• Add your comments down below, thank you!

            

  • Back in December 2022, I posted NY CCIA challenge at SCOTUS. The GOA challenged the Second Circuit Court’s stay regarding an injunction from Judge Suddaby.

    Judge Suddaby enjoined the state from enforcing parts of the CCIA. The state ran to the Second Circuit Court, which heard the request for an emergency stay on an expedited schedule. Of course, the Second Circuit issued the stay.

    The stay was just a single sentence, it was not particularly enlightening as to why the stay was granted.

    GOA then took the stay to SCOTUS, alleging that the Second Circuit Court had not given them anything to argue and requesting that SCOTUS vacate the Second Circuit Court’s stay. Justice Sotoymyer did something that shocked me. She told the state to file an argument with her within the week, over Christmas.

    In early January, SCOTUS denied overturning the stay, but in an unusual turn of events, Justice Alito(?) and Justice Thomas issued a concurring opinion. In that opinion, they said that the reason they believed the court denied the motion was for procedural reasons.

    In the state’s filings, they claimed that the case was on an expedited schedule for the appeal to be heard. This was false. Only the request for the stay was expedited. Alito and Thomas said that if the Second Circuit Court didn’t hear the case and provide good justification for the stay, that GOA should come back to SCOTUS.

    This put the Second Circuit Court on notice that they could not just let the case sit there for an extended length of time. Oral arguments were heard by the Second Circuit Court on March 20th, 2023.

    We are waiting for the results of that hearing.

    GOOD NEWS

    Over in the Seventh Circuit Court, they are hearing Robert Bevis v. City of Naperville, 23-1353, (7th Cir.) which is the City of Naperville’s AWB/LCM ban.

    The Seventh Circuit denied the plaintiffs (good guys) Motion for Injunction Pending Appeal Mot. for Inj. Pending Appeal, Robert Bevis v. City of Naperville, No. 23-1353 (7th Cir. Mar. 7, 2023), ECF No. 8.

    Following in the steps of the Second Circuit Court, their order is well-thought-out and extensive:

    IT IS ORDERED that the motion for an injunction pending appeal is DENIED.
    — Order Robert Bevis v. City of Naperville, No. 23-1353 (7th Cir. Mar. 7, 2023), ECF No. 51

    Unhappy with this result, the National Association for Gun Rights; Robert C. Bevis; and Law Weapons, Inc. filed an Emergency Application for Injunction Pending Appellate Review.

    They are asking the Supreme Court to grant an injunction pending the Seventh Circuit Court issuing an opinion on the appeal.

    And here is the great news:

    Response to application (22A948) requested by Justice Barrett, due May 8, 2023, by noon (EDT).
    — National Association for Gun Rights, et al., Applicants v. City of Naperville, Illinois, et al., No. 22-451 (SCOTUS May 1, 2023)

    The Supreme Court is watching these gun control cases moving forward. Maybe this is a chance for them to tell the inferior courts to “do the right thing”.

            

  • In Chevron v. Natural Resources Defense Council I discussed a little about Chevron deference. This is the case law that allows the federal government to say “We are the experts, our interpretation of the law is always correct.”

    I am not qualified to know whether the original decision was a good decision or not, I believe it was not. Regardless, it has been abused for decades at this point.

    Today, the Supreme Court granted certiorari in Loper Bright Enterprises, Inc v. Gina Raimondo, 21-5166 (D.C. Cir. 2022). This case has nothing to do with the Second Amendment directly, but it holds a great deal of potential for reigning in the ATF and other federal agencies.

    The gist of the case is that congress passed the Magnuson-Stevens Act (MSA) in 1976. The MSA extended the regulatory reach of the “National Marine Fisheries Service”. It was passed to to conserve and manage the fishery resources…of the United States — 16 U.S.C. § 1801 (b)(1).

    This is the law that is designed to stop overfishing of territorial waters of the US.

    In September 2018, the NMFS submitted the Omnibus Amendment to the Service. This opened a commenting period. The commenting period ended and the Omnibus Amendment to the Service was approved. The Final Rule was published in February 2020.

    Sort of like the ATF did bump stocks and pistol braces. They publish the proposed rule. Open for comments, then do whatever they wanted to do in the first place.

