Category: Legal

Federal district court Judge Roger Benitez has issued a preliminary injunction stopping enforcement of Prop. 63‘s ban on the possession of standard capacity magazines. The judge found that irreparable will be done to law abiding California gun owners should the ban be allowed to go into effect pending litigation.

The Court does not lightly enjoin a state statute, even on a preliminary basis.
However, just as the Court is mindful that a majority of California voters approved
Proposition 63 and that the government has a legitimate interest in protecting the public
from gun violence, it is equally mindful that the Constitution is a shield from the tyranny
of the majority. Plaintiffs’ entitlements to enjoy Second Amendment rights and just
compensation are not eliminated simply because they possess “unpopular” magazines
holding more than 10 rounds.

If this injunction does not issue, hundreds of thousands, if not millions, of
otherwise law-abiding citizens will have an untenable choice: become an outlaw or
dispossess one’s self of lawfully acquired property. That is a choice they should not have
to make. Not on this record.

Accordingly, with good cause appearing for the reasons stated in this opinion,
Plaintiffs’ motion for a preliminary injunction is GRANTED.

Judge Benitez found that while the new law arguably fails the simple 2nd Amendment tests suggested by the Supreme Court in the Heller case, the law also likely fails the more lenient tests favored by the Ninth Circuit. The judge, who is based in San Diego, is bound to use the Ninth’s screwball tests; tests that seem like they were concocted to uphold whatever gun law comes before that court! But even under that low bar, the judge thinks that the State would fail to make its case.

The judge extensively examines the arguments presented by Attorney General Xavier Becerra’s office. The DOJ presented over 3100 pages of “evidence” supporting the law, but most of it can be summed up by the Dothraki phrase Me nem nesa; “It is known”. The “evidence”, which the court was apparently supposed to accept without question, is mostly anecdote, news clippings, and position papers. There’s also a curious reliance upon Mother Jones as an authority. (Some of you will recall that I’ve cited Mother Jones in these pages. But, I did it in the sense of “Look, if even Mother Jones says that    (Fill in the blank)    isn’t true, then it isn’t true.”) We were all just supposed to “know” that Prop. 63 is vital to public safety and that an injunction was thus unjustified. (For you GoT fans, the judge was expected to play the part of the Dothraki girls telling Daenerys Targaryen that “it is known” that dragons don’t exist anymore while there were all in the same tent with three dragon embryos!)

One a side note for those of you keeping score: Prop. 63 was also intended to be one of the jewels in Gavin Newsom’s gubernatorial crown. The whole thing wasn’t so much about keeping Californians safe as it was about getting the slimey, used car salesman into the Governor’s mansion.

Legal News

Legal News

It’s official!

Special thanks need to go out to former Senators Harry Reid and Joe Biden. Thanks to the Biden Rule and the Reid Rule, we’re saying “Justice Gorsuch” instead of “Justice Garland”. After the Senate applied the rules he once supported, anti-gun fruitloop Chucky Schumer wasn’t able to stop Justice Gorsuch’s nomination.

Does this guarantee solid, conservative/libertarian rulings from the Court? Of course not. The (usually) 5-4 majority has been restored, but that doesn’t tell us how people like Anthony Kennedy or John Roberts will vote. We’ll be able to breath easier once Justices Ginsburg and Breyer have decided to ride off into the sunset. Additionally, Gorsuch isn’t a results oriented jurist. If lawyers appearing before the Court expect him to rule in their favor, they’d better have convincing, Constitutionally grounded arguments. He’s a reals over feels kinda guy.

All judges should be like this, but sadly they aren’t. Far too many, including many appointed by Republicans, rule based upon what public policies might flow from said ruling. A proper judge should rule based upon what the law and the Constitution require. If we don’t like the subsequent results, then it’s up to the People and their representatives to change the law and/or the Constitution; not a bunch of unelected clowns in black robes.

Legal News

At what point does a species go from endangered to extinct? Is it when the last individual dies? Or is it when the last individual of one gender dies leaving a lone survivor? This may not seem to be a gun related topic; but, here in California, it is. The State’s attempts to “save the condor” affect hunters in particular and gun owners in general. Laws on lead ammunition will ultimately determine the ammo choices, and costs, that even non-hunters will have when they seek ammunition for self-defense or other non-hunting applications.

