21-1255 Bianchi v. Frosh was heard by the fourth circuit court of appeals on Tuesday Dec. 6th, 2022. As of today, the 7th, I have not been able to find a transcript of the oral arguments. Once I find a transcript I’ll have more to say. I really don’t want to transcript it myself nor pay somebody else to do so.

Nothing was decided. One of the pundits I follow, a 2A lawyer, seems to feel like things will go our way but that there were issues in the line of questioning.

The gist, as he tells it, is that the judges on the panel wanted the plaintiffs (good guys) to prove that AR-15s are covered within the scope of the second amendment. The argument should have been Heller “common use means it is covered.” Caetano says that greater than 200,000 is “in common use”

The path that the state is taking is to turn Bruen upside down and force the good guys to prove that the thing is covered and that there are no laws that are analogous to the law being challenged. Bruen specifically says that it is the Government’s task to prove that a law that is analogous existed in 1791. It is upto the Government to prove that an arm is not within the scope.

The state’s argument is that there should still be means-end to determine if an arm is just to evil/nasty/lethal/black to be covered by the second amendment.

In better news, parts of measure 114 out of Oregon have been stopped temporarily. The state is saying they need more time to get the permitting/training/registration system in place and the people arguing that it should never happen. So the judge put a delay on it for the time being.

This should mean that people in Oregon can still buy firearms.

I didn’t see the PSA warning about shipping to Oregon before and I had not looked for it. I don’t see it today either when I did look for it. I don’t know if it was removed but there is nothing in their “firearm shipments” section that indicates a ban on shipping to Oregon.

So J.Kb. thinks it was crazy for me to shoot a racoon with a 30-30. Maybe… (So people without a warped sense of humor get it, this is all in fun. Both J.Kb. and myself are having fun with this topic.)

The first time I went out on the porch because my wife was hearing “sounds out there” I didn’t think it was a human but it could have been anything from a chipmunk to bear. I wanted something with me that would stop it, whatever it was. That means I’m not picking up the 5.56 nor a .22LR.

That takes me to pistol calibers. Again, not enough stopping power for a bear. This lead to a compromise, 30-30 Winchester. I’m pretty sure that I can put multiple rounds on target with any of the 30-30s I own and if it was a bear of the size we have around here, I am positive it would be stopped with that 30-30.

Other choices are 7.62×39. Nothing but FMJ for that. 7.62×51. Big ass rifle with a scope, bolt action. About the same stopping power as the 30-30 at shorter ranges. 30-06 (M1), it would be nice but again a very long heavy rifle and it is currently set for two legged mode. FMJ.

This takes us up to the big boy, 45-70. Now I have a lever action at that size and it would be the right round for bear. But here’s the thing. It wasn’t handy. It is at the other end of the house with some of the other lever actions. I’d have to take a few extra minutes to go get it and make sure it was the right one.

In the meantime there is something on the porch and we have an injured chicken on the porch being cared for by my daughter.

So it was grab the 30-30.

Now after the first Racoon was dead and I saw there was another, I switched to a bolt action .22LR. It took 3 rounds to kill that Racoon. All three were kill shots but only the last was to the head causing it to cease to feel or function.

This is compared to the 30-30 which put the critter down with just one shot and instantly.

Now this lead to some discussion and the .357 that was on my wish list suddenly got a slightly higher priority.

And then a beautiful Rossi R92 in 0.357Mag followed me home. That is a story for tomorrow, but for today, it is the ready gun for small/medium critter work. I did a little gunsmithing on it yesterday and it is now running at 100%. It hits where I am.

Only thing happening on that front right now is working up a better 0.357Mag load. Currently I’m using hollow point cast bullets making a 115gr projectile sitting on top of a hefty load of TiteGroup. It works but isn’t a load I’m happy with.

Today I went to the LGS/sporting goods store and was happy to buy a pack of small pistol primers off them (9mm reloads) and they had 2400 there! Amazing. So that came home and when I have some brass I’ll be working up a load for .357Mag.

I do use a chronograph when working up loads.

