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.

B.L.U.F.
Rambling about how to disarm “dangerous” people. Put them in prison.
(1800 words)

The unqualified command of the Second Amendment is “shall not be infringed”. This applies to all The People.

As a society, we want our family, friends, and community to be “safe”. To that end, we create protections.

The primary protection is a threat of state violence on those that would harm others.

When the cops show up and arrest somebody, they are inflicting violence on that person in the name of the state. When that person is remanded for a custodial sentence, there is state inflicted violence in that as well.

The state wishes to maintain a monopoly on violence.

The right to self-defense is in direct opposition to that monopoly. Self-defense is not limited to self vs. another person or other people, it also includes the right to defend yourself from the state.

The Second Amendment protects our right to armed self-defense. Since it protects an aspect of self-defense, it is in direct opposition to the state’s goal of a monopoly on violence.

Unfortunately for the state, their goal of a monopoly on violence is a threat to our safety. How? Because the state cannot proactively keep us safe. They can only reactively respond. Often long after the harm has been done.

If there is a credible threat to you or your family, the state will not provide you with protection. At the most, they might send a squad pass your home slightly more frequently than normal. This is not real protection. It is barely a deterrent.

Since the state cannot protect you and yours, they offer to predict who is most likely to be a threat to (the state) you, or (the state) your family, or (the state) your community.

Predictive actions by the government are facially unconstitutional. You have a presumption of innocents. You must be found guilty in a court of law beyond reasonable doubt. Only after you have been found guilty can the state punish you.

Remember, you have rights and powers. The state has powers and authority. The state has the power to break down your door, search your home and person, detain you and punish you. They only have limited authority to exercise that power.

You have your rights, you might not have the power to defend your rights against a more powerful (the state) foe.

When the state uses its power to strip you of your rights, they are causing irreparable harm. They are only authorized to do so after a finding of guilt.

What happens when the state is aware that a group of people are too dangerous to be armed? How do they disarm those people?

According to congress, there are 9 reasons a person can be disarmed because they are too dangerous to possess firearms.

The law does not disarm those people. It only orders them to not possess firearms. A very different thing, indeed.

From this data, we can see that about 33% of all homicides of family members are done without a firearm. If the purpose of §922(g)(8) was to protect potential victims by predicting that a family member was dangerous, then it would apply to all arms. Not just firearms.

The state has argued, unendingly, that there are protections in place for those accused of potential domestic violence. That a court will only issue a TRO that triggers §922(g)(8) after due process.

Let’s see, the accused has to “receive actual notice”. Does that mean a certified letter? A process server? Or does it mean first class mail?

When I was divorcing my first wife, it was not pretty. On the weekend of my birthday, I went to pick up my children at her home. She did not answer the door. She refused to come out.

Of course, it is past closing time at the courts, there is nothing the courts can do. Finally, she came down. I took a few steps back, away from her, stuck my hands in my pockets to stop from making unintentional gestures that might be interpreted as threatening.

I left without my children. I left without touching her. I stopped at a phone to call my lawyer and report what had happened. My estranged wife went to the cops and filed a complaint. She didn’t bother to tell them that we had lawyers. She didn’t bother to inform them that we were in the process of getting a divorce.

She wrote my address so badly that when the court issued a summons to appear, they sent it to the wrong county.

According to the court system, I should have known about the summons because they sent it by first class mail.

They didn’t have any problems finding me when the court issued a warrant for my arrest for failure to appear. For that, they contacted the DMV and asked them for my address. Simple.

When the state says that the TRO only counts if the accused “received actual notice”, I do not trust that those words mean the same thing we think it mean.

The state offers another requirement, that the accused has an opportunity to participate in the hearing. If the accused actually gets the notification, and if the accused has enough warning to get to the hearing, and the accused has the means to get to the hearing, and the accused can get time off to attend, they can attend.

There is nothing in the law that requires the hearing be held where the accused can get to it.

Going back to my estranged wife, the court where the case was being heard was in a different county. It required me to drive for an hour, each way, to attend. Those hearings are always during the workday. They are not tightly scheduled, so you have to take a day off to attend.

There is no public defender for the accused. They have to bring their own paid for lawyer or represent themselves. The person filing for the TRO has a great deal of state provided support. Search for how to file for a Domestic Violence TRO and you will find multiple results for help in filing.

So now we get to the second part of the clause, “includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or”. That sounds pretty good. That means the court would have to have evidence that there was a real threat.

What, that ended with an “or”. That means there is another way for clause B to be satisfied.

“by its terms explicitly prohibits the use, attempted use, or threatened use of physical force”. What does that mean? It means that if the TRO says, “don’t hit your wife” it satisfies clause B.

So to restate the requirements for a TRO that triggers §922(g)(8) the accused has to be sent notification of the hearing, they have to have permission to attend the hearing, and the TRO has to have language in it forbidding physical force or threats against the purported victim.

A predictive finding from the legislature in §922(g)(8) is not constitutional, on its face.

