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.”
Wikipedia: Barbara Milano Keenan (Jun. 2023)

Yes, that type of judge.

The Dissent

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Rocky Mountain Gun Owners v. Polis, rogue Court

Legal Court Dunce
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)

After examining the language of the Second Amendment using the Supreme Court’s analysis in Heller, I find, for the purposes of Plaintiffs’ Motion, that the plain text does not cover the waiting period required by the Act. This conclusion is bolstered by the fact that the Act is a regulation on the commercial sale of firearms and thus is presumptively permissible. However, even if the waiting period implicated the plain text of the Second Amendment, the evidence before me establishes that the Act is consistent with the Nation’s historical tradition of firearm regulation. Plaintiffs, therefore, have not carried their burden to show they are likely to succeed on the merits of their claims.
Wikipedia: Barbara Milano Keenan (Jun. 2023)
I have read, or remember reading, that the Supreme Court has issued an opinion on acquiring, purchasing, or selling firearms. It might have had to do with ammunition as well. If anybody can give me a citation to case law regarding acquiring firearms or ammunition by The People, I would greatly appreciate it.
From this reading of the plain text, it is clear the relevant conduct impacted by the waiting period—the receipt of a paid-for firearm without delay—is not covered. Still, Plaintiffs attempt to equate the words “obtain” and “possess.” Reply in Supp. of Mot. for Prelim. Inj., ECF No. 21 at 11 (“The Second Amendment’s plain text applies to ‘an individual’s conduct’ of obtaining a firearm. See Bruen, 142 S. Ct. at 2134 (‘[T]he “textual elements” of the Second Amendment’s operative clause—“the right of the people to keep and bear Arms, shall not be infringed”—guarantee[s] the individual right to possess and carry weapons in case of confrontation.’) (emphasis added, cleaned up).”). But these terms are not equivalent. To “keep,” under the definitions provided in Heller, meant to retain an object one already possessed. It did not mean to receive a newly paid-for item, and it certainly did not mean to receive that item without delay. Likewise, “hav[ing] weapons” indicates the weapons are already in one’s possession, not that one is receiving them.
Maryland Shall Issue, Inc. V. Wes Moore, No. 21-2017, slip op. at 22 (4th Cir. Nov. 21, 2023)

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.

We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”

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.

Because, as the parties agree, no law requiring a waiting period was enacted in the United States until 1923, I must consider “whether ‘historical precedent’ from before, during, and even after the founding evinces a comparable tradition of regulation.” Bruen, 142 S. Ct. at 2131-32 (quoting Heller, 554 U.S. at 631). Bruen explained this inquiry as follows:
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, n. 9 (U.S. 2022) 0 is an unknown locator

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.

Since the Waiting-Period Law is a “modern regulation[] that w[as] unimaginable at the founding,” I must reason by analogy and “determin[e] whether a historical regulation is a proper analogue” for, or “relevantly similar” to, the Act. Bruen, 142 S. Ct. at 2133. In doing so, I focus on “how and why the regulations burden a law-abiding citizen’s right to armed self-defense,” and look for a “historical analogue”—not a “twin.” Id. The Governor and Professor Spitzer point to two types of historical analogues: laws involving intoxicated persons and licensing regimes.

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.


Rules For Appellate Procedure (U.S.)
Minneapolis Star & Tribune Co. V. Minnesota Commissioner of Revenue, 75 L. Ed. 2d 295 (1983)
Staples V. United States, 128 L. Ed. 2d 608 (1994)
District of Columbia v. Heller, 467 U.S. 837 (2008)
Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010)
Kolbe v. Hogan, 849 F. 3d 114 (4th Cir. 2017)
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
Maryland Shall Issue, Inc. V. Wes Moore, No. 21-2017 (4th Cir. Nov. 21, 2023)
The Constitution of the United States: A Transcription, National Archives, (last visited Jun. 25, 2023)
Wikipedia: Barbara Milano Keenan (Jun. 2023)

An Apology

I’m sorry about the quality of this morning’s post. I read it this morning and was, “Did I write this piece of bleep?”

When I started reading the opinion of the Seventh Circuit Court, I was not expecting anything in favor of The People or the Second Amendment. I remember the oral arguments.

What I remember about the oral arguments was the level of disrespect the panel showed to the plaintiffs. How the snark came through in their questions, how belittling they were to the plaintiffs. I remember listening to them attempting to turn semi-automatic rifles into machine guns.

Every excuse I read in their opinion was making me more and more upset. An AR-15 is not a machine gun. It cannot be readily converted to a machine gun. If that were the case, the ATF would have already done it. Any claim that an AR-15 can be banned because it is readily convertible to an M-16 is garbage.

The court is supposed to follow the instructions of their superior court. In this case, the Supreme Court. The Supreme Court has instructed them on how to process motions and appeals regarding preliminary injunctions and TROs. The very first step is always, always, to look at the merits.

That means they have to look at the merits. They have to do the analysis. They have to do the work. They did not.

My ranker kept growing. In the end, I did not do a professional job of analysis. I’m sorry. I will attempt to do better in the future.

Seventh Circus Twister Game

Legal Court Dunce
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 beganWikipedia: Barbara Milano Keenan (Jun. 2023) 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 …
Maryland Shall Issue, Inc. V. Wes Moore, No. 21-2017, slip op. at 22 (4th Cir. Nov. 21, 2023) 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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Duncan v. Bonta, stayed pending Appeal

The Judge Said What?
B.L.U.F. The Ninth Circus court issues a stay pending appeal in the California magazine ban.