There is this a class of fiction called “FanFic.”  It can be good, it can be bad, it can be awful.  The concept is that you take your favorite TV or Movie characters and write a story about them.

I believe it was Alan Dean Foster that wrote a bunch of Star Wars novels.  James Blish wrote Star Trek novels.  These novels extended the universe for these characters.

There are lots of stories written by random fans about their favorite characters.  Just be careful if you go looking because you will find every type of story imaginable.  Many of them Pornagraphic.  If you have a favorite TV or Movie character it is almost a certainty that somebody has written a story about them doing the dirty in the dirtiest possible way with all sorts of different characters.

In the same way there are singer/songwriters that write and perform songs about their favorite TV or Movie characters.  This is called “Filk”  A play on the word “folk”.

In addition there are a number of songs that are written and performed at Ren Faires and SCA events which are modern takes done in older styles.

Note, this group has lots of NSFW songs.

This is a Ren song. If you are part of the cast and make it to the after hours party this is the sort of song you might here.

Hope you all enjoy.

Postscript: There is a song done to “Roll The Chariot” or “Drop of Nelson’s Blood” set in the Firefly Universe. If you happen to know the title or have a link, please let me know.

For years now I’ve watched as people lose their Twitter accounts or have their content restricted on different platforms because some woke skold doesn’t like what’s being said.

How many times has Steven Crowder been suspended on YouTube? President Trump was kicked of Twitter over false allegations. Over and over it happened. When conservatives complained that it was happening to them, some left-winger would point to some small time blogger/Twit/YouTuber and say “It’s not just the right, it is everybody and it’s fair.”

Elon Musk has been going through Twitter with the chopping axe. As he described it, he was walking around the office and every time he saw somebody that wasn’t doing anything he would ask “What’s your job?” If the person couldn’t give a good answer, he fired them on the spot.

In addition to those he fired, many quit because Elon was bringing back “hate speech” or some such horrid thing.

So Business Insider is now reporting that “Prominent left-wing activists” have been suspended (or banned). So let’s take a look a look at some of these.

“Chad Loder, an anti-fascist researcher who identified a Proud Boy member involved with the US Capitol Riots” What an interesting turn of phrase “anti-fascist researcher”. Maybe a better description would be “antifa thug?”

Chad claims that his account was suspended due to a “mass reporting campaign”. It seems a group called “Zanting” publish instructions on how to report accounts and listed Chad’s account. Of course when the antifa thug was actually suspended people celebrated.

The problem is that at no point in this article does it say what Chad was reported for doing. And just because it was organized doesn’t mean it wasn’t the right thing to do.

With Elon in charge of Twitter most of the Pedo hashtags have gotten ban hammers. In just a few weeks most of the Pedo tweets have gone away or gone underground.

Mass reporting is a tactic that the left has been using for years. They target some body they don’t like and within a short period of time a bunch of NPCs start reporting the same thing. It is sort of like all the 1 star ratings on conservative books on Amazon which read “The author is a horrible person, I refuse to read his drivel. I’d give zero stars if I could”.

Amazingly enough, Chad seems to know the people that use to run Twitters old “trust and safety” team. Quoted because trust had nothing to do with it and policing speech is never about safety for the speaker.

CrimethInc said in a written statement to Insider: “We have been using Twitter since 2008. We have never so much as received a warning. On November 25, Elon Musk banned us at the request of a far-right troll who has made a career out of targeting those who oppose fascist violence.

See, they weren’t getting warnings prior to Elon taking the helm, so they shouldn’t have been banned. “We’ve been moving around the country for the last decade killing people and nobody has said anything to us. Arresting us for murder without a warning isn’t fair”.

[Elm Fork John Brown Gun Club] said in a written statement to Insider: “Our primary account, like many others, was baselessly suspended after numerous campaigns by right-wing propagandists like Andy Ngo to silence us. The reinstatement of the most vile antisemitic, racist, and transphobic accounts coinciding with the silencing of accounts documenting them is not a coincidence. This is a clear indication of Musk’s interpretation of who ‘freedom of speech’ applies to.”

