• I Am Not A Lawyer…. I am a computer scientist.

    Yeah, an actual scientist. I didn’t study “Information Technology” or “Information Systems”, I studied “Computer Science”.

    I’ve written in so many different computer languages that I’ve forgotten the names of some of them. My first language was PolySci basic, followed by Apple Basic. I quickly moved into 6502 machine code on an Apple II and a KIM. I learned 8080 and Z80.

    I wrote my first interpreter back around 1978. It was written in 6502 machine code with the built-in assembler on the Apple II. It was designed for a custom op/amp system to control a model solar home heating system. The next major code I wrote was for the QC department at Planters Peanuts. This was at a time when the only computers in the plant were mainframes and the personally owned Apple II, the head of QC brought in.

    Somewhere in that time frame, I learned COBOL.

    Shortly thereafter, I headed off to University.

    At University, I learned Pascal, FORTRAN IV, FORTRAN V, a couple of different assembly languages. I had the pleasure of entering a boot program into the boot panel manually. The CDC 6500, and 750 had a panel of toggle switches, you entered the boot program by toggling each bit on that panel. There was just enough space to cause the system to read a block of data from a mag tape and then execute that block of code.

    I loved every minute of my time at University. As a broke collage kid I ate well, had all the stereo toys I wanted, had a new car. I even had a girlfriend from time to time.

    I’ve never stopped learning. Likewise, I figure that when I stop learning, it will be three days after my funeral.

    Computer stuff is how I make my money, it is how I spend my time. I do other stuff for a break and to have actual physical results.

    This blog has become very important to me. I’m sure you all are tired of reading my IANAL breakdowns of different cases. 4000 words in part II last night. It was a hard battle to learn how to find the resources to write about these cases. Along the way, I’ve become obsessed with saving you from having to repeat that battle.

    To that end, I had to find the right tools. I’ve paid for some of them. Some of them I’ve paid for by providing coding skills.

    Let’s take a look at the current pile of crap I’m working with in an attempt to make my life easier.

    First, I purchased “languageTool”. This is an open-source grammar checking tool, it is one of the reasons that my writing seems to have improved. It not only catches spelling errors, it also catches wrong words spelled correctly, as well as making me actually put commas in where they belong. It is a powerful tool.

    If you don’t write 2000+ word documents, the free version will work for you, very nicely.

    The next tool I started working with was PACER. I don’t use it anymore except as a source for CourtListener.

    I’ve started providing code to CourtListener. It is written in Python using the Django framework. This has only required me to get better at Python, and Django. It also required that I go out and really learn BootStrap 3 and CSS.

    CSS is a description language. You provide it with a magic selector, and it will apply different attributes to the selected item. I’ve had to become much better at writing good selectors and designing webpages to have the right types of selectors.

    Of course, you don’t like boring pages. You want them to be interesting and responsive. That meant learning a bit of JavaScript.

    JavaScript is a language designed to make webpages interactive. It is designed to allow you to do the simplest of things to a webpage. When a person toggles that check-button, display a hidden element with buttons. Except that those buttons are actually anchors that we’ve used CSS to make look like buttons. When you click on those buttons, it takes you to a new page.

    This is the start of dropdown menus.

    To make all of this happen reasonably, JavaScript was writing to be asynchronous. In addition, it was written for people that didn’t want to think about strong variable typing. This means that the variable “tmp” can hold a string and then later it can hold an integer, still later a floating-point number, and still later a complex object.

    Oh, a variable can also hold a “function” so you can use a variable as if it is a function.

    This sucks.

    Historically, computer software was written to take input and produce output. If you wrote a program to add two numbers, the program would ask “First Number:”, “Second Number:” and then it would print “The sum is:” with the sum printed.

    The software determined what was going to happen next.

    This is no longer the case, you control what happens next. You are writing an email, you stop in the middle of a word, click on the insert image button, upload an image into your email, go back to writing, click on a different program, watch the cat video, reply to the video, click back to your email, decide to do some formatting, then go back to writing.