What about other predictive findings of the legislature, you know, future crimes?

The state feels that the potential for punishment of custodial detention exceeding a year is enough to trigger §922(g)(1).

It does not require a finding of guilt for §922(g)(1) to attach, just an indictment. President Trump is currently a prohibited person because he has been indicted on charges that could exceed more than a year of imprisonment.

The state has not been able to point to any regulations from the founding error of disarming people how were not dangerous.

Is there any real likelihood of President Trump going out and shooting somebody? Not really. He is not “dangerous” in that way.

The state then turns to a definition game. Rather than prove that a person is dangerous via objective standards, they use legislative predictions. That being if the punishment would be for more than one year.

That is not a finding of dangerous. There are thousands of regulations that can get you sent to prison for a term of greater than a year. Few of those are actually indicators of “dangerous”.

The standard example being Martha Stewart. She is not “dangerous”, she is a prohibited person.

This makes §922(g)(1) facially unconstitutional.

How about those people who were convicted of acts of violence? Should they be disarmed?

They are disarmed, for the duration of their imprisonment. There is a finding of dangerous in these cases, in that the crime they were convicted of was a violent crime.

What about when they are released from prison? Should their rights be reinstated?

This is the more difficult question, in my opinion. So I push the issue slightly. When a person is sentenced according to the sentencing guidelines, they are being punished according to those guidelines.

If the sentence is for 70 months, and they are released after 62 months, they still have another 8 months of punishment. At the end of the full 70 months, their rights are restored.

But we know there is a high rate of recidivism. The more so when violence was part of the original crime.

If there is such a high probability of recidivism, then your punishment isn’t working! Fix it!

The rapist that has destroyed the lives of 10 women is sentences to 60 months. He gets out and 4 years. He rapes another couple of women before he is captured and put away again.

Why was he let out after only 4 years? Why wasn’t he kept longer?

I was watching a TV show. One of the characters tells her parole mentor that she hasn’t had anything to drink in 18 months. The mentor points out that it is a meaningless statement because she’s locked up where there is not supposed to be any alcohol.

There is no way to predict behaviors based on the behaviors when a person is under observation.

Florida has a 10-20-life regulation. My understanding is that these are enhancements based on the use of a firearm in a crime. Their answer is, “don’t do the crime if you can’t do the time.” Those are 10, 20, and life enhancements for using a firearm during certain crimes.

Punishment must deter people from doing the crime. It must not chill the exercise of our rights.

B.L.U.F.
A look at how the state is attempting to restrict our rights by redefining what “The People” means.

(2450 words)

Heller was the first domino to fall in the restoration of our Second Amendment protected rights. McDonald was the next. After a long time, we had the third domino fall, Bruen.

After Heller there was a rash of cases that were filed. As these cases made their way up the court system, the infringing, rogue, courts profoundly erred in how they interpreted Heller.

They looked at the methodological processes that were used to decide cases in court. Two different methodologies were examined, and then adopted. The first was how the Supreme Court had addressed First Amendment cases.

They determined that the rights protected under the First Amendment were not absolute. There were exceptions. To determine if a regulation is constitutional, the regulation is evaluated using “strict scrutiny”.

Under strict scrutiny, the state must show that there is a compelling state interest, that the regulation is narrowly tailored and is the least restrictive means available to the state. Strict scrutiny only applied to content-based or viewpoint-based regulations. If the regulation was not abridging content or viewpoint speech, then intermediate scrutiny was applied.

This also matched the ways and reasons injunctions/stays were issued, likelihood of success on the merits, irreparable harm, balance of equities, and public interest.

Given these two methodologies, the inferior rogue courts adopted a means-end methodology for Second Amendment rights. First, the court would determine that the regulation did not infringe the core right of self-defense too much, just like they determined content or viewpoint-based speech. The courts then looked at the state interest.

If the state interest was “compelling”, the court would use strict scrutiny. If the state interest was not compelling, the court would use intermediate scrutiny.

Having decided on the level of scrutiny, the rogue courts would assume without finding that the regulation being challenged was facially unconstitutional, and then rule it constitutional because the state had shown significant interest to justify the regulation under the level of scrutiny used.

This stopped progress in Second Amendment challenges. Just as the previous profoundly erroneous evaluation of the Second Amendment only applying to the militia.
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(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.

The Supreme Court heard oral arguments in Rahimi today. I’m listening to the arguments and reading the transcripts.

I’ve not heard much from Justice Jackson that makes me consider her to be a “good” justice. Today she is showing some significant signs of attempting to do her job correctly.

She is questioning the state, and she is making the state actually define their position regarding historical analogs. In this particular line of questioning, she asks Then what’s the point of going to the founding era? I mean, I thought it was doing some work. But, if we’re still applying modern sensibilities, I don’t really understand the historical framing.

Furthermore, the lawyer for the state is good. She is staying on point, she is making her points. She is doing a much better job than the briefs indicted they would do.

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.
– AWA

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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