Hardaway v. Nigerelli NY CCIA update

B.L.U.F. The DA for the County of Niagara, NY who is a defendant (bad guys) in this case has filed a brief saying with the Second Circuit Court of Appeals saying that parts of the CCIA are unconstitutional and that the District Judge got it right when they issued a preliminary injunction against the state and the state’s agents.

On 2023-02-27 Brian D. Seaman, the District Attorney for the County of Niagara, New York filed a brief with the Second Circuit court.

Plaintiffs-Appellees moved for a temporary restraining order and then a preliminary injunction enjoining Superintendent Nigrelli, Niagara County District Attorney Seaman, and Erie County District Attorney Flynn and their officers, agents, servants, employees, and all persons in concert or participation with them, from enforcing all of New York Penal Law § 265.01-e(2)(c), and their regulations, policies, and practices implementing it. (J.A. 99-125). The district court granted both Plaintiffs-Appellees’ requests for injunctive relief. (J.A. 9-52). Superintendent Nigrelli now appeals from the interlocutory Decision and Order of Judge Sinatra granting the preliminary injunction. (J.A. 343).

As is set forth below, the district court properly granted the preliminary injunction for the purpose of furthering a judicial determination as to the constitutionality of New York Penal Law § 265.01-e(2)(c) and said decision should be affirmed.
Brief for Defendant-Appellee Brian D. Seaman, in His Official Capacity as District Attorney for the County of Niagara, New York

This is the defendant in the case stating that in his opinion the Judge got it right when he granted the injunction against the defendants. He is arguing for the plaintiffs! This is great news.

As the question before the Second Circuit is whether or not the injunctions should be stayed. It is not if parts of the CCIA are constitutional. It is only if the injunction should be stayed. Currently it is stayed.

Antonyuk was appealed to the Supreme court when the Second Circuit court stayed the district court’s injunction issued by Judge Suddaby. They argued that the district court had given a thorough explanation of the courts reasoning in granting the injunction but the Second Circuit just said “nope” and stayed the injunction.

The Supreme Court heard the request and then denied the appeal but, and this is a huge but, Justice Alito with Justice Thomas concurring issued an opinion while joining with the denial. In the opinion they told the plaintiffs that this was being denied for procedural reasons and that they had to wait for the Second Circuit court to do their thing. If the Second Circuit Court did not provide a thorough explanation of the reason for the stay and in a timely fashion the plaintiffs should come back to the Supreme Court again.

This left the Second Circuit under a great deal of pressure. TheThey then scheduled the all the CCIA cases that had stays to be heard on 2023-03-20. The brief of DA Seaman is a response as ordered by the court.

It looks as if this DA and maybe the Erie DA were included as defendants because they needed to be. The plaintiffs reside in those counties so those DA are the people that would be prosecuting them. The actual target of the suit is the State of New York. While Seaman stands up for the second amendment, DA of Erie County, John Flynn, goes the easy route and says Hand me the popcorn and leave me out of this

My client takes no position on the Plaintiffs’ motion for preliminary injunction, except that he asserts, and respectfully submits, that no award of attorney fees, costs, or disbursements can properly be entered against him inasmuch as he had nothing to do with the New York Legislature’s enactment of the challenged gun control legislation.

WHEREFORE, deponent respectfully asks that if the Plaintiffs’ motion for a preliminary injunction is granted, that any Order granting said motion not contain any provision for the award of attorney fees, disbursements, or costs as against Defendant, JOHN J. FLYNN, in his official capacity as District Attorney for the County of Erie
Affidavit in response to plaintiffs’ motion for a temporary restraining order and preliminary injunction

This DA doesn’t seem to want any part of the CCIA. He likely sides with us, at least post Bruen.

As stated above, there is but a single question before the Circuit Court, here is how DA Seaman phrases that question:

Whether the district court abused its discretion in issuing a preliminary injunction enjoining enforcement of New York Penal Law § 265.01-e(2)(c) finding the Plaintiffs-Appellees met their burden of establishing irreparable harm, a likelihood of success on the merits, and a public interest in issuance of said injunction.

Niagara County District Attorney Seaman respectfully submits the district court did not abuse its discretion in awarding a preliminary injunction as Plaintiffs-Appellees met their burden of establishing an entitlement to a preliminary injunction.
Seaman, “Brief for Defendant”

In his arguments in support of the plaintiffs, Seaman makes the following statement.

The Supreme Court has made clear that individuals have the right to carry handguns publicly for self-defense. (J.A. 36). As noted by the district court, “New York’s exclusion is valid only if the State ‘affirmatively prove[s]’ that the restriction is part of the Nation’s historical tradition of firearm regulation.” (J.A. 36 citing Bruen, 142 S.Ct. at 2127). Since the Second Amendment is the very product of an interest balancing, already conducted by “the People,” which “elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense”, the Court constructed a rigorous test in determining whether this restriction is part of the Nation’s historical tradition of firearm regulation. Id. at 1231 citing Heller, 554 U.S. at 635.
Seaman, “Brief for Defendant”

The important part of that quote is “the very product of interest balancing.” In Heller the Supreme Court said that you don’t get to interest balance (means-end) the second amendment because that was already done when the people adopted the Bill of Rights.

