B.L.U.F. The argument from the mouths of the oldest group dedicated to removing your right to keep and bear arms.
The Brady Center to Prevent Gun Violence (Brady) is a nonprofit organization dedicated to reducing gun violence through education, research, and legal advocacy. One of Brady’s primary goals is to encourage the implementation of safe designs, distribution, and sales of firearms to reduce gun deaths and injuries, and to protect the rights of governmental bodies to take strong, effective actions to prevent gun violence.
—Amicus Curiae at 1, Brief for Renna v. Rob Bonta, No. 23-55367 (Court of Appeals)
I agree, they do research. It is not clear if that research is good, nor is it clear that the research is unbiased, nor is it clear that they present their research in a balanced manner. I have yet to see a single bit of educational work from Brady that wasn’t about removing firearms from The People.
They do seem to do a whole hell of a lot of legal advocacy. All of it anti-gun, anti-gun rights, anti freedom.
The thing you should take notice of is …and to protect the rights of governmental bodies to…. The government has no rights. You have rights. The states have rights regarding the federal government. The government does not have “rights”. They are allowed certain enumerated powers.
…Both CLIs and MDMs are commonsense safety features that help prevent unintentional discharges of a firearm. The district court erred in preliminarily enjoining California’s requirement that new semi-automatic pistols manufactured or sold in the State contain those features.
—id. at 2
The horrible thing about “commonsense” is that so few people have it. Bubble wrap helps prevent damage. Therefore, it is “commonsense” to wrap everything valuable in bubble wrap? Brady always argues from the point of “just a small inconvenience to get what could be a huge improvement in safety”
The wonderful thing about an opinion running to dozens of pages is that somewhere in all of that verbiage, the opponents of freedom will find a phrase or short grouping of words to turn the entire opinion upside down. Here we find that a small carve out for the NFA being used to justify just about anything, and a short passage in a concurring opinion being used to justify the UHA.
The Supreme Court has soundly rejected the idea that the Second Amendment protects an unfettered right to access “any weapon whatsoever in any manner whatsoever and for whatever purpose.” Bruen, 142 S. Ct. at 2128 (quoting Heller, 554 U.S. at 626). Safety regulations applicable to gun manufacturers and sellers are permissible “laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 2162 (Kavanaugh, J., concurring) (quoting Heller, 554 U.S. at 626-27).
—id. at 3
There are subtle changes in wording that are designed to support that swap: whether the provision at issue regulates conduct—id..
In —Amicus Curiae at 1, Brief for Renna v. Rob Bonta, No. 23-55367 (Court of Appeals) the District Judge issued multiple TROs blocking New Jersey’s Chapter 131 Bruen response bill. She then consolidated the case with Siegel and on May 16, 2023, the court issued a preliminary injunction, blocking parts of Chapter 131. The same day, the District Court issued the preliminary injunction, the state filed for an emergency stay with the 3rd Cir. Court of Appeals. See —id. at 2.
At the end of May, the Siegel plaintiffs (good guys) filed a response with the Circuit Court, explaining why the state should not get a stay. The Third Circuit Court has issued notice that they will be hearing the case on an accelerated basis, but has not (yet?) issued a stay pending appeal.
The gist of the response to the state is that the state didn’t do the appeal correctly and that the state won’t succeed on the merits.
What is the state doing?
New Jersey’s most ambitious argument is that, when the state prohibits the carrying of firearms for self-defense on government property or private property that is held open to the public, those restrictions “fall outside the Second Amendment altogether.” …
—id. at 3
and
Unable to explain why government and private property are not presumptively within the scope of the Second Amendment, New Jersey retreats to a less ambitious argument. Relying on research conducted by its preferred historians—such as Patrick Charles, see Mot.7 (citing Dkt.91 at 28, which cites Charles), whose work is a favorite of Supreme Court dissents, see Bruen, 142 S.Ct. at 2180-98 (Breyer, J., dissenting); McDonald, 561 U.S. at 914 (Breyer, J., dissenting); cf. Rogers v. Grewal, 140 S.Ct. 1865, 1870 n.3 (2020) (Thomas, J., dissenting from denial of certiorari) (noting that scholars had “repudiated” Charles’ analysis), and who recently derided Bruen as creating a “fugazi Second Amendment” that is “historically ruined and fake,” Patrick J. Charles, The Fugazi Second Amendment: Bruen’s Text, History, and Tradition Problem and How to Fix It, 71 Clev. St. L. Rev. 623, 627 (2023)—the state insists that it “amply met its burden to identify historical predecessors for each sensitive place.” Mot.6. The state is exceedingly unlikely to demonstrate that the district court erred in concluding otherwise.
