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.

Case Analysis

Case Analysis Legal

Miller v. Bonta, Round 4, Ninth Circuit Court, FIGHT! -edited

Oct 25, 2023 awa 5 comments

B.L.U.F.
This is a challenge to California’s weapons ban. Judge Benitez used Heller, following the instructions of Bruen, and decided the case for the plaintiffs (good guys).

An analysis of the state’s request for an emergency stay pending appeal shows the state in nearly full on panic.
(2400 words)

It looks like this case has been up and down the ladder at least twice.

Judge Benitez gave the state 10 days to get a stay from the Ninth Circuit court. Theses are calendar days, per —Rules For Appellate Procedure (U.S.). This means that on the 29th of October 2023, the “Assault Weapons Ban” of California will be fully enjoined. People will once again be able to purchase rifles that have been banned for years.

Interestingly, they will not be able to purchase handguns that were excluded by the AWB. This is because none of the named AWB Pistols are on the handgun roster.

The state has filed for an emergency stay with the Ninth Circuit court.

To get a stay, the petitioner must meet the four Winters factors: the likelihood of success on the merits, irreparable injury, the balance of equity, and public interest. In Baird v. Bonta, the district court changed the order in which they weighted the four factors; they literally took them out of order. The Ninth Circuit then reversed the order (the legal statement of the court) of the district court. In plain language, the Ninth Circuit said that the inferior court got it wrong, and their (the Ninth Circuit) statement was the correct one.
In Baird v. Bonta, the Ninth Circuit reversed the order of the Winters factors used by the district court‘s order.

The district court abused its discretion by improperly applying the preliminary injunction standard.

As noted above, proper analysis of a preliminary injunction motion requires a district court to examine the Winter factors. The first factor—likelihood of success on the merits—is the most important (and usually decisive) one in cases where a plaintiff brings a constitutional claim, including a Second Amendment claim. Bruen did not change this multifactor preliminary injunction test, and the district court therefore abused its discretion when it deliberately skipped any analysis of the first Winter factor.
—Mark Baird v. Rob Bonta, No. 23-15016, slip op. at 9 (9th Cir.)

What does this mean to us? It means that anytime anybody requests a stay within the Ninth Circuit, the court must look at the merits first. If the likelihood of success on the merits favors the movementmovant (the person filing the motion), then the other three factors are considered.

In a civil rights case, any abridgment or infringement of a constitutionally protected right is, by definition, an irreparable injury. The balance of equity favors the protection of constitutionally protected rights. There is no public interest in enforcing an unconstitutional law.

This means that if the movementmotion is based on a constitutional challenge, if the movementmotion is likely to win on the merits, the other three factors favor the movementmovant as well.

The state’s argument for a stay

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Case Analysis Legal Rant

Duncan v. Bonta, stayed pending Appeal

Oct 11, 2023 awa 3 comments

The Judge Said What?
B.L.U.F. The Ninth Circus court issues a stay pending appeal in the California magazine ban.

(1200 words)

I have written reams of electronic paper talking about how the court system “works”. At the top is the Supreme Court. The first level of Article III inferior courts is the Circuit Court of Appeals. The next level down is the Federal District Courts.

I have written about case law. Case law is set by superior courts. The Supreme Court sets the case law. The Circuit Courts then interpret that case law, setting case law for their circuit in turn. The District Courts then apply the law as interpreted by the Circuit Court case law.

If there is no case law within a circuit, then case law established by other circuits can be cited. You can cite to other circuits. If there is a consensus among the other circuits, that is a good place for to start.

Today, the Ninth Circus Court of Appeals issued a stay in —Rules For Appellate Procedure (U.S.). They decided, over the vigorous dissent of four judges, that they were not going to actually do their jobs, again.
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Case Analysis Legal

Virginia Duncan v. Rob Bonta, 23-55805, (9th Cir. Oct 03, 2023) ECF No. 9

Oct 4, 2023 awa 1 comment


B.L.U.F.Short discussion of the level of honesty from the state.

I’m under the weather, so nothing too long, I hope. (I can hope, it just doesn’t happen.)

(2200 words)

Duncan v. Bonta is the case that started in 2017 challenging California’s magazine ban. Judge Benitez found magazine bans to be unconstitutional. He enjoined the state from enforcing the magazine ban. Thousands of magazines flowed into the state.

The state begged for a stay while the case was on appeal. Judge Benitez granted that stay in part. Those people who possessed forbidden magazines were protected as well as those that received magazines during the injunction, as well as the people who ordered during Freedom Week but had not yet received their magazines.

Since there was no emergency motion for a stay, the case was assigned to a three judge panel. The three judge panel agreed with Judge Benitez. The opinion of the three judge panel was written by Circuit Judge Lee.

The state asked for an en banc hearing. As expected, it was granted. The en banc panel then found in a 7 to 4 opinion that a magazine ban was constitutional and vacated the three judge panel’s opinion. Judge Vandyke wrote a fantastic dissent on the case, slamming the majority.

