The Supreme Court has ruled that the meaning of an Amendment is locked to the time it was adopted. The People at that moment of time analyzed the end and decided that the means proposed was properly balanced. If The People decide that the original analysis was wrong, they will go through the process of amending the Constitution.
Karen Achoo, the governor of a blue state, requests and gets the Protect Our State (POS) law passed. This declares that dangerous or unusual weapons can be banned, and it is factually obvious that firearms that hold more than two rounds are dangerous and thus are banned.
This bill goes into effect on January 1, 2024. We now game the problem from the view point of the anti-gun side.
Scenario One
The Supreme Court is 6-3 favoring originalism. Judges that will read the law(s) as written and apply the means-end that was done at the time of the adoption of those Amendments. Read More
In talking to my wife this morning, she was telling me how angry she got reading about Judge Easterbrook and Illinois’ continual attack on the Second Amendment. She couldn’t understand why they kept doing what they were doing.
There is no need to delve into the “whys” of it, it is not relevant. The only thing that does matter is that there are people who do not want guns in the hands of The People. With that, the game starts.
History
The starting point is “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
In congress, there were robust arguments about how they could pass a law that was a direct infringement on the right of The People to keep and bear arms. In the end, they decided that the only way that they could limit access to evil guns was by taxing them out of the hands of The People.
Remember, this is at a time when the cost of a silencer was under $10. The cost of the Tax Stamp was $200. It still is $200.
This was not a ban. Anybody with enough money could pay for the tax stamp. Early enforcement was more as an “extra” charge put on a criminal when they were caught with an unregistered NFA item. In numerous instances, if a nominally law-abiding person was found with an unregistered NFA item, they were told to register it and that was the end of their interaction.
Today, the anti-gun people are perfectly happy that a tax has become a de facto ban. The cost of regulations and compliance has raised the cost of legally purchasing a silencer to well over $700. I would love to have a couple of cans. I’d love to have at least one can for my squirrel rifle.
In 1968, the Gun Control Act was passed. Again, this was not an outright ban on anything, it was just the state getting between you and your purchase of a firearm.
Which takes us to:
Modern History
In the late 70s moving into the late 90s, the anti-gun movement really picked up speed. The one gun rights organization was more interested in “Keep and bear arms for hunting and sporting” than in “Shall not be infringed”.
It is difficult to really understand what it means to be a lobbyist. It is a full-time job. Furthermore, it requires you to know people, to know who they are, what they like. To know who controls access to whom, and to be able to spend business hours doing nothing but lobbying.
And when the day is done, you get to do some more. Don’t like golf? Tough, learn to play, learn to play well enough to be a challenge but not so good that you make them look bad.
There were people and organizations that had the money to purchase lobbyists. And they were there in the halls of power pushing congress critters towards more and more infringements.
Out of this, multiple infringing laws were passed. These include the AW/LCM ban and all the state and local bans on carrying.
The Courts
There are three levels of courts we are interested in. The District court is the lowest federal court. They report to their Circuit Court of Appeals. In turn, the Circuit Courts report to the Supreme Court.
The Supreme Court consists of 9 judges. The Circuit courts have at least 9 members and often more.
A District court has a single Judge. They decide the legal questions presented and for all other questions of evidence, a jury is used. The parties can request that the Judge also act as the jury.
The judge decides if the plaintiff(s) have standing. Once that is determined, the case starts moving forward.
The case is documented in the court “docket”. The docket is a record of every official communication between the court and the parties.
Once the case is opened, the defendants will be informed. The defendants then start the process of responding to the accusations. This almost always starts with attacking standing. The goal is to get the case dismissed for procedural reasons.
Here’s the thing, a case dismissed for procedural reasons can be refiled if the procedural error is correct.
This process takes months.
In the simple sequence, the plaintiff (good guys) ask for a Preliminary Injunction with an optional TRO.
The TRO is to stop something from happening until the court can determine if a Preliminary Injunction should be granted. If a preliminary injunction is granted, then that remains in effect until the final opinion is issued. The final order will remove the preliminary injunction and if the plaintiffs win, then a permanent injunction will be put in its place.
The Delay Game
The defendants (bad guys) will often request additional time to brief the case. They will argue about needing more time for experts, and in general, they will drag things out as much as possible. IF there is no injunction against their infringing laws.
If the Preliminary Injunction is requested and the result goes against one party (it almost always will), that party can appeal to the Circuit court for either a Preliminary Injunction, if the District court did not grant it, or a stay, if the District court did grant the injunction.
Cases that are appealed before the final judgement are said to be in an “interlocutory” state. The superior courts do not like to hear appeals of cases that are still in an interlocutory state. They would prefer to wait until all the evidence has been presented and all the arguments and briefs made. The Supreme Court seldom takes up an appeal for a case in interlocutory state.
