Is Barrel Proofing an Analogous Regulation?

It was suggested by it’s just Boris that a founding era firearm safety requirement could be used to support the California Roster system. In particular, they suggested that proof testing would be a close enough match.

It isn’t. Proofing a firearm is entirely different from the idea of requiring or forbidding features.

The original proofing was done to make sure that guns did not blow up in your face. Because of the metallurgy of the time it was not a good idea to trust a pressure vessel until it had been tested. To this end “proofing” was required.

Once completed, all of the individual parts would be sent to one of the royal arsenals to be carefully inspected for quality and to ensure they were “to pattern” with the control piece. If the parts passed inspection they would receive an inspector’s stamp and be fitted to a gunstock along with the other parts of the musket. The stocks were supplied to the arsenals by rough stockers who selected the appropriate blank stocks (specifically, seasoned walnut heartwood) from timber mills throughout Britain. The blank stocks were sent to the arsenals, and the final assembly of the musket was completed at the arsenal by the master gunsmiths employed there. Each musket was fired with an excessive amount of powder to ensure its strength and received a final acceptance stamp if it passed. This was known as proofing. Once the production process was complete, the muskets could then be issued to the state for use. The raw materials—such as coal, brass, iron and wood—had to pass through several processes to reach the final product and would have gained value with each step. The value of the work put into each step would culminate into the final value of the finished musket. This value, plus use-value, is the complete value the Board of Ordnance would have paid for each musket.
The Production of Muskets and Their Effects in the Eighteenth Century

Emphasis added.

What is very important about the requirement for “proofing”, from a Second Amendment view, is that no class of arm, “pattern” was outright banned.

What was happening is that a level of third party quality control was being performed, by the government.

At times the proofing wasn’t done a the royal proofing houses but was instead done at the manufacturer’s location.

With the California roster, the concept is that if California doesn’t like the weapon it is banned. Not that the weapon has to perform as designed and not blow up.

In addition, while proofing was required in Europe, I can find no regulations that actually require the proofing of firearms from 1790-1799. I used both Google and Duke Center for Firearms Law. It is likely that with a bit more work I could find something at Duke but the real proof is that the state has not made the argument in any of the cases I’ve read.

Boland v. Bonta Update.

B.L.U.F. In a strategic move the State of California is appealing to the Ninth Circus Court of Appeals in the “Unsafe Handgun Act” case. The district judge found the UHA unconstitutional by requiring Chamber Load Indicator(CLI), Magazine Disconnect Mechanism (MDM), and microstamping. The state is appealing the CLI and MDM but NOT microstamping.

US District Court Judge for the Central District of California, Judge Cormac J. Carney, came to the right decision but his analysis to get there was and is weak. This has lead to the likelihood of this appeal being granted. It was likely to be granted by the Ninth Circuit Court because the en banc court hasn’t seen an infringement they didn’t support.

The Ninth Circuit court is so anti-gun that when a three judge panel found in favor of the plaintiffs(good guys) in Duncan v. Bonta the Second Amendment community was shocked. One of the judges on that panel wrote an opinion explaining exactly how the en banc court was going to find for the state infringements.

In Boland v. Bonta the judge did not find that the UHA was a ban, instead he found that requiring CDL, MDM, and microsamping created a de facto ban which made that part of the UHA unconstitutional.

Consider a regulation that says “You are not allowed to have any firearm with a barleycorn front sight”. This reads like a ban because it is a ban. Now consider a regulation that says “You are only allowed to have firearms with barleycorn front sights.” This is also a ban. It just doesn’t read as clearly as the first.

Now consider a regulation that says “You are only allowed to have firearms that are on this approved list.” That sounds sort of like a ban but maybe not. If the list is comprehensive to the point where you can buy whatever you want it doesn’t feel like a ban. In order to even have standing to challenge the ban you would have to prove to the court that you wanted to purchase a firearm not on the list and had attempted to do so.

Now what if we add another part to the regulation “only firearms with barleycorn front sights can be placed on the list.” This has exactly the same effect as “You are only allowed to have firearms with barleycorn front sights.” It is a ban. If the state changes the list of firearms that it allows, it is still a ban.

