Judge Virginia M. Kendall, for the United States District Court for the Northern District of Illinois, Eastern District opened her mountmouth and removed all doubt as to her abilities.

The case is No. 22 C 4775, Robert Bevis, et all v. City of Naperville, Illinois and Jason Arres, in his official capacity as Chief of Police. It is a challenge to the city of Naperville passing their own little “assault weapons ban”. They could do this because Illinois does not have a preemption law for stricter gun laws.

History

On 2022-08-16, after Bruen was decided, the city of Naperville, IL passed an ordinance to prohibit the local commercial sale of assault weapons.

The ordinance reads like an Everytown press release, or the maybe the Gun Violence Archive. You know, those people that consider a drug deal gone wrong in a bus yard to be a “school shooting”. For justification they have 13 “Whereas” clauses that report that a shooting took place. Many with AR-15 style rifles. 13 over 10 years that is.

The City then takes the stance that it is acceptable to ban the sale of a class of arms because “keep and bear” doesn’t include buy, sell, or make. Those founding fathers only meant that people could continue to keep and bear the arms they already had, not to acquire any more.

Clause 16 mentions the Federal AWB from 1994 through 2004. They point out that the AWB survived constitutional challenges but all were rejected for lack of standing. They conveniently forget that Heller was specifically designed to stop that type of rejection. Heller affirmed that the right to keep and bear arms is an individual right, not reserved to the state or “well regulated militia.”

17 mentions four cases where the circuit courts upheld AWB on state and local levels. All of which took place prior to Bruen and all of which used “means-end” which is explicitly rejected by the Supreme Court. Remember that Bruen didn’t create a new way of interpreting the second amendment, it affirmed the Heller decision which said “text, history and tradition”.

Clause 18 is a doozy. From Heller “Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way.” but the city of Naperville did just that. They say that assault weapons didn’t exist in 1791, were rare prior to 2004 and that the use of “assault rifles” in mass shootings “indicates that assault rifles are uncommon and unacceptably dangerous”.

I think they are trying to say that if a criminal uses a particular arm in the commission of a crime that it makes the arm “uncommon and unacceptably dangerous”.

They then explain how an AWB is illegal for them to pass, so instead they are just going to ban the sale of “assault weapons”.

They have the standard list of things that make a rifle an “assault rifle” in their eyes.
Assault Rifle Ordinance

Memorandum Opinion and Order

The order denies a request for a TRO and a preliminary injunction based on allegations that the Naperville ordinance violates the rights of the plaintiffs (Good guys).

The Judge starts by telling us that mass shootings are common and “assault weapons” are used to commit mass shootings. She then footnotes her use of the term “assault weapon” with “The Court will use the terms, as they are widely accepted in modern parlance and effectively convey the substance of the bans.”

It should be noted that she is correct, everybody knows exactly what we are talking about when we talk about “assault weapon ban”, we are talking about the banning of firearms with scary appearances or which are perceived as scary by infringers or their useful idiots. It totally ignores the actual definition of “assault rifle”. The propagandists have won this battle in this court.

In order for a plaintiff to be granted a TRO or an injunction “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

This is the standard and is quoted in almost every case where a TRO or injunction is requested.

She denies the request because:

…although the plaintiffs have standing to bring this lawsuit, they are unlikely to succeed on the merits of their claim because Naperville’s Ordinance and the Protect Illinois Communities Act are consistent with the Second Amendment’s text, history, and tradition.

Humm, let’s see the proof there judge. This isn’t a question of the what the definition of “is” is.

So now we get to the fun part, taking her arguments apart.

The Supreme Court first recognized that this provision[, the second amendment,] enshrines an individual’s right to keep and bear arms for the purpose of self-defense in District of Columbia v. Heller

Incorrect, as has been pointed out many times in the past, Heller affirmed that the second amendment guaranteed and individual right. Until late in the 20th century nobody claimed that the second amendment was a group right. It made no sense. Then in the late 1900’s courts started striking down second amendment cases for lack of standing.

See the discussion above about Naperville’s assertions about the federal AWB.

It wasn’t until Heller that the Supreme court was given an opportunity to tell the inferior courts “The People means the People, you dunces!”, an individual right.

One of the things that keeps coming up in these cases is the bad guys using “presumptively lawful” statements out of the Supreme Court to justify their infringements. The court must answer the question that is asked of it. They can’t start answering other questions. It doesn’t work that way.

This is why the Miller opinion says that nobody told the court that short barrelled shotguns or any shotguns are used in military/militia contexts. They knew that to be the case, they just couldn’t rule on it because it wasn’t in evidence. In the same way, the court can tell the inferior courts how to form their opinions, how to interpret the law, but they can’t just reach out and rule something unlawful if it isn’t the question before the court.

