B.L.U.F.
Another day, another rogue inferior court scratching for anything that allows them to upload an infringement.

This time it is a CO law requiring a waiting period before taking possession of a legally purchased firearm. The mental gymnastics this Jimmy Carter appointee goes through would make Mary Lou Retton jealous.
(1250 words)

The court profoundly erred in their reading of Heller and Bruen. The first step is to determine if the conduct proposed implicates the plain text of the Second Amendment.

To “have weapons” is the conduct that the plaintiffs (good guys) wish to do. To refute this frivolous argument on the part of this inferior, rogue court, all one needs to do is extend the waiting period from 3 days to 3 years.

Would a waiting period of three years implicate the Second Amendment’s protected right of “keeping”, “possession” or “having” arms? Yes, it would.

Thus, the conduct implicates the plain text of the Second Amendment.

Once the Second Amendment is implicated, the conduct is presumptively constitutional and the modern-day regulation is presumptively unconstitutional and should be vacated.

One of the things we keep discussing is the fight to keep Second Amendment challenges in the legal realm. There is no need for history professors or experts in what the founding fathers wanted or thought. All that is required is an examination of the regulations of the time.

The Government merely needs to bring regulations from the founding era that are a match for the state’s modern regulations to the attention of the court. If they can do that, they will win.

Today, I might have to order a firearm from my LGS. I might have to wait for it to arrive. Or I can choose from something in stock and walk home with it. Professors Spitzer and Roth gave their expert opinion that a three-day waiting period was to be expected in the founding era because people couldn’t just buy the firearm they wanted.

This is irrelevant. If I want a Serbu BFG-50, it will have to wait for it to be made. It will take a few weeks. So what? I can still buy other firearms right now if I wanted it.

This is why the battle of the “experts” is not allowed under Heller and Bruen.

The judge then says that all the case law showing that acquiring a firearm is protected by the Second Amendment is no longer good case law. “Because they happened before Bruen and didn’t examine the plain text”. Of course, he fails to note that the actual methodology was put in place with Heller in 2008, so all those cases after 2008 are good case law IF they followed Heller. I.e., didn’t use means-end.

This judge should be impeached. The Supreme Court ordered the inferior courts to look first at the plain text of the Second Amendment. If the conduct implicated the Second Amendment, the state had the burden to bring forth a history and tradition of regulations that are analogous to the modern regulations.

First, he says that purchasing a firearm doesn’t implicate the plain text of the Second Amendment. Then he says that since the state can’t show a history of regulations requiring waiting-periods, he is going to look for a tradition of waiting periods.

This means that there wasn’t a founding era regulation for waiting periods. The fact that society, as a whole, didn’t have the same level of instant gratification as today, doesn’t mean that waiting periods can be forced today.

The judge relies on the Spitzer declaration of laws from 1623, 1631, 1632, 1655, 1868, 1878, 1883, 1879, 1888, and 1893 regulating possession of firearms by intoxicated purposes to justify a waiting period. Please note the era that is missing from that list of dates. That’s right, nothing from the founding era.

Because this is a request for a preliminary injunction, the Winter factors are being analyzed. That is to say, the likelihood of success on the merits, irreparable harm, balance of equity, and public interest. If the challenge involves the deprivation of a core civil right, irreparable harm is done. If the court finds that it doesn’t involve a core civil right, they can use other means to decide on the level of harm.

In the same way, once the court decides the constitution doesn’t apply, they can balance the equities in favor of the state and use “good enough reasons” to determine the public interest.

(1100 words)

The very first thing to note is that Mr. Rahimi isn’t actually involved with this case. He was recently interviewed in prison, where he claims to be “reformed”. He says that he will never touch another gun and wishes the case would just go away.

With that out of the way, the takeaway from today’s oral arguments is that everybody is playing on a bigger chessboard than just this case.

§922 is the unlawful acts portion of the Gun Control Act. (I wonder if “gun control” implicates the Second Amendment?)