This is how the state of California bans handguns. They just don’t put modern handguns on the rooster and thus ban them from the State of California.

The Question

Read More

DSSA v. Del. Dept. of Safety and Homeland Security

B.L.U.F. District Court of Delaware Judge Richard Gibson Andrews decided on 2023-03-27 that a ban on some firearms and some magazines was constitutional in denying a preliminary injunction.
Slight updates to correct spelling and Judge’s name.
Delaware State Sportsmen’s Association, Inc v. Delaware Department of Safety and Homeland Security (1:22-cv-00951)

Prior to Bruen the courts used a two step analysis that first determined if the regulation touched on the core right of the Second Amendment, self-defense. If it did then they then used a means-end balancing act where they considered just how much infringing was being done (just how much rape was done to you Mrs Jones? If it wasn’t too much rape then it really isn’t a big case and we don’t need to prosecute him as a felon.)

Once the courts had determined there was infringement and had established just homehow much that infringement harmed the individuales core civil rights it used a balancing act against the public need as defined by the state. Thus if the state said that the regulation was going to make the public safer that would be balanced against just how much the individual was effected. The individual almost always lost this game.

Post Bruen there are still two steps, the first step is determine whether ‘the Second Amendment’s plain text covers an individual’s conduct’Memorandum Opinion at P.6 quoting Bruen. If the answer is yes, then the burden shifts to the state to show a history and tradition of analogous regulation from the time of the founding.

If it is an arm then the individual’s conduct is presumptively protected by the Second Amendment.

In order to win the case, the state has to prove only one of the following:
Read More

Measure 114 gets “Fixed”

B.L.U.F. An example of winning in court. Oregon’s legislature rushes to moot cases and to fix parts of Measure 114.

H/T Bh.Z and OFF

On January 9th, 2023 Senate Bill 348 was introduced. The bill was short. It was a bill giving the Oregon Department of Justice a requirement to …study ways to address the unlawful possession of firearms.Senate Bill 348. The DoJ was given until December 31,2024 to provide the report back to the legislature. On January 2, 2025 the first section of the bill would be repealed.

On its face this doesn’t sound all that bad, directing some government entity to do a study is a way of spending taxpayer money to get “facts” to use against The People in infringement cases, but better a study than another infringement.

Oregon Firearms Federation sent an alert telling its members that this was a bill to observe as it was likely there as a gut and stuff bill. Often times a legislature has rules to protect The People from the state. Things like a bill must be read 3 times before it can be voted on. That there must be a certain amount of time between readings. That the bill has to be analyzed by the appropriate committees to make sure it will be “legal”.

But there is an important part of these rules to remember, amendments are not subject to the same rules. The idea being that members have had enough time to analyze the bill and are not going to propose “fixes” and “changes” to make the bill better. When those amendments are presented the body votes and if the amendment gets enough votes the amendment is applied to the bill.

If the bill is in both chambers of a bicameral legislature there will be a reconciliation phase that takes place if the two bills are actually different. If both the Senate and the House versions are the same then it is deemed to have been reconciled and it moves forward to the Governor or President for signature to turn the bill into a law.

A “gut and stuff” bill is a bill that is specifically designed for this amendment process. When the bill is read an amendment is offered that “guts” the entire text of the bill and then “stuffs” entirely new content in place of the original text. Suddenly you have a bill with the same identifiers that has been through the pre-vote approval process with totally new content ready for a vote.

This is where the famous Nancy statement comes from “We have to pass the bill to see what is in it.” The bill in question then was ObamaCare and it was gut and stuffed into an entirely different bill with a short timeline to a vote. With 2000+ pages of new text it was impossible for any one person toi read the entire bill before the vote.

In infringement bills it is often the case that they legislature doesn’t want The People to have time to react.

The watchers have to spot the bill. They have to see the amendment go into place. They have to craft an alert. The alert has to make it to The People and only then can The People respond with email, calls and faxes.