When the Supreme court says that “forbidding the carrying of firearms in sensitive places such as …” is presumptively lawful, that only means that they haven’t ruled on the constitutionality of that restriction, yet.

Often those words are clues that they want somebody to bring that challenge to them. The sensitive place splurge by infringing states is likely to get “sensitive places” challenged at the Supreme Court. If that happens, the court might very well rule that only very very limited places are “sensitive”.

Here she goes again with “New standard of applying the Second Amendment.” The Second Amendment was always an individual right, that right was stolen from The People. In Heller they got it back. Heller told the courts to use text, history and tradition. The inferior courts instead decided on “means-end”. Bruen told the inferior courts that the two-step methodology of means-end was “one step too many.”

No more means-end.

To quote Virginia quoting Thomas in Bruen, the appropriate standard now is:

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation

Page 15 of her opinion is some serious mental gymnastics. She admits that the Seven Circuit court was using means-end and that the Supreme Court said that was not the right way to judge second amendment cases. She then goes on to say that because the Seventh Circuit Court used means-end for at least five years, there must be something to be salvaged from all that “good law”.

She is attempting to see if Friedman is “still good law”. She does a partial pull quote:

we think it better to ask whether a regulation bans weapons that were common at the time of ratification or those that have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’ and whether law-abiding citizens retain adequate means of self-defense.
— Seventh Circuit court in Friedman

What she left out, which might be important “But instead of trying to decide what “level” of scrutiny applies, and how it works, inquiries that do not resolve any concrete dispute, we think it better…”

So the Seventh Circuit court was discussing how to use means-end (“level” of scrutiny). This is, again, explicitly rejected by the Supreme Court in Bruen.

Because of her pull quote, Virginia believes that she can figure out if the Seventh Circuit court used means-end or if they rejected the question based on whether the arm(s) were covered under the second amendment. This is incorrect. It doesn’t matter what the seventh said prior to Bruen. Post Bruen the courts are required to first determine if the law in question touches upon the second amendment.

The strong implication of the Supreme Court’s opinion is that it is better to over extend the second amendment than to under extend it.

See the multiple rulings from the Supreme court in regards to censorship. The government doesn’t actually have to censor something for it to infringe on first amendment rights, the fact that a law exists that has a “chilling effect” is enough.

Interestingly, Naperville conceded that if the Seventh Circuit used means-end in Friedman then Friedman is bad law. The judge leans towards using Friendman to exclude “assault weapons” from the scope of the second amendment.

Having waded through all of that, she gets it right:

Friedman cannot be reconciled with Bruen. The explanation that semiautomatic weapons were not common in 1791 is of no consequence. The Second Amendment “extends … to … arms … that were not in existence at the time of the founding.” Caetano v. Massachusetts, 577 U.S. 411, 412 (2016) (quoting Heller, 554 U.S. at 582). Relatedly, the Supreme Court has unequivocally dismissed the argument that “only those weapons useful in warfare are protected.” Id. (quoting Heller, 554 U.S. at 624–25). To the extent that the Seventh Circuit classified the weapon as either “civilian” or “military,” the classification has little relevance. And the arguments that other weapons are available and that fewer assault weapons lower the risk of violence are tied to means-end scrutiny—now impermissible and unconnected to text, history, and tradition. See Bruen, 142 S. Ct. at 2127. Accordingly, this Court must consider the challenged assault-weapon regulations on a tabula rasa.

“tabula rasa” means “an absence of preconceived ideas or predetermined goals; a clean slate” – Oxford Languages.

Now she goes off the rails. She lists the classes of prohibitions that are allowed. She pulls these from Heller because Bruen did not explicitly displace the examples provided in Heller

1. “prohibitions on the possession of firearms by felons and the mentally ill”;
2. “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings”;
3. “laws imposing conditions and qualifications on the commercial sale of arms”; and
4. bans on weapons that are not “in common use.”

From this she concludes:

Under this framework, Naperville’s Ordinance and the Protect Illinois Communities Act are constitutionally sound. The text of the Second Amendment is limited to only certain arms, and history and tradition demonstrate that particularly “dangerous” weapons are unprotected.9 See U.S. Const. amend. II; Heller, 554 U.S. at 627.

In the case of Oregon where the state used a long list of laws, regulations, and ordinances from Duke LawDuke Center for Firearms Law. It seems this judge read the same list. She starts with William Blackstone. The words she wants out of this are “dangerous or unusual weapons”. That “or” in there is extremely important to the infringers. If the case is that an arm must be “dangerous and uncommon” then any arm that is common is covered by the second amendment’s plain text. If the courts or infringers can get that wording changed to “dangerous or uncommon” then they focus on showing that the arm is “dangerous”.