—New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, 2126 (U.S. 2022)
In reading this response, I was struck with how they slammed Patrick J. Charles. And as that is a name that keeps coming up in these cases, I decided to look into his work.
The Supreme Court has ruled that the meaning of an Amendment is locked to the time it was adopted. The People at that moment of time analyzed the end and decided that the means proposed was properly balanced. If The People decide that the original analysis was wrong, they will go through the process of amending the Constitution.
Karen Achoo, the governor of a blue state, requests and gets the Protect Our State (POS) law passed. This declares that dangerous or unusual weapons can be banned, and it is factually obvious that firearms that hold more than two rounds are dangerous and thus are banned.
This bill goes into effect on January 1, 2024. We now game the problem from the view point of the anti-gun side.
Scenario One
The Supreme Court is 6-3 favoring originalism. Judges that will read the law(s) as written and apply the means-end that was done at the time of the adoption of those Amendments. Read More
In talking to my wife this morning, she was telling me how angry she got reading about Judge Easterbrook and Illinois’ continual attack on the Second Amendment. She couldn’t understand why they kept doing what they were doing.
There is no need to delve into the “whys” of it, it is not relevant. The only thing that does matter is that there are people who do not want guns in the hands of The People. With that, the game starts.
History
The starting point is “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
In congress, there were robust arguments about how they could pass a law that was a direct infringement on the right of The People to keep and bear arms. In the end, they decided that the only way that they could limit access to evil guns was by taxing them out of the hands of The People.
Remember, this is at a time when the cost of a silencer was under $10. The cost of the Tax Stamp was $200. It still is $200.
This was not a ban. Anybody with enough money could pay for the tax stamp. Early enforcement was more as an “extra” charge put on a criminal when they were caught with an unregistered NFA item. In numerous instances, if a nominally law-abiding person was found with an unregistered NFA item, they were told to register it and that was the end of their interaction.
Today, the anti-gun people are perfectly happy that a tax has become a de facto ban. The cost of regulations and compliance has raised the cost of legally purchasing a silencer to well over $700. I would love to have a couple of cans. I’d love to have at least one can for my squirrel rifle.
In 1968, the Gun Control Act was passed. Again, this was not an outright ban on anything, it was just the state getting between you and your purchase of a firearm.
Which takes us to:
Modern History
In the late 70s moving into the late 90s, the anti-gun movement really picked up speed. The one gun rights organization was more interested in “Keep and bear arms for hunting and sporting” than in “Shall not be infringed”.
It is difficult to really understand what it means to be a lobbyist. It is a full-time job. Furthermore, it requires you to know people, to know who they are, what they like. To know who controls access to whom, and to be able to spend business hours doing nothing but lobbying.
And when the day is done, you get to do some more. Don’t like golf? Tough, learn to play, learn to play well enough to be a challenge but not so good that you make them look bad.
There were people and organizations that had the money to purchase lobbyists. And they were there in the halls of power pushing congress critters towards more and more infringements.
Out of this, multiple infringing laws were passed. These include the AW/LCM ban and all the state and local bans on carrying.
The Courts
There are three levels of courts we are interested in. The District court is the lowest federal court. They report to their Circuit Court of Appeals. In turn, the Circuit Courts report to the Supreme Court.
The Supreme Court consists of 9 judges. The Circuit courts have at least 9 members and often more.
A District court has a single Judge. They decide the legal questions presented and for all other questions of evidence, a jury is used. The parties can request that the Judge also act as the jury.
The judge decides if the plaintiff(s) have standing. Once that is determined, the case starts moving forward.
The case is documented in the court “docket”. The docket is a record of every official communication between the court and the parties.
Once the case is opened, the defendants will be informed. The defendants then start the process of responding to the accusations. This almost always starts with attacking standing. The goal is to get the case dismissed for procedural reasons.
Here’s the thing, a case dismissed for procedural reasons can be refiled if the procedural error is correct.
This process takes months.
In the simple sequence, the plaintiff (good guys) ask for a Preliminary Injunction with an optional TRO.
