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.
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:
- You can just get your mommy or daddy to buy a gun for you
- We’ve always had the ability to deny the sale of firearms to people under the age of 21
- At the founding, those under 21 were infants and minors
- Their claim of Fifth Amendment violation fails because your age isn’t protected data.
- 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 —Caetano v. Massachusetts, 136 S. Ct. 1027 (2016)
You just have to shake your head in disbelief at the state at times. I wanted to purchase a firearm for my daughter. I had a blunt conversation with my LGS FFL. I told him exactly what I wanted to do. He explained that it wasn’t a straw purchase because I could gift a firearm to my child.
The same would not be true if my child gave me money to purchase a firearm for my child. That would be a straw purchase.
The state argues that the plaintiffs haven’t demonstrated that they cannot legally acquire a handgun. They walk into an FFL and show their ID. They are denied. The state argues that isn’t enough. They could just get their mommy or daddy buy it for them.
In Feb., 2023, the court had listened to the arguments of both parties and decided that they had changed their position from their original briefings to the court. The court then ordered that both parties file new briefings, simultaneously, on March 8. The court also firmly directed both parties to the core of the Bruen opinion.
First, the parties were to present if the conduct implicated the Second Amendment. Second, regardless of their position on the first question, they were to present history and regulation.
This is the first “do over” I’ve seen.
The actual laugh out loud
THE COURT: What does that—is that the dispositive question on standing, is the failure of the complaint to allege that their parents have not—that they’ve not asked their parents to buy a gun for them? Is that where we are? Is that right?
MR. CLENDENEN: Your Honor, it is plaintiffs’ burden to prove they have standing, so the failure for them to plead, you know, certain facts in the complaint would be dispositive.
THE COURT: Well, I know that. I’m asking you is the issue that your standing position turns on is the absence of an allegation in the complaint that they did not, none of the plaintiffs, ask their parents to buy a gun for them from a federally firearms licensed dealer? Is that your position?
MR. CLENDENEN: Your Honor —
THE COURT: Yes or no? Get your tongue around one of those two words, and then you can tell me later what your views are. But I would like to hear what your answer is.
—ECF No. 42 Fraser v. Bureau of Alcohol, Tobacco, Firearms and Explosives, No. 3:22-cv-00410, slip op. at 5 (E.D. Va.)
Yes, I did laugh out loud. Not LOL, the real thing. This judge just slapped the state down so hard that it was the slap heard around the world.
And the judge does it again
THE COURT: Is the answer to that yes or no?—id. at 6
Damn, I wish I could read more transcripts like this.
MR. CLENDENEN: That is okay, Your Honor. And that’s the exact —
THE COURT: In what world is that okay? Why is that—why isn’t that an offense against the fundamental principle that one cannot do indirectly what you cannot do directly? You are telling me that the position of the ATF is that people are to engage in subterfuge to get these young—these 18-year-olds guns. That’s what you’re saying.
—id. at 12
Interesting point the judge makes on page 20. When we see cases challenging state laws, such as the Bruen tantrum responses of New York, New Jersey and the other usual suspects, the states can bring up and argue about 1868 or 1791. The Federal government can not. Their time period is locked to 1791. No wiggle room at all.
The state talks about “if you allow 18-year-olds to be part of “The People” then you’ll have to let 16-year-olds as well.” I love it when the state messes up like this. “If you find this unconstitutional, then other infringements will fall! Don’t do it, Judge!”
MR. CLENDENEN: Again, Your Honor, we haven’t made that argument, but if we had to, then, yes, we would say that.
—id. at 30
This Judge gets it.
The Plaintiffs Turn in the Meat Grinder
I said above that the Judge gets it. He is also fair. He is pushing the plaintiff’s console just as hard as he pushed the state. The main difference seems to be that the plaintiff’s lawyer does a much better job of responding. It doesn’t feel like he is dancing to avoid the jaws of a verbal trap, it is more of a give and take.
I’m at page 59 of 119, and I want to wrap this up. So
In May 2023, the court found for the plaintiffs (good guys). The court then told the two parties to “work it out”. The state refused to do anything. Or perhaps, better stated, the two parties could not come to an agreement.
Since the parties were unable to reach an agreement, the court stepped back in, on Aug. 30th.
— ECF No.82
—ECF No.81 Fraser v. Bureau of Alcohol, Tobacco, Firearms and Explosives, No. 3:22-cv-00410 (E.D. Va.)
The court then stayed the injunction pending appeal.
If you have the time, read the transcript, ECF No.42. There are numerous good zingers from the judge to the state.