Bruen and Heller are clearly stating that a weapon must be both. It must be both unusually dangerous and uncommon before it is no longer within the scope of the second amendment.

Fortunately for us, Blackstone was writing of English common law prior to 1791. While much of American law is based on English Common Law, they are not the same. The Supreme court has explicitly stated that the only laws regarding bans are from the time of the ratification, 1791.

She then goes on to say that the use of guns was not common for self defense in founding era. Instead people used knives and clubs. So laws, regulations, and ordinances regulating the use, carry, or possession of knives or clubs is the same as a gun ban/regulation.

Her first actually listed weapons ban is from the early 1800s. A ban on “Bowie knives”. These Bowie knife bans came about after the Vidalia Sandbar Fight which happened in September of 1827. The last founding father(s) died on July 4th, 1826. This ban is more than a year late to be included in Bruen approved history and tradition.

Of course she has to do the standard game of quoting from rules that say that the government has the power to prohibit weapons that are “dangerous and which are not usual in civilized warfare, or would not contribute to the common defence.” and out of the other side of her mouth tell us that the weapon is too dangerous because it is used in modern civilized warfare and contributes to the common defense.

She then conflates booby trap guns with keeping and bearing arms. I.e. a law that made it illegal to set traps with guns should allow the government to now ban the bearing and keeping of arms.

Excuse me while I wipe up some coffee:

The muzzle velocity of an assault weapon is four times higher than a high-powered semiautomatic firearm.

So a semi-automatic rifle fires a round that travels faster than a round fired from a high-powered semi-automatic firearm?

She continues with “high-capacity magazines share similar dangers. … high-capacity magazines led to five times the number of people shot and more than twice as many deaths…” Damn, that is a super duper magic box and spring.

Note that they are using the language of “gun accessory” to describe magazines. I have pistols that will not function without a magazine. Yet they consider that to be just an “accessory.” The reason is clear, if it is an accessory, then it isn’t an arm covered by the second amendment.

Here we come to the meat of her opinion. She uses “and” instead of “or”

Assault-weapons and high-capacity magazines regulations are not “unusual,” Bruen, 142 S. Ct. at 2129 (Kavanaugh, concurring), or “severe,” Heller, 554 U.S. at 629. The federal government banned assault weapons for ten years. Today, eight states, the District of Columbia, and numerous municipalities, maintain assault-weapons and high-capacity magazine bans—as more jurisdictions weigh similar measures. Because assault weapons are particularly dangerous weapons and high-capacity magazines are particularly dangerous weapon accessories, their regulation accords with history and tradition. Naperville and Illinois lawfully exercised their authority to control their possession, transfer, sale, and manufacture by enacting a ban on commercial sales. That decision comports with the Second Amendment, and as a result, the plaintiffs have not shown the “likelihood of success on the merits” necessary for relief. See Braam, 37 F.4th at 1272 (“The district court may issue a preliminary injunction only if the plaintiff demonstrates ‘some’ likelihood of success on the merits.” (emphasis added)); Camelot Bonquet Rooms, Inc. v. United States Small Business Administration, 24 F.4th 640, 644 (7th Cir. 2022) (“Plaintiffs who seek a preliminary injunction must show that … they have some likelihood of success on the merits.”).

So there you have it. Fancy boxes with springs can be banned because the second amendment doesn’t cover gun accessories that are unusually dangerous or unusual. She does the same with a subset of semi-automatic rifles.

MEMORANDUM OPINION AND ORDER Judge Virginia M. Kendall, Case: 1:22-cv-04775

Update

I cleaned up a couple of wrong words. These are marked with deleted and inserted markup. If you look in the actual source these deletes/inserts actually have a time date stamp saying exactly when I made the changes.

There were a couple of missing close tags where I accidently allowed italics to run on. I sometime have the same thing happen with bold markup. Lots of this is that I write my articles in HTML and not visual mode. The visual mode doesn’t give me as much control and sometimes is not an actual representation of what you will see.

Finally, It isn’t clear from this article but the Plaintiffs(good guys) have standing because one of the plaintiffs is “Law Weapons” a gun store in the city of Naperville.

Columbus students take gun safety course at elementary school

We’ve seen these headlines before, generally it means that some gun infringer has gotten permission to go into the schools and spout off about how horrible guns are. How they need to tell the school if there are any guns in their home and other such crap.

Not this time, NBC 4 in Columbus Ohio is reporting that the schools brought in actual gun people to give classes in gun safety. Of course the used the NRA safety training for children.

