B.L.U.F. Weird 2A case analysis. The Plaintiff(good guy?) charges that the cops removed him from his car, detained him, did a warrantless search of his vehicle, stole some cash. The Defendant(the state) claims that the presence of a legally carried firearm was justification for the search. Currently in the Second Circuit Court of Appeals waiting judgement.
History
Around 2043 on 2018-11-12 Basel Soukaneh was pulled over to the side of the road with the motor running. He was looking up a GPS location of a property he was considering buying.
He was in a bad part of town where bad things happen so when Officer Andrzejewski noticed the car pulled over to the side with the engine running he performed a “traffic stop”.
When he started his investigation Mr. Soukaneh announced that he had a permit to carry and that he did have a firearm with him in the car. At this point Officer Andrzejewski removed Mr Soukaneh from the car, put him on the ground, handcuffed him and then locked him in the back of his squad car.
Officer Andrzejewski then proceeded to search the car, including the trunk of the car. At the end of the search he wrote a traffic citation for “parking in a driveway” and released Mr. Soukaneh.
B.L.U.F. The Eleventh Circuit Court covering Florida had a three judge panel decided that 18-20 year olds couldn’t buy firearms. The opinion is a hot take.
Emotional Blackmail Works
The three judge panel’s opinion was written by Circuit Judge Rosenbaum. She starts the opinion with some emotional blackmail, telling us that young adults have been shooting people for a very long time using newspaper reports from the 1870’s. She is using this to get the following statements into the opinion:
These stories are ripped from the headlines—the Reconstruction Era headlines, that is. But they could have been taken from today’s news. Unfortunately, they illustrate a persistent societal problem. Even though 18-to-20-year-olds now account for less than 4% of the population, they are responsible for more than 15% of homicide and manslaughter arrests.
— Opinion of the Court — NRA v. Bondi
Double emphasis added.
In Bruen quoting Heller the Supreme Court established that when talking about the history and tradition of firearm regulation that the date to look at is 1791, the ratification of the Second Amendment. The founding period extends, at the latest, to 1826 when the last of the founding fathers died. Laws from the Reconstruction Era can be used to reinforce those traditions but can not be used if not supported by a tradition dating back to 1791.
Age Bans are Legal If You Use Reconstruction Era Laws
Judge Rosenbaum wants to use Reconstruction Era laws to justify the current law. Read More
I’m tired. We got our power back after around 30-36 hours. We did not suffer but we had to work a bit harder than normal.
I was responsible for clearing a 1/4 mile of driveway that had snow ranging from 30cm to nearly 90cm deep. The first pass was a pain because our snowblower is only good to about 70cm of depth. This means that you drive the blower into the snow, it shoots the snow off to the side and you let it start to climb. When it has climbed to about a 30degree angle you stop the drive wheels and pull the damn thing back
Then you do it again. It has no trouble with the ramp it left behind but shortly after that it will do the climb thing. Each pass gets you about 75cm of progress.
Once you get the first path done it is much easier. In my case I had a kid walk the path with a shovel and pull down a foot or two of snow. Then the blower throws that out of the drive. Relatively easy.
All in all I spent about 6 hours yesterday and today removing snow.
Duncan v. Bonta
You got to love the lie of omission. It won’t work with Judge Benitez but they still had to try. The state of California wrote a letter to Judge Benitez telling him of the decision in the 11th circuit court (Florida way) where the three judge panel found that Florida’s ban on 18-20yo owning a class of firearms is constitutional.
The decision was so egregious that the plaintiffs(good guys) didn’t even have to request an en banc hearing. At least one judge on the 11th circuit judge went “WTF?” and held the opinion pending a decision of the 11th Circuit court as a whole on whether to hear the case en banc to give an opinion.
The state just left out that part where it was found so egregious that the 11th circuit stayed their own opinion.
Koons v. Reynolds
Judge Bumb is not somebody you want to mess with. While the case was brought by plaintiffs(good guys) Koons et all against Reynolds in his official capacity for the state of NJ the Senate and the General Assembly wanted to get their arguments in as well.
They applied to become “Intervenors” which just means they want official recognition from the court to lawyer stuff such as give oral arguments. It isn’t clear to me when they were allowed to join as Intervenors but they are.
