B.L.U.F.
Multiple states filed an Amicus Brief in the magazine ban out of the District of Columbia. They use the same old arguments. There are a few interesting bits of lawyering, things to pay attention too. All of this is designed to shave the corners of a square peg to get it to fit through the round hole authorized by Heller and upheld by Bruen.
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It gets tiring reading the same tired arguments from people that will not admit that what they want and what is Constitutional are two completely unique things.

Every one of these infringing bastards starts with some version of: The Supreme Court said that some infringements are allowed, this infringement is one of them. I’m just surprised that they haven’t mentioned straightjackets in the first paragraph.

Part of the problem is that the Supreme Court has said that reasonable firearms regulations” can exist within the protections of the Second Amendment.

the States have adopted a variety of restrictions on weapons and accessories that are not in common use for self-defense.—Andrew Hanson v. DC, No. 23-7061 (D.C. Cir.) What is this “reasonable firearms regulation”? A complete ban on magazines holding more than ten rounds.

As has been pointed out by multiple sources, the fact that the states can’t decide what the round limit should be, indicates it is arbitrary.

the District’s LCM provision preserves the right of law-abiding, responsible citizens to use firearms for self-defense.—id. The interesting part of this is that they cite to Heller II. The state claims that parts of Heller II were abrogated by Bruen.

This, of course, means that they get to keep whatever they want.
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We’ve had another case make it through oral arguments at the appellate court level.

An interesting extra happened over in the Third Circuit Court, they immediately requested that the parties order a transcript of the oral arguments. I think this is so that there is a full and complete record when this is appealed to the en banc panel or the Supreme Court.

We’ve had the mass shooting, right on schedule. This time they avoided the gun free zones.

We’ve got terrorists terrorizing Jews throughout the country.

Keep your head on a swivel, your rifle by your side, and spare mags handy.

(I took Hagar to do a presentation yesterday, my on body mag count went from one or two, depending, to four mags. I need to start looking for a .45 ACP Carbine for a truck gun.)

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They held oral arguments in this case today. It was before a three judge panel. I listened to about 1.5 hours of nearly three hours of arguments.

The state went first, they made some interesting arguments. I need to pay careful attention to the actual arguments because they sounded better than anything I’ve read, so far.

The judges were asking good questions of the state. It wasn’t a case of “tell us what we should rule” but they pushed for real answers to real questions.

One series of questions I remember is the Judges asking, “with this law in place, where can people legally care their firearms?”

The state made an argument that it was ok to ban carry in bars because there will be more people carrying guns and more guns means more accidents. When the judges pushed back regarding the history of banning carry in bars, the state explained that it used to be ok because people use to open carry in bars. If somebody was open carrying and drank too much, the laws disarming people who were drunk could be used.

Since open carry is banned, people can’t tell who is armed and drunk, so nobody can carry now.

As I said, the state lawyer did a good job of lawyering.

The lawyer representing law enforcement, not so much.

He didn’t seem as prepared. He started his arguments around Winter factors. The judges seemed to take pity on him, “Ignore the preliminary injunction, we want to talk about the merits”.

It only took three tries to get him on the right track.

When they got done with the line of questioning on the merits, they dismissed him. He took that as an opportunity to go back to his points.

Somebody must have signalled him because he then said, “oh, my time is up?” The judges politely said “yes” and he left.

I would feel sorry for him if he wasn’t an infringing enemy of The People.

When Rahimi was granted certiorari, I thought about writing my own brief. I didn’t I do not believe I am ready for such a big lift. On the other hand, I read some briefs where I am sure I could have done a better job.

Over in the Seventh Circuit Court of Appeals, they are considering Burnett v. Raoul. The reason I mention this is that one of the big hitters has stepped up to the plate. C.D. “Chuck” Michel is now one of the lawyers representing the plaintiffs (good guys).

When you read his firm’s filings, you learn how it is supposed to be done.

This lawyer for law enforcement that presented today wouldn’t qualify as an intern at Michel & Associates, P.C.

I don’t remember much about the plaintiff’s lawyer’s presentation. My lady was demanding my attention.

Conclusion

We now have cases that are fully briefed in the Second, Third, Fourth, and Seventh Circuit Courts. The first was heard by the Fourth, right after the case was GVRed by the Supreme Court. They will continue to sit on the case until one of their sister infringing courts gives them a ruling they can build on.

The next case was heard by the Second. The Second has the lowest average time from argument to opinion of the circuits. They have been sitting on the case for an extended period of time. I expect them to wait as long as possible.