• Stop
• Don’t touch
• Run away
• Find/tell an adult

This is the gist of the Eddy Eagle program. NRA is not mentioned, that would be a bit to much to expect, but still, real gun safety education in the schools.

Columbus students take gun safety course at elementary school

COLUMBUS, Ohio (WCMH) — Students at the Shepard School in east Columbus are leaving class with what teachers are calling an important lesson: gun safety. On Friday, the students participated …

There is a long running joke in the gun community that “my safety is between my ears.” The idea being that if you follow the the four rules religiously if there is an unintended discharge it will not harm anybody or anything.

One of the most important rules in this is to keep your finger off the trigger until you are ready to shoot.

Messing around with the trigger of any loaded and cocked firearm is an invitation for an unintended discharge.

This Houston man has created a device that fits around the trigger with enough “meat” behind the trigger to keep the trigger from moving back past the break point.

At first glance, this looks like a sort of neat second safety. Or a method to add a safety to a firearm that doesn’t have a safety.

Consider your old SAA Colt revolver. Push this device over the trigger and now you have to remove the device before you can do most anything. Sounds good. It might even work on some firearms.

Where it fails is on all firearms that can be cocked with the trigger forward. And hopefully you don’t end up breaking your firearm by attempting to cock it while the device prevents the trigger from moving backwards.

But let’s take as our example the wonderful Glock. You want that “extra” bit of safety. So you slap in a mag, cock the weapon and it is now “hot” As you attempt to push this device around the trigger it goes a little wrong and “BANG!” there is a new hole. Hopefully not in anything you care about.

Assuming you did manage to get this thing on your Glock you hear a bang in the night from downstairs. You grab your Glock and need to remove the device. You attempt to push it out with your trigger finger and “BANG!” Your pistol goes off because your finger pushed the device off the trigger and then continued in to press the trigger proper.

No gun safety device should ever be used around a trigger when a depression of said trigger would cause the gun to fire. Just don’t do it.

Houston man creates new gun safety device after losing friend in accidental shooting

Harvey Jackson Jr. lost a good friend back in December 2020 to an accidental shooting. The tragedy inspired him to develop a trigger device that he hopes will save lives.

B.L.U.F. California Assemblymember Gipson has introduced legislation that would punish people that send STL or CNC files to people in California without state permission.

The International Traffic in Arms Regulation, or ITAR.

That’s right, while the state of California is arguing that magazines are not Arms covered under the Second Amendment, the federal government has or had listed ciphers as an “arm” covered by ITAR(22 USC. §2778).

(b) Information security or information assurance systems and equipment, cryptographic devices, software, and components, as follows:

(1) Military or intelligence cryptographic (including key management) systems, equipment, assemblies, modules, integrated circuits, components, and software (including their cryptographic interfaces) capable of maintaining secrecy or confidentiality of information or information systems, including equipment or software for tracking, telemetry, and control (TT&C) encryption and decryption;

(2) Military or intelligence cryptographic (including key management) systems, equipment, assemblies, modules, integrated circuits, components, and software (including their cryptographic interfaces) capable of generating spreading or hopping codes for spread spectrum systems or equipment;

(3) Military or intelligence cryptanalytic systems, equipment, assemblies, modules, integrated circuits, components and software;

(4) Military or intelligence systems, equipment, assemblies, modules, integrated circuits, components, or software (including all previous or derived versions) authorized to control access to or transfer data between different security domains as listed on the Unified Cross Domain Management Office (UCDMO) Control List (UCL); or

(5) Ancillary equipment specially designed for the articles in paragraphs (b)(1)-(b)(4) of this category.

While it says “military or intelligence cryptographic” the truth of the matter is that if the encryption is good enough to be “military grade”, then it is covered by ITAR.

Back in 1991, Phil Zimmerman created a program called “Pretty Good Privacy” or PGP. Today it continues as Gnu PGP or GPG. This software consisted of three major parts, a method of doing key exchange via public key cryptography, a symmetric cipher to encrypt the actual message, a methodology for establishing key trust.

He released this for free on the Internet using FTP.

Shortly thereafter the United States Customs Service started investigating Zimmerman because the “high strength cryptography” of PGP made it a munition covered under ITAR.

What this meant was that if somebody from outside of the United States or who was not a US citizen could download the software it was considered exporting without a license.

Zimmerman fought this on First Amendment grounds. He was loosing and the government kept coming after him. He finally won the case after the distribution started happening from outside the US.

One of the ways that the software was legally exported was that the core algorithm was printed in an OCR font on a Tee-shirt and then worn through customs. There were other examples of this methodology. Where the code was printed in OCR format and then it could be shipped.

