Cases are won and lost before they are heard

Back in January 2024, Judge Suddaby slapped New York State around. At issue was a requirement that people who were living in public subsidized housing were required to enter into a contract that forbid firearms on housing grounds.

The contract was a complete ban on keeping or bearing arms within the housing properties.

Because Judge Suddaby’s court is inferior to the Second Circuit court, he is required to follow their opinions. This is a true mess because of the Second Circuit’s laughable opinion in Antonyuk II.

Third, the absence of a distinctly similar historical regulation in the presented record, though undoubtedly relevant, can only prove so much. Legislatures past and present have not generally legislated to their constitutional limits. Reasoning from historical silence is thus risky; it is not necessarily the case that, if no positive legislation from a particular place is in the record, it must be because the legislators there deemed such a regulation inconsistent with the right to bear arms. There are many reasons why the historical record may not evince statutory prohibitions on a given practice. For example, lawmakers are not moved to forbid behavior that is governed by custom, universal practice, or private warning. No legislation is needed to forbid zoo patrons from entering the lion’s enclosure; similarly, a town with only a single daycare facility that privately bans firearms from its premises has no need to pass a regulation prohibiting guns in daycare centers. Thus, “[t]he paucity of eighteenth century gun control laws might have reflected a lack of political demand rather than constitutional limitations.” Binderup v. Att’y Gen. United States of Am., 836 F.3d 336, 369 (3d Cir. 2016) (en banc) (Hardiman, J., concurring in part and concurring in the judgments) (quoting Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1354 (2009)). Stated differently, “novelty does not mean unconstitutionality.” Id. at 368. That is so even if the problems faced by past generations could be described, at a high level of generality, as similar to the problems we face today.
ECF 320 - Antonyuk v. Hochul, No. 22-2972, slip op. at 48–49 (2d Cir. Dec. 8, 2023)
Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Königsberg v. State Bar of Cal., 366 U. S. 36, 50, n. 10 (1961).
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)

Bluntly, the Second Circuit court is not acting in a serious manner. They are making a joke out of your rights and mine. They would rather play word games in direct rebuttal of the clear guidance from the Supreme Court, their superiors.

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.

Is the individual a member of The People? Yes. Do they wish to keep or bear arms? Yes. Then the plain text of the Second Amendment clearly covers the conduct.

The plaintiffs, having met their burden, need only refute the state when the state presents regulation that is consistent with this Nation’s historical tradition of firearm regulation.

In short, the state has the burden to prove that historical tradition of firearm regulation.

The state may not simply posit what the founding fathers could have done, they have to show what the founding fathers actually did. It has to be a regulation. That regulation must be a part of our Nation’s historical tradition of firearm regulation.

The Second Circuit got it wrong. Even the state doesn’t like citing the hot mess of the Second’s opinion.

Regardless, the Second Circuit got it right when they said Reasoning from historical silence is thus risky. Which they then proceeded to do. They claim that they know that legislatures would have created regulations that match the current infringements if the legislatures had found a need. So obviously, this is an acceptable infringement, today.

That doesn’t seem to match government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.

This is the baggage that Judge Suddaby is laboring under.

Even so, he granted the plaintiffs (good guys) motion for a TRO and preliminary injunction against the state.

When the court writes:

Second, Plaintiffs argue, they will suffer irreparable harm absent injunctive relief for each of two independent reasons: (a) it is well settled that the existence of a constitutional violation constitutes irreparable harm, without any further evidentiary showing; and (b) in any event, the continuation of the irreparable harm is inevitable absent Court intervention, as evidenced by Defendants’ appalling and explicitly-stated open disregard for the law in defense counsel’s email of May 1, 2023, to Plaintiff Hunter (acknowledging the “[u]nconstitutional lease provision regarding firearms,” but stating that “[w]e will not be changing our stated position or lease provision on this matter”). (Id. at 13-15 [attaching pages “9” through “11”].)
ECF 320 - Antonyuk v. Hochul, No. 22-2972, slip op. at 5

It doesn’t matter whether those words are from the plaintiff or from the court. The court is outright saying that the behavior of the defense (state/bad guys) is appalling.

This case is still in an interlocutory state. There are things that have to happen first. Which is where the title of this article comes from.

