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Who Should Be Prohibited?

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


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

He missed.

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

Look at missing his target from less than 100 ft.

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

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

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

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

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

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

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

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

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

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

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

  1. It shall be unlawful for any person—
    1. who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
    2. who is a fugitive from justice;
    3. who is an unlawful user of or addicted to marihuana or any depressant or stimulant drug (as defined in section 201(v) of the Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731(a) of the Internal Revenue Code of 1954); or
    4. who has been adjudicated as a mental defective or who has been committed to a mental institution;

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

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

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

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

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

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

The amended GCA adds four more classes of prohibited person.


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

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

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

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

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

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

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


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

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

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

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

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

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

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

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


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

A Couple of interesting cases

18 USC §922(g) is the prohibited person section of US federal law. It has 9 different sections, each one addressing one class of people to be denied their rights.

The Constitution says that “The People” is all of the people. The question being asked again and again is who belongs to the class “The People”.

It is clear that a US Citizen is part of “The People”. That implies to me that felons are also part of “The People”.

Do you lose your citizenship if you are wanted by the law? Nope.

Do you lose your citizenship if you partake in the “devil’s lettuce?” Nope.

Do you lose your citizenship if you have ever been in a mental institution? Nope.

Do you lose your citizenship if you have been dishonorably discharged from the military? Nope.

You lose your citizenship when you renounce it.

If you are imprisoned, you lose access to many things. They don’t allow drugs, weapons and many other things. Doesn’t mean those things aren’t getting into prisons, it just means it is against the rules and a prisoner can be punished if they are found breaking those rules.

In addition, we have the question of being an alien. Are the legal aliens living here part of “The People”? How about illegal aliens? Are they?

Originally, §922(g) was about transferring firearms. Now it is about both transferring and possessing.

The government has defined classes of people that they feel should be excluded from “The People”. The short is that they have said that these classes of people are not “virtuous”.

In Soviet Russia they had mental asylums. People were committed if they were mentally unstable. Unfortunately this turned into a catch all for “enemy of the state.” Since the state was wonderful, anybody that spoke out against the state must be crazy. If they were crazy the were committed. This made society “safer”.

If the government can define what is and is not a virtuous person and also define “The People” as only those that are law abiding and virtuous, they can remove any right at will. They just exclude you from “The People” and your rights evaporate.

We now have multiple cases challenging parts of §922(g). In OK, tenth circuit, a district court has ruled §922(g)(3), drug user, as unconstitutional. The fifth circuit court has ruled that §922(g)(8) is unconstitutional. A district judge in the western district of KY, sixth circuit, has found §922(g)(8) unconstitutional.

We need to wait to see if the state appeals these cases. It would not surprise me if Texas does appeal. If they appeal and it gets to the Supreme Court it could be a quick case where TX puts in a lackluster performance and parts of §922(g) go away across the entire country.

Other states which are anti-gun might very well not appeal losses at the district or circuit levels in order to keep the case from getting to the Supreme Court.

Over in California, Judge Benitez just dropped the hammer on the state in a number of cases, 3 IIRC.

The State Defendants are directed to file a brief which identifies the best historical regulation that is a proper analogue and relevantly similar to a (statewide prohibition on a firearm with listed features) (statewide prohibition of an ammunition feeding device or a limit on the amount of ammunition) (statewide background check for buying ammunition). The brief shall be limited to 5 pages and shall be filed with the brief currently due 30 days after the filing of the law list.

I tried to find what “filing of the law list”, regardless, the worse it could be is 30 days from now. The best it could be is just a few days because Benitez ordered all briefings be provided to him with in a short period of time once the ninth circuit court kicked these cases back to him.

At the same time we have a number of states attempting to ban assault weapons and magazines because the are exceptionally deadly/dangerous. We have a bunch of states that are attempting to make their entire state a sensitive place via a patchwork of explicit places that are listed as sensitive.

In all cases that are being tracked by me, we are winning. Not as fast as I would like, but we are winning.

Some in NY get it

B.L.U.F. Some of the media understands that the NYS CCIA is an overreach that accomplishes nothing.


One of the great stupidities of New York’s current gun-law debate is that existing laws merely required a couple of tweaks for them to prove effective — nowhere more so than in the need for a license-to-carry rule based on objective criteria rather than bias and favoritism.