The government finally figured out that the code, printed out in a machine readable font was protected under the first Amendment. They then applied a little bit of logic and came to the determination that having the code as a file on the Internet was no different from printing it out and then being able to read it back in.

I.e. If OCR is protected, is paper tape/punch cards? If paper tape/punch cards are protect, what about magnetic tape? If magnetic tape is protected speech, what about files stored on magnetic disk or CDs?

In the end the government agreed that it was all protected speech. Computer programs are works of art and can be copyrighted just like any other piece of art. (This article is “a piece of art” in this context.)

Which brings us to the next step in this monstrosity which is gun infringement world.

There is a bill currently before the California legislature which would make the following lines of text not illegal but open to a civil action against somebody outside of California or inside.

N10 T5 ( Select Tool #5, 0.109 drill)
N20 M6 (load tool)
N30 G0 Z0.250
N40 G0 X5.572 Y0.123
N50 G81 Z-1.25 R0.25 F0.5
N60 G80
N70 T6 (Select tool #6, 0.125 reamer )
N80 G01 Z-1.25 F0.5
N90 G01 Z0.25

If you were to locate 0,0 on the forward take down pin of an AR-15 receiver, those instructions tell a CNC machine to load a 7/64th drill bit, move to a location on the AR-15 receiver, drill a hole there, load a 1/8 reamer and ream the hole that was drilled to size.

For those that aren’t in the know, that’s a small hole just above the selector switch. Number extracted from M4A1 blueprints.

The bill would additionally provide that a civil action may be brought against a person who distributes any code or digital instructions for the manufacture of a firearm using a three-dimensional printer or CNC milling machine. The bill would specify that a person is strictly liable for any personal injury or property damage caused by any firearm manufactured using the distributed code.

This is the game that is currently being played in the legislature and courts, we, the government, aren’t going to throw you in jail for violation of this statue, but we are going to encourage all the people to sue you out of existance.

One of the magic things in this bill is that a CNC machine is only OK if it isn’t “reasonably designed or intended to be used to manufacture or produce a firearm.” I’m sorry but if you have a CNC machine, it doesn’t care if it is an AR15 receiver in the vise or a medical device. This bit of language game sounds good, but any CNC machine they decide was used to work on a firearm would be covered under this bill.

They have also decided that being an FFL isn’t right for them. So now they are requiring state-licenses. Not sure how that works, but I can be pretty sure that the difficulty of getting an FFL to manufacture a firearm from the ATF is much easier than getting a California License to manufacture a firearm. You will still need the FFL, it just isn’t good enough on its own for California.

For purposes of this section, a CNC milling machine or three-dimensional printer has the primary or intended function of manufacturing firearms if the machine or printer is marketed or sold to the public in a manner that advertises that the machine or printer may be used to manufacture firearms, or in a manner that knowingly or recklessly promotes the machine’s use in manufacturing firearms, by individuals who are not California licensed firearms manufacturers, regardless of whether the machine or printer is otherwise described or classified as having other functions or as a general-purpose machine or printer.

This means that if Hass markets a CNC machine as a full capacity CNC machining center, and somebody, not to say Everytown would do this, but somebody who is not Hass then publishes an advertisement for a Jig that works in that Haas to hold AR-15 receivers, this law would turn all such Haas machines into “primary or intended” to make firearms.

Go read this monster, it is only a few pages long. Just another infringer attempting to limit our rights to keep and bear arms.

California Assembly Bill No 1089

Nikon DSLRs as almost all DSLRs or other digital cameras allow you to capture your images in raw format.  This is a cropped image from my Nikon D4 with an OK lens and the minimal amount of processing.  The processing that has been done is “Raw black/white point”, “demosaic”, “input color profile”, and “output color profile”.

The “Raw black/white point” is some sort of magic I don’t understand.  It is a required module and I’ve not modified any of the settings.

The demosaic module is designed to remove patterns that come about because the sensor is a collection of small sensors and they are arranged in a mosaic.  By demosaicing an image you remove those patterns.

Input and output color profile express what part of the color spectrum you are shooting for.  For me, it is normally sRGB as most of the images I create are designed to be used in computer/web instances.

As you can see, the image is on it’s side and looks green as crap.  It looks shitty to say the least.

Read More

B.L.U.F. Everytown out maneuvered Second Amendment supporters but managed an own goal by exposing a nasty biased Judge sitting on the Oregon Circuit Court.

H/T. to B.zH who made me spend to much time doing research. Enjoy.

