Continuing from our last article, Cases are won and lost before they are heard, we look at —No. 36 Lafave v. The County of Fairfax, Virginia, No. 1:23-cv-01605 (E.D. Va.).

The state wants discovery. They put the plaintiff’s (good guys) reasoning as:

The plaintiffs are correct. No discovery is required. Are the plaintiffs part of The People? Do they wish to keep or bear an arm? If the answers are both yes, the plaintiffs’ burden is met. The burden then shifts to the state to demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.—New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, 8 (U.S. 2022)

Not only was Bruen resolved solely on the pleadings, so were Heller, McDonald and Caetano. I’m not sure about Stables.

When the question is purely of law, there is no need for experts. The experts are the courts. The parties bring forth their arguments via pleadings. The court reads the pleadings, listens to the arguments, evaluates case law, and then issues their opinion.

“Expert testimony” is expressly forbidden to give legal opinions. If there are legal arguments, the parties must present them, as their own experts.

In one of the Ninth Circuit cases, the state is arguing that certain expert testimony is actually opinions of law and must be discarded.

Even if the state was arguing about “The People” or “arm”, there are no experts involved.

The state offers a powerful argument. Surely, overpowering the weak argument of the plaintiffs, who relied on Supreme Court opinions and holdings. The state tells the court that other district courts allowed expert testimony and discovery.

This is as bad as the Seventh rejecting arguments for The People because courts inferior to them had ruled against The People.

Ignoring the courts that found for The People.

This discovery process can be very intrusive and expensive.

The reality of this is that the discovery process will add 5 months to this litigation.

When I was nerding, I was complaining about the amount of effort I was going through to just display a line of text with proper word wrapping. I introduce you to, QTextLayout which does exactly that. I’m in the process of debugging the newly re-written code.

3 steps forward, two steps back. Regardless, I feel better about it.

On the other hand, I started reading the transcript of Delaware State Sportsmens Association Inc v. Delaware Department of Safety and Homeland Security, 23-1633, (3rd Cir. Mar 25, 2024) ECF No. 118. My blood pressure went up. I’ll be reading the rest of it and presenting some feedback. Suffice to say, the judges in the case asked questions that indicate that they have reading comprehension issues.

The left is busy screaming that Justice Thomas has no business hearing a case regarding the persecution of the J6 victims because his wife was “participating in the insurrection.”

Isn’t it amazing how the most heavily armed group of people in the world, showed up for the insurrection and forgot to bring their guns?

The number of J6 victims that were persecuted for having scary looking tactical gear and med kits is not surprising.

Note, I do have far too many spelling errors. “Prosecution” and “persecution” are two different words.

We are also watching the trial of Trump. If I wasn’t already sick from what they were doing to the J6 victims, I would have more sympathy for what they are doing to him.

This weekend will be “fun”. I’m going to be making a backing plate for a lathe chuck. I picked up a “chunk-o-iron” this week. 5.5in in diameter, 8.76 inches long. I should be able to get at least 3 backplates out of that. The cost of one backplate, if they made one to fit my lathe, would cost more than twice the cost of the raw stock.

This will be an adjust true collet chuck. When I’m done, it should be able to maintain 0.0002″ TIR. That is beautiful.

There are three primary types of lathe chucks. There is an “independent” chuck, a “self-centering” chuck, and then collet chucks.

The chuck is attached to a backplate which mounts on the spindle of your lathe. You machine the face of the backplate in place on your chuck. The better you do, the better your check will be centered.

When using a self-centering chuck or a collet chuck, you are stacking total indicated run out, TIR. The backplate will have some run out. By doing the final machining in place, you can reduce that greatly. You leave a boss on the face and that fits into a recess in the back of the chuck.

If that fit is very close, there is very little movement that can be done to cause run out. But there might be some.

When using an independent jaw, each jaw moves independently. Normally, that would be a four jaw chuck. By carefully measuring the run out, you can determine which jaw is the furthest from the center. You can tighten that jaw and the work will move closer to the center.

If the jaws are already tight, you can loosen the jaw on the opposite side slightly. Using this method, you can easily get your work running true (no run out) to within 0.0005.

The magic of an “adjust true” chuck is that it combines a self centering chuck or a collet chuck with an independent type of adjustment.

