Lawfare, Part n+1

Legal Case Analysis
Mexico sued S&W and other manufacturers. They claim that but for those evil gun makers, the cartels would not have guns.

The district court said, “PLCAA applies. Get the out of my courtroom”.

Mexico appealed, the First Circuit says the case can go on. The price of your firearms just went up, again.
(1400 words)

The first pages of the opinion issued by the First Circuit court tell us that The People have lost another round. It takes nearly 30 pages to find out why, though.

The Protection of Lawful Commerce in Arms Act (PLCAA) was put in place by a bipartisan congress to stop those anti-gunners that were filing nuisance suits against entities in the firearms’ industry. FFLs and manufacturers, primarily.

Since the PLCAA passed, those same anti-gunners have been trying to find a way around it. On the media front, they make the false claim that “only the gun industry can’t be sued”. This has never been true.

The arms industry is the only industry where people attempt to hold the manufacturer responsible for the acts of a third party. The standard example would be a wife suing Ford because her husband was killed by a drunk driver driving a Ford F-150.

Or worse, suing because her husband was that drunk driver and was killed in a traffic incident which he caused.

It doesn’t make sense. The argument is based on two shaky, and false, foundations: 1) There is no need for guns, 2) If they didn’t make guns, nobody would be killed.

I’m reminded of this quote:

Because the horror of Communism, Stalinism, is not that bad people do bad things — they always do. It’s that good people do horrible things thinking they are doing something great.”

[Six Questions for Slavoj Žižek, Harper’s Magazine, November 11, 2011]

And I’m not sure those who wish to disarm us are “good people”. They do horrible things, though.
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United States v. Ayala, (M.D. Fla.) A Big Win

How does this case affect anybody else? It doesn’t. This is an as applied challenge to the 18 U.S.C. §930(a), possessing a firearm in a Federal Facility.

Mr. Emmanuel Ayala was a truck driver hauling mail for the U.S. Postal Service. He had a concealed carry permit from the state of Florida. It appears he was somebody that always carried.

On September 14, 2022, he was carrying as he walked from the employee parking lot and into the post office. Shortly after clocking in, two Post Office cops stopped him and attempted to detain him.

He took off. He was later arrested by the Tampa Police Department.

He was indicted for knowingly bringing a firearm into a Federal facility and for forcibly resisting arrest.

Unfortunately for Mr. Ayala, he is going to get screwed by the state in the end. Not for carrying a firearm, but for resisting arrest. When the cops say they are arresting you, just about any action that isn’t “yes sir, three bags full sir.” and full compliance can get a “resisting arrest” charge piled on.

In some jurisdictions, it is a defense that the arrest was unlawful. In other jurisdictions, Texas for example, it is not.

Once, Mr. Ayala made a motion to dismiss the charges based on a Second Amendment challenge, the court ordered the state to reply.

The state’s reply can be summarized as “The law is constitutional because the Supreme Court said that we can ban guns in government buildings! Besides, we did all the paperwork right!”.

The court was not satisfied with this response.

From our side, once the text of the Second Amendment is implicated in a gun ban case, we only need to look to the Heller methodology and the dicta which says you cannot ban an arm in common use, today.

In other words, we can say that Heller shortcuts the court’s command to do a historical analysis looking for analogous regulations. The Supreme Court says there are none.

The state is arguing, in this case, that they have that shortcut in banning guns in government buildings. The difference is that Heller, McDonald, and Bruen all had as their holdings that gun bans are unconstitutional and that the people have the right to bear arms.

The dicta said how they reached that conclusion and how the inferior courts should do so in the future. A passing reference to not striking down other laws does not mean that those other laws are constitutional.

The Judge had this to say about the state’s first response to the motion to dismiss: … the United States’ response to Ayala’s Second Amendment challenge was “unhelpful in this task.” App. B at 3. That two-paragraph response lacked any “searching analysis into the historical record to determine whether § 930 as applied to Ayala” complies with the Second Amendment.Order, United States v. Ayala, 8:22-cr-00369, (M.D. Fla.), No. 22-cr-00369 (M.D. Fla.)

The state constantly attempts to bring experts into the equation. The judge was having none of that:

This order resolves only Ayala’s Second Amendment challenge. The sole relevant facts are that Ayala carried a firearm into an ordinary post office, which neither party disputes. As a result, this issue presents a pure question of law ripe for disposition. Because I conclude that Count I must be dismissed on Second Amendment grounds, I need not consider Ayala’s vagueness challenge. Ayala’s challenge to Count II cannot be resolved on a motion to dismiss because, even if Ayala could have lawfully resisted arrest, the jury must resolve the contested factual issues surrounding his resistance.

