In the case now known as “Antonyuk III” we have a number of New York residents that have challenged the New York State Concealed Carry Improvement Act (CCIA). They are joined by a number of second amendment advocate groups, Gun Owners of America (GOA) and, IIRC, the Firearms Policy Coalition (FPC).

The groups are providing the backing needed to actually carry out the lawsuit in terms of funding and lawyers. The residents are the people that are actually suing.

Ivan Antonyuk first filed suit shortly after the CCIA was signed into law. He and is fellow plaintiffs (good guys) filed their case in the Northern District of NYS where the case was assigned to Judge Suddaby. Judge Suddaby looked at the case and decided that the plaintiffs did not have standing.

From the Respondents (Defendants, bad guys) response to the Supreme Court:

But despite the absence of a live controversy, the court proceeded to render an advisory opinion describing what “would constitute the Court’s holding” on the merits if the plaintiffs were “found to, in fact, possess standing.”2 Id. at *25; see id. at *26-37. Specifically, the court stated that the CCIA was “an unconstitutional statute,” and indicated that it would have enjoined the enforcement of nearly every challenged provision of the law—including most of the licensing requirements, each of the codified sensitive locations (including schools and government buildings), and the restricted-location provision in its entirety. Id. at *26

New York state is attempting to say that they didn’t get a fair shake with Judge Suddaby because he told the plaintiffs that they would have won on the merits if they had proper standing.

The plaintiffs regrouped, add some more people and filed again. Judge Suddaby took the case back. The state argued that he should not have gotten the case back because it was a new case. Judge Suddaby told the state to suck eggs, it was the same case but with different plaintiffs who did have standing.

Having established standing, Judge Suddaby started spanking New York state. Every time he spanked them, they ran to the second circuit court to get his injunctions stayed.

In the last go round the second circuit court granted a stay pending appeal. According to the state the appeal will be heard soon but there is no promise of that and the state and circuit court can drag this out for months if not years.

The circuit court’s stated reasoning for the stay was only a few words. A sentence or two.

Having run into the stall tactics, GOA did an end run and went to the Supreme Court and asked them for an “EMERGENCY APPLICATION FOR IMMEDIATE ADMINISTRATIVE RELIEF AND TO VACATE STAY OF PRELIMINARY INJUNCTION ISSUED BY THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT”

This was filed on December 21st, 2022. Justice Sotomayor ordered “Response to application (22A557) requested by Justice Sotomayor, due by 4 p.m. (EST), Tuesday, January 3, 2023.” This was on December 27th. This is only three days after the request for emergency relief was filed, including Christmas. Very very fast.

On January 3rd the response was filed by New York state. It runs to 43 pages. It was posted to the website after 1600.

Summary of Response

New York state is very few arguments. The first is that Judge Suddaby stepped outside of the question presented and made rulings on parts of the CCIA that were not being challenged.

The second was that Judge Suddaby granted standing when he should not. One of the plaintiffs said that he had standing because he wanted to apply for a CCW but was unwilling to supply all the invasive social information the CCIA demands. Things like social media accounts, people that live with him, multiple non family references and so forth.

Because he was unwilling to give up this information, per the CCIA, he would be denied a CCW. The state argues that because he didn’t actually apply for a CCW he doesn’t have standing. Never mind that the CCIA training requirements are so out of whack with reality that nobody is getting CCWs at this time and non are expected to be granted until sometime later this year (2023).

They claim that other parts of the CCIA can’t be challenged because of lack of standing because these CCW holders haven’t actually violated the CCIA by entering the CCIA defined gun free zones.

There is somewhere case law that says that you don’t actually have to be arrested to challenge a law. The state has turned this upside down and said the plaintiffs must break the law before they have standing. I also believe that the states says that the state must take notice of the plaintiffs breaking the law before it counts.

The state argues that the time is not ripe for the Supreme Court to take up any 2A case. They say the Supreme Court has to let the cases “percolate” so that there is a history and fact finding prior to taking up a case.