    You all suck. If you would just do the things in exactly the right order to make the computer happy, life would be so much easier.

    So back to the learning curve.

    I wanted to have “good citations” to provide you with good links and the ability to look up other cases and references. CourtListener didn’t provide that. I added it.

    But I found out that “they” don’t actually use citations the way I want to use them. KOONS v. PLATKIN, 1:22-cv-07464, (D.N.J.) has some 130 different docket entries. Somewhere between 50% and 75% of them are actual documents.

    Consider this docket entry:

    USCA Case Number 23-1900 for 126 Notice of Appeal (USCA),, filed by PATRICK J. CALLAHAN, MATTHEW J. PLATKIN, MATTHEW PLATKIN, PATRICK CALLAHAN. USCA Case Manager Stephanie (Document Restricted – Court Only) (ca3sb,) (Entered: 05/17/2023)

    That is all there is for this docket entry. Translated, it says: the United States Court of Appeals has assigned case number 23-1900 to docket entry 126, the defendants’ Notice to the District Court that they were appealing. The circuit court considers that to be a restricted document.

    At docket entry 124 it says:

    OPINION. Signed by Chief Judge Renee Marie Bumb on 5/16/2023. (alb,)

    This, though, has a document attached to it. A 254-page PDF full of dense legal speak. When I left off last night, there was still another 100 pages of the document to read. I’m not going to.

    So, I’m feeling pretty good about adding better citations. Then the subject-matter experts let me have it with all 7 barrels from a mini-gun. It seems that I’m not doing citations correctly. This is absolutely true. Why is it true? Because there isn’t a “right way” to do citations, there are thousands. The tool I started using only has 43. Its parent project has thousands.

    This led to another language to learn. “CSL” This is Citation Style Language. This is written in XML. I was keen to learn it because I wanted to have it create citations for me. Above is the citation as pulled from Courtlistener. Here is a citation pulled and formatted with a custom CSL program:

    —KOONS v. PLATKIN, No. 1:22-cv-07464, Doc. 124 (D.N.J.),

    If I want a different version, I can use the shorter version: —KOONS v. PLATKIN

    If I want the shortest version, I do that manually: — Id.

    The first one is a simple drag and drop. The second one is a drag and drop else where, then copy and paste. Yuck.

    I started looking into how to do “fix” it and found a different thing. Zotero.org has an API that will provide me with a citation when I ask for one.

    Except that I don’t use “Zotero”, I use “Juris-M”. The version I use has extensions specifically for legal citations.

    They even have a plugin for Firefox and Chrome to allow you to click a button and download the citation and link to the document to Juris-M. Juris-M then syncs with Zotero to add your citation into the cloud.

    But the plugin doesn’t work with CourtListener. So, I wrote a new JavaScript “translator” to make it work. Did I mention I hate JavaScript? JavaScript is now using “promises” which are new to me. Not the concepts, just the implementation. Which lead to me learning still more JavaScript. Now in the context of software that was interacting with multiple Internet servers, as well as scrapping the Document Object Model of the webpage.

    I have things mostly working, except I don’t. I’m not pulling the correct stuff and putting it in the correct places. Close, but not good enough.

    Here is the issue in a nutshell. Legal citations require you to use the correct abbreviations. You can’t write “Court of Appeals for the Seventh Circuit” in a citation, you must write it as “7th Cir.” It isn’t “District Court, D. Connecticut” it is “D. Conn.”. I have to extract that information from CourtListener and put it in exactly the right place. Which might require me to use the CourtListener API rather than scrapping the information from the WebPage.

    It might be easier to add metadata to the pages from CourtListener, rather than scrapping for it.

    Regardless, I can’t get things to work for me with Zotero because I don’t have the right CSL in Zotero.

    Which takes us to what I really want to be able to do.