This case is about §922(g)(8), a person with a restraining order for domestic violence being a prohibited person. According to Mark Smith, only about 21 convictions per year are made on §922(g)(8). This means that this is not an arrow in the quiver of the state. This is a tack they place on the chair of somebody they have already kitted up.

Rahimi was charged with §922(g)(8) because he was a bad man doing bad things and the authorities needed him off the streets now. He is currently in prison for all the other things he did. If this charge were thrown out, it would not change his situation in the least.

It is also important to note that this case was brought back from the dead by the Fifth Circuit court. Just before Bruen was issued, they had found, via means-end, that §922(g)(8) was constitutional, and the charge would stand against Mr. Rahimi.

After Bruen, the Fifth Circuit court brought the case back. On the post Bruen pass through the Circuit Court, they found that §922(g)(8) was unconstitutional. I do not remember if they remanded the case back to the district court. Regardless, we had a circuit court opinion that followed Bruen and found that parts of the GCA were unconstitutional.

At the same time, the Range case is currently seeking certiorari. That case is likely to be taken up by the Supreme Court as well. If the Supreme Court grants certiorari on the Range case, it will mean that there would be three gun rights cases to be heard by the Supreme Court within the next year, maybe even this term.

What this means, is that the Rahimi case is a holding action by the state, DOJ. They would love a win. The facts of Rahimi are bad. Mr. Rahimi was a bad man doing bad things.

Therefore, the briefs and oral arguments today, were about setting the groundwork for the cases to come without losing this case.

What does the state want out of this?

Thank you to Justice Kagan for getting the state to actually say it out loud:

There you have it, the state wants to gut Bruen. First, they want the lack of a regulation to indicate that the current regulation is constitutional. This flips the issue on its head. The plaintiff would then have to prove that the lack of regulation was because the people of the founding era knew it was unconstitutional.

Likewise, They are unhappy when the nuanced approach is not accepted, and they have to actually find matching regulations, which don’t exist.

And the big one? They want Second Amendment cases to become expert battles. Instead of courts having to do their jobs, to understand the law (regulations), it will become a “Which expert do I want to pick?”

I intend to read the rest of the transcript later today. Hopefully, I’ll have a more complete write-up on the arguments.

B.L.U.F.
A partial analysis of the Seventh Circuit Court’s recent opinion telling the Supreme Court how it should have been done.
(2350 words)

Drawing your attention to the center ring, we hear Judge Wood say The ink was barely dry on the pages of the Act when litigation began—ECF No. 32 Rocky Mountain Gun Owners v. Polis, No. 1:23-cv-02563, slip op. at 13 (D. Colo.) Wow, what sarcasm. Judge Wood, the only reason they waited until then was because they weren’t allowed to file before that moment. Your sarcasm is poor.

When courts are doing serious work, they speak and write in a serious manner. Once the suit was filed and landed in
Judge Kendall’s court …—id. at 15 is not a serious statement. The case was assigned to Judge Kendall’s court. Judge Wood continues in the same way.

A more correct way of saying it would have been “The plaintiffs filed a motion for preliminary injunction.”
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B.L.U.F.
The Seventh Circuit court has decided that English is not their strong point, nor is logic, nor is following the Supreme Court’s orders. Short version. More to come.
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The Seventh Circuit court has gone rogue, again. Bruen tells us that the first step is to show that the conduct that is being restricted implicates the Second Amendment.

The Seventh Circuit says that it does. They say that in the very fact that they are discussing the Second Amendment, Heller and Bruen.

From there, the next question to ask is, “Is this a ban of a particular type of arm?” Yes, it is. They are regulating “assault weapons”.

If the modern-day regulation is a ban, the Heller court has completed the second step of the analysis: Is there a history and tradition of regulating arms in common use today?

The Supreme Court said that there is no history and tradition of banning arms in common use today.

