Category: Courts

Judge vacates Bowe Bergdahl’s desertion conviction

FALLS CHURCH, Va. — A federal judge on Tuesday vacated the military conviction of Bowe Bergdahl, a former U.S. Army soldier who pleaded guilty to desertion after he left his post and was captured in Afghanistan and tortured by the Taliban.

The ruling from U.S. District Judge Reggie Walton in Washington says that military judge Jeffrey Nance, who presided over the court-martial, failed to disclose that he had applied to the executive branch for a job as an immigration judge, creating a potential conflict of interest.

Walton noted that former President Donald Trump had strongly criticized Bergdahl during the 2016 presidential campaign. Bergdahl’s lawyers argued that Trump’s comments placed undue command influence on Nance.

Walton rejected the specific argument surrounding undue command influence, but he said a reasonable person could question the judge’s impartiality under the circumstances.

Bergdahl was charged with desertion and misbehavior before the enemy after the then-23-year-old from Hailey, Idaho, left his post in Afghanistan in 2009. He said he was trying to get outside his post so he could report what he saw as poor leadership within his unit, but he was abducted by the Taliban and held captive for nearly five years.

During that time, Bergdahl was repeatedly tortured and beaten with copper wires, rubber hoses and rifle butts. After several escape attempts, he was imprisoned in a small cage for four years, according to court documents.

Several U.S. service members were wounded searching for Bergdahl. In 2014, he was returned to the U.S. in a prisoner swap for five Taliban leaders who were being held at Guantanamo Bay.

The swap faced criticism from Trump, then-Sen. John McCain and others. Both Trump and McCain called for Bergdahl to face severe punishment.

In 2017, he pleaded guilty to both charges. Prosecutors at his court-martial sought 14 years in prison, but he was given no time after he submitted evidence of the torture he suffered while in Taliban custody. He was dishonorably discharged and ordered to forfeit $10,000 in pay.

His conviction and sentence had been narrowly upheld by military appeals courts before his lawyers took the case to U.S. District Court, resulting in Tuesday’s ruling.

The Justice Department declined comment on the ruling Tuesday.

Eugene Fidell, one of Bergdahl’s lawyers, said he was gratified by the ruling and said Walton’s 63-page opinion shows how meticulous he was in rendering the ruling.

Calls and emails to the immigration court in Charlotte, North Carolina, where Nance now serves as an immigration judge, were not returned Tuesday evening.

Federal judge blocks Biden’s controversial asylum policy in a major blow to administration.

A federal judge on Tuesday blocked President Joe Biden’s controversial asylum policy, delivering a major blow to the administration, which has leaned on the measure to drive down border crossings. The judge put the ruling on hold for 14 days for a possible appeal.

The ruling against the Biden administration could have major implications on the US-Mexico border, where crossings have plummeted since the rollout of the asylum policy, among other measures. A Justice Department spokesperson told CNN that the department plans to appeal.

“The Justice Department disagrees with the district court’s ruling today in the East Bay case and intends to appeal the decision and to seek a stay pending appeal. We remain confident in our position that the Circumvention of Lawful Pathways rule is a lawful exercise of the broad authority granted by the immigration laws,” the spokesperson said.

Judge Jon Tigar of the California Northern District Court previously ruled against a similar policy under the Trump administration and expressed skepticism that there was any daylight between Biden’s policy and the Trump-era one during a court hearing last week. Administration officials have rejected the comparison to Trump-era rules.

The Biden administration has rolled out a series of measures to try to stem the flow of migration and manage the situation along the US-Mexico border but is facing multiple lawsuits from Republican states as well as advocates, posing a risk to Biden’s border plans.

Tigar’s ruling stems from a lawsuit brought by the American Civil Liberties Union among other immigrant rights groups over a new asylum rule that largely bars migrants who passed through another country from seeking asylum in the United States, marking a departure from decades-long protocol.

The Biden policy, like the Trump-era one, garnered wide condemnation from Biden allies, including Democratic lawmakers and immigrant advocates when it was rolled out. “To be clear, this was not our first preference or even our second,” an administration official conceded at the time, adding that the onus is on Congress to pass reform.

The ACLU applauded the ruling in a statement.

“The ruling is a victory, but each day the Biden administration prolongs the fight over its illegal ban, many people fleeing persecution and seeking safe harbor for their families are instead left in grave danger,” said Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project, who argued the case. “The promise of America is to serve as a beacon of freedom and hope, and the administration can and should do better to fulfill this promise, rather than perpetuate cruel and ineffective policies that betray it.”

The Justice Department is expected to appeal the ruling. If the Justice Department moves ahead with an appeal, the case will go to the Ninth Circuit, which twice affirmed Tigar’s rulings on similar policies under Trump.

During last week’s hearing, Justice Department lawyer Erez Reuveni argued that the rule has exemptions and that there are other lawful pathways that have been made available to migrants seeking to come to the United States.

Migrants who secure an appointment through the CBP One app to present at port of entry, for example, are exempt. While there are some exceptions, the rule generally applies to migrants who unlawfully cross the US-Mexico border. It doesn’t apply to unaccompanied migrant children.

Blocking the rule, Reuveni told Tigar, would “potentially undermine the ability to negotiate” with countries who have partnered with the US to manage the flow of migration.

Eiland, who argued on behalf of the plaintiffs, said the rule put migrants in harm’s way and that the regulation itself doesn’t provide any additional pathways. “There are no carrots that the rule itself actually offers,” she said.

Administration officials have pointed to a dramatic drop in border crossings since the end of a pandemic policy, known as Title 42, that allowed for the quick expulsion of migrants, as evidence that the administration’s approach, including increased deportations and tougher penalties.