You put the backplate with chuck onto the spindle. You put a known quality pin in the chuck. You can now shift the front part of the chuck independently to get that very low TIR.

Using a collet chuck, you can take the work out of the chuck, do something to it, put it back in the collet. It will have the same run out as it had before.

This allows me to do some things more easily.

I’m glad you all got to laugh at my misfortune of losing some of my music. The magic of streaming music has introduced me to 1000s of songs I would never have heard otherwise.

What artist or song from your past have you listened to recently and said, “that’s horrible?” For me, it was Olivia Newton John’s “Physical”. I thought I would enjoy that blast from the past, I didn’t.

What artist or song have you discovered today that you would not have enjoyed in the past? For me, it is all the old time swing bands and Frank Sinatra.

The comments are open.

Back in January 2024, Judge Suddaby slapped New York State around. At issue was a requirement that people who were living in public subsidized housing were required to enter into a contract that forbid firearms on housing grounds.

The contract was a complete ban on keeping or bearing arms within the housing properties.

Because Judge Suddaby’s court is inferior to the Second Circuit court, he is required to follow their opinions. This is a true mess because of the Second Circuit’s laughable opinion in Antonyuk II.

Bluntly, the Second Circuit court is not acting in a serious manner. They are making a joke out of your rights and mine. They would rather play word games in direct rebuttal of the clear guidance from the Supreme Court, their superiors.

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.

Is the individual a member of The People? Yes. Do they wish to keep or bear arms? Yes. Then the plain text of the Second Amendment clearly covers the conduct.

The plaintiffs, having met their burden, need only refute the state when the state presents regulation that is consistent with this Nation’s historical tradition of firearm regulation.

In short, the state has the burden to prove that historical tradition of firearm regulation.

The state may not simply posit what the founding fathers could have done, they have to show what the founding fathers actually did. It has to be a regulation. That regulation must be a part of our Nation’s historical tradition of firearm regulation.

The Second Circuit got it wrong. Even the state doesn’t like citing the hot mess of the Second’s opinion.

Regardless, the Second Circuit got it right when they said Reasoning from historical silence is thus risky. Which they then proceeded to do. They claim that they know that legislatures would have created regulations that match the current infringements if the legislatures had found a need. So obviously, this is an acceptable infringement, today.

That doesn’t seem to match government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.

This is the baggage that Judge Suddaby is laboring under.

Even so, he granted the plaintiffs (good guys) motion for a TRO and preliminary injunction against the state.

When the court writes:

It doesn’t matter whether those words are from the plaintiff or from the court. The court is outright saying that the behavior of the defense (state/bad guys) is appalling.

This case is still in an interlocutory state. There are things that have to happen first. Which is where the title of this article comes from.

At the start of a case, there are several motions filed asking the court to do things. There are motions for temporary restraining order, motions to dismiss, motions for preliminary injunctions, motions for summary judgment and a host of other motions/requests.

One of the things that happens during this process is discovery. This is when the parties ask questions of each other and request documents. This is also the time in which different people are disposed.

If a party refuses to provide answers or documents, they must have a reason. If that reason isn’t satisfactory, the parties take it to the court for resolution.

The questions asked, and the documents requested, are often revealing. Just as revealing are the questions that are not answered and the documents which are not produced.

Some questions and documents are known to be off limits. The scope of those limits changes over the course of the case. The scope changes when the parties bring certain facts into the court.

In this case, the state is arguing that public need allows them to ban arms in public housing. The plaintiffs argue that they need arms because dangerous people live in the housing units. The state countered that the plaintiffs don’t know that there are dangerous people in the housing units.

This opens the door for certain inquiries.

The state is refusing to answer these requests. They claim that it would violate tenant privacy. The plaintiffs argue that the state opened themselves to these production requests because they claimed that the plaintiffs didn’t need arms to protect themselves.

This little battle, behind the scenes, goes on for many cases. How the judge rules will change how the parties advance.

An important thing to note, is that some suits have no expectation of winning the suit. The goal of the suit is to do discovery. To get behind closed doors.

The questions about permits by CHA employees suggests an attack vector. Why are you denying the plaintiffs arms when your employees have arms? Can you provide protection if none of your security team are armed? How many dangerous people live in the CHA?

All in all, it is an interesting game to observe.

