Vincent v. Garland (10th Cir., 21-4121) §922(g)(1)

B.L.U.F.Is this the next case to head to the Supreme Court? The 10th Circuit found that a convicted felon does not have a constitutionally protected right to possess firearms.

(1000 words)


In 2020, Melynda Vincent filed to have §922(g)(1) overturned as applied to her. In 2007, she was a drug addict and tried to pass a bad check for less than $500. She was arrested and put in to drug rehabilitation. She came out of drug rehab before her court case and has been clean since then.

In court, she pleaded “guilty”. This has a sentencing guideline charge for multiple years with no option of probation. The court sentenced her to 0 years in prison and probation. She completed her probation early. She has had no other negative interactions with the law/courts.

At the district court level, the court used the Tenth Circuit Court’s opinion in United States v. McCane. McCain was a felon in possession case, which the Circuit court ruled in 2009 was constitutional.

The important part of their decision was that they did not do means-end to make that determination. Instead, they relied on Heller.

The [Supreme] Court observed that it wasn’t “cast[ing] doubt on longstanding prohibitions on the possession of firearms by felons.” Id. at 626. We applied this observation in United States v. McCane to uphold the constitutionality of the federal ban on felons’ possession of firearms.
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United States v. Robert Hunter Biden WTF?

B.L.U.F. Hunter might get off the hook on counts 1 and 2 if count 3, §922(g)(3) is struck down for constitutional reasons.

(450 words)


for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;
— 18 U.S.C. §922(a)(6)

Emphasis added.

Form 4473 asks a series of questions, as well as having several places for you to fill in your information. It is pretty clear that if you lie in the section asking questions to determine if you are a prohibited person, you are lying about a material fact. What if you were to write the wrong county down? Is that a “material fact” with respect to acquiring a firearm?

It doesn’t seem to be. While it would not surprise me to learn that the ATF pulled an FFL’s license because somebody misspelled the county name, I don’t think anybody has been prosecuted for misspelling the county name on a 4473.

knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter;
— 18 U.S.C. §924(a)(1)(A)

Emphasis added.

The information required is only required if it is a “material fact”.

The short of it is that if this was anybody with an R after their name instead of a Biden, counts 1 and 2 would hold. Even if count 3 and 1 are tossed, count 2 would likely still hold.

Hunter’s lawyers will use Bruen and the other cases against §922(g)(3) to argue that the law is unconstitutional. They are likely to win. Biden, don’t you know.

If count 3, §922(g)(3) is tossed, does §922(a)(6) still stand? If being a user of a controlled substance in not a “material fact” then count 1 goes as well.

This means that only count 2, §924(a)(1)(A) still stands. If being a user of a controlled substance is not material, then is the information required?

All in all, it looks like a good case for the Second Amendment, a poor case for justice. As more than one pundit has pointed out, this is one of the few crimes that Hunter could have been charged with that does not implicate his father.

H/T Mark Smith

The Stanford Prison Experiment

This famous experiment was conducted in August 1971. The researcher had placed an ad in the Palo Alto City newspaper.

70 people replied and were brought in for interviews. According to Zimbardo, the lead researcher, these were “diagnostic interviews”. The term “diagnostic interview” was understood to mean looking for mental instability or particular sadistic tendencies in the respondents. The interviews were also used to eliminate respondents with “medical disability or history of crime or drug abuse”.

After the interviews, they were left with 24 participants.

This is the very first point of contention. There are many articles that discuss how these elimination interviews were not screening for the right psychological indicators. This is an open question because different people can have different opinions on what are disqualifying indicators.

One article question if the diagnostic interviews tested for BDSM tendencies. As shown about, the understanding was that sadistic tendencies were tested for, but the actual description by Zimbardo does not explicitly state that exclusion.

Also note, there are many articles that reference or discuss the SPE, there are books and movies about it. What I was unable to find is the original peer reviewed publication. The quotes I am using come from a 1975-slide show that Zimbardo prepared.

