On June 23rd, 2022 the Supreme Court of the US issued their opinion on NYSR&PA v. Bruen. Justice Thomas wrote a beautiful opinion which destroys the two step shuffle of means-end balancing.

On June 21st, 2022 the State of RI passed a standard capacity magazine ban. They call them “Large Capacity Feeding Devices” or “LCMs”. Four gun owners and an FFL filed suit challenging the law. The case is “Ocean State Tactical v. State of Rhode Island” No. 22-CV-246 JJM-PAS.

Today the judge in the case issued his order in regards to the plaintiffs (good guys) requesting a preliminary injunction to block the ban.

The court denied the request.

In summary, the Court find that the plaintiffs lack a likelihood of success on the merits, that they will not suffer irreparable harm if the law is allowed to take effect, and that the public interest is served by denying injunctive relief. Specifically, regarding the merits, the plaintiffs have failed in their burden to demonstrate that LCMs are “Arms” within the meaning of the Second Amendment’s text. Moreover, even were they “arms,” the plaintiffs have failed to prove that LCMs are weapons relating to self-defense. There is no Second Amendment violation from the LCM Ban because of those two shortfalls of persuasion. The Court must therefore consider the LCM Ban outside the core Second Amendment protection. The Court further finds that the statue is not vague. Because the LCM Ban is a valid exercise of police power, there is no “taking” requiring just compensation and, consequently, no violation of the Fifth Amendment. The Rhode Island General Assembly passed, and the Governor signed, legislation to lower the risk of harm that results from the availability of devices that assist someone intent on murdering large numbers of people. This common sense public safety legislation does not implicate the Second Amendment and violates no one’s constitutional rights

(Any grammar or spelling errors in the block quote are the fault of the transcriber, me)

Fortunately for us, the Supreme Court has already ruled that things like magazines and ammunition are arms. They did it in a roundabout way but it was done. The Supreme court in Heller explicitly stated that it is unconstitutional to ban a class of firearms in common use for lawful purposes. They have stated that “use for lawful purposes” is not limited to firing the arm in self defense. The act of possessing a firearm is using it.

Just as the act of carrying a firearm by a police officer is using it. Even if they never draw their gun. The fact that they have (possess) the gun and have it with them changes the behavior of those around them. That makes possessing a firearm “use”.

As far as a magazine not being an arm, there are guns that will not function without a firearm. Many semi-auto pistols have magazine safeties which block the functioning of the firearm without the magazine being in the gun. Thus a magazine ban would be banning an entire class of firearms which Heller says is unconstitutional.

In addition, if it were constitutional to limit the number of rounds a firearm is allowed to hold there is no difference, legally, between 10 rounds and 1 round. According to this Judge the state has the right to limit all firearms to being single shot only.

The judge declares the magazine ban “a valid exercise of police power”. This is sort of like saying it is okay for the police to take your pot because pot is illegal and they don’t have to reimburse you for it. But this declaration depends on the ban being constitutional in the first place.

Finally the Judge states that the ban is “common-sense public safety legislation”. He doesn’t say he used means-end balancing but the fact that he mentions public safety or common-sense strongly suggests that was part of his reasoning.

For the uninitiated–which, until this case appeared on the docket, the Court considered itself–magazines are devices holding extra ammunition and are inserted into and removed from the frame of the firearm, much as an extra battery-pack gets swapped in and out of a battery operated tool, like a leaf blower, for example. “Reloading,” in this context, means removing an empty magazine and substituting it with a full one. The process may be as simple as pressing a button to eject the spent magazine, in order to push a new one in. (References omitted)

So an ignorant judge can’t be bothered to actually read what the supreme court has to say on the subject but is qualified to decide what a magazine is.

When a multiple round device like an LCM is attached, a handgun becomes a “semiautomatic” weapon, meaning that it is capable of rapidly firing several bullets, one right after another. However, the gun still requires a trigger pull for each round fired. (dictionary reference omitted) Nevertheless, a semiautomatic weapon can fire at rates of 300 to 500 rounds per minute. Kolbe v. Hogan (4th Cir. 2017)(en banc). A fully automatic weapon, such as a machine gun, differs from a semiautomatic weapon in that only one trigger pull is necessary to release a barrage of bullets that are then sprayed continuously from the barrel until a manual action is taken to stop them.

