Gun Free Zone

Where a Hispanic Catholic, and a Computer Geek write about Gun Rights, Self Defense and whatever else we can think about.

Legal

Legal Rant

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

Sep 27, 2023 awa 1 comment

B.L.U.F.
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.
—ECF No. 2, Virginia Duncan v. Rob Bonta, No. 23-55805, slip op. at 2–3 (9th Cir.)
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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Case Analysis Legal

Vincent v. Garland (10th Cir., 21-4121) §922(g)(1)

Sep 21, 2023 awa 4 comments

B.L.U.F.Is this the next case to head to the Supreme Court? The 10th Circuit found that a convicted felon does not have a constitutionally protected right to possess firearms.

(1000 words)

In 2020, Melynda Vincent filed to have §922(g)(1) overturned as applied to her. In 2007, she was a drug addict and tried to pass a bad check for less than $500. She was arrested and put in to drug rehabilitation. She came out of drug rehab before her court case and has been clean since then.

In court, she pleaded “guilty”. This has a sentencing guideline charge for multiple years with no option of probation. The court sentenced her to 0 years in prison and probation. She completed her probation early. She has had no other negative interactions with the law/courts.

At the district court level, the court used the Tenth Circuit Court’s opinion in United States v. McCane. McCain was a felon in possession case, which the Circuit court ruled in 2009 was constitutional.

The important part of their decision was that they did not do means-end to make that determination. Instead, they relied on Heller.

The [Supreme] Court observed that it wasn’t “cast[ing] doubt on longstanding prohibitions on the possession of firearms by felons.” Id. at 626. We applied this observation in United States v. McCane to uphold the constitutionality of the federal ban on felons’ possession of firearms.
—ECF No. 2, Virginia Duncan v. Rob Bonta, No. 23-55805, slip op. at 2–3 (9th Cir.)

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Case Analysis Legal

United States v. Robert Hunter Biden WTF?

Sep 20, 2023 awa 6 comments

B.L.U.F. Hunter might get off the hook on counts 1 and 2 if count 3, §922(g)(3) is struck down for constitutional reasons.

(450 words)

for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;
— 18 U.S.C. §922(a)(6)

Emphasis added.

Form 4473 asks a series of questions, as well as having several places for you to fill in your information. It is pretty clear that if you lie in the section asking questions to determine if you are a prohibited person, you are lying about a material fact. What if you were to write the wrong county down? Is that a “material fact” with respect to acquiring a firearm?

It doesn’t seem to be. While it would not surprise me to learn that the ATF pulled an FFL’s license because somebody misspelled the county name, I don’t think anybody has been prosecuted for misspelling the county name on a 4473.

knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter;
— 18 U.S.C. §924(a)(1)(A)

Emphasis added.

The information required is only required if it is a “material fact”.

The short of it is that if this was anybody with an R after their name instead of a Biden, counts 1 and 2 would hold. Even if count 3 and 1 are tossed, count 2 would likely still hold.

Hunter’s lawyers will use Bruen and the other cases against §922(g)(3) to argue that the law is unconstitutional. They are likely to win. Biden, don’t you know.

If count 3, §922(g)(3) is tossed, does §922(a)(6) still stand? If being a user of a controlled substance in not a “material fact” then count 1 goes as well.

This means that only count 2, §924(a)(1)(A) still stands. If being a user of a controlled substance is not material, then is the information required?

All in all, it looks like a good case for the Second Amendment, a poor case for justice. As more than one pundit has pointed out, this is one of the few crimes that Hunter could have been charged with that does not implicate his father.

H/T Mark Smith

Case Analysis Legal Rant

Ronald Koons v. Attorney General New Jersey, a fisk

Sep 6, 2023 awa 1 comment


B.L.U.F.