In June, US Border Patrol arrested nearly 100,000 migrants along the US southern border, marking a decrease from May and marking the lowest monthly border encounters since February 2021, according to US Customs and Border Protection data.

But the Biden administration has continued to grapple with unprecedented mass movement of people in the Western hemisphere, which is the outcome of the coronavirus pandemic decimating conditions in the region.

The shifting migration patterns has put a strain on federal resources, as border authorities have encountered an increasing number of Cubans, Venezuelans and Nicaraguans. The US is largely barred from deporting migrants from those nationalities back to their home countries because of strained diplomatic relations.

Tigar concluded that the programs that provide migrants an avenue to apply to lawfully migrate to the US are specific to certain nationalities and not meaningful options for all asylum seekers.

“The Rule therefore assumes that these exceptions will, at the very least, present meaningful options to noncitizens subject to the Rule. Parole programs are not meaningfully available to many noncitizens subject to the Rule. Though other parole programs exist, the Rule generally relies on the parole programs for Cuban, Haitian, Nicaraguan, Venezuelan, and Ukrainian nationals. These programs are country-specific and ‘are not universally available, even to the covered populations,’” he wrote.

He also said that the government violated a law known as the Administrative Procedures Act – which sets certain guidelines for how agencies can roll out policies – in its implementation of the asylum rule.

“To justify limiting eligibility for asylum based on the expansion of other means of entry or protection is to consider factors Congress did not intend to affect such eligibility,” Tigar wrote. “The Rule is therefore arbitrary and capricious.”

Christians Arrested For Outdoor Church Service During COVID-19 Win $300,000 Lawsuit.

A primarily liberal college town in Idaho has agreed to pay $300,000 to three Christian churchgoers who sued the city after being imprisoned for failing to wear face masks or maintain social distance measures at an outdoor service during the peak of the COVID-19 outbreak.

The city of Moscow, Idaho, announced this week that it would settle the lawsuit with Gabriel Rench and Sean and Rachel Bohnet, who filed a case against city officials in March 2021.

They asserted that their rights under the First and Fourth Amendments were violated when they were arrested at an outdoor “psalm sing” led by church leaders in September 2020.

Moscow, Idaho, is a community of around 25,000 inhabitants located approximately 80 miles south of Spokane, Washington. The church named in the lawsuit, Christ Church, is a small congregation of about 1,000 members that is part of the Communion of Reformed Evangelical Churches.

At the time of the incident, Officers took Rench’s hymn book before hauling him away in handcuffs to the county jail, where he and others were kept for several hours, according to video of the arrests, which went viral and was blasted at the time on the Twitter platform.

The calm worship service lasted only 20 minutes in front of Moscow City Hall, where local authorities had put little yellow dots six feet apart to guide participants in COVID-19 6-feet-apart social distancing.

Rench and the other two were accused of breaching the city’s periodically amended health law. However, a magistrate court later dropped the city’s case against them.

U.S. District Court Judge Morrison C. England, Jr., noted that the “plaintiffs should never have been arrested in the first place,

“Somehow, every single city official involved overlooked the exclusionary language [of constitutionally protected behavior] in the Ordinance,” the judge wrote.

Rench said that the situation in Moscow could be described as a sort of “microcosm” of concerns occurring throughout the country and overseas.

“I think it’s no secret that portions of our government and political groups are now starting to target Christians in a way that has never really happened in America or [even] Canada,” he said, referencing the pastors who have been jailed in neighboring Canada recently for holding church services.

“I’m in a conservative state, but I live in a liberal town, and the liberals had no problem arresting me for practicing my religious rights and my Constitutional rights,” Rench said. “But my [Republican] governor also didn’t defend me either. If you look at what’s going on in Canada, I think America’s 10 years, at most 20 years, behind Canada if we don’t make significant changes.”

One thing that Rench said he learned from the whole incident is that “hardened” political leaders cannot be expected to modify their mental processes or political ideals.

“What needs to happen is the people need to change how they vote and disincentivize the targeting of Christians and those who are genuinely trying to defend the Constitution,” he maintained.

“Under the terms of the settlement agreement, ICRMP will pay a total settlement amount of $300,000 and all claims against the City and the named City employees will be dismissed with prejudice along with a release of all liability,” the release said, including that the settlement will “provide(s) closure of a matter related to the unprecedented COVID-19 pandemic and the City’s efforts to protect the public during an exceptionally trying time.”

More judges trying their hardest to slow down what SCOTUS did to gun control laws.

Federal Judge Upholds San Jose Gun Ownership Tax, Insurance Mandate

San Jose’s first-of-its-kind gun ownership insurance mandate doesn’t violate the Second Amendment, according to a federal judge.

U.S. District Judge Beth Freeman ruled against the National Association for Gun Rights (NAGR) last Thursday. She found the California city’s requirement that gun owners pay a fee to a yet-to-be-determined anti-gun-violence charity group and obtain insurance is constitutional. She ruled the regulations stand up against the Supreme Court’s new history-based test for gun laws and did not infringe on residents’ rights.

“The City has demonstrated that the Insurance Requirement is consistent with the Nation’s historical traditions,” Judge Freeman wrote in NAGR v. San Jose. “Although the Insurance Regulation is not a ‘dead ringer’ for 19th century surety laws, the other similarities between the two laws would render the Ordinance ‘analogous enough to pass constitutional muster.’

