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

Smith v. District of Columbia

Aug 31, 2023 awa 4 comments

This is a 99.9% win for the good guys.
(750 Words)

Back in 2015, Maggie Smith filed a class action suit against the District of Columbia.

Maggie Smith, on behalf of herself and the Prosecution Class and the Nonresident Class (both defined below), brings this action against the Government of the District of Columbia (the “District” or the “District of Columbia”) under 42 U.S.C.A. § 1983 for injuries she suffered during the Class Period because the District, through its unconstitutional gun registration laws, caused her and the other members of the Prosecution Class and the Nonresident Class to be arrested, prosecuted, or arrested and prosecuted in the District of Columbia Superior Court for violations of those unconstitutional gun laws in violation of their Second and Fifth Amendment rights.
—ECF No. 1: SMITH v. GOVERNMENT OF THE DISTRICT OF COLUMBIA, No. 1:15-cv-00737 (D.D.C.)

She alleges that the District had created a total ban on gun ownership and a total ban on carrying outside the home. She points out that the District did this in such a way as to avoid the appearance of a total ban.

The District first put into place laws that required all hand guns and ammunition to be registered. Then they created so many obstacles to registering a hand gun that it became a de facto ban.

In addition, the registration scheme was only available to residents of the District, meaning that it was impossible for people that didn’t live in the city to be able to carry a hand gun.

For those of you that don’t know, DC used to be 100 square miles, 10 by 10. 50 square miles came from Maryland and 50 square miles came from Virginia. When Virginia seceded from the Union, it took back its land. Most of the remaining 50 square miles is filled with office buildings, government buildings, public buildings and some apartments.

There are also the slums.

Most of the people that work in the District commute into the District. They drive to just outside the beltway and then ride the Metro into the city proper. Fast, easy, convenient.

What this means is that most of the people you see in DC don’t live in DC. Under the District’s registration scheme, most of the people who worked in DC had no chance to legal own a hand gun.

At the time of Ms. Smith’s conduct, D.C. Code § 7-2502.02(a)(4) generally prohibited registration of any pistols “not validly registered to the current registrant in the District prior to September 24, 1976,” but made an exception for retired MPD officers, organizations employing special police officers, and “[a]ny person who seeks to register a pistol for use in self-defense within that person’s home.” See D.C. Code § 7-2502.02(a)(4)(C) (2010) (emphasis added). Any nonresident who wished to possess a pistol in the District of Columbia for self-defense would have to do so outside his or her home and therefore could not fall within the exception in D.C. Code § 7-2502.02(a)(4)(C). Moreover, at the time of Ms. Smith’s conduct, the District maintained a custom, practice, and policy of refusing to entertain gun registration applications by individuals who did not reside in the District of Columbia. See D.C. Mun. Reg. § 24-2320.3(c)(1)(C) (requiring firearm registration applicants to provide proof of D.C. residency).
—id. no. 2

Yes, it was that difficult. It made getting a CCW in New York City seem easy.

On Monday, we got some great news.

Upon consideration of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action Settlement (Motion for Preliminary Approval), and the exhibits attached, including the Settlement Agreement reached between the named Plaintiffs, individually and as representatives of the class conditionally certified by this Order, and the Government of the District of Columbia (the District),

IT IS HEREBY ORDERED:
⋮
The Settlement is preliminarily approved, subject to further consideration at the Final Approval and Fairness Hearing provided for below. The Court preliminarily finds that the Settlement terms are within the range of a fair, reasonable, and adequate settlement and in the best interests of each Class as a whole, such that final approval of the Settlement and Request for Attorney’s Fees and Costs may be appropriate, following notice to the Classes and a Fairness Hearing. Further, the Court preliminarily finds that the terms of the Settlement Agreement satisfy the requirements of Federal Rule of Civil Procedure 23(e) and due process.
—ECF No. 170: SMITH v. GOVERNMENT OF THE DISTRICT OF COLUMBIA, No. 1:15-cv-00737 (D.D.C.)

This is that big of a win because it won’t be appealed. Since both parties agreed to the settlement there is nobody to contest or appeal.

Every so often the good guys do win.

