Gun Free Zone

Waking up to this. About 2 inches and expected 3 more later today. I checked the road and there is a pretty later of frigging ice under the snow.

Work already cancelled us for the day. And I believe tomorrow won’t be any better.

In other news, I believe J Kb, Hagar and AWA are recreating the Ice Age in their respective zip codes.

Everybody stay safe! And that include my Floridians… you warm bastards!

The state can request a warrant upon presenting, to an authorized judicial authority, the proper reasons for a warrant to issue. Once a warrant has been issued, the state can then search in the named locations for the named items, and seize those items.

For example, the state can claim that Bobby-Joe is operating a house of ill repute. They go to the judge and tell the judge, in writing, what evidence they have that Bobby-Joe is operating a house of ill repute. They tell the judge where they want to search, and what they are looking for.

Judge, we believe that Bobby-Joe is operating a house of ill repute because 3 to 5 women go to the house every evening and don’t leave until 0330, see provided photographs. That she is living beyond her documented means, see the two new homes she’s purchased with cash, the fancy cars, and the expensive jewelry.

We want to search the premises to locate her contacts and her books. We believe that these might be electronic. We wish to seize all electronic devices, any business related communications, any and all calendars, and any payment agreements.

The judge signs his X on the dotted line, then goes back to “snuggling” with one of Bobby-Joe’s employees.

The raid happens. During the search, the state finds drugs, firearms, and cash. They seize all the computers, phones, and digital storage devices and all the documents they can find. They seize the drugs and guns and cash.

It is all legal because the Judge signed the warrant.

This only works in a criminal investigation. In a civil investigation, the state is not involved in an authoritative stance. By this, I mean that the state can’t just get warrants issued because there are no crimes being alleged in the civil suit.

I am NOT a lawyer. I’m sure there are exceptions to this. But in general, when the state is a defendant in a civil case, they can just get a warrant to search for information they believe the plaintiffs hold.

Instead, the parties engage in discovery. In my opinion, discovery in Second Amendment Challenges is a waste of time, money, and resources.

If the argument is about the law, then there is no need for experts. The only experts in the courtroom are the lawyers and the judge. The lawyers present their arguments on why the judge should rule in their favor, the judge evaluates the arguments and then issues his judgement regarding the argument.

If the case is an as applied, then evidence might need to be presented.

Let’s consider the situation where a few individuals challenge a law for Second Amendment reasons. The FPC joins the suit as an organizational entity.

The FPC has to prove that the individuals are members of the FPC when the FPC joins the case.

It does not matter if they are life members, if they were gifted the membership, if they joined 20 years ago, 5 years ago, or 5 hours ago. The only thing that matters is that they are members.

The state can subpoena the plaintiffs for information that proves or disproves the membership. If that information has already been presented by the plaintiffs, then they can not.

The problem sometimes arises that the parties want formal proof. That might be a statement taken under oath or a notarized copy of the document proving membership.

When the court grants discovery, this means that the parties can start asking questions of the other party and of third-parties that can reveal evidence.

Which takes us to the real issue with discovery, it can be abused. Occasionally, a case exists purely to be able to do discovery. The plaintiffs don’t think they will win, but they want to be able to have a look behind the veil. The discovery process can be very intrusive.

There have been several cases where information gathered during discovery has “leaked”.

If I were to be subpoenaed regarding an article I had written, they would likely ask for all of my sources. For the most part, that is not an issue. I have the citations. But what if they asked me to produce all my communications with other pro-2A bloggers?

That gets a bit more difficult and it becomes intrusive. They might be claiming that I was coordinating with other bloggers. It certainly looks like that sometimes.

I don’t know how many times I’ve written an article and then the next day watched videos from people I respect covering the same subject and answering the questions I posed in my article. Did they read my article and let their muse loose? Did I read the same primary sources that they did?

There have been many instances where I watched the first part of a video to get the identification of a case, then did my research with the primary sources, wrote my article, then finished watching their video.

Back to subpoenas.

A subpoena may:

That is very broad. They may also command somebody to attend a deposition.

Once a subpoena has been created, it must be served. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person —id.. A subpoena cannot be served directly be either party. It must be a third person.

You might know that a subpoena has been issued against you, you do not have to make yourself available to be officially served. Just because they claim you were served, this is not enough.

When a process server serves a subpoena, they will certify that they have done so. When you send a letter by certified mail, requiring a signature, that might not be proof.

I have signed for certified mail for myself, for my wife, for my business, and for companies I was working for. If I signed for it, that does not mean it got to any third party.