When the gun grabbers scream that the people should have a say in the Second Amendment, what it means and how arms are regulated, they totally miss the fact that this has already happened. The fact that it was done 200+ years ago, or 50 years ago or yesterday doesn’t mean that they get a “do over”.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong headed views. The Second Amendment is no different. Like the First, it is the very product of an interest balancing by the people—which Justice BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
District of Columbia v. Heller, 554 US 570 – Supreme Court 2008

Double emphasis added.

Here is an important part of the Bruen as was mentioned in Judge Sinatra, Jr.’s Decision and Order tradition” requires “continuity” as opposed to one-offs, outliers, or novel enactments, which Superintendent Nigrelli unsuccessfully attempts to cite in order to meet his burden of demonstrating a tradition of accepted prohibitions of firearms in places of worship or religious observation. (J.A. 42)

This is part of Judge Benitez’s order to the State. He ordered that the state present to him a list of laws that show history and tradition supporting the infringements the State wants. He also ordered that they report when the laws they are using were repealed or overturned.

That repealed or overturned is important as it shows continuity of that law. So if the State claims it can ban a class of magazines because there is a history of banning a class of knives (Bowie knives) then they must also show that there is continuity of those laws banning a class of knives.

One of the issues when asking for a TRO or preliminary injunction is that the plaintiffs must show that there will be harm done to them if the TRO or injunction is not granted. The state, in 2A cases, will often argue that it isn’t a big enough burden (interest balancing) to show irreparable harm and thus a TRO or preliminary injunction is not appropriate.

First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Roman Cath. Diocese of Brooklyn v. Cuomo, 141S.Ct. 63, 67 (2020) quoting Elrod v. Burns, 427 U.S. 347, 373 (1976). Seaman, “Brief for Defendant”

This means that any infringement on a core right is, by definition, a irreparable injury.

It is so nice to see state officials, even in such horrid anti-gun states as New York, stand up for the rights of The People. This is even more powerful when you consider that Buffalo New York is part of the Buffalo Niagara economic zone. I.e. it is part of both Erie and Niagara counties.

This brief from DA Seaman came after the Buffalo shooting.

How we end up in poor positions after Supreme Court opinion

I’ve written about how certain phrases in the Supreme Court opinions seem to leave an opening for the gun infringers to attack. I noted, shortly after Bruen that Justice Kavanaugh concurring opinion mentioned “sensitive places” and as such I thought it would lead to the gun infringers attempting to make as many places “sensitive” as possible.

I did not understand how we ended up with means-end after Heller.

Heller was notoriously opaque about the standard of review it was applying, which was curious given the amount of time the parties spent sparring over the issue in their briefs and at oral argument. Perhaps anticipating that his opinion would be
criticized for not being explicit about the standard of review, Justice Scalia said, in essence, “hey, Rome wasn’t built in a day.” Early on, a consensus began to emerge, based on Justice Scalia’s explicit rejection of some form of rational basis review, the refusal of the Court explicitly to embrace strict scrutiny and the Heller safe harbor listing presumptively lawful regulations, that some form of intermediate scrutiny was appropriate. Lower courts then began to apply that test in various forms and upheld all the major regulations that came before them. In just a few paragraphs, however, Bruen essentially overruled a decade’s worth of Second Amendment jurisprudence and reopened previously-settled questions about the constitutionality of laws ranging from the prohibition of possession by individuals under a protective order to assault weapons bans to bans on high-capacity magazines.
Retconning Heller: Five Takes on New York Rifle & Pistol Association, Inc. v. Bruen

Note that I disagree with large parts of the article cited above. They are arguing that Bruen was a huge departure from Heller and that when Justice Thomas said that the lower courts got it wrong it was in fact the Supreme Court that was wrong.

They argue that the Supreme Court was wrong in that they did not explicitly tell the courts how to adjudicate Second Amendment cases and that even though they mentioned text, history, and tradition, the Heller Court didn’t actually say that was the standard to be used plus the discussion by Justice Scalia of levels of scrutiny meant that the Heller Court intended inferior courts to use means-end levels of scrutiny.

What was the legal landscape pre Bruen

B.L.U.F. An analysis of court battles pre-Bruen

Heller introduced two major changes to the gun rights litigation landscape, first it defined the scope of the Second Amendment to be individuals, not the militia and second it told the inferior courts that second amendment cases had to be analyzed using text, history and tradition.

What did this mean to us? It was the first time in decades that some of the worse laws in the land could be challenged.

Consider bringing a case saying the 1989 AWCA of CA was unconstitutional under the Second Amendment in the early 2000’s. At that time the Ninth Circuit court had issued their opinion that the Second Amendment only applied to militias. Furthermore, the states were allowed to regulated militias.

Because of this, the only entities that the Ninth Circuit court said had standing was the State in regards to the State’s militia.

In order to win your lawsuit you would have to win at the district level, unlikely, appeal to the circuit court and be granted a hearing and win, or you could lose at the circuit court level or be denied a hearing at the circuit court level and appeal to the Supreme Court.

The Supreme Court at that time wasn’t looking to hear a second amendment case.

In addition, the rules on appealing to the supreme court if the circuit court did not grant certiorari. Normally we speak of certiorari in regards to the Supreme Court but according to Cornell Law School web page it also happens at the appellate court level.

It is unclear from a brief bit of research when, if ever, a case denied a hearing at the circuit court level is allowed to appeal to the Supreme Court. It might just be that the Supreme Court just doesn’t hear those cases, in general.

In this instance the courts are stacked against us. The state legislature has created a law that they hope the state can defend in court, the population of the area might lean anti-gun, the district court and lower state courts all lean anti-gun, the appeals court (or state appeals court) lean anti-gun and the state supreme court likely leans anti-gun.

