issue” state. Of course some states, like Hawaii, just never issued any.

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This is where things stood after the Heller and McDonald opinions. The states that were reasonable were reasonable. Many states moving from “Shall Issue” to “Constitutional Carry.” Unfortunately the infringing states responded to “May Issue” requirements by making it so difficult to get permission from the government to carry that it was impossible for the average person to get a CCW.

In 2018 New York State Rifle & PIstol Association Inc filed suit against the City of New York. The suit alleged that NYC’s “rule” (go to jail if you violate said rule) that you could not transport your firearm out of the city was unconstitutional. The city and state argued that it was only a small infringement because you could have firearms stored outside of the city that you could transport to outside ranges and competitions. It was only your city firearm that couldn’t leave the city.

In arguments the city claimed that this rule kept the people safe and had to be kept and that the court needed to balance the minor infringement v. the greater good of society. The city won this argument in front of the second circuit court. The rule could stand.

The plaintiffs appealed to the Supreme court. The city and state argued that the Court should not hear the case and that it was a well balanced rule that didn’t really intruded on the core of the Second Amendment.

The Supreme Court granted certiorari. New York City leaped into action and the police department changed the rule. The city then argued the case was moot. This didn’t seem to hold much sway with the court so the state of New York passed a law making the repeal of the “rule” law. The city and state then argued the case was moot and the court agreed.

April 27, 2020

Held: Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule on transporting firearms is moot, and any claim for damages with respect to that rule may be addressed in the first instance by the court of appeals and the district court on remand.

This left us where we have been for the last 10 years before Bruen

The infringers during this time turned to argument 5 in court and arguments 4 and 5 in public.

Argument 4 can be truly argued in good faith and it is the only path forward for the infringers. This argument leads to a proposal of an amendment to the constitution to change the second amendment. Either to repeal it or to replace it. The problem with this is that the second amendment does not grant us the right to keep and bear arms.

The Second Amendment acknowledges that the right to keep and bear arms pre-exists and denies the government the ability to infringe on that right.

While the infringers get most of the air time in expressing their opinions regarding the horrors of guns, the fact of the matter is that it would be very difficult to get enough states to vote for an amendment to repeal or modify the second amendment. This is not currently a concern but it is something we need to keep our eye on.

Part of this argument is that a person shooting in self-defense is acting as judge, jury and executioner. I.e. the woman that shoots the man raping her should have instead held him for the cops and then gone to court to argue that he did indeed rape her.

As stupid as that might sound to you it is an argument they make.

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This takes us to “means-end” balancing. Because the Heller opinion said that some restrictions could be left in place as long as they were within the text, history and tradition of the Second Amendment at the time of ratification the infringers leaped on the concept of “means-end”.

“Means-end” is simply the government (the courts are a part of the government) deciding how much of your rights they will stomp on. Be it a law forcing an artist to create art on demand for any person to a law requiring you to give up your papers on demand, all such mean-ends are allowing the government to violate your rights.

It was and is especially egregious in terms of the second amendment. The government could make a claim that a law would make society better or safer or would make children safer. This allowed the government to create the law in the first place. It passed means-ends in the chambers and at the President’s or Governors office.

When it was challenged the court would decide if the law did infringe on your rights. Or they would just stipulate that a law infringed. They would then decide how much it infringed which would allow them to pick the level of balancing that would be performed.

In other words, the scale was never fair. In every case the court would decide just how much to add in favor of the government before they started analysis. Once the decision was made as to how hard they would be pressing down on the scales of justice with their thumb, the court would then hear the claim of the government.

Since all gun control laws are of a predictive nature there have never been in real facts to back up the government claims. “A large capacity magazine ban will save lives!” Why will it? What proof do you have? Has it ever been proven that it works.

“Well it would have been worse if they had access to large capacity magazines so of course it worked.”

“It would have been worse if…” is a non-argument that is used constantly. We don’t know what would have happened if… When we suggest that the Uvaldi shooting might have been stopped sooner if the teachers had access to firearms we are told that there is no proof of that. At the same time they tell us it would have been so much worse if the teachers had shot back.

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Which takes us to the post Bruen situation. At this time the infringers are throwing everything at the wall in a effort to see what sticks.

They are trying the “sensitive locations” with the idea of making the ability to carry without violating a restricted location so difficult that you decide not to carry.

They are trying the “good moral character” gambit. It isn’t that you have to have a good reason to carry, you have to be a good person. In many “May Issue” states being arrested invalidates your right to bear a firearm. It doesn’t matter if you were convicted. It doesn’t matter if the case was dropped. It is just the act of being accused and arrested that will keep you from getting a permit.

It is federal law that a person that gets an ex-parte restraining order placed on you has in fact made you a prohibited person.

They are attempting to find laws in the late 1800s, post civil war, and early 1900s to justify their current infringements.

There are a couple of court cases where the courts have ruled that the government banning something and then claiming that the banned item is “uncommon” in order to justify keeping the ban is not an acceptable argument. This is one of the arguments made post Heller

They are also using the argument that restricting some firearms doesn’t infringe or that placing limits on how fast or easy it is to get a firearm isn’t infringing.

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While all of this is happening in the courts, the media is pushing a narrative that the Supreme court got it wrong. In Heller they got it wrong because Militia!!! In McDonald they got it wrong because states should be able to protect the children. In Bruen the court got it wrong because means-end is the correct way to judge rights.

There are dozens of articles out there claiming that late 1800s through early 1900s should be considered as part of the history and tradition of gun control laws, even though Heller said otherwise. 1791 defines the history and tradition, 1868 can be used to confirm that history and tradition but NOT to contradict it.

In addition there is the never ending drum beat of “The Supreme Court is illegitimate!” The argument being that because the court is now 6-3 originalist vs leftist that it no longer represents the people. As compared to when it was 7-2 leftist vs originalist when every decision was final forever and ever and there was no legitimate reason to complain.

The last argument that keeps popping up is that gun owners should be required to get training before being allowed to own guns.

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The Washington Post argues that gun training should be required.  For some reason the believe that knowing the best way to store black powder, gun powder, and matches is relevant to owning firearms.

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The New Republic thinks that the Supreme Courts Bruen decision is just to hard for judges to follow and besides, look at these horrible decisions federal judges have been making where they didn’t use “means-end”

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And because Justice Thomas refuses to keep his wife under control and not to recuse himself the court has serious ethics issues.  And Amy Coney Barrett is hearing cases regarding religion…

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The Nation feels that it was conservatives that leaked the Dobbs decision because somebody said a conservative told them what the court would hold in regards to a different abortion case years ago.

The Evil that exists will attack anything and everything that stands in their way.