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Glossary – Updated 2024-03-18

Update:
Please note that all the terms below refer to the federal court system. State court systems have different names for different levels of court.

For example, in Illinois they have the state supreme court, appellate courts, and circuit courts.

The state supreme court is immediately below the US Supreme Court.

The appellate court is the state equivalent to the federal appellate courts.

But, the state circuit court is equivalent to the federal district court.

I currently do not have visibility into the state court systems. I normally only hear about them once they make their way into the federal system, via appeal.


Term Definition
Administrative Panel A three judge panel at the appellate level that hears motions on the courts emergency docket.
Administrative Stay A stay lasting a short time while a court looks into the motion.
Appeal A motion to a superior court requesting a correction to this courts order(s)
Appellate Court An inferior court immediately under the Supreme Court and above District Courts
Article III Courts The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
Assault Rifle Propaganda term for a center fire rifle that is scary.
Assault Rifle (2) A select fire rifle that fires an intermediate round.
Assault Weapon Propaganda term for a firearm that is scary.
Assault Weapon(2) Propaganda term for a center fire rifle that is scary.
AWA Anonymous Web Angel. Miguel’s name for me when I started supporting his site.
AWB Assault Weapon Ban
B.L.U.F. Bottom Line Up Front. Put the conclusion at the top of a document.
Case Docket The documents associated with a particular case
CCL Concealed Carry License
CCW Concealed Carry of Weapon
certiorari The Supreme Court’s word for an agreement to hear a case
Circuit Court Another name for an Appellate Court
Circus A derogatory term for a circuit court, e.g. The First Circus issued an opinion uploading an infringement based on means-end.
Court Docket The list of cases for a particular court.
District Court The most inferior court in the federal court system
Docket A collection of court documents
Emergency Docket A court’s docket for cases that require an immediate response. i.e. a request to stay an execution.
en banc The full circuit court, except for the Ninth Circuit. There are so many judges on the Ninth Circuit that their “en banc” panels are a subset of the entire court.
F.R.A.P. Federal Rules of Appellate Procedure
Final Judgment An order by the court closing a case after the trial or oral arguments.
GFZ GunFreeZone.net
GFZ (2) Propaganda term for a government mandated civilian disarmament zone. A location where only the criminals and government have arms.
Grant The Supreme Court or Circuit Court agreeing to hear a case.
Gun Safety Civilian Disarmament by law
Gun Safety (2) Treat every gun as if it is loaded, don’t point a gun at anything you are not willing to destroy, keep your bugger hook off the bang stick until you are ready to shoot, be aware of your target and anything beyond.
Gun Violence A propaganda term for any violence where a gun was present. Includes justifiable homicide, suicide, self-defense, murder and much more.
GVR To Grant certiorari, Vacate the inferior courts judgment, and Remand to the inferior court.
Inferior court Any federal court that is not the Supreme Court
Injunction An order by a court stopping a party and their minions from doing something.
interlocutory A case that does not have a judgment. It is still in the preliminary stages.
Judge’s Docket The list of cases assigned to a particular judge.
LCM Propaganda term for standard magazines that hold a scary number of rounds
Mass Shooting A propaganda term for any time guns are used when there was more than two people present.
Mass Shooting (2) the FBI defines a “mass shooting” as any incident in which at least four people are murdered with a gun.
Merits Panel A three judge panel at the appellate level that hears a case on its merits.
Motion A request by a party to the court for something. For example, a motion to dismiss.
Order(s) Instructions issued by a court. These can be scheduling orders, briefing requirements, granting or denying motions from the parties.
Permit to Purchase A scheme where you need to get government permission to exercise a core civil right.
Petition A particular type of motion
Preliminary Injunction An injunction that lasts for the duration of a case.
Remand To send a case to an inferior court for a do over.
Rogue Court A court that refuses to follow the Supreme Court’s decisions. See First, Second, Third, fourth, Seventh, and Ninth Circus courts.
Safe Storage A government mandate to make your firearms inaccessible in an emergency or urgency.
Safe Storage (2) Proper evaluation of your situation and protecting your firearms from unauthorized access.
Senior Judge A judge that is mostly retired. A judge that is inactive but still participates in cases.
Sensitive Location GFZ(2)
Sensitive Location (2) A location with comprehensive armed security where the location has accepted responsibility for providing security.
Shadow Docket A propaganda term for emergency docket used by people that don’t approve of courts making decisions regarding which case they will hear on an emergency basis.
Snark Come on, do you really need me to define this?
Standing A party has standing if there is a live issue and it affects the party.
Stay An order by a court stopping an action by that court or an inferior court
Summary Judgment An order by a court closing a case or part of a case based on the briefed merits before trial or oral arguments
Supreme Court The top court of the United States. There is NO court above the Supreme Court
Temporary Restraining Order An injunction that lasts until a court can decided on a preliminary injunction
TL;DR; To long; Didn’t Read; Rude way of saying that something was so wordy that you didn’t put in the effort to read it.
Tl;DR; (2) A note by the author of the short version of their article for people with short attention spans.
TRO Temporary Restraining Order
Vacate For a superior court to dismiss an inferior courts judgment
Winter Factors Four questions a court must answer before issuing a Preliminary Injunction or a stay.