The Attorney General of New Jersey has filed a brief (100 pages!!!!) explaining why New Jersey’s de facto carry ban is actually constitutional.
(1900 words)

Introduction

The Second and Fourteenth Amendments have always coexisted comfortably with a wide range of firearms restrictions. As the record shows, States historically restricted firearms in particularly sensitive places—such as public assemblies, schools and other educational and literary gatherings, ballrooms, shows, fandangos, fairs, and taverns, parks, zoos, in transit, and more. Founding- and Reconstruction-era States likewise long required individuals to obtain consent from private property owners before carrying firearms onto their private lands. And States historically required individuals to make surety payments before carrying firearms in public, and they imposed strict liability regimes to cover the harms of firearms misuse. States have also long imposed fees relating to firearms or permits. And States have consistently sought to ensure that those who could not be trusted to carry a firearm in public will not do so—including by checking their backgrounds.

Given their historical pedigree, the provisions Plaintiffs challenge—Chapter 131’s sensitive-place restrictions, private-property provision, insurance requirement, fees, and character-reference requirement—all satisfy New York State Rifle & Pistol Association v. Bruen, 142 S.Ct. 2111 (2022). After all, Bruen adopted a historically-grounded test: if States originally understood that particular firearms policies were available under the Second and Fourteenth Amendments, those policies remain on the table for them today. Yet despite the considerable evidence the State provided in its opening brief, Plaintiffs cannot produce a shred of evidence that anyone anywhere saw any of these laws as unconstitutional. In sharp contrast to the evidence in both Bruen and District of Columbia v. Heller, 554 U.S. 570 (2008), this record contains no evidence that any court, State, official, or legal commentator viewed any of these historical sensitive-place requirements as unconstitutional. Plaintiffs cite nothing to suggest that any court, State, official, or legal commentator believed individuals had a right to carry firearms on private land without the owner’s consent. Their arguments are also bereft of evidence of any challenges to the historical surety laws or to strict-liability regimes. And Plaintiffs find no decision or even constitutional debate as to historical fees and permitting processes. Instead, the record reveals “no disputes regarding the lawfulness of such prohibitions.” Bruen, 142 S.Ct. at 2133.

Because Plaintiffs cannot identify contrary evidence, they repeatedly attempt to move the goalposts that Bruen laid out. Plaintiffs repeatedly castigate the State’s historical statutes as measuring “too few” in number, even when the State found eight or even thirty historical predecessor statutes—reasoning that the fact some other States took a different policy approach suggests New Jersey’s modern laws are unconstitutional. But Plaintiffs never explain how their view coheres with our federalist system, in which “the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.” United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring). Plaintiffs also diminish the State’s voluminous historical evidence as coming “too late”—even though the antebellum and Reconstruction-era evidence consistently favors the State in this case, and even though Reconstruction-era evidence particularly informs how the States understood the scope of the Fourteenth Amendment. Last, Plaintiffs insist sensitive places can only be ones with “comprehensive,” TSA-style security, but the very places that Bruen itself recognized as sensitive (like schools) could not fit the Plaintiffs’ overly-stringent and invented test.

The consequences of this debate are grave. Bruen recognized that the Constitution allows the States to address all manner of “regulatory challenges posed by firearms today.” 142 S.Ct. at 2132. So it adopted a historical and analogical test that allows States flexibility while protecting the constitutional right. Chapter 131 respects that decision, adopting only restrictions that are in line with a centuries-old historical record. Plaintiffs distort Bruen’s measured approach, seeking to impose on New Jersey “a regulatory straightjacket” that limits the State’s ability to protect residents from the scourge of firearms violence—limits that “our ancestors would never have accepted.” Id. at 2133 (quoting Drummond v. Robinson, 9 F.4th 217, 226 (3d Cir. 2021)). This Court should reject Plaintiffs’ arguments.
—ECF No. 2, Virginia Duncan v. Rob Bonta, No. 23-55805, slip op. at 2–3 (9th Cir.)

