Supreme Court
The massive bronze doors of the Supreme Court. (AP Photo/J. Scott Applewhite)
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Resistance. We use this term in different senses when discussing lower court decisions. One, courts might resist the fact of the Bruen decision itself or they might read the decision in a manner that resists adopting the logical conclusions of the decision’s methodology.

Resistance can also manifest itself in a desultory or bad faith application of Bruen. For example, despite not citing a single piece of evidence or engaging in any meaningful analysis, a Texas district court refused to dismiss an indictment brought under 18 U.S.C. § 922(g)(3), which prohibits gun possession by a user of or one who is addicted to illegal drugs. The judge simply wrote, “[t]his Court, like those before it, finds that the government has satisfied its burden of demonstrating that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

Of a similar piece is the “analysis” of an Oklahoma district court which refused to dismiss the indictment of a defendant convicted of being a domestic violence misdemeanant in possession of a firearm. Despite admitting that the government’s arguments “do not address a history of firearm possession by domestic violence offenders” and “the paucity of evidence that American traditions reached within the home to interfere with domestic relationships, particularly the marital relationship,” the court nevertheless let the indictment stand.

The judge reasoned that the “government’s reliance on general historical tradition is sufficient to satisfy its burden to justify the firearm regulation § 922(g)(9).” And that “general historical tradition”? The disarmament of felons, whose historical pedigree, as noted above, is far from well-established.

Despite Bruen’s clear direction that it is the government’s burden to establish that the regulation falls within text-history-tradition, an Oregon district court used the elements for granting a preliminary injunction to flip the standard of review and deny an injunction against a raft of state gun regulations on the ground the plaintiffs had failed to establish a likelihood of success on the merits.

An Oregon initiative imposed new regulations that required a permit to purchase firearms and banned the purchase and use of magazines capable of accepting more than ten rounds. Plaintiffs sought a temporary restraining order and a preliminary injunction of the new regulations. The judge conceded that “[t]he Second Amendment covers . . . items ‘necessary to use’ . . . firearms [and] [l]ike bullets, magazines are often necessary to render certain firearms operable.” But she held that the plaintiffs had not shown “that magazines specifically capable of accepting more than ten rounds of ammunition are necessary to the use of firearms for self-defense.” Nor had they shown that “magazines capable of accepting more than ten rounds of ammunition are firearms ‘in common use today for self-defense’ and thereby covered by the plain text of the Second Amendment.”

These statements are especially puzzling because most pistols sold in the U.S. are equipped with magazines holding between ten and seventeen rounds. The judge acknowledged courts in other circuits had held otherwise, but noted those were not binding authority. The court held that because such firearms were more akin to military than civilian weapons, their regulation was in keeping with “a historical tradition of regulating private military organizations.”

The Ninth Circuit had been stubbornly resistant to the implementation of Heller. Anytime a three-judge panel struck down a regulation on Second Amendment grounds, the case would be reheard en banc and reversed. No surprise then that its judges’ reaction to Bruen would be characterized by foot-dragging, if not outright defiance.

In challenges to the California assault weapons ban and Hawaii’s “may issue” concealed carry law that had been under litigation for over a decade, the Ninth Circuit remanded both to the district courts instead of applying the Bruen standard itself. In both cases, a dissenting judge criticized the decision.

In the Hawaii case, Judge O’Scannlain—who was the subject of the en banc reversal in the pre-Bruen days –argued the actions of the court were particularly egregious because the Supreme Court had vacated and remanded its decision upholding the state law for reconsideration in light of Bruen. After explaining why Hawaii’s may issue regime was unconstitutional after Bruen, O’Scannlain concluded,

We are bound, now, by Bruen, so there is no good reason why we could not issue a narrow, unanimous opinion in this case. The traditional justifications for remand are absent here. The issue before us is purely legal, and not one that requires further factual development. The majority does not explain, nor can it justify, its decision to remand this case to the district court without any guidance. Yet in its terse order and unwritten opinion, the majority seems to reveal a hidden rule in our Circuit: Second Amendment claims are not to be taken seriously. I would prefer to apply the binding decisions of the Supreme Court to the case at hand.

