It has been a freaking long day. This yesterday’s post took a bit out of me. Lots of reading things that made me angry and “wtf? Can’t you read simple English?” and “If your cause is so just, why do you have to lie?”

The Third Circuit court heard oral arguments today regarding §922(g) in regards to a non-violent felon. I’ll try and find the transcripts in a couple of days when it is posted.

In the meantime, I don’t want to write so I leave you with some pictures of a Winchester model ’94. I’ll be taking more pictures later.

(more…)

B.L.U.F. California lies by omission and misrepresentation in their claims as well as ignoring the Supreme Courts actual opinions.

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California’s restrictions on manufacture, importation, sale, and possession of large-capacity magazines (“LCMs”)—firearm magazines capable of holding more than ten rounds of ammunition—fully comport with the Second Amendment.1 The surveys of relevant historical laws submitted in accordance with the Court’s December 15 Order only reinforce that conclusion. See Dkt. 139. Those surveys list hundreds of laws, ordinances, and authorities that demonstrate a robust tradition of regulating certain specified weapons deemed by the government to be uniquely dangerous to the public and susceptible to criminal misuse. In the past, state and local governments restricted concealable weapons that were contributing to rising homicide rates. Today, governments are also restricting other types of weapons and accessories, including LCMs, that are being used frequently in mass shootings and contributing to greater numbers of victims killed and injured in such shootings.

Because Bruen requires inferior courts to judge Second Amendment cases on text, history and tradition of the the Second Amendment at the time of ratification if a law is found to impinge on the unconditional command of the Second Amendment, “the right of The People to keep and bear arms shall not be infringed.” the gun grabbers have setup entire institutions to provide example laws to support infringing law.

The Supreme Court has stated that the time in question is the founding of the country. This is the time when the people deliberated and voted and ratified the Constitution and the Bill of Rights. When a gun grabber says that the Constitution does not represent the will of the people they are completely incorrect. It represents the will of the people when ratified.

To discard the unwanted parts of the constitution, or any code of laws, because it is no longer the “will of the people” is ludercrase on the face of it. No leftist would ever admit that their law dajur should be ignored just because the will of the people changed. If the will of the people has truly changed, then the left can propose an amendment and see how far it gets.

The only laws that can be used to support current gun infringements are those in place in 1791 extending to 1826. If there are laws that support current infringements in the time of the ratification of the 14th amendment, those can be used to support laws from 1791 through 1826 but not supplant them.

Laws 1-15 cover 1383 through 1788.

15: Virginia, per the words of the state “Prohibit any ‘negro or mulatto’ from possessing or carrying a gun, powder, shot, club, or other weapon”.

An Act to Reduce into one, the Several Acts Concerning Slaves, Free Negroes, and Mulattoes (1792), § 8. No negro or mulatto whatsoever shall keep or carry any gun, powder, shot, club, or other weapon whatsoever, offensive or defensive, but all and every gun, weapon, and ammunition found in the possession or custody of any negro or mulatto, may be seized by any person, and upon due proof thereof made before any Justice of the Peace of the County or Corporation where such seizure shall be, shall by his order be forfeited to the seizor for his own use ; and moreover, every such offender shall have and receive by order of such Justice, any number of lashes not exceeding thirty-nine, on his or her bare back, well laid on, for every such offense. § 9. Provided, nevertheless, That every free negro or mulatto, being a house-keeper, may be permitted to keep one gun, powder and shot; and all negroes and mulattoes, bond or free, living at any frontier plantation, may be permitted to keep and use guns, powder, shot, and weapons offensive or defensive, by license from a Justice of Peace of the County wherein such plantation lies, to be obtained upon the application of free negroes or mulattoes, or of the owners of such as are slaves.

So the leftist AG of California has as his first supporting law a law saying that anybody can steal firearms, powder, and shot from any “negro or mulatto” and then have that negro or mulatto whipped.

Even so, if a negro or mulatto was a “house-keeper” can be armed with one gun. Those living on any frontier plantation can get a permit to own from the Justice of the Peace.