    I aim to be able to add citation markers to my articles. I want them to be quick and easy to add. Instead of putting the citation in place, I put something like [Xcite item=”14815850/IBYFACFI” at=5]. There would be a different version for using a paragraph locator instead of a page locator.

    I put that marker every place I’m citing that case. I don’t worry about short, long, or anything else. If the cites follow one another, then the following cites would be written as Id. with locator. If there was an intervening citation, it would use a short form. Then it would switch to using Id. again. It could then create a good bibliography at the end of the document.

    With this goal in mind, I tried “ZotPress”. It almost works. Not well enough to actually use. This means that what I want to do is modify ZotPress to interact with my own Zotero data server. It’s open source! Except that it isn’t maintained for others to use. There are no instructions on how to use it. It is written in PHP. But the version of PHP isn’t exactly right. And it has a major dependency on a framework that is no longer being supported.

    In the process of looking through this, I found something called a “citation server”. Well, wouldn’t you know, they don’t actually do any of the citation processing within Zotero. Nope, they make a network API call to the cite server.

    The cite server is available as open source. I download it and created a Docker image. Another technology with its own language. It works great. Except it doesn’t like my Juris-M CSL because it isn’t the correct version.

    Which meant that I had to make the cite server run in a docker container. Did I mention I dislike JavaScript? Did I mention that JavaScript was designed to manipulate a web browser’s DOM in real time? Did I mention that it is an asynchronous nightmare?

    Cite Server is written in JavaScript. The citation processor, citeproc, is written in JavaScript. I’m not working on integrating their cite server with Juris-M’s citeproc. It isn’t going as well as I would like.

    And that ends today’s rang.

    Still too long at 2000 words. It didn’t take as long to write as I didn’t have to dig through as much legal speak. Hope you are having a wonderful weekend.

            

  • B.L.U.F. More on District Judge Renee Marie Bumb’s opinion on NJ’s Bruen spasm legislation, Chapter 131. The case is currently being appealed to the Third Circuit court as Ronald Koons v. Attorney General New Jersey, 23-1900, (3rd Cir.)

    Her Historical Analysis

    The first 50 pages or so of the opinion covered Judge Bumb’s analysis of the text, history and tradition of gun control regulations. When all was said, she found that regulations from as early as the 1328 and as late as the 1890s all support a history and tradition of disarming dangerous people.

    She doesn’t cover the Statute of Northampton, from 1328. Different people read it in different ways in regard to how it limits the ownership of arms. She really digs in with regulations dating from 1860.

    What most of these regulations have in common is that they set the punishment for the common-law offense” of going armed to terrify the people—KOONS v. PLATKIN, No. 1:22-cv-07464, Doc. 124 (D.N.J.).

    Those that were not about going armed to terrify the people were about disarming disfavored groups. Slaves, Negros, Indians, Catholics, and people that were unhappy with the Government or unhappy with the people unhappy with the government were all groups that regulations disarmed.

    While Bruen specifically mentions “regulations” in the context of historical analogies, Judge Bumb extends that to include discussions about regulations.

    Consider a debate in the legislature regarding the adoption of the new Constitution. It is clear that they want some changes, amendments, to the Constitution. There are three different versions presented:

    1. The right to keep and bear arms shall NOT be infringed!
    2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
    3. The right of the people loyal to the state to keep and bear arms shall not be infringed.

    All three of those codify the right to keep and bear arms. The first group pushes hard. They argue that the simple command should be more than enough to protect the right. The second group pushes back. They argue that by explaining the reason why it is so important to protect the right to keep and bear arms, they make the protections stronger.

    The third group is concerned about the federal government usurping the citizen militia. They fear that citizens of the state will be tempted by the federal government to take up arms against the states. The wish to have the power to disarm those that are openly agitating against the state government, in favor of the federal government.

    After much heated debate, the third version is off the table. The delegates fell that giving the government any say in who keeps and bears arms to be too dangerous. Some more debate and the second version wins.