The Seventh heard their cases, and that three judge panel is so anti-gun and anti gun-rights that I don’t expect an opinion out of them until the Supreme Court pries it out of their greedy hands.

The Ninth has some cases before it. Oral arguments have not been heard. The same with the Eleventh Circuit Court.

This takes us to the Fourth Circuit and today’s oral arguments. I actually believe that this court will issue their opinion before any of the other circuits. It just felt that way when I was listening to their questions.

Listening to Judges and Justices ask questions and attempting to figure out anything is called “reading the tea leaves”. Make sure you don’t say anything solid because reading the tea leaves seldom goes as expected.

Finally, there have been several positive cases out of the Fifth Circuit Court of Appeals. I don’t consider these cases as being useful in striking down bad state laws. There have been no Bruen tantrum response challenges in the Fifth because those states didn’t throw tantrums when the Supreme Court spanked them.

There are a couple of cases that are moving towards the Supreme Court or that are already at the Supreme Court from the Circuit Courts that have not gone rogue. These will go a long way to gutting some of the more egregious parts of federal gun-right infringements, but are unlikely to do anything about gun and magazine bans, nor of sensitive place restrictions.

B.L.U.F.
This is a challenge to California’s weapons ban. Judge Benitez used Heller, following the instructions of Bruen, and decided the case for the plaintiffs (good guys).

An analysis of the state’s request for an emergency stay pending appeal shows the state in nearly full on panic.
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It looks like this case has been up and down the ladder at least twice.

Judge Benitez gave the state 10 days to get a stay from the Ninth Circuit court. Theses are calendar days, per —Andrew Hanson v. DC, No. 23-7061 (D.C. Cir.). This means that on the 29th of October 2023, the “Assault Weapons Ban” of California will be fully enjoined. People will once again be able to purchase rifles that have been banned for years.

Interestingly, they will not be able to purchase handguns that were excluded by the AWB. This is because none of the named AWB Pistols are on the handgun roster.

The state has filed for an emergency stay with the Ninth Circuit court.

To get a stay, the petitioner must meet the four Winters factors: the likelihood of success on the merits, irreparable injury, the balance of equity, and public interest. In Baird v. Bonta, the district court changed the order in which they weighted the four factors; they literally took them out of order. The Ninth Circuit then reversed the order (the legal statement of the court) of the district court. In plain language, the Ninth Circuit said that the inferior court got it wrong, and their (the Ninth Circuit) statement was the correct one.
In Baird v. Bonta, the Ninth Circuit reversed the order of the Winters factors used by the district court‘s order.

What does this mean to us? It means that anytime anybody requests a stay within the Ninth Circuit, the court must look at the merits first. If the likelihood of success on the merits favors the movementmovant (the person filing the motion), then the other three factors are considered.

In a civil rights case, any abridgment or infringement of a constitutionally protected right is, by definition, an irreparable injury. The balance of equity favors the protection of constitutionally protected rights. There is no public interest in enforcing an unconstitutional law.

This means that if the movementmotion is based on a constitutional challenge, if the movementmotion is likely to win on the merits, the other three factors favor the movementmovant as well.

The state’s argument for a stay

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Why didn’t you all tell me that I had a bad video link?

There are albums that set new standards. The concept of a “Rock Opera” is one of them.

We’ve heard them, The Who’s Tommy, Styx’s Mr. Roboto, Pink Floyd’s The Wall are all examples of rock operas.

They tell a story from beginning to end. A complete story arch. Sometimes taking two LPs to tell.

Of course, there are rock opera’s that are a little bit shorter:

If you can find it, you might enjoy Kenny Roger’s and The First Edition’s The Ballad of Calico

I am not a lawyer, I am not an FFL, I don’t hold an SOT. Do NOT use anything I say in this article as reliable.

Having given you that warning, I want to talk about FFL and SOT for a bit.

There was a time, prior to 1968, when people were able to purchase firearms like any other good or commodity. If your local bar wanted to sell guns, they could. If the local hardware store wanted to sell guns, they could. If you were a large mail order company, you too could sell guns.

The only real requirement was that you had to pay a transfer tax on NFA items.

The government decided that it was too dangerous to allow just anybody to sell guns. They set up federal firearm licenses and federal firearm licensees. If you had an FFL, you could still buy guns the way you always could.

This “loophole” meant that many people became FFLs to be able to continue to buy and sell like they always had. These people were called “kitchen FFLs”.