The ruling is a win for gun-control advocates who are looking for ways to restrict firearms even in the wake of 2022’s New York State Rifle and Pistol Association v. Bruen. It allows the city to continue to attempt to implement its unique requirements, which have been scaled back significantly from when they were first introduced. The decision also boosts the odds that lawmakers in states, such as New Jersey, who’ve sought to copy the restrictions might survive court challenges as well.

Judge Freeman, an Obama appointee, also ruled the gun ownership fee was not a tax for the purpose of California law and did not need voter approval because it goes to a non-profit rather than the government.

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The Only Legitimate Framework

This court is not interested in the outcomes of single cases alone. The conservative majority has greater ambitions: to impose its conception of the Constitution as the only legitimate framework within which to interpret the law.

Caitlin B. Tully
June 25, 2023
Rethinking the Liberal Giant Who Doomed Roe

She says this as if it were a bad thing. And, in my mind, how could it be legitimate any other way?

I am reminded of Lewis Carroll’s Humpty Dumpty:

When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

’The question is,’ said Alice, ‘whether you can make words mean so many different things.’

’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.

And that is why the political left is so upset at the current SCOTUS. The political left is intent upon being the master of all and if the U.S. Constitution were to be interpreted as written they would have, comparatively, no power.

This is legal stonewalling by a judge who purposefully flips what SCOTUS ruled in Heller, Caetano and Bruen in what she hopes will take years of legal wrangling in the off chance that either or both Justices Alito and Thomas pass on and a demoncrap administration can appoint anti-gun Justices and get all these case law restorals of the 2nd amendment protections on RKBA undone…because the unwashed masses really shouldn’t have the means to tell goobermint where to go, and make it stick.

Federal Court Ruling Upholding Oregon Gun Law Will be Appealed

U.S.A. — A federal district judge’s ruling upholding the constitutionality of Oregon’s restrictive gun control Measure 114 will definitely be appealed, the head of the Second Amendment Foundation assured via email with a terse one-word statement.

SAF founder and Executive Vice President Alan Gottlieb, responding to an email inquiry asking, “Certainly, there will be an appeal, right?” responded bluntly: “Right.”

The ruling was immediately blasted by the Oregon Firearms Federation (OFF), one of several plaintiffs challenging the law in a consolidation of four federal lawsuits, two of which involve SAF and several partners. In a scathing reaction, OFF declared Judge Immergut’s ruling “absurd” and further said her decision was “against gun owners, the Second Amendment and a basic understanding of the English language.”

Immergut’s ruling does appear oblivious to facts involving firearms and self-defense when, on Page 120, she states, “The Supreme Court has held that Second Amendment protects an individual right to self-defense inside and outside of the home. LCMs are not commonly used for self-defense, and are therefore not protected by the Second Amendment.”

This seems to ignore the prevalence of modern semi-automatic pistols, which are commonly used for personal protection, and which come from the factory with magazines holding more than 10 cartridges.

According to The Hill, Oregon Attorney General Ellen Rosenblum praised the ruling while acknowledging the law still cannot be enforced because it is still being challenged in state court. A judge in Harney County has scheduled a trial in September. By that time, Judge Immergut’s decision will likely have been appealed to the Ninth U.S. Circuit Court of Appeals in San Francisco.

Rosenblum, a Democrat, was quoted by The Hill, stating, “Our team looks forward to ultimately prevailing in the state courts as well.”

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Federal Appeals Judge Speaks to The Four Boxes Diner about the 2nd Amendment, Justice Thomas & Originalism

Federal court rules Measure 114 constitutional despite criticism

The ruling (hold onto your hat for the legal acrobatics the judge used)

PORTLAND, Ore. (KOIN) – Oregon’s Measure 114 is constitutional, according to a ruling by the U.S. District Court for the District of Oregon.

The federal court ruled in Oregon’s favor in a lawsuit against the gun control measure approved by voters by a slim margin in 2022. The ruling means the state may ensure Oregonians get a permit before obtaining firearms, require a state police-maintained permit/firearm database and prohibit “large capacity” ammunition magazines.

There is an exception for military and law enforcement.

The measure describes “large capacity” magazines as “fixed/detachable magazines (or functional equivalent) that can accept ‘more than 10 rounds of ammunition and allows a shooter to keep firing without having to pause to reload.’” The measure also includes exceptions for “’lever-action’ firearms and permanently altered fixed magazines, 10 rounds or fewer.”

The plaintiff’s attorney made the case that magazines are critical for the gun, so they should be considered arms, but attorneys defending Measure 114 argued that detachable magazines are accessories – not firearms – and don’t affect the operability of the gun itself.

In response to the measure’s ruling, Jess Marks, the executive director of the Oregon Alliance for Gun Safety, issued the following statement:

“We know Measure 114 is an effective and life-saving policy, and now a federal judge has ruled it is also in line with the U.S. Constitution. The Supreme Court has articulated that Second Amendment rights are not unchecked — they come with responsibilities — and the U.S. District Court affirmed this in our case. This victory belongs to those who have lost loved ones to gun violence and to every Oregonian who demanded change.”

“Our team looks forward to ultimately prevailing in the state courts as well,” she said. “Measure 114’s provisions – passed by Oregon voters – are common sense safety measures that will save lives.”

SAF FILES AMICUS BRIEF SUPPORTING CHALLENGE OF HAWAII GUN LAW

BELLEVUE, WA – The Second Amendment Foundation has filed a 29-page amicus brief supporting a motion for a temporary restraining order and preliminary injunction in a challenge of Hawaii’s restrictive concealed carry law, in a case known as Wolford v. Lopez.

The brief was filed in U.S. District Court for the District of Hawaii.