In addition to being unjustified, remand “waste[s] judicial resources by sending the parties back to square one at the district court” and force the plaintiffs who “have waited a decade to resolve this litigation … to wait even longer.”

The dissenting judge in the assault weapons challenge likewise complained that “[w]ith a clear legal standard now in hand, we should have ordered supplemental briefing to further this case along” by ascertaining “the parties’ position on whether our threejudge panel could have resolved this case based on Bruen.” Like Judge O’Scannlain, Judge Bumatay complained that remand “may just prolong the inevitable as we will eventually have to decide this case—adding unnecessary delays and expenses for the parties.”

— Brannon P. Denning and Glenn H. Reynolds in Retconning Heller: Five Takes on the New York Rifle & Pistol Association, Inc. v. Bruen


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  1. NY will see where we stand on being able to carry outside the home on some streets™ on Monday. I expect games will be played and further work will be needed.

    • A. Gottlieb won’t say it like I do…Gun Control was a key player in the success of the kkk and the german nazi party, neither evil gave up easy.

      By the same token do not expect Gun Control democRat joe and his ilk to give up easy. The democRat Party is carrying on with what History Confirms is an agenda rooted in racism and genocide. Obviously Gun Control is a contagious Mental Illness that jumps form one azzhat to another and there is a reason for that…

      The source for knee jerk fools jumping in bed with Gun Control are the Gun Owners who could not stand and define Gun Control by its History of Rot if their lives depended on it. Too many Gun Talkers know how to turn the key in the ignition while they are clueless about what’s under the hood…so to speak. That’s a big problem and it needs to change A. Gottlieb et al.

      • Never would expect it didn’t even expect to get Bruin but here we are with a path for the offensive for once so roll with what and who we got.

    • The intent of all laws and court rulings is to give effect to the lawful exercise of a right.
      Any government action that inhibits such, is unconstitutional.

  2. Earlier this week the 2nd circuit switched the judges on the panel hearing the 5 NY cases on Monday. My gut tells me the hearing has been rigged.

    • That would be typical and if used as expected may draw some unwanted attention. I doubt they will uphold the status quo but their appeal if so

  3. All you need do to understand how pathetic so many modern courts have become is to look at the state of modern universities. The bigger the name, the dumber the administration, consequently you are far better off hiring a Noname U graduate than some Princeton or Harvard twit who will have to run off to their safe space support group every time something challenges their vision of unicorns and roses.

    • This is all nothing more than tyranny. Plain. Simple. True. Expose it for what it is.

      This simple statement by Jefferson embodies pretty much EVERYTHING you need to know re. rights and the law:

      “Liberty then I would say that, in the whole plenitude of it’s extent, it is unobstructed action according to our will: but rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of an individual.”

  4. What does this tell you? The commies are going to try to get your guns no matter what. The courts are bullshit, the fellatio artists just pass what they want. Come and take it, come and take it, come and take it.

  5. I have done some research. I haven’t looked at all of the judges cited here, but I am willing to bet that each of these judges, or most of them were appointed by Obama, the traitor. For example, the FL judge who is blocking the education law signed by DeSantis to stop the queers from teaching in schools, was appointed by Obama, the traitor. The worst aspect is that these treasonous judges are young enough that when the higher level patriot judges retire they are in position to be promoted. The agenda is working exactly as intended. The Republic is lost.

      • Actually, for each judge that has been named that I researched, all men. I have not encountered any Obama, the traitor, appointed women judges. Other that the two worthless broads he installed on SCOTUS, they have all been “men”.

      • The broad cited in Oregon case. I’m pretty sure that if I every ended up in court NOT getting a chick judge would be a high priority.