The state actually spends a fair bit of e-ink telling the court that the court won’t take up the case.

Finally, for this summary, the state argues that since the state has had a requirement for good moral character since 1913 and Bruen didn’t say anything about “good moral character” that anything the state does to determine the moral character of an applicant is allowable.

SCOTUS Docket: No. 22A557
Application for Emergency Relief
New York State’s Response

Elon Musk bans a couple of assholes from Twitter, and it is the end of Journalism as we know it according to the new journalistic breed.

Back in the day….

And I am willing to be that the new breed, same as the old breed, would have supported the psychopaths of Shining Path who made peasants mad enough to bring machetes to a greeting party.

BRASÍLIA—In his first hours as Brazil’s new president, Luiz Inácio Lula da Silva issued sweeping changes to tighten the country’s firearms laws and reverse looser rules imposed by his predecessor, Jair Bolsonaro, that prompted a million new gun registrations since 2019.

A presidential decree, which took effect Monday, suspends new registrations of guns for hunting and sport as the leftist government works to rewrite the country’s 20-year-old gun laws. The decree forbids owners from transporting loaded weapons, suspends new applications for gun clubs and reduces the number of firearms permitted per individual from six to three.
“Brazil does not want more guns: we want peace and security for our people,” said Mr. da Silva, 77, shortly after being sworn in as head of Latin America’s biggest nation, two decades after he first took office in 2003.

Brazil’s New President Reverses His Predecessor’s Loosened Gun Laws – WSJ

And DaSilva is smart doing this. Part of his success was the support he promised to give to the common criminal element who does not want to be shot by civilians for their efforts. And, of course, having a seriously contested election and the dislike of a huge swath of the population, makes keeping them unarmed a priority.

I would not be surprised if confiscation is in the works. So far this looks like a duplicate of what Chavez did when he got elected and we all know what kind of Socialist happy ending that brought about.

Hat Tip Paul K.

An investigation revealed the gun Konkol used to fire at officers was stolen nearly an hour prior to the incident. Seebock said Konkol pulled up to a motorcyclist, who was stopped at a light, and pulled the gun from the rider’s hip holster. Konkol then hit the rider’s motorcycle with his vehicle before driving off. Seebock said the motorcycle rider was not injured.

Man killed by police after firing stolen gun at Las Vegas officers (8newsnow.com)

This is just another variation of carrying a $1,000 gun in a $25 nylon holster. If you going to Open Carry, make sure you have a decent retention holster. Are they cheap? No, but beats the cluster flock you saw in the video.

I live with a person that was very left of me.  She has slowly come over to the right side, we have cookies.  There are still subjects that we strongly disagree about but they are fewer and very different than when we first got together.

I often find myself at the breakfast table speaking about something that has me upset and I ask “What are you seeing in your feeds?”

Her feds are very different from mine.  There have been times when my feed is full of a story.  Often being presented from a leftist point of view.  I’ll ask her “What are you seeing in your feds about story?”  At which point she’ll tell me that she’s not even heard the story.  I’ll send her links.  Or she’ll give me links to something that came across her feds that isn’t showing at all in mine.

She is a great resource.

And yes, I did pick her category.

-AWA

From Behind Enemy Lines

I want you to understand that I did not pick the title. It rankles, and it bothers me, because I don’t see myself as an enemy. I should be an ally, but I often feel I’m not let in, so it doesn’t happen. 

I am here to present different sides to your stories and narratives. Though I am definitely left of the people I live with and love, I am very right of most of my friends. Because of this, I’m everyone’s enemy, apparently. 

One of the worst things we can do, as human beings, is get caught up in our own thought processes. When all you hear is an echo of your own ideologies and topics, you become unbalanced. You lose perspective. You lose your ability to connect as well with your fellow man. Too many people today are unable and unwilling to see what The Other Side has to say on any issue. They’ll read the 120 characters allotted to the Twitterverse, and then apply that to “everyone on The Other Side”. 