Analysis and Rant

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Case Analysis Legal

Fraser v. ATF 18 U.S.C. §922(b)1

Sep 2, 2023 awa 3 comments


B.L.U.F.
Mr. Fraser is the lead plaintiff in a challenge to 18 U.S.C. §922(b)1. Normally, we are concerned about the different parts of §922(g), prohibited persons. §922(b)1 is the probation on those under 21 purchasing handguns or handgun ammunition.

We won. The case is held pending appeal to the Fourth Circuit court.
(1500 words)

Case History

The Plaintiffs (good guys) filed this case on June 1st, 2022. Just a few days before Bruen. The original complaint says §922(b)(1) “violates the fundamental rights of millions of responsible, law-abiding American citizens …”—ECF No.1

Nearly a half year later, the state responds with:

  1. You can just get your mommy or daddy to buy a gun for you
  2. We’ve always had the ability to deny the sale of firearms to people under the age of 21
  3. At the founding, those under 21 were infants and minors
  4. Their claim of Fifth Amendment violation fails because your age isn’t protected data.
  5. Besides, the court can offer any relief to the plaintiffs, so there.

That bit about the Fifth is saying that you can’t incriminate yourself by giving your age. Therefore, it is not protected information. They, of course, fail to mention that it is incriminating when you would be inviolate of regulation by your conduct at a particular age.

As for “History and Tradition” they have 20 some pages of regulations, the earliest in 1856, the rest 1876 or later. Not really a history nor a tradition, but this is one of the early cases post Bruen where the state was still feeling out just how underhanded they could be.

And like a bad penny, we see Giffords, Brady, Everytown jump into to agree 100% that the plaintiffs don’t have standing.

In an interesting turn, they are suing Garland and Dettelbach in both their official capacity and as individuals.

Wouldn’t it be wonderful if some of these state actors were actually held responsible for what they do?

Commercial Sales And Purchase of Firearms That Are Not Unusually Dangerous Constitute Conduct Within The Scope of The Second Amendment. … ECF No. 28. Double emphasis added. This is horrible phrasing and every lawyer who uses it should be taken out behind the woodshed and given 50 lashes.

The correct phrasing is dangerous and unusual. “Unusually dangerous” is a subjective opinion. “Unusual” is an objective measurement, as stated in —ECF No. 2, Virginia Duncan v. Rob Bonta, No. 23-55805, slip op. at 2–3 (9th Cir.)

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Case Analysis Legal

Smith v. District of Columbia

Aug 31, 2023 awa 4 comments

This is a 99.9% win for the good guys.
(750 Words)

Back in 2015, Maggie Smith filed a class action suit against the District of Columbia.

Maggie Smith, on behalf of herself and the Prosecution Class and the Nonresident Class (both defined below), brings this action against the Government of the District of Columbia (the “District” or the “District of Columbia”) under 42 U.S.C.A. § 1983 for injuries she suffered during the Class Period because the District, through its unconstitutional gun registration laws, caused her and the other members of the Prosecution Class and the Nonresident Class to be arrested, prosecuted, or arrested and prosecuted in the District of Columbia Superior Court for violations of those unconstitutional gun laws in violation of their Second and Fifth Amendment rights.
—ECF No. 2, Virginia Duncan v. Rob Bonta, No. 23-55805, slip op. at 2–3 (9th Cir.)

She alleges that the District had created a total ban on gun ownership and a total ban on carrying outside the home. She points out that the District did this in such a way as to avoid the appearance of a total ban.

The District first put into place laws that required all hand guns and ammunition to be registered. Then they created so many obstacles to registering a hand gun that it became a de facto ban.

In addition, the registration scheme was only available to residents of the District, meaning that it was impossible for people that didn’t live in the city to be able to carry a hand gun.

For those of you that don’t know, DC used to be 100 square miles, 10 by 10. 50 square miles came from Maryland and 50 square miles came from Virginia. When Virginia seceded from the Union, it took back its land. Most of the remaining 50 square miles is filled with office buildings, government buildings, public buildings and some apartments.

There are also the slums.

Most of the people that work in the District commute into the District. They drive to just outside the beltway and then ride the Metro into the city proper. Fast, easy, convenient.

