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Barnett v. Raoul (3:23-cv-00209) (S.D. Ill. 2023) - NSSF Gun/Mag Ban


Upholder

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Nice job Todd, I read it quickly and it hit the points home!  I also read part of Ashley Hlebinsky‘s work and had to stop part way through as my face hurt too much from smiling.  Both of your works alone should be enough to end this dumb law.  
 

The explanations about the commonness of the guns and the features, the randomness of the banned items/features, the inconsistencies in capacity limits, the outright banning of parts with the (intentionally) vague language, and long history of arms with these “unusual and extra ‘deadlierer’ capabilities” of repeating arms or arms with capabilities beyond those of militaries should show that the founding fathers could have conceived of citizens having more capability than the government and had no fear of that (they encouraged it).

 

That said, the entire political spectrum that consistently votes by emotion rather than brains will ignore it all and continue to insist that objects need to be banned  (banning murder isn’t enough) because then they don’t get to control people.

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On 3/24/2023 at 6:08 PM, Upholder said:

The docket 68 brief by Maag has this little tidbit that shows an example of the bad faith of the AG's filing:

 

image.png.4c37eb8e0d027b0e850889c7321b7f63.png

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I'm 99% a lurker around the forum, but are you saying that the state literally quoted a fairy tale in it's brief? I suggest we move to depose the wicked step-mother to demonstrate the absurdity. No purple 

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I like this quote.

 

a free society prefers to punish the few who abuse [their] rights ...
after they break the law than to throttle them and all others beforehand. Se. Promotions Ltd. v.
Conrad, 420 U.S. 546, 559 (1975).

 

Throttling the rights of all is tyranical.

 

 

Eugene

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I thought that the documents were well done.  On a nitpicky point, most federal judges I have talked to over the years do like to see a table of contents and table of authorities in the briefs.  The  table of contents gives them a quick overview of the arguments if the topic headings are well done.  The tables are very helpful for the law clerks also.  

Edited by gunuser17
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In California, the case Rupp v Becerra, the plaintiffs' have moved to exclude a number of state "expert witnesses", including Ryan Busse, who has been presented as an expert witness in this case as well. 

 

The motion itself is dry, apparently the juicy parts are in attachment 1, which is not currently available on courtlistener.com, but are part of this tweet:

 

 

 

 

Edited by Upholder
note that the filing available is not the best part.
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With Todd's expert declaration on the banned items and Ashley Hlebinsky's expert declaration on history, both prepared for the FFL of IL case, and the foundation of knowledge they put down, we should get a good ruling based on their info alone!

 

If you haven't read either of these declarations, you should.

 

We met Ashley at the Gun Rights Policy Conference last fall and then later talked with her about this case and the possibility of using her input.

20220930_201313.jpg

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On 3/25/2023 at 12:09 PM, Upholder said:

In California, the case Rupp v Becerra, the plaintiffs' have moved to exclude a number of state "expert witnesses", including Ryan Busse, who has been presented as an expert witness in this case as well. 

 

The motion itself is dry, apparently the juicy parts are in attachment 1, which is not currently available on courtlistener.com, but are part of this tweet:

...

 

The attachments to exclude Ryan Busse (3 pages) and Lucy Allen (8 pages) are now available on CourtListener. (I'll see about the others.)

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On 3/25/2023 at 9:44 PM, Euler said:

The attachments to exclude Ryan Busse (3 pages) and Lucy Allen (8 pages) are now available on CourtListener. (I'll see about the others.)

 

The other attachments to exclude the state's experts are uploaded. Attachment #2 appears to be the experts' original testimony in each entry.

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From the motion to exclude Busse's testimony in Rupp:

 

Attachment said:

...

Under the standards for admissibility of expert witness testimony set forth in Rule 702 and explained in Daubert and its progeny, Busse's testimony is in admissible. He does not possess the requisite specialized knowledge, he has not reliably applied any principles or methods to the facts of the case, and his opinions are, therefore, not the product of reliable principles and methods nor are they based on sufficient facts or data that are relevant to resolution of this case. Accordingly, this Court should exercise its broad discretion to reject his testimony.

...