The first topic I want to touch on is the idea that someone is out to get you. I know that people on the Left tell me all the time how horrid and aggressive people on the Right are. The Left truly, deeply believes that the Right wants to hurt them. The Left are firmly convinced that the Right actively seeks out ways to damage liberty, freedom, and the Left, not necessarily in that order.

The Right doesn’t seem to harbor that belief to the same level that the Left does. Of the Right leaning people I connect with, none are interested in harming anyone, or causing problems. All they want is to be left alone, to live life however they see fit. The Right camp that hits my media stream seems to be slightly more aggressive in their communications. I hear about how awful the Left is on a regular basis, a lot of whining, a lot of complaining about how they’re tired of being “the bigger person”. What I don’t see, outside of extremists of the Right, are people who want to take away freedom or liberty from the Left.

I hear from a lot of people that the Left are people of feelings and emotions, and the Right are people of logic and facts. It’s my opinion that both of those positions apply to both sides. You just have different things on which you’re emotional and logical.

For instance, when it comes to Second Amendment confrontations, the Right is highly logical. There’s no emotion in it. I have watched countless people on the Right hold up the Second Amendment, and pull it apart in a very rational way. What’s the right being discussed? The right to keep and bear arms. And who is that right recognized for? The people, it says so right there: “The right of the people to keep and bear arms…” And what’s the action applied to that right? “…shall not be infringed.” All very neat and methodical. And correct!

For the Left, it’s a matter of fear. “But what if someone gets hurt?” It’s all about emotions. The Left, as a body, often express disdain for the Second Amendment, but will not organize enough to try and logic their way through removing it. After all, they can do so by working the problem the way the Founding Fathers set it up for them to do. 

When it comes to other issues, though, the Right’s feelings and emotions begin to come to the forefront. Abortion is the hottest topic I can think of, for the Right at the moment, with immigration coming a close second. That logic and rationality seems to go right out the door the moment either topic comes up. 

Without getting into the details of either of the aforementioned topics (let’s leave those for another day), let’s look at whether or not someone is “out to get you.” The first question to ask yourself is, are you personally being attacked? Is there someone telling you, the personal, singular you, that you are a bad person? Is that attack, if you so perceive it to be, a danger to yourself or others close to you?

Please note, when I say attacked, I’m not meaning verbally. It might hurt when people throw words at you, but it’s not damaging. I understand that there may be legal wrangling in there that could put it over the line into the ‘damaging’ category, but that’s not the norm, and I’m avoiding the extremes here. 

And there it is. I’m avoiding the extremes. Why? Because it doesn’t do any good. Because extremes aren’t where we, the vast majority of people on all sides, live. Most people on the Right are not interested in taking away your right to bodily autonomy, birth control, or adults making decisions about their own bodies. Most people on the Left are not interested in burning down courthouses, forcing gender transition on anyone, or indoctrinating little kids.

Friend on the Left says, “Those damn Republicans are trying to take away my bodily autonomy again! They want me to die in a pool of my own blood! The whole lot of them just want women to be hosts for fetuses and nothing else!”

Friend on the Right responds, “Hey, I’m all for birth control, age appropriate sexual education, and everyone being as healthy as they can be. I don’t want women to have to be pregnant if they don’t want to be.”

Left returns with, “Then why are you hanging out with those people who forced a 12 year old girl to carry a child to term, damaging her internal organs?”

But it isn’t just the Left, you know.

Friend on the Right says, “Stupid leftists want little kids to be taking birth control, and everyone to be subverted to become trans!”

Friend on the Left responds, “Not at all. I’d like to see birth control available for those who are sexually active, and I’d like to come up with a way for teens who are not in safe families to get access to that birth control without telling parents who could hurt them. And I don’t want to force anyone to be trans, I just want people to be accepted if they are trans.”

Right returns with, “Then why are you advocating for drag queens in libraries, and having teachers making kids talk about sexual stuff?”