What was the First Circuit Thinking?

I’ve been struggling with the opinion of the First Circuit court in —Ocean State Tactical, LLC v. State of Rhode Island, No. 23-1072 (1st Cir.). I know that it is a twisted opinion, attempting to keep as many abuses of our rights in place for the longest period of time possible.

Still, I want to understand their logic. This is not the same as agreeing with them, I need to understand what they are attempting to do and what they are saying.

The first thing that the First did was to assume that LCMs are “arms” within the scope of the Second Amendmentid. at 8. This is plain nasty, evil crap for the circuit courts to do.

Bruen directs the inferior courts to follow Heller. The first step is to determine if the individuals’ conduct is within the scope of the Second Amendment. “Assuming” is not “determining”. This would be as bad as a court saying “We assume the party would win on the merits, but we find that they will lose on balance of equity, so there is no need to do the first prong of the Winter factors.”

I’m sure the lawyers who are reading this are saying, “Idiot, it happens all the time.” I am not a lawyer. I’m a computer geek. No matter how you slice it, it is a shitty thing to do. It is lazy and unprofessional. Everybody knows that we need the circuits to say whether LCMs are “arms” or not. As soon as they say they are not, then we can start the appeals to get that overturned.

Having stated that they are going to assume, without finding, they First then moves to answer the question, “Is HB 6614 [LCM ban] consistent with our history and tradition.”

Plaintiffs contend that because firearms capable of firing more than ten rounds without reloading “are nothing new” and have at times been unregulated, Rhode Island’s ban is at odds with tradition. To support this position, they point out that some multi-shot firearms existed in the late 1700s, and others were more common by the mid-to-late 1800s in the form of the Henry and Winchester rifles. But as plaintiffs concede, today’s semiautomatic weapons fitted with LCMs are “more accurate and capable of quickly firing more rounds” than their historical predecessors. And they are substantially more lethal.
id.

This is a true statement that makes no difference. Having decided that this is an arms ban case, the question then becomes “are LCMs in common use for lawful purposes?”. If the answer is “yes”, then the case is over, in our favor.

But, of course, the First claims it does matter:

More importantly, we find in the record no direct precedent for the contemporary and growing societal concern that such weapons have become the preferred tool for murderous individuals intent on killing as many people as possible, as quickly as possible. This is unsurprising, given evidence that “the first known mass shooting resulting in ten or more deaths” did not occur in this country until 1949. Oregon Firearms Fed’n, Inc. v. Brown, 644 F. Supp. 3d 782, 803 (D. Or. 2022). Likewise, “[a]t the Founding, there was no comparable problem of gun violence at schools.”
id. at 9

Taking the latter first, my rights are not dependent on the acts of others. Just because Maxine Waters gets in front of her people and the cameras and says, “Get in their face; bother people at every restaurant where you can find a Cabinet Member”, I don’t lose my First Amendment protected rights to free speech. No matter how much “hate speech” they use, no matter how much racist crap they spew, it does not allow them to abuse my rights.