As explained in the court document, Hawaii “has followed New York, New Jersey, and Maryland in taking deliberate action to undermine the Supreme Court’s landmark Bruen ruling and the fundamental general right to carry an effective mechanism of self-defense it affirmed. Hawaii’s SB 1230 and similar laws specifically, and unfairly target those who have taken their rights most seriously in attempting to exercise them, even submitting to Defendants’ background check and training requirements.”

Following the 2022 Supreme Court ruling in New York State Rifle & Pistol Association v. Bruen, Hawaii passed SB 1230, a sweeping law designed to severely limit the places where licensed, law-abiding citizens can legally carry firearms for personal protection. So restrictive in its nature, the new legislation was colloquially dubbed the “Bruen response bill.”

“As we contend in our brief,” said SAF founder and Executive Vice President Alan M. Gottlieb, “Hawaii’s new law is written to make citizens afraid to exercise their constitutional right to bear arms, to the point they’re even afraid to enter a coffee shop without first being invited. We cannot have law-abiding citizens afraid to exercise a right for fear of being prosecuted and made into criminals. That is not how constitution works, and specifically, it is why the Second Amendment includes the phrase ‘shall not be infringed.’ SB 1230 constitutes a serious infringement.”

“There are no historical analogues supporting the extreme nature of Hawaii’s gun law,” added SAF Executive Director Adam Kraut. “To the contrary, as we explain to the court, history shows lawmakers respected Second Amendment rights as part of everyday life, to the point of encouraging people to bring their guns to public meetings and even church. Hawaii, on the other hand, is trying to make have a gun outside of one’s home or private vehicle a crime.”

Experts See Uncertainty in New Supreme Court Gun Case

The nation’s highest court is set to decide a new Second Amendment case, but how the justices might come down is murky at best.

A collection of experts from across the ideological spectrum who have spent decades studying the Second Amendment and American gun laws told The Reload United States v. Rahimi presents a unique challenge for the Court that will likely flush out its new test for gun cases. But they were less confident about the direction the justices might take or the conclusion they might arrive at.

“It is still too early to tell what the Supreme Court will do in Rahimi,” George Mason University professor Robert Leider, who writes about the Second Amendment and teaches at the Antonin Scalia Law School, said.

Rahimi will be the first gun case the Supreme Court takes up since it handed down a new Second Amendment test in last year’s New York State Rifle and Pistol Association v. Bruen. It is an appeal of a Fifth Circuit panel’s ruling that found the federal ban on those subject to domestic violence restraining orders possessing guns was unconstitutional under the Bruen test. It stems from a case against a Texas man who pled guilty to violating a restraining order his child’s mother had against him over accusations he assaulted her when police found he had guns in his home. The police were able to search his home and find the guns because he is also accused of carrying out multiple shootings unrelated to the situation with his ex-girlfriend.

“Doubtless, 18 U.S.C. § 922(g)(8) embodies salutary policy goals meant to protect vulnerable people in our society,” Judge Cory T. Wilson wrote for the panel. “Weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of § 922(g)(8) outweighed its burden on Rahimi’s Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that § 922(g)(8) ‘s ban on possession of firearms is an ‘outlier that our ancestors would never have accepted.’ Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated.”

The Department of Justice (DOJ) decided to skip appealing to the full Fifth Circuit and head straight to the Supreme Court, which agreed to take up the case late last month. All of the experts who spoke with The Reload agreed that move was a potentially-smart piece of strategic litigating by Attorney General Merrick Garland (D.) and the DOJ.

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SAF FILES REPLY BRIEF IN CHALLENGE OF MARYLAND CCW LAW

BELLEVUE, WA – Attorneys representing the Second Amendment Foundation and its allies in a federal challenge of Maryland’s restrictive concealed carry statute today filed their reply to the state’s arguments against an earlier motion for a preliminary injunction in the case known as Novotny v. Moore.

The response brief was filed in U.S. District Court for the District of Maryland.

SAF is joined in the case by Maryland Shall Issue, the Firearms Policy Coalition and three private citizens, all of whom possess “wear and carry permits,” including Susan Burke of Reisterstown, Esther Rossberg of Baltimore, and Katherine Novotny of Aberdeen, for whom the lawsuit is named. They are represented by attorneys David H. Thompson and Peter A. Patterson at Cooper & Kirk in Washington, D.C., Mark W. Pennak at Maryland Shall Issue in Baltimore, and Matthew Larosiere from Lake Worth, Fla.

The lawsuit focuses on SB1, a bill signed by Gov. Wesley Moore, which has added new restrictions on where legally-licensed citizens may carry firearms for personal protection. Maryland is attempting to wildly expand so-called “sensitive places” in an attempt to virtually prohibit lawful, licensed concealed carry in almost every venue in the state outside of someone’s home or business.

“As we maintained in our initial lawsuit, the State of Maryland is desperately trying to justify its extremist policy by offering alleged historical analogues that don’t really exist,” said SAF founder and Executive Vice President Alan M. Gottlieb. “As we noted earlier, instead of trying to comply with the new guidelines set down in the Supreme Court’s Bruen ruling last year, Maryland lawmakers responded by adopting gun laws more restrictive than they were before. This is tantrum-level stubbornness usually confined to elementary school playgrounds, and it doesn’t belong in state legislatures or governors’ offices.”

“Today’s brief further underscores the fact that Maryland’s recently enacted restrictions on carry are incompatible with this nation’s history and tradition of firearms regulation,” said SAF Executive Director Adam Kraut. “In defense of its law, Maryland grasps at straws and reasoning well removed from a logical pathway to justify its new existence. Our brief systemically refutes the positions put forth by the government and demonstrates that the challenged restrictions are constitutionally impermissible.”