Consider this paragraph written by Insider:

Musk has described himself as a “free speech absolutist,” and reinstated several right-wing accounts that were previously banned including Donald Trump, Jordan Peterson, Kanye West, Babylon Bee and more.

Ok, nothing wrong there, but here is the very next paragraph:

[Chad] said Musk’s free speech campaign is really just about “bringing back a lot of legitimate violent neo-Nazi accounts.” He has “thrown his lot in with far-right extremists and they have his ear,” and he is “in an echo chamber of his own design.”

The normal person reading this is going to read it as if Chad or Insider has said that Trump, Peterson, Kanye, and the Babylon Bee are all new-Nazis. Note that the article in question was written before Kanye was kick back off Twitter.

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In 2017 the fourth circuit court heard the case of Kolbe v. Hogan en banc (full court). In that case the court held that “assault weapons” fall outside of the scope of the Second Amendment right to keep and bear arms.

In December of 2020, suit was filed again challenging the Maryland AWB. The plaintiffs (good guys) said that they felt that Kolbe v. Hogan was wrongly decided and “should be overturned by a court competent to do so.” The district court agreed with the defendants (state/bad guys) and in a decision in March of 2021 dismissed the case.

Plaintiffs appealed to the fourth circuit which affirmed the judgement of the district court.

The plaintiffs then appealed to the Supreme Court for certiorari.

The process of getting the Supreme Court to grant certiorari is complex. Papers are filed requesting, this is countered by other filings that say don’t. The court discusses the different cases and then either grants or denies cert. But in this case they didn’t grant or deny, instead they left the case in limbo.

Instead they granted cert. to New York State Rifle & Pistol Ass’n v. Bruen which was decided with a beautifully written opinion by Thomas. This struck down New York’s “good cause” and at the same time restated the Heller decision on text and history as the ONLY way to adjudicate a claim of second amendment infringement.

After that opinion was issued, SCOTUS issued a series of Grant, Vacate and Remand (GVR) in cases that had been in limbo. One of those cases was this one, Bianchi v. Frosh. So now the fourth circuit court has been told “you got it wrong, fix it.” and the state is scrambling to keep the AWB in place.

So the state presenting the issues as:

1. Are “assault weapons” outside of the scope of the Second Amendment right to keep and bear arms?
2. If they are within the scope, should the fourth be hearing the case or should it be remanded back to the district court instead
3. Is MD’s AWB consistent with the historical tradition of prohibiting extraordinarily dangerous weapons?

The state then spends 7 pages telling the court how “extraordinarily dangerous” “Assault Weapons” are and how the state responded with gun safety legislation.

Under Bruen none of this matters. The starting point is “does it infringe” and the ending point is “is there text and tradition for the infringement?”

In the 2017 decision in Kolbe v. Hogan the fourth came up with the bizarre idea that the most common rifle in use in the United States isn’t covered by the Second Amendment, ignoring the Supreme Courts opinion in Heller which was decided 9 years before. The reasoning in Kolbe was that the AR-15 “… are firearms designed for the battlefield.” and because they are so lethal that they are not covered by the Second Amendment.

This ignores the Miller opinion from back in the ’30s where the court said that weapons for the battlefield were covered by the second amendment and that a sawed off shotgun was not within the scope of the second amendment because nobody had told the court that they had any military use.

Again, NONE of this makes any difference post Bruen because how deadly or lethal an arm is doesn’t change its status of being an “arm” and thus part of “the right to keep and bear arms”.

The Kolbe case hinged on the fourth misreading Heller to mean that military weapons could be banned (NFA) and that the M-16 and the AR-15 are the same (except that tricky little fourth hole) and because M-16s can be used in semi-auto mode and the military and police teach their people to use semi-auto the AR-15 is just like an M-16 and ergo can be banned like an M-16.

Under Bruen it is unclear if the ban on post 1986 machine guns is constitutional and we should look forward to a lawsuit challenging all of the NFA in the not distant future. Along with country wide right to carry. Invisible lines should not make felons.

The state is arguing that even thought SCOTUS GVR (you got it wrong, dunces) the fourth actually got it right and that their decision should stand.

