18 USC §922(g) is the prohibited person section of US federal law. It has 9 different sections, each one addressing one class of people to be denied their rights.

The Constitution says that “The People” is all of the people. The question being asked again and again is who belongs to the class “The People”.

It is clear that a US Citizen is part of “The People”. That implies to me that felons are also part of “The People”.

Do you lose your citizenship if you are wanted by the law? Nope.

Do you lose your citizenship if you partake in the “devil’s lettuce?” Nope.

Do you lose your citizenship if you have ever been in a mental institution? Nope.

Do you lose your citizenship if you have been dishonorably discharged from the military? Nope.

You lose your citizenship when you renounce it.

If you are imprisoned, you lose access to many things. They don’t allow drugs, weapons and many other things. Doesn’t mean those things aren’t getting into prisons, it just means it is against the rules and a prisoner can be punished if they are found breaking those rules.

In addition, we have the question of being an alien. Are the legal aliens living here part of “The People”? How about illegal aliens? Are they?

Originally, §922(g) was about transferring firearms. Now it is about both transferring and possessing.

The government has defined classes of people that they feel should be excluded from “The People”. The short is that they have said that these classes of people are not “virtuous”.

In Soviet Russia they had mental asylums. People were committed if they were mentally unstable. Unfortunately this turned into a catch all for “enemy of the state.” Since the state was wonderful, anybody that spoke out against the state must be crazy. If they were crazy the were committed. This made society “safer”.

If the government can define what is and is not a virtuous person and also define “The People” as only those that are law abiding and virtuous, they can remove any right at will. They just exclude you from “The People” and your rights evaporate.

We now have multiple cases challenging parts of §922(g). In OK, tenth circuit, a district court has ruled §922(g)(3), drug user, as unconstitutional. The fifth circuit court has ruled that §922(g)(8) is unconstitutional. A district judge in the western district of KY, sixth circuit, has found §922(g)(8) unconstitutional.

We need to wait to see if the state appeals these cases. It would not surprise me if Texas does appeal. If they appeal and it gets to the Supreme Court it could be a quick case where TX puts in a lackluster performance and parts of §922(g) go away across the entire country.

Other states which are anti-gun might very well not appeal losses at the district or circuit levels in order to keep the case from getting to the Supreme Court.

Over in California, Judge Benitez just dropped the hammer on the state in a number of cases, 3 IIRC.

The State Defendants are directed to file a brief which identifies the best historical regulation that is a proper analogue and relevantly similar to a (statewide prohibition on a firearm with listed features) (statewide prohibition of an ammunition feeding device or a limit on the amount of ammunition) (statewide background check for buying ammunition). The brief shall be limited to 5 pages and shall be filed with the brief currently due 30 days after the filing of the law list.

I tried to find what “filing of the law list”, regardless, the worse it could be is 30 days from now. The best it could be is just a few days because Benitez ordered all briefings be provided to him with in a short period of time once the ninth circuit court kicked these cases back to him.

At the same time we have a number of states attempting to ban assault weapons and magazines because the are exceptionally deadly/dangerous. We have a bunch of states that are attempting to make their entire state a sensitive place via a patchwork of explicit places that are listed as sensitive.

In all cases that are being tracked by me, we are winning. Not as fast as I would like, but we are winning.

B.L.U.F. Some of the media understands that the NYS CCIA is an overreach that accomplishes nothing.

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One of the great stupidities of New York’s current gun-law debate is that existing laws merely required a couple of tweaks for them to prove effective — nowhere more so than in the need for a license-to-carry rule based on objective criteria rather than bias and favoritism.

There are a number of pundits talking about knee-jerk responses by the different states. The states that created a spaghetti bowl of new laws to throw at the wall. The states that created “Kill carry” bills which make it easier to get a CCW but which makes it almost impossible to actually carry anywhere.

The responses are starting to fall into a few categories:

• Sensitive Places
• Good Moral Character
• Prove you are a responsible law abiding citizen
• Expanded training that isn’t available
• Costs increases.
• Attempting to flip who has to prove history and tradition
• That particular thing isn’t covered under the second amendment because it isn’t an “arm” or it is “exceptionally dangerous”

Nobody wants to hear it in the era of “decarceration” and “depolicing,” but one of the major problems facing crime-ridden Democrat-run cities is that many firearms offenses — short of murder — now go largely unpunished: In Philadelphia, 61% of gun cases are dismissed without charges or trial, up from less than 30% as recently as 2016.