But let’s look at the former. The First Found no direct precedent. That might be the case, but it is irrelevant.

While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach. The regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. Fortunately, the Founders created a Constitution—and a Second Amendment“intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819) (emphasis deleted). Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated. See, e.g., United States v. Jones, 565 U. S. 400, 404–405 (2012) (holding that installation of a tracking device was “a physical intrusion [that] would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted”).
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, 19 (U.S. 2022) slip opinion

The Bruen court has clearly stated that cases like Bruen and Heller are relatively simple, not requiring a nuanced approach.

What type of cases are Heller and Bruen? They are arms ban cases! Exactly what Ocean State is challenging. They are challenging an arms ban case.

The circuit courts like to pretend that mass shootings are a new societal concern. They are full of it. The Supreme Court was well aware of mass shootings.

April 16, 2007, 33 people were killed and 17 wounded on the grounds of Virginia Tech. The asshole doing the shooting was using a handgun. Heller was about a handgun ban. The Supreme Court considered mass shootings before they issued their opinion in Heller.

The Supreme Court had multiple cases before them seeking cert. that briefed them on the horrors of mass shootings and the horrors of “assault weapons”.

This is not a new issue. There is no excuse for a “nuanced approach” by the First Circuit.

Concern about the increasing frequency of LCM-aided mass shootings today prompted the Rhode Island legislature to pass HB 6614.6 And since the record contains no evidence that American society previously confronted — much less settled on a resolution of — this particular concern, we have no directly on-point tradition on which to rely in determining whether Rhode Island’s ban is consistent with our history and tradition.
Opinion, No. 23-1072, slip op. at 10

Can you find a historical regulation banning murder? Yes. And it is a tradition, too. Can you find a historical regulation banning murder with guns? No. It is subsumed into murder. It is already banned. Can you find a historical regulation banning murder with guns with detachable magazines? No, you can not.

The lack of a “twin” to the modern regulation banning murder with a gun doesn’t invalidate the current ban. There is a history and tradition of banning murder.

The First makes a profound error here. They claim that because there is no match to the modern regulation, they are instructed by the Supreme Court to loosen the requirements for a match.

What the Supreme Court actually said was that if there is no match, then the modern regulation is unconstitutional.

The First then uses that “too specific to match” to lie by omission. there was no comparable problem with gun violence at schools Maybe there was no “gun violence” but there was certainly violence.

On July 26, 1764, four Delaware (Lenape) Native Americans entered a settlers’ log schoolhouse in the Province of Pennsylvania and killed the schoolmaster, Enoch Brown, and ten students. One other student named Archie McCullough was wounded. The massacre is the first school shooting recorded in U.S. history. Historian Richard Middleton described the massacre as “one of the most notorious incidents” of Pontiac’s War.
Wikipedia: Enoch Brown school massacre (Feb. 2024)

The number of armed attacks by Indians upon settlers is extensive.

So the First exhibited ignorance when they said school shootings were unknown in the founding era.

Having decided to ignore Bruen‘s statement of when the state can use looser criteria in matching past laws, the Court then decides to resurrected from the ashes good old interest balancing.

“Relevantly similar” is the language of the Supreme Court.

What did the Bruen Court say?

Much like we use history to determine which modern “arms” are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding. When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are “relevantly similar.” C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993). And because “[e]verything is similar in infinite ways to everything else,” id., at 774, one needs “some metric enabling the analogizer to assess which similarities are important and which are not,” F. Schauer & B. Spellman, Analogy, Expertise, and Experience, 84 U. Chi. L. Rev. 249, 254 (2017). For instance, a green truck and a green hat are relevantly similar if one’s metric is “things that are green.” See ibid. They are not relevantly similar if the applicable metric is “things you can wear.”
Bruen, 142 S.Ct. at 19–20

Note, my citation and theirs differ, yet the language is a match.

