Things that go “boom”, well “snap”

I’ve always been a cheap arse bastard. Years ago I started making my own black powder because buying it was just to expensive. This required a little bit of investment but I more than broke even.

One of the tools I purchased was a ball mill. It is a small table top mill, about 3 liters in size. It is hex shaped so it moves the media better than a round mill and it has a 1/8in replaceable rubber liner.

I’ve used it to mill all sorts of things. When I got into reloading I just used it with water and a little dish soap to clean my brass. The brass came out looking pretty good.

Later I purchased stainless steel pin media specifically designed for cleaning things like cases. Switching to Dawn dish detergent along with a Lemi Shine as a final rinse gave me wonderful results. Brass looked as good as new.

The problem is that it is messy. It takes multiple water changes and rinses to get all of the soapy water out. You have to be careful not to let the media wash away.

Since I was interested in powder coating bullets I finally picked up a vibrating tumbler. But I never used it to clean cases. I still tumble cleaned and then put the cases in the food dehydrator to dry them.

Recently I switched to using that vibrating tumbler to clean cases. It does an ok job but not new brass clean. The images I shared the other day of the .38 special with the bottom of the primer broken out was run through the tumbler for an hour. It is clean but not great.

So I struck a deal with a friend to send him some primers loaded into .45ACP cases. I’ve a few hundred .45ACP cases that are ready for reloading. Except they are straight from the range and are not clean enough to reload. So I decided to tumble clean them before I primed them and sent them off.

I got everything ready… Put the tumbler in its base and powered it up. It started doing its magic.

About 5 minutes into the first 30 minute run it stops. I hear a whine but no tumbling action.

The twenty plus year old power belt had snapped.

So I’m stuck until the belt material gets here. I pride myself on being prepared. I didn’t have a spare belt. I didn’t have the material to make a proper belt. On Monday I could likely get some big rubber bands from the PO to use for a bit. But I don’t have it here and now.

So tumbling will have to wait until the new belts are made. That will happen on Monday. If all goes well I should be able to ship out fifty cases to my friend on Tuesday.

Bah Humbug

Product Review + Request: FA Hand Deprimer

Frankford Arsenal Hand DePrimer
Frankford Arsenal Hand DePrimer

This was my gift for myself which arrived yesterday. It isn’t like I don’t have a half dozen different dies that will deprime cases. My goto till yesterday was a Lee Precision universal decapping die. This is just a standard Resize + Decapping die with a huge chamber so that just about anything will fit inside. The only thing that contacts the shell id the pin that pushes through the flash hole.

I like this but it does require that I spend time in the reloading area when I really want to be with family. Thus I decided to get a hand depriming tool. I choose the Frankford Arsenal one.

First, it is a solidly constructed. The only thing that seems even remotely questionable is the rather long spring with no guide. It works so they must have gotten that right. It takes a little bit of hand strength to operate but still very nicely made.

It comes with three plastic collets. They don’t have to be anything stronger than plastic as they are only used to center the case. You can see where two of them are hooked under to the bottom of the tool. I did manage to knock one off over the course of depriming a couple of hundred cases but that was more me being a bit klutzy rather than an issue with the tool.

Once you choose the right collet you put it in place and screw down the adjustment cap until the collet just fits the cases. This works fine. It took a couple of tries to get it where I wanted it but once I did it worked great.

The next part is in the instructions and of course I didn’t remember. You have to manually tilt the holder down before you attempt to squeeze the grip. If you don’t it doesn’t work. Follow the directions.

You have to make sure that the case is seated deep enough that the pin is in the flash hole. If you don’t then the first squeeze will align the case more correctly and the second will actually punch the primer out.

So the biggest downside to this thing? If you tilt it upwards it will spill spent primers out. They go everywhere. And they are freaking hard to find on carpet. Other than that, zero issus.

Now for the request…

A few years ago some friends gave me buckets of shell cases. Like 3 five gallon buckets worth. They had picked them up at a private (home) firing range. Some of the cases were a couple of days old, some where a couple of years old. I got them all.

They were processed and then ended up in trays waiting for a time when I needed them.

This lead to the following:

Instead of the primer coming out it pushed out the bottom of the primer. Thankfully I do full inspections of my brass and noticed not only these with the bottom of the primer still hanging on but also a number of cases with the walls still inside the primer pocket.

Any ideas on how to get the remaining parts of the primer out?