Supreme Court Considering a Case That Might Upend Hundreds of January 6 Prosecutions

Prosecutorial overreach is not uncommon in high-profile cases. The prosecutors pile on the charges to frighten defendants with the prospect of long prison terms so they plead out. The state also hopes to throw enough charges against the wall to see what sticks.

But the danger of overreach is that a judge may want to smack a prosecutor down for bringing unnecessary charges. Such is the case in the January 6 prosecutions.

One of the rioters, Edward Lang, is facing 11 charges and pleaded not guilty to all of them. But a district court judge threw out the charges relating to “obstruction of an official proceeding” concerning Lang and two others accused of violence at the Capitol.

The law in question sentences a guilty party to up to 20 years in prison for anyone who “corruptly alters, destroys, mutilates, or conceals a record, document,” or “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” Lang is questioning whether the Sarbanes-Oxley statute fits the behavior of hundreds of rioters.

Sarbanes-Oxley was passed in response to financial malfeasance in the 2002 bankruptcies of telecom giant Worldcom and Enron, an energy company based in Houston. Lang argues that the obstruction defined in Sarbanes-Oxley bears no relationship to the violence that occurred on January 6, 2021.

The New York Sun:

The panel of the United States Appeals Court for the District of Columbia, though, by a 2-to-1 margin, upheld the use of the obstruction charge, deciding that Judge Nichols’s reading was too cramped. Judge Pan, writing for the majority, ruled that the “broad interpretation of the statute — encompassing all forms of obstructive acts — is unambiguous and natural.”

The request for a hearing before the Nine asks whether the statute, intended to clamp down on financial malfeasance, “can be used to prosecute acts of violence against police officers in the context of a public demonstration that turned into a riot.” Mr. Lang argues that a “statute intended to combat financial fraud has been transformed into a blatant political instrument to crush dissent.”

Lang’s petition before the high court warns that a “revolution is underway, with ambitious federal prosecutors reworking the penal code to make it do work never intended to be done, work that threatens to chill, and does chill, ordinary Americans in their First Amendment rights.” The petition says there’s no need to “create a new and novel application of a statute to capture the violence that took place that day.”

Lang argues that the obstruction must be done “corruptly,” which doesn’t appear to be the case in his prosecution. And finally, Lang warns that this prosecutorial strategy “will serve to chill political speech and expression on the eve of one of the most consequential events in American life — the election of the next President of the United States.” He says it “falls to this Court to rein in the Department of Justice.”

It’s easy to argue that there is a certain amount of vindictiveness in many of these prosecutions. The question facing the court will be, did prosecutors go too far in fashioning a legal argument to prosecute based on a loose interpretation of a statute that was never meant to cover violence during a riot?

Courts are reluctant to reign in prosecutors, but in this case, there’s a chance the Supreme Court might look to cut the DoJ’s misused freedom of action and bring them down a peg.

For some rioters, it could mean the difference between prison and freedom. For others, taking a 20-year sentence off the table will be, if nothing else, a relief.

Connecticut state parks gun ban challenge dismissed

Connecticut’s ban on guns in state parks has survived a challenge.

A federal judge dismissed a lawsuit where a man had argued the policy violated his Second Amendment rights.

For folks enjoying the outdoors, there are mixed feelings about the current ban on guns in state parks and forests without authorization.

“There’s no need for a gun in a park with families,” said Connie DeMonte of Middletown.

“I believe people have the right to defend themselves no matter where they are,” said Scott Taffaro of Manchester.

On Wednesday, a federal judge threw out a challenge to the rule.

“This is an important decision, but it doesn’t really get to the heart of the matter. The judge dismissed the case on standing grounds, which is lawyer talk for, you don’t actually have the right to file this lawsuit,” said Mike Lawlor, University of New Haven criminal justice associate professor.

This rule has actually been around for more than 100 years and apparently there’s no record of it ever being enforced. That’s part of why the judge tossed out the case, though the fight is potentially not over.

In the lawsuit filed against the Department of Energy and Environmental Protection commissioner, David Nastri argued the ban prevented him from carrying a gun for self defense.

His lawyer says they will appeal and wrote in part:

“We are profoundly disappointed in the district court’s ruling, which we believe is significantly at odds with U.S. Supreme Court precedent and is based on an unprecedented legal fiction.”

The state attorney general applauded the dismissal, writing in part:

“Connecticut’s commonsense gun laws are life-saving and constitutional– they strike the right balance between respecting Second Amendment rights while also protecting public safety.”

Among those we talked with at the parks just happened to be the father of Lieutenant Dustin DeMonte – the Bristol Police officer shot and killed in the line of duty.

Philip DeMonte is against guns in the parks.

“I don’t need to have to worry or even want to have to worry about that. Because, I mean, there’s a lot of craziness out there already,” DeMonte said.

Lawlor said he believes if a case does move forward, judges would back governments having the right to regulate access to parks.

He points out there are rules about other things you can’t bring in like alcohol in some parks.

Judges Confused by Supreme Court’s Historical Test for Gun Laws

Confusion over the US Supreme Court’s last gun rights ruling is likely to persist even after the justices decide a new Second Amendment case next term.

Establishing a constitutional right to carry a handgun in public in a landmark 2022 decision forced lower courts to play historian and look to Colonial-era laws to justify the lawfulness of gun restrictions, a duty that has frustrated some judges.

“Judges are not historians,” Judge Carlton Reeves of the US District Court for the Southern District of Mississippi said in dismissing a case after finding no history or tradition to support upholding the federal ban on convicted felons having guns. “We were not trained as historians. We practiced law, not history.”……………….

