I watch Mark Smith’s Four Boxes Diner YouTube channel because he explains legal concepts clearly. He often addresses issues that I’m concerned with understanding.

There are more than a few things I’ve picked up from him, as far as language goes.

One of those is “inferior court”. Article III of the US Constitution establishes the Supreme Court and such inferior courts as … When I am speaking of an inferior court, it means that it has a superior court which tells it how to act.

Mark Smith makes this point over and over. I got it from him.

The concept of inferior court makes it very clear that all inferior courts should be taking their marching orders from the Supreme Court.

When a court does not follow the clear instructions of the Supreme court, I label it a rogue court, or a rogue judge.

One of the things I’ve learned, while reading 100s, if not 1000s, of court filings, is that rogue judges spend more time on what wasn’t said in Supreme Court opinions than they do on what was said.

These rogue courts will often latch onto a tiny part of an opinion and fixate on that part. Nothing else matters outside that small safety net of infringement.

They will quote Heller that “no right is absolute” as if that somehow makes this infringement that exception. Every modern regulation requires that nuanced approach.

My son is on the spectrum. We used to tell him, “Stop hunting zebras”. Yes, those hoof prints might be zebra prints, but we aren’t in that part of Africa, we aren’t near a zoo that has misplaced a zebra, it is much more likely that it is a horse.

The Supreme Court says, “When you are looking at a horse, this is how you ‘do it’. There is a small chance it is a zebra, in which case you “do it” this alternative way.” They then spend 99% of their instructions on dealing with horses.

Then an inferior court starts looking for zebras, doesn’t find a zebra, but it could be a zebra, the Supreme Court did mention a zebra in one sentence of one paragraph of a 70-page opinion, so we’ll assume this is a zebra, just like the Supreme Court said.

The other common argument used is the “they didn’t say anything about it, so it must be constitutional”. Heller went through every word of the Second Amendment and explained what each phrase meant. They didn’t bother with “infringe” because that’s straightforward.

All that is needed is to look at Samuel Johnson’s dictionary and you would know.

Too many inferior court judges instead throw up their hands and say, “We don’t know what it means, so it must mean the modern regulation is constitutional.”

The part about all of this that drives me bonkers is that Heller and Bruen clearly state that if the modern regulations touches fingers with the Second Amendment, the regulation is presumptively unconstitutional. To quote Mr. Smith, “When in doubt, throw it out.”

Finally, the actual lying to The People’s face. To look at a modern regulation, to absolutely know it is a gun control law, and then claim it doesn’t touch fingers with the Second Amendment.

Just make the assumption and let the Constitution work as intended. Instead, they are so afraid of following the plain text of the Constitution, as they know it will be the downfall of much of their statist regulatory dream.

B.L.U.F.
Senior Circuit Judge Keene wrote the dissent in this case. She is unhappy with the majority opinion because that opinion would find most, if not all gun-control regulations, unconstitutional.

Because this goes against her agenda, she latches onto footnote 9 of the Bruen opinion to justify why any set of objective hoops placed to hinder a member of The People from keeping and bearing arms is constitutional. It doesn’t matter how long it takes nor how much money it takes, nor what those hoops are. As long as the state must grant permission at the end, that regime is constitutional.

(4200 words)

On November 21, the Fourth Circuit court issued their opinion on Maryland Shall Issue’s challenge to Maryland’s “Handgun Qualification License”.

This is a permit to purchase. Before you can purchase a handgun in Maryland, you must first submit fingerprints, undergo a background investigation, take a four-hour-long firearms safety training course which includes firing at least one round. After that is completed, you can submit your application for your HQL.

The state has 30 days to approve or deny the application, after they receive the application. We know that “the state” has a habit of not “receiving” things they want to receive. If they haven’t “officially” received the application, the clock hasn’t started. In addition, the 30 days is not clearly defined in law. Is that 30 business days or 30 calendar days? And how long do they have to inform the applicant of the determination? Or, as one state is doing, they are granting appointments for fingerprinting 6+ months in advance.

The reality of this egregious infringement is that it is likely three months from the decision to get an HQL before you have one.

The three judge panel reversed the district court’s “contrary decision”.

This means that the case is not going back to the district court. It can only move forward to the Supreme Court. The state has 21 days to appeal, IIRC. Reversing a decision is “You got it wrong, we don’t need you to mess it up again, it is wrong, and we are setting it right.” This is better than vacating and remanding a decision. When a case is vacated and remanded, the case is sent back to the inferior court where they do the case all over again, collecting new arguments and evidence.