But if the court might decide to find for the plaintiffs, they should first send the case back to the district court. Adding another year before the case is heard at the district level and another year before it is heard at the circuit level. All the while leaving the AWB in place.

A long time ago in a school far far away I was told to write a paper. I did and got a poor grade on the paper. The teacher, correctly, pointed out that I made lots of claims in my paper but didn’t back up any of my claims with actual references or facts.

Does this sound similar:

Finally, Maryland’s assault-weapons ban is supported by the Nation’s historical tradition of firearms regulation. The historical record demonstrates a tradition of regulating extraordinarily dangerous weapons (and their modifications) that pose heightened risks, are ill-suited for self-defense, and have a strong connection to criminal uses. Because the assault weapons banned by Maryland’s law are the types of weapons that fall within this tradition, the Firearm Safety Act’s prohibitions do not offend the Second Amendment.

So we now get to the nitty gritty, what laws support the ban?

1647 and 1650 (not 1791) Maryland law banning guns in the legislature), 1874 Georgia’s 1870 ban on weapons in court, and a Virginia 1786 ban on guns in courthouses. This might support courthouses as being a sensitive place. BUT it doesn’t matter, sensitive places are not in question.

And here we get to the crux of the states argument “Third, the most relevant time period for the historical inquiry centers on 1868 and the ensuing decades—when the Fourteenth Amendment made the Second Amendment applicable to the States and state officials familiar with those requirements adopted firearms regulations.”. But Heller says that 1868 laws can only be used to confirm laws from 1791, not to introduce new gun control laws.

Even with all that wordsmithing, the state declined to list any laws that support an AWB.

They then argue that laws against booby-traps allow them to ban “assault weapons.” The gist being that they banned booby-traps because they made weapons “deadlier” (they didn’t) and that means that “deadlier weapons” can be banned.

SUPPLEMENTAL BRIEF OF APPELLEES (Frosh)

The Second Amendment Foundation (SAF) filed a Supplemental Opening Brief as well.

The Bruen decision leads to two important conclusions in this case. First, this Court’s decision in Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc), is no longer good law. In its principal holding, Kolbe expressly refused to apply the common use analysis that Bruen has now confirmed is dispositive for establishing constitutional protection for types of arms. See id. at 136 n.10. And Kolbe’s alternative holding relies on the “intermediate scrutiny” analysis that Bruen expressly overruled. Id. at 138. Indeed, the Court in Bruen expressly cited Kolbe as an example of the approach it was explicitly rejecting. 142 S. Ct. at 2126–27. Kolbe has thus been expressly abrogated by Bruen, and it can no longer guide this Court’s analysis of Plaintiffs’ challenge.

Second, Bruen demonstrates that Maryland’s ban on certain semiautomatic rifles is unconstitutional. As explained, in the context of outright bans on a type of arms, like Maryland’s ban on semiautomatic rifles here, the Supreme Court has already analyzed the relevant historical restrictions and concluded that the only justification for banning types of arms is that they are “dangerous and unusual,” meaning they are not “ ‘in common use’ today for self-defense.” Id. at 2143; see also District of Columbia v. Heller, 554 U.S. 570, 627 (2008); Caetano v. Massachusetts, 577 U.S. 411, 411–412 (2016). The rifles banned by Maryland are among the most popular firearms in the country, owned by tens of millions of Americans for lawful purposes including for self-defense and defense of the home. Maryland has made clear that it does not like the people’s desire for these firearms, but that does not change the fact that they are bearable arms that the American people overwhelmingly favor and have a right to possess. Under the Second Amendment, Maryland’s judgment is entitled to no deference at all but the choices of millions of Americans “demand[] our unqualified deference.” Bruen, 142 S. Ct. at 2131. Bruen thus dooms Maryland’s ban and requires judgment for Plaintiffs.

Whereas the State claims three different issues at hand, SAF says there is only one. “Does the MD AWB violate the Second Amendment?”