They then explained that for an arm to be outside the protections of the Second Amendment, it must be both unusually dangerous and uncommon. In Caetano the Supreme Court set the threshold of “in common use” at two-hundred thousand.

If the more than two-hundred thousand items of that type of arm are in common use for lawful purposes, the modern regulation is unconstitutional.

There is no “military use” criteria. To use their wild example, the Davy Crockett weapon system is not in common use. There were not two-hundred thousand of them made. Not even that many warheads.

The Seventh Circuit has gone rogue because they arbitrarily decided that certain arms aren’t protected by the Second Amendment because the legislators said they weren’t.

(625 words)
This is another case where the state wants 18, 19, and 20-year-olds to be excluded from The People for Second Amendment purposes, while still treating them as full on adults for other government needs.

I’m not digging through this one, these two paragraphs give us the gist of the appeal.

First, the Appellees (good guys) don’t need to submit any expert reports regarding history and tradition. That is the state’s burden. Nor do they have to “prove” that 18-20 year-olds do or do not “comprise the most dangerous and homicidal age group”.

If they were going to look at who comprises the most dangerous and homicidal groups, you would be hard-pressed not to focus on “the 6% or so that commit more than 50% of all violent crime. Of course, that would be “racist!”

This means that Professor Donahue’s expert opinion as expressed in his report is meaningless. Means-end analysis is not allowed. see —District of Columbia v. Heller, 467 U.S. 837, 2792 (2008) and —Order Rocky Mountain Gun Owners v. Polis, No. 1:23-cv-02563.

This means that the state rests their entire argument on the report by Saul Cornell, Ph.D.

It is important to note that Saul is not a lawyer. Why is this significant? Because they are not arguing about facts, they are arguing about the law. If they are arguing about the law and what it means, then you must be admitted as an attorney.

When a normal person writes a brief and submits it as an amicus curiae, they do it through counsel. The state didn’t do that. Instead, they brought this guy in as an “expert”.

I can’t locate his declaration, the appendix they reference is not in ECF and I can’t find it in the original case.

On the other hand, I spent a few painful hours, about 10 minutes in total, reading and listening to him.

He is well-spoken, the same way Marx’s writings are to the ignorant.

Regardless, his opinion is not an acceptable supporting argument. The state wants this to become a battle of experts. They bring in their experts to say “guns have always been regulated like X” and we bring in our experts that say “no.” but then have to argue against their expert’s opinion.

At the end of an experts battle, the judge picks one set of experts and says, “you win”.

The actual task of evaluating the law is the judge’s duty. That is literally his job. You will find that most judges are perfectly capable of doing it correctly, when it is not a hot topic.

Conclusion

Another case on its way to the appellate court. They are in the process of setting the date for oral arguments.

B.L.U.F.
Multiple states filed an Amicus Brief in the magazine ban out of the District of Columbia. They use the same old arguments. There are a few interesting bits of lawyering, things to pay attention too. All of this is designed to shave the corners of a square peg to get it to fit through the round hole authorized by Heller and upheld by Bruen.
(2350 words)

It gets tiring reading the same tired arguments from people that will not admit that what they want and what is Constitutional are two completely unique things.

Every one of these infringing bastards starts with some version of: The Supreme Court said that some infringements are allowed, this infringement is one of them. I’m just surprised that they haven’t mentioned straightjackets in the first paragraph.

Part of the problem is that the Supreme Court has said that reasonable firearms regulations” can exist within the protections of the Second Amendment.

the States have adopted a variety of restrictions on weapons and accessories that are not in common use for self-defense.—ECF No. 32 Rocky Mountain Gun Owners v. Polis, No. 1:23-cv-02563, slip op. at 13 (D. Colo.) What is this “reasonable firearms regulation”? A complete ban on magazines holding more than ten rounds.

As has been pointed out by multiple sources, the fact that the states can’t decide what the round limit should be, indicates it is arbitrary.

the District’s LCM provision preserves the right of law-abiding, responsible citizens to use firearms for self-defense.—id. at 15 The interesting part of this is that they cite to Heller II. The state claims that parts of Heller II were abrogated by Bruen.

