B.L.U.F.We took a look at the bad guy’s arguments via Everytown earlier this week. Today we look at the reply brief submitted by the appellants/plaintiffs (good guys).
There is a huge issue that the good guys have to overcome in these cases, getting the Court to do their job. If you look at the plain text of the Second Amendment, is the proposed conduct implicated? If so, the conduct is presumptively protected under the Second Amendment.
The state is doing all in their power to make this first step as difficult as possible. As we observed in the Everytown brief, they don’t have any historical regulations to support their infringements. Because they don’t have the history nor the tradition, they desperately want to stop cases from getting to that point.
There is an old legal aphorism, “If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table.”
When I write about “emotional blackmail”, I’m discussing how the state is pounding the table. They don’t have facts on their side, they don’t have the law on their side. They pound the table in frustration, begging the court to give them just a little inch.
What this means, at a tactical level, is that the lawsuit almost all say “It is a regulation of conduct that is protected under the Second Amendment. Grant us an injunction stopping it.” The state then gets to do the song and dance “welllllll, it isn’t actually an arm. It doesn’t go boom boom.”. Or they try and say that as long as they allow you this arm, they don’t have to allow you that arm. All of this is just bonkers when the plain text is used.
Introduction
The plaintiffs start their response:
Just last year, the Supreme Court confirmed once and for all that “the Second Amendment protects the possession and use of weapons that are ‘in common use.’”
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.Ct. 2111, 2128 (2022) (quoting
District of Columbia v. Heller, 554 U.S. 570, 627 (2008)). Rather than respect that clear teaching, Rhode Island veered far in the opposite direction, banning all devices that feed ammunition into semiautomatic firearms and are “capable of holding … more than ten (10) rounds,” R.I. Gen. Laws §11-47.1-2(2), -3(b)(1)(i), even though tens of millions of Americans own hundreds of millions of those devices as integral components of the firearms they keep and bear for self-defense. Under a straightforward application of
Bruen, HB6614 is profoundly out of step with our nation’s history of firearm regulation and a violation of the Second Amendment.
—
Ocean State Tactical, LLC v. State of Rhode Island, No. 23-1072, slip op. at 1 (Court of Appeals for the First Circuit)My lady has a difficult time answering simple questions. “Are you done with your homework?”. Reply: “Sort of, I’ve been working on it for hours. The …(172 words later) so I’m still working on it.” “Thank you, are you done with your homework?” “I just told you.” “No, you didn’t. You said many things in response to a yes, no answer without ever actually answering the question.”
The state is much like that. They don’t actually answer the question presented and instead talk about this or that. The plaintiffs (good guys) can’t force the state to answer. Only the Court can do that. If the state doesn’t answer the court, then the court can treat that none-response as meaningful.
In an effort to salvage HB6614, the state asks this Court to ignore what the Supreme Court has repeatedly identified as “the Second Amendment’s definition of ‘arms,’” Bruen, 142 S.Ct. at 2132, in favor of a definition more to its liking. The state asks this Court to pretend that people do not “use” their firearms when they keep and carry them for self-defense, even though the Supreme Court has explicitly defined the Second Amendment right as a right to “be[] armed and ready for offensive or defensive action,” id. at 2134, not just to fire at would-be attackers. …
—id.
Exactly what we have been saying. I’m pleased that this reply has stated it so clearly. I expect to use this in the future.
These guys really hammer the state: “Pretend”, “fiction”, “deny Bruen“, “ignore what the Supreme Court”. This is polite lawyer talk for “the state is a lying sack of flaming dog poo”.
HB6614 Violates The Second Amendment
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