When Judge Bumb was threatened with with the state appealing to the Third Circuit court on March 8th if she doesn’t rule on the preliminary injunction in a timely basis she slapped them down and set the date for oral arguments for the March 17, 2023 at 10am.
There is this back and forth going on where the state wants more time to get the historical and traditional laws in front of the court while the court is telling them “The legislature said they had those laws at hand before the passed the law, what gives?” So the state wants to slow walk some parts and “get it done right now!” on the other hand. I think it depends on if they think they are going to have the law stayed or not.
Well the intervenors wrote to the Court telling her that one of the attorneys was in Florida and wouldn’t be back by the 17th and could they please attend virtually. A bit later the other lawyer for the intervenors wrote to the court asking for a ruling.
Judge Bumb gave them that ruling yesterday:
This matter comes before the Court upon the March 9 and 14, 2023, letters filed by Intervenor’s counsel requesting to present oral argument virtually (ECF Nos. 108 and 111). The request is denied. Any counsel presenting oral argument on Plaintiffs’ Motions for a Preliminary Injunction must appear in person. Counsel not participating in oral argument may observe the proceeding virtually. So Ordered by Chief Judge Renee Marie Bumb on 03/15/2023. (Costigan, Roberta) (Entered: 03/15/2023)
— Docket Koons v Reynolds 1:2022 cv 07564
B.L.U.F. This case covers the challenge to the knee jerk response of NJ to the Bruen opinion. The NJ “Kill Carry” bill follows the lead of NY’s CCIA.
On 2022-12-22 a suite was filed in the district court of New Jersey challenging the bills put into effect after Bruen and after New York’s CCIA. It uses almost the same methods to make it almost impossible for the public to legally carry a firearm.
Using the standard places at random are “sensitive places” where a legal gun owner could be charged and found guilty just for walking on the wrong side of the road with a firearm. To understand just how bad New Jersey firearms law is consider this New Jersey law:
Dum-dum or body armor penetrating bullets. (1) Any person, other than a law enforcement officer or persons engaged in activities pursuant to subsection f. of N.J.S.2C:39-6, who knowingly has in his possession any hollow nose or dum-dum bullet, or (2) any person, other than a collector of firearms or ammunition as curios or relics as defined in Title 18, United States Code, section 921 (a) (13) and has in his possession a valid Collector of Curios and Relics License issued by the Bureau of Alcohol, Tobacco and Firearms, who knowingly has in his possession any body armor breaching or penetrating ammunition, which means: (a) ammunition primarily designed for use in a handgun, and (b) which is comprised of a bullet whose core or jacket, if the jacket is thicker than.025 of an inch, is made of tungsten carbide, or hard bronze, or other material which is harder than a rating of 72 or greater on the Rockwell B. Hardness Scale, and (c) is therefore capable of breaching or penetrating body armor, is guilty of a crime of the fourth degree. For purposes of this section, a collector may possess not more than three examples of each distinctive variation of the ammunition described above. A distinctive variation includes a different head stamp, composition, design, or color.
— https://law.justia.com/codes/new-jersey/2009/title-2c/2c-39/2c-39-3
If you read through the court cases it means that you are not allowed to use JHP rounds in your carry weapon. Yep, you aren’t allowed to use personal defense rounds but the cops are. Those rounds are designed for multiple purposes, one of which is to stop over penetration.
The question
Do subparts 12, 15, 17 and 24 of section 7(a) and subpart 1 of section 7(b) of A4769/S3214 violates the right to bear arms secured by the Second and Fourteenth Amendments?
a publicly owned or leased library or museum; …
a bar or restaurant where alcohol is served, and any other site or facility where alcohol is sold for consumption on the premises; …
a privately or publicly owned and operated entertainment facility within this State, including but not limited to a theater, stadium, museum, arena, racetrack or other place where performances, concerts, exhibits, games or contests are held; … [and]
private property, including but not limited to residential, commercial, industrial, agricultural, institutional or undeveloped property, unless the owner has provided express consent or has posted a sign indicating that it is permissible to carry on the premises a concealed handgun with a valid and lawfully issued permit under N.J.S.2C:58-4, provided that nothing in this paragraph shall be construed to affect the authority to keep or carry a firearm established under subsection e. of N.J.S.2C:39-6[.]