The ability to get past this bulwark of infringement is nearly impossible.

While this particular situation is based on the Ninth Circuit court and California, the same situation existed in the other anti-gun states. Those states that were huge infringers were also the states that existed within circuit courts that supported the concept that the second amendment only applied to the militia.

On the other hand, there were states and circuits that understood that the second amendment applied to The People. …,The Right of The People to keep and bear arms shall not be infringed.

But these courts didn’t have states attempting the huge infringements. At most they were minor infringements and the circuit courts struck them down and the states didn’t push to the Supreme Court.

It required good people living in anti-gun territories to stand up over and over again trying to get just one case through the infringement allowing circuits to the Supreme Court. This is expensive. Often when the plaintiffs (good guys) lost they were punished by having to pay attorney fees to the state.

Yet people did this over and over again. These were unsung heroes of the battle for the Second Amendment.

One of those heroes was Mr. Dick Heller. In 2003 he filed suit in the U.S. District Court for the District of Columbia. The district court dismissed the case for lack of standing. Heller et all appealed to the U.S. Circuit Court of Appeals for the D.C. They determined that only Heller had standing.

The United States Government then filed for certiorari and it was granted. Finally in March of 2008, 5 years after the case was first filed, the Supreme Court heard Oral Arguments. They decided in June of 2008 and the Heller decision came into existence.

Why was this such a big deal? It was a big deal because it meant that for the first time in decades the people could actually fight for their rights under the Second Amendment in court. The arguments presented by the state, prior to Heller were all about denying standing to the plaintiffs.

There was no need for the Government to defend their law(s). The plaintiffs were always arguing at a disadvantage to just get their cases heard. The arguments were all about standing, not about the infringement of any right. In most cases, the Due Process Clause and the Takings Clause were about getting standing.

Post Heller in 2008 we quickly saw the McDonald case which told the states that the Second Amendment applies to them as well. It wasn’t just the Federal Government that couldn’t infringe, it was the states as well.

This started the next stage of court battles.

While Heller said that the courts had to use text, history, and tradition of firearms regulation the inferior courts did not stick with just that.

Judges are human and quickly succumbed to the emotional blackmail of the state.

We might joke about If it saves just one child/life the blunt truth is that the claim of saving the life of a child is very very powerful.

While my wife really really didn’t get the problem with giving our younger children balloons to play with she looked at the Homer buckets with their warnings about it might kill small children and all of the plastic bags with the same types of warnings and shook her head in disbelief that this sort of warning was required. The reason it was required was that it took the death of only one child to turn the hearts of a jury against some corporation and suddenly a parent that killed their child was getting a huge payout from a corporation.

The courts were asked by the state to look at the good of the people vs the burden imposed on the individual. To see that the good of the many over weighed the good of the one.

Again, a powerful argument. The courts then looked at the issue and the earlier cases seemed to decide on a case by case basis.

The arguments then devolved into:

  • Was the the “core” right of self-defense implicated?
  • How much was the individual burdened by the law
  • Did the state have a compelling interest to pass the law
  • If there was a compelling interest and if there was a burden on the individual, was it better that the individual suffer or society as a whole

This was premised on the concept of the end justifies the means. Since there is common understanding that the end justifying the end isn’t really a good argument this was shortened to means-end.

Once there was case law at the circuit court level we find that second amendment cases quickly became pretty standardized.

The plaintiffs(good guys) would point out that their right to keep and bear arms was being infringed. The state would then grant that there was an infringement and immediately move to creating a situation where means-end could be applied.

That process normally consisted of the state explaining that the plaintiffs had other means of self-defense so that the infringement in question did not remove the core purpose of the second amendment. Because the Supreme Court in Heller used core lawful purpose of self-defense the state then argued that self-defense was the only core lawful purpose of self-defense.

The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D.C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.
Heller v. DC @2787
We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an exception for self-defense. See Brief for Petitioners 56-57. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions: “Except for law enforcement personnel …, each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.” D.C.Code § 7-2507.02. The nonexistence of a self-defense exception is also suggested by the D.C. Court of Appeals’ statement that the statute forbids residents to use firearms to stop intruders, see McIntosh v. Washington, 395 A.2d 744, 755-756 (1978).
Heller @2819

These are the places where Justice Scalia used the term. Because he used this term the state and lower courts determined that there were levels of infringements, which they called burden. “What is the burden on the core right of self-defense under the Second Amendment?” is the question the courts were asked to answer.

This leads to the primary use of the courts, to answer questions of fact. If everybody agrees on the facts there is no conflict. The court might then be asked if the law violates the rights of the individual.

When analyzing Rupp v. Bonta it quickly became apparent that under the means-end of post Heller that the state wasn’t interested in denying that their laws were infringements.

Plaintiffs’ due process claim is without merit. Their contention that the date and source registration requirements arbitrarily deprive owners who do not have that information of their assault weapons fails. The AWCA and its registration requirements are rationally related to the Legislature’s public-safety objectives, which are not just legitimate, but compelling. See Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th Cir. 2015).

