B.L.U.F.
The Seventh Circuit court has decided that English is not their strong point, nor is logic, nor is following the Supreme Court’s orders. Short version. More to come.
(525 words)

The Seventh Circuit court has gone rogue, again. Bruen tells us that the first step is to show that the conduct that is being restricted implicates the Second Amendment.

The Seventh Circuit says that it does. They say that in the very fact that they are discussing the Second Amendment, Heller and Bruen.

From there, the next question to ask is, “Is this a ban of a particular type of arm?” Yes, it is. They are regulating “assault weapons”.

If the modern-day regulation is a ban, the Heller court has completed the second step of the analysis: Is there a history and tradition of regulating arms in common use today?

The Supreme Court said that there is no history and tradition of banning arms in common use today.

They then explained that for an arm to be outside the protections of the Second Amendment, it must be both unusually dangerous and uncommon. In Caetano the Supreme Court set the threshold of “in common use” at two-hundred thousand.

If the more than two-hundred thousand items of that type of arm are in common use for lawful purposes, the modern regulation is unconstitutional.

There is no “military use” criteria. To use their wild example, the Davy Crockett weapon system is not in common use. There were not two-hundred thousand of them made. Not even that many warheads.

The Seventh Circuit has gone rogue because they arbitrarily decided that certain arms aren’t protected by the Second Amendment because the legislators said they weren’t.

Another week, another change. Hagar finally got me the new fonts. I am responsible for the final look in our header. If you don’t like it, you can say so. If you like it, that would be nice to hear as well.

It has been a long week at this end of the keyboard. The kids cars needed to have their yearly inspection. Blue Haired fairie’s car failed with an “exhaust leak”. That happened for two reasons. Our mechanic had to move on short notice, he is in a different town. He lost his phone number when he moved. We couldn’t find him.

Wife found him. I got an appointment. Ended up having to take kid’s car to be fixed and re-inspected. A few hundred dollars later, it was fixed and passed inspection.

Boy’s car was up later that afternoon. They told him that he needed brake work and new tires. They were getting ready to hand over the car when the left rear brake line let go. Unsafe to travel. I had to drive out to pick him up.

My wife’s car had an ECM failure so was at the dealership being fixed. I came out to find that I had a flat tire on the truck.

In less than 24 hours, 3 out of four vehicles were offline.

We made it through, wife’s care is back. My truck will have a replacement or repair done in the next day. My son’s car should be ready for pickup today.

On top of all of this, I got interested in a couple of my articles and ended up writing until 0100 on one night and 0130 on the next night. I’m running on short sleep right now.

Enough complaining. It is a beautiful day. I have lost enough girth that I can actually practice my draw. I’m working with a shot timer for the first time. I’m only doing 8 rounds a day. It gets me up and outside. All is right with my world.

Now if only the rest of the world was not charging headlong into violence.

B.L.U.F.
Why do the states want a more “Nuanced Approach” and what does that actually mean?
(1400 words)

This is what the state is looking for, a more nuanced approach. This is because there are two different sets of rules that must be followed, depending on “nuanced” or not.

Starting with Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.—Caetano v. Massachusetts, 136 S. Ct. 1027 (2016) we start to see the state’s problem. The meaning of the Second Amendment is fixed according to those that ratified it. That means it is fixed as to its meaning in 1791.

The meaning of the 14th Amendment was fixed when it was ratified. Unless the people of 1868 thought that the ratification of the 14th included a reinterpretation of the 2nd, which cannot be proved, the meaning of the Second Amendment is fixed at 1791.

The state always starts with implicating unprecedented societal concerns or dramatic technological changes —District of Columbia v. Heller, 467 U.S. 837 (2008). This shifts the burden to the plaintiffs (good guys) to argue against the state’s claim. The state claims that “mass murders” are an unprecedented societal concern, except that mass murders have been happening for eons.
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(625 words)
This is another case where the state wants 18, 19, and 20-year-olds to be excluded from The People for Second Amendment purposes, while still treating them as full on adults for other government needs.

I’m not digging through this one, these two paragraphs give us the gist of the appeal.

First, the Appellees (good guys) don’t need to submit any expert reports regarding history and tradition. That is the state’s burden. Nor do they have to “prove” that 18-20 year-olds do or do not “comprise the most dangerous and homicidal age group”.