Right now I plan on using the primer pocket tool for removing military crimps/staking. Since I made myself an adaptor I can do it with a power drill so no big deal. But if anybody has any other ideas, please share.

Kolbe v. Hogan Updated: Added a negative

It is clear that some states feel that the best thing to do is to disarm their citizens. We’ve seen this happening for years. The gun bans start small and just grow. With each small step the next step is larger and makes it harder and harder to keep and bear arms.

The people pushing for gun bans of one sort or another don’t care about the constitution. They have made that clear in words and deeds. They feel that they have a right to a “do over” in regards to the right to keep and bear arms because of things. Yet they do not want to do it via a constitutional amendment. Instead they attack everything to do with guns in order to make an infringement tolerable to the masses.

As an example we have an article in The Atlantic:

These new attacks are so extreme that even laws supported by the gun industry are coming under threat. Until not so long ago, an overwhelming majority of leaders in the firearms industry, in which I spent more than 25 years as a sales executive, accepted the necessity of regulations like the ones that flowed from the 1939 Supreme Court case U.S. v. Miller, which upheld the 1934 National Firearms Act. That statute severely restricted the sale of sawed-off shotguns, silencers, and fully automatic weapons such as the “tommy guns” used by criminal organizations like Al Capone’s.

Miller thus clarified the balance between individual freedoms and collective safety as a sound constitutional test for all gun laws. This finding led to other bedrock laws such as the federal background-check system, or NICS, which was instituted in 1998. This statute protected citizens by making it harder for criminals to obtain firearms, while also providing reasonable liability protection for responsible gun manufacturers. Up until the late 2000s, most people I knew in the industry approved of laws enabled by the Miller standard that helped prohibit “bad guys” from buying guns.

Except that Miller didn’t actually say anything about balancing rights. What it said was pseudo-quote “because nobody came before us to tell us that a sawed off shotgun is a military arm we have to rule that sawed off shotguns are not covered by the second amendment”. The terms they used actual protect military-style arms more than civilian-style arms.

The Miller decision gave more protections to any firearm used by any military than it did to a fudd’s lever action rifle. Even though lever-actions were used by the military they were never awarded a large U.S. military contract thus they were less likely to be considered militia arms.

States heard the cries of gun banners demanding that guns be banned and said “it is unconstitutional” but they looked for ways around it. While gun grabbers were very vocal in their demands, the voices of gun owners and gun rights were less likely to be heard.

The blunt truth is that the second amendment has nothing to do with hunting or personal protection from individuals. That is a happy side effect. The second is about preserving our rights against tyrannical government, foreign or domestic.

We had just fought a major war with one of the super powers of the time. We won because of many issues but one of the biggest was that we had the means to wage war. The People had both small arms and “crew served weapons”. Not just bearable arms, but cannon.

The “shot heard around the world” happened because the British were marching to confiscate arms. They were intending to remove gun powder, guns and cannon from the colonist. They were met with armed resistance and the U.S. of America was birthed, screaming and crying into battle.

People don’t like to be labeled with negative terms. They seek to avoid it. For the last few years we attempted to avoid the term “far right extremist” and “racist” and “child killer”. These labels are powerful. It is only now that we are starting to look the accusers square in the eye and say “Fuck you.” The words lost most of their meaning.

The number of times we have been told that we are murders because we didn’t immediately give up our guns when somebody else shot a child is nearly countless. It happens everytime we stand up for our rights. The gun grabbers want to push that lable of “murder” on anybody that disagrees with them.

After Sandy Hook social media was awash with people demanding that we give up our guns. One person was adamant that anybody that wanted to own an AR-15 was responsible for the murder of those children and teachers. I turned the argument upside down and accused her of wanting children to die because she would not allow teachers to be armed. I used every tactic that had ever been used on us on her.

I found out from a friend that knew her personally that I had reduced her to tears. She was an older lady who had been teaching for years and was well known for her love of children (In a good way J.Kb.!). She couldn’t understand why anybody would say she hated children and wanted them killed.

She never figured out that she had been saying exactly the same things just a few posts before about people that owned AR-15s.

State legislatures are filled with gun grabbers. They hear these cries from the people and are able to say to the people “We will do something about this!” They are willing to say that they are going to ban or limit some part of gun ownership and then say it does not infringe.

There were a few ways of doing this pre-Bruen. The first was to claim that the second amendment only applied to militia and by extension was a collective right reserved for the state. Heller said “nope, it is an individual right.” The gun grabbers then like to argue that the law is balanced against government/society needs.