The plaintiffs (good guys) appealed to the Supreme Court. The request for certiorari was not granted, nor was it denied. The case was held pending the outcome of Bruen. After Bruen was decided, the Supreme Court granted certiorari, vacated the en banc panel’s opinion, and remanded the case back to the Ninth Circuit.
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Case Analysis Legal

Vincent v. Garland (10th Cir., 21-4121) §922(g)(1)

Sep 21, 2023 awa 4 comments

B.L.U.F.Is this the next case to head to the Supreme Court? The 10th Circuit found that a convicted felon does not have a constitutionally protected right to possess firearms.

(1000 words)

In 2020, Melynda Vincent filed to have §922(g)(1) overturned as applied to her. In 2007, she was a drug addict and tried to pass a bad check for less than $500. She was arrested and put in to drug rehabilitation. She came out of drug rehab before her court case and has been clean since then.

In court, she pleaded “guilty”. This has a sentencing guideline charge for multiple years with no option of probation. The court sentenced her to 0 years in prison and probation. She completed her probation early. She has had no other negative interactions with the law/courts.

At the district court level, the court used the Tenth Circuit Court’s opinion in United States v. McCane. McCain was a felon in possession case, which the Circuit court ruled in 2009 was constitutional.

The important part of their decision was that they did not do means-end to make that determination. Instead, they relied on Heller.

The [Supreme] Court observed that it wasn’t “cast[ing] doubt on longstanding prohibitions on the possession of firearms by felons.” Id. at 626. We applied this observation in United States v. McCane to uphold the constitutionality of the federal ban on felons’ possession of firearms.
—Rules For Appellate Procedure (U.S.)

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Case Analysis Legal

United States v. Robert Hunter Biden WTF?

Sep 20, 2023 awa 6 comments

B.L.U.F. Hunter might get off the hook on counts 1 and 2 if count 3, §922(g)(3) is struck down for constitutional reasons.

(450 words)

for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;
— 18 U.S.C. §922(a)(6)

Emphasis added.

Form 4473 asks a series of questions, as well as having several places for you to fill in your information. It is pretty clear that if you lie in the section asking questions to determine if you are a prohibited person, you are lying about a material fact. What if you were to write the wrong county down? Is that a “material fact” with respect to acquiring a firearm?

It doesn’t seem to be. While it would not surprise me to learn that the ATF pulled an FFL’s license because somebody misspelled the county name, I don’t think anybody has been prosecuted for misspelling the county name on a 4473.

knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter;
— 18 U.S.C. §924(a)(1)(A)

Emphasis added.

The information required is only required if it is a “material fact”.

The short of it is that if this was anybody with an R after their name instead of a Biden, counts 1 and 2 would hold. Even if count 3 and 1 are tossed, count 2 would likely still hold.

Hunter’s lawyers will use Bruen and the other cases against §922(g)(3) to argue that the law is unconstitutional. They are likely to win. Biden, don’t you know.

If count 3, §922(g)(3) is tossed, does §922(a)(6) still stand? If being a user of a controlled substance in not a “material fact” then count 1 goes as well.

This means that only count 2, §924(a)(1)(A) still stands. If being a user of a controlled substance is not material, then is the information required?

All in all, it looks like a good case for the Second Amendment, a poor case for justice. As more than one pundit has pointed out, this is one of the few crimes that Hunter could have been charged with that does not implicate his father.

H/T Mark Smith

Case Analysis Legal Rant

Ronald Koons v. Attorney General New Jersey, a fisk

Sep 6, 2023 awa 1 comment


B.L.U.F.

The Attorney General of New Jersey has filed a brief (100 pages!!!!) explaining why New Jersey’s de facto carry ban is actually constitutional.
(1900 words)

Introduction

The Second and Fourteenth Amendments have always coexisted comfortably with a wide range of firearms restrictions. As the record shows, States historically restricted firearms in particularly sensitive places—such as public assemblies, schools and other educational and literary gatherings, ballrooms, shows, fandangos, fairs, and taverns, parks, zoos, in transit, and more. Founding- and Reconstruction-era States likewise long required individuals to obtain consent from private property owners before carrying firearms onto their private lands. And States historically required individuals to make surety payments before carrying firearms in public, and they imposed strict liability regimes to cover the harms of firearms misuse. States have also long imposed fees relating to firearms or permits. And States have consistently sought to ensure that those who could not be trusted to carry a firearm in public will not do so—including by checking their backgrounds.