The 4th Circuit just heard oral arguments last week regarding Bianchi v. Frosh which the supreme court GVRed back to the 4th after the Bruen decision. The original decision on Bianchi v. Frosh was decided based on Koble v. Hogan. In other words, this judge just based his definition of a semi-automatic weapon and its rate of fire on a case that the supreme court says was wrongly decided.

As soon as this ban goes into effect, any person that still possess a standard capacity magazine which holds more than 10 rounds is guilty of a felony. This is acceptable because the state granted a 180 day grace period.

You are reading this blog post so you follow gun control regulations, at least to some extent. You would be aware if your state were to pass such a ban that would make you guilty of a felony overnight for owning something that you bought legally.

…In accessing the constitutionality of a restriction, courts must inquire whether LCMs were in common use during the relevant historical period and whether they are unusual and dangerous.

NO. That is not what Heller or Bruen said. It is not if the item was in common use at the time of the ratification. It is if it is in common use today. The supreme court explicitly stated in Heller that “arms” extends to modern firearms. That is not just weapons of 1791.

It is also the case that determine if something is an “arm” does not depend on whether they are unusual and dangerous. Being in common use for lawful purposes makes them NOT “unusual and dangerous”.

The rest of the 59 page order isn’t much better. Feel free to read it

Memorandum and Order, Juhn J. McConnell, JR US District Court Chief Judge

So what happens if your right to petition the government for redress of grievances carries with it the cost of bankruptcy of yourself and your representatives?

Would you be able to hire a lawyer if they knew that losing even one part of the case would put them, personally, on the hook for all of the states costs?

This is what Governor Newsom did. In CA SB 1327 they created a law which did precisely that with regards to second amendment cases. If you brought a case against the state for violation of your rights and you lost any part of the case then you and your lawyers were required to pay the costs of not only your own side but the costs of the California spent defending the state.

EC. 2. Section 1021.11 is added to the Code of Civil Procedure, to
read:

1021.11. (a) Notwithstanding any other law, any person, including an entity, attorney, or law firm, who seeks declaratory or injunctive relief to prevent this state, a political subdivision, a governmental entity or public official in this state, or a person in this state from enforcing any statute, ordinance, rule, regulation, or any other type of law that regulates or restricts firearms, or that represents any litigant seeking that relief, is jointly and severally liable to pay the attorney’s fees and costs of the prevailing party.

(b) For purposes of this section, a party is considered a prevailing party if a court does either of the following:
(1) Dismisses any claim or cause of action brought by the party seeking the declaratory or injunctive relief described by subdivision (a), regardless of the reason for the dismissal.
(2) Enters judgment in favor of the party opposing the declaratory or injunctive relief described by subdivision (a), on any claim or cause of action.
(c) Regardless of whether a prevailing party sought to recover attorney’s fees or costs in the underlying action, a prevailing party under this section may bring a civil action to recover attorney’s fees and costs against a person, including an entity, attorney, or law firm, that sought declaratory or injunctive relief described by subdivision (a) not later than the third anniversary of the date on which, as applicable:

Laws are designed to be opaque, hard to read. Sometimes the meaning hinges on a single comma. For most people reading these paragraphs they read “…liable to pay the attorney’s fees and costs of the prevailing party.”. There are some nasty gotchs in that little quote.

First “jointly and severally” refers to “person, entity, attorney, or law firm” which is challenging the law AND “that represents any litigant”. This means you and your lawyer.

Is this really so bad? If you “win” then this doesn’t matter. Except that they define “prevailing party” to mean “any claim or cause of action”. So if your suit had multiple claims or causes of actions, say you argued under the 2nd, and also the 5th
amendment.

In the course of the trial the judge says that there was “no taking” so the 5th amendment is not implicated. He then grants everything else you claim regarding the 2nd amendment.

