Gun Free Zone

By now, you probably have heard that Hannah Gutierrez Reed, the armorer on the set of Rust when Alec Baldwin shot two people, was convinced of involuntary manslaughter.

There has been a lot of coverage of that trial.

She deserved to be convicted.

I want to take a look at the expert her lawyers hired for her defense.

Frank Louis Blair Koucky III.

He went viral for mishandling guns on the witness stand and being chastised by the judge.

I wanted to know who this idiot was and how he became an expert in firearms.

He is, by career and experience, a financial advisor. He has never worked professionally with guns.

His experience is as a hunter, reenactor, and extra on movie sets.

I’m shocked that he was even allowed to testify.

I’m shocked that the defense wanted to call him because he was such a bad expert, I believe he made the defense’s position look worse.

The only thing that I can guess is that ever other reputable gun expert refused to agree to work for the defense because her case was so bad.

I gave it a try, 3 whole episodes.

And that’s it, I can’t watch it anymore.

I know, I made the mistake of reading the book and watch the old mini-series years ago, so I have a frame of comparison and that is “unfair.” Then again, the producers, director and actors could have used that same reference and deliver an equal or better experience. But they failed to do that.

Lots of CGI, probably to avoid costs but if you compare scenes and overall production from 40 years ago to the modern stuff, it is like comparing a Rembrandt painting with a fill-by-the-numbers from a 6-year-old. Acting is subpar going from the emotional expression of drywall to monumental resting bitch faces to Tom and Jerry over-the-top.

The script is “based” on the book, but probably in an effort to be “different”, they added and subtracted stuff that ends up creating some deep narrative holes.

If you are like me and watched the old miniseries and/or read the book, avoid yourself the disappointment and waste of time. If you haven’t, you may want to give it a try.

Parents in Uvalde, Texas expressed their outrage after a long-awaited report on the Robb Elementary mass shooting absolved first responders of any failings in their response that day.

The Uvalde City Council held a special meeting on Thursday to hear the findings of the report into the May 2022 shooting, which left 19 students and two teachers dead.

The investigation found that none of the initial five Uvalde police officers who attended the scene violated policy or committed serious acts of misconduct, prompting outrage from victims’ families in the room.

Uvalde families voice outrage after internal report absolves law enforcement of failings | The Independent

Truthfully, I was pessimistically expecting this result. This not only shields the cops from being fired and having to work as Walmart Loss Prevention associates but protects (somewhat) the local county from being sued into becoming the parking lot of a closed Sears.

And somewhere another maniac just learned that there is a chance that he will be uninterrupted in his future killing because cos now can use Uvalde as an excuse not to get in the line of fire.

And probably the only people shot by cops will be armed parents rushing to the rescue.

Government Hates Competition.

Hat tip EricSSon

Heller tells us that the proper way to look at a Second Amendment Challenge is to first determine if the proposed conduct is within the scope of the plain text of the Second Amendment. If it is, then the burden shifts to the state to prove a history and tradition of equivalent regulations.

When looking at equivalent regulations, the regulation must be a regulation. This means that policies, rules and “norms” are not applicable.

If a school had a policy banning firearms on campus in the 1790s, that is not a regulation. It does not support a history and tradition of regulation.

The regulation must be a match in the how and why as well.

Banning more than 5 pounds of black powder within the city walls is not a match in the “why” to a modern limit on ammunition within the home. Those bans, from the 1700s, were fire regulations. The ban was to keep fires from spreading and perhaps starting. At no time were those bans to protect people from the “evils” of firearm ownership.

The how must also match.

If the state cannot provide analogous regulations from the founding era that are a match in “how” and “why”, the state has failed to meet its burden and the modern regulation is unconstitutional.

The lack of such laws does not mean that the rules are loosened. It means that the state failed to meet its burden.

The First Circuit recognizes, and quotes, the Supreme Court in describing, text, history, and tradition. They even discuss how they “how” and “why” must match.

Wait, what?

The First Circuit presumed that magazines were arms without saying they were. This means that the plaintiffs have met the “arms” part of the Second Amendment.