So it is not even an out right ban on guns for a class of people. Still the cited law leaves a bad taste in my mind over its blatant racism.

16,17,18 are described by the AG as racist as well.

19 is described by the AG as prohibiting carrying a weapon with intent to assault a person. So it wasn’t the object but the intent plus object that was prohibited.

20 is a surety law.

21,22 are more slave laws

23 is another carry with intent.

24 prohibits concealed carry and my reference is truncated.

25 carry with intent

26 slave law.

27 is a fire regulation. The gist is that if you live in a city (town with more than 1500 inhabitants), the selectmen can pass regulations on how to store gunpowder. If there is reason to believe that the powder is not being stored correctly or there is to much of it, the city can get a warrant to search and confiscate the powder.
An Act for the prevention of damage by Fire, and the safe keeping of Gun Powder.

28-191 are all post founding era and are not supporting of gun infringements.

The only laws that the state could point to that are within the time period are slave laws, carry with intent, and storage of gunpowder. The safe storage laws for gunpowder are more in line with today’s firecodes which limit storing flammable fluids within city limits or within buildings. I.e. when I installed propane tanks we had to place them so that they would not leak into the house if they leaked. Fire code, not weapons code.

192 is the start of the second document.

192-316 are post founding and the list ends in 1933.

It appears that all of these references come from the Duke Center for Firearms Law. They were formed post Heller as an anti-2A organization when the gun grabbers realized that means-end balancing was going to fail at some point, as proven by Bruen.

The next part of the document is claims of “But we aren’t the only ones infringing! So you should let us continue to infringe!”

In New York State Rifle and Pistol Association, Inc. v. Bruen, the Supreme Court adopted a new standard “rooted in the Second Amendment’s text, as informed by history,” 142 S. Ct. 2111, 2127 (2022), but reaffirmed that the Second Amendment right is “not unlimited,” id. at 2128 (quoting District of Columbia v. Heller, 554 U.S. 570, 626 (2008)), and does not impose a “regulatory straightjacket” on government attempts to address gun violence, id. at 2133. The Second Amendment does not protect an unfettered “right to keep and carry any weapon whatsoever.” Id. at 2128 (citation omitted). Rather, the Second Amendment protects only those “weapons ‘in common use’ today for self-defense.” Id. at 2134 (citation omitted).

Quoting from Bruen the actual quote is “To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check.” The CA AG quoted two words out of 19. Those two words are followed immediately by “nor a regulatory blank check”. In other words, the AG is hoping that nobody looks at the actual cited work because when you pull quote such small sections of text you can say anything.

Under Bruen, California’s LCM restrictions, set forth in California Penal Code section 32310 (“Section 32310”), comport with the Second Amendment at both the textual and historical stages of the analysis. Plaintiffs cannot show that the manufacture, importation, sale, or possession of LCMs is conduct covered by the “plain text” of the Second Amendment. Bruen, 142 S. Ct. at 2129. But even if they can satisfy their initial burden, the Attorney General has shown that Section 32310 is “consistent with the Nation’s historical tradition of firearm [and other weapons] regulation.” Id. At 2130. Recently, two federal district courts have held that Second Amendment challenges to LCM restrictions are unlikely to succeed on the merits, based on substantially similar arguments, evidence, and historical record presented here. See Or. Firearms Fed’n, Inc. v. Brown (Oregon Firearms), __ F. Supp. 3d __, No. 2:22-cv-01815-IM, 2022 WL 17454829, at *6–14 (D. Or. Dec. 6, 2022) (denying motion for temporary restraining order), notice of appeal filed, No. 22-36011 (9th Cir. Dec. 7, 2022); Ocean State Tactical, LLC v. State of Rhode Island (Ocean State), No. 22-CV-246 JJM-PAS, 2022 WL 17721175, at *5–16 (D.R.I. Dec. 14, 2022) (denying motion for preliminary injunction). On a similar record here, this Court should uphold Section 32310 under the Second Amendment.