This is rank, ripe, stinking BS.
1, It’s from Bloomberg, so should a posteriori be suspect.
2, They’re not confused. They’re not stupid. They’re subversives.
If a federal judge is incapable of looking up and analyzing legal and legislative history, they shouldn’t have a job. As an appellate judge, it is literally a core part of their responsibilities, and a big part of why our tax dollars pay for them to have clerks.

3,“We were not trained as historians. We practiced law, not history as an excuse? Judges do history all of the time. Even worse, Bruen doesn’t ask them to be historians of the 18th century in general. It only asks them to research historical laws.
One of the experts the article quoted admitted this is hard because most gun laws are from the twentieth century. That isn’t so much an attack on the Text/History/Tradition test as it is a condemnation of the last century’s purposeful rejection of a constitutional standard.

4, Historical revisionism is at the core of the modern gun control movement. It’s why Biden repeats the lie about people not being able to buy cannons and why news organizations wring their hands about how judges having to understand history is an unprecedented attack on our legal system.

5, The end goal is to make the following the only publicly acceptable opinion to hold:
a, There is no such thing as a right to own firearms
b, The very idea that there could be such a thing was created by NRA lobbyists and far-right conspiracists in the 70’s.
This is the gun control ‘Big Lie’.

Biden’s anti-gun executive orders falling one by one

The purpose of an executive order is for the president to tell others in the executive branch precisely how they’re to carry out the laws passed by Congress. It was never intended as a way to create laws without the legislature.

However, President Joe Biden, like so many before him, does just that.

Take gun control, for example. Biden can’t pass it. Not like he wants. Congress just isn’t interested in banning things like so-called ghost guns.

So, Biden uses an executive order, directs the ATF to essentially declare them illegal, and calls it a day.

Only, that didn’t work out.

Numerous federal gun control policies enacted by the Biden administration via executive order have faced extensive scrutiny in federal courts with jurisdiction over matters arising in Texas, the latest being a rule implemented last year seeking to regulate home-build firearms kits.

Texas residents Jennifer VanDerStok and Michael Andren, along with the Firearms Policy Coalition (FPC), challenged the new rule expanding the definition of a “firearm receiver” to include kits that contain partially manufactured parts and are marketed to be completed into functioning firearms, which are also referred to as “ghost guns.”

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) issued a statement when the rule was published last year, explaining that it was prompted by a proliferation of untraceable guns without serial numbers from being used in crimes. The ATF claimed it would help prevent those prohibited by law from obtaining a gun, such as convicted felons, from easily obtaining one.

The ATF claimed there were 692 instances of ghost guns being used in homicides or attempted homicides.

Of course, from what we’ve seen, those 692 instances were spread out over a significant period of time, meaning that they’re a statistical drop in the bucket when looking at so-called gun deaths.

But this wasn’t the only example of Biden’s executive orders showing signs of trouble.

There’s trouble brewing for Biden’s other big-ticket executive order, the ban on pistol braces. There’s already some judicial skepticism and the membership of the Second Amendment Foundation and the Firearms Policy Coalition are already exempt from it by court order.

In fact, it’s so bad it’s not unreasonable to ask whether any of Biden’s executive orders will stand.

Oh, I’m sure a few will. Parts of this order are just about speeding up the process of collecting data the government already collects, which isn’t likely to be overturned.

But that same executive order also deals with the so-called rogue gun dealers who appear to just be FFL holders who make administrative errors, and that is likely to end up in court sooner or later. Based on what we’ve seen, that’s going to be bad news for the Biden administration.

At the end of the day, most of Biden’s executive orders will probably be overturned, but not without a lot of time and resources spent fighting this power grab.

And none of it should be happening. The truth is that the legislative branch is who should be passing laws, not the executive, but with Congress having basically turned a blind eye to the ATF’s repeated “reinterpretations” of gun control laws, we have the mess we’re currently in.

If only that would fall in court.

Gun groups appeal Delaware ‘assault weapons’ ban ruling

(The Center Square) — Gun rights groups are asking a federal appeals court to overturn a lower court ruling upholding Delaware’s “assault weapons” ban and other firearm restrictions.

In April, U.S. District Court Judge Richard Andrews rejected a request by the Delaware Sportsmen’s Association and other groups who sued the state for a preliminary injunction blocking the new regulations from being enforced as he considers the lawsuit.

But the groups have filed an appeal to the Third Circuit Court of Appeals, urging the three-judge panel to overturn Andrews’ ruling that upheld Delaware’s ban on so-called “assault weapons” and “large capacity” magazines.

“The district court wrongly held that Delaware’s bans, which affect some of the most popular firearms and magazines in the country, could be justified by reference to a pattern of historical regulation targeting a variety of arms, from ‘slung shots’ to machine guns,” lawyers for the group wrote in the 64-page brief.

“But the state has not put forward, and the district court did not cite, a single law that banned possession or carriage of an arm that was in common use at the time like the Delaware bans do.”

Last year, Gov. John Carney signed a package of gun control measures that included a ban on the sale of so-called assault-style weapons, an increase in the age to purchase firearms from 18 to 21, strengthened background checks and limits on large-capacity magazines. It also banned the use of devices that convert handguns into fully automatic weapons.

The bills were pushed through the Democratic-controlled Legislature in the wake of several mass shootings, including the massacre of 21 at an elementary school in Uvalde, Texas.

The sportsman association, a state-level affiliate of the National Rifle Association, filed the lawsuit shortly after Carney signed the bills arguing they violate Second Amendment rights and Delaware’s Constitution, which guarantees a right to own and carry firearms.