The plaintiffs have shown that they wish to possess and carry magazines, and thus they have also met the “keep and bear” part. This means that the plaintiffs have met their burden. It is now the burden of the state to prove history and tradition.

Nowhere in Heller does it mention burden as being part of the process. It is never a question of how much rape. It is only “was there rape” or “was there not rape”. The state should never be asking, “Just how much were you raped, Mrs. Jones? Was it just a little? Was it a lot? How much raping actually occurred?”

The courts should never, ever, accept an argument about “how much were you raped?”

Yet, that is what the First Circuit does. … might burden the right of armed self-defense, … is means-end.

The Bruen Court explicitly stated that interest balancing happened when the amendment was adopted and that the courts cannot do it today. “One step too many”, is how Justice Thomas put it.

The First Circuit finds it reasonably follows that banning them imposes no meaningful burden on the ability of Rhode Island’s residents to defend themselves. —id. at 13

The First Circuit Court then reasons that since the “burden” is the same, that is somehow the equivalent to “how” or “why”. Yet, the First does think that because there is little burden and that there were other regulations in the 1800s and 1900s that were allowed, that this is a match.

The circuit then uses the NFA and Bowie knife restrictions as a match. Except that Bowie knife restrictions were never bans on possession. They were all carry laws. This is an outright ban.

They then go into the standard arguments. More like an M-16 than not. Military like and so forth.

This is a situation where the court decided this wasn’t an arms ban because they said so. Since it wasn’t an “arms ban”, they were allowed to do the history and tradition research and did not have to comply with Heller in common use test.

Notice the ratchet here. The court had to keep this away from being an arms ban, so they did not have to deal with the open-and-shut aspects of “in common use”.

Once there, they use regulations that come much too late, claiming that they are allowed to use the NFA as an example of history and tradition because Heller and Bruen did not strike it down.

In A Win for the 2nd?, I wrote about how the Fourth Circuit court has ordered the parties to brief them on when “common use” comes into play under Bruen.

Some comments talk about “in common use” being an issue for us. It is not.

Consider a startup company that introduces a new shell. For sake of argument, let’s call it the “Worm Breath.” When this shell is fired out of a standard shotgun, it puts out a visible flame 20 yards long.

The rogue, infringing states leap into action and ban “Worm Breath.” The legislative findings are that it is extremely dangerous and has no reason to be in the hands of civilians.

A 2A group finds a front person and sues.

Under Bruen the 2A group has to prove that “Worm Breath” is an “arm” under the plain text of the Second Amendment and that a member wishes to keep or bear it.

That is it. There is nothing in that requirement that touches on “common use”.

The state then has the burden of proving a history and tradition of banning things like “worm breath”.

They immediately talk about how this is a unprecedented societal concerns or dramatic technological changes —Ocean State Tactical, LLC v. State of Rhode Island, No. 23-1072, slip op. at 11 (1st Cir.) and a more nuanced approach—id. at 13 is required.

That is, if they are in an honest court. If, instead, they are in a dishonest court, they claim that “worm breath” is not in common use and can be banned.

It doesn’t work that way. “In common use” is of use only to us. Never to the state.

The Heller court did the analysis of history and tradition and found that there is no history and no tradition of banning arms that are in common use.

In order for the plaintiffs to prevail in an arms ban case, they only need to say, “It is in common use.” if there are more than 200,000 of that arm in use.

If the manufacture of “Worm Breath” can show that more than 200,000 rounds have been sold, then “Worm Breath” is in common use and cannot be banned.

What if the manufacture cannot prove to the court that they have sold more than 200,000 rounds? Nothing happens.

The state still has the burden of proving that there is a history and tradition of regulations banning “arms” of this type.

“In common use” is a one-way ratchet, in our favor.

Yes, the state wants to make it go the other direction. Yes, the state wants the burden of proving “in common use” to rest on the plaintiffs. Yes, the state wants to negate the meaning.

What the state wants and what the Supreme Court has said are two extremely diverse things.