B.L.U.F.
A quick update regarding some 2A cases kicking around. Touching on how bad case law begets bad case law.
(1200 words)

In June 2022, the Supreme Court issued the Bruen opinion. This case answered one question: Is New York’s “proper cause” requirement for a CCW constitutional?

The Supreme Court answered with a resounding “NO!”.

In dealing with the question, they stated that subjective criteria was not acceptable. They went on to explain how they reached their opinion using text, history, and tradition. In the associated dicta, they told the Article III inferior courts how they should analyze any Second Amendment challenges.

It is important to understand that the Supreme Court gives explicit answers regarding the question they are answering and instructions on how the inferior courts can do it themselves.

When an inferior court says that the Supreme Court hasn’t issued an opinion on something, that is the court being cowardly, ignorant, or attempting to subvert The Constitution.

If the plaintiffs make a Second Amendment challenge, they are responsible for proving that the proposed conduct implicates the plain text of the Second Amendment.

To take just one example, a 16-year-old wishes to purchase a firearm. They are refused because they are underage.

The text of the Second Amendment reads; 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.

The state might argue that 16 year-olds are not part of the people for reasons. But this is not the first step.

The plaintiffs wish to purchase a firearm. All firearms are arms. Thus, the “Arms” requirement is met. They wish to purchase, possess arms. This satisfies “to keep and bear arms”.

They are a part of “the people”. That means the plain text of the Second Amendment is implicated.

If the state starts arguing that they are not part of the people protected by the Second Amendment, that is part of the second step: history and tradition.

Anytime the state is arguing that something is not an arm, or it is not being kept, or it isn’t bearing, or they are not part of the people, they are attempting to subvert the clear intentions of the Supreme Court.

Once the plaintiffs have proved that the proposed conduct implicates the plain text of the Second Amendment, the burden shifts to the state. The plaintiffs are done.

In that second stage, the plaintiffs can argue why particular regulations are not analogous, or not of the correct period. That is their job, to eliminate the regulations presented by the state from being considered.

Everything else the state brings up can be challenged as being irrelevant. If an expert is giving an opinion on legal matters, that is inappropriate. The legal experts are the attorneys and the Court, experts give opinions about non-legal issues.

The First Domino

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B.L.U.F.
What is the difference between an as applied challenge and a facial challenge to law?
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In Antonyuk v Hochul, the plaintiffs challenged parts of New York’s CCIA on facial grounds. This is to say, they claimed that the challenged legislation is always unconstitutional.

For example, it has been established that a ban on all handguns is unconstitutional. There is no case in which it would be considered constitutional. The state argues around the fringes, if a ban on all handguns is unconstitutional, how about a ban on some guns?

Consider a different civil right, a right protected by the constitution, the right to assemble for free speech.

In my town we have a commons. It has a pretty gazebo and during the summer months they will have open air concerts and art festivals and discussions and all sort of assemblies. If I want to show up and start playing my fiddle (badly) at the gazebo, there is no issue.

On the other hand, if I would like to have an ‘event’, I need a permit.

The first question asked is, “Does this touch fingers with a core civil right?” The answer to that is an unequivocal “YES”.

Since the proposed conduct, having an event on the public commons, implicates the plain text of the First Amendment, it meets the first prong of a facial challenge.

Permitting is well established, so only a lawyer interested in fleecing me would take the case, but assume it got into court.
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B.L.U.F.
This is the long-awaited opinion from the Second Circuit court regarding the CCIA challenges. This panel was anti-gun, there is nothing negative in the opinion that is surprising.

What is surprising is that we won even a little bit.

The plaintiffs will either request an en banc rehearing or take it to the Supreme Court. I believe that the Antonyuk case is at final judgement at the district level. If that is the situation, then this case is ripe to be heard by the Supreme Court.
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The Second Circuit Court has finally issued their opinion on New York state’s Bruen tantrum. It isn’t great.

If you are applying for a CCW in New York, you no longer have to give social media information and access, private property no defaults to “carry ok” rather than “gun free zone”, and Pastor Spencer and his church members can carry in religious locations.

Everything else seems to still stand.

Background

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B.L.U.F.
The state filed their reply in opposition to having the Seventh Circuit Court’s denial of an injunction on the Illinois gun and magazine ban overturned.

This was done on the Supreme Court’s emergency docket. Justice Barrett required a response from the state, by 1700 Wed. Which they did file.

The application and reply will be distributed to the Court, which will issue a response in the coming days. I actually expect something by Friday. The court will either grant an injunction or deny the injunction. There maybe an opinion issued with that order.

We live in interesting times.
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History

In September 2022, Robert Bevis and the National Association of Gun Rights filed suit in the Northern District of Illinois federal District court. This was a challenge of the Naperville Municipal Code “assault weapon” ban.

By December, the District court had stayed the implementation of the “assault weapon” ban.