Yep, right on target there. If you put the bad guys in jail, they aren’t going to be doing bad things to us.

Of the 4,456 gun arrests NYPD made in 2021, there was at last count one (not a typo!) conviction at trial and far more dismissals (983) than plea deals (698). Statistically speaking, the most likely thing to happen after an arrest for illegally carrying a gun in New York is … nothing.

Imagine that, nearly 4.5 thousand people were arrested in NYC for violating some part of their gun laws in 2021 (pre Bruen) yet only one was taken to trial and convicted.

It is highly likely that the poor saps that did end up being punished after a gun arrest were mostly law abiding, people that caught up by the police because ???.

It reminds me of the stories of construction workers being stopped and frisked. Their pocket knives were found. The cops then did a “flick test” where they attempted to open the knife one handed. If they were able to do so, they worker was jacked up on a weapons violation.

The problem with New York City’s license-to-carry law was never that it was too strict — it was that it was arbitrary and favored the connected. Celebrities such as Steven Seagal and Joan Rivers were issued licenses, but ordinary New Yorkers long found it nearly impossible to get one. This wasn’t a matter of responsible gun ownership — asked in 2003 about the concealed-carry permit he had secured during his mayoral candidacy four decades earlier, William F. Buckley Jr. replied: “I have my pistol permit in my wallet, and no one knows where the gun is.”

The problem with New York City’s license-to-carry law was never that it was too strict — it was that it was arbitrary and favored the connected. Celebrities such as Steven Seagal and Joan Rivers were issued licenses, but ordinary New Yorkers long found it nearly impossible to get one. This wasn’t a matter of responsible gun ownership — asked in 2003 about the concealed-carry permit he had secured during his mayoral candidacy four decades earlier, William F. Buckley Jr. replied: “I have my pistol permit in my wallet, and no one knows where the gun is.”

And here is our words echoed back to us:

The license-holders are not the problem. The criminals are.

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Reading media reports is driving me crazy. We’ve got democrats introducing new gun control everyday. We’ve got bad guys winning 2A cases.

We’ve got inflation going through the roof and our government taking victory laps because it isn’t as bad as it was last month.

Nothing but clowns and jokers everywhere you look in DC.

And as recorded:

B.L.A.B. Bottom Line At Bottom

In 1967 a bad dude was arrested in connection to a rape and kidnapping. He was also charged with robbery where he matched the description.

Appellant was convicted of the crime of kidnapping, Count I; and Rape, Count II; and sentenced to serve from twenty to thirty years on each count, to run concurrently. From the judgment and sentence of the court he appeals. Appellant, hereinafter called defendant, was in another information charged with the crime of robbery. After arraignment in the instant case, on motion of the county attorney, the trial on the robbery case was consolidated with the instant case, but thereafter one day prior to the trial of this case separate trials were granted. Defendant was tried and convicted on the robbery charge, from which he is also appealing in the companion case…

Here is the court’s description of the case:

The facts, as they relate to the defense as charged under Counts I and II in the instant case are as follows: On March 3, 1963, the complaining witness a girl eighteen years of age had been working in the concession stand at the Paramount Theatre in downtown Phoenix, and had taken the bus to 7th Street and Marlette. After getting off the bus, she had started to walk toward her home. She observed a car, which afterwards proved to be defendant’s, which had been parked behind the ballet school on Marlette. The car pulled out of the lot, and came so close to her that she had to jump back to prevent being hit. It then parked across from some apartments in the same block. Defendant then left his car, walked toward her, and grabbed her. He told her not to scream, that he would not hurt her. He held her hands behind her back, put a hand over her mouth, and pulled her toward the car. He put her in the back seat, tied her hands and feet, and put a sharp thing to her neck and said to her “Feel this.” She stated it all happened so suddenly that she did not have time to do anything. Defendant was unknown to the complaining witness. She had not seen him before, and he was not related to her in any way.

