Category: Courts

Yale Law Prof Backs Vance’s Claim: DOGE-Blocking Judge Violated Constitution

A Yale law professor says Vice President J.D. Vance is right: the federal judge who blocked the Department of Government Efficiency (DOGE) from exposing wasteful spending by the Treasury Department violated the U.S. Constitution.

On Saturday, Judge Paul Engelmayer sided with 19 pro-waste state attorneys general who filed a lawsuit against the President Trump-created, Elon Musk-led DOGE seeking to prevent scrutiny of how Treasury is spending taxpayer dollars.

Judge Engelmayer issued a temporary injunction preventing DOGE and Treasury officials from examining Treasure expenditures – and declared that the Democrats have a strong case for a permanent ban.

However, as Vice President Vance wrote on X.com (formerly Twitter), judges don’t have the legal authority to dictate the actions of generals, prosecutors and the president:

“If a judge tried to tell a general how to conduct a military operation, that would be illegal.

“If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal.

“Judges aren’t allowed to control the executive’s legitimate power.”

In his response, Yale Law Prof. Jeb Rubenfeld agreed with Vance and explained how Judge Engelmayer violated the Constitution with his ruling:

“JD is correct about this, and his examples are exactly right. Where the Executive has sole and plenary power under the Constitution–as in commanding military operations or exercising prosecutorial discretion–judges cannot constitutionally interfere.”

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Following the ruling on Saturday, Musk called for Judge Engelmayer to be impeached for being “a corrupt judge protecting corruption.”

​Vance and Yale Law Prof​​

Leak Shows ATF Continues to Disregard Court Orders on FRTs

The ATF is still informing law enforcement agencies that FRTs are machineguns.

In a recent Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) leak released by AmmoLand News and Gun Owners of America (GOA), the government agency shared its fears about 3D-printed machinegun conversion devices (MCD), but not everything the ATF listed is an MCD.

The ATF included the Super Safe AK in its documents, claiming it was in a drop-in auto-sear (DIAS). The issue with that designation is that the Super Safety is not a machinegun or an MCD. It is a forced reset trigger (FRT), and the Bureau might be violating a court order by designating the device as a machinegun in its January 15, 2025, documentation.

Each time a shooter uses the AK Super Safe, they must pull the trigger. The statute definition of a machinegun is a firearm that expels more than one round per function of the trigger. For each function of the trigger, the Super Safety only expels a single round. It does not fit the definition of a machinegun as defined under the National Firearms Act of 1934 (NFA). The Supreme Court has already ruled that the ATF cannot change the statutory definition of a machinegun in the Cargill case.

The Cargill case involved a bump stock. SCOTUS found that since a shooter must pull the trigger between each round, a bump stock is not a machinegun. The Cargill case has been referenced in NAGR v. Garland, which challenged the ATF’s definition of FRTs as machineguns. In that case, the judge found that only one round is expelled per trigger function. The judge issued an injunction against the ATF from taking enforcement actions against the owners and manufacturers of FRTs. Yet, the ATF is still informing law enforcement agencies that FRTs are machineguns.

The ATF also refers to the AK Super Safe as the AK-DIAS. The AK-DIAS is not the same as the AK Super Safe. The AK-DIAS is a separate project and is a machinegun conversion device. It does convert a semi-automatic AK into a fully automatic firearm. The AK Super Safe engages the safety between every round making it impossible to fire automatically. It appears that the ATF is trying to conflate the two different devices which could lead to confusion amongst law enforcement, and the false arrest of Americans for possessing something that is completely legal.

This situation isn’t the first time the ATF rebelled against the courts or the White House. The ATF was criticized for disregarding an executive order demanding that diversity, equity, and inclusion (DEI) positions be eliminated. The order explicitly stated that those employees should be placed on administrative leave, and agencies should not try to hide them. The ATF did the opposite of the order. Lisa T. Boykin was the ATF’s “Chief Diversity Officer” responsible for implementing DEI at the Bureau. After President Trump issued the order, her title was changed to “Senior Executive.”