    At this point, we see that The People, via their representatives, have done a means-end or interest balancing tests and determined which version they want.

    Judge Bumb feels that the third group’s arguments should be given as much weight in the discussion of the tradition of firearm regulation as the actual regulation adopted. I feel it is the opposite. The fact that they were tested and found wanting means that it was a loosing argument then and is still a loosing argument today.

    Her use of surety laws is just as weak.

    The Second Amendment only applies to the “Virtuous Citizen”

    (more…)

            

  • Last week we asked which cases you were interested in next, the winner was Oregon Firearms Federation, Inc. v. Brown. Unfortunately, this got put on the back burner when District Judge Bumb issued her opinion regarding New Jersey’s Bruen response bill. Part two of the analysis of her opinion is in progress.

    Hagar has a couple of articles in the queue, based on the feedback you provided.

    After O.F.F. v. Brown is updated, I’ll be looking at Boland v. Bonta which is the California rooster case.

    There are a few more cases in progress.

    I’m hoping that Miguel will take a look at some of the bills making their way through Congress. One of my feeds reported a bill that was introduced to restrict firearm purchases for anybody 25 or younger.

    Is there anything you’d like us to look into?

    Give your feedback down below.

    Have a Great Weekend!

            

  • In my “docket alerts” over at CourtListener, I have over 30 alerts set. Each alert causes the site to send me email when a case is updated.

    I’ve talked about how long it takes to get a case through to completion. The excellent news, today, is that completion now feels like it will be a win for the Second Amendment side.

    But I noticed something, we are less than a year out from Bruen and the Supreme Court has already looked at two different cases. They decided against intervening, but this seems to have been done on procedural grounds.

    The latest was an appeal from the 7th Circuit court. From the time of the appeal to the time of decision by the Supreme Court was less than 2 weeks. The request was denied. It doesn’t matter.

    It is still a win for the Second Amendment.

    In the past, 2A cases would languish in Circuit Court limbo for months or even years. The cases were delayed, progress was slow and painful.

    The 7th Circuit is one of the courts that has a history of dragging its feet when it comes to Second Amendment rights. As long as the state holds the upper hand, the courts respond slowly.

    We have already had the 2nd Circuit Court go from “yeah, we’ll hear the appeal sometime in the future.” to “We will hear oral arguments in 2 months.” The 7th did an instant grant of a stay. It looked like it would be many months before the 7th got around to hearing the case.

    Instead, one of the cases was appealed to the Supreme Court. The Court asked for a briefing and within the week the circuit court had scheduled briefings on an extremely tight time frame.

    Of those 30+ cases? Nearly half of them are at the Circuit Court level already. Some at the preliminary injunction level but some at the injunction level.

    Nobody is sitting still.

    I’ve been wrong about some of my timelines.

    I believe that what is going to happen is that the Circuit courts are going to delay issuing their opinions until the end of the Supreme Court Term. That will give them a bit of time before the Supreme Court can take new cases.

    We might be seeing cases before the Supreme Court by the end of 2023.

    It is an interesting time to be involved with the 2A community.

            


  • B.L.U.F. A District Judge in New Jersey issues her order and opinion on a motion for a Preliminary Injunction. She is not happy with the state. She does an okay read of Bruen, finds in part for the plaintiffs (good guys) and in part for the defendants (bad guys/state).

    Good News

    In conclusion, the Second Amendment’s “right to bear arms in public for self-defense is not a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’” Bruen, 142 S. Ct. at 2156 (quoting McDonald, 561 U.S. at 780). That does not mean, however, that the right is “unlimited.” Heller, 554 U.S. at 626. The Constitution leaves the States “some measures” to combat handgun violence. Id. at 636. But what the Second Amendment prohibits the States from doing, and what the State of New Jersey has done here with much of Chapter 131, is to “prevent[] law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” Bruen, 142 S. Ct. at 2156. That is plainly unconstitutional.
    — KOONS v. PLATKIN, No. 1:22-cv-07464, Doc. 124 at 234 (District Court, D. New Jersey, May 29, 2023)

    The short answer, here, is that the Judge gets it. Chief Judge Renee Marie Bumb has written a 235-page opinion that is extensive. While the final outcome is not a 100% win for the Second Amendment, it is still a devastating take-down of the state.

