Category Archives: Courts

A Time for Choosing

I watch with shock, horror, trepidation, and anger at how fast my beloved country is becoming 1930s Germany. For those that wondered how they would have been, how they would have acted, how they would have chosen, what their character would have been? Yeah, well, I think we’re going to be finding out.
Harassment of Jews, with pending property damage? Check.

The sad irony of the October 7th massacre is that the denizens of Gaza attacked probably the most liberal part of Israel. They killed and raped the people who felt the most compassion for them, who marched for them, who hired them, who drove them to hospitals in Israel.
For example, this is Vivian Silver.

The late Vivian Silver
HY”D

The body of Canadian-Israeli Vivian Silver, one of the victims of the October 7th massacre was found.

Vivian (74) was an Israeli peace activist and leader of Women Waging Peace.

She spent years driving Gazans in need of medical care to Israeli hospitals.

They showed up on October 7th and thanked her their way – massacre!

Kfar Aza and Be’eri were made up of secular leftist peacenik types. They truly believed they could be friends and co-exist with the denizens of Gaza. So when it came time for the attack here’s how that works out in real life. The nice Gazans they had employed and paid good wages, that they had eaten meals with in their homes repaid their kindness in typical faux falestinian fashion. They had scoped out the Kibbutzim very well. They knew where the men lived, they knew who if any had guns and often where they were kept. They knew how many women and children, where they usually were, who had safe rooms and where. They then passed this intelligence onto the hamanazis.

Like the Jews of Germany that thought they were living peacefully with their neighbors for years, like the Jews living peacefully in 1929 Hevron with their Arab neighbors for years. Until one day they weren’t. Their peaceful neighbors turned into a deranged mob intent on torturing and killing one and all.

This man is a Muslim Arab Israeli who works for ZAKA, what he has to say is worth hearing.

A friend of mine told me there were a couple of religious observant Kibbutzim in the area. They lock their gates on Friday night at the start of Shabbat. They were spared, it seems the terrorists didn’t want to mess with fighting to get into some place when it was easier to go to those they knew would be lax. I’m not casting aspersions, I’m just marveling at small miracles any were spared.
And one of the questions many of us have struggled with is how could this happen?? How could Israel be so caught off guard. Well, short answer is it wasn’t, exactly. You know all those leftists in charge of our military? The ones doing drag queen story hour, and saying they would call China if our former President had been preparing to take action against them? Well, Israel has those kind as well. Caroline Glick is usually very solid. This has some of the answers, but its very painful and a bit of a warning to us as Obiden’s illegal invaders continue to stream across our border.

I’ve gotten the following information from more than one source, and it seems to line up pretty consistently.

Some of the horrors Israeli hostages experienced at the hands of Hamas in Gaza:

*Executed in captivity.

*Denied medical treatment.

*Starvation.

*Women kept in cages.

*Some forced to eat toilet paper.

*Sleep deprivation.

*Forced to watch Oct 7 atrocities.

*Separation from families.

*Children branded with exhaust pipes in case of escape.

*Beatings.

*Deprived of daylight.

*Solitary confinement.

*Elderly women forced to sleep on plastic chairs.

*Children forced to whisper, not allowed to cry.

*Denied basic hygiene.

*Confined to cramped spaces.

*No idea if their families survived.

*Forced to participate in degrading propaganda videos.

*Not a single visit from the Red Cross.

NEVER donate money to the Red Cross. Not only do they have a horrid history going back to WWII, while they certify the hamanazi ambulance service Red Crescent which is used to transport and hide terrorists, they refuse to certify Israel’s Magan David Adom ambulance service. In addition to which in this case the Red Cross did not demand of the hamanazis to be allowed to visit the hostages, and when asked by the family of an elderly hostage to take her medicine (which they had brought with them) to her in captivity, they refused. Yep, the Red Cross refused to take provided medication to an elderly hostage. NEVER give money to the Red Cross.

And this is just what we know about!Prof. Itai Pesach, head of children’s hospital at Sheba, said “When the children will start telling their stories, none of us will be able to sleep at night”.

Eitan was a Hamas hostage. He is 12 years old.

Eitan was brutally beaten on the day he was kidnapped by crowds of “innocent” civilians as he was brought from Israel into Gaza.

He was bullied by Palestinian boys under the instructions of a male teacher.

In captivity, he was forced to watch horrific videos of the massacre and torture of people he knew by the terrorists from October 7th.

He also said that the terrorists threatened them with weapons when the kidnapped Israeli children were crying.

When the Hamanazis said they didn’t know where all the hostages were they may have been telling the truth. Because the “innocent denizens of Gaza” were very actively involved in the kidnapping, torture and murder of the kidnapped Israelis. They also were holding some of them in private homes. Including a UNRWA teacher who held a captive in his attic for around 50 days basically starving the captive. Another Israeli was held captive by a Falestinian “doctor”. Yeah he is suppose to be a real doctor but apparently the Hippocratic oath hasn’t been translated into Falestinian.

This is the truth about Hamas, this is the high moral imperative of the Palestinian majority.

To torment and kill Israelis and Jews. This opinion poll was done around October 7th.

A Falestinian opinion poll

Be sure that Arab leaders are not as enthusiastic about a Palestinian state solution as the US administration does. Why? They have their past to lean on –

In the early 1950s, the Palestinian leadership collaborated with the Muslim Brotherhood, terrorizing Egypt, their host country.

In the mid-1960s, the Palestinian leadership terrorized Syria, their host country.

In 1968-70, the Palestinian leadership triggered a civil war in Jordan, attempting to topple their host Hashemite regime.

In 1970-82, the Palestinian leadership instigated a series of civil wars in Lebanon, aiming to take over their host country.

In 1990, the Palestinian leadership collaborated with Saddam Hussein’s invasion and plunder of Kuwait, which was for decades the most generous Arab host of 400,000 Palestinians.

From 1939, about nine years before the declaration by Israel of statehood,

Nobody wants these flotsom of human kind including other Arab nations which share a language and religion with them. This is Saudi author and media personality Rawaf al-Saeen. It has English subtitles and is pretty enlightening coming from the Arabic side.

Also weighing in for “news sources” that use the information given to them by the falestinian health ministry, is Amjad Taha, Arabic journalist, a real one. As opposed to cnn, msnbc and NYT. You see the falestinian health ministry is hamass. It’s run by hamass and is hamass. If they’re willing to behead babies, they’re willing to lie to a gullible western media and populace about how many are dead and how they got that way.

Taha

And some of the Western Media is very very stupid. Kudos to Elyon Levy.