The argument against an individual right comes from the Miller decision which mentioned a militia wouldn’t use a sawed off shotgun so a SBS isn’t covered. It said nothing about means-end

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588, nor Presser v. Illinois, 116 U.S. 252, 264-265, 6 S.Ct. 580, 29 L.Ed. 615, refutes the individual-rights interpretation. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 2812 – 2816.
— Heller

Here is the wording which the gun grabbers hang their means-end arguments on from Heller:

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 2816 – 2817.

“Is not unlimited” was taken to mean that there are laws that are acceptable infringements. The only question was what should be used to determine what is allowed and what was not.

The answer the courts came up with was “means-end”. As stated before, this allows the court to run a balancing act with their thumb on the scales. First they use the phrase in Heller “… such as self-defense within the home” to indicate what the “core right” protected by the second amendment is. This allows the court to decide if a law is infringing on the right of the individual to protect themselves within the home.

If it is not that single core right then it is a lesser right and gets less protection. Once that is decided the court then gets to balance the “good” that the government says a law will do against the level of infringement.

On cross-motions for summary judgment, a distinguished judge in the District of Maryland ruled in August 2014 that the FSA is constitutional and thus awarded judgment to the defendants. See Kolbe v. O’Malley, 42 F.Supp.3d 768 (D. Md. 2014) (the “Opinion”). Addressing the plaintiffs’ Second Amendment claims under the Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the district court expressed grave doubt that the banned assault weapons and large-capacity magazines are constitutionally protected arms. Nevertheless, the court ultimately assumed that the FSA implicates the Second Amendment and subjected it to the “intermediate scrutiny” standard of review. In the wake of Heller, four of our sister courts of appeals have also rejected Second Amendment challenges to bans on assault weapons and large-capacity magazines, including two (the Second and District of Columbia Circuits) that utilized an analysis similar to the district court’s.

–Kolbe v. Hogan

Here the 4th circuit court describes what the district court did. The district court “assumed” that the Firearms Safety Act was an infringement but only for the purposes of analysis. The court then decided that because the core right of the second amendment wasn’t implicated that they would use intermediate scrutiny. Under intermediate scrutiny the district court ruled that the FSA was constitutional.

Even though the court agreed that “large capacity magazines” and “assault weapons” were arms under the second amendment definitions.

The case was appealed to the fourth circuit court where a three judge panel decided that the district court got it wrong. They did this by moving their thumb from “intermediate scrutiny” to “strict scrutiny”.

In early February of 2016, a divided three-judge panel of this Court vacated the Opinion’s Second Amendment rulings and remanded to the district court, directing the application of the more restrictive standard of “strict scrutiny” to the FSA. See Kolbe v. Hogan, 813 F.3d 160 (4th Cir. 2016). Pursuant to its reading of Heller, the panel majority determined that the banned assault weapons and large-capacity magazines are indeed protected by the Second Amendment, and that the FSA substantially burdens the core Second Amendment right to use arms for self-defense in the home. We thereby became the first and only court of appeals to rule that a ban on assault weapons or large-capacity magazines deserves strict scrutiny. Meanwhile, the panel affirmed the district court’s denial of the plaintiffs’ Fourteenth Amendment claims. On March 4, 2016, the panel’s decision was vacated in its entirety by our Court’s grant of rehearing en banc in this case. We heard argument en banc on May 11, 2016, and the appeal is now ripe for disposition.

The key words are “…substantially burdens the core Second Amendment right to use arms for self-defense in the home.” Even here the three judge panel is still considering the second amendment to have a “core right”. If the item isn’t used for self-defense in the home it is not protected under the second amendment.

The decision of the three judge panel was appealed by the state and the fourth circuit court vacated the panels ruling because it decided to hear the appeal. In other words: Our little court didn’t get it right so we are getting a do over with 9 judges.

As explained below, we are satisfied to affirm the district court’s judgment, in large part adopting the Opinion’s cogent reasoning as to why the FSA contravenes neither the Second Amendment nor the Fourteenth. We diverge from the district court on one notable point: We conclude — contrary to the now-vacated decision of our prior panel — that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach. See 554 U.S. at 627, 128 S.Ct. 2783 (rejecting the notion that the Second Amendment safeguards “M-16 rifles and the like”). Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage. Nevertheless, we also find it prudent to rule that — even if the banned assault weapons and large-capacity magazines are somehow entitled to Second Amendment protection — the district court properly subjected the FSA to intermediate scrutiny and correctly upheld it as constitutional under that standard of review.

