Gun Free Zone

Where a Redneck Jew, a Hispanic Catholic, and a Computer Geek write about Gun Rights, Self Defense and whatever else we can think about.

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Case Analysis Legal

Koons v. Platkin — Part II

May 20, 2023 awa 0 comments

B.L.U.F. More on District Judge Renee Marie Bumb’s opinion on NJ’s Bruen spasm legislation, Chapter 131. The case is currently being appealed to the Third Circuit court as Ronald Koons v. Attorney General New Jersey, 23-1900, (3rd Cir.)

Her Historical Analysis

The first 50 pages or so of the opinion covered Judge Bumb’s analysis of the text, history and tradition of gun control regulations. When all was said, she found that regulations from as early as the 1328 and as late as the 1890s all support a history and tradition of disarming dangerous people.

She doesn’t cover the Statute of Northampton, from 1328. Different people read it in different ways in regard to how it limits the ownership of arms. She really digs in with regulations dating from 1860.

What most of these regulations have in common is that they set the punishment for the common-law offense” of going armed to terrify the people—KOONS v. PLATKIN, No. 1:22-cv-07464, Doc. 124 (D.N.J.).

Those that were not about going armed to terrify the people were about disarming disfavored groups. Slaves, Negros, Indians, Catholics, and people that were unhappy with the Government or unhappy with the people unhappy with the government were all groups that regulations disarmed.

While Bruen specifically mentions “regulations” in the context of historical analogies, Judge Bumb extends that to include discussions about regulations.

Consider a debate in the legislature regarding the adoption of the new Constitution. It is clear that they want some changes, amendments, to the Constitution. There are three different versions presented:

  1. The right to keep and bear arms shall NOT be infringed!
  2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
  3. The right of the people loyal to the state to keep and bear arms shall not be infringed.

All three of those codify the right to keep and bear arms. The first group pushes hard. They argue that the simple command should be more than enough to protect the right. The second group pushes back. They argue that by explaining the reason why it is so important to protect the right to keep and bear arms, they make the protections stronger.

The third group is concerned about the federal government usurping the citizen militia. They fear that citizens of the state will be tempted by the federal government to take up arms against the states. The wish to have the power to disarm those that are openly agitating against the state government, in favor of the federal government.

After much heated debate, the third version is off the table. The delegates fell that giving the government any say in who keeps and bears arms to be too dangerous. Some more debate and the second version wins.

At this point, we see that The People, via their representatives, have done a means-end or interest balancing tests and determined which version they want.

Judge Bumb feels that the third group’s arguments should be given as much weight in the discussion of the tradition of firearm regulation as the actual regulation adopted. I feel it is the opposite. The fact that they were tested and found wanting means that it was a loosing argument then and is still a loosing argument today.

Her use of surety laws is just as weak.

The Second Amendment only applies to the “Virtuous Citizen”

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feedback

Friday Feedback

May 19, 2023 awa 1 comment

Last week we asked which cases you were interested in next, the winner was Oregon Firearms Federation, Inc. v. Brown. Unfortunately, this got put on the back burner when District Judge Bumb issued her opinion regarding New Jersey’s Bruen response bill. Part two of the analysis of her opinion is in progress.

Hagar has a couple of articles in the queue, based on the feedback you provided.

After O.F.F. v. Brown is updated, I’ll be looking at Boland v. Bonta which is the California rooster case.

There are a few more cases in progress.

I’m hoping that Miguel will take a look at some of the bills making their way through Congress. One of my feeds reported a bill that was introduced to restrict firearm purchases for anybody 25 or younger.

Is there anything you’d like us to look into?

Give your feedback down below.

Have a Great Weekend!

Legal

Progress?

May 18, 2023 awa 2 comments

In my “docket alerts” over at CourtListener, I have over 30 alerts set. Each alert causes the site to send me email when a case is updated.

I’ve talked about how long it takes to get a case through to completion. The excellent news, today, is that completion now feels like it will be a win for the Second Amendment side.

But I noticed something, we are less than a year out from Bruen and the Supreme Court has already looked at two different cases. They decided against intervening, but this seems to have been done on procedural grounds.