You won. The State of California then presents you with a bill for all of their costs for defending the law that was just found unconstitutional. Why? Because according to the laws definition they prevailed. One of your claims was dismissed.

Anybody that has ever looked into COBRA coverage after being let go from a job knows that there are LOTS of hidden costs. The State has no reason to try and keep prices down. They have legions of lawyers and each of them gets billed out when dealing with such a case. Those costs can grow to millions of dollars very rapidly.

This had a chilling effect on second amendment cases out of California. So chilling that ALL California cases dealing with the second amendment were put on hold pending other cases challenging this law.

Now California put in language that says that even if one part of SB 1327 is found unconstitutional all other parts are still in affect. Regardless, the “must pay defendants costs” part of SB 1327 was recently found unconstitutional. This means that the other 2A cases are now moving forward.

We’ll have updates on a couple of cases that are being heard this month shortly.

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Sam Brinton was fired. It is likely that he will face charges.

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I’ve had security clearances in the past. The goal of a clearance is to reduce the risk of the person being given a secret from sharing it.

To this end when performing a background check they are looking to see how well you are able to keep your word. In short how trustworthy you are. They are looking for criminal acts which might just disqualify a person as a matter of policy and they are looking for illegal acts (drug use) that might be disqualifying.

Having established if you are trustworthy they next look into how easy would it be to compromise your integrity. A person that is a few thousand dollars in debt is unlikely to betray their country for those few thousand dollars. The same person in debt for the same amount to a lownshark might be willing to sell a little secret in exchange for keeping working kneecaps.

So debt load and who you are in debt to plays a part in whether they feel a person can be trusted. Trustworth is not the same as trusted.

They then look at things that might be compromising. Things that might embarrass you. I knew homesexuals that had security clearances. They were required to out themselves to their parents and family. This is so that no bad actor could say “if you don’t share this small secret with us we will out you to your wife/parents whatever”

In the same way they don’t want you to have any embarrassing secrets from your employer or family/community.

Finally the look for things that might indicate that you have bad judgement or that you do things that might allow you to say things while not fully cognitive. I.e. while drunk or stoned.

The fact that Sam is non-binary and into kink does not instantly disqualify him for a clearance. All of the criminal activity around him does.

For example consider the following exposure of Col. Donnelly and CPT Tenney.

?Military Sickness Exposed??

Identity of @USArmy’s @PupRavage ? is Col. Brian T. Donnelly (ret.) of INDOPACOM

Past @Mdarmyguard CO: 58th EMIB, 1100th TASMG

Posing in uniform w ? mask?

Engaged in ?-play sex w junior @USArmy officer – CPT Dayton Tenney, aka @adjutantpup pic.twitter.com/PlOzWBjQHM

— NOVA Campaigns (@NoVA_Campaigns) December 9, 2022

(H/T to a reader)

My issue with this pair is that there is a level of inappropriate behavior between a superior and his direct report.

In the same way I had no problem with Billy Clinton having sex in the oval office. I didn’t care if it was with his wife or some hooker the SS brought in. I had and have a problem with him having sex with an intern.

If the CEO of some firm had sex with an intern we would have seen him fired and lambasted. Billy doing it was a matter between he and his wife. We know that a CEO would be fired because a CEO for IIRC McDonald’s was fired for exactly this thing shortly after.

My parents brought their children into the world of “Duck And Cover”. They caught the last part of it in highschool. My generation grew up with the fear of nuclear war hanging over us.

Because my father was in the US Navy we lived near Navy bases my entire childhood except for six months while my father was deployed to Vietnam. I was born just miles away from a major navy base. We moved to a major navy training facility. We moved to Norfolk Va, The major navy port on the east coast.

Even when we lived in the boonies, we were still “just across the river” from a Naval Air Station.

My first “real” job was again in Norfolk. The building held a fallout shelter. (Which was so freaking empty and useless as to make my mother’s pantry look like an end of the world stockpile)

I went to University and was lived within 5 miles of a major target. I left University and was living just a mile off a major army post.

