That moment when the lawyer smells blood in the water

In Dominic Bianchi v. Brian Frosh in the Fourth Circuit court oral arguments were held on 2022-12-06. I started listening to the oral arguments back in December but couldn’t make my way through them so was hoping for a transcript.

Today I’ve made my way part of it and got to the point where the state drew blood.

In Heller and Bruen they Supreme court said that firearms can be regulated if they are dangerous and unusual. In Caetano quoting Heller the court says But it cannot be used to identify arms that fall outside the Second Amendment. First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.Caetano v. Massachusetts, 136 S. Ct. 1027 – Supreme Court 2016 P. 1031

The key here is commonly used for lawful purposes. In the arguments throughout all of the cases we are following the state restates this as in common use for self-defense. They then go on to define “for self-defense” to mean documented cases where an “assault weapon” was used and then attempt to narrow that even further to the trigger was pulled.

In the oral arguments the state is very consistent in using the phrase “in common use for self-defense” instead of “in common use for lawful purposes.” When the state starts the court doesn’t fall for it. But the state continues and then suddenly around the 30 minute mark the Court starts using “common use for self-defense” and you can hear it in the state’s voice as they have their “gotcha” moment. That moment when they got the court thinking of redefining “unusual”.

Oral arguments for Dominic Bianchi v. Brian Frosh

NRA v. Bondi Florida ban on 18-20 yo buying firearms

B.L.U.F. The Eleventh Circuit Court covering Florida had a three judge panel decided that 18-20 year olds couldn’t buy firearms. The opinion is a hot take.

Emotional Blackmail Works

The three judge panel’s opinion was written by Circuit Judge Rosenbaum. She starts the opinion with some emotional blackmail, telling us that young adults have been shooting people for a very long time using newspaper reports from the 1870’s. She is using this to get the following statements into the opinion:

These stories are ripped from the headlines—the Reconstruction Era headlines, that is. But they could have been taken from today’s news. Unfortunately, they illustrate a persistent societal problem. Even though 18-to-20-year-olds now account for less than 4% of the population, they are responsible for more than 15% of homicide and manslaughter arrests.
Opinion of the Court — NRA v. Bondi

Double emphasis added.

In Bruen quoting Heller the Supreme Court established that when talking about the history and tradition of firearm regulation that the date to look at is 1791, the ratification of the Second Amendment. The founding period extends, at the latest, to 1826 when the last of the founding fathers died. Laws from the Reconstruction Era can be used to reinforce those traditions but can not be used if not supported by a tradition dating back to 1791.

Age Bans are Legal If You Use Reconstruction Era Laws

Judge Rosenbaum wants to use Reconstruction Era laws to justify the current law.
Read More

Friday Feedback

There was a small snow storm up here this week. Everything is back to normal.

Later today there is going to be oral arguments in Koons v. Reynolds. Finding the transcripts has proven difficult and listening to oral arguments drives me bonkers.

We are waiting on a number of cases as well. There is the case down in the Eleventh Circuit Court where the three judge panel decided that Bruen be damned, they were going to find laws justifying today’s infringements. There are the CCIA cases in New York that will be heard by the Second Circuit court soon.

All in all there are a lot of moving parts.

One of our readers asked “Why do you spend all this time on legal cases?” to paraphrase. I had to think on that a bit.

Just before I headed off to University I was thinking about buying a gun. I didn’t really have the money but I was thinking about it. I really wanted to buy an M-16. They weren’t that expensive and they were cool.

At University I spent my money on music (CD Collection) and stereo equipment, books and education. I collected knives but couldn’t justify buying a gun because I couldn’t carry it. Heck, most of the knives I carried on campus were illegal but…

I graduated, had a kid, thought about that M-16 and suddenly that was gone. In the blink of an eye the cost of an M-16 went through the window with the Hughes Amendment. For those that don’t know, the Hughes Amendment was a poison pill added to the Firearm Owners Protection Act. The FOPA was designed to reign in the ATF and to allow citizens to transport weapons through gun unfriendly states without being harassed or charged.

The Hughes Amendment closed the NFA list to new machine guns.

In that blink of an eye my options changed. I slowly started to see and understand how stupid gun control laws were. When my mentor died his father took ownership of his AR-15. I had to explain to him that he had to unload all the magazines to meet Maryland law regarding “unloaded firearms”

Before my mentor died we had testified in the state legislature against gun infringements. We found that our rights were being eroded.

When I started writing for GFZ I was finding articles and writing opinion pieces based on what those articles said. I tried to find primary sources but most of the time they were missing. As I wrote more I got better at finding the references and reading the references.

At this point I have an acceptable grasp of how to get case documents, not always, but most of the time.