The latest was an appeal from the 7th Circuit court. From the time of the appeal to the time of decision by the Supreme Court was less than 2 weeks. The request was denied. It doesn’t matter.

It is still a win for the Second Amendment.

In the past, 2A cases would languish in Circuit Court limbo for months or even years. The cases were delayed, progress was slow and painful.

The 7th Circuit is one of the courts that has a history of dragging its feet when it comes to Second Amendment rights. As long as the state holds the upper hand, the courts respond slowly.

We have already had the 2nd Circuit Court go from “yeah, we’ll hear the appeal sometime in the future.” to “We will hear oral arguments in 2 months.” The 7th did an instant grant of a stay. It looked like it would be many months before the 7th got around to hearing the case.

Instead, one of the cases was appealed to the Supreme Court. The Court asked for a briefing and within the week the circuit court had scheduled briefings on an extremely tight time frame.

Of those 30+ cases? Nearly half of them are at the Circuit Court level already. Some at the preliminary injunction level but some at the injunction level.

Nobody is sitting still.

I’ve been wrong about some of my timelines.

I believe that what is going to happen is that the Circuit courts are going to delay issuing their opinions until the end of the Supreme Court Term. That will give them a bit of time before the Supreme Court can take new cases.

We might be seeing cases before the Supreme Court by the end of 2023.

It is an interesting time to be involved with the 2A community.

Case Analysis Legal

Koons v Platkin — Bruen Spasm Response

May 17, 2023 awa 4 comments


B.L.U.F. A District Judge in New Jersey issues her order and opinion on a motion for a Preliminary Injunction. She is not happy with the state. She does an okay read of Bruen, finds in part for the plaintiffs (good guys) and in part for the defendants (bad guys/state).

Good News

In conclusion, the Second Amendment’s “right to bear arms in public for self-defense is not a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’” Bruen, 142 S. Ct. at 2156 (quoting McDonald, 561 U.S. at 780). That does not mean, however, that the right is “unlimited.” Heller, 554 U.S. at 626. The Constitution leaves the States “some measures” to combat handgun violence. Id. at 636. But what the Second Amendment prohibits the States from doing, and what the State of New Jersey has done here with much of Chapter 131, is to “prevent[] law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” Bruen, 142 S. Ct. at 2156. That is plainly unconstitutional.
— KOONS v. PLATKIN, No. 1:22-cv-07464, Doc. 124 at 234 (District Court, D. New Jersey, May 29, 2023)

The short answer, here, is that the Judge gets it. Chief Judge Renee Marie Bumb has written a 235-page opinion that is extensive. While the final outcome is not a 100% win for the Second Amendment, it is still a devastating take-down of the state.

History

In Bruen’s wake, New Jersey’s Legislature sprang into action, amending the State’s firearm laws in many ways. First, the Legislature dropped the State’s firearm law requiring a person to show “justifiable need” to carry a handgun in public for self-defense—a requirement that Bruen explicitly struck down. Second, the Legislature created a list of 25 “sensitive places” where firearms are banned under threat of criminal prosecution. These places range from government-owned buildings, libraries, entertainment facilities, and restaurants that serve alcohol to all private property unless prior consent to carry is given. In enacting the sensitive places law, the Legislature purported to abide by Bruen by declaring the Nation’s “history and tradition” supported banning firearms at these identified locations. 2022 N.J. Laws, ch. 131, § 1(g).
— Id. at 7

A pretty good start. sprang into action has that sort of dig against the state the Courts do when they are telling the state they understand the nefarious motives of the state.
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History Legal

Quote of the Day

May 15, 2023 awa 1 comment
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” We explained in Heller and McDonald that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” Heller, supra, at 592, 128 S.Ct. 2783; see also McDonald, supra, at 767-769, 130 S.Ct. 3020. We excluded from protection only “those weapons not typically possessed by law-abiding citizens for lawful purposes.” Heller, 554 U.S., at 625, 128 S.Ct. 2783. And we stressed that “[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Id., at 634, 128 S.Ct. 2783 (emphasis deleted).