(1200 words)

I have written reams of electronic paper talking about how the court system “works”. At the top is the Supreme Court. The first level of Article III inferior courts is the Circuit Court of Appeals. The next level down is the Federal District Courts.

I have written about case law. Case law is set by superior courts. The Supreme Court sets the case law. The Circuit Courts then interpret that case law, setting case law for their circuit in turn. The District Courts then apply the law as interpreted by the Circuit Court case law.

If there is no case law within a circuit, then case law established by other circuits can be cited. You can cite to other circuits. If there is a consensus among the other circuits, that is a good place for to start.

Today, the Ninth Circus Court of Appeals issued a stay in —Wikipedia: Barbara Milano Keenan (Jun. 2023). They decided, over the vigorous dissent of four judges, that they were not going to actually do their jobs, again.
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Brumback v. Ferguson (E.D. Wash., 22-cv-03093)

The Judge Said What?
A gag inducing opinion from a rogue court.
(2900 words)

Who is Dimke

Dimke graduated from Pepperdine University in 1999 before entering Vanderbilt University School of Law, where she graduated with a J.D. in 2002. From there she went to clerk for Alan B. Johnson, a Reagan appointee. Likely because he did his undergraduate work at Vanderbilt. From there, she moved on to clerk for Richard C. Tallman on the Ninth Circuit.

Tallman is a Bill Clinton appointee. His professional career starts in the government. He was a DoJ lawyer and then Assistant United States Attorney in Seattle. From there, he went into private practice, focusing on white-collar criminal defense.

According to Wikipedia, his notable opinion was:

Bull v. City and County of San Francisco, August 22, 2008. Tallman dissented on the issue of whether San Francisco jails could strip search those detained for minor, non-violent offenses, contending that they should be able to do so due to security needs: “When people are dying as a result of our errant jurisprudence, it is time to correct the course of our law.”

After clerking for Tallman, Dimke became a DoJ Trial Attorney, then an Assistant U.S. Attorney. From 2012 through 2016 she was the Assistant U.S. Attorney for the Eastern District of Washington.

In 2021, Biden nominated her as a Judge for the Eastern District of Washington.

This is a person who has spent her entire career working for the government. As a government lawyer, she gets to choose what cases she prosecutes. If she doesn’t think she can win in court, she can plead the charges down or get some other “win” without having to go to trial.

Her job for all those years was to get wins for the state.

Steps To a Win

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The Games People Play, Duncan v. Bonta (9th Cir., 23-55805)

On September 22nd, Judge Benitez entered his decisions, finding that California’s ban on magazines was unconstitutional. Later that afternoon, the state gave notice of its appeal to the Ninth Circuit. On October 2nd, the temporary stay issued by Judge Benitez will expire. If the Ninth Circuit does not issue a stay before then, California will have its second freedom week in four years.

If there is such a tight schedule, why did the state delay until Tuesday the 26th to file for an Emergency Stay?
(1800 words)

The state is arguing that they need the stay because having magazines “flood into the state” will cause death in the street and more mass shootings. Emotional blackmail.

What is their reason for an appeal?

The district court’s application of the standard announced in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), is deeply flawed, and the Attorney General is likely to succeed on the merits of his appeal. Since Bruen, ten other federal district courts have considered Second Amendment challenges to similar restrictions on large-capacity magazines. All but one of those courts has rejected the challenge (or found it unlikely to succeed), concluding that the text of the Second Amendment does not protect the plaintiff’s conduct, or that the challenged law is consistent with the Nation’s historical tradition of firearm regulation, or both. See infra pp. 10-12. In reaching a different conclusion, the district court here distorted Bruen’s methodology, discounted or ignored relevant historical analogues, and relied on untenable and unsupported premises. At a minimum, this appeal raises serious and substantial legal questions justifying a stay pending appeal.
Wikipedia: Barbara Milano Keenan (Jun. 2023)
I am going to go back to the 2017 case of Duncan v. Becerra because Judge Benitez got it right, but only by ignoring the rules. The Ninth Circuit had precedence saying that Second Amendment challenges were determined by means-end analysis. The Ninth claimed that was the correct reading of Heller. Judge Benitez was in an inferior court. The Ninth Circuit court was his boss. He disobeyed them in granting the injunction.

This is worth reviewing. His analysis was part of the basis of Bruen. He got it right, but when we get upset when the inferior courts fail to follow the Supreme Court’s clear rulings, we should see that this inferior court failed to follow the Ninth’s clear rulings.

Lower courts would rather not be first in any major decision. This is likely why the Fourth and Second Circuit haven’t released their opinions. They would prefer those first cases to come from some other circuit, so they don’t get slapped down.

When arguing a case, the parties want to be able to reach for the highest authority they can. Citing legislation, legislative history, doesn’t work very well. What works is when the party can point to a superior court’s ruling on the legislation.

Some kid says, “I don’t have to identify because the law says I only have to identify if I have been lawfully arrested. I’m not under arrest, I don’t have to ID.” This might be true. It doesn’t mean much. If that same kid points to a district court ruling that says the same thing, that might mean something, but only if that district court oversees this area.

If the circuit court overseeing the area has said the same thing, that holds still more weight.

Strangely enough, a Supreme Court ruling does not. That’s because the Supreme Court’s rulings have to be “interpreted” by the appeals court.
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