Bibliography

ECF No. 170: SMITH v. GOVERNMENT OF THE DISTRICT OF COLUMBIA, No. 1:15-cv-00737 (D.D.C.)
ECF No. 1: SMITH v. GOVERNMENT OF THE DISTRICT OF COLUMBIA, No. 1:15-cv-00737 (D.D.C.)

Case Analysis Legal

Andrew Hanson v. DC (D.C. Cir.) — Magazine Ban

Aug 26, 2023 awa 1 comment

Normally, I would spend time analyzing a filing. This particular filing is by the Appellants/Plaintiffs (good guys). It is a good history of DC gun infringements over the last decades.

(1100 Words)

For roughly two-score years, the District of Columbia has done its level best to rid firearms entirely from within its borders by imposing some of the most egregious—and unconstitutional—restrictions in the Nation. In 1976, the District banned the possession of nearly all handguns by first making it a crime to possess a firearm without registering it, and then prohibiting the registration of handguns. Eventually, the U.S. Supreme Court struck down this prohibition on the basis that it violated the core right of self-defense enshrined in the Second Amendment. See District of Columbia v. Heller, 554 U.S. 570, 636 (2008).

Having been rebuffed by Heller, the District got creative. It combined one restriction—that “no persons or organization in the District shall possess or control any firearm, unless the persons or organization holds a valid registration certificate for the firearm,” D.C. Code § 7-2502.02(a)(4)—with another that forbade handgun registration for use other than “self-defense within that person’s home,” Id. § 7-2502.02(a)(4). In so doing, the District effectively attempted to ban the carrying of all firearms outside the home. This provision, however, was held unconstitutional in Palmer v. District of Columbia, 59 F. Supp. 3d 173, 184 (D.D.C. 2014).

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Case Analysis Legal

Rhode v. Becerra — Robert Spitzer’s Declaration

Aug 19, 2023 awa 2 comments


B.L.U.F.This case is before Judge Benitez. I believe he has a hearing scheduled for mid-September on the merits of the case. In response to the defendants (bad guys/state) whining that the case should be evaluated through the eyes of an expert or historian. Judge Benitez ordered the defendants to declare their experts and to allow the plaintiffs (good guys) the opportunity to dispose them.

The state went back to the well of Spitzer and Vorenberg for another set of declarations. They added Jennifer M McCutchen to the list of infringement loving experts as well.

(2300 words)

Who Are the Players

Jennifer M McCutchen is an Assistant Professor at the university of St. Thomas, Minnesota.

Dr. McCutchen specializes in Early American History and Native History, with a focus on the themes of gender, power, exchange, and diplomacy. Her current project is an ethnohistorical study of gunpowder in the late eighteenth-century Creek Confederacy.
—id. no. 2

Michael Vorenberg, associate professor of history at Brown University. In his words:

Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment, was published by Cambridge University Press in 2001. The book was a Finalist for the Gilder Lehrman Lincoln Prize. I am also the author of The Emancipation Proclamation: A Brief History with Documents, published by Bedford/St. Martin’s in 2010. I am the author of a number of articles and essays on Reconstruction and the law. These include: “The 1866 Civil Rights Act and the Beginning of Military Reconstruction,” in Christian Samito, ed., The Greatest and the Grandest Act: The Civil Rights Act of 1866 from Reconstruction to Today (Southern Illinois University Press, 2018); Citizenship and the Thirteenth Amendment: Understanding the Deafening Silence,” in Alexander Tsesis, ed., The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment (Columbia University Press, 2010); “Reconstruction as a Constitutional Crisis,” in Thomas J. Brown, ed., Reconstructions: New Directions in the History of Postbellum America (Oxford University Press, 2006); and “Imagining a Different Reconstruction Constitution,” Civil War History, 51 (Dec. 2005), 416-26.
—ECF No. 170: SMITH v. GOVERNMENT OF THE DISTRICT OF COLUMBIA, No. 1:15-cv-00737 (D.D.C.)

We round out our merry band of word weasels with Robert Spitzer, in his words:

I am a Distinguished Service Professor of Political Science Emeritus at the State University of New York at Cortland. I was also a visiting professor at Cornell University for thirty years. I am currently an adjunct professor at the College of William and Mary School of Law. I earned my Ph.D. in Government from Cornell University. I reside in Williamsburg, Virginia.