SUPPLEMENTAL OPENING BRIEF (Bianchi)

The fourth circuit court will hear oral arguments on Tuesday, December 6th. Docket #21-1255

 

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Over the past 2 years we’ve been told that losing and calling into question the results is a threat to democracy. Thank goodness it is a threat to democracy because I don’t live in a democracy. I live in a representative republic.

Of all of the things that a president does, I believe that the most important is appointing judges. Most importantly appointing judges to the Supreme Court. The people that sit on the bench make decisions that affect us all for years, maybe decades, after a president leaves office.

A good choice moves things in the correct direction, a bad choice moves things in the wrong direction.

For the left, the job of a justice is to look at society and make judgements to modify existing law to better match what is best for society or which “most” of society wants. For the right the job of a justice is to follow the law as written.

We call judges making rulings from the bench to overturn laws to fit society “legislating from the bench.” If congress passes a law that says that federal highway funds can not go to a state with any speed limit in excess of 55 MPH that is very likely within their constitutional powers. The power to tax and the power to budget are defined in the Constitution.

The President ordering that Customer And Border Patrol follow the law and apprehend people crossing the border anywhere it is not a port of entry is well within the constitutional powers granted to the President.

We, the people, granted certain powers to the federal government. Those that we did not grant to the federal government are retained by us or the states.

Laws are created in a very well defined way. A bill is created, it is voted on by a chamber, if it passes it goes to the other chamber where it is voted on, if it passes both houses it is sent to the President for him to sign or veto.

But any federal judge can place an injunction on any law extending over the entire country. We saw this with multiple executive orders under Trump and even some laws that were signed by him.

In this case, one man, unelected, gets to decide on what is or is not allowed. One man can look at an amendment to the state constitution and declare that the amendment is unconstitutional by the state constitution.

I really wish we could do that one. “Oh look, they passed an amendment restriction gun ownership to people in the militia which is the federal military. But it is unconstitutional because of the 2nd.” That is not how the amendment process works. If they were ever to pass an amendment affecting the right to keep and bear arms you can be darn sure that anything to do with the 2nd would not be allowed.

So the left lost the Supreme court. Trump managed to get three judges on to the court wich moved the court from the “living constitution” methodology to the “originalist” methodology. As the court has stated, the people had their say in regards to the constitution, when they ratified the original constitution and when they ratified every amendment to the constitution. The people spoke.

Leftist don’t get to say “well we want a do over! Things changed!” THey scream this, but that’s not how it works.

So they are attacking the court has hard as the can. I’m seeing as many as 20 articles a week denouncing the supreme court. People that had no issues with a court decision that split along party lines for the left now have weeping jags and whine that the court isn’t fair when it splits along party lines for the constitution.

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The other day we reported that the Oregon Firearms Federation had filed suit against Measure 114.

OFF was unhappy because they didn’t see any of the nation organizations helping them.

Well maybe somebody in the GOA or FPC reads this blog or got forwarded the email from OFF but for whatever reason yesterday the GOA signed on to the OFF suit.

In addition the FPC filed a complaint (suit) for declaratory judgement and injunctive relief.

1. The State of Oregon has criminalized one of the most common and important means by which its citizens can exercise their fundamental right of self-defense. By banning the manufacture, importation, possession, use, purchase, sale, or transfer of ammunition magazines capable of holding more than 10 rounds (“standard capacity magazines”), the State has barred law-abiding residents from legally acquiring or possessing common ammunition magazines and deprived them of an effective means of self-defense.

2. Absent relief from this Court, Defendants will violate the constitutionally protected rights of Oregon’s law-abiding citizens and reinforce the erroneous notion that the right to keep and bear arms is nothing more than “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010).

3. Worse yet, Defendants will commit these constitutional violations without any realistic prospect of diminishing the misuse of firearms or the incidence of horrific mass-shootings. The State’s ban on standard capacity magazines will do nothing to address or ameliorate these public policy concerns. All it will do is leave law-abiding citizens more vulnerable to attack from better-armed and more ruthless assailants.

The battle goes on. It is good to see the GOA and FPC step up. I was thinking they would not as they were already doing battle in the ninth circuit court with cases from California. It will be interesting to see what the Federal Judge in Portland decides.