The way the experiment began, again according to Zimbardo, was:

On a quiet Sunday morning in August, a Palo Alto, California police car swept through the town picking up collage students as part of a mass arrest for violation of Penal Codes 211, Armed Robbery, and Burglary, a 459 PC. The suspect was picked up at his home, charged, warned of his legal rights, spread-eagled against the police car, searched and handcuffed; often as surprised and curious neighbors looked on. The suspect was put in the rear of the police car and carried off to the police station, the sirens wailing.

The car entered the station, the suspect was removed, brought inside the station, formally booked, again warned of his Miranda rights, fingerprinted, and a complete identification made. The suspect was then taken to a holding cell, where he was left blindfolded to ponder his fate and wonder what he had done to get himself into this mess.

Blindfolds are not part of normal police procedures. Before the victim even arrives at the mock prison, they have already been treated outside the normal practices.

One of the things to note is that Zimbardo was a prison reform activist. To set up his mock prison, he “called upon the services of experienced consultants”. His primary consultant was Carlo Prescott, a convicted felon with seventeen years in San Quentin, Soledad, Folsom and other prison.

His other consultants came from a pool of other ex-convicts and correctional personnel.

This would be the equivalent of somebody wanting to find out how access to guns effects people, and then hiring Giffords as their lead consultant. With their other consultants being experts recommended by Giffords, such as Brady, March for Our Lives, and Everytown.

As part of their mock prison, they created a punishment cell, called “The Hole”. It was a 2×2 closet. If you read The Gulag Archipelago: An experiment in Literary Investigation you will find a section where Solzhenitsyn talks about prisoners being tortured by being placed in an out building about 2 by 2 with countless bugs.

It makes me think that maybe Zimbardo might have heard some speeches by Solzhenitsyn and decided to implement parts of that narrative as part of his mock representation of an American prison.

From the point the prisoners are brought into the mock prison, they are treated in a manner to break them.

Each prisoner is searched and then systematically stripped naked, he is then deloused with a spray, to convey our belief that he may have germs or lice — … a degradation procedure was designed in part to humiliate him, and in part to be sure he isn’t bringing in any germs to contaminate our jail.

The prisoners were issued a smock, no underclothes, a pair of rubber sandals, a hair cap. They were fitted with a chain to their ankle.

Again, not at all normal.

I’m disgusted at what I’m reading. More so because Zimbardo is proud of his work.

He used this work to try to change people’s opinion of prison life. To imply that all prison personal were petty, sadistic, dictators.

In 2019, Thibault Le Texier published his paper “Debunking the Stanford Prison Experiment”

The Stanford Prison Experiment (SPE) is one of psychology’s most famous studies. It has been criticized on many grounds, and yet a majority of textbook authors have ignored these criticisms in their discussions of the SPE, thereby misleading both students and the general public about the study’s questionable scientific validity. Data collected from a thorough investigation of the SPE archives and interviews with 15 of the participants in the experiment further question the study’s scientific merit. These data are not only supportive of previous criticisms of the SPE, such as the presence of demand characteristics, but provide new criticisms of the SPE based on heretofore unknown information. These new criticisms include the biased and incomplete collection of data, the extent to which the SPE drew on a prison experiment devised and conducted by students in one of Zimbardo’s classes 3 months earlier, the fact that the guards received precise instructions regarding the treatment of the prisoners, the fact that the guards were not told they were subjects, and the fact that participants were almost never completely immersed by the situation. Possible explanations of the inaccurate textbook portrayal and general misperception of the SPE’s scientific validity over the past 5 decades, in spite of its flaws and shortcomings, are discussed.
Banuazizi and Movahedi (1975) examined the possibility of demand characteristics operating in the SPE. They provided 150 college students with a description of the procedure used in the SPE, the advertisement used by Zimbardo to recruit volunteers for the SPE, a description of the rights and privileges the subjects agreed to waive to participate, and a description of the arrest and incarceration procedures in the SPE. Banuazizi and Movahedi used a set of open-ended questions to determine the students’ thoughts as to what the experimenter’s hypothesis was and their expectations regarding the outcome of the experiment. Of the students tested, 81% accurately figured out the experimenter’s hypothesis (that guards would be aggressive and that prisoners would revolt or comply), and 90% predicted that the guards would be “oppressive, hostile, aggressive, humiliating” (p. 158), thereby supporting the argument that demand characteristics were likely operating in the SPE and that the participants in the SPE would have probably guessed how Zimbardo and his co experimenters wanted them to behave.