    • MICHAEL,

      Just to be clear, the law DOES NOT “block the queers from teaching” (nor should it). What it blocks is ANYONE from teaching such nonsense as CRT, ‘queer theory’, transgenderism, etc. to YOUNG (under 9) kids. Parents SHOULD control the school curriculum of their young children; if a parent wants their kid steeped in ‘queer theory’ and CRT, they can enroll their little red diaper baby in the local Antifa school. What they DON’T get to do is use my tax money to indoctrinate my children. Sorry; not sorry.

      • Nope. Law says nothing about gay or lesbian TEACHERS; it merely prohibits teaching certain POINTS OF VIEW (not even subjects – race and slavery history is MANDATED to be taught in Florida, just not “queer theory” or “critical race theory” or “gender theory” being taught to effin’ NINE YEAR OLDS. And even then, parents can teach any or all of those things to THEIR children, or enroll them in schools that teach those things, with their own dime. All these laws do is prohibit using taxpayer money to teach radical theories like CRT or “gender identity theory” (which are objectively false-to-fact) on the taxpayer dime to YOUNG children.

        If you have a problem with that, I’m interested in your specific objection. If your objection is that similar laws could also prohibit teaching a theory that the Declaration of Independence was the pinnacle of human political philosophy, my answer would be, “Yeah, so what? I believe that, but I don’t believe I can compel YOUR tax dollars being spent to teach MY beliefs to young kids.”

        Not sure if there is a subtle point in your comment that I’m missing, but all I was trying to say is that the law does NOT do what the media is claiming it does. If you have a question, read the law. It DOES NOT say anything of the kind.

        • All I was doing was adding that the restriction only prohibits teaching that shit in grades K through 5… Don’t know how you got all that other shit out of K through 5 (one letter, one word and a number) the rest are YOUR words… I don’t give a flying fuk what someone does in their personal life but their private lives/beliefs have NO business in our classrooms… I DID read law when they started all that “don’t say gay” bullshit… Damn dude get over yourself…

    • Someone can be queer and still be a good teacher. Many are well in the closet(as far as work goes) and do not push it. Many male teachers at the Jr and Sr high level are that way and have been for years, they need to work also. They go to college and get a history and/or English degree graduate with all the women who want to be teachers, so they do that. They don’t have a family to support and they can be a great teacher.
      Teaching students how to be gay is a whole different thing.

        • EXACTLY!!!! What you just said.

          I don’t want MY philosophy being part of a mandated curriculum, either. Give kids the facts, and they can make up their minds about theory and general principles later. And slavery, chattel slavery, as a part of history in the US, is a fact. Historic racial discrimination in this country is a fact. That women were, at a certain point in our history, not allowed to vote is a fact. That two plus two equals four is a fact. That photosynthesis is a process that plants use to convert water and sunlight to new leaves and oxygen is a fact. That the Earth revolves around the Sun, and the Moon revolves around the Earth, is a fact.

          Teach facts; kids will have plenty of time to learn idiot theories when they get older. CRT or “gender identity” are someone’s weird ass theories. Maybe for older children, already at least basically aware of facts, to be taught that such theories EXIST is fine, but indoctrinating them into belief in and support of those, or any other, theories or philosophies is not the job of taxpayer-supported education.

        • But but but you don’t understand! They HAVE to groom the kids to get them ready for their own perversions. God curses sodomites.

  6. If you were a judge, and you fervently believed that a law, or provision of the US Constitution was wrong and dangerous, would you do everything you could to not enforce that law or provision? To undermine it? If you fervently believed you were correct?

    I would be tempted, but, in the end, I like to think I would not pervert the intentions that make our US Constitution one of the greatest foundations of government ever written.

    • For some of these judges the leftarded agenda is their religion.

      It pays them well and moves them up the ladder too.

      This is one of the reasons the left works so hard to destroy faith.

      • Also why they freak out and get weirdly defensive when they are called out for not arguing/negotiating/acting in good faith.

  7. I said this was going to happen. Courts and politicians will just ignore Bruen. A Democrat DOJ is not going to enforce it. If they can ignore Bruen they’ll ignore other rulings.

    The rule of law is fraying. Our country is not far behind.

