B.L.U.F. We previously wrote about how a single judge wrote a few terrible opinions. We now look at how he is using those same arguments in current cases, post Bruen.

More History

In 2019, the Seventh Circuit heard the case of Wilson v. Cook County, 937 F.3d 1028 (7th Cir. 2019). This was a case filed by Matthew Wilson challenging Cook County’s AW/LCM ban. Matt had been filing challenges since 2009.

None of his challenges got anywhere.

In the same vain, he lost at the district level as well but appealed to the Seventh Circuit court. There it was heard on April 4, 2019, and the court issued their opinion on August 29, 2019.

Here the Seventh Circuit Court says, “Hey, nothing has really changed, we are going to stick with what we ruled last time.”

As part of their analysis, they show that they have fully adopted the two-step shuffle of means-end.

Internal citations removed. The Court is quoting themselves, where they described how they were going to decide the constitutionality of a regulation. This is where they explicitly say to use means-end. Figure out how much Mrs. Jones was raped, and then decide if it really needs to stop, or not.

The case they are citing to is: Rhonda Ezell V. City of Chicago, 651 F.3d 684 (court.appeals 2011)

After the Court affirmed the District Court’s dismissal, they appealed to the Supreme Court. This was one of the cases in which the Second Amendment had strong hopes that the Supreme Court would hear the case and slap down the inferior courts.

The Petition for writ of Certiorari was filed in November 2019. It was distributed for Conference on March 6, May 1, May 15, May 21, May 28, Jun 4, and Jun 11. On Jun 15, 2020, the petition was denied with no opinion issued.

What this meant was that Friedman v. City of Highland Park, Illinois, 784 F. 3d 406 (Court of Appeals, 7th Circuit 2015) as confirmed by Wilson v. Cook County, 937 F. 3d 1028 (Court of Appeals, 7th Circuit 2019) was good law in the Seventh Circuit Court and those cases could be cited favorably by the infringers throughout the country.

The Present

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Back in December 2022, I posted NY CCIA challenge at SCOTUS. The GOA challenged the Second Circuit Court’s stay regarding an injunction from Judge Suddaby.

Judge Suddaby enjoined the state from enforcing parts of the CCIA. The state ran to the Second Circuit Court, which heard the request for an emergency stay on an expedited schedule. Of course, the Second Circuit issued the stay.

The stay was just a single sentence, it was not particularly enlightening as to why the stay was granted.

GOA then took the stay to SCOTUS, alleging that the Second Circuit Court had not given them anything to argue and requesting that SCOTUS vacate the Second Circuit Court’s stay. Justice Sotoymyer did something that shocked me. She told the state to file an argument with her within the week, over Christmas.

In early January, SCOTUS denied overturning the stay, but in an unusual turn of events, Justice Alito(?) and Justice Thomas issued a concurring opinion. In that opinion, they said that the reason they believed the court denied the motion was for procedural reasons.

In the state’s filings, they claimed that the case was on an expedited schedule for the appeal to be heard. This was false. Only the request for the stay was expedited. Alito and Thomas said that if the Second Circuit Court didn’t hear the case and provide good justification for the stay, that GOA should come back to SCOTUS.

This put the Second Circuit Court on notice that they could not just let the case sit there for an extended length of time. Oral arguments were heard by the Second Circuit Court on March 20th, 2023.

We are waiting for the results of that hearing.

GOOD NEWS

Over in the Seventh Circuit Court, they are hearing Robert Bevis v. City of Naperville, 23-1353, (7th Cir.) which is the City of Naperville’s AWB/LCM ban.

The Seventh Circuit denied the plaintiffs (good guys) Motion for Injunction Pending Appeal Mot. for Inj. Pending Appeal, Robert Bevis v. City of Naperville, No. 23-1353 (7th Cir. Mar. 7, 2023), ECF No. 8.

Following in the steps of the Second Circuit Court, their order is well-thought-out and extensive:

Unhappy with this result, the National Association for Gun Rights; Robert C. Bevis; and Law Weapons, Inc. filed an Emergency Application for Injunction Pending Appellate Review.

They are asking the Supreme Court to grant an injunction pending the Seventh Circuit Court issuing an opinion on the appeal.

And here is the great news:

The Supreme Court is watching these gun control cases moving forward. Maybe this is a chance for them to tell the inferior courts to “do the right thing”.

In Chevron v. Natural Resources Defense Council I discussed a little about Chevron deference. This is the case law that allows the federal government to say “We are the experts, our interpretation of the law is always correct.”

I am not qualified to know whether the original decision was a good decision or not, I believe it was not. Regardless, it has been abused for decades at this point.

Today, the Supreme Court granted certiorari in Loper Bright Enterprises, Inc v. Gina Raimondo, 21-5166 (D.C. Cir. 2022). This case has nothing to do with the Second Amendment directly, but it holds a great deal of potential for reigning in the ATF and other federal agencies.

The gist of the case is that congress passed the Magnuson-Stevens Act (MSA) in 1976. The MSA extended the regulatory reach of the “National Marine Fisheries Service”. It was passed to to conserve and manage the fishery resources…of the United States — 16 U.S.C. § 1801 (b)(1).

This is the law that is designed to stop overfishing of territorial waters of the US.

In September 2018, the NMFS submitted the Omnibus Amendment to the Service. This opened a commenting period. The commenting period ended and the Omnibus Amendment to the Service was approved. The Final Rule was published in February 2020.