Oh, none of this discovery is needed under Heller as affirmed by Bruen. Does the Second Amendment’s plain text cover the individuals’ conduct? If so, the state bears the burden of demonstrating that their modern infringement is consistent with this Nation’s historical tradition of firearm regulation.

There is no need for discovery outside of: “do you want to keep or bear arms?”, “Are you part of The People?” If both of those questions are answered in the affirmative, then the burden is upon the state to prove that the modern infringement is consistent.

There was a snarky comment recently wondering what language I dream in.

Not so snarky, actually.

If you were to ask my lady what language I dream in, she would be likely to answer, “I don’t know, but he types on my back in his sleep.”

Yes, I program in my sleep. I code while in the shower. I solve problems, regardless of what I’m doing.

I started programming experience with “procedural programming”. That is to say, a series of procedures that call each other and return results.

As part of that training, I quickly realized that any problem in programming could be broken into smaller and smaller “functions” or “procedures” until you were at the single machine instruction level.

For me, programming is broken into developing a series of black boxes that are connected to produce results.

If you look at a problem, “I want to layout a line of text on a screen with word wrapping”, it can be broken into smaller questions.

“I want to know the number of characters that will fit on the remainder of this line.” When black boxing, you put a function or procedure in place and assume it works. It doesn’t matter if it does or not. You can even fake it. Instead of actually doing a calculation, it can just return a constant.

Now that I’ve made this “magic” black box, I use it to solve the harder problem. Once that is solved, I can address the black box and make it work correctly.

I combine this with what I call “railroad structuring”.

Suppose that the final step in a black box is to draw a text on the screen. You are given a data structure that contains strings of text with markup. The data structure imparts formatting on the text as well.

You could write code that looks at the data structure and “does the right thing”. You would then end up with dozens of pieces of code, all that are supposed to do “the right thing”. Needless to say, this is seldom the case, at least a few of those places will do the wrong thing. And if you fix it in one place, you have to fix it in all other places.

So I create the end game, “draw the string ‘text’ at ‘position’ using ‘formatting'”. The rest of the code works to create “text”, “position” and “formatting”.

if the original text had markup in it, then that little section would modify text and create formatting to match the requirements of the markup. After that is done, we have ‘text’, ‘position’ and ‘formatting’. At each step, the result is always ‘text’, ‘position’ and ‘formatting’.

So, when somebody asks, “What language do you dream in?” The answer is, “my programming language.”

Because all computer languages look the same to me, but for syntax, it doesn’t matter. I always know what I want the language to do. I might have to look up the syntax for a particular thing, but that’s never an issue.

As an example:

for i in range(0,9):
print(i)


and


for (i=0; i<10; i++) {
fprintf("%d", i);
}


Do the same thing, I think. Because ‘range()’ is python and I’m never sure about it, I’ll look it up to find out if it gives me 0 through 8 or 0 through 9.

Still, the logic is the same and correct for me.

I grew up listening to my parents’ music. I later started listening to WCMS 99.9FM. “Almost Perfect Radio” Their original was “Western and Country Music Station”.

Most of the music my parents owned had been transferred to reel-to-reel tape. This is actually a real problem. There were a couple of “albums” that I wish I knew the names of.

When I went to University, I was exposed to different music. Mostly because, being a collage town, they had no country music radio station. If I would rather not listen to the latest pop music, I had to find my own.

Then a fantastic thing happened, CD’s. Because the CD was not harmed when played, the CD emporium would let you listen to a CD before you purchased it. And boy did I listen to a lot. I purchased even more.

When I divorced my first wife, that CD collection was a sticking point. I ripped all of those CDs. All 500+ of them.

And then google ate it. GRRRRR

Not having the CDs in front of me, I’ve had to remember albums I used to listen to. The other night I listened to the London stage recording of ‘Cats’. Why? Because it was one of those albums I used to own.

So here is a song from a group I use to listen to:

Saturday was my monthly outing to interact with people. Always a stressful thing for me.

Part of that stress was aggravated because I couldn’t find the holster for my preferred firearm for “polite company that isn’t Gun People.” Which meant that I was carrying a 1911 instead of a Sig. That Sig is so small it doesn’t print at all.

So I’m speaking with some friends, but move on to introduce myself to the man my wife is talking to. He introduces himself and I do a threat assessment.