A person, other than a person lawfully carrying a firearm within the authorized scope of an exemption set forth in subsection a., c., or l. of N.J.S.2C:39-6, who is otherwise authorized under the law to carry or transport a firearm shall not do so while in a vehicle in New Jersey, unless the handgun is unloaded and contained in a closed and securely fastened case, gunbox, or locked unloaded in the trunk of the vehicle…
— Id.
In short they are asking if the sensitive places limits and carry in a vehicle are constitutional. Unfortunately this is limiting and the law was likely written with severability in mind so that if one part is ruled unconstitutional the rest of the law will stand.
I got Duncan v. Bonta mixed up with Rupp v. Bonta and wrote about magazine bans in this case when in fact this case is about semi-auto rifle bans.
You can follow the link to read the original. The only changes made were the announcement at the top. Hopefully this is a little easier to read and has fewer errors in it.
B.L.U.F. Final article analyzing the Rupp v. Bonta case currently before Judge Josephine L. Staton, U.S. District Court for the Central District of California. If this case is appealed, it will go up to the Ninth Circuit court, again.
Status of Case
This case was opened, argued in district court, the district court found for the defendants under intermediate scrutiny, the case was then appealed to the Ninth Circuit. The Appellants(good guys) asked that the case be held pending the outcome of Duncan v. Bonta before the en banc Ninth Circuit court. The Ninth Circuit court then told the parties that they felt this case would be impacted by NYSR&PA v. Bruen and “requested” either of the parties to submit a letter asking the case be held pending Bruen. Both parties responded and the case was held until Bruen was decided.
On 2022-06-28 the Ninth Circuit court vacated and remanded the case back to the district. Judge J Bumatay dissenting: For over a decade, our court has improperly interest-balanced our way around the Second Amendment. The Supreme Court has had enough of it. With a clear legal standard now in hand, we should have ordered supplemental briefing to further this case along. …Order Vacating and Remanding P.2 Internal citations omitted.
The case is expected to be heard some time after 2023-05-26. This is not set in stone. The date might move due to other reasons or either party might coincide.
The state is going to have to run a serious calculus on whether to appeal this case. If the district court rules for the plaintiffs then the “assault weapon” ban for the state of California, as currently written into law, is over but the opinion would have no real weight outside of California.
The state could then pass a different “assault weapon” ban and that ban would have to be challenged. This could go on for an extend period of time. As those cases were heard in district courts, those courts that were anti-gun would cite back to this case and then rule the same way.
If the state thinks the Ninth Circuit will rule for them, they know that the plaintiffs will appeal to the Supreme Court and if the Supreme Court grants cert. they will lose and all “assault weapon” bans around the country are gone. If the Supreme Court does not grant cert. then the California “assault weapons” ban will stay in place and the opinion of the Ninth Circuit court regarding the constitutionality of “assault weapon” bans will apply to 15 different districts across 11 states and territories.
This article has being revised. You can read the revision Rupp v. Bonta — Part 3 – Revised. I got Duncan v. Bonta mixed up with Rupp v. Bonta and wrote about magazine bans in this case when in fact this case is about semi-auto rifle bans.
My confusion was increased because sometimes the experts are talking about “assault weapons” and sometimes about number of rounds and it all just got me mixed up.
In addition, I managed to make more than my normal number of wrong and/or missing words plus it looks like my copy and paste lost the first character in some of the quotes.
My apology. The only changes to this article are within this section.
B.L.U.F. Final article analyzing the Rupp v. Bonta case currently before Judge Josephine L. Staton, U.S. District Court for the Central District of California. If this case is appealed, it will go up to the Ninth Circuit court, again.
Status of Case
This case was opened, argued in district court, the district court found for the defendants under intermediate scrutiny, the case was then appealed to the Ninth Circuit. While at the Ninth Circuit the Supreme Court agreed to hear Bruen at which point the plaintiffs(good guys) and defendants(bad guys, state) asked for the case to be held pending Bruen. After Bruen the Ninth Circuit Court vacated and remanded the case back to the district court, where it is now proceeding.
The case is expected to be heard some time after 2023-05-26. This is not set in stone. The date might move due to other reasons or either party might coincide.
The state is going to have to run a series calculus on whether to appeal this case. If the district court rules for the plaintiffs then the magazine ban for the state of California is over, as currently written into law, but the case would have no real weight outside of this case.