This is another intentional misstatement of Bruen. The plaintiffs (good guys) do not have to show that magazines are covered under the Second Amendment, the State has to show that they are not. Shifting the burden of proof is part of this game that is played.

In citing cases where other district courts declined to issue TROs, the AG fails to mention all of the cases where TROs and preliminary injunctions have been granted. Of course it is a pick and choose document, but it is highly unlikely that Judge Benitez will be snookered by this wall of text.

The AG’s argument is that the plaintiffs have not shown that magazines holding more than 10 rounds of ammunition are necessary to the use of firearms for self-defense.

“Plaintiffs have not shown, at this stage, that magazines specifically capable of accepting more than ten rounds of ammunition are necessary to the use of firearms for self-defense” is how the AG puts it. There is no requirement nor suggestion in Heller nor Bruen that an arm needs to be “necessary” for use in “self-defense”. The Supreme Court has stated that “self-defense” is a core right of the Second Amendment, not the only core right.

The requirement is only that an arm “in common use” to be a protected arm. Caetano sets the upper boundary of “common” at 200,000.

The AG argues that the plaintiffs haven’t provided expert opinion on the meaning of the word “Arms”. They don’t have too. The Supreme Court did that in Heller.

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “[w]eapons of offence, or armour of defence.” Dictionary of the English Language 106 (4th ed.) (reprinted 1978) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” A New and Complete Law Dictionary; see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, § 6, in First Laws of the State of Delaware 102, 104 (J. Cushing ed.1981 (pt. 1)); see generally State v. Duke, 42 Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (3d ed. 1794) (emphasis added).

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35-36, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), 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.

From this we see that the Supreme Court has indeed provided the “expert opinion” needed for this case.

This case is going to center on what the government can pull out of the scope of the Second Amendment. The same stupid of when people claim that since “bullets aren’t guns, so the Second Amendment doesn’t cover them. Let’s ban ammunition!”

The AG’s argument is that magazines are not in common use for self-defense. This is not the actual requirement. It is in common use. FULL STOP. The smoke detector in my bedroom hasn’t gone off in years. It is in use. I’ve never had to use any of my fire extinguishers. They are in use protecting my home. The fire insurance I have on my house hasn’t been needed, it is still in use protecting my home.

The gun on my hip is in use. Regardless of whether I ever draw it in need.

The state is attempting to set the standard for “common use” to be “shot’s fired in a self defense situation.”

As the Fourth Circuit held, LCMs are not protected by the Second Amendment because they are “like” “M-16 rifles,” “weapons that are most useful in military service,” and thus are “beyond the Second Amendment’s reach.” Kolbe v. Hogan, 849 F.3d 114, 121 (4th Cir. 2017) (en banc)

Kolbe v. Hogan is the case that the Supreme court said couldn’t be used because the decisions was made based on means-end and not text, history, and tradition.

You have to shake your head when the state of California is arguing that magazines that hold more than 10 rounds are not protected by the second amendment because they are like M-16 rifles. Note that Miller said that the Second Amendment didn’t cover Short Barrelled Shotguns because nobody told them that they were useful in military service. The quote above runs counter to Miller.

They continue the argument with “high capacity firearms” were not part of a militiaman’s loadout during the founding. Look to the quote from Heller above. High capacity computers are covered by the First and to claim otherwise is frivolous.

LCMs represent the “kind of dramatic technological change envisioned by the Bruen Court,” requiring a more nuanced approach when evaluating the constitutionality of laws regulating them. Oregon Firearms, 2022 WL 17454829, at *12. Firearms capable of firing more than 10 rounds repeatedly may have existed before and during the founding, but they were “experimental, designed for military use, rare, defective, or some combination of these features.” Id.16 LCMs and multi-shot weapons were “not common in 1791,” Friedman v. City of Highland Park, Ill., 784 F.3d 406, 410 (7th Cir. 2015), and the few multi-shot weapons that did exist were materially different from LCMs that feed ammunition into a semiautomatic firearm, contributing to a much higher effective rate of fire, see Def.’s Suppl. Br. at 28–30; Decl. of Robert Spitzer ¶¶ 18–33, Dkt. 118-9. Professor Kevin Sweeney has explained in Oregon Firearms that “repeaters had occasionally appeared on the scene” during the founding era, but they were not widely adopted at the time. Echeverria Decl., Ex. 4 ¶ 6

The test is “in common use today”. Not “in common use during the founding”. One of the interesting things that keeps happening in the brief is that the AG keeps referring to cases in progress in support of their position. Regardless, the wrong argument is being made, again.

