B.L.U.F.
Why do the states want a more “Nuanced Approach” and what does that actually mean?
(1400 words)

This is what the state is looking for, a more nuanced approach. This is because there are two different sets of rules that must be followed, depending on “nuanced” or not.

Starting with Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.[xCite item=”75DAVPP7″ p=2132 pos=1] we start to see the state’s problem. The meaning of the Second Amendment is fixed according to those that ratified it. That means it is fixed as to its meaning in 1791.

The meaning of the 14th Amendment was fixed when it was ratified. Unless the people of 1868 thought that the ratification of the 14th included a reinterpretation of the 2nd, which cannot be proved, the meaning of the Second Amendment is fixed at 1791.

The state always starts with implicating unprecedented societal concerns or dramatic technological changes [xCite item=”75DAVPP7″ p=2132 pos=2]. This shifts the burden to the plaintiffs (good guys) to argue against the state’s claim. The state claims that “mass murders” are an unprecedented societal concern, except that mass murders have been happening for eons.
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(625 words)
This is another case where the state wants 18, 19, and 20-year-olds to be excluded from The People for Second Amendment purposes, while still treating them as full on adults for other government needs.

I’m not digging through this one, these two paragraphs give us the gist of the appeal.

First, the Appellees (good guys) don’t need to submit any expert reports regarding history and tradition. That is the state’s burden. Nor do they have to “prove” that 18-20 year-olds do or do not “comprise the most dangerous and homicidal age group”.

If they were going to look at who comprises the most dangerous and homicidal groups, you would be hard-pressed not to focus on “the 6% or so that commit more than 50% of all violent crime. Of course, that would be “racist!”

This means that Professor Donahue’s expert opinion as expressed in his report is meaningless. Means-end analysis is not allowed. see [xCite item=”LPGQXCDT” pos=2 pos=2] and [xCite item=”75DAVPP7″ pos=3].

This means that the state rests their entire argument on the report by Saul Cornell, Ph.D.

It is important to note that Saul is not a lawyer. Why is this significant? Because they are not arguing about facts, they are arguing about the law. If they are arguing about the law and what it means, then you must be admitted as an attorney.

When a normal person writes a brief and submits it as an amicus curiae, they do it through counsel. The state didn’t do that. Instead, they brought this guy in as an “expert”.

I can’t locate his declaration, the appendix they reference is not in ECF and I can’t find it in the original case.

On the other hand, I spent a few painful hours, about 10 minutes in total, reading and listening to him.

He is well-spoken, the same way Marx’s writings are to the ignorant.

Regardless, his opinion is not an acceptable supporting argument. The state wants this to become a battle of experts. They bring in their experts to say “guns have always been regulated like X” and we bring in our experts that say “no.” but then have to argue against their expert’s opinion.

At the end of an experts battle, the judge picks one set of experts and says, “you win”.

The actual task of evaluating the law is the judge’s duty. That is literally his job. You will find that most judges are perfectly capable of doing it correctly, when it is not a hot topic.

Conclusion

Another case on its way to the appellate court. They are in the process of setting the date for oral arguments.
[xCiteBib]

(Don’t you hate it when you forget how many days a month has? I do. I accidentally scheduled this for tomorrow)
This has come across my music feed numerous times. By the time Tuesday rolls around, I’ve forgotten what it was I planned to share with you.

I remembered enough to go find it.

(550 words)
As predicted, the opinion of Judge Benitez was appealed to the Ninth Circuit court. There it went before a three judge administrative panel, just like Duncan v. Bonta should have.

Two members of the panel decided to grant the stay pending appeal as an administrative stay. The third judge, Circuit Judge Callahan, did not want to issue the stay pending appeal.

The good news out of this is that the administrative panel has scheduled this for a hearing in December 2023. They have already told all the parties that there will be no extensions of time approved. Briefs are due from the state on November 9th, answering brief on November 22nd, final response brief on November 29th.

For an appellate court, this is freaking fast.

Circuit Judge Callahan dissented in part:

The short of this is that this panel kicked responsibility down the road. They dumped the reasoning on the en banc panel, which said that the state would win on the merits because many district courts agreed with the state’s position.

The state, in Duncan v. Bonta claims that The People being able to purchase and possess semi-automatic firearms the state deems “scary” will cause the state irreparable injury. That’s not how this is supposed to work.

Regardless, if this panel hears the case on the merits, we should have an opinion in early 2024. At which time the state will appeal for an en banc panel. If the plaintiffs (good guys) lose, they should appeal directly to the Supreme Court.

Final resolution of Duncan and Miller is likely 9 to 12 months out.

B.L.U.F.
A long look at what the state is arguing. It has become repetitive. We continue to examine each filing made by the state, looking for some new argument.