Regardless, I was wrong and I’m glad I was.
COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

In 2005 congress passed Protection of Lawful Commerce in Arms Act often referenced as “PLCAA”. this was a bipartisan bill where both Democrats and Republicans worked together to protect the arms industry.

There are people out there that hate that we possess firearms. They look at the instrument and believe that if the instrument is no more than there will be no more violence committed with guns. They are correct, if there are no more guns then there will be no more gun crime.

The reality is that there will never again be a time when there are no guns. In countries with almost total gun bans bad people still have guns. Japan has some of the most stringent firearm laws in the world. Almost nobody owns a gun. Yet a man was able to build a gun and use it to assassinate a politician.

The fact that their goal is not obtainable has never stopped them from trying to rid the country of all guns. Their goto argument is “it would be worse without the gun control laws that are already in place.” We see this with every win where we claw back more of our right to keep and bear arms. “The streets will run red with blood if you let people own guns legally!”

The almost always leave off the “legally” part because if they actually said it outloud people might start to question how a law that makes it illegal to possess/carry a gun affects a person that has decided to commit a crime like murder.

There are a number of posts about how they fight the battle in the chambers of state and in the courts, but there is another attack vector, that of making it too expensive to own or commerce in arms.

Consider the case of Kyle Rittenhouse. Kyle did nothing illegal. The firearm he was carrying was legally purchased. He was legally carrying it. He was in the place he was legally. He did nothing illegal.

Then a mentally deranged criminal started to chase him. He ran and when he could run no more he fired killing that criminal. He started to render aid when the mob started after him. He ran again.

When the mob had chased him down they attacked him. They tried to kill him with a club (long board) and when he responded with a shot they started to back off but one did not and attacked him again. He fired and killed that attacker, also a convicted criminal. A fourth man started to attack him but stopped. Kyle did not fire. That fourth man then did attack and Kyle fired again, destroying that man’s arm.

All of this was caught on multiple different cameras.

Kyle is still being punished for this. First he was prosecuted criminally. He spent time in jail and had to raise huge amounts of money for his defense. When he was found innocent of all charges he was set free. At that point the civil cases started and they are ongoing as of November 2022. It is unlikely that he will be free of these attacks via lawfare for many many more years to come.

The process is the punishment.

People entered the capitol building on Jan 6th, 2021. Those people are suffering from lawfare. Some have been held in jail for so long that they are pleading guilty just to have a chance of getting their lives back.

Prior to the PLCAA the gun grabbers where getting laws passed as fast as they could to make it as difficult as possible to legally purchase or carry a firearm. They were not satisfied. Even with all of their infringements people were still buying guns.

The answer they came up with was to remove firearm stores and manufacturers from the civilian market. The method they choose was to haunt the grieving like ghouls from a horror film. The parents grieving because their gangbanger son had been shot robbing the local store were prayed upon by these ghouls.

The ghouls showed up and whispered sweet nothings into the ears of the grieving. “Your son was executed.” “Your son never had a chance.” “He shouldn’t have shot your son, he should have called the cops and waited.” “If he hadn’t of had a gun your son would still be alive.” “He is responsible for the cold blooded murder of your son.” “Not only him, but the guy that sold him the gun.” “The guy that sold him the gun got it from manufacturer who has lots of money.”

In just a few days the parents or loved ones go from grieving the loss with anger and revenge in their hearts to having a target for all that hurt and anger. Not only the man that shot their son, but the entire chain that lead to that instant.

And the ghouls did this time and time again. These cases would be filed and the defendant would need to hire a lawyer to represent them. Even if it is a cheap lawyer it is going to cost in excess of $10k to go to court. And in cases like this, where the plaintiffs are well funded, that will skyrocket.

Just listen to the adds selling “CCW insurance.” $100K before you see the courtroom and upwards of a million after.

This was driving small businesses out selling firearms. The gun grabbers with their ghouls were succeeding.