The popular view of extinction is the latter of the two listed above. When the last male or the last female dies, breeding another generation becomes impossible. Or does it? Cloning might offer hope, some would argue. But recent studies suggest that it was all over for a particular species long before the last breeding pair was parted. This study of Woolly Mammoth populations shows how a species can pass the point of no return even while there may be hundreds of individuals still alive. (Here’s something of a Cliff Notes version from the NY Times.) The study documents the dramatic loss of genetic diversity in the last known mammoth population.

The last mammoths of Wrangel Island died out about 4000 years ago. The DNA of one individual that died about 300 years before that point was compared to the DNA of a mammoth from Siberia that lived 45,000 year ago. The genetic diversity was about 20% lower in the younger sample and showed signs of multiple, deleterious mutations that would have hindered the ability of the Wrangel Island population to survive changes to their environment. The estimate of the island’s mammoth population 4300 years ago is 300 breeding individuals. (There may have been more individuals present on the island, but only 300 or so were actively breeding.) This proved to be too small a population to sustain the species. Harmful mutations built up and natural selection couldn’t weed them out of so small a population.

In 1987, when the last wild California Condor was captured at the start of the State’s breeding program, there were 27 individuals left in the world. Out of that group, only 13 were breeding individuals. All California Condors alive today are descendants of those original 13. Making matters worse, there’s a very good possibility that all 13 were closely related. If that’s the case, then the entire population of California Condors in the world today is descended from less than 13 birds.

Current law regarding endangered species focuses on simplistic census numbers; how many animals exist. 300 large animals on a 2900 square mile island would seem, by this measure, to be a healthy population. It wasn’t. But laws such as the Endangered Species Act were written before science could accurately describe a species’ genome. It assumes that having more individuals in a population is automatically good. But, if all of these individuals are closely related, then even a large population isn’t healthy and isn’t sustainable. Merely counting heads won’t save a species from extinction.

The question to be asked about new or existing laws here in California isn’t “Will this save the condors?”, but rather “Is saving the condors even possible anymore?”. Arguably, the answer to that question is “no”. Gymnogyps californianus is already extinct when one considers their genome. But all of this goes further than condors. Recent studies have shown that some “endangered” wolf species aren’t wolves; they’re coyote hybrids. Under current law, this means that they’re not endangered at all.

It’s time for the law to catch up to science. More than nose counting must be done to determine which species need protection, which do not, and which are beyond hope; and thus, where we should spend our finite government resources. Attempting to save an already extinct species or a hybrid population isn’t a good way to spend the People’s money. Worse yet, we hurt species that can be preserved with these quixotic attempts to “save” extinct species and hybrid populations.

Condors Conservation Legal News

Watch out 9th Circuit! The 4th is a-comin’ fer ya!

San Francisco’s 9th Circuit Court of Appeals has the dubious distinction of being the most overturned court in the Federal judiciary. Over 80% of 9th Circuit rulings reviewed by the Supreme Court get tossed. Not to be outdone, the 4th Circuit issued this ridiculous ruling in the Kolbe case. The court’s en banc panel held that, and I’m paraphrasing a bit here, since “assault weapons” are icky and scary looking, they’re not protected by the 2nd Amendment. The court contends that the affected semi-automatic firearms are “weapons of war” and thus not protected as per Heller.

This is, of course, an incorrect reading of Heller as well as the facts.

While the Heller ruling was narrowly confined to Washington D.C.’s handgun ban, the Court did caution against reading the ruling as only applying to handguns; that the 2nd Amendment may apply to firearms such as semi-automatic rifles. Justice Scalia writes:

   Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26

    We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16Ala. 65, 67 (1849); English v. State, 35Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

    It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

While “dangerous and unusual” weapons are not protected, those “in common use” are. And “Black rifles” certainly are in common use! There’s a reason why the AR-15 is called “America’s Rifle”.

This ruling is doomed to reversal once it reaches the High Court. There it will join similarly goofy rulings from the 9th Circus. It is nothing more than a temper tantrum issued by a pack of black-robed idiots. But the fact that it will be short lived does not undo the damage that it will cause. There are law abiding citizens within the 4th Circuit’s jurisdiction that are now at risk of having their rights violated while the ruling is in force.

