Comm2A, SAF, GOAL and FPC file against Baker admin on shop closures

The state has now asked the court (yesterday) if they can file a supplemental affidavit from a DCJIS employee: https://www.courtlistener.com/recap/gov.uscourts.mad.220544/gov.uscourts.mad.220544.72.0.pdf

The affidavit would provide numbers on the number of private sales conducted since the lockdown (implying the individual plaintiffs could just buy guns through private sales), as well as the number of sales conducted by the gun dealer plaintiffs since the lockdown began (implying that the governor's order has not effectuated an actual ban on their sales).

The judge should deny this request, because if the state wanted to supply this testimony, they could have done so in their initial opposition. They couch it as a rebuttal to new information presented in the reply brief filed by Comm2a, but it's not.

That said, the judge may allow it, because refusing to do so opens up an avenue for the defendants to claim error on appeal, and because it doesn't really change the facts of the case much.

The state has already stipulated that the order effectuates a ban on sales when they allowed the police chief defendants to be dismissed on the basis that there is no question of interpretation to be had. If I were Comm2a, I would argue that the state is estopped from making the insinuation that the stores are actually allowed to operate. Whether or not the stores have violated the ban is immaterial to this action.

Also, the fact that private sales have taken place between others doesn't change the underlying dynamics that the individual plaintiffs may have been unwilling to seek out private sales from strangers during a pandemic. The Cedrone plaintiffs made some foolishly worded claims on this subject that will be rebuffed, but the Comm2a filings were sufficiently carefully worded that this should not materially affect them.
 
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Just want to say I appreciate your (and the Comm2A guys) updates. It's very helpful for those of us who aren't very good at reading/interpreting legal speak.

Boston4567 said:
The state has now asked the court (yesterday) if they can to file a supplemental affidavit from a DCJIS employee: https://www.courtlistener.com/recap/gov.uscourts.mad.220544/gov.uscourts.mad.220544.72.0.pdf

The affidavit would provide numbers on the number of private sales conducted since the lockdown (implying the individual plaintiffs could just buy guns through private sales), as well as the number of sales conducted by the gun dealer plaintiffs since the lockdown began (implying that the governor's order has not effectuated an actual ban on their sales).

The judge should deny this request, because if the state wanted to supply this testimony, they could have done so in their initial opposition. They couch it as a rebuttal to new information presented in the reply brief filed by Comm2a, but it's not.

That said, the judge may allow it, because refusing to do so opens up an avenue for the defendants to claim error on appeal, and because it doesn't really change the facts of the case much.

The state has already stipulated that the order effectuates a ban on sales when they allowed the police chief defendants to be dismissed on the basis that there is no question of interpretation to be had. If I were Comm2a, I would argue that the state is estopped from making the insinuation that the stores are actually allowed to operate. Whether or not the stores have violated the ban is immaterial to this action.

Also, the fact that private sales have taken place between others doesn't change the underlying dynamics that the individual plaintiffs may have been unwilling to seek out private sales from strangers during a pandemic. The Cedrone plaintiffs made some foolishly worded claims on this subject that will be rebuffed, but the Comm2a filings were sufficiently carefully worded that this should not materially affect them.
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The argument “plaintiffs registered X number of sales” is ...something. If the order is really being violated, you have police for that and you’ve already shown you aren’t hesitant to enlist local PDs for enforcement.

Basically, they’re pointing out that people are (my guess) paying for guns that they can’t pick up yet. Ex: MFS’ website it says you can order firearms, but can’t pick up until 5/19 (formerly 5/5). Items will sometimes go from showing in stock to showing out of stock. This includes the 509 midsize that is noticeably absent from my hearth/home. I’m not willing to shell out and be stuck when the Governor can just keep punting this as long as he wants. Others clearly are, but they don’t have a new gun in-hand to show for it yet.

ETA: +1 on thanks for the translations into laymen speak.
 
csobrien said:
The argument “plaintiffs registered X number of sales” is ...something. If the order is really being violated, you have police for that and you’ve already shown you aren’t hesitant to enlist local PDs for enforcement.

Basically, they’re pointing out that people are (my guess) paying for guns that they can’t pick up yet. Ex: MFS’ website it says you can order firearms, but can’t pick up until 5/19 (formerly 5/5). Items will sometimes go from showing in stock to showing out of stock. This includes the 509 midsize that is noticeably absent from my hearth/home. I’m not willing to shell out and be stuck when the Governor can just keep punting this as long as he wants. Others clearly are, but they don’t have a new gun in-hand to show for it yet.

ETA: +1 on thanks for the translations into laymen speak.
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I expect that guess is wrong. Your friendly LGS isn't running a MIRCS check when you place an order online. That happens when you're in the store in front of them. The data that DCJIS has is a result of eFA10 transfers and MIRCS checks.
 