Knesset member Avigdor Lieberman: There are no innocents in Gaza, he’s not exactly a religiously observant Jew.

There are no innocents in Gaza.

For years, good people with good intentions and it’s safe to say naive, believed in and promoted the idea of peace between us and the Palestinians. People who believed with all their hearts in the idea of two states and thought that normal people who dream the same dream live in Gaza.

A dream that shattered into pieces on October 7, 2023.

After recovering from the initial shock of the terrible massacre and with the revelation of the evidence of the atrocities committed by the Nazi terrorists, there is no shadow of a doubt that those who took part in the attack on the Gaza Strip, provided the intelligence on the homes of the residents and led the mob in the second wave of looting and destruction, were Gazans who worked in the settlements they invaded. They made a living and ate in the homes of the massacred residents, those residents who helped them and their families when they were sick and took care of transporting them from Gaza to Israel for life-saving treatments in hospitals in Israel.

The late Vivian Silver, from Kibbutz Be’eri, was one of those people who worked for peace and for the people of Gaza. She established aid programs for Gazans, made sure the workers were paid fair wages, transported the sick to hospital treatment and a few days before the massacre organized a peace rally in Jerusalem where Israeli women marched alongside women. On the Black Saturday, she was murdered with terrible cruelty by the very people she had worked for over the years, and none of the residents of Gaza condemned the murder or expressed shock.

Some will say that the residents of Gaza are afraid of Hamas and that is why we have not heard any condemnation from them, but the scenes we are witnessing in the last few days every evening when our abductees are transferred to the Red Cross and the testimonies of those who have returned from captivity, leave no room for doubt.

Hamas receives overwhelming support in Gaza.

The enraged crowd that insults and spits on the abductees, our small children who say they were beaten by Gazans of all ages and the demonstrations of joy and support for terrorists throughout Gaza, testify to the cruelty of the population that educates its children to hate the State of Israel and trains a new generation of terrorists and supporters of terrorism whose goal is the destruction of the State of Israel for all its citizens.

Gaza is a wasp’s nest of terrorists.

There is complete synchronization between Hamas and “innocent” citizens and the story of Roni Kariboy, who was kidnapped from the music festival by the bad guys, illustrates this. Roni managed to escape from captivity and hide for a few days, until Gazans caught him and returned him to his captors.

This is probably the reason why the terrorists marked the legs of the kidnapped children with the exhaust pipe of a motorcycle in order to make it easy to identify them in case they escape.

Another evidence of the full cooperation of the population can be found in the corridors of Shifa Hospital, where the hospital director and other senior doctors helped the terrorists hide hostages and turned the hospital into a haven for terrorists. But it’s not only in hospitals that you find collaborators, also in private homes of UNRWA medical professionals and teachers where hostages were held in terrible conditions.

These things are also reflected in social networks, in the Arab world and in Gaza. 99.9% of all publications are words of praise and wall-to-wall support for Hamas and the horrible acts of October 7th.

Now someone show me where innocent people who are not involved in terrorism are hiding in the Gaza Strip.

Why I am not moved emotionally by Gazan deaths

Stop worrying about Gazan civilians

Might there be guidance from the Torah about how such things should be handled? Why, yes indeed. In last weeks Parsha as a matter of fact!

Fifth Reading 34:1 Dinah was the daughter of Leah, whom Leah had borne to Jacob.46 Dinah was Leah’s daughter not only in the biological sense but also in the moral sense: she inherited her mother’s willingness to venture out of the safety of her tent47 for holy and righteous purposes. Confident in her ability to positively influence others—even though she was no more than a girl of ten at the time—she went out to observe the girls of that region in order to convince them to adopt the righteous ways of her family.

2 But Shechem, son of Chamor the Hivite, who was the chief of the region, saw her, took her, raped her, and abused her carnally in other ways, as well.

3 Despite himself, he was strongly drawn to Jacob’s daughter Dinah; he loved the girl, and spoke to the girl in a way he hoped would win over her heart, saying, “Look how many ornate coins your father expended just to purchase a small parcel of land.49 If you marry me, the whole city and its environs will effortlessly and automatically belong to you.”

4 Shechem spoke to his father, Chamor, as follows: “Get me this young girl as a wife.”

5 Now Jacob heard that Shechem had defiled his daughter Dinah. His sons were in the field with his livestock, so Jacob held his peace until they came.

6 Meanwhile, Shechem’s father, Chamor, went out to Jacob to speak with him.

7 Jacob’s sons returned from the field when they heard what Shechem had done to Dinah. The men, her brothers, became aggrieved and were deeply incensed, for Shechem had committed an outrage to their father Israel by raping their sister, Jacob’s daughter. Such a thing was considered socially and legally taboo ever since humanity had collectively foresworn illicit carnal relations in the wake of the Flood50 and made such acts a capital offense. Thus, Shechem’s act made him liable to the death penalty. The other residents of the city were implicated in his offense as well, for not having voiced their protest.51

8 Chamor spoke with them, saying, “My son Shechem deeply desires your daughter. I implore you, give her to him in marriage

9 and intermarry with us: give us your daughters, and take our daughters for yourselves. These marriages between our two peoples shall take place at your sole discretion: you may decide to which of our men you will give your daughters, as well as which of our daughters you will take for your men.

10 You shall live among us, and the land will be open before you; you may settle it, trade in it, and acquire holdings in it.”

11 Then Shechem said to her father and brothers, “Let me find favor in your eyes, and whatever you tell me to give as a dowry, I will give.

12 Go ahead, demand of me an exceedingly high figure for the dowry you will stipulate in the bridal contract, and for gifts, and I will give as much as you tell me; just give me this girl as a wife!”

13 When Jacob’s sons replied to Shechem and his father, Chamor, they spoke cunningly, for he had defiled their sister Dinah.

14 They told them, “We cannot do this thing, to give our sister to an uncircumcised man, for that would be considered a disgrace to us. In fact, when one of our people wishes to insult someone, he calls him ‘uncircumcised’ or ‘the son of an uncircumcised father.’

15 Therefore, will we give our assent only on this condition: that you be like us in that every male among you be circumcised.

16 We will then intermarry with you as you have proposed, i.e., at our sole discretion: We will give you our daughters and take your daughters for ourselves, and we will live together with you and become a single nation.

17 But if you do not heed us and circumcise yourselves, we will take our daughter and depart.”

18 Their terms were acceptable to Chamor and to Shechem, Chamor’s son.

19 The young man did not delay in carrying out this thing, since he desired Jacob’s daughter, and he was the most respected person in his father’s household.