I have been studying and writing about gun policy for over thirty years. My first publication on the subject appeared in 1985. Since then, I have published six books and over one hundred articles, papers, and essays on gun policy. My expertise includes the history of gun laws, gun policy in American politics, and related historical, legal, political, and criminological issues. My book, The Politics of Gun Control, has been in print since its initial publication in 1995. It examines firearms policy in the United States through the lenses of history, law, politics, and criminology. The eighth edition of the book was published in 2021 by Routledge Publishers. My two most recent books on gun policy, Guns across America (Oxford University Press, 2015) and The Gun Dilemma (Oxford University Press, 2023), both deal extensively with the study of historical gun laws. I am frequently interviewed and quoted in the national and international media on gun-related matters. For over twenty years, I have been a member of the National Rifle Association and of Brady (formerly, the Brady Campaign to Prevent Gun Violence).
Missing citations for Z7BL7P6C

Robert’s Attempt at Matching

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Case Analysis Legal

Brief of United States v. Rahimi, US Supreme Court – UPDATED

Aug 17, 2023 awa 4 comments

B.L.U.F. The United States filed a brief with the Supreme Court where they argue that the definition of “The People” is in the hands of the state. And other reasons why the state gets to decide when the Second Amendment applies.

(3,800 words)

The Question

Whether 18 U.S.C. 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence protective orders, violates the Second Amendment on its face.
—ECF No. 1: SMITH v. GOVERNMENT OF THE DISTRICT OF COLUMBIA, No. 1:15-cv-00737 (D.D.C.)

The question is well-formed and well suited to an opinion by the Supreme Court. This is a dangerous gamble for the state. While they are looking at specifically §922(g)(8) there is nothing to keep the Justices from looking at all of §922(g).

If the Justices decide to look at more than just §922(g)(8) they could very well throw out much of the GCA. In addition, it is likely to put a hurting on many other infringements and infringement arguments.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
—id. no. 2

Double emphasis added.

That one sentence is what all infringements hang on since Heller. “Not unlimited” means that the states have been searching for the limit ever since. They will push until a court stops them.

Post Bruen they are losing, but this one sentence is still their foundation.

It is also important to note that Scalia was explicit about “felons and the mentally ill”, but omitted all the other prohibited classifications. This is reading into dicta what was not said. Doing it from our side is just as bad as when the state does it from their side. Though I like to think that the side of the Constitution gets it correct more often than not.

In my opinion, the nothing in our opinion should be taken to cast doubt on … was added to this opinion to get the more left—leaning Justices to sign on, in particular, Justice Roberts.

The Statements with Embedded Assumptions

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Case Analysis Legal

Policies are not laws

Aug 12, 2023 awa 5 comments
You guys don’t make it easy. The rabbit hole nearly ate me alive. At issue is how people are sentenced after they are convicted of one or more crimes. This is about U.S. v. Matthew Raymond Hoover yet touches on a cert denial at the supreme court just a few weeks ago.

We read about the number of criminals that are being set free on a catch and release basis. This is happening in the prosecutor’s office. The prosecutor looks at the person being charged and decides on what charges to bring. PoC in blue city, low charges, white cis, higher charges. The prosecutor looks at what the cops say they are charging the person with. He then decides what the actual charges will be.

Example, a white female, 85 years of age, no criminal history, walking in the people’s house taking pictures. Charged by the special investigator with unlawful entry and interfering with an official proceeding. The prosecutor, looking at the totality of the person, the person’s history, the charges brought to them by the special investigator, decides to charge her with all of the above as well as incitement. He tells the court that she is a flight risk.

Counter example, a black male, 19 years of age, two felony convictions, a long history of gang involvement, multiple charges of violence against person. The cops picked him up for stabbing a pregnant white woman, at the scene, with the bloody knife in his pocket. He has previously attempted to evade arrest when warrants were issued. Including out of state flight. The prosecutor charges him with illegal possession of a weapon recommends that he be released with no bail.

This is “prosecutorial discretion”. It means that when the suspect gets to court, the court will try him for illegal possession of a weapon. That’s it. The attempted murder will never be heard by the court.

This is not what this article is about.

This article is about what happens after the suspect is found guilty.

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Case Analysis Legal

Andrew Teter V Anne e. Lopez (9th Cir.)