In January 2023, the plaintiffs (good guys) and amended their original challenge to include the state law, PICA.

In February, District Judge Virginia Kendall stated that … although the plaintiffs have standing to bring this lawsuit, they are unlikely to succeed on the merits of their claim because Naperville’s Ordinance and the Protect Illinois Communities Act are consistent with the Second Amendment’s text, history, and tradition.

Virginia profoundly erred when she ruled:

The plaintiffs appealed to the Seventh Circuit court.
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B.L.U.F.
Senior Circuit Judge Keene wrote the dissent in this case. She is unhappy with the majority opinion because that opinion would find most, if not all gun-control regulations, unconstitutional.

Because this goes against her agenda, she latches onto footnote 9 of the Bruen opinion to justify why any set of objective hoops placed to hinder a member of The People from keeping and bearing arms is constitutional. It doesn’t matter how long it takes nor how much money it takes, nor what those hoops are. As long as the state must grant permission at the end, that regime is constitutional.

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On November 21, the Fourth Circuit court issued their opinion on Maryland Shall Issue’s challenge to Maryland’s “Handgun Qualification License”.

This is a permit to purchase. Before you can purchase a handgun in Maryland, you must first submit fingerprints, undergo a background investigation, take a four-hour-long firearms safety training course which includes firing at least one round. After that is completed, you can submit your application for your HQL.

The state has 30 days to approve or deny the application, after they receive the application. We know that “the state” has a habit of not “receiving” things they want to receive. If they haven’t “officially” received the application, the clock hasn’t started. In addition, the 30 days is not clearly defined in law. Is that 30 business days or 30 calendar days? And how long do they have to inform the applicant of the determination? Or, as one state is doing, they are granting appointments for fingerprinting 6+ months in advance.

The reality of this egregious infringement is that it is likely three months from the decision to get an HQL before you have one.

The three judge panel reversed the district court’s “contrary decision”.

This means that the case is not going back to the district court. It can only move forward to the Supreme Court. The state has 21 days to appeal, IIRC. Reversing a decision is “You got it wrong, we don’t need you to mess it up again, it is wrong, and we are setting it right.” This is better than vacating and remanding a decision. When a case is vacated and remanded, the case is sent back to the inferior court where they do the case all over again, collecting new arguments and evidence.

So the Fourth Circuit panel did the right thing the right way in a reasonable amount of time.

Of course, there is always the thorn in your side in a case like this. That thorn is Senior Circuit Judge Barbara Milano Keenan. Born in 1950, making her 73 years old. She was nominated by Obama in 2009 and appointed in 2010. She assumed senior status in 2021.

Yes, that type of judge.

The Dissent

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B.L.U.F.
Circuit Judge Ho of the Fifth Circuit writes a letter to the Supreme Court explaining what they did in Rahimi and why the Fifth Circuit’s opinion should stand.
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When I read some arguments made by the state, I want to scream about how bad those arguments actually are. The more I read and understand, the more I would like to learn how to write and submit my own amicus curia briefs. The problem is that I would need a lawyer to submit them through.

Besides all of us poor regular people, there is another group of people that are not allowed to submit briefs to the superior courts. That is the judges themselves.

Judge Benitez doesn’t get to submit a brief to the Ninth Circuit rebutting what the state said in Duncan. He is limited to what he wrote in his final judgement. He has developed a robust history in Duncan, but he doesn’t get to point out what parts of that history are important.

Circuit Judge James C. Ho sits on the Fifth Circuit court of appeals. He is part of the group that decided a number of the Second Amendment cases that have been through the Fifth Circuit. That includes the Rahimi case.

On Friday, the 17th of November, the Fifth Circuit court issued their opinion in US v. Kersee, a case that has nothing to do with the Second Amendment. Kersee is a case involving domestic violence allegations.

Case History

Starting from the beginning, Mr. Kersee is a strong candidate for the J. Kb.’s pedophile rehabilitation program. He pled guilty to one count of unlawfully transporting a minor over state lines with intent to engage in sexual activity. He was sentenced to 10 years in prison and 5 years of supervised release.
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B.L.U.F.
Hagar says I have to use the “more” button.

The cases heard by the Seventh Circuit court three judge panel found that AR-15s aren’t arms under the protection of the Second Amendment. That magazines aren’t arms under the Second Amendment. That handguns can be banned and that all was right and wonderful with PICA.

The victims/plaintiffs (good guys) are requesting an en banc rehearing. This is a type of official rebuke of the panel’s findings. That thing where you can’t say “Those dunces in black robes are morons!”, instead you say “they profoundly erred” or “They got it wrong”.

They do a fantastic job of explaining exactly why the panel got it wrong.
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The rest of this is mostly taken directly from the filing. It is a good summation and I would be wasting my time rewording.

Kudos to the attorneys representing the plaintiffs (good guys)
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