In other words, as a commentor pointed out on my article about Ordinary Men, there is a strong likelihood that the SPE is bad science.

Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland

When we discuss the horrors of Nazi Germany, many people claim that they would not have turned a blind eye to the atrocities that were taking place. They are full of it. They are mistaken in every way.

There is the Stanford Prison Experiment, where they took volunteers and broke them into two groups, guards and prisoners. Within days, the guards were acting in some of the most atrocious ways possible. Every time the experiment has been repeated, the same results occur.

At Yale, Stanley Milgram conducted an experiment where he had two volunteers come up. They drew for who would play the interrogator and who would be interrogated. The draw was fixed, and the shill was always picked to be interrogated.

The interrogator would then ask questions of the “victim.” If the victim answered incorrectly, the interrogator would move a dial to increase the voltage being applied to the victim.

The entire thing was rigged. There was only one shock given, that was the first, which was given to the actual volunteer, so they would know what was happening to the victim.

Nearly every person who participated in the experiment went all the way to 300 volts. 65% went to the maximum of 450 volts.

The Milgram experiment has been repeated, and the results are consistent.

This is not to excuse the atrocities of the Germans, it is to strongly suggest that it wasn’t the German culture that allowed them to do this to their fellow humans, it was human nature.

In some ways, we can see the same things happening in our country. People that say, “You owning a gun makes me feel unsafe. Since I feel that you will use that gun to kill me or somebody else, you should not have guns. If you don’t give up your gun, I will send the police to take it from you by force, potentially ending up with your death.”

We see it in the othering that happens consistently. How many times have you heard somebody refer to “Maggots” or similar?

Unfortunately, the book is a little dry. It is a difficult read because it was written as a scholarly paper that was turned into a book. The hardbound copy is expensive. The book is filled with numbers, place names and unit names and numbers. Which makes it difficult for many people.

Netflix has turned the book in to an hour-long short. If you have not read the book, take the time to watch it. There are still many numbers, but it is easier to handle. They use a mix of historical images and film mixed with modern re-enactors to create a sense of history that is strong.

If you have read the book, the video is worth watching just for the historical footage and to get a better feel of the men.
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Costs of Litigation

In Fraser v. BATFaE the plaintiffs (good guys) said that 18, 19, and 20 year-olds are part of The People and that the government was infringing.

On May 10, 2023, the court ruled in favor of the plaintiffs. The court then ordered the winning party, the good guys, to submit their costs for payment by the losing side, the government.

This case as only made it to the district court level. The lawyers involved are at the good but not great level.

The lawyers are reporting: $900+ in expenses, 230+ hours of billable time at $495/hour for a total billable of $107,368.50

The final order in the case was entered on Aug. 24, 2023. In general, the losing side has 30 days to appeal. The state has requested a stay pending appeal, which has been granted. It does not look like the state has appealed this case.

It would be good for us if they did appeal. While it would hurt 18, 19, and 20 year-olds, having a Circuit Court find in our favor has more impact than just a district court.

Hunter Biden Charges

We should all be aware of 18 U.S.C. 922(g). This is the definition of prohibited person.

(g) It shall be unlawful for any person
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
(5) who, being an alien
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is subject to a court order that
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
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Hunter is charged under §922(g)(3) which is unlawful user of any controlled substance. This is being challenged at the district and circuit levels and is likely to end up at the Supreme Court. This is a Second Amendment challenge. If this challenge is made, I hope that Hunter wins.

There are two other charges, §922(a)(6) and §924(a)(2), lying on a form 4473, and §924(a)(1)(A), lying to an FFL about information placed on a 4473.

General Flynn was charged with making false statements to the FBI. That is what got him in so much hot water. It wasn’t what he was accused of doing, but instead of lying to the FBI.

At this point, the Hunter case is under extreme scrutiny. The Judge in the case is already upset about the games played to give Hunter a “get out of jail free” card.

Even if Hunter wins against the §922(g)(3), there is every reason to believe that he will be found guilty on the other two counts.