There are a number of pundits talking about knee-jerk responses by the different states. The states that created a spaghetti bowl of new laws to throw at the wall. The states that created “Kill carry” bills which make it easier to get a CCW but which makes it almost impossible to actually carry anywhere.

The responses are starting to fall into a few categories:

  • Sensitive Places
  • Good Moral Character
  • Prove you are a responsible law abiding citizen
  • Expanded training that isn’t available
  • Costs increases.
  • Attempting to flip who has to prove history and tradition
  • That particular thing isn’t covered under the second amendment because it isn’t an “arm” or it is “exceptionally dangerous”

Nobody wants to hear it in the era of “decarceration” and “depolicing,” but one of the major problems facing crime-ridden Democrat-run cities is that many firearms offenses — short of murder — now go largely unpunished: In Philadelphia, 61% of gun cases are dismissed without charges or trial, up from less than 30% as recently as 2016.

Yep, right on target there. If you put the bad guys in jail, they aren’t going to be doing bad things to us.

Of the 4,456 gun arrests NYPD made in 2021, there was at last count one (not a typo!) conviction at trial and far more dismissals (983) than plea deals (698). Statistically speaking, the most likely thing to happen after an arrest for illegally carrying a gun in New York is … nothing.

Imagine that, nearly 4.5 thousand people were arrested in NYC for violating some part of their gun laws in 2021 (pre Bruen) yet only one was taken to trial and convicted.

It is highly likely that the poor saps that did end up being punished after a gun arrest were mostly law abiding, people that caught up by the police because ???.

It reminds me of the stories of construction workers being stopped and frisked. Their pocket knives were found. The cops then did a “flick test” where they attempted to open the knife one handed. If they were able to do so, they worker was jacked up on a weapons violation.

The problem with New York City’s license-to-carry law was never that it was too strict — it was that it was arbitrary and favored the connected. Celebrities such as Steven Seagal and Joan Rivers were issued licenses, but ordinary New Yorkers long found it nearly impossible to get one. This wasn’t a matter of responsible gun ownership — asked in 2003 about the concealed-carry permit he had secured during his mayoral candidacy four decades earlier, William F. Buckley Jr. replied: “I have my pistol permit in my wallet, and no one knows where the gun is.”

The problem with New York City’s license-to-carry law was never that it was too strict — it was that it was arbitrary and favored the connected. Celebrities such as Steven Seagal and Joan Rivers were issued licenses, but ordinary New Yorkers long found it nearly impossible to get one. This wasn’t a matter of responsible gun ownership — asked in 2003 about the concealed-carry permit he had secured during his mayoral candidacy four decades earlier, William F. Buckley Jr. replied: “I have my pistol permit in my wallet, and no one knows where the gun is.”

And here is our words echoed back to us:

The license-holders are not the problem. The criminals are.

 

Tuesday Tunes

Reading media reports is driving me crazy. We’ve got democrats introducing new gun control everyday. We’ve got bad guys winning 2A cases.

We’ve got inflation going through the roof and our government taking victory laps because it isn’t as bad as it was last month.

Nothing but clowns and jokers everywhere you look in DC.

And as recorded:

Case Law example

B.L.A.B. Bottom Line At Bottom

In 1967 a bad dude was arrested in connection to a rape and kidnapping. He was also charged with robbery where he matched the description.

Appellant was convicted of the crime of kidnapping, Count I; and Rape, Count II; and sentenced to serve from twenty to thirty years on each count, to run concurrently. From the judgment and sentence of the court he appeals. Appellant, hereinafter called defendant, was in another information charged with the crime of robbery. After arraignment in the instant case, on motion of the county attorney, the trial on the robbery case was consolidated with the instant case, but thereafter one day prior to the trial of this case separate trials were granted. Defendant was tried and convicted on the robbery charge, from which he is also appealing in the companion case…

Here is the court’s description of the case:

The facts, as they relate to the defense as charged under Counts I and II in the instant case are as follows: On March 3, 1963, the complaining witness a girl eighteen years of age had been working in the concession stand at the Paramount Theatre in downtown Phoenix, and had taken the bus to 7th Street and Marlette. After getting off the bus, she had started to walk toward her home. She observed a car, which afterwards proved to be defendant’s, which had been parked behind the ballet school on Marlette. The car pulled out of the lot, and came so close to her that she had to jump back to prevent being hit. It then parked across from some apartments in the same block. Defendant then left his car, walked toward her, and grabbed her. He told her not to scream, that he would not hurt her. He held her hands behind her back, put a hand over her mouth, and pulled her toward the car. He put her in the back seat, tied her hands and feet, and put a sharp thing to her neck and said to her “Feel this.” She stated it all happened so suddenly that she did not have time to do anything. Defendant was unknown to the complaining witness. She had not seen him before, and he was not related to her in any way.