She is correct. There are no facts in dispute. He carried the gun into a post office. He says that it is constitutional protected. The plain text of the Second Amendment covers his conduct. The state must present a history and tradition of regulations to support the modern infringement.

The state has failed to provide that history. The experts in questions of law are the lawyers and the judge. “Experts” are not allowed to give legal opinions in court, that is reserved for the lawyers and the judge. The lawyers present the regulations and case law, the judge determines the outcome.

The judge says there are no distinctly similar historical regulations addressing regulating firearms in post offices. Even if the lack of a distinctly similar historical regulation was not dispositive, the United States has offered no relevant historical analoguesid.

She goes on:

I then dispel two misapprehensions held by the parties. First, nothing in Supreme Court dicta establishes that the United States may ban firearms in all government buildings. Second, the scope of the Second Amendment right is a legal question, not a factual one, and I need not hold an evidentiary hearing to resolve it. Instead, the government bears the burden to identify historical evidence supporting its challenged regulation.

Finally, I explain why the United States errs in arguing that its proprietorship of federal land and buildings excludes vast swathes of the country from the protection of the Second Amendment.

In other words, I must determine “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.”id. quoting Bruen

Much of the rest of the judge’s order is her doing the work of the state. She repeatedly states that the United States did not show a history nor a tradition of banning firearms in post offices, or government buildings in general.

She is doing this to provide backing for other Second Amendment challenges.

Her words strongly imply that she expects this case to be appealed.

I’m not sure that it will be. The defendant (good guy) got his win. But that win is an “as applies”, which limits it to just him. This is a district court ruling. This limits this to just the Middle District of Florida.

If the state were to appeal this case, it would go to the Eleventh Circuit court, which is highly likely to rule for The People.

If the Circuit Court rules in favor of The People, then that affects everybody in the Eleventh Circuit. The Eleventh Circuit could easily extend this from an “as applied” to a “facial challenge”. If they do make it a facial challenge, then 18 U.S.C. §930 could be found unconstitutional.

No matter how you slice it, this is a great win for The People.

Why May v. Bonta is a big deal

The babblings of a not lawyer about just how good a weekend order from the Ninth Circuit was for The People.
(1500 words)

There is a name that should be familiar to us, but which is not, Federal Judge Jack Weinstein. He sat on the Eastern District of New York district court from 1967 until 2020.

Why is he important? He was the federal judge that oversaw a number of mass tort cases. The one of interest to us, in the Second Amendment community, is the cases involving Diethylstilbestrol, or DES.

DES was prescribed to pregnant woman to reduce the risk of complications from 1940 through the early 1970s.

It turned out that it caused significant medical complications.

Of course, being America, once it was determined that there was an injury and that somebody might be at fault, lawsuits were filed.

But here is the thing, every pharmaceutical company made DES. Each of the pills was the same. It was almost impossible to tell the manufacture of a DES pill.

More than that, most people just don’t know. When I look at my medication bottles, there is no indication of who manufactured that particular lot of pills. I can go to my pharmacist and find out. On the other hand, I would have a difficult time finding out who manufactured the pills I took when I lived in Maryland. I’m not even sure what pharmacy I used, at that time.

This is where Judge Weinstein comes in. His name was pulled as the judge to hear the first suit filed in the eastern district of New York. From the start, it looked like he was sympathetic to the plaintiffs, the people suing. More suits were opened in the Eastern District.

Instead of a judge being drawn at random, the plaintiffs would request that their case be handled by Judge Weinstein. For judicial expectancy, these requests were granted. This is normally a good thing. This is what happened in California when Judge Benitez was the judge to hear so many Second Amendment challenges.

The defendants stood up in court and said, “Hey, it wasn’t me, and they can’t prove it was me. Dismiss me from the suit.”.

This is because no plaintiff could point to any particular defendant and prove that the defendant in question was the company that manufactured the pills that the defendant took. Since there was no way of figuring out which defendant was responsible for which plaintiff, it looked like the cases would be dismissed.

Judge Weinstein reviewed this and came up with a plan. His plan was a type of joint responsibility. He reasoned that for any particular year, each defendant held a particular market share. Company A held 50%, company B held 25%, company C held 15%, and D, E, and F held the remaining 10%. His ruling was that each company was responsible for a portion of the fine based on their market share.

Thus, for every $100 award, company A paid $50, company B paid $25 and so on.

But how did this intersect with the Second Amendment?

It turns out that Judge Weinstein was a rabid anti-gun person. There wasn’t a thing about guns he approved of, unless it was protecting his sorry arse.

The anti-gunners were not winning in the courts in ways to completely ban guns, but they reasoned that they could “get rid of guns” if there were no more sellers or manufacturers of guns. To this end, they started suing gun manufacturers and sellers.

