(1100 words)
My friend, Jim, use to tell me, “Never attribute to malice, that which can adequately be explained by incompetence.”
Does anybody who reads this blog believer that Rob Bonta actually believes the stuff he peddles about every California infringement being “constitutional?”
Who here believes that Judge Easterbrook of the Seventh Circuit and his Muppet, Judge Wood, actually think that AR-15s are machine guns and can be banned?
Does anybody actually think that Judge F. Dennis Saylor IV, really believes that the “in common use” phrase is confusing?
We look at these cases, and it is clear that this in not incompetence, this is pure malice on the part of the state and of the inferior courts.
We know this is malice, intentionally inflicted on The People, when we see the state play games to avoid a ruling that would remove an unconstitutional law.
In Winter, the Supreme Court described the four factors in determining if a preliminary injunction or a stay should be issued. Likelihood of success on the merits, irreparable harm, balance of equity, and public interest. Every lawyer knows this, every judge and justice knows this, every state actor involved with litigating these legal challenges knows this.
Hell, even you and I know this.
Another part of the Winter opinion was that it addressed how important it was to look at the likelihood of success on the merits. The court is not allowed to look at the “public interest” and decide on that factor.
Yet courts did it, over and over and over again.
They would decide that it was in the public interest for some infringement to exist and deny injunctions.
So what happens if the plaintiff is likely to prevail on the merits? The court moves to the next Winter factor, irreparable harm. The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury
—Elrod V. Burns, 427 U.S. 347, 373 (1976). More bluntly, if it is a constitutional challenge, and the movant is likely to win on the merits, they also win on irreparable harm.
Similarly, the Supreme Court has found that the balance of equity favors the movant when it is a constitutional challenge they are likely to win on the merits. Finally, the Supreme Court has stated that there is no public interest in enforcing an unconstitutional law.
What this all means is that if the movant is likely to win on the merits of a constitutional challenge, they win.
When the inferior courts decided Second Amendment challenges based on public interest favoring the state, they had to knowingly disregard all the Supreme Court instructions on merits first and if it is a constitutional challenge, they win.
They did this by creating circular logic. They could deny the movant’s motion for a preliminary injunction because they were unlikely to win on the merits because the inferior courts were going to disregard the merits because of public interest.
Before Bruen, we were watching another case coming out of New York State. That was the challenge to NYC’s regulation that said you could not transport your firearm out of NYC. The only places you could take your firearm were to the very few actual gun ranges in NYC.
The plaintiffs (good guys) wanted to take their firearms out of the city to other states and even NY, for competition, hunting, and other.
For multiple years, the state fought tooth and nail to stop the challenge. At every moment, they made the claim that their infringement fully comported with the Second Amendment. They continued to make this claim until the case was being considered for certiorari. When that happened, the city removed the regulation. The state passed a new law to forbid NYC from reinstating the regulation.
Then the city and state went to the Supreme Court and whined that the case was now moot. There was no more conflict. The plaintiffs (good guys) had gotten all the relief that they had requested.
Regardless of your stance on abortion, it is obvious that the longest a woman can be pregnant is 9 months, give or take a little. That means that if a woman wants to challenge an abortion regulation, she has to get through the entire legal process, and reach a resolution within 9 months.
It isn’t going to happen. For many years, abortion cases were mooted because the fetus had aged out of being aborted.
Consider one example case. A single woman residing in Dallas County, Texas brought suit in federal court in March 1970. She was at least 1 month pregnant at that time. By December 1970, she would have given birth. In January 1973, the Supreme Court issued their opinion that she could get an abortion.
When the Supreme Court issued their opinion, her daughter had recently celebrated her second birthday.
In the normal course of events, this case would have been mooted in December 1970. Because the plaintiff amended her original complaint to sue “on behalf of herself and all other women” similarly situated, the case was not mooted.
If your law is good and constitutional, why would you want to keep the Supreme Court from issuing an opinion? They are going to find in your favor, right?
Up in the Eighth Circuit court, we see the same game being played. The plaintiffs (good guys) have been attempting to have a Minnesota law overturned banning 18-20 year-olds from getting gun permits.
These plaintiffs have been fighting this legal battle since June 2021, before Bruen. The state demanded that the plaintiffs prove they were in the age group. The state was upset that the individual plaintiffs had joined the organizational plaintiffs the same day the suit was filed.
In discovery, the state attempted to get a complete list of members from the organizational plaintiffs. That was rebuffed and only the three on the suit were disclosed.
Amazingly enough, the three individuals are now old enough to get a permit under Minnesota law. The state wants to moot the case.
Knowing this was going to happen, the plaintiffs moved to amend their original complaint by adding other individual plaintiffs. The state claims “it ain’t fair!” the lower court has given a deadline for filings. The amended filing was after that filing, so it should be disregarded.
If their law is good, why are they attempting to moot it? It isn’t like there aren’t other people in the same situation. The plaintiffs have even attempted to bring forth more such plaintiffs.
The state wants this case dead. If we want the law overturned, the state argues that we should start all over again.
Bibliography
Elrod V. Burns, 427 U.S. 347 (1976)
Staples V. United States, 128 L. Ed. 2d 608 (1994)
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