Sort of like the ATF did bump stocks and pistol braces. They publish the proposed rule. Open for comments, then do whatever they wanted to do in the first place.

At issue in the Omnibus Amendment is that the NMFS decided that they were going to make the fishing boats pay to have an inspector on board and to force the fishing boats to accept an inspector. Space is at a premium aboard ships, so having a deadhead onboard worsens it for everyone. In addition, the government man isn’t actually doing any work. All he does is run his clipboard looking for ways to ding the boat.

This inspector is paid a percentage of the value of the catch.

In other words, the government gets to force a fishing boat to take an inspector onboard and the fishing boat has the pleasure of paying that inspector to eat their food, take up space, and in general to be a government busybody.

The Question

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B.L.U.F. I need another image with a cheerleader for courts that get it right. After fighting my way through the monstrosity from yesterday, this Memorandum and Order is great news for the Second Amendment community. This is (hopefully?) a short article, I might write something longer about our win in the future.

My wife read yesterday’s article and was upset about the Court’s opinion Herrera v. Raoul Illinois AWB/LCM ban. Later in the day, I was watching Guns and Gadgets on YouTube talking about Barnett v Raoul and she got the cases mixed up. Understandable.

What I told her was that in Barnett v. Raoul the state was going to appeal, and it would make its way to the Seventh Circuit court. I predict that all of these cases from the district level will be consolidated. This case is already a consolidation of four cases.

I was right. The stated did file for an appeal the same day the order came down and has also filed a motion for this Court to stay the injunction pending appeal.

The state argues that since this court didn’t go along with the other court’s opinion, that this court should stay its injunction. “For consistency”, don’t you know. The state is also claiming that since the Seventh Circuit did not choose to grant a preliminary injunction in those other cases, this court is going against the wishes of the Seventh Circuit.

I hope that his court stands its ground and makes the state get an injunction from the Circuit Court of Appeals.

The question

Are assault weapons band and large capacity magazine bans constitutional?

Conclusion

No.

Ok, maybe a bit more

Definition of Protected Arm under The Second Amendment

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B.L.U.F. The Court found that the country has a history and tradition from pre-founding through the modern day of banning dangerous weapons.

The plaintiffs (good guys) have requested a Temporary and Preliminary Injunction to enjoy the state from enforcing the Illinois assault weapon ban as well as the large capacity magazine bans. This is a Second Amendment Challenge

The Court’s statement regarding the factual background

The factual background is whatever the Court decides it is. This is part of the task of a Judge. They decide what the facts of the case are when there is no jury involved. We can learn significant information about the leaning of the Court just from their statement of facts.

Here the Court gives its first glimpse of their bias via the implied facts. “[W]idespread mass shootings nationally” is certainly a loaded phrase. It has the implied fact that there are widespread mass shootings. A fact that is not in evidence.

They move on to give a pretty standard definition of “assault weapon” to include many semi-automatic rifles. It is important to note that this is a ban on possessing an assault weapon as well. The exception being that you have to register the firearm with an “endorsement affidavit”. The same affidavit is required for all LCMs.

The court points out that the new ban is no big deal because the county and city have had bans since 2006 and 2013. No big deal to have the state do it too.

The Question

Is the plaintiff’s right to self-defense threatened by his inability to keep his rifle and pistol and magazines in his home?
Is the “endorsement affidavit” a forced registration, threatening his right to keep and bear arms?

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B.L.U.F. Why the Sixth Circuit Court found that the bump stock ban is not constitutional.

This was not a Second Amendment challenge to the rule. Instead, it was an Article I, Section 1 challenge.

The ATF is not a part of the Congress, but is instead a part of the Executive branch. The Executive branch is charged with enforcing laws, not in creating laws.

Given this challenge, Bruen plays no part in the decision except that it indicates that the Supreme Court is serious about Second Amendment protected rights.

The Question

Is the ATF’s interpretation of 18 U.S.C § 922(o)(1) which incorporates 26 U.S.C. § 5845(b) Constitutional?

§ 922 is the Gun Control Act. This is where it says it shall be unlawful for any person to transfer or possess a machinegun. — §922(o)(1). That definition of a machinegun is what is at issue:

Is it a machinegun?

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B.L.U.F. — Judge Rudolph Contreras believes that banning magazines with more than some magic number is constitutional. This leads to another WTF post analysis of a Judge’s opinion.

The Question

Is D.C.’s LCM ban Constitutional?

The ban basically says that it is illegal to possess, sell, or transfer — D.C. Code § 7-2506.01(b) a magazine that holds more than 10 rounds. The exception is for tube feed .22 caliber magazines.

Background

This duffus had to go out and find another judge who is just as ignorant as he is in order to make a statement as stupid as saying that attaching a “large capacity magazine” to a handgun makes it into a semiautomatic.

He is quoting the memorandum and opinion out of the District Court of Rhode Island. He had this to say about an “LCM” challenge.

Judge John J. McConnell, Jr, chief judge of the District Court of Rhode Island

The Supreme Court has not said anything about magazines being arms, which is what allows this level of disingenuous reasoning. Regardless, reading the Ocean State Tactical opinion was an exercise in self-control. Breaking monitors does not do any good. As Mark Smith said in a video the other day, when the Judge is a Firearms person, it shows. In the same way, when a Judge is ignorant of even the most basic aspects of a firearm, we get hurt.

It is easy to tell when the state is lying when you have personal knowledge of the subject, it is harder when you are trying to figure out whose experts to trust.

Standing

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