Here the court has intentionally conflated AR-15 with M-16s. M-16s can be regulated via the NFA because the NFA has not yet been challenged directly post Heller. In order to make the FSA constitutional the court had to treat “assault weapons” as NFA items.

They continue with a statement that because the en banc. fourth circuit court move their thumb back to intermediate scrutiny, even if they considered assault weapons and LCM’s protected arms, means-ends allows them to be banned.

The state’s argument:

In support of its motion for summary judgment, the State proffered extensive uncontroverted evidence demonstrating that the assault weapons outlawed by the FSA are exceptionally lethal weapons of war. A prime example of the State’s evidence is that the most popular of the prohibited assault weapons — the AR-15 — is simply the semiautomatic version of the M16 rifle used by our military and others around the world. Accord Staples v. United States, 511 U.S. 600, 603, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (observing that “[t]he AR-15 is the civilian version of the military’s M-16 rifle, and is, unless modified, a semiautomatic weapon”).

The good news is that in June of 2022 the Supreme Court of the US Granted certiorari to Bianchi v. Frosh, vacated the fourth circuit court’s ruling, and remanded the case back to the fourth circuit court. Since Bianchi v. Frosh was decided based on Kolbe v Hogan this means that Kolbe v. Hogan should no longer be considered good law.

We will have to wait to see what the fourth circuit rules regarding Bianchi v. Forsh

Friday Feedback

First, thank you to our readers that keep turning in suggestions. I’m sorry that not all of them get articles written about them. Sometimes it is because we have something else already in the works, other times it is because we can’t stand another article about that subject. And sometimes it is because we just don’t have time.

About 20 years ago I was doing semi-professional photograph. I did a couple of wedding shoots, I also did a few shoots for actresses and actors. And I did a few shoots for newsworthy events. Even got published once and had a showing where I actually sold a couple of prints.

My equipment at the time was a Nikon F5 with a bunch of good lenses. I was depressed to learn that my F5 which I paid north of $1500 for was no selling used for under $200.

I’ve wanted to get back into photography but wasn’t willing to pay for another F5 class camera body. Then I found that I could buy one step down and got myself a D5100 from Nikon. It works with some of my older lenses but not all.

One of the big issues is that it doesn’t work right with my onboard flash. Thus the washed out images.

Do you all want more of my photos of guns and things? They will get better once I figure out the controls a bit better.

Any feedback on my analysis of court cases? I am NOT a lawyer. I’m just a computer nerd and I’m trying to read all of this case law. It is dense and full of ignorant and evil arguments.

45-70 +P

Grizzly 45-70 +P

I gave a Springfield Trapdoor to my daughter last Christmas. She named it “Baby”. Which is all fine and dandy. I think the name of the Henry Big-Boy in 45-70 is going to be “Impala.”

Because the Springfield was designed around a black powder cartridge 45-70 rounds labeled “Govt.” or “Government” are downloaded to be safe to fire in the Springfield. We received a number of 45-70 Govt. rounds when we purchased the rifle, just so we would have something to send down range.

This is OLD ammo. We sent four rounds down range and then waited for me to have the reloading dies before we loaded again for 45-70 Govt. I had picked up a box of 45-70 Govt from the Very LGS. I was a little worried about shooting it out of the Springfield but I was willing because I wanted the cases.

Yes, it is easier to find loaded cartridges in 45-70 than it is to find 45-70 cases.

I picked up the Henry because I have an addiction to lever actions. It is a very modern rifle. Still wood but uses a ghost ring rear sight and is a fun rifle to shoot. I’ve sent about a half dozen rounds down range with it so far.

Then today I sent ONE +P down range.

That SOB kicked harder than 7.62x54R or a 12 Gauge. I am glad it had a rubber pad on the buttstock. That round shoved me back even though I was firmly braced. It hit the steel plate and flung it straight back before it fell to the side

It pulled the carriage bolts through the plate. I forgot to check the plate for damage but oh my.

This is a powerful round. I love it. I’m not going to shoot much of it.

There are normally three plates back there. One 1/3 size man on the right which is my first shot plate. This is the plate that got ripped off its bolts

To the left is a 5in round. And behind that is 1/4 size man plate. When you are on the firing line the only thing you can see of that back plate is the “head” and top of the “chest”. To hit it you have to shoot over the round plate and between its chains.

This is my standard target when I’m just having fun.