I think that most of what actually goes on tends to get lost in the fracas that happens among the extreme ends of the political spectrum. We’re all so busy looking at the left hand that we don’t see what the right is doing (and that has nothing to do with political sides). It’s really hard to see the actual facts, when every “news” outlet appears to be regurgitating the same thing, word for word. Add to that, common sense doesn’t sell news; drama does. It’s important to keep that in mind whenever you’re looking at what purports to be news today.

Just as an example, I am a person who would love to see marijuana legalized in my state. I believe that everyone has the right (and responsibility, though that’s a whole other article) to own and use a firearm, and that our Constitution guarantees that right. I think our healthcare system is broken in a lot of ways, starting with the insurance companies, but that the care offered is still so much better than every other first world country that it’s unreal. I’d like to see women and men offered reasonably priced birth control that is effective and not harmful to them, without any strings or emotional manipulation attached. 

I’d like to see women have access to abortion up to the 12 week mark, no questions asked, and an admission that after that point, a fetus is no longer “just a clump of cells” and is much more akin to a baby than a virus. I’d like to see people stop caring about sexual orientation, gender, and expression, while doing educated medical study on the process of gender transition and what it does to a person’s body, brain, and personality, and how to best implement it, and who it’s best implemented on. 

I’d like to see the word “organic” mean something again outside of a government patent. I’d love to see sustainable energy models be more used, but in a reasonable and scalable way as we discover the ins and outs of them. I’d love to see paperwork on the environmental impact of each and every sustainable energy model, to see what the pros and cons of each are. 

I’d like to see the Federal minimum wage dropped. After all, if the cost of living in one part of the worldcountry is 65% higher than anywhere else, either we doom certain people to poverty or we are forcing companies to pay more than they can. I’d like to see unions become positive, employee led institutions again that are there to help out the people, not the union. I’d love to have businesses learn from one another to discover models that allow for higher pay and better benefits for employees without messing with the company’s profit margin (Costco comes to mind). 

Some of the things I’ve mentioned above are very “left leaning” ideas, and others are quite “right leaning”. I’m guessing that none of them are disgusting in the eyes of most readers. The fear is not the reasonable idea, but what else might happen because of a badly worded idea. 

I hear talk about “the pendulum”, and it worries me. The Right acknowledges the pendulum exists, and point to it as reason to want to ban abortions entirely, restrict or ban birth control methods, and take away the rights of those who aren’t interested in “one man, one woman” marriages. The Left doesn’t even seem aware of the existence of the pendulum, but just keeps pushing it more in retaliation. 

At this rate, we’ll be at one another’s throats in no time. 

I don’t think it’s because we are all that different from one another. I think it’s because we’re being told we’re different, scary, wrong, sinful, or pick another negative word you’d like to use. I think it’s because we’re being manipulated, sometimes nastily and sometimes subtly. 

I think we all want to get to a similar end point. The goal is a world where people can live in peace, not have to worry about their kids at night, and have enough money even if they aren’t rich. The problem is we have different ideas about how to get to that end point. The media knows that, and pushes all the buttons to make people react. 

So don’t see me as your enemy. Or do. That’s up to you. I’m not interested in fighting you, though. I just want to live my own life, in peace and quiet, and know that my neighborhood is safe and my kids can play and date and learn to drive without concern. 

I’ll try and give an outsider’s perspective on events and goings on, as they happen. I’ll attempt to answer questions as fully as I can, when I can. But I’m not here to argue. I’m not here to change your mind. I’m here to overturn your echo chamber.