20 Chamor then came with his son Shechem to the gate of their city, and they spoke to the men of their city as follows:

21 “These men are fully at peace with us. Let them live in the land and trade in it, for the land has ample room for them. Supply in our land exceeds demand, so letting them live here and trade in the land will not adversely affect our economy.” When Chamor and Shechem had proposed intermarriage between the two peoples to Jacob and his sons, they phrased their proposal to Jacob’s family’s advantage, allowing them to select Hivite men for their daughters and take whatever Hivite girls they wished for wives. In contrast, when they now set the proposal of intermarriage before their compatriots, they altered the wording to their compatriot’s advantage in order to induce them to consent to be circumcised: “We will take their daughters as wives, and we will give our daughters to them, both at our discretion.

22 But only on this condition will these men consent to live with us and become one nation: that every male among us be circumcised, just as they are circumcised.

23 After all, when they will dwell among us, their livestock, their possessions, and all their animals will become ours. Let us just agree to their condition and they will live among us.”

24 All the people who came out to the gate of Chamor’s city heeded Chamor and his son Shechem, and all the males who passed through the gate of his city had themselves circumcised.

25 On the third day after their circumcision, when the Hivites were in pain, two of Jacob’s sons, Simeon and Levi, each took up his sword. They acted as Dinah’s loyal brothers, risking their lives for her sake, but without first consulting their father. They fell upon the city, confident in their ability to overcome the men—firstly, because of the Hivites’ weakness and pain due to the circumcision, and secondly, in the merit of their father Jacob—and killed every male.

26 They also killed Chamor and his son Shechem by the sword, and took Dinah from Shechem’s house and left. When they went to rescue Dinah, they found her agonizing in embarrassment over what had been done to her and afraid that, consequentially, no one would want to marry her; Simeon therefore promised that he would marry her, and it was only on this condition that she consented to be rescued.52

When the two brothers attacked the city of Shechem, Jacob took up his sword and bow and stood at the entrance to the city in readiness to protect his sons if any of its allies would come to side with its inhabitants.53

27 Jacob’s sons came to strip the slain of their possessions, and they plundered the city that had defiled their sister.

28 They took the Hivites’ flocks, cattle, donkeys, and whatever else was in the city and the field.

29 They seized all their money and captured all their children and womenfolk, and plundered everything in the houses.

A couple of thoughts, Dinah was TEN, TEN years old when Shechem raped her. I was attempting to explain why the actions of Simeon and Levi were responsible and reasonable. The whole town did nothing to stop the depraved Shechem from brutalizing the child, and after he did so they did nothing to confront him. So will the town continue to behave in such a manner? Yes. Of course.

I thought Lenny Goldberg had a great (if short) show on this very topic this week.

Part of the problem is people look at this situation and actions through the mind set of the mid-west. The middle East is not the mid-west.

Some of the terrorists Israel has released are again calling for the murder of innocent Israeli civilians. Already.

And the hamanazis are saying they intend to repeat October 7th.

Hamas official says group aims to repeat Oct. 7 onslaught many times to destroy Israel

And this is the next generation of “innocent Gazans”

We were warned.

Understand this, our country has become so depraved that when those in charge of 3 major schools of higher learning refused to say that calling for the murder of Jews is a violation of their school’s policies you know where we’re at. The best they could manage was if the terrorists actions crossed over from calling for genocide into actually committing genocide then that might maybe be a violation of their schools policies. Situation dependent you understand, of course.

There are many many people stacked against what used to be normalcy and decency. But there are some interesting solutions. I do love this short video.

This woman in Israel is known for cheerleading and supporting Hamas. She got the shock of her life when the Israeli police informed her in person that she would be relocated to Gaza—the ultimate fan experience, right at the heart of the action, the headquarters of Hamas! Israeli Arabs enjoy one of the highest standards of living in the world, even higher than other Arabic countries usually. But this woman just loves and supports the Hamanazis, and hasn’t been shy about telling everyone. So, Israel is shipping her to Gaza!! What a fabulous idea!! Look at her excitement and the look of pure joy on her face!! They’ve made her dream come true. I’d like to suggest we begin to do the same to some college students and the presidents of Harvaaaaard, MIT and Penn. I’m sure they’d love it!! T

Hanukkah starts tonight. It’s different from some of the other wars, most of them have been like what the current demoncrat party is waging. A fight against a mob and death. <humor alert>

Jewish Family Celebrates Hanukkah 2023 In Neighbor’s Attic

Hanukkah in contrast, the Greeks didn’t care if the people lived, but they wanted to kill the religion and practice of Judaism. Sort of like the Obiden White House.

Jews Advised To Protect Themselves From Violence By Not Being Jewish

“It’s a simple solution,” said historic White House Press Secretary Karine Jean-Pierre, who is gay and black. “We have seen a sharp rise in antisemitic behavior, so our best advice to Jewish people in fear for their lives is to stop doing Jewy things and consider not being Jewish altogether.”

If you’re like me, you wonder why? Why is this happening. I really liked the explanation in this short video. It is apparent, the time is upon us, the time for choosing. What kind of people will we be? What kind of people are we? What will we contribute to society, our country and our world?Will we seek out and find why G-d wants us here at this time in this place? All questions for each of us to answer.

And with that, I will wish you all a very safe, joyous and meaningful Hanukkah!

חג חנוכה שמח

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Fifth Circuit On “Ghost Gun” Rule

You’ve got to love the Fifth Circuit Court of Appeals; they’ve been on a roll lately. They shot down the bump-stock ban in Cargill v. Garland. They struck down the ATF’s pistol brace rule in Mock v. Garland (which was the basis for the Northern District of Texas likewise ruling against the ATF.

Now they’ve turned their attention to the odious ATF’s equally odious frame/receiver rule (declaring unfinished, inert lumps of metal to be firearms) in VanDerStok et al v, Garland. A three judge panel ruled against it.

The judges found that the ATF not only exceeded their authority, but directly contradicted statutory law. I generally agree with them; I’ve made many of the same arguments. But I do want to pick one nit.

ATF’s 1978 regulatory definition sufficiently captured most firearms of the era. Modern firearms, however, have developed such that many firearms no longer fall within the definition. In the Final Rule, ATF states that “the majority of firearms in the United States” no longer have a clear frame” or “receiver” that includes all three elements of the prior definition (that is, a hammer, bolt or breechblock, and firing mechanism). ATF uses the example of an AR-15,6 which does not have a single housing for the bolt (which is part of the “upper assembly”) and the hammer and trigger (which is part of the “lower assembly”).