At the start of a case, there are several motions filed asking the court to do things. There are motions for temporary restraining order, motions to dismiss, motions for preliminary injunctions, motions for summary judgment and a host of other motions/requests.

One of the things that happens during this process is discovery. This is when the parties ask questions of each other and request documents. This is also the time in which different people are disposed.

If a party refuses to provide answers or documents, they must have a reason. If that reason isn’t satisfactory, the parties take it to the court for resolution.

The questions asked, and the documents requested, are often revealing. Just as revealing are the questions that are not answered and the documents which are not produced.

Some questions and documents are known to be off limits. The scope of those limits changes over the course of the case. The scope changes when the parties bring certain facts into the court.

In this case, the state is arguing that public need allows them to ban arms in public housing. The plaintiffs argue that they need arms because dangerous people live in the housing units. The state countered that the plaintiffs don’t know that there are dangerous people in the housing units.

This opens the door for certain inquiries.

REQUEST FOR PRODUCTION NO. 16: All documents relating to security measures put in place or contemplated by CHA at CHA Property since 2005.

REQUEST FOR PRODUCTION NO. 17: All background checks of current or past CHA tenants which reveal criminal history of any kind, including arrests, convictions, youthful offender adjudications, deferred prosecutions, adjournments in contemplation of dismissal, or any other disposition.

REQUEST FOR PRODUCTION NO. 18: All documents relating to any background investigation into any CHA employees, including but not limited to criminal history and references.

REQUEST FOR PRODUCTION NO. 19: All documents relating to any licenses or permits to own, have, keep, bear, possess, or carry any firearms held by any employees of CHA.

The state is refusing to answer these requests. They claim that it would violate tenant privacy. The plaintiffs argue that the state opened themselves to these production requests because they claimed that the plaintiffs didn’t need arms to protect themselves.

This little battle, behind the scenes, goes on for many cases. How the judge rules will change how the parties advance.

An important thing to note, is that some suits have no expectation of winning the suit. The goal of the suit is to do discovery. To get behind closed doors.

The questions about permits by CHA employees suggests an attack vector. Why are you denying the plaintiffs arms when your employees have arms? Can you provide protection if none of your security team are armed? How many dangerous people live in the CHA?

All in all, it is an interesting game to observe.

Oh, none of this discovery is needed under Heller as affirmed by Bruen. Does the Second Amendment’s plain text cover the individuals’ conduct? If so, the state bears the burden of demonstrating that their modern infringement is consistent with this Nation’s historical tradition of firearm regulation.

There is no need for discovery outside of: “do you want to keep or bear arms?”, “Are you part of The People?” If both of those questions are answered in the affirmative, then the burden is upon the state to prove that the modern infringement is consistent.

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The outcome we wish we could have v. Local Legal Reality.

Take a look at this video


Our first reaction would be the liberal application of rifle-delivered ballistic behavioral pills from a position of cover and/or concealment after calling the regional constabulary.

However, we need to consider the Local Legal Reality: If I pop the idjits, will I get in trouble with the Law? Is the D.A. somebody who actually has the best interest of the Citizens in his/her heart or somebody who is running for re-election and needs all the votes from all sections of the populace? We have seen that scenario played too many times in the past.

Again: J.Kb Law is needed. Use of Deadly Force to protect property.

Is that car really worth your life, dear Criminal?

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Words Have Meaning

BLUF: Words have meaning, and while that meaning can change over time, we need to take the time to understand. This means looking at words in context, at the time they were written, while still using a modern eye to examine them.

A number of years ago, I was attending a local church service, and the pastor alluded to the idea that shepherds were dirty social outcasts who everyone thought poorly of. His proof for this was that, when Samuel called David in from the sheepfold, he was filthy when he arrived, that David was, “just a shepherd.” I was a bit taken aback by this, because that’s not what history (or Biblical literature, btw) teaches us. I first learned about this from a Jewish scholar named Joel Hoffman, author of And God Said: How Translations Conceal the Bible’s Original Meaning. I went to a talk he was having at a local synagogue, and the history of shepherds was the first thing he talked about.