    • Hoping you are wrong but preparing for your being right. The next few years will show where America is still free.

  8. Hmmm…in ILL annoy fat boy governor Prickster gave a million bucks each to 2 gals to pack the Illinois Supreme Court. Eventually every pro-2A decision will go back to SCOTUS. In the meantime every ILL patriot should keep that in mind as you plan your future as well as everyone on the “wrong” side. You’re too stupid & perverted to know you’re in dire peril🙄

  9. “The judge acknowledged courts in other circuits had held otherwise, but noted those were not binding authority. The court held that because such firearms were more akin to military than civilian weapons, their regulation was in keeping with “a historical tradition of regulating private military organizations.”

    Stupid Bitch…

      • Miller held that a sawed-off shotgun was not appropriate for use as a military/militia weapon, and therefore was subject to regulation. If applied now, that would mean that any nonmilitary arm can be regulated. Which of course makes no sense since a) it is wrong, and b) that would mean the NFA could not constitutionally regulate automatic rifles.

        • Miller was decided in favor of the government when lawyers and Mr Miller failed to show for the hearing.

        • Would that not also mean that weapons used by the military be protected for being the default weapons for the militia and invalidate much of the NFA?

        • Miller had been murdered before the BS trial.

          “The district court held that the section of the Act that made it unlawful to transport an unregistered firearm in interstate commerce was unconstitutional as violative of the Second Amendment. It accordingly sustained the demurrer and quashed the indictment. The government took a direct appeal to the Supreme Court.

          In reality, the district court judge was in favor of the gun control law and ruled the law unconstitutional because he knew that Miller, who was a known bank robber and had just testified against the rest of his gang in court, would have to go into hiding as soon as he was released. He knew that Miller would not pay a lawyer to argue the case at the Supreme Court and would simply disappear. Therefore, the government’s appeal to the Supreme Court would surely be a victory because Miller and his attorney would not even be present at the argument.” (OK it’s Wikipedia but a good synopsis)

        • Miller was a very pro-2A ruling, but most read the anti summary and ignored the ruling itself. Miller addressed arms that were useful in mitary service and said they were especially protected.
          The Justices did not have “judicial notice” (direct knowledge) that SBSs were part of common infantry issuance, and no evidence was given since there was no representation for Miller, so they said regulation was OK. They’re never addressed the other NFA items directly. Since we know that machine guns, SBRs, SBSs, destructive devices, and suppressors are all used by the modern infantry, they all conform to the protection given by Miller, but no court has ruled as such. We’ve since added Heller, McDonald, and Bruen as further clarification/extension of our rights. As legislatures and lower courts f$ck around with ignoring established decisions, they will find out as 2A is expanded even more and explicitly. Their new more draconian laws will eliminate even their milder existing laws. NY could have had a typical shall issue scheme with reasonable fees and qualification, but they’re going to get nothing due to their toddler tantrum. Get ready for 18 year olds to be able to buy anything, NFA to disappear, mag and gun bans to go bye-bye, etc. Maybe even a definition of sensitive places that requires everyone being searched, armed security present, and no exclusion for ordinary government employees.

  10. Thus the difference between Kagan, and Brown when compared to Justice Thomas. One of the three has integrity, and one of the three is an extreme left wing activist who has zero interest or intent on upholding our Constitution.

  11. delaying tactics for a few different reasons:

    1. to keep the existing unconstitutional law in place longer to exert control longer.

    2. to keep throwing stuff at the wall hoping to get something to stick they can exploit further.

    3. hoping Biden can put in place a rule by fiat regime (e.g. executive order) to make tyranny a common place thing because Biden can order federal law enforcement and military to do as he says and these courts hope that can be used to enforce their unconstitutional decisions thus ignoring that SCOTUS exists.

    4. holding out for democrats regaining control of both houses of congress and a Democrat president in place that will stack the SCOTUS with left wing liberal justices.

  12. “Lower Courts Are Still Coming Up With ‘Creative’ Ways to Prolong the Inevitable”

    Because these courts believe the “inevitable” means Bruen overturned by the loss of Thomas while the Marxists own the Senate?