This, of course, means that they get to keep whatever they want.
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(750 words)
They held oral arguments in this case today. It was before a three judge panel. I listened to about 1.5 hours of nearly three hours of arguments.

The state went first, they made some interesting arguments. I need to pay careful attention to the actual arguments because they sounded better than anything I’ve read, so far.

The judges were asking good questions of the state. It wasn’t a case of “tell us what we should rule” but they pushed for real answers to real questions.

One series of questions I remember is the Judges asking, “with this law in place, where can people legally care their firearms?”

The state made an argument that it was ok to ban carry in bars because there will be more people carrying guns and more guns means more accidents. When the judges pushed back regarding the history of banning carry in bars, the state explained that it used to be ok because people use to open carry in bars. If somebody was open carrying and drank too much, the laws disarming people who were drunk could be used.

Since open carry is banned, people can’t tell who is armed and drunk, so nobody can carry now.

As I said, the state lawyer did a good job of lawyering.

The lawyer representing law enforcement, not so much.

He didn’t seem as prepared. He started his arguments around Winter factors. The judges seemed to take pity on him, “Ignore the preliminary injunction, we want to talk about the merits”.

It only took three tries to get him on the right track.

When they got done with the line of questioning on the merits, they dismissed him. He took that as an opportunity to go back to his points.

Somebody must have signalled him because he then said, “oh, my time is up?” The judges politely said “yes” and he left.

I would feel sorry for him if he wasn’t an infringing enemy of The People.

When Rahimi was granted certiorari, I thought about writing my own brief. I didn’t I do not believe I am ready for such a big lift. On the other hand, I read some briefs where I am sure I could have done a better job.

Over in the Seventh Circuit Court of Appeals, they are considering Burnett v. Raoul. The reason I mention this is that one of the big hitters has stepped up to the plate. C.D. “Chuck” Michel is now one of the lawyers representing the plaintiffs (good guys).

When you read his firm’s filings, you learn how it is supposed to be done.

This lawyer for law enforcement that presented today wouldn’t qualify as an intern at Michel & Associates, P.C.

I don’t remember much about the plaintiff’s lawyer’s presentation. My lady was demanding my attention.

Conclusion

We now have cases that are fully briefed in the Second, Third, Fourth, and Seventh Circuit Courts. The first was heard by the Fourth, right after the case was GVRed by the Supreme Court. They will continue to sit on the case until one of their sister infringing courts gives them a ruling they can build on.

The next case was heard by the Second. The Second has the lowest average time from argument to opinion of the circuits. They have been sitting on the case for an extended period of time. I expect them to wait as long as possible.

The Seventh heard their cases, and that three judge panel is so anti-gun and anti gun-rights that I don’t expect an opinion out of them until the Supreme Court pries it out of their greedy hands.

The Ninth has some cases before it. Oral arguments have not been heard. The same with the Eleventh Circuit Court.

This takes us to the Fourth Circuit and today’s oral arguments. I actually believe that this court will issue their opinion before any of the other circuits. It just felt that way when I was listening to their questions.

Listening to Judges and Justices ask questions and attempting to figure out anything is called “reading the tea leaves”. Make sure you don’t say anything solid because reading the tea leaves seldom goes as expected.

Finally, there have been several positive cases out of the Fifth Circuit Court of Appeals. I don’t consider these cases as being useful in striking down bad state laws. There have been no Bruen tantrum response challenges in the Fifth because those states didn’t throw tantrums when the Supreme Court spanked them.

There are a couple of cases that are moving towards the Supreme Court or that are already at the Supreme Court from the Circuit Courts that have not gone rogue. These will go a long way to gutting some of the more egregious parts of federal gun-right infringements, but are unlikely to do anything about gun and magazine bans, nor of sensitive place restrictions.