Regardless, the process of appealing is a great method to create a delay. An appeal to the Circuit court will ask for a stay pending appeal.
So on January 1st, 2020 you file a suit claiming a law infringes on your protected rights.
By the end of January, most of the starting paper work is done, and you’ve moved on to the Preliminary Injunction or Summary Judgement.
The court will schedule arguments. He will give time for the first set of briefings. This seems to be in the 3 to 6 week mark. I’m confident that in more complex cases there is more time given. At the end of that time, there will be time for a response to be filed. About 2 weeks or so, more on larger cases. There is then time for a short response to the response.
There will be time in the schedule for the court to read all the briefings and other submissions. The Oral Arguments will be heard.
At the District level, it seems to take only a couple of weeks before an order is issued.
At this point, you are in late March, mid-April.
Let’s say that the plaintiffs get a preliminary injunction. The state will appeal for an emergency stay from the Circuit court. This request will be evaluated by one judge on the Circuit. Within a few weeks, that temporary stay will be granted.
You are now getting close to May. The Circuit court will then have a three judge administrative panel decide if they will hear the appeal. If they grant the stay on an expedited calendar, that does not mean that there will be an expedited calendar for hearing the appeal.
This was attempted in the Second Circuit court. They granted a stay on an emergency basis. They granted a stay pending the appeal. And then didn’t bother to schedule the appeal. In the normal course of appeals, this could take 6 to 12 months, or more, before the appeal is heard.
During this time, the District case is on hold. There is no reason for them to move forward.
For the first act of the game, you are now into November 2020 when the appeal is heard. After the oral arguments are given, it is going to take months before the circuit court issues the opinion.
Assuming that nobody wants to actually appeal to the Supreme Court, the case is now remanded back to the District court for them to take up where they left off.
You are likely into January 2021 before your case starts moving forward again. In that time frame, massive amounts of papers have been filed by both parties. You might get your case heard by April. The court will then issue its final order a month or more after that.
You are now in it for a year and a half. If the Preliminary Injunction argument is appealed to the Supreme Court, that can take a month or more before they issue their opinion.
And every time a superior court issues an opinion, the inferior court has to start over again. In Duncan v. Bonta, the case was all the way to the Supreme Court. The 9th Cir.’s opinion was vacated, and the case was remanded back to the 9th. There they waited for months before a 3 judge panel decided to vacate the District Court’s order (which was opposite of what the 9th said and what the Supreme Court just vacated.)
The reason for the vacating and remanding is to allow both parties to provide briefs that consider the reason for the case being vacated.
To put this in perspective, we are about 40 days from the one-year anniversary of the Bruen opinion. The current standing is that The People’s ability to get carry permits has gotten better, but the risks in carrying have gone up. Not a single law has been struck down. Not a single case has made its way to the Supreme Court.
Not a single Circuit Court has issued an opinion striking down a weapons ban or a Bruen spasm response bill.
The Seventh Circuit court likely just mooted the need for the Supreme Court to step in on the AW/LCM bans in Illinois.
Brief update on the cases before the Second Circuit Court of Appeals.
There are a number of Second Amendment Cases that are before the Second Circuit Court of Appeals. While other circuits will consolidate cases, it looks like the Second Circuit did not. This means that there are four or five different cases to track. I am only tracking one, right now.
On March 20th, 2023, the three judge panel heard oral arguments. Each case was given a limited amount of time, half for the good guys, half for the bad guys.
If more than one party on each side wanted to speak, then those parties would have to agree on how much time each got.
Over in the Seventh Circuit Court, they consolidated multiple cases, then gave each side 45 minutes to present their oral arguments. This feels like it isn’t exactly reasonable, but I do not know.
Back at the Second, there are hundreds of documents filed. Some of the these documents are short and not significant. Antonyuk v. Hochul, 22-2972, (2d Cir. Feb 16, 2023) ECF No. 269 is a two-page form letter to a lawyer on the case who used the wrong login ID when submitting a different two-page document telling the court that they would be appearing as additional counsel.
Figure that there are likely around 2000–3000 pages of documents filed in this one case. Just reading all of that takes time.
Just one document references 30 different opinions. I’ve learned that just because a lawyer or judge cites an opinion, it doesn’t mean that they have represented that opinion honestly. So figure another 2000 plus pages of reference cases to read. In some cases, they reference entire websites.
Regardless, on March 20th, the case was heard.
I’ve listened to parts of the audio. It isn’t too bad, not great, but not bad. At least one of the Judges is anti-gun.
In 2017, the 2nd circuit court had a median interval from argument to opinion of less than a month. All circuit courts had a median of 2.2 months. 2018 was 0.7, 2019 was 0.8, 2020 was 0.8, 2021 was 0.5, and in 2022 it was 0.2 months.