    At issue in the Omnibus Amendment is that the NMFS decided that they were going to make the fishing boats pay to have an inspector on board and to force the fishing boats to accept an inspector. Space is at a premium aboard ships, so having a deadhead onboard worsens it for everyone. In addition, the government man isn’t actually doing any work. All he does is run his clipboard looking for ways to ding the boat.

    This inspector is paid a percentage of the value of the catch.

    In other words, the government gets to force a fishing boat to take an inspector onboard and the fishing boat has the pleasure of paying that inspector to eat their food, take up space, and in general to be a government busybody.

    The Question

    (more…)

            

  • I’ve been listening for songs with a connection to firearms. I’ve noticed that there are far too many songs that imply that somebody is going to get shot for disrespecting somebody else.

            

  •  

    I was up far too late for yesterday’s post, around 0200. Which was better than the night before when I was up until 0330 getting that post out.

    The following links will contain some older news articles, mostly because I’ve not had a link dump in a while. Hopefully, something interesting in the dump

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  • B.L.U.F. I need another image with a cheerleader for courts that get it right. After fighting my way through the monstrosity from yesterday, this Memorandum and Order is great news for the Second Amendment community. This is (hopefully?) a short article, I might write something longer about our win in the future.

    My wife read yesterday’s article and was upset about the Court’s opinion Herrera v. Raoul Illinois AWB/LCM ban. Later in the day, I was watching Guns and Gadgets on YouTube talking about Barnett v Raoul and she got the cases mixed up. Understandable.

    What I told her was that in Barnett v. Raoul the state was going to appeal, and it would make its way to the Seventh Circuit court. I predict that all of these cases from the district level will be consolidated. This case is already a consolidation of four cases.

    I was right. The stated did file for an appeal the same day the order came down and has also filed a motion for this Court to stay the injunction pending appeal.

    The state argues that since this court didn’t go along with the other court’s opinion, that this court should stay its injunction. “For consistency”, don’t you know. The state is also claiming that since the Seventh Circuit did not choose to grant a preliminary injunction in those other cases, this court is going against the wishes of the Seventh Circuit.

    I hope that his court stands its ground and makes the state get an injunction from the Circuit Court of Appeals.

    The question

    Are assault weapons band and large capacity magazine bans constitutional?

    Conclusion

    No.

    Ok, maybe a bit more

    Definition of Protected Arm under The Second Amendment

    (more…)

            

  • The Judge Said What?

    B.L.U.F. The Court found that the country has a history and tradition from pre-founding through the modern day of banning dangerous weapons.

    The plaintiffs (good guys) have requested a Temporary and Preliminary Injunction to enjoy the state from enforcing the Illinois assault weapon ban as well as the large capacity magazine bans. This is a Second Amendment Challenge

    The Court’s statement regarding the factual background

    The factual background is whatever the Court decides it is. This is part of the task of a Judge. They decide what the facts of the case are when there is no jury involved. We can learn significant information about the leaning of the Court just from their statement of facts.

    In response to widespread mass shootings nationally, including the mass shooting in Highland Park, Illinois on July 4, 2022, the State of Illinois passed the “Protect Illinois Communities Act,” HB 5471 (“the Illinois Act”). Ill. Pub. Act 102-1116, § 1; …
    — Herrera v. Raoul, in his official capacity as Attorney General for the State of Illinois, 1:23-cv-00532, (N.D. Ill. Apr 25, 2023) ECF No. 75

    Here the Court gives its first glimpse of their bias via the implied facts. “[W]idespread mass shootings nationally” is certainly a loaded phrase. It has the implied fact that there are widespread mass shootings. A fact that is not in evidence.

    They move on to give a pretty standard definition of “assault weapon” to include many semi-automatic rifles. It is important to note that this is a ban on possessing an assault weapon as well. The exception being that you have to register the firearm with an “endorsement affidavit”. The same affidavit is required for all LCMs.

    The court points out that the new ban is no big deal because the county and city have had bans since 2006 and 2013. No big deal to have the state do it too.

    The Question

    Is the plaintiff’s right to self-defense threatened by his inability to keep his rifle and pistol and magazines in his home?
    Is the “endorsement affidavit” a forced registration, threatening his right to keep and bear arms?