It was difficult to ever forget that at any moment we were only minutes away from nuclear annihilation. When Reagan got “won” the cold war, it felt like a great weight was lifted from my shoulders.

I’ve talked about how I and my next door neighbor friend, at 7 or so, had a serious conversation about what we would do when we were old enough to be drafted to go to Vietnam.

When we worried, it was about World War III or being drafted.

The other day I read that one of the gun control sites was blasting out how there had been over 600 mass shootings in 2022 so far. They got that number by including gang shootings AND setting the definition to include “killed OR wounded”.

Not what we think about when we think “mass shootings.” On the other hand, I’m not sure they included the mall shooting where the kid with the Glocked put 8 out of 10 rounds on target at distance within 15 seconds of the asshole opening fire.

My kids are high school age. The schools here spend way to much money on “preventing school shootings.” For some reason they spend more time thinking about keeping people out than in actual protection. Though they have finally figured out how to keep bad guys out. They just don’t let anybody into the building….

I asked my daughter for a song for us today. She provided me a song. It is about a school shooter. According to her it is well known amongst highschool students. School shootings are her generation’s “duck and cover”.

Measure 114

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The four rules!!! Not one, not none!

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There is another story of a teacher in jail after she left her purse behind in the school.  It was found, brought to the office where they looked inside to identify the owner and found a gun.  I don’t have the link to that story.

Foreign News:

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Slamming on SCOTUS

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I do way to much reading on my phone. I have kindle there, I have my news feeds there, I have my mailing lists there. What I don’t do is write articles from my phone. You think my grammar and spelling are bad when I use a keyboard? It is much worse when I try and write anything over a few words on my phone.

Sometimes I read the headline and dump the article into keep.google.com, sometimes it is just a few paragraphs and sometimes it is the entire article.

Because the media is so bent I’ve come to expect a certain level of biases in my feeds. For every positive article on guns, gun ownership, or gun policy I’ll have a dozen that tell me how evil I am for wanting to own a gun.

We saw the video of the mom protecting her child from a trash panda. I don’t want to be sticking my hands anywhere near a wild animals mouth and I certainly don’t want to spend the money to “Racoon proof” my chicken and garbage cans. It only took a few rounds before the threat was neutralized.

I’ve held a rifle in my hands as a bear took out a beehive not 200 meters from me, ready to protect family and friends and livestock. I’ve had a gun at the ready when an ex-boyfriend raged and yelled at my lady. He didn’t understand how close he was to death. If he was walking that line of “is deadly force needed” and never knew it.

Regardless, I expect anti-gun reterich everytime I read an article about gun control.

What continues to be indisputable is that our nation needs constructive, ideologically-free dialogues on reducing gun violence. Leadership from the judicial, law enforcement and medical communities are key players that must contribute to this discussion. Politician have demonstrated their impotence to make any positive headway on the issue.

Yep, another request for “reasoned dialog”. I.e. a place where anything that is added to the conversation regarding banning gun or gun ownership is allowed but anything that supports the right to keep and bear arms is deleted…

Except this isn’t that article. I had to go nearly to the end of the article to pull that blockquote out of context. Sheldon H. Jacobson, Ph.D. is actually having a conversation.

Banning assault weapons may be a good idea for their potential to inflict harm. Such a ban may also have other societal benefits that would justify it. However, arguing for a ban based solely on existing population risk reduction benefits extracted from the data appears to be more about political posturing than data-driven evidence-based analysis. 

Assuming (incorrectly) that all mass murders involved assault weapons, and assuming that all the associated deaths and injuries could have been avoided, this amounts to around 650 deaths over the past four years (2018-2021), fewer than the number of people who will die with or from COVID-19 over any two days this week.

What this data indicate is that an assault weapon ban carries with it a very small reduction in population risk. The issue up for debate is whether this reduction is sufficient to warrant banning them.

Give the full article a read, Sheldon seems to be somebody that things that an AWB is an over all good but can’t support it with the facts at hand.

