B.L.U.F. An analysis of the horrible opinion out of Oregon where the district Judge decided that arms aren’t covered under the Second Amendment and that there is a history and tradition of requiring government approval before you can exercise your Second Amendment protected rights.
This opinion is 122 pages long. This is not a complete analysis. I don’t think I can stomach that much muck.
When I originally looked at Judge Karin Immergut, I was hoping for better from her. She was appointed by President Trump. Unfortunately, it appears that her time in liberal cesspools has corrupted her judgement. She has degrees from the University of California, Berkeley, Amherst College, and UC Berkeley School of Law. To say that she was educated in leftest incubator schools is a fair statement.
—Oregon Firearms Federation, Inc. v. Brown, No. 2:22-cv-01815, slip op. at 6 (D. Or. Jul. 14, 2023)
This is a horrible statement of the actual questions in the case. 1) Is banning ammunition feeding devices based on characteristics in violation of the Second Amendment protected rights? 2) Is requiring a member of The People to get state approval before they are allowed to purchase constitutional?
Even with her horrid wording, she should not have been able to find that BM114 is constitutional.
I’ll use the words of Paul Clement et al.:
—Ocean State Tactical, LLC v. State of Rhode Island, No. 23-1072, slip op. at 1 (Court of Appeals for the First Circuit)
She even messes up Supreme Court dicta
This Court also finds that the text of Oregon’s permit-to-purchase framework is consistent with the type of regulation that the United States Supreme Court has deemed constitutional under the Second Amendment—O.F.F. v. Brown, ECF No.252, Opinion, No. 2:22-cv-01815, slip op. at 6. The Supreme Court never said that any permitting scheme is constitutional, only that shall issue states are assumed to be constitutional.
The court then went forth and said, “If you get a 2A case, look to the plain text, history and tradition to make your ruling. That means …”
We should not have been surprised because she granted Oregon Alliance for Gun Safety’s motion to intervene based on Federal Rule 24 of Civil Procedures, 24(b).
(1) In General. On timely motion, the court may permit anyone to intervene who:
(A) is given a conditional right to intervene by a federal statute; or
(B) has a claim or defense that shares with the main action a common question of law or fact.
—Rule 24. Intervention, LII / Legal Information Institute, (last visited Jul. 16, 2023)
I believe that she is referring to 24(b)1(B)
has a claim or defense that shares with the main action a common question of law or fact the Oregon Alliance for Gun Safety is an anti-gun group that uses emotional blackmail constantly.
The transcripts of the bench trial are not yet available. Because they are not available, the following are just observations. During the trial, the court heard from twenty witnesses. The plaintiffs (good guys) asked the court to include 13 additional documents.
They were denied. The reason given by the judge was that the documents were written by individuals that were not witnesses at the trial. As such, they can be excluded a Hearsay.
Hearsay is not admissible unless any of the following provides otherwise:
- a federal statute;
- these rules; or
- other rules prescribed by the Supreme Court.
Why doesn’t the court want these documents? It might have something to do with this:
—O.F.F. v. Brown, ECF No.252, Opinion, No. 2:22-cv-01815, slip op., n. 2
This is likely the core of her findings and conclusion. Individuals writing documents are how they express their research. It is how they express the facts, as they know them. They can also include opinions in those documents. When a court decides which documents they allow in as “evidence”, they are stacking the results.
If the documents submitted show every indication that magazines are arms protected by the Second Amendment, and that this is a ban on such arms, then Heller is the controlling case law. If an arm is in common use for lawful purposes, it is protected. FULL STOP.
The only question that remains, in that case, is to determine if the item is in common use. Caetano sets the highest threshold for “in common use” at
hundreds of thousands. There was no discussion about how often stun guns were deployed. The Supreme court found that possessing a stun gun meant it was in use.
If the documents excluded showed “in common use today”, then the magazine ban fails. This judge does not want that.
In arriving at this interpretation, the Supreme Court emphasized “the inherent right of self-defense” as “central to the Second Amendment right.” —id. at 10 Did the Supreme court “emphasize” that self-defense is central to the Second Amendment? If they did, does it matter?