The ATF also recently came under fire for disregarding multiple court orders blocking the pistol brace rule. In that case, the ATF told a Gun Owners of America (GOA) member that their CZ Scorpion equipped with a brace would have to be registered with the NFA division of the ATF and pay a $200 stamp fee, or they could be charged with a federal felony. The ATF said that even though the rule was blocked, they could interpret the statute however they wanted. GOA forced the issue, and the ATF finally issued a retraction.

The situation is similar in this case. Even though the courts have barred the ATF from taking action against FRTs by a permanent injunction, they seem to be doing just that. Many view the Bureau as an out-of-control rogue government agency that ignores the law and does what it wants to do. This situation doesn’t instill confidence in those running the ATF, including the default head of the Bureau, Marvin Richardson.

Some have campaigned for Richardson to become the permanent head of the ATF, but this situation is the third time in a month that the ATF has disregarded a Presidential or court order. It leads many to wonder if Richardson is complacent or incompetent.

The Unexpected Silencer Lawsuit in the 9th Circuit Court of Appeals
Sanchez v. Bonta 24-5566

Many years ago, a wise, white-haired, old lawyer told me that lawsuits are not won because you have the law on your side. Lawsuits are lost by the guy who makes the first fatal procedural error.

That is why I spent well over a year preparing before I filed my California Open Carry lawsuit in November of 2011, and that is why my lawsuit is still standing today. I haven’t made a fatal procedural mistake. When the State’s attorney argued to the Court of Appeals that it could affirm the 2014 judgment of the district court on any grounds, the State’s attorney did not, and could not, point to any grounds by which the three-judge panel could have affirmed.

And so you can imagine my surprise when, after receiving an email PACER notification yesterday, I read the “briefs” and final judgment in this civil lawsuit challenging California’s silencer ban. The Order read:

ORDER FILED. Lisa B. Fitzgerald, Appellate Commissioner.

The court is inclined to appoint pro bono counsel to represent appellant in this appeal. Appellant may file a written objection within 14 days. If appellant does not object, the court will appoint counsel and set a new briefing schedule. [Entered: 02/03/2025 02:36 PM]

This is both impressive and curious.

The Order states, “The Court is inclined…” The Court is a three-judge panel that was picked long ago. Three-judge panels are formed long before they are assigned a particular case on appeal. Internally, two rosters of three-judge panels are formed. One roster consists of judges who will hear cases that will dispose of cases in unpublished memorandum opinions. The other roster consists of judges who will decide cases on the merits, via published, precedential opinions.

Each appeal goes through an internal screening panel of staff attorneys and judges. Most appeals are disposed of without any opinion being published because they suffer from some fatal procedural defect, such as filing a late notice of appeal.

Those cases that survive the initial screening process are assigned to a panel on one of the rosters.

In this particular case, it could have been assigned to a panel on either roster. But regardless of which roster the screening panel assigned it to, at least two judges think the case should be decided in a published, binding opinion.

That doesn’t mean the case will result in a published, binding opinion, but it is far more likely than not, given that the panel has, sua sponte, decided to appoint pro bono counsel to represent the Plaintiff-Appellant in his appeal.

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D.C. Federal Judges Join the Resistance
Overriding the President’s Control of the Department of Justice

U.S. District Judge Beryl Howell (Nice when PID is provided)

Some judges have seized upon a new form of resistance to President Trump’s policies and agenda — Refusing to dismiss criminal cases with prejudice in accordance with the President’s instructions to the Attorney General. Three of the eight federal district judges in D.C. who are on senior status,1 joined by one of their colleagues, have tried to undercut Presidential authority in this manner.

This article will consider one such case before Senior Judge Beryl A. Howell. Judge Howell has frustrated the President’s clear intent by refusing to dismiss indictments against Nicholas DeCarlo and Nicholas Ochs with prejudice. She did this despite the fact that, as she admitted, “It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences.”

In her explanatory Memorandum and Order (“Memorandum”) Judge Howell not only refused to dismiss the indictments with prejudice but went out of her way to take gratuitous and irrelevant shots at the President and the pardons he granted pursuant to his Constitutional powers.