He then drove the car for about twenty minutes, during which time complaining witness was lying in the back seat crying. When defendant stopped the car, he came to the back seat, and untied her hands and feet. He told her to pull off her clothes. She said “no,” whereupon he started to remove them. She tried to push away from him, but he proceeded to remove her clothing. And, then, after one unsuccessful attempt, made a successful sexual penetration, while she pushed with her hands and was screaming. She testified:
*22 “I was pushing against him with my hands. I kept screaming, I was trying to get away but he was a lot stronger than I was, and I couldn’t do anything.”

He then drove her to 12th Street and Rose Lane, during which time she dressed. She ran home, and told her family, who called the police. Her sister testified that the complaining witness came home that morning crying and looking as if she had been in a fight. On March 13, 1963, defendant was apprehended by the police. The officers who picked him up both testified that he was put into the “line-up” and was identified by complaining witness. Thereafter he confessed that he had forced complaining witness into his car, drove away with her, and raped her. After these statements he signed a statement, partly typed and partly in his own handwriting, which was substantially to the same effect as the testimony of the officers. Defendant offered no evidence in his defense at the trial of his case.

So there you have it. Open and shut case. Dude stalked this girl, grabbed her off the street, forced her into his car, threatened her with a knife, then raped her. He then drove off with her and later released her.

When the cops arrested him, he confessed. At his trial he offered no evidence in his defense.

He was guilt, the judge knew it, the jury knew it. He was found guilty and sentenced to 20 to 30 years.

At the same time he confessed to the robbery but didn’t sign a written confession. He was found guilty of the robbery as well and sentenced to 20 to 30 years.

The law at work.

This court appointed lawyer, at trial claimed that his client was to ignorant to knew he had rights under the constitution. That he just talked to the cops and then signed his confession. Because he didn’t have his lawyer present, his confession should not be admitted.

The court disagreed and the confession was entered into evidence.

After he was found guilty, he appealed to the Arizona Supreme court.

Defendant contends that admission into evidence of his written confession was error for the reason that he did not have an attorney at the time the statement was made and signed. The police officers Young and Cooley testified to oral statements made to them before the signing of the written confession. Their testimony was substantially the same. They first saw defendant at his home at 2525 West Maricopa on March 13, 1963, when they went there for the purpose of investigating a rape. They took defendant to the police station and placed him in a “line-up” with “four other Mexican males, all approximately the same age and height, build,” and brought in the complaining witness who identified him as the one who had perpetrated the acts against her. Then they immediately interrogated him. They advised him of his rights. They testified that he made the statement of his own free will; and that there were no threats, or use of force and coercion, or promises of immunity; that they had informed him of his legal rights and that any statement he made might be used against him.

Having weighed all of the arguments and evidence, the Arizona Supreme Court affirmed the conviction in the rape case.

Justice is served, a bad dude is in prison for 20-30 years. A raped woman gets to face the animal and help send him to prison.

Unfortunately, this scumbag wasn’t done abusing the court system. He appealed to the Supreme Court of the United States. His claim was that since he didn’t have his lawyer present when he gave his confession that it shouldn’t have been admitted into evidence at trial.

The Supreme Court combined his case with others and in 1966 issued their opinion.

Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

Bottom Line At Bottom

This is the famous Miranda v. Arizona case. The Supreme court case that lead to “Miranda Warnings”. This is good case law. Unfortunately it meant that Miranda’s conviction was overturned. He was retried with his confession not being admitted into evidence. He as found guilty again and sentenced to 20-30 years. His robbery conviction was not overturned.

A good outcome in the end, both for Case Law and for society by putting this animal away for decades.

State of Arizona v. Ernest Arthur Miranda, 98 Ariz 18(1965) No. 1394

Miranda v. Arizona, 384 US 436 – Supreme Court 1966

B.L.U.F. If the case at hand is an outlier or the people involved are particularly sympathetic, the case law created in the case isn’t going to be very good.

Consider an EMT with a long history of service to his nation and his community. He finds a woman that he likes and starts a relationship with them. After a short(ish) period of time he discovers that his GF is toxic any many many ways so the tells her to go.

He makes every effort to make that separation as painless as possible. Bending over backwards, loaning her a vehicle, all sorts of things.

