According to one of the lawyers that speaks on Second Amendment rights, the policy of the courts on accepting amicus curiae from anybody is a rather recent policy change with the courts. It used to be that you had to show real reasons to be considered a friend of the court.

Of the hundreds of pages submitted to the Supreme Court in —United States V. Rahimi, No. 21-11001 (5th Cir. Jun. 8, 2022) most are from amicus curiae submissions. In appeals, it is the same. There are the actual pleadings by the parties, and then there are all the amicus curia submissions.

In To be blunt, Bruen fails to adhere to even basic academic standards – P.J.C. I write about Patrick J. Charles. He submits amicus curiae briefings in many of these Second Amendment cases. The courts almost always grant him permission to submit.

He is just one guy. He doesn’t belong to any group. His claim to fame is that he has written a number of books advocating for infringing on the Second Amendment and calling anybody and everybody who thinks that the right to “keep and bear arms” gives an individual the right to keep and bear arms an idiot or worse.

It is very uncommon to see a person or entity submit a motion for leave to file an amicus brief and then to have the court reject it. When this, ORDER re: Motion for leave to file amicus brief. John Cutonilli’s motion to file an amicus brief is DENIED. [74] showed up in Celeb Barnett v. Kwame Raoul I needed to find out why.

The first question to ask is, “Who is John Cutonilli?” A quick Google search turns up “Cutonilli v. State of Maryland”. This is a reference to a case from 2015.

John Cutonilli seeks to appeal the district court’s order granting, in part, and denying without prejudice, in part, the State of Maryland’s motion to dismiss Cutonilli’s claims challenging Maryland’s Firearm Safety Act of 2013, Md. Code Ann., Crim. L. §§ 4-301 to 4-306 (LexisNexis 2015), as violative of Maryland’s Constitution and the Second and Fourteenth Amendments to the United States Constitution. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2012); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949). The order Cutonilli seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

CUTONILLI v. State of Maryland, No. 15-2202 (4th Cir. Feb. 29, 2016)

What was he appealing?

The FSA, enacted in the wake of a horrific elementary school shooting in Newtown, Connecticut, imposes a general ban on the transportation, possession, purchase/sale, and transfer/receipt of certain assault weapons. Md. Code Ann., Crim. Law § 4-303. The law further prohibits the manufacture, purchase/sale, and transfer/receipt of detachable magazines with capacities in excess of ten rounds (“Large Capacity Magazines” or “LCMs”). Id. § 4-305. The FSA’s restrictions do not apply to members of the United States Armed Forces, the National Guard, or state and local law enforcement personnel carrying out their official duties. Id. § 4-302(1). The FSA includes an exemption for law enforcement retirees in good standing, permitting them to possess assault weapons and LCMs that they acquired during the course of their service or upon retirement. Id. § 4-302(7). A person who violates the FSA is guilty of a misdemeanor, punishable by up to three years in prison and/or a fine not exceeding $5000. Id. § 4-306(a).
ECF No. 8 at 2, Cutonilli v. State of Maryland, No. 1:15-cv-00629 (D. Md.)

Ok, the court is putting out the standard emotional blackmail.

Plaintiff, a resident of Maryland, maintains that he is a member of the “unorganized militia under state and federal laws.” (ECF No. 1 at 3). Plaintiff wishes to purchase prohibited weapons and LCMs “so that he may bring them to militia duty if called upon by the Governor or the President.” (Id. at 4.) Accordingly, Plaintiff brought this action under 42 U.S.C. § 1983, seeking a declaratory judgment that the FSA violates the Second Amendment and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, as well as Article 28 of the Maryland Constitution’s Declaration of Rights. Plaintiff requests an order enjoining Defendant from administering and enforcing the FSA.
id. at 2,3

This was a challenge to the Maryland AW/LCM ban back in 2015.

Plaintiff’s Second Amendment allegations must therefore stand or fall on the same legal ground as the claims presented in Kolbe. There, Judge Blake explained that the Fourth Circuit has established a two-prong inquiry for evaluating Second Amendment claims. “First, the court determines whether the challenged law ‘imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.’” 42 F. Supp. 3d at 783 (quoting Woollard v. Gallagher, 712 F.3d 865, 875 (4th Cir. 2013)). “If the conduct does fall within the scope of the Second Amendment right, then the court must move to the second part of the inquiry and apply ‘the appropriate form of means-end scrutiny.’” Id. (quoting Woollard, 628 F.3d 875).
id. at 5

Damn, there’s Kolbe again. That is the case where the Fourth Circuit Court said to use means-end when determining the constitutionality of a Second Amendment Challenge.

John didn’t give up there. He argued that Kolbe didn’t really apply to him. His argument was that he was arguing that he was part of the unorganized militia, while Kolbe was about self-defense. The district court then quoted him Heller saying that the difference doesn’t actually affect anything because the Second Amendment is an individual right. Challenging for self-defense or because he was a member of the unorganized militia made no functional difference.