Instead of adhering to our reasoning in Heller, the Seventh Circuit limited Heller to its facts, and read Heller to forbid only total bans on handguns used for self-defense in the home. See 784 F.3d, at 407, 412. All other questions about the Second Amendment, the Seventh Circuit concluded, should be defined by “the political process and scholarly debate.” Id., at 412. But Heller repudiates that approach. We explained in Heller that “since th[e] case represent[ed] this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.” 554 U.S., at 635, 128 S.Ct. 2783. We cautioned courts against leaving the rest of the field to the legislative process: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” Id., at 634-635, 128 S.Ct. 2783.

Based on its crabbed reading of Heller, the Seventh Circuit felt free to adopt a test for assessing firearm bans that eviscerates many of the protections recognized in Heller and McDonald. The court asked in the first instance whether the banned firearms “were common at the time of ratification” in 1791. 784 F.3d, at 410. But we said in Heller that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” 554 U.S., at 582, 128 S.Ct. 2783.

The Seventh Circuit alternatively asked whether the banned firearms relate “to the preservation or efficiency of a well regulated militia.” 784 F.3d, at 410 (internal quotation marks omitted). The court concluded that state and local ordinances never run afoul of that objective, since “states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade firearms.” Ibid. But that ignores Heller’s fundamental premise: The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs, but by what private citizens commonly possess. 554 U.S., at 592, 627-629, 128 S.Ct. 2783. Moreover, the Seventh Circuit endorsed the view of the militia that Heller rejected. We explained that “Congress retains plenary authority to organize the militia,” not States. Id., at 600, 128 S.Ct. 2783 (emphasis added). Because the Second Amendment confers rights upon individual citizens—not state governments—it was doubly wrong for the Seventh Circuit to delegate to States and localities the power to decide which firearms people may possess.

Lastly, the Seventh Circuit considered “whether law-abiding citizens retain adequate means of self-defense,” and reasoned that the City’s ban was permissible because “[i]f criminals can find substitutes for banned assault weapons, then so can law-abiding homeowners.” 784 F.3d, at 410, 411. Although the court recognized that “Heller held that the availability of long guns does not save a ban on handgun ownership,” it thought that “Heller did not foreclose the possibility that allowing the use of most long guns plus pistols and revolvers … gives householders adequate means of defense.” Id., at 411.

That analysis misreads Heller. The question under Heller is not whether citizens have adequate alternatives available for self-defense. Rather, Heller asks whether the law bans types of firearms commonly used for a lawful purpose—regardless of whether alternatives exist. 554 U.S., at 627-629, 128 S.Ct. 2783. And Heller draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns. Id., at 624-625, 128 S.Ct. 2783. The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles. See 784 F.3d, at 415, n. 3. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. See ibid. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons. See McDonald, 561 U.S., at 767-768, 130 S.Ct. 3020; Heller, supra, at 628-629, 128 S.Ct. 2783.

The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits. See 784 F.3d, at 411-412. The court conceded that handguns—not “assault weapons”—”are responsible for the vast majority of gun violence in the United States.” Id., at 409. Still, the court concluded, the ordinance “may increase the public’s sense of safety,” which alone is “a substantial benefit.” Id., at 412. Heller, however, forbids subjecting the Second Amendment’s “core protection … to a freestanding `interest-balancing’ approach.” Heller, supra, at 634, 128 S.Ct. 2783. This case illustrates why. If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.
— Friedman v. City of Highland Park, Ill., 136 S. Ct. 447 (Supreme Court 2015)

Thank you Clarance Thomas.

Legal Rant

Games People Play -> You Lie Down with Dogs

May 15, 2023 awa 1 comment

Background

The Supreme Court has ruled that the meaning of an Amendment is locked to the time it was adopted. The People at that moment of time analyzed the end and decided that the means proposed was properly balanced. If The People decide that the original analysis was wrong, they will go through the process of amending the Constitution.

Karen Achoo, the governor of a blue state, requests and gets the Protect Our State (POS) law passed. This declares that dangerous or unusual weapons can be banned, and it is factually obvious that firearms that hold more than two rounds are dangerous and thus are banned.

This bill goes into effect on January 1, 2024. We now game the problem from the view point of the anti-gun side.

Scenario One

The Supreme Court is 6-3 favoring originalism. Judges that will read the law(s) as written and apply the means-end that was done at the time of the adoption of those Amendments.
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