Each person enlisting in an armed force shall take the following oath:

“I, ____________________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

10 U.S. Code §892 – Art. 92. Failure to obey order or regulation

Any person subject to this chapter who–

1. violates or fails to obey any lawful general order or regulation;
2. having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or
3. is derelict in the performance of his duties;

shall be punished as a court-martial may direct.

One of the differences in our military traditions is that “I was just following orders.” is not an acceptable excuse. You have to be following lawful orders. Determining what is an is not a lawful order is what gets people in trouble.

An order given by a superior is presumed to be lawful. Regardless, if U.S. Military personal follow an order that is later determined to be unlawful, they can be court-martialed and punished.

Clackamas County Sheriff’s Office, Oregan: Oath of Office:

OATH OF OFFICE
I, __________________, being first duly sworn, as a Deputy Sheriff, upon oath say and affirm that I will support the Constitution of the United States, the Constitution of the State of Oregon, the Clackamas County Code, and all the laws thereof, and that I will faithfully discharge my duties in accordance with the lawful policies and procedures of the Clackamas County Sheriff’s Office.

I hold my position and authority on behalf of the people. Through my professional and personal example, I shall uphold the public trust and meet the public’s high expectations of me through my observance of the Criminal Justice Code of Ethics.

In reverence for the law, I shall conduct my duties in good faith, with honesty, courage, and justice, to the best of my ability. In so doing, I shall build the peoples’ trust and confidence in my position. I shall never betray them by willfully abusing my powers, authority, or knowledge.

So what does it actually mean if a County passes an ordinance that says, in short “Follow the Law of the Land?”

In 2018 Columbia County passed Initiative Measure 5-270 (“SAPO”) and then in 2020 Initiative Measure 5-278 (“SASO”).

In April of 2021 three members of county, supported by lawyers from Everytown filed suit to have these ordenances overturned as “unconstitutional and inconsistent with federal and Oregon law”.

These two initiatives where then combined as ordinance no 2021-1 by the Board of Commissioners for Columbia County, Oregon.
Ordinance No. 2021-1

PROHIBITIONS

1. No agent, employee, or official of Columbia County, a political subdivision of the State of Oregon, while acting in their official capacity, shall:
   1. Knowingly and willingly, participate in any way in the enforcement of any Extraterritorial Act, as defined herein; or
   2. Utilize any assets, county funds, or funds allocated by any entity to the county, in whole or in part, to engage in activity that aids in the enforcement or investigation related to personal firearms, firearm accessories, or ammunition.
   3. Authorize or appropriate governmental funds, resources, employees, agencies, contractors, buildings, detention centers or offices for the purpose of enforcing any element of such acts, laws, orders, mandates, rules or regulations, that infringe on the right by People to keep and bear arms, except as otherwise provided herein.
2. While within Columbia County, this Ordinance preserves the right of any person to keep and bear arms as originally understood; in self-defense and preservation, and in defense of one’s community and country, and to freely manufacture, transfer, sell and buy firearms, firearm accessories and ammunition, which are designed primarily for the same purposes and protects ancillary rights that are closely related to the right to keep and bear arms protected by the Second Amendment; including the right to manufacture, transfer, buy and sell firearms, firearm accessories and ammunition (“ancillary firearm rights”).

This case has complications because the different parties are not as expected. The players in this are:

• Plaintiffs(bad guys) supported by Everytown
• County Board of Commissioners, accused of being bad guys
• Intervenors (good guys), GOA, OFF, and others
• AG/State of Oregon (bad guys)

History

The people of the county were asked if they wanted to be a Second Amendment Preservation county and were later asked if they wanted to extend that into being a Second Amendment Sanctuary. In both elections the citizens of the county voted to be pro Second Amendment.

As initiatives, these have more “power” than mere ordenances. Ordinances are by the will of the representatives. In this case the Board of Commissioners. Whereas the initiatives are the will of the people and are presumed to be constitutional. IANAL. This is gleaned from reading the filings.

Intervenors’ Opening Brief

As a preliminary matter, Intervenors object to the validity of the Petition for Validation of Local Government Action (“Pet.”) filed by the Columbia County Board (“Board”), as this is not the proper proceeding for a county board to challenge the validity of either Measure 5-270 or Measure 5-278 (“Initiatives”). Neither is this validation proceeding the proper method for the Board to challenge its own Ordinance 2021-1 (“Ordinance”), which was enacted as a contrivance to undermine the legality and constitutionality of the Initiatives which were popularly enacted by the People.1 Indeed, the Petition seeks “a judicial determination and judgment of the Court as to the regularity,2 legality and effect” not only of “Ordinance 2021-1,” but also of “Initiative Measures 5-270 and 5-278.” Pet. at 3. The latter portion is impermissible.