The best I’ve found is “oh, look at what all the district courts in infringing states have said!”
(3000 words)

Four-hundred ninety-four days ago, the Supreme Court slapped down the infringing states, “may issue” game. The Supreme Court emphasized that the two-step shuffle of means-end was not acceptable. They commanded that the inferior courts use text, history, and tradition when analyzing a Second Amendment Challenge.

The Bruen opinion calls into question every gun-control infringement in the country. The states, not happy with being forced to issue CCWs, responded with Bruen Tantrum Bills. These bills were intended as direct challenges to the Supreme Court.

Since then, there have been hundreds of Second Amendment challenges filed. Both as civil suits and as criminal defenses.

The State’s Starting Point

The states start by looking at the Heller, McDonald, and Bruen opinions. They are looking for any openings to support their infringements.

Their go-to citations are:

• The Second Amendment is not a straight-jacket
• We are aware of no dispute over longstanding regulations
• We presume that laws regulating NFA items are constitutional

Since the Supreme court did not explicitly say that there are no constitutional regulations on firearms, that means there must be constitutional limits. It is the task of the state to find those constitutional regulations.

The Plain Text

In Heller the court spent many pages defining exactly what each word and phrase in the Second Amendment meant. Every. Single. Word.
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B.L.U.F.
Multiple states filed an Amicus Brief in the magazine ban out of the District of Columbia. They use the same old arguments. There are a few interesting bits of lawyering, things to pay attention too. All of this is designed to shave the corners of a square peg to get it to fit through the round hole authorized by Heller and upheld by Bruen.
(2350 words)

It gets tiring reading the same tired arguments from people that will not admit that what they want and what is Constitutional are two completely unique things.

Every one of these infringing bastards starts with some version of: The Supreme Court said that some infringements are allowed, this infringement is one of them. I’m just surprised that they haven’t mentioned straightjackets in the first paragraph.

Part of the problem is that the Supreme Court has said that reasonable firearms regulations” can exist within the protections of the Second Amendment.

the States have adopted a variety of restrictions on weapons and accessories that are not in common use for self-defense.[xCite item=”FX9CYAFT” pos=0] What is this “reasonable firearms regulation”? A complete ban on magazines holding more than ten rounds.

As has been pointed out by multiple sources, the fact that the states can’t decide what the round limit should be, indicates it is arbitrary.

the District’s LCM provision preserves the right of law-abiding, responsible citizens to use firearms for self-defense.[xCite item=”FX9CYAFT” pos=1] The interesting part of this is that they cite to Heller II. The state claims that parts of Heller II were abrogated by Bruen.

This, of course, means that they get to keep whatever they want.
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We’ve had another case make it through oral arguments at the appellate court level.

An interesting extra happened over in the Third Circuit Court, they immediately requested that the parties order a transcript of the oral arguments. I think this is so that there is a full and complete record when this is appealed to the en banc panel or the Supreme Court.

We’ve had the mass shooting, right on schedule. This time they avoided the gun free zones.

We’ve got terrorists terrorizing Jews throughout the country.

Keep your head on a swivel, your rifle by your side, and spare mags handy.

(I took Hagar to do a presentation yesterday, my on body mag count went from one or two, depending, to four mags. I need to start looking for a .45 ACP Carbine for a truck gun.)

(750 words)
They held oral arguments in this case today. It was before a three judge panel. I listened to about 1.5 hours of nearly three hours of arguments.

The state went first, they made some interesting arguments. I need to pay careful attention to the actual arguments because they sounded better than anything I’ve read, so far.

The judges were asking good questions of the state. It wasn’t a case of “tell us what we should rule” but they pushed for real answers to real questions.

One series of questions I remember is the Judges asking, “with this law in place, where can people legally care their firearms?”

The state made an argument that it was ok to ban carry in bars because there will be more people carrying guns and more guns means more accidents. When the judges pushed back regarding the history of banning carry in bars, the state explained that it used to be ok because people use to open carry in bars. If somebody was open carrying and drank too much, the laws disarming people who were drunk could be used.

Since open carry is banned, people can’t tell who is armed and drunk, so nobody can carry now.

As I said, the state lawyer did a good job of lawyering.

The lawyer representing law enforcement, not so much.

He didn’t seem as prepared. He started his arguments around Winter factors. The judges seemed to take pity on him, “Ignore the preliminary injunction, we want to talk about the merits”.

It only took three tries to get him on the right track.

When they got done with the line of questioning on the merits, they dismissed him. He took that as an opportunity to go back to his points.

Somebody must have signalled him because he then said, “oh, my time is up?” The judges politely said “yes” and he left.

I would feel sorry for him if he wasn’t an infringing enemy of The People.