After months of separation she gets a bug in her ear and goes psycho ex. She goes to the judge and says that our EMT is stalking her. That she is afraid of him because he is one of those right-wing gun nuts. The judge listens to all of this testimony with nobody to stand up for our EMT.

The judge decides to grant a TRO with the right markers on it. Our EMT just became a prohibited person. Shortly thereafter the cops show up at our EMT’s home and tell him he has to hand over his weapons or dispose of them. Lucky for him he has that sort of friend you call when you need a backhoe and “we’ll never speak of this again” sort of friend.

Friend shows up and EMT sells all his firearms to his friend for a token amount.

Our EMT now enters a long legal battle to get his rights back.

Our EMT has cops and people in the community to testify to his virtue. He has proof he was out of town when psycho-ex claims she saw him, he has documentation that he was helping her get on her feet after the broke up. He has everything he needs to prove his innocence once he gets in front of the judge.

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This is a “hard case”. Our EMT is exactly the sort of person that we want. He is a good person. Yet that TRO has striped him of his rights. He files a lawsuit against 18 USC § 922(g)(8) saying that it is unconstitutional when evaluated in regards to Bruen. The court agrees and rules that §922(g)(8) is unconstitutional.

And then the reason why this is bad (case) law. Did the judgement happen because our EMT is a good and virtuous person who was abused by the system? Or did it happen because the law is bad.

No matter what the actual reason, no matter how good the opinion, there will be many people that will question if this is “good case law”.

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Now let’s consider a different person. We’ve got a guy that was arrested for shooting at people, he has a TRO on him because he beat the stuffing out of his girl friend and baby maker, he has had multiple run ins with law enforcement yet has never been convicted, he is not a felon.

When the cops arrest him they charge him with all the shooting he did. They find he is in possession of a firearm and that he has as TRO against him, so they stack a firearms charge on top of all the rest.

He files a case to have the firearms charge dropped because 18 USC §922(g)(8) is unconstitutional.

The court finds that §922(g)(8) is unconstitutional. Nobody things they did this because they had any real sympathy for the guy.

He deserves to spend time behind bars. He is a danger to himself and others and he committed multiple crimes.

That doesn’t change the undisputed fact that he is part of “the people” that are protected by our Constitution as amended by the Bill of Rights. The first still applies to him, as does the fourth and fifth. If those rights still apply to him, then so does the much more explicit second amendment “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”

To quote Clarence Thomas “…Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”. The second amendment is explicit and it issues an unqualified command upon our government.

Hard cases do make bad laws. I don’t like the fact that bad dudes are the center of some of the good 2A opinions that have been coming down.

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Not long enough? Ok. I really wanted the quote from Thomas including “…the Second Amendment’s ‘unqualified command.’”.

Regardless of what you think about the person, we have to judge the law based on the rule of law. Our country uses “common law” as its standard.

We have the law as passed by the people through their representatives. Those laws fit within a hierarchy. The top is our Constitution, as amended, at the bottom are the little rules, regulations, policies of your local government.

What those laws mean, how they are interpreted, is determined by the judicial system. Because we use “common law”, the decision in one court affects all other questions that are related. Since our courts are also exist in a hierarchy, we have the Supreme Court Of The United States at the top and all other inferior courts under them. The higher up the hierarchy the court is, the stronger their opinion becomes in case law.

We need good case law in support of the Second Amendment. This means that bad people are going to make Second Amendment claims in their defence. We can still want those bad people to be convicted, but of the bad things they did. We need the case law that comes out of these cases strengthening the courts interpretation of the Second Amendment.

For those that say that we can just have judges issue TRO’s that prohibit possession of firearms, that is not going to fly, long term. Where in the constitution does it say that a Judge can remove your right to free speech, freedom of religion, the right to petition your government, your right to be secure in your person and papers? It isn’t there.

There are very few situations where your rights can be removed.

We want good Case Law.

I am known for long rambling written communications. I’m old enough that I was taught to present my facts, my argument first, then once those have been accepted, I present my conclusions, based on those facts and arguments.

This was the standard method for many many years.

Unfortunately this leads to “Burying the lead” where you don’t get to the point of a written communication until you have waded through all the gunk you don’t really care about. Or you lose your audience before you get to your primary point.