Footnote 1 of the Intervenors’ Opening Brief:

The Board puts forth no argument and makes no claim that the Initiatives were not lawfully passed. Indeed, the Oregon Constitution provides that “[t]he people reserve to themselves the Initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly.” Ore. Const. Art. IV, § 1(2)(a). The Initiatives in this matter were properly included on the ballots and passed by a majority vote (see Exhibits “6” and “7” to the Petition). As such, they are presumptively lawful and constitutional. See State v. Lloyd A. Fry Roofing Co., 9 Or App 189, 196, 495 P2d 751, 754 (1972) (“[l]egislative action is always supported by a strong presumption of constitutionality….”).

So this looks to be a strong case just from this brief read.

2021.06.24-Intervenors-Opening-Brief

The State AG weighed in on the side of the plaintiffs (bad guys) but the language is interesting. They are only asking for a summary judgement against Ordinance No. 2021-1. Not the Initiatives. It seems like the GOA, OFF et all had the right of it.

The Attorney General moves for summary judgment under ORCP 47, asking the Court to declare that the Columbia County Second Amendment Sanctuary Ordinance, enacted by Ordinance No. 2021-1, is invalid. The Attorney General’s motion is supported by the pleadings and papers on file and the points and authorities set forth below.

2021.06.24-Attorney-Generals-MSJ

Everytown replies to the Intervenor’s motion for summary with the same argument, that they are attacking Ordinance No. 2021-1.

Very interesting that they just ignore the Initiatives as well.

2021.07.08-Columbia-County-Residents-Response-to-Intervenors-Motion-for-Summary-Judgment

And the County’s reply:
2021.07.08-Petitioners-Reply-to-Intervenors-Opening-Brief

The county admits that they adopted Ordinance No. 2021-1 with the intention of requesting judicial review. This seems to be supported by law. I don’t know that they could have requested judicial review of the Initiatives.

The good news! Presiding Judge Ted E. Grove denied the request because the Petitioners(bad guys/Everytown) did not have “justiciable controversy.”

Petitioners do not seek to defend their ordinance from a challenge or resolve some conflict between parties. They do not attempt to overcome resistance from the Sheriff or State Police, nor, as apparent from their pleadings, would they defend their ordinance at all even if challenged. Instead, Petitioners seek what amounts to an advisory opinion designed to invalidate their own newly passed ordinance.

cc-court-decision1

Of course Everytown appealed, which lead to the the following opinion from the state appeals court:

Their appeal is that the lower court decided incorrectly. They bring nothing new to the argument and just tell the appeals court to read what was already presented.
2021.07.15-FINAL-Columbia-County-Residents-Reply-iso-Motion-for-Summary-Judgment

2021.06.24-Columbia-County-Residents-MSJ

The state circuit court of appeals says that there was “justiciable controversy.” That controversy was the threat of litigation. IANAL, it looks like Everytown got the Board to create the ordinance, then threatened to sue the county over the ordinance, at which point the county asked for judicial validation of the Ordinance No. 2021-1, which they didn’t need to do in the first place.

On the merits, the SASO fails. It is implicitly preempted by multiple state laws, ranging from state gun safety legislation (including recently enacted legislation) to the Oregon Tort Claims Act. The SASO is expressly preempted by Oregon’s Firearms Preemption Statute, ORS 166.170. It also is preempted by federal law, and therefore runs afoul of the Supremacy Clause. The SASO fails to address matters of county concern. The SASO is invalid, preempted and unconstitutional.

So there you have it. It is illegal to pass a law/ordinance that requires law enforcement to follow the law, because the law mentioned was a US Constitutionally protected right.

The SASO is rooted in the flawed premise underlying Measure 5-278 (2020), that local governments can ignore and disregard state and federal gun safety legislation. …

Emphasis added.

They are not gun safety laws, they are infringements.

The appeals court then says that the trial court was in error on controversy because the County did indeed pass an ordinance and as such could request the validation hearing, with no real controversy. If the County Board of Supervisors had not passed Ordinance No. 2021-1 there would be no case.

Opinion of the State Circuit Court of appeals:

1. The Court of Appeals Should Reach the Merits.
2. The Second Amendment Sanctuary Ordinance Is Invalid and May Not Be Enforced.
   1. The SASO Is Preempted by Oregon Law.
      1. The SASO Is Implicitly Preempted by Oregon Law.
      2. The SASO Is Expressly Preempted by Oregon’s Firearms Preemption Statute.
   2. The SASO Is Preempted by Federal Law.
   3. The SASO Does Not Address “Matters of County Concern.”
   4. The SASO is Inseverable.