And they filed in the Eastern District of New York. And they requested that the cases be assigned to Judge Weinstein because these gun suits were just like the lawsuits filed in the DES cases. Judge Weinstein gleefully accepted these cases.

Even if the defendants (good guys), won the suits, the costs of litigation were so high it drove smaller companies out of business.

This ended with Congress passing several bills to stop it, the current version is the PLCAA.


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May v. Bonta, Good news!

On December 20, 2023, District Court Judge Cormac J. Carney of the Southern District of California granted the plaintiffs (good guys) motion for a preliminary injunction.

This enjoined (stopped) the state of California from enforcing California Senate Bill 2. This was the “every place is sensitive, no guns allowed” bill.

Quoting Judge Carney, . SB2’s coverage is sweeping, repugnant to the Second Amendment, and openly defiant of the Supreme Court. Reno May v. Robert Bonta, 8:23-cv-01696, (C.D. Cal. Dec 20, 2023) ECF No. 45.

Of course, the state started whining like a little baby when their infringement was slapped down. They went running to the Ninth Circuit to get an emergency stay.

The only surprise in this was that it took the state two whole days to file for the emergency stay.

While waiting for the emergency administrative panel to give their order, The People of California, lucky enough to have a CCW, could carry in all the places they use to be able to carry.

On December 30, 2023, Judges Johnnie B. RAWLINSON, Jay S. BYBEE, and Andrew D. HURWITZ granted the stay. This meant that on January 1st, 2024, The People of California could no longer carry. It was impossible, or nearly so, to carry with a CCW without violating a sensitive place restriction.

We do not know whether this was a three to zero ruling or a two to one ruling.

There were no more filings after the December 30th order. But the plaintiffs must have been working hard, behind the scenes. How do we know that? Because yesterday afternoon, the 6th of January, the stay was dissolved. At least one judge on the Ninth Circuit had the gonads to stand up for The People.

All the filings have been forwarded to the merits panel.

The case is going to be heard on the merits? Wow?

What is even more amazing is that it will be heard in April. To put this in perspective:

Punch it Chewy!

Quick Recap of a few cases

Duncan v. Bonta 23-55805 (9th Cir). The 9th circuit granted a stay pending the outcome of the appeal. They will be hearing oral arguments on March 18, 2024. This means that The People living in California will be deprived of their civil rights until the 9th returns their opinion.

This is sickening because the Supreme Court already told the Ninth they got it wrong when they GVRed this case after Bruen

Renna v. Becerra is still in a holding pattern. The District court ordered an injunction, then stayed the injunction pending resolution in the Ninth Circuit court. That was back in April. Still no movement on the case.

Barnett v. Raoul 23-cv-00209 (S.D. Illinois) is slowly moving forward. The parties agree that this case is going to seek cert. with the Supreme Court. Therefore, they are doing discovery to have facts on record. Everybody in the case is dotting “i”s and crossing “t”s to make sure the case is processed correctly.

Most of this is because the Seventh Circuit court has too many agenda driving rogue judges on it.

Carralero v. Bonta, 8:23-cv-01798, (C.D. Cal.) was our win from Wednesday, Friday, the state gave notice that they would be appealing. Until the Ninth Circuit grants the stay, many of the sensitive places restrictions in California are enjoined.

This could be good news for the 2A community. If the en banc panel that is messing with Virginia Duncan tries to grab this case, it will be clear that they are cheating. If a different three judge panel gets this case, they could rule for The People.

The state should be procedurally barred from asking for a stay on the injunction because they have not asked the district court for a stay.

Reno May v. Robert Bonta, 8:23-cv-01696, (C.D. Cal.) sees the state appealing to the Ninth Circuit. Same old stuff as Carralero

Kipke v. Moore, 1:23-cv-01293, (D. Maryland) is having numerous supplemental authority filings. The plaintiffs (good guys) have brought up the S.D. California win for The People. The state is bringing up the Antonyuk decision by the Second Circuit.

Of course, the state has to cheat. They only mention the parts of the Second Circuit’s opinion that support them, totally omitting the few places where the Second eviscerated their regulation.

Bains v. American Tactical, Inc., 6:23-cv-06208, (W.D.N.Y.) is the lawfare against gun manufactures and resellers for the acts of bad people. The current attack is to claim that the selling of firearms creates a public nuisance. Being a public nuisance is against the law, so the manufacturer or reseller are responsible for an asshole shooting others.

Rocky Mountain Gun Owners v. Polis, 1:23-cv-02563, (D. Colo.) is making its way through the Tenth Circuit court after losing at the district court level. There, the district court found that the plain text of the Second Amendment does not cover waiting periods.