In order to combat this, we started using “abstracts”. An abstract is suppose to be a condensed statement of what the communication will communicate. These can be a paragraph or they can be a page. The longer they are, the less useful they become.

Back when secretaries were a thing, it wasn’t uncommon for an executive to ask their secretary for an “executive summary”. The person so charged would read the entire thing and then present a condensed statement of the paper. Sometimes as short as a sentence.

Now consider a military situation. You are the commanding officer, a junior officer from intelligence comes running in, out of breath. They start explaining that they have this indicator, that indicator, this observation, that observation. Finally after 15 minutes of explaining all the facts they say “From this I expect the enemy to be attacking from the north east via the river valley,” pauses to look at his watch, “in about 10 minutes”.

Now consider the B.L.U.F. methodology,”Colonel, we have strong indicators that the enemy will be attacking in about 25-30 minutes from the north east via the river valley.” Before launching into how they reached that conclusion. The Col. might just interrupt them to send out an alert, maybe saving lives.

I was introduced to B.L.U.F. when I was doing work for the DoD. It is not my default methodology. In one of our Friday Feedbacks it was mentioned that it would be nice if there was something at the start that would let them know if they actually wanted to wade through my long posts.

The “cool kids” version of B.L.U.F. is “TL;DR” which means “Too Long; Didn’t Read”. I don’t like that style because it assumes that the person is to lazy to actually read something.

I’ve started writing articles for one of my clients. My articles run 1500 to 3000 words. (yeah, that long). All their other contributors submit articles that run around 500 words. They actually have guidelines that say “At least 500 words”. For me, they ask that I either let them break my article across multiple postings or that I do it for them.

I’ve never sent a single tweet. How can I even form a thought when I’m limited to 140 characters?

So you get BLUF now when I remember, which is most of the time.

In the United States District Court for the Western District of Oklahoma a District judge has ruled that 18 U.S.C. § 922(g)(3) is unconstitutional. If you read A strike against the GCA of 1968 as amended – UPDATED you can read all of § 922(g).

In CR-22-00328-PRW United States of America v. Jared Michael Harrison the district court granted Harrison’s motion to dismiss his indictment.

On May 20, 2022, Harrison was pulled over by an officer of the Lawton Police Department for failing to stop at a red light. When Harrison rolled down his window to speak to the officer, the officer smelled marijuana and questioned Harrison about the source of the smell. Harrison told the officer that he was on his way to work at a medical marijuana dispensary, but that he did not have a state-issued medical-marijuana card.

Harrison is also “known to law enforcement”. At the time of his arrest he was on probation from Texas for aggravated assault.

Because he was wearing an ankle monitor, the cops search the car, found marijuana and “loaded revolver on the driver’s side floorboard”.

The cops arrested him for the pot. About 2 months later a federal grand jury returned an indictment charging Harrison of being in possession of a firearm “with the knowledge that he was an unlawful user of marijuana”.

This indictment came post Bruen which means that any good lawyer facing a weapons charge is going to be looking at the second amendment as a defense.

The defense through “unconstitutionally vague”, “violation of Due Process”, and infringement of his right to possess a firearm, contrary to the guarantee of the second amendment.

The argument of the government was that the second amendment doesn’t apply to Harrison because he is not “a law-abiding citizen” and is “unvirtuous”.

When we look at these cases, we need to pay attention to the how of the government’s argument on why they should be allowed to infringe. For years it was “you aren’t part of the militia, the second amendment doesn’t apply to you.” After Heller it was means-end balancing which said that while the law was infringing, the law was narrowly tailored and in support of a good goal.

Post Bruen the government has been arguing that limiting locations isn’t an actual infringement, that certain weapons are to dangerous to allow the people to possess, that requiring “good moral character” is not an infringement.

In defense of §922(g) they are now arguing that they don’t have to follow Bruen and defend the law on the basis of Text, History and Tradition because this class of person is not part of “The People” because they are not virtuous.

If this argument were to prevail, you can bet that we will see more and more laws passed requiring people to prove they are virtuous and of the different levels of the government passing laws defining actions, traits, or opinions as proof that someone is “unvirtuous”. All of which is bad.