The second circuit court has the lowest median time to opinion of the circuit courts.
Having said that, we should expect something from them in the June time frame. I suspect that the plaintiffs (good guys) will open a new appeal to the Supreme Court in July if an opinion is not issued before then.
B.L.U.F. We previously wrote about how a single judge wrote a few terrible opinions. We now look at how he is using those same arguments in current cases, post Bruen.
More History
In 2019, the Seventh Circuit heard the case of Wilson v. Cook County, 937 F.3d 1028 (7th Cir. 2019). This was a case filed by Matthew Wilson challenging Cook County’s AW/LCM ban. Matt had been filing challenges since 2009.
None of his challenges got anywhere.
In the same vain, he lost at the district level as well but appealed to the Seventh Circuit court. There it was heard on April 4, 2019, and the court issued their opinion on August 29, 2019.
PER CURIAM. Two Cook County residents appeal the dismissal of their complaint, which raises a Second Amendment challenge to Cook County’s ban on assault rifles and large-capacity magazines. Less than five years ago, we upheld a materially indistinguishable ordinance against a Second Amendment challenge. See Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015). The district court dismissed the plaintiffs’ complaint on the basis of Friedman. We agree with the district court that Friedman is controlling. Because the plaintiffs have not come forward with a compelling reason to revisit our previous decision, we affirm the judgment of the district court.
— Wilson v. Cook County, 937 F. 3d 1028 (Court of Appeals, 7th Circuit 2019)
Here the Seventh Circuit Court says, “Hey, nothing has really changed, we are going to stick with what we ruled last time.”
As part of their analysis, they show that they have fully adopted the two-step shuffle of means-end.
… If, however, the government cannot meet this burden, then the court must “inquir[e] into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights.” The rigor of this inquiry “will depend on how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.” “[A] severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end.” However, …
— Id. at 1032
Internal citations removed. The Court is quoting themselves, where they described how they were going to decide the constitutionality of a regulation. This is where they explicitly say to use means-end. Figure out how much Mrs. Jones was raped, and then decide if it really needs to stop, or not.
After the Court affirmed the District Court’s dismissal, they appealed to the Supreme Court. This was one of the cases in which the Second Amendment had strong hopes that the Supreme Court would hear the case and slap down the inferior courts.
The Petition for writ of Certiorari was filed in November 2019. It was distributed for Conference on March 6, May 1, May 15, May 21, May 28, Jun 4, and Jun 11. On Jun 15, 2020, the petition was denied with no opinion issued.
Does an ordinance that prohibits possession of assault weapons or large-capacity magazines violate the Second Amendment protections?
The City of Highland Park, IL, has an ordinance that does just that. Arie Friedman filed a lawsuit challenging the ordinance in state court in 2013. The city had it removed to the District Court of Northern Illinois. This isn’t uncommon.
There the District Court heard arguments and in September 2014, Judge John W. Darrah granted Summary Judgement to the city (bad guys). From there it was appealed to the Seventh Circuit Court.
The District Court followed the presidents provided to them by the Seventh Circuit court. The gist of which was to use the two-step shuffle and to consider anything that wasn’t a handgun used in self-defense outside the core protections of the Second Amendment.
B.L.U.F. Judges have history, and it is important to understand their history. We explore a series of opinions issued by one Judge that are consistently anti-Second Amendment, even though the Supreme Court has told him he is wrong.
National Rifle Ass’n of Amer., Inc. v. City of Chicago, 567 F.3d 856 (7th Cir. 2009)
Back in 2009, the NRA et al. challenged the City of Chicago’s ban on the possession of most handguns. This was after District of Columbia v. Heller, 467 U.S. 837 (2008). In an opinion, written by Chief Judge Easterbrook, the Seventh Circuit court affirmed a lower court finding that such a ban was constitutional.
He begins with:
Two municipalities in Illinois ban the possession of most handguns. After the Supreme Court held in District of Columbia v. Heller, ___ U.S. ____, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), that the second amendment entitles people to keep handguns at home for self-protection, several suits were filed against Chicago and Oak Park. All were dismissed on the ground that Heller dealt with a law enacted under the authority of the national government, while Chicago and Oak Park are subordinate bodies of a state. The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1876); Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886); Miller v. Texas, 153 U.S. 535, 14 S. Ct. 874, 38 L. Ed. 812 (1894). The district judge thought that only the Supreme Court may change course. 2008 WL 5111112, 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008).
— National Rifle Ass’n of Amer., Inc. V. City of Chicago, 567 F.3d 856 (7th Cir. 2009)
Here the judge is saying that district courts were dismissed because the Second Amendment didn’t apply to the state nor to subordinate bodies of a state. He goes on to say that three cases from the 1800s support this because the Supreme court did not take up such cases.