Shepherds were tasked with protecting their flocks of sheep, out in the wilderness at the edge of the farmland surrounding their cities and towns. So you had a social center, a city or town, and outside that was farmland, and outside that was grazing for the sheep. Out there, shepherds had to contend with wolves, panthers, hyenas, feral pigs, foxes, jackals, and lions. Today, when we face up to those kinds of odds, we go armed with an AR-15 or other firearm. They had, and I kid you not, a stick (shepherd’s staff) and a sling with whatever rocks they could find (and the shepherd’s staff became the king’s scepter, and the rocks became the orb, later in history). That was it. Shepherds were, to say the least, bad ass.

In Biblical times, shepherds were seen as a form of superhero. They were the combat veterans, the first line of defense in case of an attack (by animal or human enemy). They had to defend their sheep with their lives, because those sheep were literally their livelihood. They were, indeed, dirty fellows because they lived out in the fields with greasy and filthy sheep. They slept in the open. They didn’t bathe often. So yes, when Samuel called David in to proclaim him the new leader of Israel, he was probably stinky and dirty. When the High Priest of your people summons you, you don’t stop long enough to grab a shower and a change of clothes; you hightail it to his presence, at all speed. No one thought David was stupid or idiotic. He was just young, the youngest of all his brothers, with a lot less life experience.

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Do Androids Dream of Electric Sheep?

There was a snarky comment recently wondering what language I dream in.

Not so snarky, actually.

If you were to ask my lady what language I dream in, she would be likely to answer, “I don’t know, but he types on my back in his sleep.”

Yes, I program in my sleep. I code while in the shower. I solve problems, regardless of what I’m doing.

I started programming experience with “procedural programming”. That is to say, a series of procedures that call each other and return results.

As part of that training, I quickly realized that any problem in programming could be broken into smaller and smaller “functions” or “procedures” until you were at the single machine instruction level.

For me, programming is broken into developing a series of black boxes that are connected to produce results.

If you look at a problem, “I want to layout a line of text on a screen with word wrapping”, it can be broken into smaller questions.

“I want to know the number of characters that will fit on the remainder of this line.” When black boxing, you put a function or procedure in place and assume it works. It doesn’t matter if it does or not. You can even fake it. Instead of actually doing a calculation, it can just return a constant.

Now that I’ve made this “magic” black box, I use it to solve the harder problem. Once that is solved, I can address the black box and make it work correctly.

I combine this with what I call “railroad structuring”.

Suppose that the final step in a black box is to draw a text on the screen. You are given a data structure that contains strings of text with markup. The data structure imparts formatting on the text as well.

You could write code that looks at the data structure and “does the right thing”. You would then end up with dozens of pieces of code, all that are supposed to do “the right thing”. Needless to say, this is seldom the case, at least a few of those places will do the wrong thing. And if you fix it in one place, you have to fix it in all other places.

So I create the end game, “draw the string ‘text’ at ‘position’ using ‘formatting'”. The rest of the code works to create “text”, “position” and “formatting”.

if the original text had markup in it, then that little section would modify text and create formatting to match the requirements of the markup. After that is done, we have ‘text’, ‘position’ and ‘formatting’. At each step, the result is always ‘text’, ‘position’ and ‘formatting’.

So, when somebody asks, “What language do you dream in?” The answer is, “my programming language.”

Because all computer languages look the same to me, but for syntax, it doesn’t matter. I always know what I want the language to do. I might have to look up the syntax for a particular thing, but that’s never an issue.

As an example:

for i in range(0,9):


for (i=0; i<10; i++) {
fprintf("%d", i);

Do the same thing, I think. Because ‘range()’ is python and I’m never sure about it, I’ll look it up to find out if it gives me 0 through 8 or 0 through 9.

Still, the logic is the same and correct for me.

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AR9 issues update. Not easy solution.

This is a follow up of the post Disappointing AR9 news.

For those coming late to the festivities, I acquired from different sources a 9mm KVP upper and a Spike’s Tactical lower (Glock mag compatible) and they refused to mate properly.

On a rare attack of common sense, I decided to email both Kaw Valley Precision and Spike’s Tactical to get some answer. First of all, both companies were exceedingly fast on replying to my query for which I am happy and encouraged since past experiences with other companies have been utterly disgraceful.