While a regulation that fails to serve any legitimate governmental objective may be so arbitrary or irrational that it runs afoul of the Due Process Clause, the AWCA’s date and source registration requirements survive a due process challenge as a matter of law. Regulations “survive a substantive due process challenge if they were designed to accomplish an objective within the government’s police power, and if a rational relationship existed between the provisions and purposes” of the regulation. Levald, 998 F.2d at 690 (emphasis in original and quotation omitted). The “threshold for a rationality review challenge asks only ‘whether the enacting body could have rationally believed at the time of enactment that the law would promote its objective.’” MHC Fin. Ltd. P’ship v. City of San Rafael, 714 F.3d 1118, 1130-31 (9th Cir. 2013) (emphasis added and quotation omitted).
Defendant’s Opposition to Plaintiffs’ Motion for Preliminary Injunction – Rupp v. Bonta

What this points out is that as late as 2017 the state was arguing that even due process was at the whim of the government. If the burden imposed on the individual of the state no allowing/following due process was not too much and it was for the common good, then the state could suspend your right of due process. The state argued similarly regarding the Takings Clause.

Having easily disposed of the Due Process and Takings Clauses the state moved on to the second amendment aspect.

Here the argument was that while the law might be an infringement, we don’t agree that it is, but that it might be and we, the state, will stipulate to that, it isn’t a burden on the core right of self-defense.

Once it is determined that it is not an infringement of the core right of self-defense the court is allowed to continue with means-end by choosing the level of scrutiny.

One useful way to think of a level of scrutiny is a way of expressing an overall balancing test, where what we’re balancing is the importance of what the government is trying to achieve by the alleged rights violation or classification (hereafter “government action”) and necessity of the government action to the government’s ends against the perniciousness of the kind of government action under consideration. Then the choice between the three levels of scrutiny, strict scrutiny, intermediate scrutiny, or rational basis scrutiny, is the doctrinal way of capturing the individual interest and perniciousness of the kind of government action. Race discrimination is really dangerous and nasty, so we’re going to apply strict scrutiny to it; violating a fundamental right like the right to vote, ditto. Regulating commercial speech (i.e., advertisement) under the 1st Amendment is probably less dangerous and nasty than regulating speech for its political content, so it only gets intermediate scrutiny, and so forth.
14th Amendment Course Note on levels of scrutiny by Paul Gowder
Strict Scrutiny is what the Court applies to fundamental rights violations (at least formally, in name—in practice it often applies something else) and suspect classifications under the Equal Protection Clause
Intermediate Scrutiny

Like strict scrutiny, the burden of proof is on the government, and like strict scrutiny, you can’t use after-the-fact invented justifications.

The big difference, however, is in the actual level of scrutiny applied. Where for strict scrutiny, the government needs a compelling interest, in intermediate scrutiny the government merely needs an important interest. And where for strict scrutiny, the government action has to be narrowly tailored to the interest, in intermediate scrutiny the government action must only be substantially related to the interest.

Rational Basis

As we know by now, rational basis is the default rule for if we don’t have some other standard of review that applies. And rational basis is extremely deferential. The court will uphold a government action under rational basis if it’s rationally related to a legitimate government interest.

Rational basis is easy. Basically, the government almost always wins. First, the government merely needs a “legitimate” interest, which can be something like administrative convenience or saving a little bit of money.

The state and courts couldn’t get away with Rational Basis so they tried to get the courts to apply Intermediate Scrutiny. Under intermediate scrutiny they just had to prove that the state had an important interest and that the law was substantially related to that interest.

This is easy. The state just has to say “This law is for public safety.” The plaintiffs then have to argue that it isn’t for safety. This is an extremely difficult case to make. It is entirely possible to look at a ban and say but it will save a child! and that is both important and substantially related to that interest.

The thing the state did not want to happen is to have the courts decide to apply text, history, and tradition.

This is what Judge Benitez did. He looked at the case before him, a magazine ban, and applying the Supreme Courts opinion in Heller said that the Ninth Circuit Court of Appeals had misinterpreted the opinion. That he, at an inferior court, was doing it right.

The Ninth Circuit court than slapped him down. Just like they had done previous 2A cases.

In this case though, Virginia Duncan and her team didn’t stop with the Ninth Circuit court and applied for certiorari. The Supreme Court heard the request in conference and did not grant certiorari. They also did not deny it. The case sat in limbo until Bruen.

Ask Me Anything Poll Results

Well you guys really aren’t very interested in me. You were more interested in another Q&A with Hagar than me. You were more interested in nobody than me. You were more interested in J.Kb. than me.

You were mostly interested in Miguel. I shouldn’t be surprised. I’ll ask if he’ll do it. No promises. You don’t have to worry though, no AMA for me.

Hey guys, I’m not upset, this is why I put up the polls. It makes it easier to find out what you all want to hear about.

Rupp v. Bonta AWCA Part 1 of 3

B.L.U.F. This is the California case challenging California’s assault weapons ban. This case was first heard in federal district court. It was then appealed to the Ninth Circuit Court of Appeals. This case worked its way through the appeals process until 2021 where it was put on hold pending the Supreme Court hearing Duncan v. Bonta. After Bruen the Supreme court GVRed Duncan v. Bonta and the Ninth Circuit then vacated and remanded Duncan v. Bonta back to the district court as well as vacating and remanding Rupp v. Bonta to be re-adjudicated at the district level.

This is a history and break down of the case.

In 1989 California passed the Roberti-Roos Assault Weapons Control Act of 1989, known as the AWCA. It defines an assault weapon in the general way, a semi-automatic centerfire rifle that is scary looking. Fill in the blanks. Of course they add on a bunch of firearms by name, just in case their description wasn’t inclusive enough.