    History

    In Bruen’s wake, New Jersey’s Legislature sprang into action, amending the State’s firearm laws in many ways. First, the Legislature dropped the State’s firearm law requiring a person to show “justifiable need” to carry a handgun in public for self-defense—a requirement that Bruen explicitly struck down. Second, the Legislature created a list of 25 “sensitive places” where firearms are banned under threat of criminal prosecution. These places range from government-owned buildings, libraries, entertainment facilities, and restaurants that serve alcohol to all private property unless prior consent to carry is given. In enacting the sensitive places law, the Legislature purported to abide by Bruen by declaring the Nation’s “history and tradition” supported banning firearms at these identified locations. 2022 N.J. Laws, ch. 131, § 1(g).
    — Id. at 7

    A pretty good start. sprang into action has that sort of dig against the state the Courts do when they are telling the state they understand the nefarious motives of the state.
    (more…)

            

  • I’ve been hearing this song on my Google music play lists. The music was nice, it had a good sorry.

    I dislike their politics. Still good music.

            
  • The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” We explained in Heller and McDonald that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” Heller, supra, at 592, 128 S.Ct. 2783; see also McDonald, supra, at 767-769, 130 S.Ct. 3020. We excluded from protection only “those weapons not typically possessed by law-abiding citizens for lawful purposes.” Heller, 554 U.S., at 625, 128 S.Ct. 2783. And we stressed that “[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Id., at 634, 128 S.Ct. 2783 (emphasis deleted).

    Instead of adhering to our reasoning in Heller, the Seventh Circuit limited Heller to its facts, and read Heller to forbid only total bans on handguns used for self-defense in the home. See 784 F.3d, at 407, 412. All other questions about the Second Amendment, the Seventh Circuit concluded, should be defined by “the political process and scholarly debate.” Id., at 412. But Heller repudiates that approach. We explained in Heller that “since th[e] case represent[ed] this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.” 554 U.S., at 635, 128 S.Ct. 2783. We cautioned courts against leaving the rest of the field to the legislative process: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” Id., at 634-635, 128 S.Ct. 2783.

    Based on its crabbed reading of Heller, the Seventh Circuit felt free to adopt a test for assessing firearm bans that eviscerates many of the protections recognized in Heller and McDonald. The court asked in the first instance whether the banned firearms “were common at the time of ratification” in 1791. 784 F.3d, at 410. But we said in Heller that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” 554 U.S., at 582, 128 S.Ct. 2783.

    The Seventh Circuit alternatively asked whether the banned firearms relate “to the preservation or efficiency of a well regulated militia.” 784 F.3d, at 410 (internal quotation marks omitted). The court concluded that state and local ordinances never run afoul of that objective, since “states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade firearms.” Ibid. But that ignores Heller’s fundamental premise: The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs, but by what private citizens commonly possess. 554 U.S., at 592, 627-629, 128 S.Ct. 2783. Moreover, the Seventh Circuit endorsed the view of the militia that Heller rejected. We explained that “Congress retains plenary authority to organize the militia,” not States. Id., at 600, 128 S.Ct. 2783 (emphasis added). Because the Second Amendment confers rights upon individual citizens—not state governments—it was doubly wrong for the Seventh Circuit to delegate to States and localities the power to decide which firearms people may possess.