The Oregon State court of appeals thus declared the “SASO” invalid and unconstitutionalColumbia_County_v_Oregon_Interested_Parties_Opening_Brief and found for the Plaintiffs(Bad guys).

But wait! There is more! Judge James Egan decided to use his position as a judge to write 27 pages of concurring “opinion”.

I must be clear that the flawed quasi-legal argument offered by Intervenors—viz., the UN wants to disarm Americans—and the proposed solution—viz., imposing a duty on county sheriffs to determine which laws are constitutional—have their origins in the insidious effort to oppress, in violation of fundamental notions of due process and equal protection under the rule of law. And in doing so, the Ordinance undermines, not elevates, the rights guaranteed by the United States Constitution.

He justifies this screed with the following footnote:

This journalistic function of a concurrence was best characterized by Judge James in State v. Bledsoe, 311 Or App 183, 197, 487 P3d 862, rev den, 368 Or 637 (2021) (James, J., concurring):

“Judicial opinions serve many functions, and one of those is journalistic. Our opinions are dispatches from the edge—moments, recounted for posterity, of how Oregon’s laws * * * and the lives of its citizens, intersect.”

Here the judge brings forth his mind reading abilities to discern the motives of the people that sponsored the Initiatives, got them turned into an Ordinance, and then defended them in court.

“The Antisemitic and Racist Origins of the Ordinance”

CSPOA[Constitutional Sheriffs and Peace Officers Association] claims to eschew racist ideology, but in fact its leaders embrace racist and white nationalist ideologies. The growing “constitutional sheriffs” movement intends to increase the risk of conflict between local law enforcement and federal authorities. The movement is animated by the deeply flawed and ahistorical view that county sheriffs hold ultimate law-enforcement authority in each individual county outranking federal and state authority. This deeply flawed and legally incorrect analysis holds that the superiority of county authority is deeply rooted in Anglo-American law. The anti-democratic ideas and quasi-legal theories propounded by the CSPOA and embedded in Second Amendment Sanctuary Ordinances have their origins in the writings of William Potter Gale, who founded the posse comitatus movement in the 1960s. They also have their origins in the writings of the Aryan Nation, an antisemitic, white supremist group.

This Judge is telling us that the people that want Second Amendment Sanctuaries are racist and antisemitic because he things the movement is a direct continuation of some other nasty group.

If you want to read it for yourself: 2023-a176726

I’m still working on my photography. There is a huge learning curve moving from film to digital.

For a number of years I used a Nikon Coolpix 900 which I got from my mentor’s estate after he was killed. It produced JPG images.

When that died I stopped taking pictures because it was too expensive to do film and to expensive to buy an DSLR.

I now have a Nikon D4. It is a generation or more back but it is a camera I could afford. I just had to put that .50 cal bolt action on the back burner for a bit.

One of the things I had to learn is that RAW means RAW. The images that you normally get out of your phone camera or consumer grade cameras is processed by the camera into a JPG image. The processing done on the RAW image before turning it into a JPG is extensive.

When you work with raw files you get the image exactly as the sensor captured it. Your software needs to apply the correct processes to turn that into something that you are willing to look at.

In the Windows/Mac world the software that does that is Lighttable. I’m a Unix/Linux guy, so I use Darktable It does much if not all of what Lighttable does, but it is free.

So I apologize if my images are not right. I’m still learning the processing sequence and camera settings. I’m relearning lighting procedures. And I’m having to relearn post processing.

Let me know if you’d like more gun pictures. I do intend to do some more of that Model ’94 and its older brother.

Thursday’s post was a little weak. When I said “I’ve had to listen to people lie and miss represent gun rights” and was tired of it. I wasn’t talking about social media or the mainstream media. No, I was talking about reading briefings in court cases by infringement loving AGs in different states.

Friday has a LONG post coming out about an hour after this post regarding a local case out of Oregon. It is important because it again shows wins in the lower courts and losses at the higher levels.

This particular case was brought to our attention by B.Zh. I think I spent about 6 hours total reading and skimming filings.

Did you know that it costs $54/month to get access to Oregon state court filings? There is a free version but it only had the final opinion of the court. The cache of documents I did find was from Everytown. I downloaded and posted them here so we don’t have to give their website any more visits.

Finally, Hagar has agreed to an “Ask me anything”. Start collecting your questions. There will be a post early next week with open comments so that you can ask Hagar anything you want.

Be polite in your questions and we reserve the right to K/O any question for any reason.

Hope you all are looking forward to it as much as I am.

Let the commenting/roasting begin, thank you to all our fine readers.