    • Sam,

      TBH, I am VERY concerned about Thomas’ health, at least for the next 18 months. And knowing our Leftist friends, if I were a prudent insurance underwriter, I would NOT want to issue a policy of life insurance to Thomas, Kavanaugh, Alito . . . pretty much any justice except the three idiot female justices.

      • “I would NOT want to issue a policy of life insurance to Thomas, Kavanaugh, Alito . . .”

        None of us are guaranteed the next breath, but, yeah, Thomas is a daily concern.

      • VERY concerned about Thomas’ health, at least for the next 18 months.

        As long as stays away from remote “hunting lodges” he should be okay…

  13. Domestic Violence is not a felony.
    Heres the deal the laws gonna do whatever it wants to do and the only way to win is take it to court and spend $250,000 on a $250 charge.
    The pistol brace, bumpstocks and even the Mossberg Shockwave are going to get a lot of innocent people thrown in jail. You can inform them of your rights all you want while your handcuffed on your way to prison.
    An officer of the law doesn’t care about your rights. Your rights is not part of his job. ( His job) females should not be beat cops same as females should not be in warfare combat. Well I guess the gals could fight for their country, like an Afghanistan or Vietnamese woman. But that’s fighting for their country, to put on a uniform and go fight for the freedom of Katookie, nope.
    The Bruen decision, LMFAO.
    All that’s did was prove how anemic the Supreme Court is when it comes to defending the Freedom of Americas citizens. Now if the Supreme Court would rule against Americas citizens law enforcement would be more then happy to shoot mothers holding babies or burn down a building full of children.

    • How is “domestic violence” different or worse than regular violence? The demtards don’t believe in normal marriage anyhow so why would they care about “domestic violence” within it?

      In shackups or degenerate couplings, which the dems DO believe in, there is a significant amount of choosing to be there/to participate. So write the real law the want.

  14. Unfortunately, we live in a banana republic where laws aren’t enforced objectively.

    We citizens are at the mercy of tyrants in black robes who use the color of authority to deny us our rights.

    The US today in no way resembles the idea the Founders had for a Constitutional republic.

  15. It will be interesting to see what happens in the NY cases on Monday. Technically, all that is presented for determination is whether the various trial courts, in applying Bruen to the laws before them, “abused their discretion” in issuing preliminary injunctions preventing the laws from going into effect prior to the final determination of the case. Not one of the cases has reached the stage where a permanent injunction can be entered (and inevitably appealed). One could reasonably argue that NY’s appeal of the preliminary injunctions is a delaying tactic and no more. In any event, the standard of review of “abuse of discretion” is, if properly applied, a very difficult standard to meet, as it basically means that no reasonable judge could have reached the conclusions these judges did. There has been no final determination on the merits. That said, I fully expect the panel decision will reach the merits, and if the Second acts true to form (notwithstanding its slap down in Bruen), it will find some excuse for concluding that the trial courts should not have enjoined the laws pending final determination, for some lame reason such as Plaintiffs have failed to demonstrate that they will probably prevail on the merits, and that their second amendment rights will not be seriously imperiled pending a full trial. Which is bull crap, but what it is famous for.

  16. Just an update, after the remand to the trial court, the Young v. Hawaii case was apparently settled with Hawaii granting Mr. Young a CCW.

    • So that means someone else has to start it all over again, right? Moot case, no decision, status quo maintained, drag it out another decade. Sigh…

  17. Perhaps it would have been better for the Founders to have written “Shall Not Be F**king Infringed, period.”

    • “Shouldn’t this behavior be grounds for impeachment of the judges that are behaving this way?”

      You have to understand that “impeachment” is a political act, not a criminal trial.

      – Where is the target judge located?
      – What are the politics of that location?
      – Who will bring the “charge” of impeachment?
      – Who will vote to “convict” an impeached judge?
      – Who will nominate a replacement?
      – Who will confirm a replacement judge?


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