There is an entire section in the brief to “address the unprecedented social problem of mass shootings”.

Wow, the clickbait in this section title got me “California’s Restrictions on Large-Capacity Magazines Are Consistent with Historical Laws Regulating Other Dangerous Weapons”. You would expect to see something about how come magazines are not covered by the Second Amendment because they are extraordinarily dangerous. Instead the section is the state admonishing the court to uses a broad definition of analogous laws applying to the Second Amendment.

Supplemental Briefing of the Defendants (Bad Guys) in Duncan v. Bonta

Here are the survey’s of relevant statutes
https://www.courtlistener.com/docket/6082773/139/1/duncan-v-becerra/
https://www.courtlistener.com/docket/6082773/139/2/duncan-v-becerra/

Ok, I was just cutting up onions in a dusty room.  Nothing to see here, just move along.

An interesting article because of New Hampshire law.  “Gun Free Zone” has no legal standing except for certain federal buildings, like post offices and courts.  There is no restriction on firearms within the capital buildings as well.

Going into a medical facility with a firearm is not illegal.  If your firearm is seen then the staff can request you leave.  If you don’t leave you can be trespassed.   This man got in trouble because he had his hand on his firearm when the police approached which took this to a different level.

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Just an opinion piece on the Oregon Supreme Court allowing the county judges injunction to remain.  It is reported that their opinion read much like Alito’s did.  That they are going to let this play out within the county court and they will get involved only after the case has been decided based on the merits of the case

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California AG Rob Bonta whines that the Fifth Circuit court found parts of 18 USC §922(g) unconstitutional. “Their legal analysis is poor, their conclusions are misguided and their outcomes are dangerous and that is a problem.”  The media agress with him.

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MSNBC miss reports on the Fifth Circuit court’s ruling in order to get the feels.  Forgetting the difference between having a TRO for domestic violence and being convicted of domestic violence.

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Over in Illinois county Judge T. Scott Webb issued an injunction against Illinois’ kill carry/gun ban.  Unfortunately this only applies for the people named on the suit.  So far the injunctions are being restricted to the plaintiffs, but they are happening.

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This was covered before.  There is more to this story other than a dumpster full of firearms.  It is unlikely we’ll know until the case is decided in court.

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A bit of balanced reporting where they don’t make the FFL out to be a merchant of death

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Another strand of spaghetti that was thrown at the wall in NJ was blocked when District Judge Zahid Quraishi issued an injunction based on the PLCAA.

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The ATF has released a report that I’ve not read yet. The media has decided that it is proof that guns and more importantly, “ghost guns” are horribly dangerous.  The cool thing is that if §922(g) is ruled unconstitutional, all this yap-yap about “Ghost Guns” will be mooted.

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A huge part of the infringers battle plan revolves around making buying, selling, and/or owning gun too expensive for the common person.  One way they do this is to get towns, cities, and counties to pass infringements which then need to be fought in court with  no real cost to the people that passed these infringements.

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You know you done messed up with Miguel tells you that you done messed up. Mea culpa, mea culpa, mea culpa.

I had not actually read measure 114 until today. I’ve been writing from second hand reports instead of actually reading the bill.

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B.L.U.F. What is Measure 114? What does it do? What are some of the juice tidbits within?

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The preamble lists all the reasons why guns are bad and why gun right should be infringed. Nothing we haven’t seen and heard before. Lots of hand waving to “studies show” plus the standard “it would have been worse if this or that infringement wasn’t in place.”

