Case Analysis

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.

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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Antonyuk v. Hochul (2nd Cir.)

Legal Case Analysis
This is the long-awaited opinion from the Second Circuit court regarding the CCIA challenges. This panel was anti-gun, there is nothing negative in the opinion that is surprising.

What is surprising is that we won even a little bit.

The plaintiffs will either request an en banc rehearing or take it to the Supreme Court. I believe that the Antonyuk case is at final judgement at the district level. If that is the situation, then this case is ripe to be heard by the Supreme Court.
(3100 words)

The Second Circuit Court has finally issued their opinion on New York state’s Bruen tantrum. It isn’t great.

We now AFFIRM the injunctions in part, VACATE in part, and REMAND for proceedings consistent with this opinion. In summary, we uphold the district court’s injunctions with respect to N.Y. Penal L. § 400.00(1)(o)(iv) (social media disclosure); N.Y. Penal L. § 265.01-d (restricted locations) as applied to private property held open to the general public; and N.Y. Penal L. § 265.01-e(2)(c) as applied to Pastor Spencer, the Tabernacle Family Church, its members, or their agents and licensees. We vacate the injunctions in all other respects, having concluded either that the district court lacked jurisdiction or that the challenged laws do not violate the Constitution on their face.
Order, United States v. Ayala, 8:22-cr-00369, (M.D. Fla.), No. 22-cr-00369 (M.D. Fla.)

If you are applying for a CCW in New York, you no longer have to give social media information and access, private property no defaults to “carry ok” rather than “gun free zone”, and Pastor Spencer and his church members can carry in religious locations.

Everything else seems to still stand.


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National Association for Gun Right v. Naperville, Application for Injunction at Supreme Cour

Legal Case Analysis
The state filed their reply in opposition to having the Seventh Circuit Court’s denial of an injunction on the Illinois gun and magazine ban overturned.

This was done on the Supreme Court’s emergency docket. Justice Barrett required a response from the state, by 1700 Wed. Which they did file.

The application and reply will be distributed to the Court, which will issue a response in the coming days. I actually expect something by Friday. The court will either grant an injunction or deny the injunction. There maybe an opinion issued with that order.

We live in interesting times.
(2000 words)


In September 2022, Robert Bevis and the National Association of Gun Rights filed suit in the Northern District of Illinois federal District court. This was a challenge of the Naperville Municipal Code “assault weapon” ban.

By December, the District court had stayed the implementation of the “assault weapon” ban.

In January 2023, the plaintiffs (good guys) and amended their original challenge to include the state law, PICA.

In February, District Judge Virginia Kendall stated that … 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.

Virginia profoundly erred when she ruled:

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. See U.S. Const. amend. II; Heller, 554 U.S. at 627.

The plaintiffs appealed to the Seventh Circuit court.
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Maryland Shall Issue, Inc v. Wes Moore, 4th Cir.

Legal Case Analysis
Senior Circuit Judge Keene wrote the dissent in this case. She is unhappy with the majority opinion because that opinion would find most, if not all gun-control regulations, unconstitutional.

Because this goes against her agenda, she latches onto footnote 9 of the Bruen opinion to justify why any set of objective hoops placed to hinder a member of The People from keeping and bearing arms is constitutional. It doesn’t matter how long it takes nor how much money it takes, nor what those hoops are. As long as the state must grant permission at the end, that regime is constitutional.

(4200 words)

On November 21, the Fourth Circuit court issued their opinion on Maryland Shall Issue’s challenge to Maryland’s “Handgun Qualification License”.

This is a permit to purchase. Before you can purchase a handgun in Maryland, you must first submit fingerprints, undergo a background investigation, take a four-hour-long firearms safety training course which includes firing at least one round. After that is completed, you can submit your application for your HQL.

The state has 30 days to approve or deny the application, after they receive the application. We know that “the state” has a habit of not “receiving” things they want to receive. If they haven’t “officially” received the application, the clock hasn’t started. In addition, the 30 days is not clearly defined in law. Is that 30 business days or 30 calendar days? And how long do they have to inform the applicant of the determination? Or, as one state is doing, they are granting appointments for fingerprinting 6+ months in advance.

The reality of this egregious infringement is that it is likely three months from the decision to get an HQL before you have one.

The three judge panel reversed the district court’s “contrary decision”.

This means that the case is not going back to the district court. It can only move forward to the Supreme Court. The state has 21 days to appeal, IIRC. Reversing a decision is “You got it wrong, we don’t need you to mess it up again, it is wrong, and we are setting it right.” This is better than vacating and remanding a decision. When a case is vacated and remanded, the case is sent back to the inferior court where they do the case all over again, collecting new arguments and evidence.

So the Fourth Circuit panel did the right thing the right way in a reasonable amount of time.

Of course, there is always the thorn in your side in a case like this. That thorn is Senior Circuit Judge Barbara Milano Keenan. Born in 1950, making her 73 years old. She was nominated by Obama in 2009 and appointed in 2010. She assumed senior status in 2021.

Keenan strongly dissented in part in an August 9, 2021 decision which ruled that a charter school’s policy to force female students to wear dresses or skirts did not violate Title IX, despite allowing the Title IX lawsuit to continue. Keenan explained “No, this is not 1821 or 1921. It’s 2021. Women serve in combat units of our armed forces. Women walk in space and contribute their talents at the International Space Station. Women serve on our country’s Supreme Court, in Congress, and, today, a woman is Vice President of the United States. Yet, girls in certain public schools in North Carolina are required to wear skirts to comply with the outmoded and illogical viewpoint that courteous behavior on the part of both sexes cannot be achieved unless girls wear clothing that reinforces sex stereotypes and signals that girls are not as capable and resilient as boys.”
Order, United States v. Ayala, 8:22-cr-00369, (M.D. Fla.), No. 22-cr-00369 (M.D. Fla.)

Yes, that type of judge.

The Dissent

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Bevis v. City of Naperville, Petition for Rehearing in Banc

Hagar says I have to use the “more” button.

The cases heard by the Seventh Circuit court three judge panel found that AR-15s aren’t arms under the protection of the Second Amendment. That magazines aren’t arms under the Second Amendment. That handguns can be banned and that all was right and wonderful with PICA.

The victims/plaintiffs (good guys) are requesting an en banc rehearing. This is a type of official rebuke of the panel’s findings. That thing where you can’t say “Those dunces in black robes are morons!”, instead you say “they profoundly erred” or “They got it wrong”.

They do a fantastic job of explaining exactly why the panel got it wrong.
(1250 words)

Plaintiffs respectfully petition the Court to grant rehearing in banc pursuant to Fed. R. App. P. 35(b) because the panel’s decision conflicts with multiple decisions of the Supreme Court.
Order, United States v. Ayala, 8:22-cr-00369, (M.D. Fla.), No. 22-cr-00369 (M.D. Fla.)

The rest of this is mostly taken directly from the filing. It is a good summation and I would be wasting my time rewording.

Kudos to the attorneys representing the plaintiffs (good guys)
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