That’s not something that happened recently, which legislation just hasn’t caught up with as yet. Striker-fired firearms are hardly new. The first striker-fired firearm was invented in 1878; 60 years before the Federal Firearms Act of 1938, and 90 years before the Gun Control Act of 1968. Semiautomatic pistols, where no one part of the firearm contained all of the defining parts, date back to at least 1897.

It’s now 2023, and those types of firearms have been around for well over a century. And yet Congress never saw fit to include them.

Their Honors also had issues with the ATF’s thinking processes, such as they might be.

There is also a clear logical flaw in ATF’s proposal. As written, the Final Rule states that the phrase “frame or receiver” includes things that are admittedly not yet frames or receivers but that can easily become frames or receivers—in other words: parts. As the district court put it, under the Final Rule, “ATF may properly regulate a component as a ‘frame or receiver’ even after ATF determines that the component in question is not a frame or receiver.” Such a proposition defies logic: “a part cannot be both not yet a receiver and a receiver at the same time.”

Oh! Schrodinger’s gun. As opposed to Chekov’s gun, I suppose.

They caught the ATF attempting conflate laws. The ATF’s rule claimed the power to regulate gun “parts” by noting that the National Firearms Act assigns them the authority to regulate separate parts, like full-auto trigger groups and silencer components, so naturally they can do that with non-NFA parts, right?

No. TL;DR: The authority to regulate non-NFA parts was specifically taken away.

The district court correctly held that ATF has no authority whatsoever to regulate parts that might be incorporated into a “firearm” simply because Congress explicitly removed such authority when it enacted the GCA. The GCA’s predecessor statute, the Federal Firearms Act (“FFA”), had specific language that authorized regulation of “any part or parts of” a firearm. However, Congress removed this language when it enacted the GCA, replacing “any part or parts” with just “the frame or receiver of any such weapon.” Thus, the GCA does not allow for regulation of all weapon parts; rather, it limits regulation to two specific types of weapon parts.

While the main decision was largely boring, for those who don’t read these things for fun, Judge Andrew S. Oldham got a little more entertaining in his concurrence. Clearly, he was less than thrilled with the ATF’s refusal to state a definite, objective standard by which to judge when a lump of metal turns into a receiver.

The Final Rule emphasizes this list is “nonexclusive.” And ATF explicitly disclaimed the need to explain how any of these factors would balance in practice: “It is not the purpose of the rule to provide guidance so that persons may structure transactions to avoid the requirements of the law.” This approach violates the Fifth Amendment and its guarantee of fair notice. See FCC v. Fox Television Stations, 567 U.S. 239, 253 (2012) (“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.”). The “Government violates this guarantee by taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” (emphasis added)

The ATF is whining. “Arbitrary enforcement” is exactly what they wanted. And Oldham caught them. He proceeded to explain in small words for small ATF brains — using pictures — why going from an objective numerical standard of “more than 80% complete” to “we might think it looks like a gun” wasn’t going to cut it. And he wrapped that up with this tidbit.

ATF’s problem is that § 921(a)(3)(B) covers objects that are frames and receivers, not objects that look like frames or receivers. A recent Internet fad illustrates the point. Consider the “cakes that look like food” Internet trend. One could make a cake that looks like a hamburger, just as one could make a cake that looks like a gun frame or receiver. One is “clearly identifiable” as a hamburger, just as the other is “clearly identifiable” as a gun part. But that does not make the former taste like a Big Mac, just as it does not make the latter covered by the GCA. (emphasis added)

An excellent example, and one even a seven year-old can figure out. ATF agents, not so much.

This is not a gun, ATF and “educators.”

Oldham’s final summation says it all.

The Final Rule is limitless. It purports to regulate any piece of metal or plastic that has been machined beyond its primordial state for fear that it might one day be turned into a gun, a gun frame, or a gun receiver. And it doesn’t stop regulating the metal or plastic until it’s melted back down to ooze. The GCA allows none of this. I concur in the majority’s opinion holding the Final Rule is unlawful. And I further concur that the matter should be remanded to the district court to fashion an appropriate remedy for the plaintiffs.

I suppose the ATF could appeal this to the en banc Fifth Circuit, but looking at the judges who upheld the Second Amendment in this, Cargill v. Garland, and Mock v. Garland, I don’t think it’ll change.

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Pistol Braces: Good News, Bad News

There’s a little more good news regarding the ATF’s unlawful and unconstitutional pistol brace rule. Another federal judge has issued an injunction against enforcement of the rule in Britto v. ATF, No. 2:23-cv-19, in the Northern District of Texas.

The good news:

Under the APA, courts must “hold unlawful and set aside agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “in excess of statutory jurisdictions, authority, or limitations, or short of statutory right.”

Arbitrary and capricious? Most definitely, as The Zelman Partisans told the ATF during NPRM commenting period.

This proposed rule is a coherently expressed description of an arbitrary, capricious, and incoherent process of classifying firearms.

They should have listened.

But back to the injunction. Kacsmaryk cites the Fifth Circuit’s ruling in Mock v. Garland, which found the rule to violate the Administrative Procedures Act, resulting in an injunction against enforcement of the rule, but only for the plaintiffs in that case

Given the Fifth Circuit’s holding, this Court recognizes that the Rule “was not a logical outgrowth of the Proposed Rule” and “must be set aside as unlawful.

That was the good news. The Rule is unlawful because the ATF violated the Administrative Procedures Act (which is something of a habit for them). Better news: the injunction is nationwide and not limited to the plaintiffs in this case.

The bad news…

That holding alone establishes that Plaintiffs “have demonstrated, a fortiori, an actual success on the merits of their APA challenge to the … Rule.”

It goes without saying that constitutional questions should be avoided if there are independent ‘ground[s] upon which the case may be disposed of.”

No, it should not go without saying. Why does statutory law — the APA, in this case — take precedence over the Constitution and Second Amendment, the question of which the plaintiffs definitely raised?

Laziness, and fear of dealing with constitutionality until absolutely forced to do so. Which conveniently leaves the ATF free to try yet another unconstitutional rule, until some judge finally decides to take note of said Constitution.

And as Judge Tipton noted in a similar case, “it would be improper for this Court to now evaluate constitutional issues” given that “the Fifth Circuit has already decided that the Final Rule violates the APA.”

Grow some balls, Kacsmaryk. Give us a constitutionality precedent, one way or the other.