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  • This has been an interesting week for me. I’m working on a project where I’m being required to do much more frontend work than I normally do. This required me to actually learn Bootstrap’s grid system. It is astonishing how much I learn when I read the code instead of just reading the documentation.

    Another part of this was learning about citations and what they mean. This became critical when reading Judge Lindsay Jenkins’ Memorandum Opinion and Order regarding the Illinois AWB + LCM ban.

    Consider the following: “561 U.S. 742, 767 (2010)”. This is an official reference to McDonald. “561” is volume 561 of U.S. which is “United States Reports”. The same case can be referenced via the “S.Ct.” reporter, which is “Supreme Court Reporter”. And finally, there is “L.Ed.” and “L.Ed.2d) which is the “United States Supreme Court Reports, Lawyers’ Edition”.

    The next number, in our example “742”, is the page number in the printed reference. The “767” after that is the page from which this particular quotation was taken.

    Here is the quote of interest to me:

    In that vein, the Court noted that “[f]rom the early days of the Republic, through the Reconstruction era, to the present day, States and municipalities … banned altogether the possession of especially dangerous weapons.” Id. at 899–900.
    — Herrera v. Raoul, Memorandum Opinion and Order, (2023) ECF No. 75

    Id. is Latin for “idem” meaning “the same”. In citations, it means the same citation just used. This means I have to find the correct citation. This particular Judge is good with his citations. Whereas most people put the citation immediately after the quotation, this Judge puts them close. He mentions McDonald v. City of Chicago and a line later he gives the citation.

    This reference is to pages 899 through 900. Somewhere on those two pages of the printed reporter will be the quote he is citing.

    Now I don’t remember anything in Heller, McDonald, or Bruen that said that there was a history or tradition of banning the possession of especially dangerous weapons. The judge quoted them; therefore it must be there. Maybe he pulled it out of context?

    The text of the McDonald opinion is available from multiple sources. What isn’t available from most of those sources is a version with the page numbers as used in the cited reporter.

    After a bit of looking, I found it at the Library of Congress. I verified it was the correct version because it starts at page 742. Time to find his quote.

    Oh shit, there it is:

    From the early days of the Republic, through the Reconstruction era, to the present day, States and municipalities have placed extensive licensing requirements on firearm acquisition, restricted the public carriage of weapons, and banned altogether the possession of especially dangerous weapons, including handguns. See Heller, 554 U. S., at 683–687 (Breyer, J., dissenting) (reviewing colonial laws); Cornell & DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Ford. L. Rev. 487, 502–516 (2004) (reviewing pre-Civil War laws); Brief for Thirty-four Professional Historians and Legal Historians as Amici Curiae 4–22 (reviewing Reconstruction-era laws); Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 711–712, 716–726 (2007) (reviewing 20th-century laws); see generally post, at 931–941. After the 1860’s just as before, the state courts almost uniformly upheld these measures: Apart from making clear that all regulations had to be constructed and applied in a nondiscriminatory manner, the Fourteenth Amendment hardly made a dent. And let us not forget that this Court did not recognize any non-militia-related interests under the Second Amendment until two Terms ago, in Heller. Petitioners do not dispute the city of Chicago’s observation that “[n]o other substantive Bill of Rights protection has been regulated nearly as intrusively” as the right to keep and bear arms. Municipal Respondents’ Brief 25.
    — McDonald v. Chicago, 561 U.S. 742 (2010) at 899-900

    That is pretty damning language. Why didn’t I know about this?

    Oh, here it is, “Stevens, J., dissenting”. Yes, that is Associate Justice Stevens in his dissent to McDonald making this statement. When he quotes back to Heller you have to be cautious because he will often cite back to his own dissent.

    In conclusion, this judge decided to justify his acceptance of “historical record” of firearms regulations because the loosing side in McDonald thought, incorrectly, that there were such historical regulations.

    On the fun front, a Henry Golden Boy in .22 followed me home. She is very sweet. I need to do a bit more hole punching to get it fully zeroed, that’s just fun.

    I hope you all have a great weekend.

    Did any of you listen to the Mean Mary music from Tuesday? Should I be looking for different types of music for you’ll?

            

  • Matt Driscoll, over at The News Tribune out of Tacoma, Washington, has an opinion.