The same is true for FedEx and UPS. Even if it says, “signature required”, that does not mean that it was actually delivered to the named person.

Why? Because it isn’t certified.

The person subpoenaed can object. There is a tight window for this of 14 days, or the time set forth in the subpoena. This means that the person would have to get a lawyer, explain to the lawyer why they don’t want to produce the commanded documents or things, and have it all filed in that time window.

One of the big things in the process is the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.—id. Who gets to determine “significant expense?” If it takes me 30 hours to comply, that’s 30 hours of lost earnings. Is that enough to trigger “significant expense”?

The court may quash or modify a subpoena.

Formatting cleaned.

This is where the subpoena of Professor English is so hinky, why do they need all that information from him? Much of what is requested appears to me to be protected materials. It is not privileged, as that refers to attorney-client privilege.

Since I don’t see any filings from Professor English, the court can’t quash the subpoena for “may quash” reasons.

JUST IN: Pro-Palestine protester gets pummeled by Texans after disrupting Texas governor Greg Abbott’s speech.

Gotta love Texas.

The incident happened at a campaign event in Collin County.

The incident happened on the same day as pro-Palestine protesters tried breaching the… pic.twitter.com/QBsHADHgAd

— Collin Rugg (@CollinRugg) January 14, 2024

I will confess there is a bit of schadenfreude.

Time to wake up.

Oakland County Sheriff’s detectives are seeking a first-degree murder charge against a Pontiac man following the death of a homeless man he allegedly beat to unconsciousness.

Rashaan Denee Redmond, 37, is currently held without bond in the Oakland County Jail, charged with assault with intent to murder for the Aug. 21 assault on Blake Louis Sanders, 36. The enhanced charge is being sought after Sanders died Wednesday morning while in hospice care at a relative’s home.

It’s believed he never regained consciousness after the beating, the sheriff’s office said.
…
According to the sheriff’s office, surveillance video from the gas station shows Sanders was sitting in front of the building when a man, later identified as Redmond, pulled up in a gold/beige GMC Suburban with no license plate. Redmond offered the victim a dollar to put air in his tire and, as Sanders is hunched over by the right front tire, Redmond became agitated and sucker punched him in the head, knocking him to the ground. The brutal attack then continued for another minute or so.

As stated in an earlier news release, “Redmond kicked and stomped (Sanders) in the head and face a dozen times before walking away. He then can be seen in the video returning, slapping the unconscious man before spitting on him and tossing his belongings in the air. Redmond soon drives away from the station, leaving the man lying limp on the ground.”

Victim of savage beating at gas station dies, murder charge sought – The Oakland Press

Our biggest failure of training in a defensive mindset is to accept that this level of violence is common out there. Our civilized minds have a tough time understanding that for some, this behavior is acceptable and can and will be used upon us.

And we must understand that our immediate response to this violence must be deadly force.

The “moral superiority” of non-violence and “peaceful conflict resolution” flatlined alongside the victim.

The other day, I noticed that the State of Washington was trying to serve a subpoena on a William English, PhD.

I have not noticed professor English’s name before, according to the state, his study was cited in Hartford v. Ferguson. Digging deeper, I find:

So he was cited. That shouldn’t be a big deal. It is a published paper. It says what we all know, that there are a boat load of “evil” semi-automatic firearms out there. Well over 24 Million gun owners that posses AR-15s or similar rifles.

What is it that they want to find out from Professor English, then? Do they doubt his numbers?

The state wants to know who funded the study, what questions were asked, who participated in the study, what was done to get the study published, and what was said to a number of Second Amendment lawyers and groups. I recognize Cooper & Kirk, Erin Murphy, Paul Clement, and Clement & Murphy. They are all big name pro-Second Amendment lawyers.

What they are not, is parties to the case. They are not representing any parties in the case.

It looks like the state intends to impugn Professor English’s study based on his sources of funding or the fact that he actually has communicated with some of these great 2A lawyers.

Why? The state claims that they have to ban “assault weapons” because there are just too many of them, and they are so dangerous. At the same time, they want to claim that they are not in common use.

The more likely reason is that the state is attempting to change the methodology laid out in Bruen.

The first question: Does the proposed conduct touch fingers with the Second Amendment? Yes, the plaintiffs wish to purchase semi-automatic rifles and the state says they can’t. The act of purchasing and possessing a rifle is clearly covered under the scope of the Second Amendment.

If the proposed conduce is within the scope of the Second Amendment, the state has the burden to show a history and tradition of regulations that are analogous to the modern infringement, in both how and why.

