B.L.U.F.Matthew Hoover and Kristopher Ervin thumbed their noses at the ATF, daring the ATF to do something. The ATF did, they arrested both of them for multiple counts of conspiracy to sell a “combination of parts” that would convert a gun into a machine gun. Both were found Guilty. They have not been sentenced yet. Having been found guilty, both are asking for the court to acquit them.

Hard cases make good law. There is so much tied up in this case that it is hard to dissect. This might be such a case.

History

Matthew Hoover was a YouTuber who created gun content. I had watched some of his videos, but his content wasn’t of significant interest to me. His content would be recommended to me from time to time. At some point, he started advertising the “Auto Key Card” and it was obvious that he was selling this card.

The “Auto Key Card” was a dimensionally correct etching on a stainless-steel card of a “lighting link.” A lighting link can convert an AR-15 style platform from semi-automatic to full-automatic, i.e. a machine gun.

But what does it do? It is both complicated and simple at the same time.

On the AR-15 platform, when you have charged the rifle, you have cocked the internal hammer. The hammer has a small notch in it called a sear.

When you press the trigger, the arm in front of the trigger rotates down. As it does, it clears the sear on the hammer. The hammer then moves forward to hit the firing pin and fire the weapon.

The bullet flies down the barrel, as it passes the gas port some of the gas is diverted into the gas tube. That gas flows back towards the receiver, where it acts on the bolt carrier to shove the bolt carrier towards the rear of the gun. The bolt carrier pulls the bolt out of the chamber. It also pushes the hammer back down.

This happens so fast that you do not have time to release the trigger. As the bolt carrier is shoved forward by the recoil spring, the hammer rides down the back of the bolt carrier and may or may not drive the firing pin into the next round, firing git.

The disconnector interrupts this process. The hook at the front of the disconnector catches the hook on the back inside the hammer and keeps the hammer from following the bolt forward.

When the trigger is released, the nose comes up and is ready to catch the hammer. As the trigger is released more, the disconnector is pulled back out of the hook on the hammer and the hammer starts forward, only to be stopped as the sear catches on the nose of the trigger.

We are now ready for the next trigger press.

In a full auto AR-15 platform, we add one more piece and modify some of the other pieces. The first piece of interest is the selector switch. This will push down on the back of the disconnector, so its hook will never catch the hammer hook. If this was all that was happening, the hammer would ride the bolt carrier back down and the firearm might slam fire. But this is not controlled and might not actually happen.

What we want to have happen is for the hammer to stay back until the bolt is in battery and then for the hammer to fall, picking up speed, until it strikes the back of the firing pin. This is where the auto sear comes into play.

When the bolt carrier to the rear, the hammer is down and the auto sear is rotated such that it catches the hook on the back of the hammer. This holds the hammer down as the bolt carrier moves forward, driving the bolt into battery. As this happens, the back of the bolt carrier catches the rear of the auto sear and rotates it. This releases the hammer, allowing the gun to fire a second time.

The thing that makes an AR-15 receiver a “machine gun” is the little hole for the auto sear pivot pin. Without that hole and the auto sear, it is not a machine gun.

Before 1986, people were manufacturing “drop in auto sear” This was a block of milled steel with the auto sear and pivot pin integral to the unit. When put into a receiver with a correctly milled shelf for the auto sear and when the rest of the fire control group had the right type of disconnector, trigger, selector switch, and hammer, the drop in auto sear worked just like a normal auto sear.

If that little chuck of metal was properly serialized and registered before 1986, it is legally a machine gun. They sell for thousands of dollars.

A cheap version of the drop in auto sear was the “lighting link”. This was a much simpler device made from a couple of pieces of thin stamped metal. It performed the same function. Unfortunately, it wasn’t very reliable. They had to be carefully tuned to fit a particular receiver and even then, it couldn’t be trusted the same way a real M-16 and drop in auto-sears could.

Dimensional draws of the lighting link are available on the internet and in some old tyme books.