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I Expect Clarence Thomas Is Fuming Right About Now

Because a three judge panel of the Seventh Circuit Court of Appeals just upheld, 2-1, Illinois’ “assault weapon” ban in Bevis v. Naperville (which is actually six separate challenges to “assault weapon” bans in Illinois, consolidated), and mangled BRUEN in the process. To do this, the lying bastards started with the BS “weapons of war” argument. And went downhill from there.

Honestly, this decision reads like something you might expect from the Ninth Circuit.

We find substantial support for the proposition that the Arms protected by the Second Amendment do not include weapons that may be reserved for military use.

Because obviously AR-15s are just like “a nuclear weapon such as the now-retired M388 Davy Crockett system, with its 51-pound W54 warhead.” Seriously; they equated semi-auto rifles to nuclear warheads.

And to support that position, Easterbrook and Wood lied about Supreme Court rulings, starting with MILLER, 1939 which said exactly the opposite. This Court resorts to citing the dissent to magically turn military use into common, lawful civilian use, and pretends HELLER said that.

But after Heller, we know Miller does not address a weapon’s military use. Because the National Firearms Act of 1934 targeted the firearms most commonly used by criminals and gangs, Miller’s “lawful use” language relates to criminal use, not military use.

The term “lawful use” doesn’t even appear in MILLER. It had no “lawful use” test. It only used a militia use test:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

HELLER addressed civilian use of weapons not specifically acknowledged as militarily useful, and asked if possession of those by civilians could be banned. The court concluded that civilian weapons in common, lawful use could not be banned; that there is an individual right to them. And that the right to those not necessarily military-style weapons was subject to reasonable limits.

HELLER didn’t overturn MILLER; it built on it, and added to it. Those judges damned well know what MILLER and HELLER really said. The fact that they twist the words, and outright lie, about them proves their intent was not innocent.

Now that Easterbrook and Wood have pretended that “weapons of war” aren’t 2A-protected, they have to “establish” that AR-15s are military weapons.

Coming directly to the question whether the weapons and feeding devices covered by the challenged legislation enjoy Second Amendment protection, at the first step of the Bruen analysis, we conclude that the answer is no. We come to this conclusion because these assault weapons and high-capacity magazines are much more like machineguns and military-grade weaponry than they are like the many different types of firearms that are used for individual self-defense (or so the legislature was entitled to conclude).8 Indeed, the AR-15 is almost the same gun as the M16 machinegun.

How do they know?

The only meaningful distinction, as we already have noted, is that the AR-15 has only semiautomatic capability (unless the user takes advantage of some simple modifications that essentially make it fully automatic), while the M16 operates both ways.

Sure, an illegally modified AR-15 is is the same thing as an M16, just illegally mounting a 120mm cannon on a Trabant makes it an Abrams M1A1 Main Battle Tank.

Speaking — currently — illegal modifications, these jokers used a timely example.

The similarity between the AR-15 and the M16 only increases when we take into account how easy it is to modify the AR-15 by adding a “bump stock” (as the shooter in the 2017 Las Vegas event had done) or auto-sear to it, thereby making it, in essence, a fully automatic weapon.

Personally, I would have skipped that one, since the same day they issued this ruling, SCOTUS — facing a multi-Circuit split on the bump-stock ban — granted cert to Garland v. Cargill, challenging the ban.

So… they’ve lied their way into declaring that the 2A doesn’t protect “weapons of war,” and that AR-15s are in that class. Now they also had to deal with BRUEN‘s general, historical legal tradition test, which they handled with still more verbal manipulation and selective editing.

The analysis then moves to second step, which calls on the “government [to] justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id. The Court predicted that this second step would be relatively easy in some instances, when historical analogues are easy to find. But in other instances, it recognized that the task would be challenging. It singled out “cases implicating unprecedented societal concerns or dramatic technological changes,” which “may require a more nuanced approach.”

These two would have you believe that if something is new enough, then general, historical legal traditions don’t apply. But what they left out from BRUEN is this part.

Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it.

Yes, the Constitution and the Second Amendment still apply to “new” things like the five decades-old design of the AR-15. Some restrictions on how they are used might be constitutional, but a ban isn’t.

As for “dramatic technological changes” that those early folks could never imagine

James Madison, known for his role in drafting the Bill of Rights (including that pesky 2A) lived through the rise of repeating firearms, breechloaders, paper cartridges, percussion caps, metallic cartridges, pinfire cartridges, centerfire cartridges, revolvers, and mass production of firearms.

Heck, an early machinegun was pitched to the US War Office in 1812, and patented in 1813 — during Madison’s presidency (and was a refinement of a 16th century machinegun).

Yet never once did Madison stop and say, “Whoa, guys! We didn’t have any of this new shit in mind. The Second Amendment is just for muskets.”

Speaking of “patented”, not only could the Founders envision dramatic technological changes, they counted on it and deliberately promoted it.

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Yes, liars, the BRUEN test applies to AR-15s. And I challenge you to provide a citation of the nation’s general, historical legal tradition of banning civilian possession of “weapons of war.” Bear in mind you’ll have to explain away another pesky provision of the Constitution.

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

In case the judges are unfamiliar with Letters of Marque pay attention, too):

Letter of marque, the name given to the commission issued by a belligerent state to a private shipowner authorizing him to employ his vessel as a ship of war. A ship so used is termed a privateer.

Not only was civilian ownership of real weapons of war not banned, they — again — counted on it. Muskets, rifles, cannon, warships; all of them. Moreso, in the case of muskets or rifles, they required private possession of those “weapons of war.”

Granted, these robed morons did cite some legal “traditions” that they would have you believe support a ban on an entire arbitrary class of firearms. But what they came up with were a series of local ordinances barring discharge of muskets and cannon in town, some isolated bans on Bowie knives, or openly carrying certain types of firearms.

They couldn’t find anything in relevant history of a general nature; and remember that BRUEN specifies that isolated local laws don’t count:

The bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry.

There’s nothing of a general law citation until the National Firearms Act of 1934, 143 years after the ratification of the Second Amendment. So my challenge stands.

The third member of the panel, Judge Brennan sanely dissented with his crazed colleagues. While he also addressed procedural issues with the passage of the state ban, he hit on the issues I’ve covered; albeit more formally and politely. Like me, he took issue with Easterbrook and Wood’s mangling and misinterpretations of HELLER and BRUEN. He also objected their “It’s military, so it isn’t protected” position: arms are arms, they’re all protected; some can be regulated but not banned.