    Lastly, the Seventh Circuit considered “whether law-abiding citizens retain adequate means of self-defense,” and reasoned that the City’s ban was permissible because “[i]f criminals can find substitutes for banned assault weapons, then so can law-abiding homeowners.” 784 F.3d, at 410, 411. Although the court recognized that “Heller held that the availability of long guns does not save a ban on handgun ownership,” it thought that “Heller did not foreclose the possibility that allowing the use of most long guns plus pistols and revolvers … gives householders adequate means of defense.” Id., at 411.

    That analysis misreads Heller. The question under Heller is not whether citizens have adequate alternatives available for self-defense. Rather, Heller asks whether the law bans types of firearms commonly used for a lawful purpose—regardless of whether alternatives exist. 554 U.S., at 627-629, 128 S.Ct. 2783. And Heller draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns. Id., at 624-625, 128 S.Ct. 2783. The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles. See 784 F.3d, at 415, n. 3. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. See ibid. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons. See McDonald, 561 U.S., at 767-768, 130 S.Ct. 3020; Heller, supra, at 628-629, 128 S.Ct. 2783.

    The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits. See 784 F.3d, at 411-412. The court conceded that handguns—not “assault weapons”—”are responsible for the vast majority of gun violence in the United States.” Id., at 409. Still, the court concluded, the ordinance “may increase the public’s sense of safety,” which alone is “a substantial benefit.” Id., at 412. Heller, however, forbids subjecting the Second Amendment’s “core protection … to a freestanding `interest-balancing’ approach.” Heller, supra, at 634, 128 S.Ct. 2783. This case illustrates why. If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.
    — Friedman v. City of Highland Park, Ill., 136 S. Ct. 447 (Supreme Court 2015)

    Thank you Clarance Thomas.

            

  • Background

    The Supreme Court has ruled that the meaning of an Amendment is locked to the time it was adopted. The People at that moment of time analyzed the end and decided that the means proposed was properly balanced. If The People decide that the original analysis was wrong, they will go through the process of amending the Constitution.

    Karen Achoo, the governor of a blue state, requests and gets the Protect Our State (POS) law passed. This declares that dangerous or unusual weapons can be banned, and it is factually obvious that firearms that hold more than two rounds are dangerous and thus are banned.

    This bill goes into effect on January 1, 2024. We now game the problem from the view point of the anti-gun side.

    Scenario One

    The Supreme Court is 6-3 favoring originalism. Judges that will read the law(s) as written and apply the means-end that was done at the time of the adoption of those Amendments.
    (more…)

            

  • In talking to my wife this morning, she was telling me how angry she got reading about Judge Easterbrook and Illinois’ continual attack on the Second Amendment. She couldn’t understand why they kept doing what they were doing.

    There is no need to delve into the “whys” of it, it is not relevant. The only thing that does matter is that there are people who do not want guns in the hands of The People. With that, the game starts.

    History

    The starting point is “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

    Until the National Firearms Act of 1934This is currently embedded in 26 U.S.C I,

    In congress, there were robust arguments about how they could pass a law that was a direct infringement on the right of The People to keep and bear arms. In the end, they decided that the only way that they could limit access to evil guns was by taxing them out of the hands of The People.

    Remember, this is at a time when the cost of a silencer was under $10. The cost of the Tax Stamp was $200. It still is $200.

    This was not a ban. Anybody with enough money could pay for the tax stamp. Early enforcement was more as an “extra” charge put on a criminal when they were caught with an unregistered NFA item. In numerous instances, if a nominally law-abiding person was found with an unregistered NFA item, they were told to register it and that was the end of their interaction.

    Today, the anti-gun people are perfectly happy that a tax has become a de facto ban. The cost of regulations and compliance has raised the cost of legally purchasing a silencer to well over $700. I would love to have a couple of cans. I’d love to have at least one can for my squirrel rifle.

    In 1968, the Gun Control Act was passed. Again, this was not an outright ban on anything, it was just the state getting between you and your purchase of a firearm.

