So here is Mark Smith. He takes a fairly realistic view of things.
Here is Washington Gun Law, where he takes a slightly better view of what’s possible, perhaps too rosy.
Here is Jared in an inexplicably optimistic view of things.
So I set each up with the little preview because I think Jared may miss the point. This was a case seeking a preliminary injunction, and no final ruling has been made. I think the other two analyses are a bit closer to the truth.
I think it will be hard to get SCOTUS review of this because they are just that stolid and slow to react – and also because of the chief justice. To be sure, this was seeking a preliminary injunction, but it must be remembered that the decisions already written on this assesses the probability of success before these courts.
They may delay the final rulings for another two or three years, or more, but there won’t be another outcome than the one you’ve already witnessed. So even if they don’t, it makes perfect sense for the SCOTUS to take this up now. One wonders what they’re waiting for – perhaps another supreme court justice to die with a pillow over his face like Scalia?
Judge Frank Easterbrook is a so-called “law and order conservative.” Let me translate for you. That’s the same thing as the communists on the alleged other side of the isle. Just like AG Barr, who argued in defense of Lon Horiuchi.
In America, it’s always easy to detect a communist. Just look at his position on the second amendment.
I hate the Fourth Circuit Court of Appeals. I consider them to be about as worthless as the gunk between the toes of my feet. But occasionally they get it right like a blind squirrel finds a nut from time to time.
I’m glad that Mark got a chance to speak before so many appeals court judges, and several supreme court judges, and several supreme court justices too!
Los Angeles homeowner Vince Ricci says he was coming home from the gym when two intruders ran up behind him after jumping the fence in his backyard.
“Out of nowhere I felt someone run up behind me, put something to my back, put a pistol to my back and somebody running up,” the man told ABC 7.
“I guess they decided to try to come at me and come in the house but I have a 5-month-old baby and a wife and a nanny in the house and that wasn’t going to happen,” he said.
“There was nothing in my house that was worth dying for. But I was willing to die for my family,” the dad added.
The state of California didn’t exactly see it that way. They’ve suspended Ricci’s concealed carry permit.
Feel Good Friday
Vince Ricci was forced to defend himself & his family in his LA home.
To thank him for his valiant effort, @LAPDHQ presented him with the key to the city…
Sike, they actually took away his gun permit because he yelled at the dumb ass officer. pic.twitter.com/FElHeUHCeG
In a ruling that seems fated to find its way before the U.S. Supreme Court, a judge in Illinois has recently found that the gun rights of a felon convicted of multiple armed robberies are protected by the Second Amendment.
[ … ]
The finding from U.S. District Judge Robert Gettleman was issued on Nov. 2 and stems from a case involving Illinois resident Glen Price. Price, 37, allegedly brandished a gun and robbed someone on a train in September 2021. Police said he stole a cellphone and a train fare card too. When police arrested him, they found a 9 mm gun in his possession, cocaine, ammunition and a stolen credit card.
Price was charged with unlawful possession of a firearm since he already had a criminal record featuring no less than three felony convictions for armed robbery and one conviction for aggravated battery of a police officer.
“Although there are strong policy reasons for doing everything possible to keep guns off our streets and out of our communities, this court can find no such historical analogue,” Gettleman wrote.
Bruen, the judge reasoned, required courts to deem whether a statute dispossessing someone of their right to own a gun posed a “comparable burden” on the right to bear arms itself.
The judge wrote:
“Although the historical record … demonstrates this nation’s tradition of ‘comparably justified’ categorical dispossession statutes, the government has failed to meet its burden of providing evidence of a dispossession statute with a ‘comparable burden’ to § 922(g)(1). Specifically, this court is not persuaded that the government has met its burden to show a ‘distinctly similar or even a relevantly similar’ historical analogue to 922(g)(1)’s permanent prohibition on firearm possession by felons which can only be lifted by expungement, federal pardon or other method of restoring civil rights that lifts the underlying offense from a conviction …”
By failing to provide felons with any means to repair their lost gun rights, there is a “far greater burden on the right to keep and bear arms,” Gettleman found, “than the historical categorical exclusions from the people’s Second Amendment rights.”
“The government has not demonstrated why the modern ubiquity of gun violence, and the heightened lethality of today’s firearm technology compared to the Founding, justify a different result. This nation’s gun violence problem is devastating, but does not change this result under Bruen which this court finds rests on the severity of § 922(g)(1) rather than its categorical prohibition,” he wrote.