All of this brings us back to the Auto Key Card. The Auto Key Card is a dimensional drawing of a lighting link. The card is made from stainless-steel and is laser etched. That is all it is.

The Question

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B.L.U.F. Does bad law live on? What happens to all the opinions issued by circuit courts on Second Amendment cases before Bruen.

On June 23, 2022, a year ago, the Supreme Court issued the Bruen decision. The Bruen reaffirmed Heller. The Second Amendment is an individual right, it is not a second class right. The way to properly adjudicate a Second Amendment challenge is we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.—New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, ¶ 1 (U.S. 2022) This fantastic opinion opened the gates to regaining our Second Amendment protect rights.

The court then proceeded to GVR four other Second Amendment cases. One of those cases was in the 4th Circuit Court.

The Forth Circuit Court has not found an infringement that they couldn’t find a reason to find constitutional. They are horrible on Second Amendment rights. While the Ninth Circuit gets all the news, the Fourth is actually worse.

There are fourteen judges on the panel. Only one of them found that there was a constitutionally protected right to keep and bear modern semi-automatic rifles. Thank you, Judge Traxler.

Why is this case important?

The United States jurisprudence is based on common law. Once a law is passed, it is up to the courts to apply that law in a common way across all instances. Since the laws as written often have edge cases or might just be poorly written, the courts are required to say what happens in those edge cases or badly worded situations.

Consider the following. A government employee is granted a security clearance. They gain access to some classified material. Because they are pressured to complete some work regarding that classified material, they copy that material on to a thumb drive and take it home with them.

At home, they copy the documents on to their home server, stored in the spare bedroom. At a later time, they leave government employment. In the process of debriefing, they mention that they had a copy of a paper on their computer that they would remove.

They have just admitted to a crime. There is an investigation and they go to jail.

Any government employee who did a similar action, take classified material out of a secure location and put it on an insecure home server, would be guilty of the same crime and would be punished in the same way.

Common law is what makes this possible. Every court in the land has access to the law, as written, to the court cases involving that law, and what the holdings were for each of those cases. The courts then apply the law in a common way across all people.

This is true of the G.S.-5 who was charged with editing her bosses classified memo as to the S.E.S. former Secretary of State. The law is applied in a common way across everybody.

Kolbe is one of the fundamental pieces of case law that controls how Second Amendment challenges are adjudicated within the 4th Circuit Court. It is also used in other Circuits, though it is not binding on other circuits. Many cases on the East Coast were resolved based on Kolbe.

The Question

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B.L.U.F. Trial is held, state asks for a Judgement

Recent History

On June 1, 2023, the judge revised his order and granted the defendants (bad guys) motion to dismiss as-applied challenges to Ballot Measure 114. The state argued, and the court found persuasive, that since the permitting provisions are not implemented yet, there is no violation. The plaintiffs (good guys) are allowed to refile once the permitting provisions are actually implemented.

There are two types of challenges, “as-applied” and “facial”

The Court’s order says that there is no violation of the plaintiffs’ rights because nothing has happened. To use a different type of example, consider a suspect that is being interviewed regarding a crime. He asks for a lawyer, but the cops keep asking him questions.

There is no constitutionality issue regarding the police interviewing suspects. If the suspect challenges that there is a constitutional issue, it is only his rights that were violated, not yours, not mine. This would be an “as-applied” case.

As-applied cases normally do not have far-reaching implications. On the other hand, sometimes they do: —Kolbe v. Hogan, 849 F. 3d 114 (4th Cir. 2017)

The other side of the coin is the “facial” challenge. In a facial challenge, the entire law or regulation can be found to be unconstitutional. This is one of the issues the government is arguing in —id. at 130. Rahimi was convicted for being a prohibited person in possession of a firearm. He had a domestic violence restraining order against him, which made him a prohibited person.

Rahimi’s lawyers made a facial challenge against —Bruen, 142 S.Ct. 2111. The 5th Cir. found for Rahimi. The state would like this to be an “as-applied” because that would mean it the ruling doesn’t extend to anybody else.