My goal when I write about these cases is for you to see how the fight is fought in court. How the state twists things to get the infringements they want. I also want you to be able to get to the primary sources quickly and easily. That’s why I attempt to cite everything I quote.

I hope my efforts are successful.

One of my biggest thrills on the blog to date was when some lawyer group liked one of my legal analysis articles. I wish that they would fire off an email or start commenting in general. I’d love to have actual lawyer feedback on some of the things I’ve written, I have no real feedback if I’m getting this stuff “right”.

Question of the week, if you are interested in gun rights, how did you get there?

This poll is no longer accepting votes

Have you ever engaged your representative on gun rights?
42 votes

This poll is no longer accepting votes

Have you ever testified before your representatives?
30 votes

Prep Gizmos that work and are worth it

Most of the time I can get internet service via my cell carrier. The only real controlling issue is coverage. Which is getting better, slowly, but it is getting better.

Last fall we lost power to the house when some idiot took out the power lines just down the street. While the house was without power we still had internet to our phones. We didn’t lose outside communications and if there was an issue I could have used my phone as a modem to get my main computer back on the net to do work by just using the genset.

I could also use my laptop (Chromebook running Linux) and not needed the genset.

When the entire town is without power everybody is attempting to get online via the cell carriers and there just isn’t enough capacity for that. This means that while my phone would get push notifications attempting to do anything else while the town was awake wasn’t really happening.

Regardless, because my business is support I needed to be available. Even with no power. Even with no internet. So my phone was on the entire time. If I had gotten an emergency alert from a client or server I would have been able to move to a place where I did have internet in order to do my work. No big deal.

But having my phone on and actively attempting to do things means that I was burning power. Which brings me to these gizmos.

This is a battery with two type-A USB ports for charging other devices, like your phone. It has a third port to allow you to charge from other power sources, like a car or house. The added extra is those solar panels. It is just a little larger than my cell phone in its otterbox and about 3 times as thick. There are four solar panels when it unfolds and in our Northern Climate it takes about 8 hours of direct sun to charge.

I get three charges for my phone from this. If you need to be able to charge your devices this might be useful to you.

Catch all

I’m tired. We got our power back after around 30-36 hours. We did not suffer but we had to work a bit harder than normal.

I was responsible for clearing a 1/4 mile of driveway that had snow ranging from 30cm to nearly 90cm deep. The first pass was a pain because our snowblower is only good to about 70cm of depth. This means that you drive the blower into the snow, it shoots the snow off to the side and you let it start to climb. When it has climbed to about a 30degree angle you stop the drive wheels and pull the damn thing back

Then you do it again. It has no trouble with the ramp it left behind but shortly after that it will do the climb thing. Each pass gets you about 75cm of progress.

Once you get the first path done it is much easier. In my case I had a kid walk the path with a shovel and pull down a foot or two of snow. Then the blower throws that out of the drive. Relatively easy.

All in all I spent about 6 hours yesterday and today removing snow.

Duncan v. Bonta

You got to love the lie of omission. It won’t work with Judge Benitez but they still had to try. The state of California wrote a letter to Judge Benitez telling him of the decision in the 11th circuit court (Florida way) where the three judge panel found that Florida’s ban on 18-20yo owning a class of firearms is constitutional.

The decision was so egregious that the plaintiffs(good guys) didn’t even have to request an en banc hearing. At least one judge on the 11th circuit judge went “WTF?” and held the opinion pending a decision of the 11th Circuit court as a whole on whether to hear the case en banc to give an opinion.

The state just left out that part where it was found so egregious that the 11th circuit stayed their own opinion.

Koons v. Reynolds

Judge Bumb is not somebody you want to mess with. While the case was brought by plaintiffs(good guys) Koons et all against Reynolds in his official capacity for the state of NJ the Senate and the General Assembly wanted to get their arguments in as well.

They applied to become “Intervenors” which just means they want official recognition from the court to lawyer stuff such as give oral arguments. It isn’t clear to me when they were allowed to join as Intervenors but they are.

When Judge Bumb was threatened with with the state appealing to the Third Circuit court on March 8th if she doesn’t rule on the preliminary injunction in a timely basis she slapped them down and set the date for oral arguments for the March 17, 2023 at 10am.

There is this back and forth going on where the state wants more time to get the historical and traditional laws in front of the court while the court is telling them “The legislature said they had those laws at hand before the passed the law, what gives?” So the state wants to slow walk some parts and “get it done right now!” on the other hand. I think it depends on if they think they are going to have the law stayed or not.

Well the intervenors wrote to the Court telling her that one of the attorneys was in Florida and wouldn’t be back by the 17th and could they please attend virtually. A bit later the other lawyer for the intervenors wrote to the court asking for a ruling.