The TRO is to stop something from happening until the court can determine if a Preliminary Injunction should be granted. If a preliminary injunction is granted, then that remains in effect until the final opinion is issued. The final order will remove the preliminary injunction and if the plaintiffs win, then a permanent injunction will be put in its place.
The Delay Game
The defendants (bad guys) will often request additional time to brief the case. They will argue about needing more time for experts, and in general, they will drag things out as much as possible. IF there is no injunction against their infringing laws.
If the Preliminary Injunction is requested and the result goes against one party (it almost always will), that party can appeal to the Circuit court for either a Preliminary Injunction, if the District court did not grant it, or a stay, if the District court did grant the injunction.
Cases that are appealed before the final judgement are said to be in an “interlocutory” state. The superior courts do not like to hear appeals of cases that are still in an interlocutory state. They would prefer to wait until all the evidence has been presented and all the arguments and briefs made. The Supreme Court seldom takes up an appeal for a case in interlocutory state.
Regardless, the process of appealing is a great method to create a delay. An appeal to the Circuit court will ask for a stay pending appeal.
So on January 1st, 2020 you file a suit claiming a law infringes on your protected rights.
By the end of January, most of the starting paper work is done, and you’ve moved on to the Preliminary Injunction or Summary Judgement.
The court will schedule arguments. He will give time for the first set of briefings. This seems to be in the 3 to 6 week mark. I’m confident that in more complex cases there is more time given. At the end of that time, there will be time for a response to be filed. About 2 weeks or so, more on larger cases. There is then time for a short response to the response.
There will be time in the schedule for the court to read all the briefings and other submissions. The Oral Arguments will be heard.
At the District level, it seems to take only a couple of weeks before an order is issued.
At this point, you are in late March, mid-April.
Let’s say that the plaintiffs get a preliminary injunction. The state will appeal for an emergency stay from the Circuit court. This request will be evaluated by one judge on the Circuit. Within a few weeks, that temporary stay will be granted.
You are now getting close to May. The Circuit court will then have a three judge administrative panel decide if they will hear the appeal. If they grant the stay on an expedited calendar, that does not mean that there will be an expedited calendar for hearing the appeal.
This was attempted in the Second Circuit court. They granted a stay on an emergency basis. They granted a stay pending the appeal. And then didn’t bother to schedule the appeal. In the normal course of appeals, this could take 6 to 12 months, or more, before the appeal is heard.
During this time, the District case is on hold. There is no reason for them to move forward.
For the first act of the game, you are now into November 2020 when the appeal is heard. After the oral arguments are given, it is going to take months before the circuit court issues the opinion.
Assuming that nobody wants to actually appeal to the Supreme Court, the case is now remanded back to the District court for them to take up where they left off.
You are likely into January 2021 before your case starts moving forward again. In that time frame, massive amounts of papers have been filed by both parties. You might get your case heard by April. The court will then issue its final order a month or more after that.
You are now in it for a year and a half. If the Preliminary Injunction argument is appealed to the Supreme Court, that can take a month or more before they issue their opinion.
And every time a superior court issues an opinion, the inferior court has to start over again. In Duncan v. Bonta, the case was all the way to the Supreme Court. The 9th Cir.’s opinion was vacated, and the case was remanded back to the 9th. There they waited for months before a 3 judge panel decided to vacate the District Court’s order (which was opposite of what the 9th said and what the Supreme Court just vacated.)
The reason for the vacating and remanding is to allow both parties to provide briefs that consider the reason for the case being vacated.
To put this in perspective, we are about 40 days from the one-year anniversary of the Bruen opinion. The current standing is that The People’s ability to get carry permits has gotten better, but the risks in carrying have gone up. Not a single law has been struck down. Not a single case has made its way to the Supreme Court.
Not a single Circuit Court has issued an opinion striking down a weapons ban or a Bruen spasm response bill.
The Seventh Circuit court likely just mooted the need for the Supreme Court to step in on the AW/LCM bans in Illinois.
For the last couple of weeks, I’ve been working with a great group of people at the CourtListener site. They are one of a number of projects that are supported by the Free Law Project.
All of this started because I asked for help uploading a document I had paid for. The project lead helped and asked for an error report. I gave it and in the midst of that asked, “How do you do X?” His reply was geek to geek. “That is a feature people have been asking for. Feel free to write it.”