Part of the law restricts all transfers of “assault weapons”. This means that if a rifle is registered when the person the registered owner dies there is no way for the owner to transfer the firearm to their heirs. A grandfather clause that pushes a total ban a generation or so down the road.

In 2017 California passed an amendment which made it more difficult to have a neutered AR-15. Because the original definition of an “assault weapon” included a detachable magazine and the definition of a detachable magazine was one that could be removed without a tool people developed the “bullet button.”

In short it was a replacement for the magazine release that required a small sturdy pin to be pressed into the magazine release in order to activate the mag release. It was called a bullet button as the most common “tool” used was the tip of a 5.56 round. There were rings sold that had a small stud on them that fit the bullet button hole to allow people to easily carry the tool in a useful way.

When the people analyze a law they look for what is legal and not legal. If they decide to remain legal they will follow the letter of the law. If that violates the spirit of the law, the left calls that a “loophole”.

Thus, the fact that I can sell you a firearm in the parking lot of a gun show is perfectly legal if we are both residences of the the state is called a “loophole” or “gun show loophole” by the left. The fact that I can pick up my firearm after a short period of time if the government doesn’t deny me permission is perfectly legal. According to the left, this is the “Charleston loophole”. Donald Trump paying the taxes he owes and not more is a “loophole”. Exxon paying more than required in tax withholding over the course of the year and then getting their money back is a “loophole”.

Bullet buttons allowed people to use their own property the way they wanted to use it. The left was extremely unhappy and yelled that this was illegal, it wasn’t. So the left labeled it a “loophole” and set about closing the loophole.

On 2017-04-24 Steven Rupp et all filed a complaint for declaratory and injunctive relief from this infringement. This is nearly 10 years after the Heller decision. The plaintiffs(good guys) are being represented by Michel & Associates, P.C., the same people representing Virginia Duncan in Duncan v. Bonta.

The short of it is that they want to overturn California’s AWCA and stop California from infringing on the rights of their citizens. The plaintiffs attack the AWCA on multiple fronts including Second Amendment infringements, Due Process violations and violation of the Takings Clause.

The case was assigned to Federal District Judge Josephine L. Staton, not Judge Benitez.

The state immediately attempts to get the Takings Clause and Due Process Clause dismissed. Well, immediately when talking court proceedings pace.

The short of the defendants(bad guys) argument is that banning the transfer of certain rifles causes no economic loss to the plaintiffs. And because the plaintiffs are allowed to keep those rifles until they die nobody took them.

Now we get to the first interesting bit. The “Due Process Clause” is part of the Forth Amendment. The state does not argue that they didn’t violate due process, instead they claim California’s prohibition on assault weapons is rationally related to its objective of promoting public safety in California.

That sounds very familiar. The state arguing that they don’t have to follow the constitution because they have a laudable goal.

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.
U.S.A. v. Rahimi – United States Court of Appeals for the Fifth Circuit

It seems that at least in the Fifth Circuit, laudable policy goal[s] do not override the Constitution. Maybe the Ninth Circuit Court and the AG of California might decide the same thing at some point in the future.

This law suit seeks to vindicate the right of law-abiding Californians to possess firearms that for years have been among the most popular choices of Americans for self-defense. Not only does California’s sweeping Assault Weapon Control Act violate the Second Amendment, it results in the taking of private property by the government without just compensation. The law both eliminates the ability of Californians to pass certain firearms on to their heirs—a long-recognized property right—and, in many cases, forces current gun owners who are unable to register their firearms to forfeit them. Under the regime, property rights are diminished retroactively based on a wholly irrational classification system, in violation of due process.

The State argues that there are few limits to their regulatory authority. Perhaps most egregiously, the State contends that the state enjoys a blanket police power through which it may evade the constraints the Constitution places on the exercise of government power. Fortunately, the State’s argument has been thoroughly rejected by the Supreme Court. There are substantial limits to state authority—limits the State of California has crossed.
Plaintiffs’ Opposition to Defendant’s Partial Motion to Dismiss Plaintiffs’ Due Process Clause and Takings Clause Claims

Part of the plaintiffs argument for a TRO is that the law requires people to register their rifles. The form that they are required to use has required fields. One of those required fields is “firearm acquisition date”. Many people have no idea the date they aquirried anything. Unless there is a particular reason to keep those records, people don’t.

The original registration form is no longer easily located online. It is not unreasonable to assume that the original form had dire warnings about filling out the form incorrectly or “lying” on the form. Saying that you acquired a particular in 1995 when in fact you acquired in in 1996 is the sort of thing that gets you in trouble.

In addition, as a programmer, I know that many fields that ask for a date have no concept of “this is an estimate” so knowing you acquired a firearm sometime in 1995 you now have to pick a particular date within 1995. You are no testifying to the fact that you acquired a particular firearm on a particular date when you really have no idea.

The CSC[DoJ, Bureau of Firearms, Customer Support Center] has received calls from AWR[Assault Weapon Registration] applicants who asked how they should fill out the application if they did not have the exact date that they acquired the firearm they intend to register. I have directed the CSC to advise those callers that they may provide a best-estimated date for review in the required date field.
IRS CIRCULAR 230 DISCLOSURE: To comply with requirements imposed by the Department of the Treasury, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written by the practitioner to be used, and that it cannot be used by any taxpayer, for the purpose of (i) avoiding penalties that may be imposed on the taxpayer, and (ii) supporting the promotion or marketing of any transactions or matters addressed herein.