When Rahimi was granted certiorari, I thought about writing my own brief. I didn’t I do not believe I am ready for such a big lift. On the other hand, I read some briefs where I am sure I could have done a better job.

Over in the Seventh Circuit Court of Appeals, they are considering Burnett v. Raoul. The reason I mention this is that one of the big hitters has stepped up to the plate. C.D. “Chuck” Michel is now one of the lawyers representing the plaintiffs (good guys).

When you read his firm’s filings, you learn how it is supposed to be done.

This lawyer for law enforcement that presented today wouldn’t qualify as an intern at Michel & Associates, P.C.

I don’t remember much about the plaintiff’s lawyer’s presentation. My lady was demanding my attention.

Conclusion

We now have cases that are fully briefed in the Second, Third, Fourth, and Seventh Circuit Courts. The first was heard by the Fourth, right after the case was GVRed by the Supreme Court. They will continue to sit on the case until one of their sister infringing courts gives them a ruling they can build on.

The next case was heard by the Second. The Second has the lowest average time from argument to opinion of the circuits. They have been sitting on the case for an extended period of time. I expect them to wait as long as possible.

The Seventh heard their cases, and that three judge panel is so anti-gun and anti gun-rights that I don’t expect an opinion out of them until the Supreme Court pries it out of their greedy hands.

The Ninth has some cases before it. Oral arguments have not been heard. The same with the Eleventh Circuit Court.

This takes us to the Fourth Circuit and today’s oral arguments. I actually believe that this court will issue their opinion before any of the other circuits. It just felt that way when I was listening to their questions.

Listening to Judges and Justices ask questions and attempting to figure out anything is called “reading the tea leaves”. Make sure you don’t say anything solid because reading the tea leaves seldom goes as expected.

Finally, there have been several positive cases out of the Fifth Circuit Court of Appeals. I don’t consider these cases as being useful in striking down bad state laws. There have been no Bruen tantrum response challenges in the Fifth because those states didn’t throw tantrums when the Supreme Court spanked them.

There are a couple of cases that are moving towards the Supreme Court or that are already at the Supreme Court from the Circuit Courts that have not gone rogue. These will go a long way to gutting some of the more egregious parts of federal gun-right infringements, but are unlikely to do anything about gun and magazine bans, nor of sensitive place restrictions.

B.L.U.F.
This is a challenge to California’s weapons ban. Judge Benitez used Heller, following the instructions of Bruen, and decided the case for the plaintiffs (good guys).

An analysis of the state’s request for an emergency stay pending appeal shows the state in nearly full on panic.
(2400 words)

It looks like this case has been up and down the ladder at least twice.

Judge Benitez gave the state 10 days to get a stay from the Ninth Circuit court. Theses are calendar days, per [xCite item=”V6MGC9K5″ pos=0]. This means that on the 29th of October 2023, the “Assault Weapons Ban” of California will be fully enjoined. People will once again be able to purchase rifles that have been banned for years.

Interestingly, they will not be able to purchase handguns that were excluded by the AWB. This is because none of the named AWB Pistols are on the handgun roster.

The state has filed for an emergency stay with the Ninth Circuit court.

To get a stay, the petitioner must meet the four Winters factors: the likelihood of success on the merits, irreparable injury, the balance of equity, and public interest. In Baird v. Bonta, the district court changed the order in which they weighted the four factors; they literally took them out of order. The Ninth Circuit then reversed the order (the legal statement of the court) of the district court. In plain language, the Ninth Circuit said that the inferior court got it wrong, and their (the Ninth Circuit) statement was the correct one.
In Baird v. Bonta, the Ninth Circuit reversed the order of the Winters factors used by the district court‘s order.

What does this mean to us? It means that anytime anybody requests a stay within the Ninth Circuit, the court must look at the merits first. If the likelihood of success on the merits favors the movementmovant (the person filing the motion), then the other three factors are considered.

In a civil rights case, any abridgment or infringement of a constitutionally protected right is, by definition, an irreparable injury. The balance of equity favors the protection of constitutionally protected rights. There is no public interest in enforcing an unconstitutional law.

This means that if the movementmotion is based on a constitutional challenge, if the movementmotion is likely to win on the merits, the other three factors favor the movementmovant as well.

The state’s argument for a stay

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Why didn’t you all tell me that I had a bad video link?

There are albums that set new standards. The concept of a “Rock Opera” is one of them.

We’ve heard them, The Who’s Tommy, Styx’s Mr. Roboto, Pink Floyd’s The Wall are all examples of rock operas.

They tell a story from beginning to end. A complete story arch. Sometimes taking two LPs to tell.

Of course, there are rock opera’s that are a little bit shorter:

If you can find it, you might enjoy Kenny Roger’s and The First Edition’s The Ballad of Calico