Heuristic Hagar

First of all, there is Law. The Law is passed by the legislature, and it directs some government agency to do something. Which leads to…
Regulations. Regulations are what the tasked agency writes to tell the public exactly how they will do something. Which leads to Policy/Procedure which is how the worker bee in that agency performs their tasks.
.
But, the thing that really counts is Case Law. (IANAL warning in full effect here.) Because laws/regulations/policies are written by humans, there will always be some ambiguous parts. Which generally leads to lawsuits.
When the Judge rules in the case, it can forever alter the way the law is implemented. A judge might write an opinion that includes a legal definition of a term of art that was not part of the Law or Regulation. Or, they may declare the law does not mean _______ as the Agency interpreted it, but instead means ________. Could be anything.
.
The lesson here is reading the law is one thing, reading the regulations is another, but the thing that really makes a difference is the rulings on suits brought against the law. That tends to be the final word.
— CBMTTek

US law is based on the Constitution, everything flows from it, or should. Any law, regulation, or procedure should be consistent with the Constitution.

In the best of worlds before a bill was even presented to the legislature it would be vetted by people that actually care about the constitution(s) of the US and the State. Unfortunately this is not the case. Or if it is done it is such a poort analysis as to make no nevermind.

“We read the Constitution and our bill is Constitutional” does not mean that it is Constitutional. Just that the legislator wants it to be.

The next stop for checking if a bill is Constitutional is when the bill moves to the next chamber of the legislature. Again we have the issue of the situation where the people that want the bill to pass will just claim it is Constitutional.

Finally, the President or the Governor should check it for Constitutionality. This very seldom happens.

So now Bill has become a law. It is up to the executive branch to enact that law. AS CBMTTek says, that requires interpretation. If a word or phrase is not defined by the Law, it must be defined by regulation.

Even if the word is well defined, “of the People”, the regulators might decide to twist the words. So we end up with “of the Militia/State” where the clear meaning is “People”.

The regulators are not responsible for deciding if a law or regulation is constitutional, they are only responsible for making sure that the regulation is supported by law. Or that they can twist the words to match what is supported by law.

Thus we end up with everybody knowing what a frame or receiver is. But the ATF gets to say that something that is not a receiver becomes one if you drill a hole in it, or make a dimple in the right place. An object becomes a firearm, underlaw, when it is a frame or receiver, not when it is one hole away.

Consider an AR-15 receiver v. an M16/4 receiver. That AR-15 receiver is not a machine gun. It only becomes a machine gun after that hole is drilled. Only when it is capable of receiving all of the fire control group that complete it as a machine gun.

If that AR-15 doesn’t have the space to hold an auto-sear, even if the fourth hole is drilled, it still isn’t a machine gun, even if the ATF says it is.

Once the regulations are written, somebody has to write the procedures used to follow the regulations. The law says that the FFL has to maintain a record of all firearms sold. The GCA of 1968 doesn’t say anything about having to keep a record of all firearms received. It is the regulations that describe what information has to be kept, how it has to be kept, and how the ATF (regulatory agency) gets to verify that information.

There is no Constitutional authority for the ATF to inspect an FFLs books. That would require probable cause. What has happened is that the state has made it a condition on holding an FFL to give up your fourth amendment rights. Sort of like there is no federal authority to set speed limits. It is just that the federal government will withhold funding if the state doesn’t set the speed limits the federal government wants.

When a government agent goes to do something, they are suppose to follow the procedures laid out for them by their superior. This tells them how to discover issues that can lead to enforcement actions. When the ATF agent shows up at the FFL and asks to see their records, they are suppose to follow a procedure.

Once they start the examination, they are suppose to be following the procedures and guidelines that were given to them. When we see multiple ATF agents using digital cameras to capture information from 4473s, that strongly suggests that it is a procedure they were told to follow.

As an example of procedures being followed, consider a YouTube video of CPS “visiting” a household. CPS had been told to leave the property when they first showed up. So they got the local police involved. The police arrived and found a gate across the drive and the property was properly posted “No Trespassing”.

CPS got out of their car and the cops got out of theirs. They started walking up the drive. When they got to the gate CPS went over and the cops stopped.

The procedures that the cops were following said that they needed probable cause to enter the property. Having some government agent tell them to intimidate the household wasn’t. CPS on the other hand had a procedure which was to force their way into the house via verbal and then intimidation and threats.