Oh, interesting side note, the GCA of 1968 prohibited a prohibited person from receiving a firearm. In other words, an FFL couldn’t sell to a prohibited person nor could you transfer a firearm to somebody that you knew to be a prohibited person. If that person already possessed firearms, they could continue to possess those firearms.

It was only when § 922(g) was amended in 1986 was the GCA changed to prohibit the possession of a firearm by a prohibited person.

It is pretty clear from this sort of verbiage that in 1968 congress knew that trying to ban somebody from possessing a firearm would be found unconstitutional. Instead they used the interstate commerce clause to justify banning the transfer of firearms to a prohibited person.

On this point, the United States points to Bruen’s description of the plaintiffs in that case as “ordinary, law-abiding, and adult citizens.” Bruen, 142 S. Ct. at 2134. But that description can’t be read as breaking new ground with respect to who make up “the people” protected by the Second Amendment. First, Bruen noted that it was undisputed that the plaintiffs in that case were part of the people protected by the Second Amendment, so at best, the United States is relying on dicta. But even so, the United States is reading too much into the dicta because immediately after describing the plaintiffs, the Bruen Court cited Heller’s holding that “the people” includes “all members of the political community,” not just “an unspecified subset.” Id. (citing Heller, 554 U.S. at 580). Thus, this reference in dicta to “law-abiding citizens” cannot possibly be read as overturning the very holding upon which it relies. See Denezpi v. United States, 142 S. Ct. 1838, 1847–48 (2022) (explaining that stray statements “[r]ead in isolation …. cannot overcome the holdings of our cases, not to mention the text of the Clause”).

This footnote (20) in the opinion is devastating to the gun grabbers normal attack vectors. Historically the gun grabbers have latched onto stray language within an opinion and made that the linchpin of their method of attacking.

In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
— United States v. Miller, 307 US 174 – Supreme Court 1939

In this paragraph the court states that the short barreled shotgun had no reasonable relationship to a “well regulated militia”. The gun grabbers used that “stray language” to argue, successfully, that the court actually meant that the entire second amendment only applied to a well regulated militia.

The gun grabbers still make this argument, IIRC, The Hill had an article claiming that the supreme court ignored those three words, “well regulated militia” when they gave their Bruen decision.

This opinion talks about how the first, fourth, and fifth amendment all apply to “the people” and not to just those that are law-abiding.

Prosecutor: Didn’t you kill your wife?
Defendant, on the stand: I take the fifth.
Prosecutor: You are not law-abiding, the fifth doesn’t apply to you!

In this particular case, it feels like the government hung their entire argument on flipping the tables and making Harrison outside of the class of people covered by the second amendment. Because this was their argument and because there really isn’t any historical tradition of banning the possession of firearms by people that were unvirtuous, the government failed as soon as this district court said “the people means all the people.”

Historically we know that drunkards and ne’er do wells were often armed.

The government did give seven different laws that they felt were representative of §922(g)(3). One from 1655 (misses target date by 136 years), and six from 1868-1899, which misses in the other direction by 70 to 100 years. And the Supreme Court specifically stated that laws from the postantiballum time frame could only be used to affirm restrictions from the 1790 period.

Where the seven laws the United States identifies took a scalpel to the right of armed self-defense—narrowly carving out exceptions but leaving most of the right in place—§ 922(g)(3) takes a sledgehammer to the right. Recall that § 922(g)(3) imposes the most severe burden possible: a total prohibition on possessing any firearm, in any place, for any use, in any circumstance—regardless of whether the person is actually intoxicated or under the influence of a controlled substance. It is a complete deprivation of the core right to possess a firearm for self-defense, turning entirely on the fact that an individual is a user of marijuana. Section 922(g)(3)’s “burden on the right of armed self-defense” is thus not “comparable” to the seven historical intoxication laws.

There are so many more great quotes in this opinion, it is worth reading just for the chuckles.