Here, on page 10, we know we are going to lose
The Supreme Court explicitly cautioned, however, that “[l]ike most rights, the right secured by the Second Amendment is not unlimited” and noted that the Second Amendment does not protect a right “to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626—id. at 11. Any time the state brings up this quote from Heller you are about to hear how come their current infringement is in the allowed category.
The court describes what Bruen means to her:
Bruen also made clear that “the right secured by the Second Amendment is not unlimited,” and that governments may still impose certain restrictions on the purchase, possession, and use of firearms. Id. at 2128 (citation omitted); see also id. at 2162 (Kavanaugh, J., concurring) (“[T]he Second Amendment allows a ‘variety’ of gun regulations,” including “presumptively lawful regulatory measures” such as laws prohibiting the keeping and carrying of “dangerous and unusual weapons.”) (citation omitted).
—id. at 12–13
The question of bearable arm is easy to determine. Is it an arm? Yes. Can you lug it around? Yes? Then it is a bearable arm. Notice the use of the word “lug” instead of carry. This is because it is pretty clear that even large weapons that require support to be fired are protected under the Second Amendment.
I guess that is backwards from the rogue court’s point of view. I look at it and say, “Is it an “arm”?” using simple, plain text. If it is an “arm” is it or should it be protected under the Second Amendment? If yes, then it is a bearable arm.
We know that the Second Amendment covered cannons. We know this because there were private ships that mounted cannon. The majority of cannons were owned by individuals. There are many invoices from the 1700s where individuals purchased cannons.
One of the statements used by doctors when they subscribe medications for mental issues is something like “There are some people who just don’t make the right chemicals. You could be one of them. This medication might just make up for that shortage.” What the doctor is unlikely to tell the new patent is that nearly 100% of the people told this believe they are part of the 3% who actually have the issue.
Every regulation the state proposes is unlikely to be the “exception” that allows them to infringe on Second Amendment protected rights.
In describing BM 114’s restriction on magazines, the quoted language says that some of my lever action rifles are banned for having an internal magazine that holds more than 10 rounds.
BM 114 makes it a misdemeanor offense to manufacture, import, possess, use, purchase, sell, or otherwise transfer any LCM in Oregon after BM 114 goes into effect. Ex. 1 § 11(2), (6). BM 114 defines LCMs as “a fixed or detachable magazine … or similar device … that has an overall capacity of, or that can be readily restored, changed, or converted to accept, more than [ten] rounds of ammunition and allows a shooter to keep firing without having to pause to reload ….” Id. § 11(d).
—id. at 15
Tell me you know nothing about firearms without saying you are ignorant:
the barrel of the firearm, moves the slide forward. Tr. 5/30/2023 44:13–15. As the slide moves forward, it picks up the cartridge that has been pushed to the top of the magazine box and places it in the firing chamber. Tr. 5/30/2023 44:15–16. With a new round now chambered, the operator of the firearm can resume shooting. Tr. 5/30/2023 44:16–17.
—id. at 20
She describes the function of a pistol. While recoil operates most semi-auto pistols, gas operates a great many semi-automatic rifles.
She also discusses a magazine being a “box.” What she doesn’t say is “ammunition feeding device”. We have to hammer that home moving forward. It isn’t a “LCM”, it isn’t even a “standard capacity magazine”, it is an “ammunition feeding device, an arm”.
She messes up again:
—id. at 21–22
She uses this throwaway phrase
regulated firearm or firearm accessory. That is not what the Second Amendment says. It says
the right of the people to keep and bear arms shall not be infringed. She is admitting that ammunition feeding devices are arms. If they are not, then she wouldn’t have used this phrase.
End of this part. Having made it through only a small portion of the facts and findings, I’m pretty disgusted. She appears to be putting her thumb on the scales of justice by picking which facts she accepts, which experts she allows, which witnesses she believes.
I’m stopping at the point where she is dismissing the plaintiffs’ evidence that there are 100s of millions of ammunition feeding devices capable of holding more than 10 rounds. She says this is because the survey used didn’t get enough samples.
Never mind the fact that she stated just a few paragraphs earlier that she is allowing into evidence
Millions of Americans today own LCMs.—id. at 23.
These numbers make it absolutely unequivocal that ammunition feeding devices holding more than 10 rounds are in common use for lawful purposes, such as self-defense.