So the Fourth Circuit panel did the right thing the right way in a reasonable amount of time.

Of course, there is always the thorn in your side in a case like this. That thorn is Senior Circuit Judge Barbara Milano Keenan. Born in 1950, making her 73 years old. She was nominated by Obama in 2009 and appointed in 2010. She assumed senior status in 2021.

Yes, that type of judge.

The Dissent

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Thank you for all the suggestions I got from people that understand Linux.
Don’t click the more button unless you want to read Linux geek stuff.

(1300 words)
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It has been a good week. A week to be thankful for.

Oregon had a massive win in regard to measure 114 and its follow-on bill. A state court granted a permanent injunction against the entire mess. Measure 114 is currently on life support.

This was at the lowest level in the state courts. Sort of at the “district” level if compared to the federal courts. The final judgement can be appealed to Oregon’s appeals court and from there to the Oregon Supreme court. From the Oregon Supreme court, there is an appeal to the US Supreme Court.

It will be interesting to see what the state does. If they don’t appeal, this is a loss but only takes out the permit to purchase and magazine bans. If they run it up the chain, they could lose and set a precedent for Oregon or the entire country.

The case was decided as a state constitutional challenge, not a Second Amendment challenge. I’ve not read the court’s opinion and might not. One of the lawyers I follow read a part of the opinion that struck me as particularly intriguing. The court applied a plain text, history and tradition test, against the Oregon state constitution. Very cool.

One of the first cases GVR out of the Supreme Court post Bruen was —Wikipedia: Barbara Milano Keenan (Jun. 2023). The Fourth Circuit court heard oral arguments shortly after the case was GVR. They still have not issued their opinion on that case.

That case is a direct challenge to —Maryland Shall Issue, Inc. V. Wes Moore, No. 21-2017, slip op. at 22 (4th Cir. Nov. 21, 2023) which, is the Fourth Circuit court’s means-end case law.

In an entirely different case —id., the Fourth Circuit issued their opinion supporting The People and upholding the rights protected by the Second Amendment. It was a three—judge panel. The case challenges Maryland’s permit to transfer/purchase a firearm. It is a so-called Universal Background Check.

In addition, Maryland requires a “handgun qualification license” or HQL. It is that HQL that was struck down by the Fourth Circuit. That opinion is in my to-do queue.

I hope you all had a wonderful Thanksgiving. If you did not participate in this American Tradition, I hope your Thursday was joyful.

On the not fun side of things, Wed. I started the upgrade of my primary computer. In the process of performing that upgrade, my system stopped booting. The system is booted, now, but it required some magic to accomplish.

The gist of which was to boot off an external device, get to the grub menu, escape to the grub command line. Install the GPT partition module. Type the magic incarnations “linux (hd5,gpt1)/ROOT/ubuntu@/boot/vmlinuz-6.5.0-13-generic -root=ZFS=rpool/ROOT/ubuntu” with no errors. From memory.

I’m still fixing things, maybe it will get better. If not, I do know how to “fix” it.

Comments are open, I’m eager to hear your feedback.

I grew up in a traditional family. Part of this meant that we ate as a family every night. When we finally got a TV, we didn’t eat in front of it. That was something that was a reserved special treat.

For a long time, I had lost that. When my wife and I got together I reinstated that family meal.

Unless it is something special, we eat at the table. The entire family. If you are feeling anti-social, you still come down and say prayers.

We go around the table and everybody gives thanks for something real to them for that day.

• Thank you to Miguel for letting me write for the blog and for trusting me to take care of his child
• Thank you to J.Kb for putting up with me as a co-blogger.
• Thank you to you, our readers.  Your readership means a great deal to me.
• Thank you to our founding fathers that gave us this great country
• Thank you to all the men, women, and children that have fought to keep this country free
• Thank you for winning the lottery when I was born an American.
• Thank you for the protected right to armed self-defense
• Thank you for the vast wealth our country has
• Thank you for the vast wealth each of us has.
• Thank you for the technology that allows me to work in this great state with people around the world.
• Thank you  to our Creator, who has given us so much.
• Thank you for the joy of bang sticks.
• Thank you for the smiles of my new born children
• Thank you for the smiles, glares, “Oh Dad…” of my children today.
• Thank you for the health care that has allowed my wife to have four knee replacements.
• Thank you for the modern medicines that keep me going.
• Thank you for all the plenty that is on our table, every day.
• Thank you to my friends.  Those that have passed, those that are gone, those that are close, and for all my friends I have yet to meet.