He then drove the car for about twenty minutes, during which time complaining witness was lying in the back seat crying. When defendant stopped the car, he came to the back seat, and untied her hands and feet. He told her to pull off her clothes. She said “no,” whereupon he started to remove them. She tried to push away from him, but he proceeded to remove her clothing. And, then, after one unsuccessful attempt, made a successful sexual penetration, while she pushed with her hands and was screaming. She testified:
*22 “I was pushing against him with my hands. I kept screaming, I was trying to get away but he was a lot stronger than I was, and I couldn’t do anything.”

He then drove her to 12th Street and Rose Lane, during which time she dressed. She ran home, and told her family, who called the police. Her sister testified that the complaining witness came home that morning crying and looking as if she had been in a fight. On March 13, 1963, defendant was apprehended by the police. The officers who picked him up both testified that he was put into the “line-up” and was identified by complaining witness. Thereafter he confessed that he had forced complaining witness into his car, drove away with her, and raped her. After these statements he signed a statement, partly typed and partly in his own handwriting, which was substantially to the same effect as the testimony of the officers. Defendant offered no evidence in his defense at the trial of his case.

So there you have it. Open and shut case. Dude stalked this girl, grabbed her off the street, forced her into his car, threatened her with a knife, then raped her. He then drove off with her and later released her.

When the cops arrested him, he confessed. At his trial he offered no evidence in his defense.

He was guilt, the judge knew it, the jury knew it. He was found guilty and sentenced to 20 to 30 years.

At the same time he confessed to the robbery but didn’t sign a written confession. He was found guilty of the robbery as well and sentenced to 20 to 30 years.

The law at work.

This court appointed lawyer, at trial claimed that his client was to ignorant to knew he had rights under the constitution. That he just talked to the cops and then signed his confession. Because he didn’t have his lawyer present, his confession should not be admitted.

The court disagreed and the confession was entered into evidence.

After he was found guilty, he appealed to the Arizona Supreme court.

Defendant contends that admission into evidence of his written confession was error for the reason that he did not have an attorney at the time the statement was made and signed. The police officers Young and Cooley testified to oral statements made to them before the signing of the written confession. Their testimony was substantially the same. They first saw defendant at his home at 2525 West Maricopa on March 13, 1963, when they went there for the purpose of investigating a rape. They took defendant to the police station and placed him in a “line-up” with “four other Mexican males, all approximately the same age and height, build,” and brought in the complaining witness who identified him as the one who had perpetrated the acts against her. Then they immediately interrogated him. They advised him of his rights. They testified that he made the statement of his own free will; and that there were no threats, or use of force and coercion, or promises of immunity; that they had informed him of his legal rights and that any statement he made might be used against him.

Having weighed all of the arguments and evidence, the Arizona Supreme Court affirmed the conviction in the rape case.

Justice is served, a bad dude is in prison for 20-30 years. A raped woman gets to face the animal and help send him to prison.

Unfortunately, this scumbag wasn’t done abusing the court system. He appealed to the Supreme Court of the United States. His claim was that since he didn’t have his lawyer present when he gave his confession that it shouldn’t have been admitted into evidence at trial.

The Supreme Court combined his case with others and in 1966 issued their opinion.

Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

Bottom Line At Bottom

This is the famous Miranda v. Arizona case. The Supreme court case that lead to “Miranda Warnings”. This is good case law. Unfortunately it meant that Miranda’s conviction was overturned. He was retried with his confession not being admitted into evidence. He as found guilty again and sentenced to 20-30 years. His robbery conviction was not overturned.

A good outcome in the end, both for Case Law and for society by putting this animal away for decades.

State of Arizona v. Ernest Arthur Miranda, 98 Ariz 18(1965) No. 1394

Miranda v. Arizona, 384 US 436 – Supreme Court 1966

Hard cases make bad law – Updated

B.L.U.F. If the case at hand is an outlier or the people involved are particularly sympathetic, the case law created in the case isn’t going to be very good.