The state could then pass a different magazine ban and that ban would have to be challenged. This could go on for an extend period of time. As those cases were heard in district courts, those courts that were anti-gun would cite back to this case and then rule the same way.
If the state thinks the Ninth Circuit will rule for them, they know that the plaintiffs will appeal to the Supreme Court and if the Supreme Court grants cert. they will lose and all magazine bans around the country are gone. If the Supreme Court does not grant cert. then the magazine ban will stay in place and will apply to 15 different districts across 11 different states and territories.
B.L.U.F. The 2008 Heller case was a huge win for us. Yet somehow it didn’t result in the changes in infringements we expected. This is one of the cases we lost which was used to keep infringing regulations in place.
In this interlocutory appeal, Leonard Fyock, William Douglas, Scott Hochstetler, David Pearson, Brad Seifers, and Ron Swanson (collectively “Fyock”) challenge an order denying their request to preliminarily enjoin an ordinance recently enacted by the City of Sunnyvale, California (“Sunnyvale”), restricting the possession of “large-capacity magazines”—statutorily defined as a detachable ammunition feeding device capable of accepting more than ten rounds. Fyock claims that Sunnyvale’s ordinance, part of a ballot measure known as Measure C, violates his Second Amendment right to keep and bear arms and will irreparably harm him if not immediately enjoined.
— Fyock v. Sunnyvale, 779 F. 3d 991 – Court of Appeals, 9th Circuit 2015
Why is this case important?
This case is important because this is one of the circuit level cases cited in multiple Second Amendment cases to support the use of intermediate scrutiny. The other commonly cited case is Kolbe v Hogan which was decided in the 4th circuit court.
These two cases came post Heller. As discussed multiple times in previous articles, when a case is decided that puts the brakes on for some sort of infringement, the infringers read through those opinions with a fine tooth comb looking for something to hang their infringements on.
Prior to Heller cases were heard and dismissed for lack of standing. Those same cases, post Heller came back through the courts and the state had new arguments to support their infringements that fit within the framework set out in Heller.
We’ve all had this type of argument. They say something you disagree with. You counter with your argument. They bring up supporting evidence and you counter. You win because you have a better grasp of the facts and reality. They immediately tell you that they didn’t have the position they had because of the reasons they just argued unsuccessfully with you, no it is this other reason.
I’m a numbers guy. My brain hears numbers and they just make sense. When we were dissolving a LLC the other people in the LLC were buying us out. They offered a sum. They justified it with a set of numbers. I pointed out their numbers were bogus. At the next arbitration they offered exactly the same sum but with an entirely different set of justification numbers.
Those were just as bogus. I shot them down. At the next arbitration they offered the same amount yet again with still a third set of numbers to justify. I showed how those numbers were bogus as well. I then asked “All you have for the buy out is that sum, right?” They looked at each other and nodded.
“Ok, then stop trying to justify that offer with bogus numbers. It is what you have and there isn’t any more.”
Sometimes these court cases feel like that. The state has but a single position and they will argue that position a dozen different ways, all as bogus as the last.
LCM in Sunnyvale California
After Heller the states didn’t have the same knee jerk reaction at the legislative level that they did after Bruen, instead the issues were fought in court. In court the state through plate after plate of spaghetti at the wall to see what would stick. As soon as one piece stuck, the rest of the infringing states incorporated that argument into their own building up case law to the point where the Heller opinion had been all but neutered.
Fyock v. Sunnyvale came about because the city of Sunnyvale decided to “do something” and passed an ordinance banning Large Capacity Magazines.
The history of LCM bans in California started with the federal “Crime Control Act” of 1994. Part of the CCA was the AWB. There was also a LCM ban as part of that. In 2000 California put into place a ban on the manufacture, sale, purchase, transfer, and receipt of LCMs. They did not ban the possession of LCMs.
They didn’t feel the need to for some reason.
In 2004, the CCA sunset ending the federal AWB and LCM ban.
The state and the Ninth Circus court declared that this created a “loophole” where people in California could possess LCMs even if they couldn’t get new ones.
In 2013, the city of Sunnyvale had a citizen driven initiative on the ballot to ban the possession of LCMs. It passed.