Mesatchornug said:
I expect that guess is wrong. Your friendly LGS isn't running a MIRCS check when you place an order online. That happens when you're in the store in front of them. The data that DCJIS has is a result of eFA10 transfers and MIRCS checks.
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I believe this is correct. No matter what, these facts remain:
  1. The state had access to these numbers when they filed their opposition papers. They could have provided these facts then, and it would have been relevant evidence to present in opposition to the original complaint. In other words, this is not new evidence or evidence required to rebut a new argument made in Comm2a's reply.
  2. There are lots of ways to pick apart these numbers. For example, if they're from before the order was revised on March 31st, there's an argument to be made that gun shops were on the original essential businesses list. If they're after, but before the police actually ordered them closed (in the case of Shooting Supply), they're irrelevant. If they're after the police ordered them closed, they're in violation of the order, and could be prosecuted. No matter what, they don't affect the gun shops' right to relief.
  3. Because of #1 and #2, it's prejudicial to allow this new evidence literally the night before the hearing, without time for Comm2a to review and rebut it.
 
Boston4567 said:
I believe this is correct. No matter what, these facts remain:
  1. The state had access to these numbers when they filed their opposition papers. They could have provided these facts then, and it would have been relevant evidence to present in opposition to the original complaint. In other words, this is not new evidence or evidence required to rebut a new argument made in Comm2a's reply.
  2. There are lots of ways to pick apart these numbers. For example, if they're from before the order was revised on March 31st, there's an argument to be made that gun shops were on the original essential businesses list. If they're after, but before the police actually ordered them closed (in the case of Shooting Supply), they're irrelevant. If they're after the police ordered them closed, they're in violation of the order, and could be prosecuted. No matter what, they don't affect the gun shops' right to relief.
  3. Because of #1 and #2, it's prejudicial to allow this new evidence literally the night before the hearing, without time for Comm2a to review and rebut it.
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Delay tactic?
 
headednorth said:
Targetsports cancelled their monthly sales as well. Im the first to reach for the tinfoil but I think everyones just overwhelmed and it doesnt really make any sense for things to go on sale with demand the way it is.
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Hannaford's is offering me $11 off of $80 worth of meat purchases this week. LOL. Some coupons and sales are just meaningless.



As far as "mistake" I thought they made a mistake the second I heard they were allowing gun shops and ranges to be open. No question. "What??? Mass leaving that open?? ? Gotta be a mistake. Copy/paste error." Hours later - error corrected.

It's not some big conspiracy. They just C/P'd then got called on it and went "Oh S-word. We F-worded up."



And the longer Baker keeps this SAH order on, the longer we have to fight this without it being declared moot. We won't get moot muted again!
 
I'm going to live blog this here... I will be editing with updates as the hearing progresses.

10:21am: So far the judge has been almost exclusively focused on how much of a mess the governor's order is, and how the Essential Services list changed repeatedly. He is not happy he wasn't provided with the full list along with all changes from the start, and he still doesn't feel like he has the full record. He says he's going to be digging into this further later in the hearing and asking exactly what the governor was doing.
10:25am: The judge mentioned the changing jurisprudence of 2A, and the fact that SCOTUS hasn't taken up any pending 2A petitions as of this morning. He reiterated that he's governed by the First Circus's garbage interpretation of 2A for now (ok, maybe I'm editorializing a bit here ;))
10:35am: He speaks slowly and carefully. He explained that there are two compelling interests on each side and this is going to come down to interest-balancing.
10:40am: He's very interested in the governor's justification for the order. Asking if the governor has made any justification for treating gun shops and shooting ranges differently, whether it's in the record or not. We know the answer: he made no attempt to justify it. The state AG says there's no specific justification, but there are general statements about the Essential Businesses list. Judge is not impressed. Looking for an explanation of the differential treatment.
10:46am: Woodlock keeps honing in on looking for an explanation for why the governor did what he did. He says if the governor didn't provide an explanation of the justification, he will have to assume there was none. The state says the state of MA is unique because we allow access to private sales through MIRCS. Judge not impressed, says that's a post-hoc justification.
10:50am: State continues to say they don't think it matters that the governor didn't justify the differential treatment of gun shops/ranges. Judge: "There are constitutional rights... they are not second-class rights." State: Does not burden core right, or at least does not heavily burden core right, but there is no contemporaneous justification
10:51am: The judge notes he did not appreciate the ex-parte motion from Cedrone, "of course" he wouldn't grant it, but he scheduled a hearing and the time has come for the state to explain its decisions.
10:54am: Judge is asking about ammo... brings up Walmart affidavit. "Is that all you have?"
10:55am: "A laudable effort by the investigator to call some people up for some hearsay" [rofl]
11:00am: State is claiming .22 rimfire availability at Walmart saves them. Judge asks if they rest their case on that? State: plaintiffs can cross state borders for ammo, tries to bring up broader legal issues. Judge keeps narrowing in on 22 rimfire availability at Walmart. State brings up 3rd and 4th-gen Glocks. Judge is confused.
11:01am: Judge is not happy at state's attempt to pull the wool over his eyes about Walmart and handgun ammo.
11:05am: Judge's feed was breaking up. Clerk says he's having bandwidth issues. Judge says he doesn't take that as an insult. :cool:
11:08am: State says transaction records don't affect whether individual plaintiffs are actually being harmed, implying the records show they could actually buy guns from these shops. Judge doesn't like the implication: "we have uncontroverted affidavits... you have investigators..."
11:09am: [I'm going to have to drop off the call at 11:30. Recording is against court orders, so I may not get to hear the judge grill the plaintiffs.]
11:13am: Judge: Based on the record, I would infer that the individual plaintiff's 2A rights are being burdened, based on inability to acquire firearms and inability to train. Have not yet reached a conclusion on balancing.
11:15am: Judge: Seems to be moving beyond ammunition and into firearms... "The plaintiffs don't want to buy from private sellers, they want to go through licensed commercial sellers... Am I supposed to say they have adequate opportunities" to buy based on private sales?
11:17am: "Is this it? Is this good enough to go on private sales"... references the single affidavit. State tries to claim that they don't know any individual employees of the stores, implying not wanting to deal with individuals in private sales is inconsistent with wanting to deal with licensed dealers. Judge: "Isn't that an issue for them?"
11:20am: State tries to bring up that it's time-bound. Judge: "We'll get to that... you want to give me a preview of your argument, I'll give you a preview of what I'm dealing with..." burden on 2A, no justification, was time-bound when it was entered, time-bound when it was extended, time-bound when it was extended again...
11:23am: Moving on to ranges. State: There are online safety courses, and if they have land they can shoot on it. Judge: "if they have land of their own, that constitutes a shooting range?"
11:25am: Judge mentioned that there's nothing in the record about online safety courses
11:28am: Judge: "If you're shooting blanks, you don't have Second Amendment Rights. Plain as that." Asks if this holds up under strict scrutiny.
 