The Presidential Amnesty Proclamation

The date he was inaugurated, President Trump a signed a Proclamation that essentially granted amnesty for all “offenses related to events that occurred at or near the United States Capitol on January 6, 2021.” The Proclamation addressed separately defendants who had been convicted and those who had been indicted but not convicted. Of those who had been convicted, they either had their sentences commuted “to time served as of January 20, 2025,” or were granted a “full, complete and unconditional pardon” for their offenses.

However, there were other defendants who were still subject to pending indictments for which there were not yet final convictions. For these, the President’s Proclamation directed the Attorney General “to pursue dismissal with prejudice to the government of all pending indictments against individuals for their conduct related to the events at or near the United States Capitol on January 6, 2021.” (bolded emphasis added)

The “dismissal with prejudice to the government” clause was intended to ensure that the government would never again be able to prosecute this category of defendants who were not yet burdened with a final order of conviction. It was the functional equivalent of a pardon. Judge Howell has now done everything she can to thwart that Presidential intent.

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Colorado Supreme Court Rules Elephants Are Not Human and Must Stay in a Zoo.

One of these days, one of these animal rights nutcases will come before an equally nutty judge and win a case that frees some wild animal from a zoo.

Fortunately, that day has not yet arrived. The Colorado Supreme Court ruled 6-0 on Tuesday that six elephants in the Cheyenne Mountain Zoo cannot be transferred to an elephant sanctuary based on the legal theory that they have the same rights as human beings.

The court said the decision “does not turn on our regard for these majestic animals.”

“Instead, the legal question here boils down to whether an elephant is a person,” the court said. “And because an elephant is not a person, the elephants here do not have standing to bring a habeas corpus claim.”

You have to admit that it’s a very clever fundraising strategy by the Nonhuman Rights Project, which has sued a dozen times over the last decade trying to free elephants and chimpanzees from various zoos. They haven’t once been successful, but that doesn’t matter as long as the cash keeps coming in.

The elephants — Missy, Kimba, Lucky, LouLou and Jambo — had no intelligible comment.

That doesn’t mean they can’t communicate. Researchers have discovered an incredible number of sounds that elephants make at an amazing number of frequencies. We don’t know what they’re saying, of course, but that it’s a sophisticated example of cognitive thinking is undeniable.

However, until elephants can submit a legal brief on their own, they are out of luck in American courts.

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Truckers File Lawsuit Arguing They Shouldn’t Lose Second Amendment Rights Just Because They Cross State Lines.

Do rights granted under the U.S. Constitution end at the border of one state when a citizen enters another? Generally speaking, no. The privileges and immunities clause of Article IV, Section 2, of the Constitution says that citizens of one state are “entitled to all Privileges and Immunities of Citizens” in other states. This includes the right to travel for employment and recreation. However, there are limitations.

The scope of the Second Amendment’s right to keep and bear arms for self-defense across state lines is the issue at the heart of a case filed on January 7, 2025, against Bob Jacobson, in his official capacity as commissioner of the Minnesota Department of Public Safety.

The complaint challenges Minnesota’s refusal to recognize lawfully issued firearms permits of other states, including those held by plaintiffs David McCoy and Jeffrey Johnson in their home states of Texas and Georgia, respectively. Johnson also holds a permit from Florida, where he used to live.

The plaintiffs are professional long-haul 18-wheel truck drivers who crisscross the country, 300 days a year. According to the complaint, both maintain firearm competency with safety courses and memberships in various firearms organizations. Each regularly passes background checks required by their employment. Neither has any history of violence, felony convictions, or class one misdemeanors. Their backgrounds include experience as firefighters and emergency medical technicians.

The men consider themselves good Samaritans, their “personal ethos” impelling them to “make the road a little safer” by “helping stranded motorists, coming to the aid of accidents, assisting law enforcement and emergency workers.”

While driving, McCoy and Johnson regularly carry firearms for the purposes of self-defense, as well as defense of others, their home, and cargo. But whenever they reach the Minnesota border, Minnesota law requires them to unload their firearms and stow them in a closed, fastened container, rendering them not readily accessible. Other states have analogous restrictions.