Section 4

This is the Permit-To-Purchase. The first thing of interest is that it is written in reverse. Instead of stating that you are allowed to purchase unless one or more things disqualifies you, it is instead written as you are only allowed to purchase if you meet a list of qualification that is open ended.

Is not prohibited from purchasing or acquiring a firearm under state or federal law, including but not limited to
successfully completing a criminal background check as described under paragraph (e) of this subsection;

You must successfully complete a background check but other things can be done to exclude you is how this language reads.

The subjective part:

Does not present reasonable grounds for a permit agent to conclude that the applicant has been or is reasonably likely to be a danger to self or others, or to the community at large, as a result of the applicant’s mental or psychological state or as demonstrated by the applicant’s past pattern of behavior involving unlawful violence or threats of unlawful violence;

“reasonably likely to be a danger to self or other”, if you want to buy a gun you are likely to be a danger to self or others. Very very subjective stuff.

You need to fill out and application and sign it in front of the permit agent. You can’t apply by mail. What is asked on the application is pretty intrusive: name, address, telephone number, date and place of birth, physical description “andany additional information determined necessary by department rules.”

This implies that the department can decide that they want your social media aliases as well.

You are required to be fingerprinted and the FBI must do the criminal background check. Of course they say the FBI supper duper promises not to keep a copy of the fingerprints or a record of who applied for a permit to purchase.

Here is one of those Soviet style clauses. The idea being that the clause says something really good for the people and then takes it away with the exception.

Within 30 days of receiving an application for a permit under this section, if the permit agent has verified the applicant’s identity and determined that the applicant has met each of the qualifications described in paragraph (1)(b) of this section, the permit agent shall issue the permit-to-purchase.

It sounds like you will have to wait a maximum of 30 days from the time you apply before you are granted your permit-to-purchase. That is not what this clause actually says. It says that if the permit agent has verified that a permit should be granted, they have to grant it within 30 days.

What happens if they are just too busy to do the verification within 30 days? This clause actually says they can take as long as they want.

The permit agent shall report the issuance of a permit under this section to the department, and shall provide to the department a copy of the permit and any information necessary for the department to maintain an electronic searchable database of all permits issued under this section. A permit agent revoking a permit shall report the revocation to the department at the time that notice of the revocation has been sent to the permit holder.

Well what about that, they have started a gun and firearm owners registry. What could ever go wrong with that?

The bill explicitly states that expired and revoked permit records are kept forever.

The firearms training requires that all instructors be certified by a law enforcement agency.

The appeals section is interesting in that there is a 30 day hard deadline for the person appealing to get all the paperwork done and submitted. The petitions filed will be heard and disposed of within 15 judicial day or as soon as practicable thereafter.

Sounds like being understaffed and overworked at the permitting agency is a good enough excuse to deny people their right to keep and bear arms.

Question for FFL holders, if somebody decides not to take possession of a firearm after completing a NICS check and being approved, do you have to notify anybody of that event? According to this bill, an FFL is required to report the actual transfer of the firearm. And yes, they FFL is required to report make, model and serial number. Gun registry for sure.

They already have a universal (except for criminals) background check requirement. This bill now adds a permit-to-purchase requirement.

At least on the private transfer section, if the department can not determine if a person is qualified, they are presumed disqualified. Or stated differently, delayed no longer defaults to proceed after time expires, instead i defaults to denied.

They are banning standard capacity magazines that hold more than 10 rounds. Fortunately my lever action rifles are excluded from this if they use a tube magazine.

The entire thing is nasty, but they knew it was an infringement when they wrote it:

SECTION 12. If any provision of this 2022 Act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable. The people hereby declare that they would have adopted this Chapter, notwithstanding the unconstitutionality, invalidity and ineffectiveness of any one of its articles, sections, subsections, sentences or clauses.

Yep, they wrote this monstrosity such that if any part is found unconstitutional it doesn’t change the rest of the bill. Each infringement must be challenged in order for the law to be overturned. There might be cases where a judge will strike down more than just a single clause, but not always.