The more long lasting damage is to the law’s reputation. We have mentioned before that laws and court rulings that make a mockery of the law erode respect for the rule of law; and this is a very dangerous situation. A civil society cannot exist in the absence of the rule of law. As upsetting as this might be to some special snowflakes, society needs rules that everyone can follow. Rulings like this one upend the rules. Instead of a Constitution that sets firm limits on the power of Government, the 4th Circuit would replace it with judicial whimsy. This reduces the rule of law to a game of Calvinball.

…which is only funny if a boy and his stuffed tiger are involved. It’s not so funny if you’ve been arrested for something that was legal last Tuesday and might be again at the next new moon.

Legal News

The California DOJ recently withdrew a proposed set of regulations to enforce the State’s new “bullet button” ban. This ban redefines an “assault weapon” to mean any detachable magazine centerfire rifle with two or more features from the naughty list; such as an adjustable stock or a pistol grip on the forearm. While the proposed regulation were an overreach of the law’s intent, they were still rules that could be followed.

The firearms manufacturing community has been introducing new products that would allow Californians to comply with the terms of the law without having to register their rifles as “assault weapons”. (Remember: Registration == Confiscation!) But, by delaying their new rules, the CA-DOJ makes it uncertain which of these new products would actually pass the department’s legal tests. Thus we cannot say with certainty that a “featureless” rifle configuration is really featureless under the law. Nor can we say that a particular magazine release system truly satisfies the requirement that the action of the gun be disassembled to remove the magazine.

One does have to wonder: Is this delay deliberate? Is its purpose to prevent manufacturers from introducing legal products for California gun owners ahead of the ban’s January 1, 2018 enforcement date? Without these products, Californians would be forced to register their legally owned firearms with the State to stay compliant. Or…

Legal News

So speaking of confirmation bias, this leaked ATF whitepaper is a fine example of something that needed to be slow-rolled before we shouted it from the rooftops. It’s not that it’s too-good-to-be-true. In fact, it seems to be legit. (Someone at ATF needs to be taught that “reply all” is not your friend.) So now, after a little time to let things settle, it appears that the time is ripe to discuss the leaked memo.

The whitepaper is a call to reevaluate some longstanding rules and policies at the ATF. Among these are an acceptance of “Modern Sporting Rifles” as soundly falling within the scope of the GCA‘s “Sporting purposes” requirements for legal importation. Included is an admission that these firearms are indeed used in sports such as hunting and 3-gun competitions. (Mind you, this doesn’t mean that we’re accepting “sporting purposes” as a legitimate, constitutional restraint on gun ownership. The 2nd Amendment isn’t about sporting goods! However, the GCA is part of the current legal paradigm that we need to work within.) There is also a call to loosen, or eliminate restrictions on silencers (and their parts) as NFA items. Silencers are legal in most States and the ATF’s inboxes are clogged with the  backlog of NFA applications for them.

The big take-away from the whitepaper is that there are reams of ATF regulations that do not advance public safety. Taking silencers as an example, there are almost no prosecutions for the illegal use of these devices in a typical year. (44 per year on average in a nation of 300,000,000 people; 0.0000147%.) These unnecessary, ineffectual rules only serve to erode our freedoms. How? A law or regulation that sits and gathers dust today could be “weaponized” in the future by some clever bureaucrat. Rather than wait for the threat to emerge, it’s better to clear the books of these useless regulations.

Kinda nice seeing the ATF under new management, isn’t it?

Legal News

Following through on a campaign promise, President Trump has nominated 10th Circuit Judge Neil Gorsuch. Trump promised a strict Constitutionalist would fill the seat left by the passing of Justice Antonin Scalia. Like Justice Scalia, Judge Gorsuch interprets the Constitution and its language as that language was understood at the time of a passage’s adoption. For our proposes here on these pages, that means that “militia” means, as it did in c. 1788, “the whole people, except for a few public officials”, and not the National Guard; a 20th Century invention.

Predictably, the wingnut left has retired to their fainting couches. Gorsuch, who was approved by the Senate in 2006 on a voice vote, is suddenly an outrageous, “extremist” pick for the Supreme Court. (And keep in mind who was part of that Senate which approved Judge Gorsuch that day!)

Leading the howls of outrage is the Old Grey Lady. The NY Times editorial board refers to Judge Gorsuch as the “Nominee for a Stolen Seat“. Let me say from the start that I didn’t read the entire OP-ED piece. There quickly came a point where I just couldn’t stop laughing. It was probably this part…

It’s been almost a year since Senate Republicans took an empty Supreme Court seat hostage, discarding a constitutional duty that both parties have honored throughout American history and hobbling an entire branch of government for partisan gain.

