United States 2nd Amendment Legal Cases and Law Discussion

[Cherico]

Ugh.

On Second Amendment, Supreme Court Abdicates Its Duty to Say What the Law Is

We’ll have to wait even longer for the justices to correct the massive resistance to the right to armed self‐defense.

www.cato.org

This is disappointing. Hopefully Trump wins and gets to replace Ginsburg or Breyer. If that happens before SCOTUS starts digging into 2A cases then we might get some really good precedents.

Still, I kinda wish the other four had been willing to make Roberts shit or get off the pot.

I don't think Ginsburg is long for the seat, she's old and in bad health. It makes 2020 a whole lot more important.

 

[f1onagher]

Roberts is a chickenshit, but loathe as I am to admit it he's not a stupid chickenshit. I have to assume there was some strategy to this call. Still displeased with the punt.

 

[bullethead]

I don't blame them for punting. Roberts is too unreliable to depend on for Second Amendment cases, and to be honest, the conservative justices should've pushed harder against the mootness argument on the NYCPSA just on the procedural grounds.

Like, the case Roberts was least likely to fuck up was one of the New Jersey cases, since that only focused on state restrictions, but his track record has been to lean in favor of law enforcement and federal restrictions. That's why he's so undependable in this context.

 

[bullethead]

The ATF continues to be heels of unparalleled douchebaggery:

Breaking News: ATF's Secret Brace Ban -

The ATF is at it again. On the surface they are trying a brace ban. But under the surface lies a darker issue. They are secretly trying to ban the brace. The ATF is going against executive orders and making secret rules and policy without the public's knowledge and yet are held responsible to...

www.thefirearmblog.com

Congressman Matt Gaetz announced today on his podcast the ATF is crafting secret rules restricting the possession of certain pistol braces by American citizens, and that he has sent them a letter demanding they stop.

“We understand that ATF is currently considering restricting one arm brace model owned by over 700,000 Americans,” Congressman Gaetz writes along with six other members of Congress. “We strongly urge ATF to cease taking any actions and reconsider or rescind any secret determinations which call into question the legality of firearms owned by millions of law-abiding Americans.”

“There is always a need to vindicate our Second Amendment rights,” Gaetz says on his podcast, “Hot Takes with Matt Gaetz.”

Click here to listen to the pod cast. 6:00 minutes in is where he talks about the brace ban.

However, here's some good news:

The President enacted two executive orders (EO) that address this issue.

1. Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents
2. Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication

The first EO basically says that public guidance does not have the force or effect of law. We saw this earlier in Benjamin F’s article about the ATF admitting they do not have legal authority. The second EO states that private letters cannot use standards that are not publicly stated in guidance documents.

These two EOs go hand in hand and directly address what the ATF is trying to do. They can’t have a set of secret rules that the public is not aware of and yet are responsible for following. On top of that said rules are not considered enforceable as law.

That said, better complain to your congress people about this, so the ATF can get yelled at for making you yell at them.

 

[Bear Ribs]

I'd like to talk about a specific murder case that I think is useful to anybody who thinks about self defense. This particular one is important because in the space of a minute or so you can cover valid self defense, technically bad self defense, and murder. I actually went over this case in close detail as part of my own weapons training.



Two armed teenagers invaded the pharmacy and demanded money and drugs at gunpoint. The pharmacist drew a Taurus Judge and shot one of the attackers at 0:12 (I'm told it was a headshot though I have my doubts, a Taurus Judge is no joke and I'd expect to see more blood). This is self defense. He then pursued the retreating robber at 0:20 outside his store. This is not legit self-defense, however it's very human nature to pursue a threat still in your territory, and he'd be extremely likely to get off if he were charged and it ended there.

He then returns, steps over the downed body, and draws a second firearm from the drawer and shoots the downed robber repeatedly at 0:48. This was judged to be murder by the jury, and I agree with them. He had no right to execute somebody who was unconscious and not moving at all (additionally the kid was probably already dead from the first shot but that doesn't matter to the discussion). He tried to pull the defense that the guy was between him and the phone but given that he walked past his phone to get the second firearm that was obviously BS.

For those who want to discuss self-defense I find this useful for seeing what a good and a bad kill look like side by side, especially since they're to the same person.

 

[Tzeentchean Perspective]

Meanwhile, Armslist won in a case started by Brady:

Armslist Defeats the Brady Campaign to Prevent Gun Violence's

Armslist has won yet another case against the Brady Center to Prevent Gun Violence.

www.ammoland.com

I will merely assume that with the day-one firestorm of Russia hysteria and investigations, fixing the ATF isn't a very-high priority task.