The ATF didn’t like it. The federal government didn’t like it. What good did it do to have this method to control the sale of guns when everybody was going out to get FFLs?

The ATF pushed back and the definition of an FFL was updated to restrict who could hold FFLs. This led to the Curio and Relic FFL. The idea being that people who were collecting should only be collecting “old” guns. If a gun was old enough, then you could buy it with your C&R FFL.

They are attempting to change the definition of “curio and relic” because early production AR-15s are now becoming C&R firearms.

There are different FFLs for different types of firearm commerce.

1. Firearm Dealer/Gunsmith
2. Pawnbroker
3. Collector
4. Manufacture of Ammunition
5. Manufacturer of Firearms
6. Importer of Firearms
7. Dealer of “Destructive Devices”
8. Manufacturer of “Destructive Devices”
9. Importer of “Destructive Devices”

The “normal” FFL we interact with is a Type 01, Firearm Dealer/Gunsmith. A Type 07 FFL would be a manufacturer of firearms. If you are a Type 01, you cannot manufacture firearms for resale.

If you are a Type 07, you can manufacture for resale. While you or I might consider the most important task of manufacturing a firearm to be quality and safety, the reality is that it is the paperwork. There is an instant in time when a piece of aluminum becomes a firearm.

Since a manufacturer of firearms must have an accurate record of every firearm they have, the moment a “thing” becomes a “firearm” it must have the correct markings. If it does not, then the manufacturer is in violation of federal law.

What that means, is if you put a raw forging into a CNC machine, that CNC machine spits out a finished AR-15 lower which is taken to have a serial number stamped on it, you have broken the law. That firearm existed from the moment the CNC machine “created” the firearm. Until the serial number is stamped on it, it is an unserialized firearm, a big no-no in the commercial manufacturing of firearms.

Given that you have jumped through all the hoops to be a Type 07 FFL, now you can make “fun” things too! Right?

Not so fast.

The government recognizes that to reduce the number of fun things available, you make them more expensive. Having somebody making fun things is not really a good idea. So they add a tax to it. If you want to deal in NFA items, you have to pay a special occupation tax, or SOT, to the government.

With a SOT of the right class, an FFL can also deal in NFA items.

If a Type 08 FFL, an importer of firearms, wants to sell foreign made NFA items to the government, they have to get a Class 1 SOT. Let’s say you are the mayor of Chicago, and you want MP5s for your 149-man personal protection detail, at some point in the process, a Class 1 SOT with an FFL 08 would be required to import those MP-5s.

You can also import for research and development under Class 1 SOT.

If you want to make NFA items, you have to get a Class 2 SOT to go with your Type 07 FFL. At that point, you can start manufacturing most NFA items. What you cannot manufacture is machine guns.

The only people who are allowed to possess post 1985 manufactured machine guns are state actors. Even if you have those magic permission slips, making a machine gun is still a no-no.

A Class 3 SOT in combination with a Type 01 or 02 FFL allows that dealer or pawnbroker to buy and sell NFA items.

What this means in practice is that you can go get a Type 07 FFL and make model GFZ-007 pistols and sell them.

If you get a Class 2 SOT to go with that Type 07 FFL, you can make the model GFZ-007s, the version with the built-in silencer.

You still cannot make the GFZ-007g, the version with the giggle switch. That is forbidden.

Unless… You are making the GFZ-007g for a state actor.

How does the ATF know you are making it for a state actor? You have a letter from that state actor saying that they want a demonstration and are looking to buy some sort of giggling firearm.

Now you have the state actor requesting that you provide them with a demonstration. Since the state actor in most cases is a police department, these are called “law letters”.

So you manufacture a GFZ-007g, you show it to the state actor that asked to see one. They decide they would rather not buy it. You put it back in the safe as a “demo”. You now possess a post ’85 sample machine gun.

If you give up your FFL (or just your SOT), you have to divest yourself of that machine gun. You are not allowed to possess a post ’85 machine gun for your purposes. You are only allowed to have possession of it to demonstrate, in hopes of sales, to a state actor.

Now, there are some old boy friendly law enforcement groups. They often have good working relationships with the local gun people.

So you have a Type 07 FFL and a Class 2 SOT, and you decide you want to drill the extra hole and drop an auto-sear into your AR-15. That is illegal.

The next time the chief stops in, you mention to him that you’d like to have a law letter to do such a thing. He thinks about it and says, “hell yes, I’d love to get a chance to fire a full auto AR-15!”