Judge Bumb gave them that ruling yesterday:

This matter comes before the Court upon the March 9 and 14, 2023, letters filed by Intervenor’s counsel requesting to present oral argument virtually (ECF Nos. 108 and 111). The request is denied. Any counsel presenting oral argument on Plaintiffs’ Motions for a Preliminary Injunction must appear in person. Counsel not participating in oral argument may observe the proceeding virtually. So Ordered by Chief Judge Renee Marie Bumb on 03/15/2023. (Costigan, Roberta) (Entered: 03/15/2023)
Docket Koons v Reynolds 1:2022 cv 07564

Nothing from AWA today

We’ve been without power here for almost 24 hours when you read this, unless power is restored over night.  Not a problem fur is.

The wood stove is doing a fine job of keeping the house warm. Wife is unhappy because she’s cold but everybody else is in short sleeves.

Last night we had homemade pasta that I made with some fancy chicken dish. Only requirement was it had to cook on top of the stove. My lady solved lack of oven by using a Dutch oven.

Hopefully I’ll have power and post later today.

Koons v. Reynolds: NJ Kill Carry challenge

B.L.U.F. This case covers the challenge to the knee jerk response of NJ to the Bruen opinion. The NJ “Kill Carry” bill follows the lead of NY’s CCIA.

On 2022-12-22 a suite was filed in the district court of New Jersey challenging the bills put into effect after Bruen and after New York’s CCIA. It uses almost the same methods to make it almost impossible for the public to legally carry a firearm.

Using the standard places at random are “sensitive places” where a legal gun owner could be charged and found guilty just for walking on the wrong side of the road with a firearm. To understand just how bad New Jersey firearms law is consider this New Jersey law:

Dum-dum or body armor penetrating bullets. (1) Any person, other than a law enforcement officer or persons engaged in activities pursuant to subsection f. of N.J.S.2C:39-6, who knowingly has in his possession any hollow nose or dum-dum bullet, or (2) any person, other than a collector of firearms or ammunition as curios or relics as defined in Title 18, United States Code, section 921 (a) (13) and has in his possession a valid Collector of Curios and Relics License issued by the Bureau of Alcohol, Tobacco and Firearms, who knowingly has in his possession any body armor breaching or penetrating ammunition, which means: (a) ammunition primarily designed for use in a handgun, and (b) which is comprised of a bullet whose core or jacket, if the jacket is thicker than.025 of an inch, is made of tungsten carbide, or hard bronze, or other material which is harder than a rating of 72 or greater on the Rockwell B. Hardness Scale, and (c) is therefore capable of breaching or penetrating body armor, is guilty of a crime of the fourth degree. For purposes of this section, a collector may possess not more than three examples of each distinctive variation of the ammunition described above. A distinctive variation includes a different head stamp, composition, design, or color.

If you read through the court cases it means that you are not allowed to use JHP rounds in your carry weapon. Yep, you aren’t allowed to use personal defense rounds but the cops are. Those rounds are designed for multiple purposes, one of which is to stop over penetration.

The question

Do subparts 12, 15, 17 and 24 of section 7(a) and subpart 1 of section 7(b) of A4769/S3214 violates the right to bear arms secured by the Second and Fourteenth Amendments?

  1. a publicly owned or leased library or museum; …
  2. a bar or restaurant where alcohol is served, and any other site or facility where alcohol is sold for consumption on the premises; …
  3. a privately or publicly owned and operated entertainment facility within this State, including but not limited to a theater, stadium, museum, arena, racetrack or other place where performances, concerts, exhibits, games or contests are held; … [and]
  4. private property, including but not limited to residential, commercial, industrial, agricultural, institutional or undeveloped property, unless the owner has provided express consent or has posted a sign indicating that it is permissible to carry on the premises a concealed handgun with a valid and lawfully issued permit under N.J.S.2C:58-4, provided that nothing in this paragraph shall be construed to affect the authority to keep or carry a firearm established under subsection e. of N.J.S.2C:39-6[.]

KOONS v. REYNOLDS — Complaint


  1. A person, other than a person lawfully carrying a firearm within the authorized scope of an exemption set forth in subsection a., c., or l. of N.J.S.2C:39-6, who is otherwise authorized under the law to carry or transport a firearm shall not do so while in a vehicle in New Jersey, unless the handgun is unloaded and contained in a closed and securely fastened case, gunbox, or locked unloaded in the trunk of the vehicle…


In short they are asking if the sensitive places limits and carry in a vehicle are constitutional. Unfortunately this is limiting and the law was likely written with severability in mind so that if one part is ruled unconstitutional the rest of the law will stand.

The Arguments

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