What the data actually say about assault weapons

Regardless of her points on data driven bans of firearms, in the end it doesn’t matter. The lethality of a firearm nor its use by criminals does not make such a ban constitutional.

A new form 4473 was introduced this month. The ATF sent out an alert to SOME FFL dealers telling them to start using the new form. In this case the FFL must download the PDF from the ATF and print it at their own expense. The ATF does not have the new 4473 forms in the supply chain yet.

The e4473 has not yet been updated but the ATF claims it will be updated before FFLs are required to use the new 4473.

The new forms will be required in early 2023 (I remember February but my rememberer is not all that good.)

The first three pages of the new 4473 are included hear with markup showing the changes. There might be more changes in the seller section but I did not check those sections.

ATF Form 4473 Rev Dec. 2022

ATF Form 4473 Rev May 2020

ATF Form 4473 Rev. Oct 2016

ATF Form 4473 Rev. April 2012

Moore v. Harper is a case that was just heard by the Supreme Court regarding who has authority over regulations for federal elections.

The Elections Clause requires state legislatures specifically to perform the federal function of prescribing regulations for federal elections. States lack the authority to restrict the legislatures’ substantive discretion when performing this federal function.

As Alexander Hamilton wrote in Federalist 78, the scope of legislative authority is governed by the commission under
which it is exercised. Here, that commission is contained in the United States Constitution, and it is federal law alone that places substantive restrictions on state legislatures performing the tasks assigned them by the federal Constitution. The most prominent discussion of the Elections Clause in the early republic occurred during Massachusetts’ 1820 Constitutional Convention.

— David H Thompson, Esq. Before the Supreme Court

This is of interest in terms of gun rights because the court is being asked to look at the intent of the Constitution, as written and when the bill of rights was ratified, 1791.

START OF QUOTE

Justice Kavanaugh: What about the historical practice over time, which has certainly developed in a way that state constitutions do regulate federal elections? What weight, if any, do we place on that?

Also, there are some federal statutes as well that are cited by the other side. I just want to make sure you’ve had a chance to
talk about those as well. So the —

Mr Thompson: Yeah.

Justice Kavanaugh: — historical practice in the states and those federal statutes.

Mr. Thompson: Your Honor, we think the way to think about this is consistent with the Court’s opinion in Bruen last term where it looked very focused on the time of the founding, 1791, obviously, we’re looking for the public meaning of the Constitution. As that founding generation passes away, Adams and Jefferson die on the 50th anniversary of the Declaration of Independence, as we get out of the 1820s, there’s very limited information you can get as to the original public meaning of the Constitution.

But — so it can be a confirming — that subsequent history as in Bruen can be a confirming historical tradition that — that — but it can’t undermine what the text and the founding era history show to be the case.

Justice Kavanaugh: Thank you.

END OF QUOTE

This is great news for gun rights. This is another place where the Supreme court gets to say “Text, History and Tradition at the time of the ratification of the bill of rights.”

The key to this is that when the 14th amendment was ratified it did not change the meaning or understanding of the Bill Of Rights or the Constitution, it merely stated that the protections guaranteed under the Constitution extended to each Citizen and could not be violated by state law.

This case also means that more and more judges and courts will become better informed about how to use “Text, History and Tradition” of the constitution.

In Oregon we had some good news. Not great but good. As we’ve discussed in the past the way that cases proceed is through a a case being seen in a inferior court and then appealed upwards. There are two paths, the state and the federal paths. Under the state path there is the lower court, then the appeals court and then the State Supreme Court and finally the Supreme Court of the United States.

Under the federal path there is the District court and above them is a circuit court of appeals and above that is the US Supreme Court.

In Oregon the Oregon Firearms Federation and Gun Owners of America had filed suit in federal district court. In the US district court, Judge Karin Immergut denied the request by OFF to place a injunction on measure 114, or at least parts of it. OFF and GOA, having been around the block a few times, had also filed suit in state court.

Judge Raschio of the state lower court did grant the injunction. The DoJ of Oregon requested an expedited/emergency judgement on that ruling (A mandamus petition). The Oregon Supreme court heard and answered. They upheld the injunction put in place by Judge Raschio.