Aug 10, 2023 awa 1 comment


B.L.U.F.Brick by Brick, Row by Row, we build our freedoms.

The 9th Circuit court of Appeals got it right. What does it mean? What did the state attempt? How did the court opine?

In April 2019, another legal battle began. A long shot case that the plaintiffs knew would drag out for years if they made any progress, or they would be shutdown almost immediately.

Under the Second Amendment, Defendants retain the ability presumptively to regulate the manner of carrying arms and may prohibit certain arms in narrowly defined sensitive places, prohibit the carrying of arms that are not within the scope of Second Amendment’s protection such as unusually dangerous arms, and disqualify specific, particularly dangerous individuals from carrying arms. See Heller, 554 U.S. at 627.
—ECF No. 1: SMITH v. GOVERNMENT OF THE DISTRICT OF COLUMBIA, No. 1:15-cv-00737 (D.D.C.)

This is from the good guys. In the original complaint, they are giving the state the presumption of the power to regulate. They also give the state the power to regulate “unusually dangerous arms”. This is not what Heller said, and we know this because the Bruen court made it absolutely clear that it is dangerous and unusual. If the arm is in common use, it is not unusual, and it cannot be banned.

This was Bruen quoting and explaining Heller

This is the equivalent of watching the puppy cower when their owner comes home. They try so hard to be good, but they fear being smacked again. Or maybe the battered spouse is a better analogy.
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Case Analysis Legal

You win some, You lose some

Aug 9, 2023 awa 2 comments

Today we heard a great opinion out of the Ninth Circuit Court of Appeals. They found that knives are arms. As arms, they are presumptively protected by the plain text of the Second Amendment. Finally, they found that the government had not met their burden of finding a law from the founding that supported their modern infringement.

There is another court ruling out today. This one out of the Supreme Court.

GARLAND, ATT’Y GEN., ET AL. V. VANDERSTOK, JENNIFER, ET AL.
The application for stay presented to Justice Alito and by him referred to the Court is granted. The June 30, 2023 order and July 5, 2023 judgment of the United States District Court for the Northern District of Texas, case No. 4:22-cv-691, insofar as they vacate the final rule of the Bureau of Alcohol, Tobacco, Firearms and Explosives, 87 Fed. Reg. 24652 (April 26, 2022), are stayed pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would deny the application for stay.

There will be a great gnashing of teeth over this. It affects many people, it isn’t great, but it isn’t horrible either.

In late June and early July, the District court found the ATF’s frame and receiver rule to be a violation of law, NOT on Second Amendment grounds. The ruling basically said, “The ATF can’t make law, this “regulation” is them attempting to re-write the law. If Congress wants the law to be as the ATF wants it to be, Congress has to pass that bill.”

Currently, gun control bills in the Congress are fraught with risk for both sides. The gun grabbers do NOT want people looking hard at §921 and exactly what the GCA of 1968, as amended, is worded. §922 is under attack in multiple cases, having somebody challenge the rest of the GCA on constitutional grounds is not something that they want to see happen.

The state had asked the Fifth Circuit for a stay of the injunction granted by the District Court. The state was asking for a stay until the Fifth Circuit heard the case. The Fifth Circuit told them to go pound sand. The state then made an emergency appeal to the Supreme Court looking for that stay.

Normally, these are quick. This took a little longer than Alito wanted.

What this means is that the frame and receiver rule is back until the Fifth Circuit renders their opinion. It looks like that could happen rapidly. The Fifth doesn’t like having their decisions overturned.

It is important to note that the Supreme Court did not rebuke the Fifth. Unlike what was done to the Second and Seventh circuits.

Now the state will drag their heels on this. The 3 judge panel will issue their findings. Regardless of how that goes, the losing party will ask for an en banc hearing. That will happen. If the Vanderstok loses, they will appeal. Their goal has always been to get this to the Supreme Court.

If the state loses, they might just tuck tail and take the L rather than get the Supreme Court involved.

So while this was a step back, I consider it an “ok” outcome. We will win in the end.

On the “Well, that’s to be expected.” Roberts came down on the side of the state. There is nothing strange about that. I just don’t trust him.

I would like to know what Amy Coney Barrett was thinking. She didn’t join with Thomas, Alito, Gorsuch, and Kavanaugh.