The '"admissibility of expert opinion generally turns on preliminary questions of law determined by the trial judge, including inter alia, whether the testimony is relevant and reliable, and whether its probative value is substantially outweighed by risk of unfair prejudice, confusion of issues, or undue consumption of time.'" ... While Bruen's inquiry depends on facts about what laws were in place at the relevant time period, whether there exists a historical canon of analogous laws to the one being challenged is essentially a legal determination for the Court to decide. '"The job of judges is not to resolve historical questions in the abstract; it is to resolve legal questions presented in particular cases or controversies ... Courts are thus entitled to decide a case based on the historical record compiled by the parties.'" ... Regardless, whether a legal or factual question, Busse's expert opinions do not aid the Court with resolution of the relevant issues because his report does not address historical regulations at all.

...

Even if Busse's testimony were relevant at all to Bruen, it should still be excluded because it is misleading. For example, Busse states that '"the .223 which is the most common AR-15 cartridge, fires bullets at more than 3000FPS (feet per second) vs a rimfire cartridge that propels bullets at around 1100FPS.'" ... But Busse leaves out that the law at issue has no effect on .223 cartridges, just certain configurations of rifles. ...

...

It is of course Mr. Busse's prerogative to believe that Heller, McDonald, and Bruen were wrongly decided if he prefers to believe that the Second Amendment only protects a '"militia right'" and not an individual one. But that is not what the Supreme Court has decided. Mr. Busse has not offered any testimony about our nation's historical tradition of firearm regulation, which is all that is relevant to the Bruen analysis. That is enough to disqualify his testimony. But even if he had, his credibility would certainly be in doubt given his open antipathy to the preexisting individual right the Second Amendment protects.

...

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From the motion to exclude Saul Cornell's testimony in Rupp:

 

Attachment said:

...

Additionally, it's well established that expert opinions may not address issues of law.

...

Plaintiffs request that the following portions of Dr. Cornell's testimony be excluded or stricken because they consist of him opining on ultimate legal questions, which is the role of this Court, not any supposed expert ...

...

Dr. Cornell is not an expert in criminology, yet in Section V of his report he opines on issues with mass shootings. ... Nor is he an expert on marketing strategies, but that does not stop him from commenting on marketing practices in paragraph 58. Dr. Cornell also nakedly engages in activism, arguing in paragraph 52 that "Proposals to ban assault weapons are part of a larger national movement to deal with the carnage caused by high capacity, high velocity weapons." Because ... nothing in Section V of his report relates to history, Dr. Cornell's purported expertise, it should be deemed inadmissible/stricken.

...

 

So the history expert (a relevant specialization for the question before the court) testified on everything except history....

 

Edited by Euler
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From the motion to exclude John J. Donohue's testimony in Rupp:

 

Attachment said:

...

Because all of Donohue's report is about interest balancing arguments -- specifically the problem of mass shootings, January 6 (which didn't actually involve any of the banned firearms), and other political concerns -- it is not appropriate testimony under Bruen.

...

His expert report does not say a word about Bruen, except that he was the author of an amicus curiae brief submitted in it. Nor does his opinion say a word about whether there is a historical cannon of firearms laws that are sufficiently analogous to the rifle ban that Plaintiffs challenge here.

...

He is a law professor whose work intersects with economics. Indeed, his opinion is so far off the main issue before the Court that it cannot survive Rule 702 scrutiny.

...

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From the motion to exclude Louis Klarevas's testimony in Rupp:

 

Attachment said:

...

Bruen directs courts to determine only whether a challenged law implicates the Second Amendment's text and, if it does, to find the law unconstitutional if the government cannot prove that there is an enduring tradition in American history of state regulation that is sufficiently analogous to the challenged law at issue.

...

Klarevas explains in his report that "I have been asked by the Office of the Attorney General for the State of California to prepare an expert report and declaration addressing the relationship between assault weapons and mass shootings, including how restrictions on assault weapons impact mass shooting violence." ... Regardless of the veracity of any of those conclusions, none informs any part of the Bruen analysis.

...

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From the motion to exclude Lucy Allen's testimony in Rupp:

 

Attachment said:

...

Allen describes her most recent report in this matter as "report[ing] the results of my analyses with respect to the following issues: ... (a) the number of rounds of ammunition fired by individuals using a gun in self-defense; and (b) the outcomes when assault weapons (as defined under California law) and large-capacity magazines (magazines capable of holding more than ten rounds) are used in public mass shootings, including the associated number of casualties."

...

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On 3/24/2023 at 11:25 AM, Tvandermyde said:

here are some of the docs

 

enjoy  

 

 

 

This is what I was waiting for - the interpretation of what the law actually says and what it actually bans.  Pretty much all shotguns, the mini shell argument, the readily convertible magazine tube extensions, etc.  I don't understand why all of those argument were not made in the actual filing of the case and were placed in an expert opinion?  Not stating if that is good or bad, I assume it's good but would like to understand why it's good.