Happy Thanksgiving

After Heller, the law of the land was that if the proposed conduct implicated the plain text of the Second Amendment, then the history and tradition of arms regulation was examined. If there was an analogous regulation from the ratification of the Second Amendment, then the modern-day regulation was constitutional.

The rogue, inferior Article III courts then proceeded to take unimportant parts of dicta, focused on those crumbs with laser like intensity to discover that the state could still infringe.

Because the Supreme Court, in Heller was only deciding on a single question, there were laws that were not directly struck down. To put this in perspective, when Bruen was decided, there was only one law struck down, that being the good cause part of the NYC permitting requirement.

Every other law in the land still stood, exactly as it had been written.

When the Supreme Court GVRed several cases, no laws were vacated. Instead, the inferior courts were told “Do it over. Do it right.”

In Heller, the Supreme court told the inferior courts how to analyze Second Amendment challenges. Those rogue courts looked at the dicta, the crumbs, and decided to use an interest balancing test instead. They claimed that since the state was allowed to interest balance free speech, and because no right was absolute, that they should engage in interest balancing in Second Amendment cases.

This allowed the inferior, rogue courts, to decide just how badly a regulation was raping you, and then allow the state to argue it was in the best interest of the rest of the state’s subjects to allow you to be raped just that little bit.

Bruen was a slap in the face to those rogue, inferior courts. The major point of Bruen was to say, “We told you how to do it in Heller. You refused. So now we are going to explain it to you, in simple words, that even a lawyer can understand.”

If the plain text of the Second Amendment is implicated, the burden shifts to the state to show a history and tradition of analogous laws from the time of the ratification of the Second Amendment.

If it is an arm or if it is ancillary to the right to keep and bear arms, then we look to see if there is an infringement.

Samuel Johnson’s Dictionary, published in the 175 and 1773 defined “infringe” as:

1. To violate; to break laws or contracts
2. To destroy; to hinder.

If a regulation hinders your ability to keep or bear arms, then the Second Amendment is implicated.

This puts the burden on the state to find laws that match the modern-day law.

There were not any in the 1791. Thinking about it, The People have just done an interest balancing test of the right to keep and bear arms. The People have decided that this is one of the most important unalienable rights that must be protected from government overreach.

Because The People believe it to be a core, unalienable, right, they have enshrined protection of the right to keep and bear arms in their newly created Bill of Rights.

If the right to keep and bear arms is so essential to The People, is there any reason to expect them to be creating laws that destroy or hinder that right? No. There is no reason.

This means that the modern state has not been able to find analogous laws. They just don’t exist. They have to reach in to the 1600s or the late 1800s before they can find analogous laws. Even those laws are questionable.

What they did find were regulations that removed arms from people who were individually dangerous. Many of those regulations allowed for disarming a person for only the duration of the danger. A drunk person could be disarmed while drunk. When they were sober, their arms were returned.

If a person was dangerous, they could be incarcerated. While incarcerated, they would be disarmed.

If a person was too dangerous to possess arms, the state could make a finding of dangerousness, and disarm a person.

These infringements on an individual’s right to keep and bear arms are what the state is using to disarm us today.

Their stated reasoning is that since the state has the authority to disarm a dangerous person, the state also has the authority to determine if you are dangerous before allowing you to possess a firearm.

We argue that this is backwards. By default, we have the right to keep and bear arms. The state’s argument is that they have to be given a chance to prove you are dangerous before you can possess a firearm.

In Rahimi the Supreme Court pushed the state to articulate what criteria they were using to disarm Mr. Rahimi. The state dithered between “responsible” and “dangerous”. They want the criteria to be “responsible” because that is an easier objective standard to reach than “dangerous”.

It is fairly clear that Mr. Rahimi was not a responsible person. He had not been proven, in a court of law, by a jury of his peers, beyond all reasonable doubt, with a strenuous defense, that he was dangerous.

Translation: He has to have access to a lawyer and have his day in court.

When the state was backed into a corner by the Justices, they relented and stated that it was only the “dangerous” criteria that they actually could justify.

Conclusion

The state threw a bunch of stuff against the wall. Courts, such as Judge Benitez’s, and others have knocked most of the historical regulations out as not applying. The state is left with one potentially winning argument, disarming dangerous people.

Because that was determined to happen on an individual basis, the state is going to do their best to flip the argument from the state proving you are dangerous to you proving that you are not. If they can’t do that, they will push to have time to “verify” that you are not dangerous.

From this, I foresee a spat of regulations coming out of the infringing states regarding permits to purchase and other such infringements.

Something a little more modern than my normal.