A Diminutive Demurrer

“Come fly with me, come fly away… if you can use some exotic booze, I know a bar in far Bombay”…


The sounds of Sinatra fill the empty spaces in my troubled soul. Yes. I can use some exotic booze. The world is in need of a great reset. This has been looked upon by many with trepidation… and it should… because those who have been calling for it seem to be hellbent on building an authoritarian utopia upon the ashes of what once was understood as individual liberty. I, however, do think a “reset” may be in order… for entirely other reasons.


Many people believe the advent of the “imperial presidency” first came on scene with Franklin D. Roosevelt. I think this misses the mark a bit. He was the first one who was able to combine operational competency with institutional architecture; his was a fleeting moment of Socialist utopia though. Bureaucratic and regulatory rot soon metastasized (as was predicted) and left us with this limping leviathan we call modern American government.


No… the first to create an imperial presidency was perhaps Ulysses S. Grant. True… his ambitions may have been noble… but they were not exactly the type of actions envisioned or, for that matter, sanctioned by the Framers.


As legislative and executive actions became more corporatized and unmoored by Constitutional constraints following FDR, a myriad of rules, regulations, admonitions, and directives began to overlay our lives creating, as Alexis De Tocqueville envisioned, the bureaucratic spiderweb that would be the downfall of our republic.


This is not to say that from time to time small glimmers of logical consistency break through the calcified sarcophagus that has become our “systemic failure of governmental regulation”.


One such breach occurred a few weeks ago when the Supremes released their decision in NYSRPA v Bruen. Another occurred last week in Sacramento, as a direct result of Bruen.


The LTC and I have a gun case we are working on right now for a client. I won’t go into the specifics, but the LTC thought it would be all right and proper to file a demurrer in the case based on the opinion of Bruen. A motion for demurrer is Latin for “so what”… basically we are saying, “If we don’t contest any of the facts alleged by the State… so what… the conduct is perfectly legal.”. The LTC thought we sort of had to do this. The chances of us prevailing on the motion were marginal at best, but it would preserve any potential appeals and, if nothing else, was kinda fun to write.


Then, the next day no less, we were given a copy of a demurrer that had been filed in a similar case in Sacramento. The case involved a defendant (Tony Diaz) who is anything but a choirboy (Or maybe he is… I don’t want to necessarily suggest that choirboys are pathologically law-abiding; I am sure many of them participate in some pretty anti-social behavior). That all notwithstanding, Mr. Diaz does not appear to exemplify the traits of a model citizen. But far be it from me to judge.


It would appear this case was initiated when Mr. Diaz decided to get together with a few of his buddies, wear concealed firearms (for which they did not possess valid CCWs), get in a car and smoke a fair bit of marijuana. This reminds me of a weekend I once spent in Istanbul with a shaman and trauma nurse… at least I think she was a nurse. Well… I digress…


Mr. Diaz was arrested for these pharmacological activities and ultimately prosecuted for having a concealed weapon without a CCW.


His defense attorney had the same flash of insight the LTC did, though, and filed a demurrer. His argument, as does the LTC’s, sort of goes as follows:


The Supremes say we have a fundamental right to bear arms outside the home. Prior to Bruen the only way to do this was to get a CCW. Most jurisdictions (inducing Sacramento) required a showing of good case to get a CCW. That requirement was unconstitutional. Stated another way, that requirement made the operational process illegal.


This creates a paradox, a conundrum… or for those of you who watched season three of The Umbrella Academy: Kugleblitz. How can you require that someone engage in an illegal act in order to exercise a Constitutional right? The answer is you can’t. (And, arguably, by doing so you put at risk the entire space-time continuum.)


So. Since the CCW regs as written were “illegal”, the argument follows that the defendant was entitled to ignore them and engage in his “Constitutional conduct”. That is, the prohibition of carrying a firearm only with a valid CCW was a law that could not be enforced since enforcement would require the defendant participated in an illegal scheme before being allowed to engage in legal conduct. (Yeah… I need that exotic booze now too.)


Well… the judge up in Sac agreed. Not just any judge either: Judge Steve White, who is the presiding judge of the Sacramento Superior Court. He is not some right-wing Constitutional fanatic either. He is a Davis the Gray appointee.


In his opinion he sustained the demurrer; he acknowledged that he is not particularly thrilled at the outcome here, but he must be logically consistent with the opinion in Bruen. Incidentally, he actually does a pretty good job of articulating that opinion and applying it to the facts of the case.


While we may still be living in an authoritarian regulatory maze rivaling only that of the Byzantine Empire… a small burst of freedom has sprung forth.


Our own demurrer now has greater legs than we had thought, and we will see how it pans out next month. In the meantime, let the bells of freedom ring loudly, and let us hope Mr. Diaz chooses another form of vehicular recreation.


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