I did.
Since then, I’ve been contributing little bits and pieces, but that is not the point of this article…
I asked for a simple link I could press to get proper citations. Citations that I can use here. They didn’t have one. Worse, they explained to me how I’m wrong…
It took me a week of being told wrong before somebody actually bothered to say what I was doing wrong. Part of that is because they have their own use cases, and we do not fit into their world view.
Most of the time, what I get is a short screenshot with the YouTuber, maybe giving me a little more context.
If I am a bit luckier, I might get something like this:
From this, I need or want to find the actual case. That should be pretty easy, right? Not so much.
The header on this document indicates that it came from PACER. That is not enough to actually locate this particular document.
To locate this document, you have to find it. The case number, 3:23-cv-00209-SPM, is not unique. I’m not sure what the leading three means. “23” means that this case was filed in 2023. “cv” means that it is a civil case and not a criminal case. It is case “00209” in this court. “SPM” are the initials of the judge hearing the case.
There is not enough information to find the actual case. For that, you need to the actual court, which is under the header. “In the United States District Court for The Southern District of Illinois.” That is a mouth full. You need to look that up in “Table T9 and T12” WTF? Yeah, that is what I said.
The answer is that “Tables” are published in The BlueBook. It is one of those textbooks that every lawyer has. It is also expensive as heck, and the online version is only available as a subscription.
Within those tables, you find that “Southern District” is abbreviated “S.D.” and that “Illinois” is abbreviated as “Ill.”
Thus, you are looking for case 23-cv-00209 in S.D. Ill. in 2023.
Unfortunately, that isn’t a very useful citation. Nobody remembers numbers like that.
If you look that case up, you will find a more formal citation Barnett v. Raoul, 3:23-cv-00209, (S.D. Ill.).
This is a bad citation. It looks good, but it is not. It is not a good citation because legal people don’t cite to cases. Instead, they cite to documents within a case.
A more correct citation to the document I show above would be the following:
Order Mot. for Prelim. Inj. at 5, Barnett v. Raoul, No. 23-cv-00209 (S.D. Ill. Apr. 28, 2023), ECF No. 99
And that would tell a lawyer type person exactly where to find that document. For you, I link to it. There is no reason to make you do the search.
But let’s say you aren’t trying to reference a document from a pending or undecided case, but instead wanted a document from a decided case.
First, lawyer type people don’t really seem to care about the documents filed, they care about the final decision. This is the “Opinion” or “Order” or both.
These are either published or unpublished. If they are published, they are published in a “reporter”. Each reporter has a unique name and a unique abbreviation.
In the lawyering world (sort of like the wizarding world but not nearly as much fun to visit) they might say something like “410 U.S. 113” or, if they are researching from a different source, “98 S. Ct. 705” or even “35 L. Ed. 2d 147”. These all mean the same thing. Roe v. Wade
“U.S.”, “S. Ct.” and “L. Ed. 2d” are reporters. The leading numbers indicate the volume, and the trailing number is the page number which starts the decision.
A citation into this opinion would look something like:
“[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”
— Roe v. Wade, 410 U.S. 113, 117 (1973) quoting Lochner v. New York, 198 U. S. 45, 76 (1905)
To do that citation, I had to find an actual PDF of the opinion from one of the reporters to have good page numbers. Often there are text versions of the opinion with the page numbers stripped off or, worse, with the page numbers not matching the citation. In other words, you might click on 410 U.S. 113 and the site you are visiting my take you to the 98 S.Ct. 705 version. The only differences being the page numbers. And since the reporters can use different font choices, the page numbers might not match with a constant offset.
What all of this means is that I’m working with the people that truly care about doing this correctly. I’ve got a couple of subject-matter experts working with me to figure out the best way to automate the citation process to give the best results.
Meanwhile, I’m trying to figure out if our readers would prefer to see: Order Caleb Barnett v. Kwame Raoul, 23-1825, (7th Cir. May 04, 2023) ECF No. 9 OR Order Barnett v. Raoul (7th Cir.)?
Last year the people of Oregon, by a bare majority, voted in a truck load of infringements. These included permit to purchase, gun registries, magazine bans, and many other Bruen FU’s.
This was Measure 114. The measure was so bad that even the political class didn’t want it to go into effect immediately.
It did.