Like always, the state moves at a snails pace when it means that The People will be denied their rights longer.

California Rifle and Pistol Association, Incorporated v. Los Angeles County Sheriffs Department, 2:23-cv-10169, (C.D. Cal.) is a new case. It was filed in early December. It challenges the cost in time and money to get permits to carry in certain locations in California.

More importantly, it challenges the lack of reciprocity. California does not recognize any other state’s CCW. California does not allow out of state residents to get California CCWs. This means that out of state residents are denied the right to carry in California.

This flies directly in the face of Bruen. This could be the start of nationwide reciprocity. I can certainly dream.

I hate traveling into Mordor. The state was horrible before Bruen, since Bruen it has just gotten worse. They still have laws on the books that require people to have state permission to purchase or posses ammunition or ammunition components.

There are many more, but this gives a sampling. I’m watching for a request for certiorari from Bevis out of Illinois. They made a request on the Supreme Court’s emergency docket, which was denied. A straight-up ask might be granted.

A Take down of the Second Circuit Court’s Odious opinion

Legal Case Analysis
In reading some recent filings, I came across this excellent take down of the Second Circuit Court’s opinion.
(1550 words)

The following is mostly from plaintiffs (good guys) in Kipke v. Moore in the District Court of Maryland. As mentioned the other day, the state is using the opinion out of the Second Circuit to bolster their arguments. The plaintiffs are having none of it.

Plaintiffs respectfully submit the following response to Defendants’ Notice of Supplemental Authority. See Notice, Doc. No. 45. Plaintiffs argue that the Second Circuit “rejected the notion that courts should look only to Founding-era laws and traditions.” Id. at 1. The only authorities cited by the Second Circuit are the now-vacated Eleventh Circuit opinion in National Rifle Association v. Bondi, a concurrence from the Third Circuit, and two Circuit court opinions pre-dating Bruen. See Antonyuk v. Chiumento, 2023 WL 8518003, at *16 (2d Cir. Dec. 8, 2023). Plaintiffs maintain that “the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.” Bruen, 142 S.Ct. at 2137. The paucity of relevant authority supporting the opposing view only bolsters Plaintiffs’ position. The Second Circuit further erred in suggesting that a different analysis was appropriate “[b]ecause the [New York statute] is a state law.” Antonyuk, 2023 WL 8518003, at *15. Bruen squarely holds that the Second Amendment has “the same scope” against the States as it does against the federal government and thus there can be no different test when it is applied to the States. Bruen, 142 S. Ct. 2137. See Mem. in Support of Pls.’ Mot. for Prelim. Inj. at 11–13, Doc. 24-1 (“MPI”); Pls.’ Reply at 11–12, Doc. 38 (“P. Reply”)
Order, United States v. Ayala, 8:22-cr-00369, (M.D. Fla.), No. 22-cr-00369 (M.D. Fla.)

NRA v. Bondi was the case down in Florida where the 3 judge panel found that 18, 19, and 20-year-olds were not part of “The People”. They published their opinion. Their opinion was immediately stayed by another judge on the Eleventh Circuit court. The case was then taken up en banc.

We are waiting for the en banc panel to issue their opinion.

Citing to NRA v. Bondi as good case law is a profound error. It is no different than citing to —id. to support a current regulation. (Dred Scott was an awful Supreme Court opinion that has been corrected by the Supreme Court.)

The Circuit Courts like to think of themselves as Supreme Courts. Even if the Supreme Court has told the Article III inferior courts how to do something, the Circuit Courts, which are inferior courts, will hold on to their past opinions with a stranglehold.

The Forth Circuit court should have had an easy task when asked if Kolbe is still good law. The Supreme Court just GVRed a case to the Fourth, telling them that using Kolbe they got it wrong. Yes, Kolbe is part of the dung heap of the past.

Depending on decisions, pre-dating Bruen is wrong. The problem that these rogue courts have, is that they don’t have any ground to stand on. Every time they think they are on firm ground, it turns to quicksand. They knew they were infringing when they used the means-end tests. They knew they were ignoring what the Supreme Court wanted. They were more concerned with their agenda.

In —id., the Supreme Court clearly stated that the Second Amendment is incorporated. That it applies to the states as well as the Federal government. For the Second Circuit to say that state law is somehow different is an abuse of their authority.
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Bevis v. Naperville, (U.S.) 23A486

We have some bad news. The case which was put on the Supreme Court’s emergency docket asking for a writ of injunction has been denied.

The total information we have currently is:
Dec 14 2023 Application (23A486) referred to the Court.
Application (23A486) for a writ of injunction pending certiorari presented to Justice Barrett and by her referred to the Court is denied.