Given their historical pedigree, the provisions Plaintiffs challenge—Chapter 131’s sensitive-place restrictions, private-property provision, insurance requirement, fees, and character-reference requirement—all satisfy New York State Rifle & Pistol Association v. Bruen, 142 S.Ct. 2111 (2022). After all, Bruen adopted a historically-grounded test: if States originally understood that particular firearms policies were available under the Second and Fourteenth Amendments, those policies remain on the table for them today. Yet despite the considerable evidence the State provided in its opening brief, Plaintiffs cannot produce a shred of evidence that anyone anywhere saw any of these laws as unconstitutional. In sharp contrast to the evidence in both Bruen and District of Columbia v. Heller, 554 U.S. 570 (2008), this record contains no evidence that any court, State, official, or legal commentator viewed any of these historical sensitive-place requirements as unconstitutional. Plaintiffs cite nothing to suggest that any court, State, official, or legal commentator believed individuals had a right to carry firearms on private land without the owner’s consent. Their arguments are also bereft of evidence of any challenges to the historical surety laws or to strict-liability regimes. And Plaintiffs find no decision or even constitutional debate as to historical fees and permitting processes. Instead, the record reveals “no disputes regarding the lawfulness of such prohibitions.” Bruen, 142 S.Ct. at 2133.

Because Plaintiffs cannot identify contrary evidence, they repeatedly attempt to move the goalposts that Bruen laid out. Plaintiffs repeatedly castigate the State’s historical statutes as measuring “too few” in number, even when the State found eight or even thirty historical predecessor statutes—reasoning that the fact some other States took a different policy approach suggests New Jersey’s modern laws are unconstitutional. But Plaintiffs never explain how their view coheres with our federalist system, in which “the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.” United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring). Plaintiffs also diminish the State’s voluminous historical evidence as coming “too late”—even though the antebellum and Reconstruction-era evidence consistently favors the State in this case, and even though Reconstruction-era evidence particularly informs how the States understood the scope of the Fourteenth Amendment. Last, Plaintiffs insist sensitive places can only be ones with “comprehensive,” TSA-style security, but the very places that Bruen itself recognized as sensitive (like schools) could not fit the Plaintiffs’ overly-stringent and invented test.

The consequences of this debate are grave. Bruen recognized that the Constitution allows the States to address all manner of “regulatory challenges posed by firearms today.” 142 S.Ct. at 2132. So it adopted a historical and analogical test that allows States flexibility while protecting the constitutional right. Chapter 131 respects that decision, adopting only restrictions that are in line with a centuries-old historical record. Plaintiffs distort Bruen’s measured approach, seeking to impose on New Jersey “a regulatory straightjacket” that limits the State’s ability to protect residents from the scourge of firearms violence—limits that “our ancestors would never have accepted.” Id. at 2133 (quoting Drummond v. Robinson, 9 F.4th 217, 226 (3d Cir. 2021)). This Court should reject Plaintiffs’ arguments.
—Rules For Appellate Procedure (U.S.)

Analysis and Rant

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Case Analysis Legal

Fraser v. ATF 18 U.S.C. §922(b)1

Sep 2, 2023 awa 3 comments


B.L.U.F.
Mr. Fraser is the lead plaintiff in a challenge to 18 U.S.C. §922(b)1. Normally, we are concerned about the different parts of §922(g), prohibited persons. §922(b)1 is the probation on those under 21 purchasing handguns or handgun ammunition.

We won. The case is held pending appeal to the Fourth Circuit court.
(1500 words)

Case History

The Plaintiffs (good guys) filed this case on June 1st, 2022. Just a few days before Bruen. The original complaint says §922(b)(1) “violates the fundamental rights of millions of responsible, law-abiding American citizens …”—ECF No.1

Nearly a half year later, the state responds with:

  1. You can just get your mommy or daddy to buy a gun for you
  2. We’ve always had the ability to deny the sale of firearms to people under the age of 21
  3. At the founding, those under 21 were infants and minors
  4. Their claim of Fifth Amendment violation fails because your age isn’t protected data.
  5. Besides, the court can offer any relief to the plaintiffs, so there.

That bit about the Fifth is saying that you can’t incriminate yourself by giving your age. Therefore, it is not protected information. They, of course, fail to mention that it is incriminating when you would be inviolate of regulation by your conduct at a particular age.

As for “History and Tradition” they have 20 some pages of regulations, the earliest in 1856, the rest 1876 or later. Not really a history nor a tradition, but this is one of the early cases post Bruen where the state was still feeling out just how underhanded they could be.

And like a bad penny, we see Giffords, Brady, Everytown jump into to agree 100% that the plaintiffs don’t have standing.

In an interesting turn, they are suing Garland and Dettelbach in both their official capacity and as individuals.

Wouldn’t it be wonderful if some of these state actors were actually held responsible for what they do?

Commercial Sales And Purchase of Firearms That Are Not Unusually Dangerous Constitute Conduct Within The Scope of The Second Amendment. … ECF No. 28. Double emphasis added. This is horrible phrasing and every lawyer who uses it should be taken out behind the woodshed and given 50 lashes.

The correct phrasing is dangerous and unusual. “Unusually dangerous” is a subjective opinion. “Unusual” is an objective measurement, as stated in —Rules For Appellate Procedure (U.S.)

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