I wonder if the AWR form had a similar “disclosure”. The law is what it is. Petty bureaucrats do not have the power or authority to change law. While Patrick Plant might have done “the right thing” his direction to the CSC does not have the weight of law.

The defendants bring in an expert to tell the court:

Responsible gun owners keep records of their firearms purchases. This is a common sense matter of record keeping. It should be done to prove ownership in the event of theft and to document the legal purchase or acquisition of their firearms in the event of a criminal or civil dispute.

If a gun owner wants a list of their firearms records they can contact DOJ BOF Automated Firearms System (AFS) unit and get any firearms ownership information maintained by the DOJ after completing a copy of the form BOF 053, Automated Firearms System (AFS) Request for Firearms Records. This service provided by DOJ BOF is free. A true and correct copy of BOF 053 is attached as Exhibit 1.
Declaration of Blake Graham in Support of Defendant Xavier Becerra’s Opposition to Plaintiffs’ Moiton for Preliminary Injunction

So the CA DOJ considers you to be irresponsible if you don’t keep records of your firearm purchases. I keep records of the firearms I own. Those records are encrypted and secured. I have the ability to provide those records if needed but I certainly don’t have the purchase dates of all of my firearms.

It is not a legal requirement for you to keep purchase records on anything. If an item is lost or stolen your insurance company is going to want to know what was taken, as will the police.

Blake Graham then goes on to state that if you don’t know, just ask him. He has records of every firearm you have purchased. Well sort of. He only has records that have been given to the CA DOJ BOF. Since not everybody registers every firearm they own with the government, this is pretty much a null statement.

In addition, at a time when the AWR as failing under its own weight, Blake expects you to have the time to wait for him to do the research on your firearms records request. I’m sure that the AWR will be happy to wait an extra 60,90 or more days while you wait for Blake to get back to you.

Here is an actual good argument from the state:

Plaintiffs’ opposition fails to show how the allegations in the First Amended Complaint state plausible claims for relief under the Takings Clause and the Due Process Clause. In a prior challenge to the Roberti-Roos Assault Weapons Control Act (AWCA), the Ninth Circuit held that the AWCA does not violate the Takings Clause. See Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002). Plaintiffs fail to address this controlling case. Instead, they simply argue that the AWCA effects a physical taking by requiring plaintiffs to forfeit their assault weapons because they can no longer bequeath those weapons to any heirs and because certain individuals do not have the required information to register their firearms. These contentions do not help plaintiffs, who in the context of a facial challenge, must establish that the AWCA is invalid in all circumstances. Furthermore, the AWCA does not appropriate plaintiffs’ assault weapons for public use. Plaintiffs may, after registering their assault weapons, continue to possess, use, and enjoy those weapons.
Defendant’s Reply in Support of Partial Motion to Dismiss Plaintiffs’ Due Process Clause and Takings Clause Claims

This is an actual good argument back in 2017-12-01. It was a good argument because the opinions of the Ninth Circus Court controlled in this case.

The rest of the paragraph is pretty bogus. It doesn’t matter if the state physically takes something from you or forces you to destroy it under threat of violence, you no longer have the item. The state has removed the item from your possession, otherwise known as taking it from you.

If they had a sports car and the State suddenly decided for the safety of the public that they would no longer be allowed to use anything other than first, second, and reverse gears, that they were forbidden to use third, forth, and fifth gears, they would be very unhappy. I don’t think they would be satisfied with after registering their [sports car], continue to possess, use and enjoy those [cars]

If the law survives rationality review, then Plaintiffs cannot, as a matter of law, state a Due Process claim. Accordingly, the Court will determine whether the AWCA survives rationality review by determining whether the legislature had a legitimate government objective in enacting the AWCA, and whether the legislature could have believed at the time of enactment that the statute would promote that objective.
Legitimate Government Objective
The Court concludes that the legislature has articulated a legitimate government objective for the AWCA. It is beyond question that promoting public safety and reducing incidents of gun violence are legitimate government objectives, as the Ninth Circuit, like many other circuits, has found these interests not merely legitimate but substantial or compelling. See, e.g., Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th Cir. 2015); Silvester v. Harris, 843 F.3d 816, 827 (9th Cir. 2016), cert. denied sub nom. Silvester v. Becerra, 138 S.Ct. 945 (2018); Kolbe v. Hogan, 849 F.3d 114, 139 (4th Cir. 2017); N.Y.S. Rifle and Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 261 (2d Cir. 2015) (holding it “beyond cavil” that such interests are compelling).

In enacting the AWCA, the legislature found that the firearms categorized as assault weapons have “such a high rate of fire and capacity for firepower that [their] function as . . . legitimate sports or recreational firearm[s] is substantially outweighed by the danger that [they] can be used to kill and injure human beings.” Cal. Penal Code section 30505(a). The AWCA’s legislative history shows that the 2016 amendments were directly motivated by the 2015 mass shooting in San Bernardino, where the shooters used weapons with “bullet buttons” intended to circumvent prior iterations of the AWCA. California Bill Analysis, S.B. 880 Assem. at 8. These legislative findings support that the legislature had a legitimate government objective to promote public safety when enacting and amending the AWCA.