Not enough information.

He appears to be from the Middle East and talks with an accent that matches. threat += 1

We banter about not having met before. He claims to have been going to these events for multiple years. This is the first time I’ve seen him. threat += 2.

When I ask about his accent, he tells me he is Egyptian. threat += 0

I say something to like, “Oh, I thought you were from the Middle East.”

“No, I’m from Egypt. Egypt is not part of the Middle East.” threat += 1

He then explains to me that Egypt is part of Northern Africa, not the Middle East. Ok. This is a true statement. I’ll accept this on face value for now. He is attempting to distance his country from the Middle East. threat -= 2

He then tells me that the Middle East consists of the following countries: Palestine, Israel, Lebanon, Syria, Turkey, Iraq, Iran, Saudi Arabia, Qatar, UAE, Yemen, and Oman. Basically, everything west of the Red Sea but nothing on the continent of Africa. threat += 5

There is no country of “Palestine”.

We are in polite company, I’m not interested in him anymore. The threat level has hit 7.

He had not done anything to suggest ill intent on his part. But the entire conversation left me feeling uncomfortable.

The numbers I’m using are made up. They are in this article for illustrative purposes only.

A different example of a threat assessment: Older adult male, white, heavy smoker, day labor/handy man. The threat assessment was so high that he was never and would never be invited into my home. The sort of person who if I were to sell him a firearm, I would do it through an FFL, regardless of what he said about his background.

A different example, a number of dark skin females wearing head coverings. No increase in threat level. An angry black man with a skull cap comes out and starts speaking in angry tones to the women. Threat assessment goes high enough that I reposition myself and make sure he is under observation at all times. Verified egress path.

We all do threat assessments. If you can’t do a good assessment rapidly and then trust yourself you need to practice more.

The thing to note that more people have been injured or killed trying to avoid offending people than have been from avoiding people and situations that raise that threat assessment.

This has been a difficult article. None of us want to be racists. We would rather not judge people by the color of their skin or the culture they come from. We would rather not appear to be the sort of people who do judge people by their outward appearance.

But we are judged by what we look like. We do judge people by what they look like. When people see me, they will make assumptions about my past. Typically, they are mistaken. Some of that is because of how I present. I have three favorite hats I wear. A woodland camo Boonie Hat. A military issue watch cap.

And a black and white knit cap made from the yarn I spun from raw wool. My wife dyed the wool before I spun it. I had a friend make the cap.

If I’m wearing any of them, people assume. That’s fine with me. The only issue is when somebody thanks me for my service and I have to say, “I didn’t serve.”

Are you part of that paranoid group, like I am? Do you walk into a place and immediately find all the exits? Even exits that are not assessable to the public? Do you look for the seat where you can watch the people and there are few or no people behind you? Do you give every person who enters the once over?

Do you blade yourself to keep your firearm that much further from “them?”

Or is that just my paranoia?

The other day I was reading Bruen, again. I was looking up that standard mantra, “When the plain text of the Second Amendment is implicated, the burden shifts to the state or prove a history and tradition of regulation.”

That is not what Bruen says.

The state must prove the regulation is consistent with this Nation’s historical tradition of firearm regulation.

Not “this nation’s history and tradition,” but “this Nation’s historical tradition.”

Those are two different things. I might be able to prove a tradition of disarming people as they enter the church. But if there is no historical regulation, that tradition is meaningless in support of a modern infringement.

In the same way, I might be able to show that there was a historical regulation that banned guns in schools. If it is not also a tradition, then it doesn’t meet muster.

Notice that it also says this Nation’s historical tradition of firearm regulation. I don’t know how well it would work in court, but this seems to say that bans on other types of arms are not meaningful in a modern Second Amendment Challenge.

This appears to be a one-way ratchet. We can use the Second Amendment to protect all arms. The state can only use firearm regulations to justify their modern infringements.

So lock it in, When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. And, The state must prove that their modern infringement is consistent with this Nation’s historical tradition of firearm regulations.

Nothing from before this Nation counts. Nothing from a different nation counts. It must be part of this Nation’s historical tradition of firearm regulations.

supported by the historical tradition of prohibiting —id. at 1–2,

H/t to Mark Smith for pushing me to write about this.