When the Judge Isn’t Qualified

On June 23rd, 2022 the Supreme Court of the US issued their opinion on NYSR&PA v. Bruen. Justice Thomas wrote a beautiful opinion which destroys the two step shuffle of means-end balancing.

On June 21st, 2022 the State of RI passed a standard capacity magazine ban. They call them “Large Capacity Feeding Devices” or “LCMs”. Four gun owners and an FFL filed suit challenging the law. The case is “Ocean State Tactical v. State of Rhode Island” No. 22-CV-246 JJM-PAS.

Today the judge in the case issued his order in regards to the plaintiffs (good guys) requesting a preliminary injunction to block the ban.

The court denied the request.

In summary, the Court find that the plaintiffs lack a likelihood of success on the merits, that they will not suffer irreparable harm if the law is allowed to take effect, and that the public interest is served by denying injunctive relief. Specifically, regarding the merits, the plaintiffs have failed in their burden to demonstrate that LCMs are “Arms” within the meaning of the Second Amendment’s text. Moreover, even were they “arms,” the plaintiffs have failed to prove that LCMs are weapons relating to self-defense. There is no Second Amendment violation from the LCM Ban because of those two shortfalls of persuasion. The Court must therefore consider the LCM Ban outside the core Second Amendment protection. The Court further finds that the statue is not vague. Because the LCM Ban is a valid exercise of police power, there is no “taking” requiring just compensation and, consequently, no violation of the Fifth Amendment. The Rhode Island General Assembly passed, and the Governor signed, legislation to lower the risk of harm that results from the availability of devices that assist someone intent on murdering large numbers of people. This common sense public safety legislation does not implicate the Second Amendment and violates no one’s constitutional rights

(Any grammar or spelling errors in the block quote are the fault of the transcriber, me)

Fortunately for us, the Supreme Court has already ruled that things like magazines and ammunition are arms. They did it in a roundabout way but it was done. The Supreme court in Heller explicitly stated that it is unconstitutional to ban a class of firearms in common use for lawful purposes. They have stated that “use for lawful purposes” is not limited to firing the arm in self defense. The act of possessing a firearm is using it.

Just as the act of carrying a firearm by a police officer is using it. Even if they never draw their gun. The fact that they have (possess) the gun and have it with them changes the behavior of those around them. That makes possessing a firearm “use”.

As far as a magazine not being an arm, there are guns that will not function without a firearm. Many semi-auto pistols have magazine safeties which block the functioning of the firearm without the magazine being in the gun. Thus a magazine ban would be banning an entire class of firearms which Heller says is unconstitutional.

In addition, if it were constitutional to limit the number of rounds a firearm is allowed to hold there is no difference, legally, between 10 rounds and 1 round. According to this Judge the state has the right to limit all firearms to being single shot only.

The judge declares the magazine ban “a valid exercise of police power”. This is sort of like saying it is okay for the police to take your pot because pot is illegal and they don’t have to reimburse you for it. But this declaration depends on the ban being constitutional in the first place.

Finally the Judge states that the ban is “common-sense public safety legislation”. He doesn’t say he used means-end balancing but the fact that he mentions public safety or common-sense strongly suggests that was part of his reasoning.

For the uninitiated–which, until this case appeared on the docket, the Court considered itself–magazines are devices holding extra ammunition and are inserted into and removed from the frame of the firearm, much as an extra battery-pack gets swapped in and out of a battery operated tool, like a leaf blower, for example. “Reloading,” in this context, means removing an empty magazine and substituting it with a full one. The process may be as simple as pressing a button to eject the spent magazine, in order to push a new one in. (References omitted)

So an ignorant judge can’t be bothered to actually read what the supreme court has to say on the subject but is qualified to decide what a magazine is.

When a multiple round device like an LCM is attached, a handgun becomes a “semiautomatic” weapon, meaning that it is capable of rapidly firing several bullets, one right after another. However, the gun still requires a trigger pull for each round fired. (dictionary reference omitted) Nevertheless, a semiautomatic weapon can fire at rates of 300 to 500 rounds per minute. Kolbe v. Hogan (4th Cir. 2017)(en banc). A fully automatic weapon, such as a machine gun, differs from a semiautomatic weapon in that only one trigger pull is necessary to release a barrage of bullets that are then sprayed continuously from the barrel until a manual action is taken to stop them.

The 4th Circuit just heard oral arguments last week regarding Bianchi v. Frosh which the supreme court GVRed back to the 4th after the Bruen decision. The original decision on Bianchi v. Frosh was decided based on Koble v. Hogan. In other words, this judge just based his definition of a semi-automatic weapon and its rate of fire on a case that the supreme court says was wrongly decided.