Ian Reel from KVP was upfront and stated that he had not seen many lowers like mine.  I won’t deny I would have been a tad incredulous, but reader @Snarkyposters from X (thankyouthankyou) had already pointed me to several AR9 sources of information and I formed the suspicion that this platform is a cluster flock of seagulls.

And then I got the email from John Dowhy of Spike’s Tactical which gave me the final answer to my question(s):

Hi Miguel,

Our Glock-style 9mm Lower has a LRBHO bracket that runs along the side of the magwell. Our 9mm Uppers have a relief cut (in the picture attached) to accommodate for that bracket. Other brands of Uppers often do not fit with our Lower because of just what you highlighted. The Upper hits the bracket and cannot close.

There is no Milspec for 9mm AR’s so mixing brands can be problematic. We have had customers make a relief cut themselves in other brands of Uppers or abandon the other brand and use our Upper.


Bingo! Let me show again the photo of my upper:


The arrow points to the point of unwanted contact between upper an lower and the upper does not have the relief cut.

Mystery solved. Problem? Not so much.

There is no Milspec for 9mm AR’s so mixing brands can be problematic.

Those are words you need to live by if you want to build your AR9.

Right now, I see myself with two AR9 half builds and nowhere to go unless I decide to sink more money in the project which I am not happy to do. I may go with a regular 5,56 lower and one of those adapters for the magwell, but the good ones cost almost as much as a dedicated lower.

I’ll just hit the pause button for a while till some smarts come to me.

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Californians are figuring it out too

The Left is killing gun control.

Yes, they want it and want to implement it, but their actions in other areas are driving people away from supporting it.

Californians are buying up guns after Border Patrol starts dumping thousands of migrants on streets

Customers packed Cory Gautereaux’s small gun store northeast of San Diego on a recent Friday afternoon.

Many of the people buying pistols at Firearms Unlimited California said they were concerned about the massive number of migrants being released onto the local streets after the area became a hub for the crisis at the border — which is just 25 miles from El Cajon, a Southern California suburb of 105,000 people.

Roughly 125,000 migrants have been released onto the streets in the San Diego area since September, which has been unsettling for Firearms Unlimited California owner Cory Gautereaux and his customers.

The US Border Patrol has begun busing migrants who claim asylum into the community and releasing them onto the streets, he said.

“That’s driven business to us,” he added.

Local Sharie Finn told The Post that the border issue “1,000%” plays a role in her decision to buy a gun, pointing to the Glock pistol in her bag.

El Cajon Mayor Bill Wells acknowledges his residents don’t feel safe because of the flood of illegal border crossers in his city.

“We see the massive amounts of violence that’s happening, a lot from the immigrant situation, but a lot from the homeless situation as well,” Wells told The Post, adding: “People are frightened and I do believe they’re arming themselves more.”

Gun control, like open borders sounds wonderful to Leftists in gated communities where they don’t suffer consequences.

For the average person, watching illegal immigrants bring crime to their communities where the police have been defunded or hamstrung, they want guns to protect themselves.

California Leftists will still push gun control, but the average Californian is learning how important having a gun to defend yourself actually is.

This will happen all over the country as the cloistered Left makes things worse.

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Tuesday tunes

I grew up listening to my parents’ music. I later started listening to WCMS 99.9FM. “Almost Perfect Radio” Their original was “Western and Country Music Station”.

Most of the music my parents owned had been transferred to reel-to-reel tape. This is actually a real problem. There were a couple of “albums” that I wish I knew the names of.

When I went to University, I was exposed to different music. Mostly because, being a collage town, they had no country music radio station. If I would rather not listen to the latest pop music, I had to find my own.

Then a fantastic thing happened, CD’s. Because the CD was not harmed when played, the CD emporium would let you listen to a CD before you purchased it. And boy did I listen to a lot. I purchased even more.

When I divorced my first wife, that CD collection was a sticking point. I ripped all of those CDs. All 500+ of them.

And then google ate it. GRRRRR

Not having the CDs in front of me, I’ve had to remember albums I used to listen to. The other night I listened to the London stage recording of ‘Cats’. Why? Because it was one of those albums I used to own.

So here is a song from a group I use to listen to:

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