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Boston4567 said:
I'm going to live blog this here... I will be editing with updates as the hearing progresses.

10:21am: So far the judge has been almost exclusively focused on how much of a mess the governor's order is, and how the Essential Services list changed repeatedly. He is not happy he wasn't provided with the full list along with all changes from the start, and he still doesn't feel like he has the full record. He says he's going to be digging into this further later in the hearing and asking exactly what the governor was doing.
Click to expand...

Is it too late to get a link to this feed?
 
Mesatchornug said:
I expect that guess is wrong. Your friendly LGS isn't running a MIRCS check when you place an order online. That happens when you're in the store in front of them. The data that DCJIS has is a result of eFA10 transfers and MIRCS checks.
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Thanks for the correction. Makes perfect sense. I learn a lot on here.

I still stand by what I said about this being a weak argument by the Commonwealth.

Boston4567 said:
I'm going to live blog this here... I will be editing with updates as the hearing progresses.
Click to expand...

Awesome. Following
 
Boston4567 said:
The state says the state of MA is unique because we allow access to private sales through MIRCS. Judge not impressed, says that's a post-hoc justification.
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[emphasis added]
...whereas [almost] all other states recognize private sales as being unencumbered by government intrusion. To hell with post-hoc justification, that should weigh on the actual constraints of the 2A within the MA system. But I digress

Boston4567 said:
State: Does not burden core right, or at least does not heavily burden core right, but there is no contemporaneous justification
Click to expand...
[again, emphasis added]
Especially when they follow with that argument. WT Actual F?! So it's ok if we burden the core right, as long as it's not "heavily" burdened? What does that even mean?

Aside: if the judge actually said "they are not second-class rights" I'm over here applauding...now I need to get back to work and stop following this thread for the moment.

Boston4567 said:
11:23am: Moving on to ranges. State: There are online safety courses, and if they have land they can shoot on it. Judge: "if they have land of their own, that constitutes a shooting range?"
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Because your ability to practice your rights should hinge on your ability to own enough property (i.e. wealth) to do so in private. You know, more than 500 feet to the nearest house not your own, etc. with an appropriate backstop. Smooth.
 
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This is bringing joy to my heart hearing the walmart/handgun ammo being a major point of contention.

They are asserting that 22lr does count as handgun ammunition. Judge is not having that, "would you really rest your case on 22lr being available"

Also "they can go to other states" again, Judge not having it.

This is awesome
 
22 magnum is still being sold as well. I was just at the Danvers Walmart on Saturday buying 22lr and they were also super stocked up on 22 magnum ammo. No idea if that's helpful [laugh]
I think Comm2a is well aware of that though.
 
csobrien said:
I still stand by what I said about this being a weak argument by the Commonwealth.
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Besides the cited argument, lack of selection is another factor that differentiates person to person sales.

"Interest balancing" is bad news when it comes to any right. Privileges should be interest balanced, rights are sacred. Just try balancing the right to free speech against the state interest of not having offended people engage in violent retribution for such free speech. Under interest balancing, the courts could uphold MGL Chapter 272 Section 36 if some religion reacted with violence to violation of this section.

Section 36. Whoever wilfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior.
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Assuming the judge doesn't allow the delay where the state wanted to provide extra transaction data, any sense when a decision would come?
 
State starts talking about “cramped quarters.”
Court cuts in “I don’t want you to spend much time on something that isn’t going to be considered valid.”

“What about liquor stores? They’re cramped.”

“‘We did what we want because we can’” is not valid” (all paraphrased.)

Holy smokes, your honor!
 

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