 

[bullethead]

Here's some good analysis of the Supreme Court's 2nd Amendment actions:

The Supreme Court Fiddles While the Second Amendment Burns - Part 1, An Abdication of Duty - The Truth About Guns

The first of three posts on the abdication of the Supreme Court where the Second Amendment is concerned and where we go from here.

www.thetruthaboutguns.com

As of today, there is only one gun case of note now pending on certiorari — Rodriguez v. City of San Jose, where GOA filed the only amicus brief supporting the petition on May 20, 2020. The Supreme Court ordered San Jose to file a reply to the petition — always a good sign — and we hope for the best, but there is no guarantee that Rodriguez will not go the way of the other 10 petitions. On June 17, 2020, the City of San Jose filed its opposition brief, and although San Jose took the unusual step of withholding consent to the filing of GOA’s amicus brief, San Jose addressed several of the arguments raised by our brief, referring to us as “proposed amici.”

The most likely reason that the High Court rejected all 10 cases was that there was one (or more) anti-gun Justice(s) among the five Republican-appointed judges on that Court who could not be trusted. (Who might that be?) If so, it would be better to wait for President Trump to get re-elected, and have one more Justice appointed to replace a Democrat, to assemble a majority of five pro-gun votes among six GOP justices, rather than allow Chief Justice Roberts (who upheld Obamacare) or Justice Gorsuch (who just rewrote the 1964 Civil Rights Act) to again side with the solid anti-gun Democratic bloc on the Court, the pro-gun justices would continue to bide their time.

Supreme Court inaction is certainly not the worst thing that could happen. President Trump’s appointments to the lower federal courts are turning some of the twelve federal circuits from anti-gun to pro-gun, and every month that passes, the turnover in lower court judges improves gun rights. And it certainly is true that a bad Second Amendment decision would be worse than inaction, as it would undermine — not strengthen — the power of the Supreme Court’s most recent guidance in Heller and McDonald.

However, others briefing the case fell back on what was familiar to them and argued Heller as though it were a First Amendment case, employing judge-made standards of review based on classifying rights as “fundamental” or not, “interest balancing,” and standards of review such as “strict scrutiny,” “intermediate scrutiny,” and “rational basis” analysis.

These other lawyers did not see the danger in arguing First Amendment tests should be applied in the Second Amendment arena. But, there is a fundamental difference. With the First Amendment, the government’s interests are often not substantial. However, with guns, the courts must weigh the government’s interest in public safety against the people’s right to arm themselves — a construct where public safety almost always wins.

Basically, the guys arguing in Heller goofed by pushing the super malleable First Amendment standards, and because of that, pro-gun control states can abuse the shit out of the huge leeway in what "public safety" means to restrict stuff with near impunity.

 

[bullethead]

Here's some interesting articles on the Supreme Court avoiding the 2A cases:

A Court in Denial

firearmslaw.duke.edu

In terms of what’s next, I mostly have guesses. The major issues in Second Amendment jurisprudence—who the right protects, where the right can be exercised, and what weapons it covers—were all on the docket this year. So too were fairly unique laws, like California’s microstamping requirement, of the kind the Court might have been tempted to take to minimize disruption from a ruling. If the Court did not act on one of these, why would they ever take another? I can see at least a few ways a new case could get there (and I very well might be missing other ways):

1. SCOTUS’s hand gets forced. This could happen if, for example, a federal appellate court strikes down a key federal law, like a ruling that facially invalidates the felon prohibitor. I’d have to think the Court would then be forced to take the case.
2. A new or deepened circuit split. I’ve written about how surprising it is how few circuit splits there are in this area, but there are some. One, as noted, is on public carry. The Ninth Circuit could side with the D.C. Circuit in its case this fall and make the split deeper. That could put more pressure on the Court. Or a new split could develop or grow deeper in other areas, such as whether a person prohibited from possessing firearms can raise an as-applied challenge.
3. The election happens. It is possible that with all the hot-button issues on the docket this year, the Court did not want to generate more controversy around election time. Maybe the judicial appetite will return post-November.
4. Congress passes new/stricter gun laws. If a new Congress decides to pass a slate of new gun regulations, that might also put pressure on the Court to adjudicate the issues—especially if appellate courts are reaching conflicting conclusions on a question of federal law.