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On 3/25/2023 at 11:38 PM, gtr2009 said:

 

This is what I was waiting for - the interpretation of what the law actually says and what it actually bans.  Pretty much all shotguns, the mini shell argument, the readily convertible magazine tube extensions, etc.  I don't understand why all of those argument were not made in the actual filing of the case and were placed in an expert opinion?  Not stating if that is good or bad, I assume it's good but would like to understand why it's good.

I'm working with FFL-IL and ASC.we went in with a plan of three suits, gun & parts, Mags, and then personal stuff registration, transport out of staters and such. thought it might be us and SAF in suits not thinking about a local suit and NSSF. Valinda can tell you my thinking on this and we laid this out to a few people so as to explain the why..

 

We thought the arguments the state would make on mags, they are not arms and such could require a lot of briefing and did not want to loose pages and short sheet the arguments. that is why we didn't want to cram 10 pounds of stuff in a 5 pound bag. 

 

I have had people offer up ideas and ask questions about what this means or what that means and as I saw the drafting of the bill was adamant not to go page and line number to point out everything. my belief is let the  write the most God awful thing they think they can pass and then they make it so broad there is not choice but to strike it down. 

 

And during all this I just giggled about things they were saying and writing. I have a tendency to look at all these things a bit differently. and having been a gun guy for over 42 years, know a little bit about them. So I see things differently. and words mean things. All my mag stuff was going to be in our lawsuit about mags, but since the issue was being argued by the others and we knew no one else was going to argue it, we decided to use it as part of my declaration, along with the parts to show what the state wasn't telling the judge and how broad this thing is. 

 

Valinda and I spoke often. We didn;t want a lot of stuff spilling the secrets of the bill here and I wasn't talking about it on my youtube channel -- but I will start today. 

 

Now this does run the risk of them trying a trailer bill, but we have no choice at this point in time as if we are going to build the record for the trial court, and win an injunction, we have to explain it all. and yes it will educate the other side, but if they go to amend the law, its an admission of how broad and screwed up the law they passed is.

 

they may get smarter, but it is time to put all the cards on the table. We are either gonna win this or not and its a winner take all. 

 

I hope you all can see the extra effort that is going into our suit and the way we are thinking about it. And I can tell you that the leadership of FFL and ASC & GOA have direct input on the arguments being made and issues we tackle and a strategy to do so. We are very hands on with this and not content to simply let the lawyers deal with it. 

 

Our legal bills are racking up and we can use all the donations we can get. I will also say that I have explained to Valinda our approach to layi g out a in depth reason for some of the things we are arguing and the way we are attacking issues to set up future lawsuits over other issues. And I know we are the only ones looking at it this way.

 

Donation link:   SADEC

 

be happy to answer any questions and don't forget to stop by my youtube channel Freedom's Steel

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On 3/26/2023 at 9:27 AM, Tvandermyde said:

I'm working with FFL-IL and ASC.we went in with a plan of three suits, gun & parts, Mags, and then personal stuff registration, transport out of staters and such. thought it might be us and SAF in suits not thinking about a local suit and NSSF. Valinda can tell you my thinking on this and we laid this out to a few people so as to explain the why..

....

 

Our legal bills are racking up and we can use all the donations we can get. I will also say that I have explained to Valinda our approach to layi g out a in depth reason for some of the things we are arguing and the way we are attacking issues to set up future lawsuits over other issues. And I know we are the only ones looking at it this way.

 

Donation link:   SADEC

 

be happy to answer any questions and don't forget to stop by my youtube channel Freedom's Steel

Ah that makes sense - It would be nice to methodically file suits and have enough paper to argue everything in due course but it matters when things go on record, and it's not just the timeline of your case but the other cases, too.  I agree, it's obvious others aren't seeing all ramifications of the language in the bill.  Glad your team does and that you are on the case!  It's heartwarming to see the state hoisted on their own "readily convertible" and "parts or combination of parts" petard for once.

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On 3/26/2023 at 10:29 PM, JTHunter said:

...

I suppose that means the Ruger semi-auto pistols (the ones with the round receivers) are included in this insanity?

 

The 10/22 is banned because it's a semi-auto rifle. Previously proposed bans had an exception for 22LR. The current, enacted ban does not

 

Pistols are a separate story with different criteria.

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