Measure-114 PDF Warning

B.L.U.F. Measure 114 is on hold for the time being as the Oregon Supreme Court rules to not let the state proceed with the law.

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Measure 114 is the gun grabbers dream bill out in Oregon. The gun grabbers were not able to get the legislature to pass it so instead they took it to a popular vote. Mob rule in other words.

There was some upset about how it got onto the ballot but it did. It passed, barely.

So now it is “voter approved” and the media constantly points that out as they discuss the multiple lawsuits that have been filed.

As we’ve discussed in the pass, there are two primary paths through the courts. At the state level there is the lower court, there might be an appeals court, then there is the state supreme court and then over that is the US Supreme Court. At the federal level there are the district courts, over them are the circuit courts of appeal, and above them is the US Supreme Court.

At every level there are three responses the court can give.

1. Dismissed
2. Win
3. Lose

If your case is dismissed or you loose your case you can appeal. The higher court can the grant the appeal or deny it. If that higher court is an intermediate court, you can appeal to the next higher court.

You can appeal all the way to the US Supreme Court. If SCOTUS decides not to hear your case, then your case is over. You can reapply with changes but the Justices have been known to say “if this yoyo applies again, charge them.”

In general, when a court decides they will not hear a case, they just say that. Nothing more. It is unusual when they actually issue an opinion to go along with that decision. This is why the Antonyuk III denial at SCOTUS was so powerful. Alito, with Thomas concurring, told the plaintiffs that their case was not heard for procedural reasons and that if the Second Circuit Court didn’t respond in a timely fashion the plaintiffs should bring the issue back to SCOTUS.

In general, if your case involves the US constitution, you bring your case up through the federal court system. This is what they did in Oregon. The district court did not grant temporary injunctions nor did they grant any injunctions and the cases are moving slowly. The Ninth Circus Court is highly unlikely to hear an appeal and even if they do, they will delay and then rule that the case has to move forward at a pace that makes glaciers moving look like NASCAR racing.

The lawyers dealing with Measure 114 out in Oregon took a second track as well. They brought the case before a county judge. This is the state level equivalent of a district court at the federal level. Lowest tier.

The judge looked it over and using the Oregon constitution ruled that in his opinion, the plaintiffs (good guys) would prevail at trial and granted an injunction blocking Measure 114 from going in to effect.

The state then appealed to the Oregon Supreme court. The Oregon Supreme Court declined to hear the appeal. This let the temporary and later preliminary injunctions stay in place.

This week the Oregon Supreme Court issued another ruling/opinion. The state had requested an emergency request to allow them to let the law go into effect.

The Oregon Supreme Court denied the appeal. Measure 114 is enjoined for the time being. Another win.

B.L.U.F. 18 USC §922, the GCA is likely Unconstitutional, and §922(g) which lists prohibited persons should go away and be replaced with something else

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In 1963 A. Hidell mail ordered a rifle and a .38 Smith & Wesson Model 10. This man then used the rifle to fire a shot at US Major General Edwin Walker from less than 100ft away.

He missed.

Later that year A. Hidell went to the upper stories of a building in the city and set up a snipers nest. Even though he had once qualified as a sharpshooter in the Marines, he had not kept that qualification. When he was honorably discharged from the Marines he was only a “marksman”. His MOS was Aviation Electronics Operator. He was never a “sniper” was never very good with a rifle.

Look at missing his target from less than 100 ft.

On November 22, 1963 A. Hidell was in his snipers nest waiting for his target. A slow moving vehicle. From the sixth floor he took his shots.

One of them hit his target, President John F. Kennedy. His real name was Lee Harvey Oswald. A. Hidell was the name he gave when he purchased his rifle and pistol.

In shock over the assassination of Kennedy which was followed by still more assassinations, the public was horrified to learn that it was “easy to buy a gun”.

“If the gun Oswald would have attempted to purchase those firearms in person, nobody would have sold to him because he gave a false name.”

The push started to eliminate mail order firearms in order to save people and to make society safer.