Clearly, this will not be a fair trial. It isn’t like Hunter is going to get 22 years for three counts of felonious conduct. It isn’t like he was in a different city while the mob walked through the capitol. That was worth 22 years of a man’s life.

The case is United States v. Biden, 1:23-cr-00061, (D. Del.)
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Shopping! Update.

I have heard from J.Kb. that the patches are not yet in his hands. It will be a couple of days still. I’ve marked the product as being on backorder.

I’ve reached out to a supplier for shirts, hats and such. It is possible, but the cost might be higher than we want to pay.

So far, we have “Don’t Break The Perimeter” and “The Second Amendment Applies to Everyone”.

For something larger:

Hosea 8:7
For they have sown the wind,
and they shall reap the whirlwind:
it hath no stalk;
the bud shall yield no meal:
if so be it yield,
the strangers shall swallow it up

Hagar has a couple of shirt designs in the works. We just need to be able to source them at reasonable cost.

Friday Feedback

We opened up the shop to the world, and this might actually work.

J.Kb. has some items to ship, and I have one to ship. We’ll get them out shortly.

The patches are estimated to be delivered from the embroiderer September 29.  Shipping will begin the first week of October.

We had a request for PayPal. I got rid of my PayPal account years ago when they became extremely anti-gun. For you, I’ll look into it.

The New Mexico Governor’s “I get to say when the Constitution applies” Emergency order with attending Public Health Order was stopped in its tracks.

It is so bad over there that the New Mexico Attorney General refused to provide a lawyer for the case. In all the cases I’ve been following, this is the first one where the state had filed no paperwork before the first hearing.

Instead, the Governor sent his office’s lawyer.

The governor named Holly Agajanian, an attorney most recently with the firm Hinkle Shanor LLP, as general counsel of her office. Agajanian has extensive trial and courtroom experience representing public entities, corporations and individuals in a wide range of matters. Having earned an undergraduate degree from the University of California at Los Angeles and her law degree from American University, Agajanian holds an AV Preeminent Rating from Martindale Hubbell, the highest peer rating for professional excellence in attorneys.

I have not seen a transcript nor an audio recording of the hearing. I do not know what was said. I did read the clerk’s notes on the hearing. It doesn’t sound like the state put up much of a fight.

On the fun side of things, I got to actually help on the case. The NAGR v. Grisham case had a new filing today by the plaintiffs (good guys). The lawyer who filed it had a finger slip. He was asking for a preliminary injunction and accidentally wrote a Temporary Restraining Order.

I noticed and fired off a short email to him asking if he had made a mistake. He replied almost instantly with a “Thank You”. I expect a new corrected filing tomorrow.

Yes, my arm hurts from patting myself on the back.

Miguel suggests “Don’t Break The Perimeter” for swag.

Hagar is putting together some images for the different donation products.

Any suggestions you might have, please let us know.

If you are interested in shirts, what size? Polo or T-shirt? Polo with or without pockets?

Shop Status Update – UPDATED

How to access the shop

On a large screen, the “shop” button is located in the header next to the “about” button on the lower left of the header banner. You have direct access to the cart, checkout, and your account from a dropdown on the right.

If you are on a mobile device, there is a “hamburger” button in the center between the home and search buttons. Press that and a menu will open.

The “shop” button can then be pressed to take you directly to the shop. This is a change from this morning.

Further down is the “cart” button with a plus sign. If you press that, it will show you a submenu. Press any of the options to go to that page, including the “cart” button. Yes, it looks like a title, it is a live button.


Thanks to David, I was informed that the shop wasn’t allowing checkouts. It does now. I had put the wrong credentials into the system.

There are both physical and virtual products available in the shop. There is a “Cup of Coffee”, “1 Month Server Hosting”, and “1 Month Web Services”. These are donations. In the near future, I hope to put a block under the banner saying something like “This month’s hosting by NAME, this month’s services by NAME”

The patches and Velcro are real. That will take us a little time to get all worked out. We have two “warehouses” so we have to coordinate shipping, so you get what you ordered.

Thank you for your support, it means a great deal to us.
-AWA