What this means is that most of the people you see in DC don’t live in DC. Under the District’s registration scheme, most of the people who worked in DC had no chance to legal own a hand gun.

At the time of Ms. Smith’s conduct, D.C. Code § 7-2502.02(a)(4) generally prohibited registration of any pistols “not validly registered to the current registrant in the District prior to September 24, 1976,” but made an exception for retired MPD officers, organizations employing special police officers, and “[a]ny person who seeks to register a pistol for use in self-defense within that person’s home.” See D.C. Code § 7-2502.02(a)(4)(C) (2010) (emphasis added). Any nonresident who wished to possess a pistol in the District of Columbia for self-defense would have to do so outside his or her home and therefore could not fall within the exception in D.C. Code § 7-2502.02(a)(4)(C). Moreover, at the time of Ms. Smith’s conduct, the District maintained a custom, practice, and policy of refusing to entertain gun registration applications by individuals who did not reside in the District of Columbia. See D.C. Mun. Reg. § 24-2320.3(c)(1)(C) (requiring firearm registration applicants to provide proof of D.C. residency).
—id. at 9

Yes, it was that difficult. It made getting a CCW in New York City seem easy.

On Monday, we got some great news.

Upon consideration of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action Settlement (Motion for Preliminary Approval), and the exhibits attached, including the Settlement Agreement reached between the named Plaintiffs, individually and as representatives of the class conditionally certified by this Order, and the Government of the District of Columbia (the District),

IT IS HEREBY ORDERED:
⋮
The Settlement is preliminarily approved, subject to further consideration at the Final Approval and Fairness Hearing provided for below. The Court preliminarily finds that the Settlement terms are within the range of a fair, reasonable, and adequate settlement and in the best interests of each Class as a whole, such that final approval of the Settlement and Request for Attorney’s Fees and Costs may be appropriate, following notice to the Classes and a Fairness Hearing. Further, the Court preliminarily finds that the terms of the Settlement Agreement satisfy the requirements of Federal Rule of Civil Procedure 23(e) and due process.
—ECF No. 59 Brumback v. Ferguson, No. 1:22-cv-03093, slip op. at 13 (E.D. Wash.)

This is that big of a win because it won’t be appealed. Since both parties agreed to the settlement there is nobody to contest or appeal.

Every so often the good guys do win.

Bibliography

ECF No. 2, Virginia Duncan v. Rob Bonta, No. 23-55805 (9th Cir.)
ECF No. 59 Brumback v. Ferguson, No. 1:22-cv-03093 (E.D. Wash.)

Case Analysis Legal

Andrew Hanson v. DC (D.C. Cir.) — Magazine Ban

Aug 26, 2023 awa 1 comment

Normally, I would spend time analyzing a filing. This particular filing is by the Appellants/Plaintiffs (good guys). It is a good history of DC gun infringements over the last decades.

(1100 Words)

For roughly two-score years, the District of Columbia has done its level best to rid firearms entirely from within its borders by imposing some of the most egregious—and unconstitutional—restrictions in the Nation. In 1976, the District banned the possession of nearly all handguns by first making it a crime to possess a firearm without registering it, and then prohibiting the registration of handguns. Eventually, the U.S. Supreme Court struck down this prohibition on the basis that it violated the core right of self-defense enshrined in the Second Amendment. See District of Columbia v. Heller, 554 U.S. 570, 636 (2008).

Having been rebuffed by Heller, the District got creative. It combined one restriction—that “no persons or organization in the District shall possess or control any firearm, unless the persons or organization holds a valid registration certificate for the firearm,” D.C. Code § 7-2502.02(a)(4)—with another that forbade handgun registration for use other than “self-defense within that person’s home,” Id. § 7-2502.02(a)(4). In so doing, the District effectively attempted to ban the carrying of all firearms outside the home. This provision, however, was held unconstitutional in Palmer v. District of Columbia, 59 F. Supp. 3d 173, 184 (D.D.C. 2014).

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