OSD 69: SCOTUS out, time to build

The Court denied all ten pending 2A cases. But our new path forward is the same as the old one.

opensourcedefense.substack.com

That last sentence sums it up. You’ve got four justices tipping their hands that they’d vote to grant cert on more 2A cases. Remember, four votes is all you need. And then two months later, all ten 2A cases before the Court get denied?

That can only have happened if at least one of the four justices voted to deny. Their track records on this are all long enough that they wouldn’t have done that out of a change of heart. The much likelier explanation is simple: they knew they had four votes, but didn’t know if they had five. And they’d rather deny cert on gun cases until they’re sure they have a fifth vote, to avoid setting bad 2A precedent.

So now we know where things stand. We shouldn’t expect any 2A cases to be heard by the current Court. Supreme Court action is extremely powerful, which is why it draws so much attention, but it’s just one avenue. And for guns, it has been a less important one than you might expect. Heller and McDonald were landmarks but they had minimal real-world effects — they mostly only affected D.C. and Chicago.

All the progress we’ve made as a community — the CCW tidal wave; the AR-15’s ascent into ubiquity; the long-term polling shifting towards gun rights, especially among young people — that has all been done with essentially zero help from the courts. So the job today is the same as it was yesterday: keep the work going. Make more gun owners. Train them up. Build the community. Be cool and friendly. If this whole community keeps working on that like it has been for the past 10+ years, we’re going to get the results that we all want to see.

An interesting take on how there can be disagreeing interpretations of the phrase "bear arms" in the 2nd Amendment:

Bostock, Textualism and the Meaning of “Bear Arms”

firearmslaw.duke.edu

It’s easy to see how these textualist disputes are germane to the open question of the meaning of “the right . . . to . . . bear arms.” Taking these words literally, as Justice Gorsuch does in Bostock, in 1791 “bear” meant “carry”; “arms” meant “weapons,” and therefore a right to “bear arms” meant simply a right to “carry weapons.” This is the predominant argument among gun-rights advocates. Conversely, as Justice Kavanaugh suggests, the ordinary meaning of “bear arms” is not the literal meaning of “bear” plus “arms” in 1791, but the ordinary meaning of the phrase “bear arms.” And “bear arms” – as recent big-data research of eighteenth-century records shows – is a phrase with a military and collective meaning, not a phrase that meant simply to carry weapons.

Bostock demonstrates once again that a shared commitment to textualism does not lead invariably to shared outcomes, nor to outcomes easily predicted by political ideology.

Closing it out, here's something that really sticks out to me - recontextualizing gun control vs gun rights as a centralized vs decentralized control paradigm:

Everybody agrees on guns, and they just realized it | Open Source Defense

My college astronomy professor used to describe his craft like this: “My job is to build predictive models.” As an astronomer, you build a …

opensourcedefense.org

The common framework for thinking about the history of gun laws is “gun control vs. gun rights”, but almost nobody truly supports the first half of that. There’s a different framework that has a lot more explanatory power and actually captures everybody’s beliefs: the centralized model of gun rights vs. the decentralized model.

And historically, the vast majority of debate has simply been infighting on the first half of that — an argument about who gets to be the central authority, and whose gun rights they should defend.

The reason for that misunderstanding is what we ran through earlier in this piece: gun control is actually just a particular flavor of the centralized model of gun rights. So its adherents come at this from the understanding that everyone’s on the centralized model, and they’re just disagreeing about who should get the steering wheel. So of course they’d predict racism on the other side: they have good reason to! Historically, the centralized model has been used by powerful groups to control weaker groups. That’s how it works, by definition.

But today’s gun rights community is as confused by that as they are insulted. They’re not coming from the centralized model, where gun rights flow through a central authority. Gun rights people today are native to the decentralized model, where gun rights — the right to self-defense, really — are intrinsic to all people, with no authority needed (or wanted) to bless them.

So on one side, you’ve got gun control people arguing about which particular flavor of centralized model ought to be law. On the other side, you’ve got gun rights people arguing for the decentralized model. Each side thinks their model is the one that the other side should value. So weird things happen when they argue.

 

[bullethead]

Folks around here may or may not be familiar with the case of the McCloskey family, who have been charged with a felony for standing outside their house in St. Louis with guns while protestors crowded around it, having broken through a gate to get on to private property. The Missouri state attorney general has just put in an amicus brief supporting dismissal of the case:

https://ago.mo.gov/docs/default-source/default-document-library/2020-07-20---state-v-mark-mccloskey---amicus-brief-of-attorney-general-schmitt---filed.pdf?sfvrsn=97e7ed6d_2

It's 12 pages, but it's a pretty easy read, much like a Benetiz ruling.