The plaintiffs argued the new law “criminalized” the purchase and ownership of common firearms used by labeling them as “deadly weapons” and making it a felony “for law-abiding citizens to exercise their fundamental right to keep and bear such arms.”

The lawsuit is one of hundreds of legal challenges across the country filed in the wake of the U.S. Supreme Court’s decision in the N.Y. State Rifle and Pistol Association v. Bruen’s case, which struck down a New York law requiring applicants to show “proper cause” to get a permit to carry a firearm.

The ruling has prompted reviews of firearm licensing laws in Delaware and other Democrat-led states to tighten their gun laws to further restrict firearm carrying, spurring other legal challenges from Second Amendment groups.

“No matter what the State of Delaware thinks, the guns and magazines it banned are protected by the Second Amendment and thus cannot be prohibited,” Richard Thomson, a spokesman for the Firearms Policy Coalition, said in a statement. “We look forward to the Third Circuit getting right what the district court got wrong when it declined to preliminarily enjoin Delaware’s bans.”

Fifth Circuit poised to strike down another prohibited persons statute?

Unless you’re Hunter Biden, the Department of Justice takes a very dim view of possessing firearms and using illicit drugs of any kind; even those that have been decriminalized or legalized at the state level. But is the federal prohibition on that activity constitutionally permissible? The Fifth Circuit is asking that question in a case called U.S. v. Daniels, and this week both the Second Amendment Foundation and Firearms Policy Coalition gave their answers in amicus briefs filed with the appellate court. The short version? Absolutely not.

Patrick Darnell Daniels, Jr. was indicted by a federal grand jury last year for allegedly violating 18 U.S.C. § 922(g), which forbids gun possession for “unlawful users of controlled substances”; a charge, incidentally, that the media insisted is rarely brought against defendants. Guess Mr. Daniels was just extra unlucky, because not only was he charged but he was convicted and sentenced to 46 months in federal prison for illegally possessing firearms while regularly consuming marijuana.

Daniels’ public defenders appealed that verdict to the Fifth Circuit, arguing that 18 U.S.C. § 922(g) is both unconstitutionally vague because it fails to adequately define “unlawful user” and a violation of Daniels’ Second Amendment rights. The Fifth Circuit heard oral arguments in the case back in early June, but as SAF’s founder Alan Gottlieb says, the three-judge panel took the somewhat unusual step of soliciting amicus briefs from interested parties who could flesh out the historical record on just how longstanding and widespread similar prohibitions may have been.

While SAF Executive Director Adam Kraut says the organization isn’t taking a position for or against certain laws, attorneys failed to turn up any evidence of “historical gun regulations that essentially strip someone of their Second Amendment rights for life, because they may have been under the influence of, or impaired by, an intoxicating substance.”

As the brief explains:

… there were less than a handful of laws enacted during the colonial/pre-Founding Era and zero known laws during the Founding Era itself relating to the possession of firearms by users of illicit or intoxicating drinks or substances, and few known such laws during the 19th century, whether before or after the Civil War.

None of these laws were distinctly similar or relevantly similar to § 922(g)(3) because (1) in contrast, “the restrictions imposed by each law only applied while an individual was actively intoxicated or using intoxicants,” (2) “none of the laws appear to have prohibited the mere possession of a firearm,” or (3) “appear to have applied to public places or activities” rather than “being a total prohibition applicable to all intoxicated persons in all places . . . .” Harrison, 2023 U.S. Dist. LEXIS 18397, at *14. Whereas these laws “took a scalpel” to the right to bear arms, § 922(g)(3) “takes a sledgehammer to the right.”

The amicus brief notes that the DOJ itself has failed to come up with any Founding-era historical analogues to § 922(g)(3), which SAF’s attorneys say should be the fact that should carries the most weight, “given the Supreme Court’s command that the historical analysis required by Bruen must flow from 1791.”

Instead, the federal government cites three laws from the colonial/pre-Founding era; a 1655 law in Virginia that prohibited “shoot[ing] any guns at drinkeing (marriages and ffunerals [sic] onely [sic] excepted),” a New Jersey law from 1746 authorizing militia officials to disarm any soldier who “appear[ed] in Arms disguised in Liquor,” and a 1773 New York statute that prohibited the “fir[ing] or discharge [of] any Gun, Pistol, Rocket, Cracker, Squib or other fire Work [sic]” in certain areas between December 31 and January 2,” a restriction the SAF attorneys explain was meant to address “great Damages [] frequently done on . . . New Years Days, by persons going from House to House, with Guns and other Fire Arms and being often intoxicated with Liquor.”

The SAF brief found a few post-Civil War statutes that dealt with intoxicating liquors and guns, but none of them prohibited gun ownership for any regular consumer of alcohol or drugs (illicit or otherwise). Instead, these were mostly “time, manner, and place” restrictions; individuals may have been barred from carrying while actively intoxicated, but getting intoxicated wasn’t cause for them to be stripped of their Second Amendment rights.

The FPC brief treads similar ground, pointing out that firearms and alcohol were both ubiquitous in the colonial and Founding era, and yet prohibitions on gun ownership for users of intoxicating spirits is nowhere to be found in the historical record. Even when we get to the age of the temperance (and eventually teetotaler) movement, laws prohibiting gun ownership for drinkers are simply absent from the statutes.

Attorney Joseph Greenlee argues that the only historical justification for prohibiting gun ownership to someone is their “dangerousness”, but the “DOJ failed to make any serious effort to establish that connection” in relation to modern day drug use, illegal though it might be.