If the infringement is an arms ban, then the inferior court does not need to do anything more than determine that there are more than 200,000 of the arms in common use to find the infringement is unconstitutional. That is because in Heller the Supreme Court said that it is unconstitutional to ban arms in common use.

To escape the “in common use” test, the state has to prove that there are less than 200,000 “assault weapons” in use in the United States. Where “use” means possessed.

On March 9, 2021, the case was docketed coming out of the District Court, District of Maryland. The district court had dismissed their case because [The] plaintiffs acknowledged in their Complaint that Plaintiffs’ theory of liability is foreclosed by the Forth Circuit’s opinion deciding Kolbe v. Hogan 849 F.3d 114 (4th Cir. 2017), and indeed, Plaintiffs’ suit seems to have no grounding in law. — Bianchi v. Frosh, 1:20-cv-03495, (D. Maryland, Mar 04, 2021) ECF No. 28.

In other words, Bianchi brought the suit explicitly to challenge Kolbe, they knew the case would be dismissed by district court, but it was a hoop they had to jump through.

On September 17, 2021, the Fourth Circuit affirmed the inferior court’s order dismissing the case. This was to be expected: As Plaintiffs concede, however, their argument is squarely foreclosed by this court’s decision in Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc). — Dominic Bianchi v. Anthony G. Brown, 21-1255, (4th Cir. Oct 12, 2021) ECF No. 26.

The three judge panel stated that they were not authorized to reconsider an en banc holding. Normally, we would expect a request to hear the case en banc, but the plaintiffs (good guys), know that the Fourth Circuit is going to agree with the state.

They have no interest in getting another negative holding from the Circuit Court, this was just another hoop.

Because, on December 20, 2021, the plaintiffs filed a petition for writ of certiorari with the Supreme Court.

And then the Supreme Court just sat on the case. It was one of the cases that was stuck pending a grant of certiorari on Second Amendment challenges.

Instead of Bianchi v. Frosh, the Supreme Court heard Bruen and issued their opinion in June.

On June 30, 2022, just days after the Bruen opinion, this case was also granted certiorari.

That same day, the Supreme Court issued their holdings on Bianchi v. Frosh. The judgment of the [Fourth Circuit] court in this cause is vacated with costs, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. ___ (2022).

The short translation: “You done messed up, fix it right, dumb asses.”

At this point, the Fourth Circuit had a couple of choices, they could do the same thing that the Ninth Circuit court did and kick the can down the road by tossing it in the lap of the district court. This would have actually delayed the case considerably more than Duncan v. Bonta because the case was not actually argued at the district court level.

They did not kick it down the road. Instead, they took it up, they allowed the state and plaintiffs to file briefs in light of Bruen, then heard the case on December 6, 2022.

For an anti-gun circuit court, this case was moving at light speed. Oral arguments were heard on the 6th of December.

And then radio silence. NOTHING. For a year and a month, complete silence out of the Fourth Circuit court.

During that same time, Judge Benitez heard new arguments in Duncan v. Bonta. He let that state throw everything plus the neighbors’ kitchen sink at the case. Then he told the state to whittle it down to only 100 best matching regulations.

He heard other cases and issued his order in Duncan, “It is still unconstitutional, you morons.”

The Ninth Circuit court then went into overdrive to snatch victory from the jaws of defeat. They claimed that it was a comeback, took the case en banc, and had oral arguments scheduled.

Today, the Fourth Circuit court caught up with the Ninth. Without issuing their opinion, the three judge panel has had the case moved to an en banc rehearing.

This means that a majority of the judges in regular active service on the Fourth Circuit voted to grant the rehearing.

IANAL, this is actually a good thing for The People.

If the three judge panel had ruled for The People, this would mean that a majority of the court was unwilling to accept The People winning. It will require a massive act of defiance for the inferior Circuit Court to rule that Kolbe is still good law. This means that they have to find a different way of allowing the infringement to continue.

Regardless, this puts it all out in the open. And the case can go to the Supreme Court.

If the three judge panel ruled for the state, this would mean that the majority of the court was for the Constitution and The People. They will then issue a favorable ruling. The state can appeal to the Supreme Court, but the Supreme Court can simply deny certiorari and The People win, and the Supreme Court has told the rest of the inferior courts that the Second Amendment means what it says.

The other possibility is that someone on the Fourth Circuit doesn’t want this to go around in circles, again. So even though they agree with the opinion that was to issue, they want to put the stamp of the entire en banc panel on the case.

It appears to be unusual for a case to be taken en banc without the opinion of the three judge panel being published, but we saw something similar happen in the Eleventh Circuit court where the three judge panel decided that 18,19, and 20 year-olds are not part of The People.