    The reason you are angry about an emergency bill that bans most/all semi-automatic rifles in the state of Washington is because you are selfish.

    On Tuesday morning, less than 48 hours after the close of the 2023 legislative session, reason and decency prevailed in Washington — at least for one shining moment.
    — Matt

    There you have it, reason and decency prevailed when the legislature passed and the Governor signed into law a bill that strips you of your Second Amendment protected rights. Of course, he has to mislead by saying more than 50 assault-style weapons were banned.

    First, the ban lists not just firearms by name, but entire classes of weapons. It doesn’t ban the Colt AR-15, instead it bans AR15, M16, or M4 in all forms — Washington State, 1240-S. In addition, it also bans by feature, some of those features are:

    • semi-automatic rifle with an overall length of less than 30 inches
    • “Assault weapon” conversion kits, part, or combination of parts
    • A semi-automatic center fire rifle that accepts a detachable magazine and has one or more of the following:
      • Pistol grip
      • Thumbhole stock
      • Folding or telescoping stock
      • Forward grip
      • Any sort of muzzle device
      • thread barrel
      • Grenade or flare launcher
      • A barrel shroud unless it on a fudd gun
    • A semi-automatic rifle that has a fixed magazine that accepts more than 10 rounds
    • And more!!! Including pistols

    This bans almost all modern semi-automatic rifles. It seems to be even worse when it comes to pistols. Their definition of a “shroud” would include most slides. If your semi-auto, center fire pistol, takes a detachable magazine, it is an assault weapon under Washington State law.

    Matt says this is reason and decency in action.

    But you know what? Forget about our fractured politics for a moment and, instead, consider what Washington’s newest gun law will actually do. Just as important, contemplate the little it asks of citizens in return.
    — Matt

    You are giving up so little for what this law will actually do. Let’s see what Matt thinks this law will do.

    Umm, nothing. He doesn’t actually say what he thinks this law will do.

    There’s just a litmus test: Either you believe your perceived individual freedoms outweigh the overall safety of society and our children, or you don’t. It’s that simple.
    — Id.
    It’s amid this backdrop that opponents of Washington’s ban on assault weapons trot out the same tired arguments in response. Guns don’t kill people, they contend, people do — and besides, the only ones likely to be affected by any new gun regulation are law-abiding citizens. Criminals are criminals, after all, and no new regulation or restriction will solve all our problems. If someone has the will to kill, they can find a way to do it, no matter their weapon of choice.
    — Id.

    Don’t miss this little gem, that one that every gun infringer puts out there, the “it is just a start”. There’s also little question that reducing gun deaths in America will take more than new regulations… — Matt

    But there’s also what the research and common sense tell us, and juxtaposed with the me-first objections from the right, what the contrast reveals about the battling priorities at stake in our national gun debate shouldn’t get lost in the noise.
    — Id.

    You have a politicized cultural gun fetish. I promise you that it is not a gun fetish, at least mine isn’t.

    It’s a declaration that the health and safety of all of us are more important than someone’s selfish right to do whatever they want, regardless of the societal toll.
    — Id.

    And he closes with standards, he gets to define what “the right to keep and bear arms.” means. Besides, it is just a small price to pay for you to give up some of your rights.

    Washington assault weapon ban about more than gun rights

            


  • B.L.U.F. Why the Sixth Circuit Court found that the bump stock ban is not constitutional.

    This was not a Second Amendment challenge to the rule. Instead, it was an Article I, Section 1 challenge.

    All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
    — Constitution of the United States of America

    The ATF is not a part of the Congress, but is instead a part of the Executive branch. The Executive branch is charged with enforcing laws, not in creating laws.

    Given this challenge, Bruen plays no part in the decision except that it indicates that the Supreme Court is serious about Second Amendment protected rights.

    The Question

    Is the ATF’s interpretation of 18 U.S.C § 922(o)(1) which incorporates 26 U.S.C. § 5845(b) Constitutional?

    § 922 is the Gun Control Act. This is where it says it shall be unlawful for any person to transfer or possess a machinegun. — §922(o)(1). That definition of a machinegun is what is at issue:

    The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
    — 26 U.S.C. §5845(b) NFA

    Is it a machinegun?

    (more…)