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Supreme Court Second Amendment Update 1-17-2025

In my last update, I wrote, “If a cert petition reaches its scheduled conference date without a justice requesting a response, then we know it was placed on the deadlist and never voted on. It was simply denied.” That remains true. Every Second Amendment cert petition that went into last Friday’s SCOTUS conference, where the respondents had either filed a waiver or did not file any response, was denied. In one case, the Feds asked for the cert petition to be granted, the lower court’s decision vacated, and the case remanded (GVR’d) back to the lower court for proceedings consistent with US v. Rahimi. With only one exception that I can recall when the Feds ask for a GVR, they get it.

I also wrote The “assault rifle” and “large capacity” magazine cert petitions were today relisted to this Friday’s SCOTUS conference of January 10th.” They survived that conference and were relisted to today’s conference. We won’t know until Tuesday whether they and the other petitions scheduled for today’s conference survived.

A response was requested for one of the petitions scheduled for today’s conference, but the Second Amendment was just one of three questions presented to the justices. I suspect that one of the other questions (most likely question 3) in Jarvis Parker, Petitioner v. Florida No. 24-6146 resulted in a response being requested.

In any event, when a justice requests a response after a waiver has been filed and the response hasn’t been filed before the petition goes to its scheduled conference, the petition survives that conference.

Last Friday’s SCOTUS conference resulted in 13 denials, 1 GVR, and two relists.

The petitions that were scheduled for today’s conference are:

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This Gun Store Owner Just Forced the ATF to Reverse an Anti-Gun ‘Zero Tolerance’ Policy

Score another victory for gun rights. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has reversed its “zero tolerance” policy created under the Biden administration to infringe on the right to keep and bear arms.

The policy allowed the ATF to revoke the licenses of firearms dealers who make common clerical errors on their paperwork. Several small gun shops have been forced out of business because of the rule.

Michael Cargill, owner of Central Texas Gun Works, joined with the Texas Public Policy Foundation (TPPF) in a lawsuit against the White House over the unconstitutional measure. The Biden administration capitulated before the lawsuit could be decided in the courts and reverted back to the previous policy, which only allows the ATF to revoke licenses for “willful” offenses, not small clerical errors, according to a press release issued by the TPPF.

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SCOTUS Rejects Multiple Second Amendment Cases, Relists Gun Ban Challenges

On a day when gun-rights advocates hoped that the Supreme Court would announce its next big Second Amendment case, it only informed them which ones it was turning away.

On Monday, the High Court denied petitions for certiorari in Maryland Shall Issue v. Moore and Gray v. Jennings. The cases challenged Maryland’s handgun-purchase licensing requirements and the preliminary injunction standard set in the case against Delaware’s sales ban on “assault weapons” and “large-capacity” ammunition magazines.

None of the justices wrote separately to explain or dissent from the denials.

Monday’s orders list dashes the hopes of gun-rights activists looking to overturn lower court decisions upholding the gun-control laws in question. It continues the Supreme Court’s recent streak of rejecting Second Amendment petitions, even as it agrees to hear government requests for review of decisions striking gun laws down. It could fuel further concern among gun-rights activists about the Court’s resolve to expand on the standard it set in 2022’s New York State Rifle and Pistol Association v. Bruen and address state-level gun bans or several other of its longest-standing constitutional concerns.

However, the Court left open the possibility it would take some of the highest-profile gun cases still pending before it. The Court relisted two other closely watched Second Amendment cases, Snope v. Brown and Ocean State Tactical v. Rhode Island, to be considered again at this Friday’s conference. That keeps gun-rights supporters’ hopes alive for a Supreme Court grant of review of state bans on so-called assault weapons and large-capacity magazines.

With no guidance on how the justices feel about those two cases and the possibility that the Court could relist them multiple times before deciding whether to take them up, those wondering about the future of Second Amendment jurisprudence face an uncertain timeline for further clarity. Still, Monday’s order list indicated what areas of gun law the Court won’t expound upon for the foreseeable future.