I liked this bit that Brennan included, about the whole scary “AR-15s are weapons of war” thing:

The AR-15 is a civilian, not military, weapon. No army in the world uses a service rifle that is only semiautomatic.

That’s a point I’ve been raising for years. None do; the last country I found using them switched to select-fire assault rifles three decades ago.

All in all, I look forward to this being appealed to SCOTUS. I’m sure Clarence Thomas will insist the Court take this up, just so he can judicially bitch-slap Easterbrook and Wood for shredding BRUEN and HELLER.

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Good News From California

But don’t get too excited yet.

Federal Judge Strikes Down California’s Decades-Old ‘Assault Weapons’ Ban: ‘No Historical Pedigree’
U.S. District Judge Roger Benitez, a George W. Bush appointee, struck down the 1989 ban, enacted by the California legislature in response to the Stockton school shooting, which prohibits the transfer, manufacturing and possession of certain semiautomatic weapons. Benitez wrote that American tradition “is rich and deep in protecting a citizen’s enduring right to keep and bear common arms like rifles, shotguns, and pistols” and does not include firearm restrictions based on “looks or attributes.”

That’s our guy Benitez again. At least on 2A issues, he’s a constitutionalist, and he read and grasped BRUEN (something most of the Ninth Circuit Appeals haven’t managed).

The problem is that, as always, this case is going to keep bouncing back and forth to the Ninth for years, with endless stays of Benitez’s ruling. Unless and until SCOTUS starts issuing contempt of Supreme Court bench warrants for those who are willfully defying the Second Amendment and BRUEN.

But given that Chief Justice Roberts sided with the gun grabbers on the frame/receiver rule, don’t get too excited about warrants either.

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SCOTUS: Enforcement Or Irrelevance

Pigpen51 left a comment on an earlier column regarding the Ninth Circuit Court of Appeals complicity in California’s brazen violations of the Constitution. He thinks the Supreme Court needs to make some rulings with absolutely no wiggle room to allow California — and like-minded oathbreakers — to continue enforcing bad laws.

I hope that they do so with, shall we say gusto, or extreme prejudice, or with a heavy gavel? Because if they leave even the smallest crack in the rebuke, no doubt the anti Constitution liberals will find a way to yet again hold things up

Crack? Taking advantage of a “crack” is what they did with the original Gun-Free School Zones” law. SCOTUS tossed it, so they passed a new bill virtually identical to the original, with “moved in interstate commerce” tacked on.

Mostly they don’t worry about cracks anymore. If a law gets tossed, they simply pass it again with the punctuation slightly altered, and declare that it’s new and SCOTUS hasn’t ruled on this one. That forces the pro-freedom types to waste time and money to fight what is essentially the exact same law. Blue state legislators and AGs don’t mind because it isn’t their money they’re wasting; it’s yours.

SCOTUS should have put a stop to that decades ago. Now, emboldened by SCOTUS’ failure to slap them down, they’re escalating. California just passed a couple more bills that clearly violate BRUEN. And they know it. Newsom said so, saying that they will not be bound by the “general, historical legal tradition” demanded by BRUEN.

“Newsom framed the move as a response to the “rights reduction” caused by gun laws that function under a “1790s framework,” a recording of the signing showed.”

And it wasn’t just Newscum saying it. It’s actually in the bill passed and signed. (It helps to read the “Whereas” rationalization preface to bills, and not just the hard action portions.)

No longer will they need to “keep kicking that can down the road.” If SCOTUS doesn’t start arresting these scumbags, they don’t need to “change the makeup of the court” that they’ll ignore anyway.

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Ninth Circuit Judicial Games

No doubt you’ve heard that federal Judge Benitez once again ruled in Duncan v. Bonta that California’s ban on “high capacity” magazines is unconstitutional; particularly in light of SCOTUS’ BRUEN decision. He stayed his injunction until October 2, to allow the state time to file yet another appeal.

And once again the state did appeal to the Ninth Circuit. Which took the unusual action of taking the state’s “emergency” request for an administrative stay past October 2 en banc. Normally such requests for administrative stays is done by a three judge panel.

The en banc Ninth issued an administrative stay until October 10, 2023.

However, a couple of the Circuit judges wrote dissenting opinions, objecting to the Court gaming the system to delay or deny Second Amendment rights.

I found the dissents to be rather interesting.

Bumatay, J., dissenting:

For over a decade, our court has improperly interest-balanced our way around the Second Amendment. The Supreme Court has had enough of it. See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). In Bruen, the Supreme Court made clear that the Second Amendment must no longer be deemed a disfavored right.

With this clear direction from the Supreme Court, you might think that our court would return to regular order and handle this Second Amendment case like all others before our court. And in the normal course, emergency motions would be handled by a three-judge panel. But not here. Because this is a Second Amendment case, we now take the unprecedented step of taking an emergency motion as an en banc panel in the first instance. While our rules may leave room for such an unusual step, discretion and wisdom counsel against it. Indeed, to my knowledge, no en banc panel of this court has ever handled an emergency administrative stay motion as an initial matter. And the majority cites no precedent otherwise. So I’m left wondering why we rush to do something so unorthodox.

Judge VanDyke doesn’t wonder:

I share Judge Bumatay’s concerns about the irregularities created by this en banc panel’s all-too-predictable haste to again rule against the Second Amendment. Apparently, even summary reversal by the Supreme Court has not tempered the majority’s zeal to grab this case as a comeback, stay the district court’s decision, and make sure they—not the original three-judge panel—get to decide the emergency motion (and ultimately, the eventual merits questions) in favor of the government. I think it is clear enough to everyone that a majority of this en banc panel will relinquish control of this case only when it is pried from its cold, dead fingers. And I think it is clear enough to everyone why.

Excellent turnabout of the “cold, dead fingers” cliche, Your Honor. I laughed, which rarely happens when reading court decisions and dissents.

And yes, the reason is clear enough. The Ninth is determined to allow California to continue violating the 2A, and is play games with stays and appeals, and bumping cases back to lower courts instead of doing their SCOTUS-mandated job.

if the Ninth had to take this request en banc, what they properly should have done was say Stay denied. We already sent the state’s appeal back to the district for a final ruling in light of BRUEN. The district court granted a permanent injunction against the ban in light of BRUEN. The lower court’s stay is lifted, and the permanent injunction against enforcement is upheld.

And I’d bet good money that when the state’s actual appeal is filed, the Ninth will find an excuse to bounce the case back to the district again, rather than make a final decision so that either 1) the state concedes, or 2) the state finally appeals to the Supreme Court.