The DOJ’s fallback argument is that even if there aren’t any historical analogues to support the modern prohibition, the Second Amendment only protects “law abiding citizens,” so any illicit drug use is automatically cause to strip someone of their right to keep and bear arms. That argument is going to be tested by the Supreme Court in the Rahimi case this fall, and I suspect the Fifth Circuit will weigh in with their own views on the DOJ’s position as it applies to § 922(g)(3) before Rahimi‘s oral arguments take place.

The Fifth Circuit has already taken a dim view of several other gun control provisions, including the ATF’s ban on bump stocks and unfinished frames and receivers, as well as determining that those subject to a domestic violence restraining order like Zachey Rahimi still possess the right to keep and bear arms, and this should be a relatively easy call for the judges to make. The history, text, and tradition of the right to keep and bear arms is at odds with § 922(g)(3)’s lifetime prohibition on gun possession for “unlawful” users of drugs, and Hunter Biden shouldn’t be the only one to avoid federal prosecution for doing so.

Hunter Biden probe shows corruptness in America’s two-tier justice system.

America’s two-tier justice system keeps rolling along.

And Delaware US Attorney David Weiss, who snubbed the House’s request for documents pertaining to his probe of Hunter Biden, is the latest to show how far the Department of Justice will go to keep it rolling.

Hunter, President Joseph Robinette Biden’s black-sheep son, is facing tax and weapons charges that would represent deep hot water for most Americans. But Hunter isn’t most Americans.

He’s the president’s son, and, allegedly, bagman as well. And our Justice Department, headed by Attorney General Merrick Garland, is out to spare him the consequences of his actions.

IRS whistleblower Gary Shapley has come forward to report that Department of Justice officials took care to ensure that Hunter couldn’t be charged by ordering US attorneys in Washington, DC, and California not to prosecute.

Weiss didn’t charge Hunter because he allegedly said he lacked the authority to charge for things outside his home jurisdiction.

Garland could have granted Weiss the power to do so, but despite claiming that Weiss had unlimited powers, Garland never made the grant.

Hunter’s charges thus fell through a crack.

IRS whistleblower Gary Shapley has come forward to report that Department of Justice officials took care to ensure that Hunter couldn’t be charged by ordering US attorneys in Washington, DC, and California not to prosecute.

But hey, the tax fraud was only one of Hunter’s legal problems where the Department of Justice was happy to help out.

Hunter did get charged in Delaware, but only with two misdemeanor tax charges and a felony gun charge, for which he’ll get pretrial diversion and no prison time.

The tax charges could carry as much as two years in prison, and the gun charge could produce a 10-year sentence, but Hunter’s plea deal is expected to produce none.

Columnist J.D. Tuccille writes, “If, as expected, Hunter Biden’s plea deal on tax and firearms charges keeps him out of prison, it would be a remarkable display of leniency. . . . It’s enough to make a suspicious person wonder if the deal was meant to give the appearance that justice was done to divert attention from more serious matters. It’s also a hint of the restraint prosecutors exercise for the powerful, and which the rest of us would appreciate.”

The tax charges could carry up to 2 years in prison along with the gun charge producing a possible 10-year sentence, but Hunter’s plea deal is expected to produce none. Ya think?

As law professor Jonathan Turley notes, the charges also allow Hunter to avoid discussing the (likely unsavory) sources of the money.

How convenient.

“The House Oversight Committee has documented potentially millions in financial transfers from foreign sources to Biden family members. . . . Garland took the most important step in pulling off the controlled demolition by steadfastly refusing to appoint a special counsel. Such an appointment would allow the release of a report that would detail the alleged corrupt practices of the Biden family and the knowledge and involvement of the president,” Turley wrote.

That’s why they didn’t do it.

This seems deeply suspicious, and the House Judiciary Committee is investigating.

But Weiss, ignoring a subpoena, is stonewalling.

People used to say that it’s the coverup that gets you, not the crime, but today’s Democrats obviously don’t believe that.

It’s been obvious for a while that there’s a two-tier justice system in America.

If you’re a Jan. 6 protester who just wandered around the Capitol, you can expect solitary confinement before trial, and prosecutors who’ll throw the book at you.

But if you’re the son of a (Democratic) president, you can expect to be handled with kid gloves.

Our Constitution forbids “titles of nobility,” whereby the elite live by different rules than the rest of us.

It doesn’t seem to be working very well, does it?

FPC Files Opening Brief in Lawsuits Challenging Delaware “Assault Weapon,” Magazine Bans

PHILADELPHIA, PA (July 5, 2023) – Today, Firearms Policy Coalition (FPC) announced the filing of an opening brief with the Third Circuit Court of Appeals in its Gray v. Jennings and Graham v. Jennings lawsuits, which challenge Delaware’s “assault weapon” and standard capacity magazine bans, respectively. The brief can be viewed at FPCLegal.org.

“The district court wrongly held that Delaware’s bans, which affect some of the most popular firearms and magazines in the country, could be justified by reference to a pattern of historical regulation targeting a variety of arms, from ‘slung shots’ to machine guns,” argues the brief. “But the State has not put forward, and the district court did not cite, a single law that banned possession or carriage of an arm that was in common use at the time like the Delaware bans do.”

“No matter what the State of Delaware thinks, the guns and magazines it banned are protected by the Second Amendment and thus cannot be prohibited,” said FPC Vice President of Communications Richard Thomson. “We look forward to the Third Circuit getting right what the district court got wrong when it declined to preliminarily enjoin Delaware’s bans.”

FPC is joined in these lawsuits by the Second Amendment Foundation……