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The Machine Gun Win Now Before the 10th Circuit Court of Appeals
United States v. Morgan (24-3141)
Charles Nichols

Last August, Federal District Court Judge John W. Broomes issued two findings. The first was that the two machine guns the defendant was charged with illegally possessing are ““bearable arms within the original meaning of the [Second” amendment.” The second was “the government has failed to establish that this nation’s history of gun regulation justifies the application of 18 U.S.C. § 922(o) to Defendant.”

Judge Broomes then dismissed the charges. The Federal government filed a timely appeal, and filed its opening brief on appeal on December 12th. On December 29th, the Brady Center to Prevent Gun Violence filed an Amicus brief in support of the government. On Monday, January 6th, the Defendant filed a disfavored (but unopposed) motion for a thirty-day extension to file his answering brief on appeal. The motion was granted the same day. I am reliably informed that an Amicus brief will be filed in support of the Defendant.

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There are several important facts to keep in mind about this case. Judge Broomes did not say that the government couldn’t have met its burden of proof, but it failed to do so in this case, and so the government lost, as is required by the United States Supreme Court decision in NYSRPA v. Bruen.

Judge Broomes also said that some kinds of machine guns are not arms protected by the Second Amendment, and his decision says nothing about what restrictions or prohibitions the government could place on the carrying (bearing) of machine guns because the Federal law only makes it a crime to possess unregistered machine guns, not carry them.

Additionally, this is an interesting case because the case was prosecuted in the district court, and the opening brief on appeal was filed by the Biden administration. The reply brief and all further proceedings from January 20th onward will be by the Trump administration. The Trump DOJ attorney can simply acquiesce in the case, meaning he can concede that the law is unconstitutional but assert that President Trump will continue to enforce the law, including in this case. The latter is particularly important because if the President does not aver that he will continue to enforce the law, including against the Defendant, then the Court of Appeals could simply dismiss the appeal without deciding the case for lack of a “live case or controversy.”

Putting machine guns to the side for the moment, this quote from the Defendant’s motion for an extension of time is particularly telling, “The government’s brief is 36 pages long. The table of authorities is an additional 15 pages long and includes citations to roughly 200 cases, statutes, and legal texts. Many of the sources relied on by the government are hundreds of years old and were not cited by the government in the district court.”

The Federal criminal court system is rigged against defendants. Had the Defendant’s attorney failed to cite authorities or make properly worded objections in the proper manner at the appropriate time(s) in the trial court, then his failure would be subject to what is called “plain error review” on appeal, and he would almost certainly lose.

Will the 10th Circuit Court of Appeals afford the Federal government a more deferential standard of review? Will the Court of Appeals contrive some way around the NYSRPA v. Bruen mandate that the burden of proof lies with the government?

Time will tell. The appeal should be fully briefed in two months, after which the Court of Appeals can make a decision at any time.

You can read many of the briefs for free from CourtListener at the following links.

United States v. Morgan (24-3141) 10th Circuit Court of Appeals Docket.

United States v. Morgan (6:23-cr-10047) District Court, D. Kansas Docket.

Lawsuit Challenges Minnesota’s Gun Permit Restrictions For Truckers

The Liberty Justice Center filed a federal lawsuit on Tuesday challenging Minnesota’s refusal to recognize firearm permits from other states, a policy the nonprofit argues violates the Second Amendment rights of interstate truck drivers.

The lawsuit, McCoy v. Jacobson, was filed in the U.S. District Court for the District of Minnesota on behalf of two truckers, David McCoy and Jeffrey Johnson, who claim the law infringes on their constitutional right to bear arms while working across state borders.

David McCoy, a Texas-based trucker, and Jeffrey Johnson, who holds firearm permits from Florida and Georgia, both legally carry firearms for self-defense in many states. However, Minnesota law prohibits them from carrying firearms in public or in their trucks without a Minnesota-issued permit or one recognized by the state.

Minnesota currently excludes permits from 29 states, including Texas, Georgia, and Florida, leaving McCoy and Johnson unable to legally defend themselves while in the state.

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