That is until the people reached out to their representatives and pushed for the PLCAA. With the PLCAA the cost of being sued because somebody else did something wrong fell greatly. To the point where it was almost possible to write a short note to the court yourself saying “PLCAA” and having the case dismissed.

The gun grabbers have hated the PLCAA since the day it was signed and they have been looking for away around it.

After Sandy Hook the ghouls showed up and pretty soon the lawsuits were filed against all the regular targets.

And they got tossed out under the PLCAA.

The ghouls went back to the well and regrouped. They decided to go after Bushmaster. Bushmaster had been sold to Remington so this was seen as very deep pockets.

The gravamen of the plaintiffs’ complaint was that the defendants negligently entrusted to civilian consumers an assault rifle that is suitable for use only by military and law enforcement personnel and violated the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.) through the sale or wrongful marketing of the rifle. The plaintiffs’ first theory
of liability was that the rifle is a military grade weapon that is grossly ill-suited for legitimate civilian purposes such as self-defense or recreation, that the rifle and other similar semiautomatic weapons have become the weapon of choice for mass shootings and, therefore, that the risks associated with selling the rifle to the civilian market far outweigh any potential benefits, that the defendants continued to sell the rifle despite their knowledge of these facts, and that it therefore was negligent and an unfair trade practice under CUTPA for the defendants to sell the weapon, knowing that it eventually would be purchased by a civilian customer who might share it with other civilian users.

The plaintiffs’ second theory of liability was that the defendants marketed the rifle, through advertising and product catalogs, in an unethical, oppressive, immoral, and unscrupulous manner by extolling the militaristic and assaultive qualities of the rifle and reinforcing the image of the rifle as a combat weapon that is intended to be used for the purposes of waging war and killing human beings. The plaintiffs alleged that the defendants advertised this rifle differently from how they would promote and sell rifles intended for legal civilian purposes such as hunting and recreation. In connection with this second theory of liability, the plaintiffs also alleged that the defendants’ marketing of the rifle to civilians for offensive assault missions was a substantial factor in causing the decedents’ injuries in that L’s attack, had it occurred at all, would have been less lethal if L had not been encouraged by the defendants’ marketing campaign to select the rifle in question as his weapon of choice.

Bushmaster moved to have the case dismissed via the PLCAA. The lower court agreed. The appeals court agreed. Then the Connecticut supreme court got involved.

For the reasons set forth in this opinion, we agree with the defendants that most of the plaintiffs’ claims
and legal theories are precluded by established Connecticut law and/or PLCAA. For example, we expressly reject the plaintiffs’ theory that, merely by selling semi-automatic rifles—which were legal at the time1—to the civilian population, the defendants became responsible for any crimes committed with those weapons.

So the court says that Bushmaster can’t be sued for selling the weapon as that was protected under the PLCAA. Unfortunately they go on:

The plaintiffs have offered one narrow legal theory, however, that is recognized under established Connecticut law. Specifically, they allege that the defendants knowingly marketed, advertised, and promoted the XM15-E2S for civilians to use to carry out offensive, military style combat missions against their perceived enemies. Such use of the XM15-E2S, or any weapon for that matter, would be illegal, and Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior. Following a scrupulous review of the text and legislative history of PLCAA, we also conclude that Congress has not clearly manifested an intent to extinguish the traditional authority of our legislature and our courts to protect the people of Connecticut from the pernicious practices alleged in the present case. The regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise of the states’ police powers. Accordingly, on the basis of that limited theory, we conclude that the plaintiffs have pleaded allegations sufficient to survive a motion to strike and are entitled to have the opportunity to prove their wrongful marketing allegations. We affirm the trial court’s judgment insofar as that court struck the plaintiffs’ claims predicated on all other legal theories.

In other words, what Bushmaster did was perfectly legal, but they can be sued for the deaths because they advertised incorrectly.

DONNA L. SOTO, ADMINISTRATRIX (ESTATE OF VICTORIA L. SOTO), ET AL. v. BUSHMASTER FIREARMS INTERNATIONAL, LLC, ET AL.

This was appealed to the Supreme Court but certiorari was denied.