Upon consideration by the court.

Relators petition for a writ of mandamus is denied. Relators’ motion to stay the circuit court’s order dated December 6, 2022, which temporarily restrained defendants and defendants’ agents from enforcing Ballot Measure 114 (2022), as of 12:01 am. on December 8, 2022, is dismissed as moot.

This order is issued without prejudice as to the filing of any future petition for a ‘writ of mandamus or other motion in this court by any party in relation to any other rulings in the underlying proceeding.

— Signed Martha L Walters Chief Justice, Supreme Court [of Oregon]

IANAL so have no idea why it is dismissed as moot, just that it was.

Good things this way come.

This reminds me of an Internet outage in the ’90s.

When you buy a circuit from the circuit provider you tell them the type of circuit you want. If it is a big enough circuit they will provide you with alternate routes.

In the days when OC-12 was a “big circuit” one was ordered for post. They had to lay cable up from the south and down from the north. If either segment was “cut” then all the traffic could be carried via the other segment. Redundancy.

Now the magic of buying circuits is that you specify what you are buying “T1” for example. This slow by today’s standards at 1.44Mbit/s. It is so slow that your provider will use different technology to deliver it. In one case it was by two pairs of copper using standard digital technologies. It took two pair bonded together to get the speed wanted. No issue as the equipment for doing the bonding was cheap and easy to use.

The Federal Government decided they wanted an east-west circuit. It was supposed to be a fairly fast circuit. Part of the requirements in the contract was that the circuit be fully redundant. This meant that one path was through the north of the US and the other path was through the south of the US.

All of this documented in the contracts.

At the time the contract was issued this meant that each path was its own physical piece of fiber.

But shortly thereafter technology moved on and it became possible to move significantly more data over the same physical links.

The provider looked to take advantage of this and let a contract for two new circuits, again redundant, again north south paths.

Everybody is happy. Government, provider, and sub provider are all doing the right thing.

The sub-provider is constantly working to improve the infrastructure and upgrade circuits when they can. In the course of this they upgraded a couple of circuits and then re-balanced everything.

The sub-provider was still providing two circuits, the two circuits were redundant. The sub-provider was providing great service and they continued to grow.

Then one day the Internet Segmented into two parts barely connected. Traffic that use to flow over these east-west circuits now had to travel east from the east coast around the world to get to the west coast.

Multiple circuits were down. The primary and redundant backups for the Federal Government were both down. Other internet circuit providers had lost both of their east-west circuits. Whiskey-Tango-Foxtrot!

It seems that over the course of time our sub-provider had been offering very good prices for circuits. They had the latest and truly greatest technology. And as time passed more and more circuits were being carried by this one sub-provider. Their southern cables were the fastest in the country. Their northern cables not so much so they had moved some circuits from the northern cable to the southern cable.

All of which was allowed by their contract. The government contract was with thier provider, not the sub-provider.

It seems that a couple of good ol’ boys were out in the swamps hunting and decided to blow of some steam. They decided to use the targets hanging from poles as their point of aim. In the course of their shooting they managed to cut, in multiple places, in the middle of a swamp, that sub-providers main east-west PHYSICAL cable.

Since multiple “redundant” circuits were all running over the same physical cable when that cable was cut all the circuits failed.

It took many hours for that cable to be repaired.

Now to make things even a little bit scarier, my understanding is that the original contracts were let to two different providers with two different cable system. Those two providers at some point started using the same sub-provider and so even though it was two different providers, the redundant system failed.

Our infrastructure is fragile. Timothy McVeigh used an ANFO explosive to take down a building. Think of what would have happened if he had just parked that van on the middle of the George Washington Bridge and gotten into a different vehicle to drive away. Depending on the tamping around that charge it might very well have dropped the bridge right in the Hudson. Even if it didn’t drop the bridge, it would have done enough damage that it would be months if not years before that bridge was fully inspected and cleared for traffic again.

And there is no way that they would be able to inspect every truck that travels over every bridge.