A few days later, you have your law letter. You manufacture a full auto AR-15.

You call up the chief, and he comes out, and the two of you have a day of blasting through hundreds of rounds of 5.56×45 mm.

The Chief goes back happy, you’re happy. Life is good.

The next day, you are at lunch with some of the guys and somebody says, “wouldn’t be cool to make a full auto AK?” “Let’s do it!” you respond.

You still have that law letter, you can still manufacture machine guns. All should be good, right?

Nope, the state actor hasn’t requested that item. You don’t have all that is required to make that type of NFA item. You can still do it, but you have to try to sell it to the state actor, or it doesn’t count.

If the Chief wrote you that letter and there was never an interest by a state actor to acquire machine gun(s), then that letter is fraudulent.

If the law letter is fraudulent, then the Class 2 SOT doesn’t allow you to manufacture machine guns.

Conclusion

Numerous people that want to play with machine guns have jumped through the hoops to become the right type of FFL with the right type of SOT to acquire machine guns. Including getting a law letter.

The ATF is cracking down on those people who are getting the proper combination of permission cards from the government to possess post ’85 machine guns but never intended to sell to the government.

In some cases, the people involved knew what they were doing was a crime. Since they have been caught, they have to do the time.

We can hope that their lawyers bring up Second Amendment protection issues that lead to good outcomes, I don’t believe we are there yet.

As I’ve said more than once, I’m old and fat. This means that the “high speed” gear of a younger, fitter, person doesn’t work for me. If I were to try an appendix carry, my Done-Lapped-Over would totally block access to my firearm.

I wear a belt to keep my pants up. No belt and my pants fall off. Some of that is because of the gear I carry in my pockets. A couple of knives, wallet, spare mags, you know the drill.

My original EDC was a small 9 mm which I carried in a pocket holster. Any belt was enough to keep my pants up and my firearm in place.

I finally upgraded to Alien Gear holster systems. I like them, they work for me. Their IWB works for me, as does their OWB versions.

They do have an important requirement, a belt.

I have no idea what happened to my original belt. I replaced it with a 100ft of braided para cord attached to a Gerber belt buckle. I made that myself.

This works “ok”, the problem with it as a belt was my belly lap got pinched and scraped by the belt buckle. When I added a holster with a firearm to it, the belt would twist and the buckle bit harder.

Upgrading to a “real” gun belt stabilized everything but left me with a new buckle that was biting my belly. Driving any distance, such as to any of my clients, and my belly would be raw. It was just not working.

I’ve lost weight and firmed up, so that is no longer an issue.

Regardless, during that period of time I had to stop wearing pants and switched to a shoulder holster. This worked, but it wasn’t something I had on when I was just working at home.

It got worse when I transitioned to carrying on my pants. That Alien Gear holster shell moved to my pants and gun belt and wasn’t available for my shoulder holster.

Which brings me to my newest holster.

As part of my losing weight, my pants started falling off. Unless I cinched my belt tighter than was comfortable, my gun would pull my pants off. I found myself using my shirt as sort of suspenders to hold up my belt on that side.

This leads me to getting some “real” suspenders. Not the stretchy kind, but solid load bearing suspenders. The first pair I got were for holding up your tool belt. They have big padded shoulders and are black webbing and look awful. I replaced these with a nice pair of Y Suspenders from Hide & Drink.

These look nice and just painplain work.

I still wasn’t wearing my EDC every day at home. Comfort being the excuse. I was watching a video by Paul Harrell where he explained why he wore an older style of USGI web gear, it might be ALICE got me thinking.

So I picked up a m1936 web belt with M1911 leather holster along with a .45 mag pouch. I added a WWII repo medical pouch and m1936 suspenders.

The web belt arrived yesterday, I’ve been wearing it with 1911 and two magazines while awake and at home.

Damn if it isn’t the most comfortable combination I’ve worn, so far.

The position of the mag pouch isn’t perfect, but it isn’t horrible. The holster is in the right place for me. The belt fits my fat belly/waist. The suspenders aren’t here yet, but with that addition, this will be darn near perfect for around the house and yard.

The flap holster is such that it is very non-threatening to gun people and cops. They know the firearm is there, but that flap signals that the pistol isn’t coming out rapidly. For anti-gun people, I don’t want to talk to them anyway. If I’m at all concerned, it is still easy access and rapid enough.

When sitting, nothing is poking into me. It is just comfortable.

Maybe those old farts knew something?