Consider an EMT with a long history of service to his nation and his community. He finds a woman that he likes and starts a relationship with them. After a short(ish) period of time he discovers that his GF is toxic any many many ways so the tells her to go.

He makes every effort to make that separation as painless as possible. Bending over backwards, loaning her a vehicle, all sorts of things.

After months of separation she gets a bug in her ear and goes psycho ex. She goes to the judge and says that our EMT is stalking her. That she is afraid of him because he is one of those right-wing gun nuts. The judge listens to all of this testimony with nobody to stand up for our EMT.

The judge decides to grant a TRO with the right markers on it. Our EMT just became a prohibited person. Shortly thereafter the cops show up at our EMT’s home and tell him he has to hand over his weapons or dispose of them. Lucky for him he has that sort of friend you call when you need a backhoe and “we’ll never speak of this again” sort of friend.

Friend shows up and EMT sells all his firearms to his friend for a token amount.

Our EMT now enters a long legal battle to get his rights back.

Our EMT has cops and people in the community to testify to his virtue. He has proof he was out of town when psycho-ex claims she saw him, he has documentation that he was helping her get on her feet after the broke up. He has everything he needs to prove his innocence once he gets in front of the judge.


This is a “hard case”. Our EMT is exactly the sort of person that we want. He is a good person. Yet that TRO has striped him of his rights. He files a lawsuit against 18 USC § 922(g)(8) saying that it is unconstitutional when evaluated in regards to Bruen. The court agrees and rules that §922(g)(8) is unconstitutional.

And then the reason why this is bad (case) law. Did the judgement happen because our EMT is a good and virtuous person who was abused by the system? Or did it happen because the law is bad.

No matter what the actual reason, no matter how good the opinion, there will be many people that will question if this is “good case law”.


Now let’s consider a different person. We’ve got a guy that was arrested for shooting at people, he has a TRO on him because he beat the stuffing out of his girl friend and baby maker, he has had multiple run ins with law enforcement yet has never been convicted, he is not a felon.

When the cops arrest him they charge him with all the shooting he did. They find he is in possession of a firearm and that he has as TRO against him, so they stack a firearms charge on top of all the rest.

He files a case to have the firearms charge dropped because 18 USC §922(g)(8) is unconstitutional.

The court finds that §922(g)(8) is unconstitutional. Nobody things they did this because they had any real sympathy for the guy.

He deserves to spend time behind bars. He is a danger to himself and others and he committed multiple crimes.

That doesn’t change the undisputed fact that he is part of “the people” that are protected by our Constitution as amended by the Bill of Rights. The first still applies to him, as does the fourth and fifth. If those rights still apply to him, then so does the much more explicit second amendment “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

To quote Clarence Thomas “…Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.'”. The second amendment is explicit and it issues an unqualified command upon our government.

Hard cases do make bad laws. I don’t like the fact that bad dudes are the center of some of the good 2A opinions that have been coming down.


Not long enough? Ok. I really wanted the quote from Thomas including “…the Second Amendment’s ‘unqualified command.'”.

Regardless of what you think about the person, we have to judge the law based on the rule of law. Our country uses “common law” as its standard.

We have the law as passed by the people through their representatives. Those laws fit within a hierarchy. The top is our Constitution, as amended, at the bottom are the little rules, regulations, policies of your local government.

What those laws mean, how they are interpreted, is determined by the judicial system. Because we use “common law”, the decision in one court affects all other questions that are related. Since our courts are also exist in a hierarchy, we have the Supreme Court Of The United States at the top and all other inferior courts under them. The higher up the hierarchy the court is, the stronger their opinion becomes in case law.

We need good case law in support of the Second Amendment. This means that bad people are going to make Second Amendment claims in their defence. We can still want those bad people to be convicted, but of the bad things they did. We need the case law that comes out of these cases strengthening the courts interpretation of the Second Amendment.

For those that say that we can just have judges issue TRO’s that prohibit possession of firearms, that is not going to fly, long term. Where in the constitution does it say that a Judge can remove your right to free speech, freedom of religion, the right to petition your government, your right to be secure in your person and papers? It isn’t there.

There are very few situations where your rights can be removed.

We want good Case Law.