 

[Zachowon]

Folks around here may or may not be familiar with the case of the McCloskey family, who have been charged with a felony for standing outside their house in St. Louis with guns while protestors crowded around it, having broken through a gate to get on to private property. The Missouri state attorney general has just put in an amicus brief supporting dismissal of the case:

https://ago.mo.gov/docs/default-source/default-document-library/2020-07-20---state-v-mark-mccloskey---amicus-brief-of-attorney-general-schmitt---filed.pdf?sfvrsn=97e7ed6d_2

It's 12 pages, but it's a pretty easy read, much like a Benetiz ruling.

Wasnt the Govenor going to pardon them should they be convicted?

 

[Cherico]

Folks around here may or may not be familiar with the case of the McCloskey family, who have been charged with a felony for standing outside their house in St. Louis with guns while protestors crowded around it, having broken through a gate to get on to private property. The Missouri state attorney general has just put in an amicus brief supporting dismissal of the case:

https://ago.mo.gov/docs/default-source/default-document-library/2020-07-20---state-v-mark-mccloskey---amicus-brief-of-attorney-general-schmitt---filed.pdf?sfvrsn=97e7ed6d_2

It's 12 pages, but it's a pretty easy read, much like a Benetiz ruling.

so basically were looking at an up and coming legal smack down.

 

[Shipmaster Sane]

(I'm told it was a headshot though I have my doubts, a Taurus Judge is no joke and I'd expect to see more blood).

Dont say that kind of thing.

 

[Terthna]

Folks around here may or may not be familiar with the case of the McCloskey family, who have been charged with a felony for standing outside their house in St. Louis with guns while protestors crowded around it, having broken through a gate to get on to private property. The Missouri state attorney general has just put in an amicus brief supporting dismissal of the case:

https://ago.mo.gov/docs/default-source/default-document-library/2020-07-20---state-v-mark-mccloskey---amicus-brief-of-attorney-general-schmitt---filed.pdf?sfvrsn=97e7ed6d_2

It's 12 pages, but it's a pretty easy read, much like a Benetiz ruling.

Apparently, the prosecution has also been caught tampering with evidence:


The fact that they could get away with this, likely means there needs to be a full-scale corruption investigation into them.

 

[bullethead]

Wasnt the Govenor going to pardon them should they be convicted?

Yes, but the attorney general is like "Why are we even getting to trial with this shit?"

Actually getting the case dismissed will be a bigger fuck you to the prosecutor and mayor in St. Louis than the pardon.

 

[bullethead]

Well, here's an interesting new case that just popped up:

O'Keefe Sues FBI, Wrongfully Denied Right To Bear Arms

Unlawfully placed on FBI's NICS list as a convicted felon

www.projectveritas.com

[New York, NY – August 6, 2020] Project Veritas Action and Project Veritas today released a video of James O'Keefe III, who has never been convicted of a felony, being denied the right to keep and bear arms. The rejection has led O’Keefe to file a lawsuit against the Federal Bureau of Investigation (FBI).

When asked why the FBI has denied his ability to purchase a firearm, the FBI disclosed O'Keefe is falsely identified as a convicted felon on the NICS (National Instant Criminal Background Check) list. He has never been convicted of a felony.

“The lawsuit is being filed in the Southern District Court of New York seeking an order requiring the FBI to remove him from this list as required by law under 18 U.S.C. § 925A,” said Jered Ede Esq., who is representing O’Keefe.

“Notably, the FBI has not disclosed what information it is relying on to place him on its watch list,” Ede stated in the complaint filed with the court.

 

[Urabrask Revealed]

Well, here's an interesting new case that just popped up:

Yeah, this is why the FBI either needs to be dissolved, or at the very least purged and staffed with new people.

 

[Zachowon]

Yeah, this is why the FBI either needs to be dissolved, or at the very least purged and staffed with new people.

Purged, they play an important role

 

[bullethead]

James O'Keefe gets interviewed by Stephen Stamboulieh, a lawyer who's taken on a number of 2nd Amendment cases:

 

[Terthna]

Purged, they play an important role

What role is that?

 

[Zachowon]

What role is that?

Federal law enforcement and investigations. They run multiple data bases that help law enforcement agencies. They are one of Americas best domestic assets, since the other big name intel agencies cant work on US Soil..