Oswald was known to law enforcement, had been court martialed, twice, had been in juvenile detention at 12 because he was emotionally disturbed. He was a defector that had come back to the US from Soviet Russia. And he was a communist.

Regardless, the people knew that the real reason that Oswald was able to kill the President of the United States was because of easy mail order access to firearms.

This lead to a push for the first federal gun control since the National Firearms Act of 1934, a tax bill.

Article 1, section 8, clause 3 of the US Constitution says:

The Congress shall have power..
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

From this, congress decided to regulate commerce in firearms with the Gun Control Act of 1968

7. It shall be unlawful for any person—
   1. who is under indictment for, or 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 marihuana or any depressant or stimulant drug (as defined in section 201(v) of the Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731(a) of the Internal Revenue Code of 1954); or
   4. who has been adjudicated as a mental defective or who has been committed to a mental institution;

   to ship or transport any firearm or ammunition in interstate or foreign commerce.

This is the law as it was passed in 1968. What was forbidden of a prohibited person was shipping or transporting firearms or ammunition across state lines.

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 what is prohibited today. It is now unlawful to transport, possess, or receive any firearm or ammunition which might affect commerce or be involved with interstate or foreign commerce.

With the clause of “affecting commerce” the law becomes much broader. If you are making firearms for use only in your state you are not covered by interstate commerce. The catch is that if you are selling within your state and somebody buys your firearm instead of one that is covered by interstate commerce, you have affected commerce.

If you are competing with commerce that is federally regulated then you are affecting that commerce and congress thinks that gives them the power to regulate you as well.

The amended GCA adds four more classes of prohibited person.

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When we look at the list of prohibited person, the only one that might have constitutional support is “who, being an alien… is illegally or unlawfully in the United States…” (exceptions omitted).

The class of people that belong to “The People” are all legal residents of the US and any US Citizens. Everything else is an attempt at removing a class of persons from “The People”.

Everything in §922(g) is about determining who is and is not virtuous. This is where we have issues.

As a member of society, I would prefer that the bad people be disarmed. There are some strong indicators of who a bad person is. A person that has been convicted of a serious crime involving the use of weapons or other physical threat and those that are mentally unstable are the two groups that I feel should be prohibited from possessing firearms and ammunition.

That is NOT what the Constitution says. The Second Amendment says “the right of The People to keep and bear arms shall not be infringed.” It does not give any set of persons that is excluded from “The People”. In other places in the Constitution “The People” might be better translated as “Citizens”.

It is clear that the second amendment covered more than just citizens. There are just too many historical examples of people being residents of the United States but having the right to keep and bear arms.

Having stated who I feel should not have firearms, I stand up and say that what I want is not constitutional and as such should not be done.

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When a person is convicted of a crime or committed for a mental issue they will either be incarcerated or they will be released on probation.

If a person is incarcerated they have lost many of their freedoms. That includes the right to keep and bear arms. They have lost that right for as long as they are incarcerated.

My humble suggestion is that when a person is released from incarceration that they should be put on probation. The period of probation to be fixed based on the conviction and to include all time remaining on their sentence if they are paroled.

As an example consider a person convicted of rape, kidnapping and robbery and sentenced to 30 years for each count to run concurrently. The probation period for the violent crimes of rape and kidnapping have a 7 years probation and robbery with out a weapon has a 5 year probation period.

If our felon was paroled after 23 years in prison he would be on probation for 7 years till his original release date. Since the three convictions run concurrently there is another 7 years of probation for a total of 14 years that the felon would be on probation.

During this time if the felon is caught with a firearm it will be construed as a violation of their probation. The assumption is that they intended to do harm with that firearm.

At the end of their probation period they are allowed to keep and bear arms once again.

This covers all of the issues, in my opinion. Bad people are prohibited till they prove they are no longer doing bad things. People that aren’t doing bad things aren’t prohibited. It all balances.

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Regardless, the GCA is taking hit after hit and is likely to fall soon. There is just to much over reach in §922 that are unlikely to stand up to Constitutional scrutiny.

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.