These laws, regulations, and procedures lead to conflict between individuals and the government. Individuals in a legal sense so it includes corporations and other such legal entities.

When there is conflict the issue goes before a court. If there are facts to be determined (Did Bob put his hands on Jill?) then either a jury or a judge will make those determination. So a jury might be asked to decide if the accused willfully did something or was it an accident (was she pushed or did she fall?)

Part of the trial/argument stage is to decide what facts are allowed into the case.

Another part of the legal process is when the actual law is challenged. The city says that you are not permitted have a gathering in the city park of more than 25 people without city permission. You stood up on a rock in the city park and started giving a speech. Suddenly there were a few hundred people there listening. The cops arrest you for having a gathering of more than 25 people without permission.

In court the facts are clear. There was a gathering of more than 25 people. It is to be determined if you are legally responsible for causing that gathering. If you are, then you will be found guilty and a punishment applied. On the other hand, you could challenge the law as a violation of your right to free speech.

It is also possible for a person to challenge a law directly. To file a lawsuit alleging that some law, regulation, or procedure is in violation of a higher law. This is where we see most of the second amendment cases coming.

Now the Constitution sets up the Supreme court and such inferior courts as are needed. (I didn’t lookup the exact wording). The reason is that under common law, decisions made by the higher courts set precedent for the inferior courts. This is “case law”

If the Second Circuit court says that the second amendment only applies to the right of the state militia to keep and bear arms, all inferior courts to the second circuit must follow that opinion. If the Supreme court says that the second amendment applies to all the people, regardless of their membership in the organized militia, then all the circuit courts and all the district courts and all the state supreme courts and all the courts inferior to the state supreme court must follow that opinion.

This is how we create case law.

When a district court makes a decision it is not case law. It can be used by other district courts but it is not precedent. In addition, decisions/opinions for district courts in different circuits count for even less. It is only courts that are superior to a court that create precedent for the inferior court.

As the courts make their decisions/opinions they are creating case law for themselves and inferior courts. Those opinions should describe what the question is, it should define all the terms within that question, and it should then support those definitions. Finally the court says why the made the the decision they made.

Unfortunately, there are people that conflate the different parts of court decisions. When the court says “this is an example” it doesn’t mean that it is the only or that it is the common, or that it is everything except that single example. But there are people that will take it that way.

We hear that when some moron argues that the second amendment only applies to muskets or only to the militia or any of the other stupid arguments.

The supreme court works hard at defining terms. Legislators, not so much.

A lawyer once looked over a contract I had written. He told me that it was good but that it was too clear. As he put it, lawyers like terms in contracts that can lead to conflict, because that’s when they make money. While to us a good contract is a way of making sure there is not conflict later.

It is this case law that creates the legal definitions of terms. It is this case law that tells us how to apply the different terms. It is case law that tells us what the actual law says or does.

ObamaCare doesn’t penalize you for not having health insurance, it just increases your taxes. This is case law, even though the legislature said it was a penality.

The legislature said that a firearm is anything that expels a projectile by means of an explosive. It also includes those things that can be “readily” converted to expel a projectile by means of an explosive.

No court has defined what “readily” means. Since there is no case law the regulatory agency can set the definitions. As soon as they set those definitions then it can be challenged and we can create case law.

The ATF is also trying to change the definition of a frame or receiver. They are perfectly within the scope of the law to say that something is or is not a receiver. They can even say that something can be converted into a frame or receiver. What they can’t do is change the law to claim that something that is not a frame or receiver should be treated as if it is a frame or receiver.

If something can be readily converted into a frame or receiver then it is not a frame or receiver. If it is not a frame or receiver then it is not a firearm per the GCA of 1968.

That was a week ago.

And I just saw this:

“The President does not control the prices.”

And we are supposed to head back to $4 a gallon in May.

Meet the New Year, same as the Old Year.