Actually following the rules for appeals, he first appealed to the District Court to reconsider their opinion. This contrasts with the state in multiple cases they appealed as soon as they get an unfavorable ruling from the District court appeals to the Circuit Court.

The district court had this to say:

The Plaintiff has failed to show cause why any remaining elements of his Complaint or his proposed Amended Complaint should not be dismissed. Nowhere in his nine-page submission in response to the show cause order does the Plaintiff persuasively confront his central problem in the wake of Kolbe. The assault weapons and high capacity magazines are not protected by the Second Amendment, regardless of the purpose for which the Plaintiff may which to possess them. His status in any informal militia is irrelevant. The Court reiterates its reasoning from its earlier Memorandum and Order (see ECF No. 21), and it also adopts the Defendant’s reasoning as its own (see ECF No. 23).
ECF No. 24 at 1, Cutonilli v. State of Maryland, No. 1:15-cv-00629 (D. Md.)

The court doesn’t bother to say why modern firearms and magazines are not protected by the Second Amendment, only that they agree with the defendant (bad guys).

John appealed to the Fourth Circuit Court, which said that there was nothing for them to rule on because the District Court didn’t do anything wrong and dismissed the case.

Which takes us to 2023-06-23. John requested leave to file an Amicus Brief and the Seventh Circuit Court denied that request.

Here is what John had to say:

Cutonilli is a resident of Maryland and is subject to similar firearm laws in question in this case. He is unable to successfully bring a lawsuit against Maryland due to the precedent set in Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017). He seeks to provide additional insight into other aspects of the law that were neither addressed by the plaintiffs-appellees nor in the Lower Court’s decision in this case. His intent is to help this Court avoid previous errors so that other fellow Americans are not subject to such laws.
ECF No. 74 at 1, Caleb Barnett v. Kwame Raoul, No. 23-1825 (7th Cir.)

You can see the insidious way that bad law affects many people and cases. The Supreme Court GVRed —Dominic Bianchi v. Brian Frosh, No. 21-1255 (Court of Appeals) back to the Fourth Circuit, where they have been sitting on it since they heard oral arguments on Dec 6, 2022. Bianchi is a case which was decided entirely on Kolbe and which was appealed to the Supreme Court. There it sat as a group of Second Amendment cases. In the week following Bruen the Supreme Court granted cert to these cases, vacated the inferior court’s opinions and remanded them down to the inferior court.

John is stuck regarding Maryland’s infringements, which have only gotten worse since he first challenged them. Currently, Kolbe is “good law”. Since the Supreme Court didn’t explicitly say anything about Kolbe, there is a three judge panel trying to figure out how to rescue the means-end two-step shuffle of Kolbe.

Until the Fourth Circuit issues their opinion on Kolbe, John can’t refile his case. It was dismissed. IANAL, but I believe that the dismissal in his case does not allow him to refile unless there is an actual change in the merits.

This brief expands upon the Plaintiffs-appellants’ discussion of why Bruen effectively overrules Friedman. It provides historical insight into how the key phrases, “dangerous and unusual” and “in common use,” relate to societal biases that carry forward into this case. It provides examples of the commonly accepted uses of “assault weapons,” a term defined in Illinois law and large capacity ammunition feeding devices or magazines (“LCMs”). It demonstrates through references to history and precedent, that the people themselves provide public safety. It provides insight into errors that invalidate the scrutiny process used in Friedman. It demonstrates that “weapons that are most useful in military service” is not a Second Amendment disqualifier. It demonstrates flaws under Illinois’s theory of “arms”. It provides clarification of some data about shots fired in self-defense. It also offers additional textual and history-based interpretation of the text of the Second Amendment.
ECF No. 74 at 1–2, Barnett v. Raoul ECF No. 74, No. 23-1825

He is not using emotional blackmail. He uses logic, research, and good case law. Yet, his brief is rejected as if it had never been.


CUTONILLI v. State of Maryland, No. 15-2202 (4th Cir. Feb. 29, 2016)
United States V. Rahimi, No. 21-11001 (5th Cir. Jun. 8, 2022)
ECF No. 74, Caleb Barnett v. Kwame Raoul, No. 23-1825 (7th Cir.)
ECF No. 24, Cutonilli v. State of Maryland, No. 1:15-cv-00629 (D. Md.)
ECF No. 8, Cutonilli v. State of Maryland, No. 1:15-cv-00629 (D. Md.)
Dominic Bianchi v. Brian Frosh, No. 21-1255 (Court of Appeals)
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One thought on “Are the courts balanced in amicus curiae?”
  1. I find myself increasingly troubled that so many cases rely on self-defense, or being part of an unorganized militia, or whatever, as a justification for the right to keep and bear arms. Just as the right to free speech doesn’t (or shouldn’t, anyway) depend on what you’re intending to be talking about, the right to bear arms shouldn’t depend on to what purpose you intend, so long as it’s lawful.

Only one rule: Don't be a dick.

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