Having gone into effect, it was challenged. Because it was a direct infringement case the suit was filed in the federal district court of Oregon. In one of the first cases, Oregon Firearms Federation, Inc. v. Brown (2:22-cv-01815) the district court first denied the motion for a TRO and for a Preliminary Injunction.
The plaintiffs(Good Guys) appealed the District Court’s decision to the Ninth Circus court. This appeal was withdrawn by the plaintiffs.
A number of other cases where joined with this as the lead case.
While all of this was going on in the district court, another case was filed in state court. That state court found FOR the plaintiffs(good guys) and enjoined part of Measure 114. The state appealed to the state supreme court which declined to hear the case.
What this means is that all or part of Measure 114 is enjoined from being enforced. It is stopped.
Of course the state can’t have a lose on any infringement.
They decided to “moot” the cases currently in district court. There are things that the legislature can do which will allow them to claim that the dispute before the court no longer exists.
If the cases reference Measure 114 then if it becomes a bill/regulation it might moot. If some of the wording changes, it might moot the cases.
This is exactly what the legislature in Oregon is doing:
SB 348 sets out a procedure to apply for a permit to buy a gun and requires state police to complete a background check before a gun can be sold or transferred to a permit holder, starting July 1, 2024. It also would ban the sale or purchase of magazines holding more than 10 rounds of ammunition, except for use by military or law enforcement officers. The large-capacity ammunition ban would become effective on the date the bill is signed into law if approved.
There are more infringements but they threw in this kicker:
A last-minute amendment to a state gun control bill that largely mimics voter-approved Measure 114 would restrict future legal challenges to the bill to Marion County Circuit Court.
The move is aimed at avoiding so-called “forum shopping,” the practice of pursuing a legal claim in a court that is likely to treat it most favorably.
— Id.
The state calls it “forum shopping” if you are filing the case in your home county. The state isn’t “forum” shopping when they pick the state court where challenges must be filed.
There are a number of things going on in these cases, hopefully we’ll see some good progress soon.
Legal challenges to state gun control bill would be restricted to Marion County, new amendment says
A last-minute amendment that would restrict future legal challenges only to Marion County Circuit Court was added to the Senate Judiciary bill that largely mimics the voter-approved gun control Measure 114.
When looking at Boland v. Bonta, the “Unsafe Handgun Act” out of California, it was nice that the judge “got it right”.
Unfortunately the reasoning that he had in his opinion niggled at me. There was something wrong. It should have been this hard.
Then Mark Smith applied the clue-by-four and it made things obvious.
The UHA is a gun ban. Full Stop.
Consider a law that said “A firearm with a barleycorn front sight is banned” We would instantly recognize that as a gun ban. If it is a gun ban then the plain text of the Second Amendment is touched on and it then the state must prove that there is a history and tradition of regulating classes of guns with particular features.
When the feature was “pistol” then Heller found that a ban was Unconstitutional. The holdings of the Supreme Court have shown that it doesn’t have to be a complete ban, it only has to touch the plain text of the second amendment in order for regulation to be presumptively unconstitutional. It is up to the state to prove history and tradition.
But what if we turned the statement around? What if we said “Any firearm without a barleycorn front sight is banned”. This is still a ban, the state has just inverted the logic from “can’t have” to “must have”. It is a ban. Treat it like a ban in court.
Now if the state chooses to hide that ban inside a bunch of other regulations, it might be harder to see.
For example what if the law said “you can only buy firearms on this list” and “We are only going to put firearms with barleycorn front sights on the list”. It is still a ban, it is just a two step process.
Think of it the same way we think of machine guns. According to the law, machine guns are not banned. You are free to buy them if you can find somebody willing to sell them to you. All you need is to jump through NFA hoops.
But because of the Hughes amendment no NEW machine guns have been added to the transferable NFA list. This has caused the cost/value of machine guns to sky rocket.
I don’t think any gun infringer really wants to be told that the difference between an AR-15 and a M-16 is $75 in parts and an extra hole. Which means that the cost of a machine gun should be about the same as its semi-auto version.
The closing of the NFA registry for machine guns is a ban on machine guns.
The UHA is also a ban. No matter how much lipstick is slapped on that pig, it is still and always will be a gun ban.
B.L.U.F. The argument from the mouths of the oldest group dedicated to removing your right to keep and bear arms.