I suspect that this is a disingenuous ruling. That same judge would likely find ownership of semiautomatic rifles unconstitutional.
You see what’s happening, don’t you? They’re trying to force the SCOTUS to review their Bruen test of historical analogues. I suspect it won’t work. I suspect that the supreme court will do is allow confiscation of firearms in cases of violent crimes and disallow confiscation of firearms for non-violent felons, and say that it all comports with Heller and Bruen.
Anyway, if you apply Biblical law, I see no problem whatsoever. As I’ve said so many times before, I don’t believe in the rehabilitative power or authority of the state. The Scriptures give no such authority to the state, only to the family and church. Further, since the Scriptures give no such authority to the state, that implies that the state has no power or tools to effect rehabilitation.
With the Holy Writ, I believe in retribution and restitution. Retribution for violent crimes against others (the death penalty for murder, rape and kidnapping), and imprisonment to the offended party to repay debts two or three-fold. If you advocate incarceration of criminals who owe debts to offended parties while they work off their debts for repayment to the offended parties, I’m okay with that.
But no one owes a debt to society or the government writ large. Debts are always to individuals.
In the oral argument he presented from the trial, I’m surprised that, when questioned by the judges, the lawyer didn’t bring up the analogy that if a city, county or state chose to tax firearms or ammunition to the point that poor people couldn’t afford them, that would be a violation of the second amendment. Likewise, preventing anyone from being able to practice with firearms also violates the second amendment.
It’s our choice how and when to train, and what to train with, as well as what firears to own.
If I went to a junk yard and picked up a piece of metal that used to be part of a truck, no reasonable person would say I’m holding a truck because the metal has been formed beyond primordial ooze and hence could be “completed, assembled, restored, or otherwise converted to function” as either a truck or truck frame. Likewise, if I cut a truck into 100 pieces, scattered them on the ground, and then picked up some, no reasonable person would say I’m holding a truck or truck frame because the piece hadn’t been melted down to its primordial state.
[ … ]
Consider the “cakes that look like food” Internet trend. See, e.g., Chelsweets, Cakes That Look Like Food: 10 Amazing Cakes, YouTube (Jan. 22, 2018), https://perma.cc/UGH6-MXA2. One could make a cake that looks like a hamburger, just as one could make a cake that looks like a gun frame or receiver. One is “clearly identifiable” as a hamburger, just as the other is “clearly identifiable” as a gun part. But that does not make the former taste like a Big Mac, just as it does not make the latter covered by the GCA.
The Fifth Circuit has got some characters. I like them.
And Mark Smith is in the mines digging for nuggets of gold in the fight against the controllers. Honestly, I cannot think of a character as odious to me as AG Garland. I feel like puking every time I hear him speak. The lying, conniving, controlling little weasel.
Throughout her colloquy with the justices on behalf of the Biden administration, Prelogar spoke to the justices using their own words, missing no opportunity to argue that “historical tradition” actually favors her argument in the case.
For example, when Chief Justice John Roberts asked whether “irresponsible” or “dangerous” are too vague or subjective to be persuasive, Prelogar reminded him that she was not using the words in their colloquial sense. Rather, Prelogar argued, “history and tradition” provide a rich context for what the terms mean.
“Irresponsible” corresponds only to precedent directly related to the specific danger of gun possession, Prelogar explained. She offered that “irresponsible” has historically been used to distinguish a person who may not be legally culpable for reasons of age or mental disability, but in whose hands a firearms would present a particular danger.
The history and tradition of the word “dangerous” also supports labeling a domestic abuser as such, she continued.
“So there’s no daylight at all then between “not responsible” and “dangerous,” pressed Justice Brett Kavanaugh.
An unwavering Prelogar answered, again quoting the justices’ own words: “Yes, that’s what history and tradition said.” She expounded, telling Kavanaugh that in the past, the Supreme Court itself has consistently interpreted those terms in just the way the Biden administration urges it to do now.
Justice Amy Coney Barrett joined the conversation to raise an interpretive question of her own.
“So it’s not a synonym for ‘virtue,’” queried Barrett about the term “responsible.”
Prelogar bluntly rejected Barrett’s suggestion and said the term is clearly linked to dangerousness with firearms, and not to amorphous concepts of responsibility.