Paraphrase: When the government was asked if the congress could make mowing your lawn a felony and then make all of the new felons prohibited persons, the government responded “yes” Why? Because courts must defer to a legislature’s judgements about what is and is not a felony…

…It’s as if Bruen’s command regarding the inappropriateness of such deference to legislative judgments has been lost in translation. In a sense, one must applaud the United States for its steadfast commitment to its legal position. But “giv[ing] legislatures unreviewable power to manipulate the Second Amendment by choosing a label” is inconsistent with the entire point of constitutionalizing a fundamental right in the first place: to restrain a legislature’s ability to infringe that right through legislation. What would remain of the Second Amendment if the Court were to accept the United States’ view that a legislature could prohibit the exercise of the right it protects simply by declaring anything or everything a felony? Nothing. Maybe that is what the federal government desires, but it is hardly what the Constitution requires.

The government is going to have to decide if they want to appeal this case. Right now this is just a district court’s opinion. It has no official sway in other cases. Other courts in the Tenth Circuit might quote this judge in the future but it does not have the same gravatas as if a Circuit Court had issued the opinion.

The government might just take the loss and move on. It looks like Harrison is going to be jammed up for a bunch of other reasons even without the gun charge.

If the government does decide to appeal, we might find another Circuit court ruling that parts of §922(g) is unconstitutional.

If enough of §922(g) is found unconstitutional this might be the death neal of “background checks.” Or maybe just 4473s. You want to buy a firearm? Hand your official ID over to the FFL, they call it in and ask “Are they prohibited?” No record keeping no muss, no fuss.

We live in exciting times.

B.L.U.F. — Parts of the GCA of 1964 have been found unconstitutional

7. 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—
      1. is illegally or unlawfully in the United States; or
      2. 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—
      1. was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
      2. 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
      3. 1. includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
         2. 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,

   to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

This is where the questions on the 4473 come from. This is part of 18 U.S. Code § 922 – Unlawful acts.

Zackey Rahimi is not a good person. He seems to be a pretty nasty piece of work from his pre-sentencing report. Regardless, he challenged his conviction as a prohibited person in possession of a firearm on constitutional grounds.

Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas.1 On December 1, after selling narcotics to an individual, he fired multiple shots into that individual’s residence. The following day, Rahimi was involved in a car accident. He exited his vehicle, shot at the other driver, and fled the scene. He returned
to the scene in a different vehicle and shot at the other driver’s car. On December 22, Rahimi shot at a constable’s vehicle. On January 7, Rahimi fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant.

Officers in the Arlington Police Department identified Rahimi as a suspect in the shootings and obtained a warrant to search his home. Officers executed the warrant and found a rifle and a pistol. Rahimi admitted that he possessed the firearms. He also admitted that he was subject to an agreed civil protective order entered February 5, 2020, by a Texas state court after Rahimi’s alleged assault of his ex-girlfriend. The protective order restrained him from harassing, stalking, or threatening his ex-girlfriend and their child. The order also expressly prohibited Rahimi from possessing a firearm.

A federal grand jury indicted Rahimi for possessing a firearm while under a domestic violence restraining order.

Rahimi claimed that 922(g)(8) was unconstitutional. The district court disagreed and found him guilty. Rahimi then appealed and the fifth circuit upheld his conviction.

After Bruen the fifth circuit court withdrew its opinion and ordered this case back with supplemental briefings and to expedite the case for oral arguments.

In the original appeal the government argued that United States v. Emerson, 270 F.3rd 203 (5th Cir. 2001) had already argued the constitutionality of 922(g)(8). In 2001 the fifth circuit applied a means-end scrutiny (not documented) and determined that 922(g)(8) was narrowly tailored to the goal of minimizing the threat of lawless violence.

Because the law was “narrowly tailored” and had an acceptable goal, the circuit court “balanced” Emerson’s rights away.

Bruen says that means-end is unacceptable when analyzing second amendment cases.

On February 2nd, 2023 the Fifth Circuit court of appeals issued this opinion on United States of America v. Zackey Rahimi

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.

This is another brick. The wall of gun control laws is being dismantled. Mr. Gun Control, tear down the wall!

And he isn’t going to be given a choice.

So far, the biggest loss we’ve suffered is in the second circuit where they have issued saysstays against injunctions against the CCIA.

A huge difference from even a few years ago.

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Update: Changed it from GCA of 1964 to GCA of 1968

21-11001 5th Cir Court of Appeals, USA v Rahimi