Remington Arms Co. v. Soto

At this point Remington was bankrupt and out of business. They were selling of the different parts of the company to pay creditors. When all that was left there was only a legal shell which was still being sued. The only people at risk at this point where the insurance carriers. They were on the hook for a great deal of money if they lost in court and they were on the hook for a great deal of money if they continued the fight.

If they would have continued the fight the case would have been heard by the lower court in CT. Nobody knows how they would have ruled. Regardless of that ruling it would have been appealed at the state level back to the CT supreme court. At that point it is likely that the parties would have again appealed to the US Supreme Court which may or may not have granted certiorari.

While many have decried the insurance companies settling out of court we really can’t fault them. They are not part of gun culture in the least. They are money people and they see everything in terms of money.

We should be faulting the CT Supreme court. If you read the 148 pages of the opinion you will find that not all of the Judges agreed. That it sounds an awful lot like a group of people attempting to get the results they wanted rather than what was legally required.

At this point we see another Lawfare case going on. Down in Uvalde. The plaintiffs have a long list of defendants. All of the police officers are going to duck out of the final case because they have no duty to protect. If any of the officials of the school district or city are found guilty the taxpayers will pay the bill. When everything is said in done, it is likely that this case will end up only against the gun manufacturer and retailer.

The question will become, will the state courts of Texas all apply the PLCAA correctly and how much will it cost to have that happen.

Preemption is another battle heading our way. The gun rights infringers posit this as “local control” or “local government.” They talk about all the other things that conservatives want done at a local level so why not “gun safety” laws?

It is another method of lawfare. It is another method of making it difficult for people to carry for fear of accidentally stepping over an invisible line.

As an example, the state of Massachusetts as a requirement for an FOID. You need a FOID or CTL in order to possess a firearm or ammunition in the state. There are no exceptions for “just visiting.”

A few years ago a student had a fit when he saw a civil war musket ball on his teachers desk. He was arrested for having “ammunition component”. This went to trial and the judge found that the professor had indeed broken the law and that having “ammunition component(s)” was the same as having ammunition which is the same as having an firearm.

Jail time.

Say you were visiting a friend in VT and went shooting. You had a blast and went through a few hundred rounds. You say thank you to your friend for letting you shoot their guns and their ammunition and home to PA.

During your trip through Massachusetts you get pulled over for speeding. During the interaction the cop sees a shell casing that has fallen out of your jacket. It got caught there when you were shooting. He asks you what it is and you explain and he arrests you.

All because you traveled over an invisible line into a place with different laws.

Many states have a preemption statute in regards to firearms. These preemption statutes say that a local government can not make laws regarding firearms. Some just say laws that are at odds with state laws.

Not all states.

This leads to the case where laws can change not only as you travel from state to state, but could change as you travel within a state at county, city or town lines. A Democrat in Tennessee just introduced a bill which would require you to have a carry permit if the area you are in is a metropolitan area with a population over 500,000 OR a county with a population over 900,000.

SB0010 An Act to amend Tennessee Code Annotated, Title 39, Chapter 17, Part 13, relative to firearms.

The standard infringers want to remove preemption for the state statutes. If they can do this it means that any rinky-dink village, town, or city can pass a “regulation” that makes some it more difficult to carry or own a firearm.

Now most of these would be struck down in court. Unfortunately each and every one of them would have to be individually challenged in court. And as soon as one was knocked down another would be put in its place.

As long as our representatives are able to pass laws that are unconstitutional without consequences they will continue to do so. And “voting them out” isn’t enough. Do you think that Nancy or Burnie really care if they get reelected? They have made millions as representatives living on salaries that should not have created that much wealth.

Just as a side note, I’ve had the privilege of working with a number of SES people in the government. They get paid $135k-$204k. A US Senator or Representative gets paid $174,000 per year. The ones that I worked with were rather high up in the SES pay scale. None of them were millionaires.

AOC managed to go from a poor broke bartender to a millionaire in just over two years on $174,000/year living in DC buying at least one very expensive car and maintaining a residence in her home district.

If you hear people talking about preemption, know that it is good when it comes to gun laws.