    Which takes us to:

    Modern History

    In the late 70s moving into the late 90s, the anti-gun movement really picked up speed. The one gun rights organization was more interested in “Keep and bear arms for hunting and sporting” than in “Shall not be infringed”.

    It is difficult to really understand what it means to be a lobbyist. It is a full-time job. Furthermore, it requires you to know people, to know who they are, what they like. To know who controls access to whom, and to be able to spend business hours doing nothing but lobbying.

    And when the day is done, you get to do some more. Don’t like golf? Tough, learn to play, learn to play well enough to be a challenge but not so good that you make them look bad.

    There were people and organizations that had the money to purchase lobbyists. And they were there in the halls of power pushing congress critters towards more and more infringements.

    Out of this, multiple infringing laws were passed. These include the AW/LCM ban and all the state and local bans on carrying.

    The Courts

    There are three levels of courts we are interested in. The District court is the lowest federal court. They report to their Circuit Court of Appeals. In turn, the Circuit Courts report to the Supreme Court.

    The Supreme Court consists of 9 judges. The Circuit courts have at least 9 members and often more.

    A District court has a single Judge. They decide the legal questions presented and for all other questions of evidence, a jury is used. The parties can request that the Judge also act as the jury.

    The judge decides if the plaintiff(s) have standing. Once that is determined, the case starts moving forward.

    The case is documented in the court “docket”. The docket is a record of every official communication between the court and the parties.

    Once the case is opened, the defendants will be informed. The defendants then start the process of responding to the accusations. This almost always starts with attacking standing. The goal is to get the case dismissed for procedural reasons.

    Here’s the thing, a case dismissed for procedural reasons can be refiled if the procedural error is correct.

    This process takes months.

    In the simple sequence, the plaintiff (good guys) ask for a Preliminary Injunction with an optional TRO.

    The TRO is to stop something from happening until the court can determine if a Preliminary Injunction should be granted. If a preliminary injunction is granted, then that remains in effect until the final opinion is issued. The final order will remove the preliminary injunction and if the plaintiffs win, then a permanent injunction will be put in its place.

    The Delay Game

    The defendants (bad guys) will often request additional time to brief the case. They will argue about needing more time for experts, and in general, they will drag things out as much as possible. IF there is no injunction against their infringing laws.

    If the Preliminary Injunction is requested and the result goes against one party (it almost always will), that party can appeal to the Circuit court for either a Preliminary Injunction, if the District court did not grant it, or a stay, if the District court did grant the injunction.

    Cases that are appealed before the final judgement are said to be in an “interlocutory” state. The superior courts do not like to hear appeals of cases that are still in an interlocutory state. They would prefer to wait until all the evidence has been presented and all the arguments and briefs made. The Supreme Court seldom takes up an appeal for a case in interlocutory state.

    Regardless, the process of appealing is a great method to create a delay. An appeal to the Circuit court will ask for a stay pending appeal.

    So on January 1st, 2020 you file a suit claiming a law infringes on your protected rights.
    By the end of January, most of the starting paper work is done, and you’ve moved on to the Preliminary Injunction or Summary Judgement.
    The court will schedule arguments. He will give time for the first set of briefings. This seems to be in the 3 to 6 week mark. I’m confident that in more complex cases there is more time given. At the end of that time, there will be time for a response to be filed. About 2 weeks or so, more on larger cases. There is then time for a short response to the response.

    There will be time in the schedule for the court to read all the briefings and other submissions. The Oral Arguments will be heard.

    At the District level, it seems to take only a couple of weeks before an order is issued.

    At this point, you are in late March, mid-April.

    Let’s say that the plaintiffs get a preliminary injunction. The state will appeal for an emergency stay from the Circuit court. This request will be evaluated by one judge on the Circuit. Within a few weeks, that temporary stay will be granted.

    You are now getting close to May. The Circuit court will then have a three judge administrative panel decide if they will hear the appeal. If they grant the stay on an expedited calendar, that does not mean that there will be an expedited calendar for hearing the appeal.