Accordingly, as a matter of law, the requirement that the legislature have a legitimate government objective is met.
Order Granting Defendant’s Motion to Dismiss, Denying Plaintiffs’ Motion for Preliminary Injunction, and Denying Plaintiffs’ Motion for Leave to File Supplemental Declaration of Dennis Martin

This is “means-end” in play. The court initially looked to see if the state had legitimate government objectives in passing the law. This is a very low bar to reach. Having reached the conclusion that the state had legitimate government objectives, the court then defers to the legislature in their findings.

However, the legislature concluded that the accuracy and ease of use afforded by these features, far from making the weapons safer, made them more dangerous is what the court uses to discount the plaintiffs assertions. The plaintiffs have presented multiple statements from multiple sources showing that the features the state contends turns a rifle into an assault weapon actually make them safer.

The court instead presumes the legislature knew what they were doing when they banned certain rifles and thus the arguments of the plaintiffs are discounted.

The court finds from this reasoning that the plaintiffs have failed to show that the law is impermissibly irrational, and the Court concludes that, as a matter of law, the AWCA survives rationality review. The Due Process claim is dismissed.

One of the things the court did in this ruling is that they looked at the concept of retroactive laws. What they determined was that the requirements of the law were not retroactive because the plaintiffs had options on what to do if they could not locate time-date of acquisition of the firearm in question.

I’m sure all of you have somebody you trust to store and care for your firearms out of state if suddenly required to divest yourselves of some previously legal item.

For the takings clause the court reasons that since the government didn’t physically take the items in question but instead passed a regulation it is not a physical taking. True, as far as it goes. The court continues with reasoning about the “regulatory” taking. This is the difference discussed above, is it a taking if you are forced to destroy or divest yourself of some object by threat of state violence?

The court uses prior rulings from the Ninth Circuit Court ruling that the AWCA didn’t constitute a taking.

The court denied the claims against the Takings Clause.

The final claim made by the plaintiffs was that this was a violation of the Second Amendment. The court the decides to use intermediate scrutiny and as seems to always be the case, finds for the government. The court’s reasoning being that only the right to self-defense is covered under the second amendment and as long as you have other means of self-defense the state is allowed to ban these means.

This was the order from the court denying the TRO and injunctions was give on 2018-05-9, just over a year after the suit was filed.

In the NY CCIA cases we were to this stage in mere months and to the Supreme Court in less than a month afterwards.

Finally, on 2019-07-22, the court granted the defendant’s(bad guys) motion to dismiss. I.e. the state won the first round.

This happened because the district court reasoned it was required to apply means-end and as such gave the state the ability to claim a legitimate public need for the law and then the court assumed the legislature knew what it was doing when it made claims of fact.

Order Granting Attorney General’s Motion for Summary Judgment and Denying Plaintiffs’ Motion for Summary Judgement

On 2019-08-27 the plaintiffs gave the district court notice of appeal. On 2019-08-28 they filed their appeal with the Ninth Circuit Court of Appeals.

Part II covers the case as it makes its way through the Ninth Circuit Court.

Geek speak: I attempted to make everything format a little better. I’ve updated how I do block quotes and made asides work. I’m sure there are going to be some issues with the aside on smaller displays but I hope it isn’t bad. I’ll “fix it” tomorrow if there are still issues.

Judging History by Today

His companion, Mr. Shelby, had the appearance of a gentleman; and the arrangements of the house, and the general air of the housekeeping, indicated easy, and even opulent circumstances. As we before stated, the two were in the midst of an earnest conversation.

“That is the way I should arrange the matter,” said Mr. Shelby.

“I can’t make trade that way—I positively can’t, Mr. Shelby,” said the other, holding up a glass of wine between his eye and the light.

“Why, the fact is, Haley, Tom is an uncommon fellow; he is certainly worth that sum anywhere,—steady, honest, capable, manages my whole farm like a clock.”

“You mean honest, as niggers go,” said Haley, helping himself to a glass of brandy.

“No; I mean, really, Tom is a good, steady, sensible, pious fellow. He got religion at a camp-meeting, four years ago; and I believe he really did get it. I’ve trusted him, since then, with everything I have,—money, house, horses,—and let him come and go round the country; and I always found him true and square in everything.”

“Some folks don’t believe there is pious niggers Shelby,” said Haley, with a candid flourish of his hand, “but I do. I had a fellow, now, in this yer last lot I took to Orleans—‘t was as good as a meetin, now, really, to hear that critter pray; and he was quite gentle and quiet like. He fetched me a good sum, too, for I bought him cheap of a man that was ’bliged to sell out; so I realized six hundred on him. Yes, I consider religion a valeyable thing in a nigger, when it’s the genuine article, and no mistake.”
Uncle Tom’s Cabin (or Life among the Lowly) by Harriet Beecher Stowe

This text is so offensive that it can’t be read in public. Reading this text in a YouTube video or other podcast is likely to get you multiple strikes.

But this book is important to our history. This book is a propaganda work that was used to stir up Yankee feelings against slave owners and slavery. It worked.

This book helped lead to the end of slavery in these United States.

How could you talk about this book today? You can’t even read it outloud. It would be verboten in most schools. All because it used the language of the day.

“Say, Jim, I’ll fetch the water if you’ll whitewash some.”

Jim shook his head and said:

“Can’t, Mars Tom. Ole missis, she tole me I got to go an’ git dis water an’ not stop foolin’ roun’ wid anybody. She say she spec’ Mars Tom gwine to ax me to whitewash, an’ so she tole me go ’long an’ ’tend to my own business—she ’lowed she’d ’tend to de whitewashin’.”