This sort of judicial lawfare is just going to continue until the Supreme Court finally takes notice of lower courts and other officials blowing off its decisions, and starts finding offenders in contempt and issues bench warrants.

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Two-Tiered Justice?

Hunter Biden has been indicted for possessing a firearm while being a user of illegal drugs, and lying about it on the 4473. If the law is for everyone, I think it’s… ahem high time.

Technically, he was indicted for the 4473 lie previously, but was going to be allowed to completely skate on the charge, with pre-trial diversion. Some of us wondered, if his name wasn’t “Biden,” whether he would have faced more serious penalties. But this being 21st century America, Dimwitocrats have turned that around now.

Dem Rep. Goldman: ‘Two-Tiered Justice System’ Indicting Hunter for Seemingly Violating Gun Laws Because He’s a Biden
Goldman said, “Well, look, it is a crime that, in my ten years as a federal prosecutor I have never heard of being charged.

Really? Never? Not even just a few months ago?

Legal experts say the charges against Hunter Biden are rarely brought

Define rarely. These folks might be surprised to hear that. So would the ATF.

I found all those recent (post Hunter’s little possession adventure) cases in about two minutes with a single web search.

And, as states decriminalize majijuana use, that federal firearm prohibition is of concern to users, who seem to be a bit more aware of the issue than is Rep. Goldman.

However, given prosecutor Weiss’ eagerness to let Hunter Biden off, I wonder if he isn’t clued in a little better, legally speaking. Earlier this year, in US v. Harrison, a judge ruled this restriction on unlawful drug users’ possession of firearms to be unconstitutional, having applied the BRUEN precedent of general, historical legal tradition.

My guess is that Crackhunter will make that same argument, and Weiss will decline to challenge it. The possession charge, at least, goes away. Weiss declines to appeal. Hunter walks.

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Was that Jelly or Jam?

It appears the Biden crime regime is waging a war against law-abiding citizens who are Second Amendment supporters by attacking them on First Amendment grounds. Yes indeed Barry Sotero is enjoying his third term via his favorite sock puppet the corrupt Joe Biden, so Biden is carrying on Barry’s proud tradition of using government to attack citizens by force, with lies and with government agencies gone rogue.

They went so far as to physically attack January 6th attendees. We know that incompetent, corrupt (and now promoted) Michael Byrd murdered Ashli Babbit.

USCP Inspector Thomas Loyd Commanded Cops To Fire Munitions At Peaceful Protesters on Jan. 6 LIES And Cries To Judge Kelly During Proud Boys Sentencing Hearing

Julie Kelly has been covering the trials going on for the January 6th political prisoners, and she’s been pointing out the absolute travesty of justice going on.

BREAKING: Judge Tim Kelly just made destruction of part of a temporary metal fence on govt property a federal crime of terrorism.

Said removal of fence was part of the Proud Boys “conspiracy” to “influence the conduct of government.”

This dramatically increases base level of jail time for Joe Biggs and Kelly no doubt will do the same for the other Proud Boys.

Knew it was coming but still flabbergasted.

She also has pointed out that the “judge” in the President Trump trial in the banana republic formerly known as the USA is far from being an acceptable judge.

Chutkan comes from a family of influential Jamaican Marxists.

In addition to her bias against the January Six defendants, she was appointed by Barack Obama. He nominated the most radical judges he could find.

She also worked at the same law firm as Hunter. Let’s just say, for argument’s sake, that she can be impartial; what about her past with Burisma and her former law firm representing Fusion GPS? She didn’t recuse herself when the Fusion case came up until she was found out the day before the proceedings.

She has referred to defendants as insurrectionists, and her sentences were the harshest of the judges.

Trump judge says defense should have started BEFORE indictment!

Now Kelly is out with a new report about a hearing before Chutkan, and “it’s worse than reported.”

NEW: I have transcript from today’s hearing before Judge Chutkan and it’s worse than reported.

Chutkan marveled at Jack Smith’s rapid “discovery” production while downplaying fact DOJ could not name a single case in DC District that went from indictment to trial in 5 months: pic.twitter.com/pAxcBlv7dv

Julie Kelly 🇺🇸 (@julie_kelly2) August 29, 2023

Julie Kelly exposes just how corrupt and biased Trump J6 judge Tanya Chutkan REALLY is in damning thread

President Trump was correct when he said they weren’t really after him, he was just in the way of them coming after U.S.

So January 6th fedsentation (a lot like a presentation staged by feds) stopped the challenges to the fraudulent election that were going to be presented. The people (except for the feds, corrupt cops and antifa) that had gone there, had gone to express their grievances, something that is allowed by law. Unlike BLM they didn’t riot or burn cities, no, others presenting themselves as Trump supporters did that.

They have no problem with stifling free speech, that became crystal clear during the covid fiasco. Nor do they have a problem stifling free speech to keep you from defending yourself or others. Such as lawyers. Rules and laws no longer apply to the left.

The weaponized DOJ is also determined to disarm law-abiding citizens. Pawshawwww, pesky Constitution. Why worry about that when you have the Department of Veteran’s Affairs…again.

This outrages me as these are men and women who were willing to place their life on the line for our country. And they basically stand to lose human rights (self-defense) because they didn’t balance their checkbook?

New Bill Would Stop VA Bureaucrats From Gaming The System To Grab Veterans’ Guns

The legislation, introduced on Friday by Reps. Roy, Eli Crane of Arizona, Lance Gooden of Texas, Andrew Clyde of Georgia, Andy Harris of Maryland, and Mary Miller of Illinois, specifically bars the VA from sending veterans’ names to the Department of Justice to be added to the federal government’s no-gun list.

….

FBI data from 2023 shows that nearly 98 percent of the names placed in the NICS “mental defective” category by federal agencies were handed over to the FBI by the VA.

….

A memo released by House Veteran Affairs Committee Chairman Mike Bost notes that the decision to name a fiduciary and disarm veterans is often made by “VA general schedule employees, not a court or similar judicial authority.” There is an appeals process for veterans who want “relief of firearms prohibitions imposed by the law” but whether or not that relief is granted is once again determined by the VA.

And if disarming them via government agency isn’t sufficient, they’ll just have a government agency shoot you, stone cold, graveyard dead.

On August 9th in Provo Utah an elderly senior citizen, Craig Robertson was killed in his home. My comments come are in regards to the following article. Apparently the basically home-bound elderly man who took care of his visually impaired son had grown dissatisfied with the Biden Crime Regime’s continual attacks on our country, it’s citizens, borders, way of life and Constitution.