In addition to figuratively meeting the conservative justices where they were on the matter of “historical tradition,” Prelogar also offered an alternative take on the framework set out by Thomas in Bruen. Throughout her argument, the solicitor general argued that history and tradition are perhaps not the stalwart beacons of freedom the conservative majority has held them up to be.
Prelogar made a glaring point, beginning with Thomas as her primary audience: A look into the nation’s history and tradition, she argued, reveals that the Second Amendment was meant not to apply to entire groups of people, and slaves and Native Americans were excluded. The theme reemerged several times throughout the nearly two hours of oral arguments. In the founding era, such categories of people were not considered to be “among the people protected by the Second Amendment,” and generally stripped of other rights as well, Prelogar contextualized, denouncing the inequality as “odious.”
Justice Ketanji Brown Jackson later suggested, “Is there a flaw with history and tradition? Are we only considering history of some of the people?”
Prelogar also cleverly worked in a key debate point about “historical tradition” in a round of questions from Thomas. When the conservative justice, often known for skepticism about overreaching administrative power, asked Prelogar whether she would change her position if Rahimi had been the subject of an administrative order, as opposed to a civil order, Prelogar again used some of the justice’s own logic in her argument. She responded that an administrative determination would be different, but that more modern American law supports the distinction — as contrasted with “historical” (or English) legal principles.
When Jackson questioned Prelogar, she raised yet another key point with respect to the role of “historical tradition” in the context of gun rights for domestic abusers. The justice, making a key point to the conservative majority via question to Prelogar, noted that historically, men — including domestic abusers — were not perceived as “dangerous” from a standpoint of disarmament.
“Unwavering.” “Bluntly.” “Cleverly.” Ms. Nanos is engaging in some hero worship and hopeful projection here. That’s not at all what happened in the Rahimi arguments. I think she fails to grok the gravity of what happened during the arguments and Q&A.
I wanted to let the dust settle on this before I weighed in. As for my opinion, briefly, I agree with the Fifth Circuit’s ruling on this. There was nothing incomplete or wrong with it. In fact, it correctly concludes that oftentimes, the claimed offended party is the one who is being placed in a position of increased danger if in fact the claims of abuse or danger are correct and truthful, since many times restraining orders of the kind dealt with in Rahimi apply to both parties. She can’t have a weapon of any kind either. The Fifth Circuit brought that very point up.
But here we are at the supreme court hearing arguments, so it’s better to focus on what happened. Ms. Nanos is likely very wrong about where this will go. Ms. Prelogar, in invoking history and tradition, further endorsed the Heller/Bruen methodology of text first, burden being placed on the government if a case “touches fingers” with the second amendment, and then appeal to the laws at the time of the founding. It may be true that there were such laws in place at the time of the founding – and Rahimi may lose his case on the question of facial unconstitutionality of the statute.
But that’s not even nearly all that happened. She constantly conflated the notions of “dangerous” and “irresponsible,” and repeatedly contradicted herself in her answers. In fact, questions from Roberts and Barrett focused on that very issue, with both of them repeating the question to make sure of her answer (likely speaking to fellow justices in the process). Ms. Prelogar lost both Barrett and Roberts during the arguments as can he detected from the questions. If the DOJ had focused on the facial constitutionality of the statue in question, she would have won and that would be the end of it.
As it currently stands, the supreme court is much more likely to make it clear in their ruling that someone who has been deemed “irresponsible” doesn’t fall under any such statute. And in fact, it makes them much more likely to take up the Range v. Garland case just to make it clear that non-violent felons (and other “irresponsible” people) don’t lose their rights.
The state would love nothing better than to be able to remove second amendment rights of anyone they deem to be irresponsible, e.g., social media bad words, don’t like vaccine mandates, don’t like forcible mask mandates, don’t like tyrannical governments, etc., well then, too bad for you but you lose your rights. That’s what Ms. Prelogar was arguing for. She didn’t get it. No decision which lacks the support of Roberts and Barrett will prevail.
If you don’t believe me, listen to Mark Smith, who analyzes the case better than I can. Right after that, listen to Langley Outdoors Academy where I think he does the best breakdown of the Q&A of anyone I’ve heard. So, listen to Mark for the legal analysis, and Langley for an expose of the Q&A on which Mark’s analysis is based. Then you might want to watch Washington Gun Law where his analysis basically agrees with Mark’s. None of this dovetails with Ms. Nanos’ presentation, but what do you expect from a rag like Law & Crime?
11 months, 2 weeks ago