If they were going to look at who comprises the most dangerous and homicidal groups, you would be hard-pressed not to focus on “the 6% or so that commit more than 50% of all violent crime. Of course, that would be “racist!”

This means that Professor Donahue’s expert opinion as expressed in his report is meaningless. Means-end analysis is not allowed. see —District of Columbia v. Heller, 467 U.S. 837 (2008) and —Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010).

This means that the state rests their entire argument on the report by Saul Cornell, Ph.D.

It is important to note that Saul is not a lawyer. Why is this significant? Because they are not arguing about facts, they are arguing about the law. If they are arguing about the law and what it means, then you must be admitted as an attorney.

When a normal person writes a brief and submits it as an amicus curiae, they do it through counsel. The state didn’t do that. Instead, they brought this guy in as an “expert”.

I can’t locate his declaration, the appendix they reference is not in ECF and I can’t find it in the original case.

On the other hand, I spent a few painful hours, about 10 minutes in total, reading and listening to him.

He is well-spoken, the same way Marx’s writings are to the ignorant.

Regardless, his opinion is not an acceptable supporting argument. The state wants this to become a battle of experts. They bring in their experts to say “guns have always been regulated like X” and we bring in our experts that say “no.” but then have to argue against their expert’s opinion.

At the end of an experts battle, the judge picks one set of experts and says, “you win”.

The actual task of evaluating the law is the judge’s duty. That is literally his job. You will find that most judges are perfectly capable of doing it correctly, when it is not a hot topic.

Conclusion

Another case on its way to the appellate court. They are in the process of setting the date for oral arguments.

(Don’t you hate it when you forget how many days a month has? I do. I accidentally scheduled this for tomorrow)
This has come across my music feed numerous times. By the time Tuesday rolls around, I’ve forgotten what it was I planned to share with you.

I remembered enough to go find it.

(550 words)
As predicted, the opinion of Judge Benitez was appealed to the Ninth Circuit court. There it went before a three judge administrative panel, just like Duncan v. Bonta should have.

Two members of the panel decided to grant the stay pending appeal as an administrative stay. The third judge, Circuit Judge Callahan, did not want to issue the stay pending appeal.

The good news out of this is that the administrative panel has scheduled this for a hearing in December 2023. They have already told all the parties that there will be no extensions of time approved. Briefs are due from the state on November 9th, answering brief on November 22nd, final response brief on November 29th.

For an appellate court, this is freaking fast.

Circuit Judge Callahan dissented in part:

The short of this is that this panel kicked responsibility down the road. They dumped the reasoning on the en banc panel, which said that the state would win on the merits because many district courts agreed with the state’s position.

The state, in Duncan v. Bonta claims that The People being able to purchase and possess semi-automatic firearms the state deems “scary” will cause the state irreparable injury. That’s not how this is supposed to work.

Regardless, if this panel hears the case on the merits, we should have an opinion in early 2024. At which time the state will appeal for an en banc panel. If the plaintiffs (good guys) lose, they should appeal directly to the Supreme Court.

Final resolution of Duncan and Miller is likely 9 to 12 months out.

B.L.U.F.
A long look at what the state is arguing. It has become repetitive. We continue to examine each filing made by the state, looking for some new argument.

The best I’ve found is “oh, look at what all the district courts in infringing states have said!”
(3000 words)

Four-hundred ninety-four days ago, the Supreme Court slapped down the infringing states, “may issue” game. The Supreme Court emphasized that the two-step shuffle of means-end was not acceptable. They commanded that the inferior courts use text, history, and tradition when analyzing a Second Amendment Challenge.

The Bruen opinion calls into question every gun-control infringement in the country. The states, not happy with being forced to issue CCWs, responded with Bruen Tantrum Bills. These bills were intended as direct challenges to the Supreme Court.

Since then, there have been hundreds of Second Amendment challenges filed. Both as civil suits and as criminal defenses.

The State’s Starting Point

The states start by looking at the Heller, McDonald, and Bruen opinions. They are looking for any openings to support their infringements.

Their go-to citations are:

• The Second Amendment is not a straight-jacket
• We are aware of no dispute over longstanding regulations
• We presume that laws regulating NFA items are constitutional

Since the Supreme court did not explicitly say that there are no constitutional regulations on firearms, that means there must be constitutional limits. It is the task of the state to find those constitutional regulations.

The Plain Text

In Heller the court spent many pages defining exactly what each word and phrase in the Second Amendment meant. Every. Single. Word.
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