The FBI Claims Disabled Trump Supporter Who Was Killed in Morning Raid Had Pulled a Gun on Agents

According to an email from FBI spokeswoman Sandra Barker, Craig Robertson “resisted arrest and as agents attempted to take him into custody, he pointed a .357 revolver at them.”

Despite this assertion, the agency hasn’t presented any corroborating evidence. When questioned about photographic or video proof of Mr. Robertson’s alleged action, Ms. Barker refrained from commenting.

Yeah, maybe so, maybe not. The FIB seems to lie about everything these days. I wouldn’t trust them if they told me it’s still Summer. But what the neighbors had to say was pretty interesting as well. What is it with the FIB and these early morning in the dark raids? It’s almost like they are trying to provoke a response to an intruder. Why don’t they walk up to the door at noon, just knock and say “We’d like a word, please”. And this over the top tactical team crap is ridiculous.

His social media also showcased support for former President Donald Trump, displayed tactical equipment, and boasted an expansive firearm collection. Neighbors estimated he owned about 20 guns.

In Texas isn’t that called a neophyte or hobbyist?

During the warrant execution before sunrise, officers employed flash bangs to get Robertson to leave his house. When he refused, alleging innocence, gunshots ensued around 6:15 a.m. local time, as per Jon Michael Ossola, a witnessing neighbor.

Subsequent local accounts state that Robertson was pulled out of his home, where he succumbed to his injuries on the sidewalk, concealed beneath a sheet.

Other neighbors had more to say, so this is kind of out of order from the article.

Another neighbor, Katie Monson, recounted to The Associated Press how agents unsuccessfully tried to breach Mr. Robertson’s door with a battering ram, then used a tactical vehicle. After hearing shots, she saw officers pulling Robertson outside.

A battering ram and a tactical vehicle for a 75 year old disabled man?? Seriously? And about them shooting at Robertson…

The incident escalated when Robertson reportedly aimed a firearm at law enforcement, prompting what witnesses called a “hail of bullets” at his Provo home.

Aimed, not discharged. It’s still dark and he answers the door with a gun in his hand…again, why not noon, knock on the door, and say “We’d like a word”.

Neighbors have said he was a decent guy. Understandably his family is distraught. Family of Trump supporter Craig Robertson shot dead in FBI raid breaks silence

His relatives said Robertson — who they described as a “firearm enthusiast, collector and gunsmith” — loved the US “with all his heart” but had become increasingly disappointed by the Biden administration.

He was understandably frustrated and distraught by the present and on-going erosions to our constitutionally protected freedoms and the rights of free citizens wrought by what he, and many others in this nation, observed to be a corrupt and overreaching government,” the statement said.

As an elderly — and largely homebound — man, there was very little he could do but exercise his First Amendment right to free speech and voice his protest in what has become the public square of our age — the internet and social media.

Did he say things he ought not have said? Obviously.

Sen. Mike Lee is looking into the murder of Mr. Robertson. Mike Lee says elements of Provo FBI raid were ‘highly unusual,’ calls for ‘serious’ investigation

This article lists the things off the top of Sen. Lee’s head that were odd. The question came up at a townhall meeting.

My point is, this murder seems to be part of a bigger picture attack on U.S. citizens by various and sundry arms of the Biden crime regime’s captured agencies.

Before the pre-dawn attack on Mr. Robertson, why was the FIB even there?? Because he posted a threat on a social media platform? Because he objected to the erosion of our liberties in the banana republic so the Biden crime regime decided to prove him wrong by murdering him for using freedom of speech? You know, presumably the FIB could do some basic, oh I don’t know, investigation and find out the man is basically home-bound, disabled and 75 freaking years old??? Maybe talk to some neighbors?? You know, investigate? But why do that when you can use all your tacti-cool toys, right? When I took my concealed carry class 153,000 years ago I remember one of the things taught was if you had to be involved in a self-defense shooting, there needed to be three elements.

I call it the J.A.M. elements,” said Jamison, who also teaches courses on gun laws and safety at Great Guns gun shop in Liberty. J.A.M. roughly translates to jeopardy, ability and means. “First, is the person being placed in jeopardy? Does the person making the threats have the ability to carry out the threat? And third, does he have the means to carry out the threat?” he said.

I would maintain that the elderly home-bound 75 year old caring for his visually disabled son may have lacked some of those elements. I think the FIB case is more like jelly than J.A.M. and that’s what Mr. Robertson was executed for, freedom of speech.

Ayn Rand called it. But then she’d know. She escaped communism.
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Win For Pistol Braces: A Battle, Not The War

The Fifth Circuit just ruled against the feds in the Firearm Policy Coalition case on the new ATF rule on pistol braces as short-barrel rifles.

Federal Appeals Court Finds ATF Pistol Brace Rule Is Likely Unlawful: ‘Impossible For A Regular Citizen’
Smith wrote that the rule makes it “nigh impossible for a regular citizen to determine what constitutes a braced pistol” and whether “a specified brace pistol requires NFA registration.”

No kidding. The Zelman Partisans noted that more than two years ago, when the Notice of Proposed Rule-Making was published.

This proposed rule is a coherently expressed description of an arbitrary, capricious, and incoherent process of classifying firearms.

As no standards were given, a subjective examiner’s guesstimate of “rear surface area” could pass a brace, or put it right on the edge of alleged short-barreled rifle by itself. Will one examiner estimate the “rear surface area” of a cuff-type brace by the physical area of the rear EDGE of the cuff, while another goes by the area of the space ENCLOSED by the cuff?

After the commenting period was over, the actual rule even worse than what was proposed. They tossed their proposed “checklist,” and switched to a list of arbitrary characteristics that went undefined; it was left up to each individual evaluator.

If you scroll down to page 268, you’ll find the actual final rule, and see that they opted for a evaluation system even more “arbitrary, capricious, and incoherent” than the 4999.
[…]
How much surface area does it take to create a rifle? The rule doesn’t say, leaving it up to “”arbitrary, capricious, and incoherent” FTB evaluators. Just think: the more firearms they can declare short-barrel rifles, the more tax money they can collect. No perverse incentive there, eh?

In short, braced pistol owners were left with two options to determine if their pistols had magically morphed into rifles: Send it to the ATF for individual determination, or wait to be arrested for possession of an unregistered short-barrel rifle.

This isn’t a final win. The Fifth Circuit panel only said that the rule is likely to be found to be unlawful. Based on that likelihood, they sent it back to the district court to reconsider an injunction against enforcement of the capricious rule.

I suspect this is going to bounce back and forth a while longer.

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