    This was attempted in the Second Circuit court. They granted a stay on an emergency basis. They granted a stay pending the appeal. And then didn’t bother to schedule the appeal. In the normal course of appeals, this could take 6 to 12 months, or more, before the appeal is heard.

    During this time, the District case is on hold. There is no reason for them to move forward.

    For the first act of the game, you are now into November 2020 when the appeal is heard. After the oral arguments are given, it is going to take months before the circuit court issues the opinion.

    Assuming that nobody wants to actually appeal to the Supreme Court, the case is now remanded back to the District court for them to take up where they left off.

    You are likely into January 2021 before your case starts moving forward again. In that time frame, massive amounts of papers have been filed by both parties. You might get your case heard by April. The court will then issue its final order a month or more after that.

    You are now in it for a year and a half. If the Preliminary Injunction argument is appealed to the Supreme Court, that can take a month or more before they issue their opinion.

    And every time a superior court issues an opinion, the inferior court has to start over again. In Duncan v. Bonta, the case was all the way to the Supreme Court. The 9th Cir.’s opinion was vacated, and the case was remanded back to the 9th. There they waited for months before a 3 judge panel decided to vacate the District Court’s order (which was opposite of what the 9th said and what the Supreme Court just vacated.)

    The reason for the vacating and remanding is to allow both parties to provide briefs that consider the reason for the case being vacated.

    To put this in perspective, we are about 40 days from the one-year anniversary of the Bruen opinion. The current standing is that The People’s ability to get carry permits has gotten better, but the risks in carrying have gone up. Not a single law has been struck down. Not a single case has made its way to the Supreme Court.

    Not a single Circuit Court has issued an opinion striking down a weapons ban or a Bruen spasm response bill.

    The Seventh Circuit court likely just mooted the need for the Supreme Court to step in on the AW/LCM bans in Illinois.

    (more later)

            

  • Brief update on the cases before the Second Circuit Court of Appeals.

    There are a number of Second Amendment Cases that are before the Second Circuit Court of Appeals. While other circuits will consolidate cases, it looks like the Second Circuit did not. This means that there are four or five different cases to track. I am only tracking one, right now.

    On March 20th, 2023, the three judge panel heard oral arguments. Each case was given a limited amount of time, half for the good guys, half for the bad guys.

    If more than one party on each side wanted to speak, then those parties would have to agree on how much time each got.

    Over in the Seventh Circuit Court, they consolidated multiple cases, then gave each side 45 minutes to present their oral arguments. This feels like it isn’t exactly reasonable, but I do not know.

    Back at the Second, there are hundreds of documents filed. Some of the these documents are short and not significant. Antonyuk v. Hochul, 22-2972, (2d Cir. Feb 16, 2023) ECF No. 269 is a two-page form letter to a lawyer on the case who used the wrong login ID when submitting a different two-page document telling the court that they would be appearing as additional counsel.

    Figure that there are likely around 2000–3000 pages of documents filed in this one case. Just reading all of that takes time.

    Just one document references 30 different opinions. I’ve learned that just because a lawyer or judge cites an opinion, it doesn’t mean that they have represented that opinion honestly. So figure another 2000 plus pages of reference cases to read. In some cases, they reference entire websites.

    Regardless, on March 20th, the case was heard.

    I’ve listened to parts of the audio. It isn’t too bad, not great, but not bad. At least one of the Judges is anti-gun.

    In 2017, the 2nd circuit court had a median interval from argument to opinion of less than a month. All circuit courts had a median of 2.2 months. 2018 was 0.7, 2019 was 0.8, 2020 was 0.8, 2021 was 0.5, and in 2022 it was 0.2 months.

    The second circuit court has the lowest median time to opinion of the circuit courts.

    Having said that, we should expect something from them in the June time frame. I suspect that the plaintiffs (good guys) will open a new appeal to the Supreme Court in July if an opinion is not issued before then.