As soon as this ban goes into effect, any person that still possess a standard capacity magazine which holds more than 10 rounds is guilty of a felony. This is acceptable because the state granted a 180 day grace period.

You are reading this blog post so you follow gun control regulations, at least to some extent. You would be aware if your state were to pass such a ban that would make you guilty of a felony overnight for owning something that you bought legally.

…In accessing the constitutionality of a restriction, courts must inquire whether LCMs were in common use during the relevant historical period and whether they are unusual and dangerous.

NO. That is not what Heller or Bruen said. It is not if the item was in common use at the time of the ratification. It is if it is in common use today. The supreme court explicitly stated in Heller that “arms” extends to modern firearms. That is not just weapons of 1791.

It is also the case that determine if something is an “arm” does not depend on whether they are unusual and dangerous. Being in common use for lawful purposes makes them NOT “unusual and dangerous”.

The rest of the 59 page order isn’t much better. Feel free to read it

Memorandum and Order, Juhn J. McConnell, JR US District Court Chief Judge

Breaking Good

So what happens if your right to petition the government for redress of grievances carries with it the cost of bankruptcy of yourself and your representatives?

Would you be able to hire a lawyer if they knew that losing even one part of the case would put them, personally, on the hook for all of the states costs?

This is what Governor Newsom did. In CA SB 1327 they created a law which did precisely that with regards to second amendment cases. If you brought a case against the state for violation of your rights and you lost any part of the case then you and your lawyers were required to pay the costs of not only your own side but the costs of the California spent defending the state.

EC. 2. Section 1021.11 is added to the Code of Civil Procedure, to

1021.11. (a) Notwithstanding any other law, any person, including an entity, attorney, or law firm, who seeks declaratory or injunctive relief to prevent this state, a political subdivision, a governmental entity or public official in this state, or a person in this state from enforcing any statute, ordinance, rule, regulation, or any other type of law that regulates or restricts firearms, or that represents any litigant seeking that relief, is jointly and severally liable to pay the attorney’s fees and costs of the prevailing party.

(b) For purposes of this section, a party is considered a prevailing party if a court does either of the following:
(1) Dismisses any claim or cause of action brought by the party seeking the declaratory or injunctive relief described by subdivision (a), regardless of the reason for the dismissal.
(2) Enters judgment in favor of the party opposing the declaratory or injunctive relief described by subdivision (a), on any claim or cause of action.
(c) Regardless of whether a prevailing party sought to recover attorney’s fees or costs in the underlying action, a prevailing party under this section may bring a civil action to recover attorney’s fees and costs against a person, including an entity, attorney, or law firm, that sought declaratory or injunctive relief described by subdivision (a) not later than the third anniversary of the date on which, as applicable:

Laws are designed to be opaque, hard to read. Sometimes the meaning hinges on a single comma. For most people reading these paragraphs they read “…liable to pay the attorney’s fees and costs of the prevailing party.”. There are some nasty gotchs in that little quote.

First “jointly and severally” refers to “person, entity, attorney, or law firm” which is challenging the law AND “that represents any litigant”. This means you and your lawyer.

Is this really so bad? If you “win” then this doesn’t matter. Except that they define “prevailing party” to mean “any claim or cause of action”. So if your suit had multiple claims or causes of actions, say you argued under the 2nd, and also the 5th

In the course of the trial the judge says that there was “no taking” so the 5th amendment is not implicated. He then grants everything else you claim regarding the 2nd amendment.

You won. The State of California then presents you with a bill for all of their costs for defending the law that was just found unconstitutional. Why? Because according to the laws definition they prevailed. One of your claims was dismissed.

Anybody that has ever looked into COBRA coverage after being let go from a job knows that there are LOTS of hidden costs. The State has no reason to try and keep prices down. They have legions of lawyers and each of them gets billed out when dealing with such a case. Those costs can grow to millions of dollars very rapidly.

This had a chilling effect on second amendment cases out of California. So chilling that ALL California cases dealing with the second amendment were put on hold pending other cases challenging this law.

Now California put in language that says that even if one part of SB 1327 is found unconstitutional all other parts are still in affect. Regardless, the “must pay defendants costs” part of SB 1327 was recently found unconstitutional. This means that the other 2A cases are now moving forward.

We’ll have updates on a couple of cases that are being heard this month shortly.