In person responses take even long. This is why the NYS S.A.F.E act was so bad on a procedural level. Even though there are laws in place to give people time to respond, the infringers got it passed in an emergency session before those alerts and responses could take place.

With the NYS CCIA the republicans only had the press release until the very last minute. It wasn’t possible to respond until they got the text of the bill and they didn’t get the text until the last minute.

Oregon Senate Bill 348 – Amended

Read More

Did the court get it right in Boland v. Bonta?

When looking at Boland v. Bonta, the “Unsafe Handgun Act” out of California, it was nice that the judge “got it right”.

Unfortunately the reasoning that he had in his opinion niggled at me. There was something wrong. It should have been this hard.

Then Mark Smith applied the clue-by-four and it made things obvious.

The UHA is a gun ban. Full Stop.

Consider a law that said “A firearm with a barleycorn front sight is banned” We would instantly recognize that as a gun ban. If it is a gun ban then the plain text of the Second Amendment is touched on and it then the state must prove that there is a history and tradition of regulating classes of guns with particular features.

When the feature was “pistol” then Heller found that a ban was Unconstitutional. The holdings of the Supreme Court have shown that it doesn’t have to be a complete ban, it only has to touch the plain text of the second amendment in order for regulation to be presumptively unconstitutional. It is up to the state to prove history and tradition.

But what if we turned the statement around? What if we said “Any firearm without a barleycorn front sight is banned”. This is still a ban, the state has just inverted the logic from “can’t have” to “must have”. It is a ban. Treat it like a ban in court.

Now if the state chooses to hide that ban inside a bunch of other regulations, it might be harder to see.

For example what if the law said “you can only buy firearms on this list” and “We are only going to put firearms with barleycorn front sights on the list”. It is still a ban, it is just a two step process.

Think of it the same way we think of machine guns. According to the law, machine guns are not banned. You are free to buy them if you can find somebody willing to sell them to you. All you need is to jump through NFA hoops.

But because of the Hughes amendment no NEW machine guns have been added to the transferable NFA list. This has caused the cost/value of machine guns to sky rocket.

I don’t think any gun infringer really wants to be told that the difference between an AR-15 and a M-16 is $75 in parts and an extra hole. Which means that the cost of a machine gun should be about the same as its semi-auto version.

The closing of the NFA registry for machine guns is a ban on machine guns.

The UHA is also a ban. No matter how much lipstick is slapped on that pig, it is still and always will be a gun ban.

Words are hard

Everything in this article that is not a quote is my understanding. I AM NOT A LAWYER so the odds of me getting something wrong is non-zero.

In Boland v. Bonta: Another District Court Win “UHA” I quoted and wrote.

The Complaint, and every cause of action therein, is barred by the equitable doctrines of estoppel, laches, unclean hands, and/or waiver.
Answer to Amended Complaint at P 16

I should have spent some more time figuring out what this all means.

Read More

Court Case Timelines

We are the children of the “right now” age. I am old. I remember my mother going to the Grayhound bus depot and paying them to deliver two huge boxes to her hometown in the midwest. This was the only way to get a package that big that far in a reasonable amount of time.

Reasonable amount of time? About a week or so. At which point my grandparents would go to the bus depot to get pick up the packages.

When I was a child working on motorcycles I would create a parts list and then once a month we would go into the big city and I could purchase parts at the motorcycle dealership(s).

We would dig through our Scholastic book pamphlet and pick out the books we wanted. Three or four weeks later our books would arrive. We’d look though the Sear’s catalog and place an order. A few weeks later it would arrive.

The other day I needed replacement “Plackers”. I spent less than two minutes online to locate what I wanted, purchased more for much less than I could locally and they were delivered as soon as we had cleared our driveway.

Everything today happens quickly. I can send an email around the world in less time than it takes to print that same letter. I can have a response back before I close my email program.

My introduction to The Internet was when I noticed that if we dropped UUCP messages in one node in Michigan it would show up in California with a timestamp only seconds different than the arrival time.

We are spoiled. Everything should be moving as fast as online shopping and online communications.

Not everything is fast

Read More