“Oh, never you mind what she said, Jim. That’s the way she always talks. Gimme the bucket—I won’t be gone only a a minute. She won’t ever know.”

“Oh, I dasn’t, Mars Tom. Ole missis she’d take an’ tar de head off’n me. ’Deed she would.”

“She! She never licks anybody—whacks ’em over the head with her thimble—and who cares for that, I’d like to know. She talks awful, but talk don’t hurt—anyways it don’t if she don’t cry. Jim, I’ll give you a marvel. I’ll give you a white alley!”

Jim began to waver.

“White alley, Jim! And it’s a bully taw.”

“My! Dat’s a mighty gay marvel, I tell you! But Mars Tom I’s powerful ’fraid ole missis—”

“And besides, if you will I’ll show you my sore toe.”

The Adventures of Tom Sawyer by Mark Twain

Again, text that would be (is?) suppressed today. Mark Twain uses the N-word nine times in this one book. If that isn’t enough to get the book removed from polite company, read the nearly undecipherable words of Jim, above. I remember Jim as being a slave but that isn’t found in this work.

The left is judging this work by what is “acceptable” speech today. It hurts that great literature is so maligned.

“Goodwives,” said a hard-featured dame of fifty, “I’ll tell ye a piece of my mind. It would be greatly for the public behoof, if we women, being of mature age and church-members in good repute, should have the handling of such malefactresses as this Hester Prynne. What think ye, gossips? If the hussy stood up for judgment before us five, that are now here in a knot together, would she come off with such a sentence as the worshipful magistrates have awarded? Marry, I trow not!”

“People say,” said another, “that the Reverend Master Dimmesdale, her godly pastor, takes it very grievously to heart that such a scandal should have come upon his congregation.”

“The magistrates are God-fearing gentlemen, but merciful overmuch,—that is a truth,” added a third autumnal matron. “At the very least, they should have put the brand of a hot iron on Hester Prynne’s forehead. Madam Hester would have winced at that, I warrant me. But she,—the naughty baggage,—little[57] will she care what they put upon the bodice of her gown! Why, look you, she may cover it with a brooch, or such like heathenish adornment, and so walk the streets as brave as ever!”

“Ah, but,” interposed, more softly, a young wife, holding a child by the hand, “let her cover the mark as she will, the pang of it will be always in her heart.”

“What do we talk of marks and brands, whether on the bodice of her gown, or the flesh of her forehead?” cried another female, the ugliest as well as the most pitiless of these self-constituted judges. “This woman has brought shame upon us all, and ought to die. Is there not law for it? Truly, there is, both in the Scripture and the statute-book. Then let the magistrates, who have made it of no effect, thank themselves if their own wives and daughters go astray!”
The Scarlet Letter by Nathaniel Hawthorne

What was the sin of Hester that was so great that some women of the town were demanding she be branded and another felt should should be executed?

She was an unwed mother. What 20 years ago was “Brave and courageous” is today a common occurrence. To suggest that a woman be punished for the inability of society to provide her with free birth control and “health care” is unacceptable.

Aunt Sponge was terrifically fat / And tremendously flabby at that, Aunt Spiker was thin as a wire / And dry as a bone, only drier, most formidable female, and hundreds of other words and phrases were recently removed from Roald Dahl’s beloved books.

He is known for writing James and the Giant Peach, Charlie and the Chocolate Factory, Matilda, and many others. His publisher feels that it is “for the good of the children” to put their words in place of his.

I despise editors stealth editing anything. I want to know what the author said, not what you think I should be reading. If I have hit the publish button on one of my articles and I feel I must edit it, I will mark the title and mark deletions and insertions. It is the right thing to do.

I do not want to live in the world of 1984. It isn’t “big brother is watching” it is history being erased and rewritten in real time. It is having my words stripped away until the only thing left to say is “double plus ungood”

My wife is a teacher. When she read about these edits to Dahl’s book she had a fit. It just wasn’t acceptable.

But just like we now have “Coke Classic”, a pale imitation of real Coke-a-Cola, we are now going to have “classic” editions of Dahl’s works.

Many many years ago I read what I though was Call of the Wild by Jack London. It was boring. It was dry. It was written for young readers. It was abridged. Instead of reading the words of Jack London, I was being told what London said.

In doing so, the soul of the story was stripped away, leaving nothing but a hollow husk of what was once a great story.

In high school we were reading Romeo and Juliet. It was one of a number of shorter works in our text book. That text book was 8.5×11 and weighted way to much to lug around. I picked up a copy of the play at the local bookstore.

We were reading out loud in class when it came to my part. I read it from the book and there was the response. My words next.

There was something strange going on, Mrs Trout was nodding along, enjoying the reading. My classmates were looking confused. My words were not in their book. Mrs. Trout figured it out when the next door teacher came over and closed our door because her class was paying more attention to our reading than her.

I was reading the unabridged version of Shakespeare’s work, the textbook had a version suitable for high school students. In other words, all the juicy parts had been ripped out. Mrs. Trout figured it out. She didn’t notice because I was reading what she expected to hear. She was a good English teacher.

By the end of the week, everybody in class was reading from the unabridged version.

Words have meaning, we shouldn’t allow the left to redefine words. If words can be redefined at will they soon mean nothing.

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

’The question is,’ said Alice, ‘whether you can make words mean so many different things.’

’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”
Through the Looking Glass by Lewis Carroll

When I use a word it means what we agree it means. That is how we communicate and will continue to communicate.