The Question

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B.L.U.F. The argument from the mouths of the oldest group dedicated to removing your right to keep and bear arms.

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.

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.

There are subtle changes in wording that are designed to support that swap: whether the provision at issue regulates conduct—Bruen, 142 S.Ct. 2111.

Their Argument

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In —New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, ¶ 1 (U.S. 2022) 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 —Kolbe v. Hogan, 849 F. 3d 114 (4th Cir. 2017).

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?

and

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.

Who is Patrick J. Charles

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B.L.U.F. The “new” argument from the state.

In June 2008, the Supreme Court issued their first Second Amendment ruling in nearly 80 years. They were asked …whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.—New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, ¶ 1 (U.S. 2022) The District of Columbia generally prohibited the possession of handguns.

The law was set up such that each of the pieces was individually “acceptable” before the Court’s opinion. There was a law making it a crime to carry an unregistered firearm. Then the limits on who could register a handgun were such that almost nobody was ever allowed to register a firearm.

This defines what an “arm” is. The Heller Court went on to say:

This says that arms protected by the Second Amendment include both those “most useful for military/militia use” and those arms which are not. If it is an arm, it is protected by the Second Amendment.

From this place, the court then put limits on the arms that are protected by the Second Amendment. These were dangerous and unusual arms and NFA items. The NFA is not mentioned by name.

The court was exceptionally clear regarding “muskets are the only arms protected by the Second Amendment”. Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way.…—Bruen, 142 S.Ct. 2111

Yeah, it is an individual right.

Here is the crux of the post Heller battle for gun rights:

This is what every infringing legislature hangs their argument on. This is the hook that will allow their particular infringement to slip past the protections of the Second Amendment. Unfortunately, Heller went on to say “text, history, and tradition” are the actual methods of judging a regulation.

Bruen reaffirmed Heller and put a stop to means-end. This reduced the process of analyzing a Second Amendment challenge to a regulation to the following steps:

Does the challenged regulation implicate the scope of the Second Amendment? If it does not implicate the scope of the Second Amendment, the challenge loses.

Is the regulation a ban? If the regulation is a ban, are the arms banned in common use for lawful purposes? If the answer is yes, then the ban is unconstitutional.

If the regulation is not a ban, but does implicate the scope of the Second Amendment, the burden shifts to the state to prove a history and tradition of analogous regulations.

The state argues that their infringement does not implicate the Second Amendment. That is easily overcome.

The state argues that their infringement does not implicate an arm. Here, the state attempts to place the burden on the plaintiffs to prove that the item(s) in question are, indeed, arms.

If the infringement is a ban, the state then argues that the arm is not “in common use”. They try to limit the definition of “use” by putting qualifiers, “for self-defense” being the most commonly used manipulation.

The new argument

Emphasis in original.

There is no evidence that an “assault weapon” is in common use for lawful purposes?

The court is taking the side of the state here. They contend that because there is no legal evidence that hundreds of thousands of “assault weapons” are in common use, the plaintiffs have not met their burden.

I’m not exactly sure how you provide evidence that there are millions of “assault weapons” in common use. The court is unlikely to accept surveys as “evidence”. Nor are they likely to accept sales records. The court is bending over to say “well, most, if not all, of those guns were sold to law enforcement”.

They also ignore Caetano where the Supreme Court didn’t bother with figuring out exactly how many stun guns are out there. How many were owned per person.

The state has gotten this court to say that it requires that all “assault weapons” be in use for lawful purposes.

This one paragraph by the court stopped me in my tracks. They are working overtime to keep these laws from being overturned.

The reason this is important to us, is that this is not the only court that is using this to uphold infringements.

B.L.U.F. Cook County tells the court that modern sporting rifles aren’t arms, and other fairy tales.

Plaintiffs cannot establish that Assault Weapons are “arms” protected by the Second Amendment.

You know it will be a chuckle fest when the state starts their argument with such an absurd claim.

Off the rails they go

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