President Trump had a great opportunity to repair some of that damage by nominating a moderate candidate for the vacancy, which was created when Justice Antonin Scalia died last February. Instead, he chose Neil Gorsuch, a very conservative judge from the federal Court of Appeals for the 10th Circuit whose jurisprudence and writing style are often compared to those of Justice Scalia.

Those, by the way, were the 1st two paragraphs.

Let’s break that down a bit, shall we? The “constitutional duty” the Times refers to is to provide “advice and consent” to a President’s picks for positions such as Supreme Court justice. This would be Article II, section 2, clause 2 of the US Constitution. This is not, however, an obligation to rubber-stamp whatever picks the President may make. Indeed, the last Senate opted to abide by the Biden Rule and abstained from a vote on Merrick Garland’s nomination.

Some of the “damage” the Times mentions is spelled out later; namely the toxic political environment that the Times and others like them created following President Trump’s election! Apparently, Trump should have nominated a “moderate” (i.e. a barking mad liberal) because Muslims or some such. Maybe it has something to do with vagina hats. I don’t know. It’s hard to read while I’m laughing.

That last line, however, is a ringing endorsement of Judge Gorsuch. Anyone who compares to the late Justice Scalia is a fine pick for the high court.

Legal News

…they aren’t wrong to be crazy about what they’re getting crazy about.

Perhaps I should explain the cray-cray.

The anti-gun left are losing their minds now that the only way they’ll keep President Trump from getting sworn in would be to steal every Bible within 200 miles of Washington D.C.. But let’s be honest, they have some very good reasons to be blowing a collective gasket. Let’s start with reason number 1:

DONALD TRUMP IS THE NEXT PRESIDENT!

This brings us to reason number 2: Hillary Clinton will not be picking the next three or four Supreme Court justices. Why not? See reason number 1. This is a solid justification for them to be having a Chernobyl-sized meltdown. Why? Reasons 2.1, 2.2, and 2.3:

  • Ruth Bader Ginsburg, age 83
  • Stephen Breyer, age 78
  • Anthony Kennedy, age 80

So not only will President Trump be appointing Justice Scalia’s replacement, he may be in a position to turn the 5-4 court into a 7-2 court; and, to do so for a generation.

Our 2nd Amendment freedoms have been hanging by a thread ever since the landmark Heller ruling. The anti-gun left has been looking forward to snipping that thread. The passing of Justice Scalia earlier this year looked like their opportunity to do so. They would finally be able to rule the 2nd Amendment out of existence.

But that didn’t happen.

Shockingly, the Senate GOP held the line against Merrick Garland‘s appointment to the Court. In fact, they will be holding pro forma sessions until Donald Trump is actually sworn in to keep President Obama from making recess appointments. President Trump has promised to appoint a strict constructionist to fill the Scalia seat. In other words, a justice who won’t assign different meanings to the phrase “the people” in different parts of the Bill Of Rights. If it means individuals in the 4th Amendment, then it means individuals in the 2nd. It also means a justice who won’t creatively redefine “arms” to mean something other than weapons. Or one who won’t mistake the “militia” with the Army Reserve. These were the routes the anti-gun left intended to use to make the 2nd Amendment irrelevant. They know they can’t amend it away, so they’d simply rule it away.

And now that won’t happen. And that’s making them crazy; sensibly crazy.

Legal News Politics

I guess that they have a reputation to uphold…

The assembled clowns of the aptly named 9th Circus have had one last temper tantrum before President Trump takes office. A court panel has overturned a lower court ruling that the California 10-day waiting period for current gun owners to purchase another firearm is unconstitutional. The panel’s ruling, based on “intermediate scrutiny” rather than “strict scrutiny”, holds that the superfluous waiting period is “reasonable safety precaution”.

Anti-gun screwballs argue that current gun owners may have snapped between their last purchase and a new purchase and thus the “cooling off period” is necessary. They ignore the laws that they cried for in this State that create a mechanism to confiscate weapons from those who become “prohibited persons”. For those wanting an example of “doublethink”, this is a fine one; they simultaneously support and forget a law that they wanted.

So here’s a thought: What if the new Congress and the new President passed a Federal law prohibiting waiting periods? That could prove interesting.

Legal News