The Bruen court, in explaining how Heller works, says that regulations must match using a good metric.

we do think that Heller and McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense.id. at 20

To rephrase, “how a regulation burdens a citizen’s right to keep and bear arms” and “why a regulation burdens a citizen’s right to keep and bear arms.”. That seems pretty simple.

The Supreme Court continues, whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justifiedid.

Here is where the First Circuit stakes their claim of comparing burdens.

This does not mean that courts may engage in independent means-end scrutiny under the guise of an analogical inquiry. Again, the Second Amendment is the “product of an interest balancing by the people,” not the evolving product of federal judges. Heller, 554 U. S., at 635 (emphasis altered). Analogical reasoning requires judges to apply faithfully the balance struck by the founding generation to modern circumstances, and contrary to the dissent’s assertion, there is nothing “[i]roni[c]” about that undertaking. Post, at 30. It is not an invitation to revise that balance through means-end scrutiny.
id. n. 7

When the Supreme Court speaks of “burden on” they mean how the people were burdened by the regulation. Were they told how to store their arms? What arms they could possess? What arms they could carry? How they carried their arms?

These are the “how metric” of Heller as affirmed by Bruen.

To gauge how HB 6614 might burden the right of armed self-defense, we consider the extent to which LCMs are actually used by civilians in self-defense.Opinion, No. 23-1072, slip op. at 11 This is a profound misreading of Heller and Bruen. The “how” in question is “the modern regulation is banning an arm”.

The extent that magazines are used or not used has nothing to do with how a regulation burden’s a member of The People.

Given the lack of evidence that LCMs are used in self-defense, it reasonably follows that banning them imposes no meaningful burden on the ability of Rhode Island’s residents to defend themselves. True, one could imagine Hollywood-inspired scenarios in which a homeowner would need to fend off a platoon of well-armed assailants without having to swap out magazines. But we read Bruen as requiring us to ascertain how a regulation actually burdens the right of armed self-defense, not how it might be imagined to impose such a burden. And even if we were to consider imagined burdens in our analysis, we would certainly accord them little weight. Otherwise, the assessment of how a regulation burdens the right of armed self-defense would always find a substantial burden.
id.

Here is the dirty little secret of civil rights, the amount of burden is not at issue.

It’s no real burden to stand over in that place to speak. It’s no real burden to get government permission to stand on your soapbox and talk. It’s no real burden to tax printing ink.

That might be true. That it is “no real burden”. That doesn’t mean that there is no burden.

If there is a burden, the courts must find that the how of the burden has a historical match.

And yes, First Circuit, any burden on the right to armed self-defense is a substantial burden.

To attempt to save themselves, they then use the NFA as a “historical” match in weapons ban. How did the NFA burden the right of armed self-defense with regulated arms? You had to pay a substantial tax. Was it a ban? No! There are no federal bans on sawed of shotguns. There are no bans on short barreled rifles. There are no bans on machine guns.

All such bans are at the state level, which have not been directly challenged — yet.

So the “how” doesn’t match. Never mind that the regulation comes much too late in history.

They also bring up the tired old and even the severe restrictions placed on Bowie knives by forty-nine statesid. at 13 Except those historical “severe restrictions” were on carrying Bowie knives. Not a ban.

The rest of the opinion is filled with obfuscations. They say that the why for the NFA is a match for their magazine ban. They are correct. It is a match. In 1934. Nowhere near 1791. It can be discounted, out of hand.

They then go back to the Bowie knife argument. Most of those regulations came after the founding era. The Court claims the earliest was 1830. That is barely inside the range of “founding era.”

The Heller court was aware of the Bowie knife regulations. They didn’t find them enough to justify a ban on arms for self-defense.

I think I have my head around this. I’m going to go swallow a couple of Tylenol, maybe my head will stop hurting then.

Bibliography

Minneapolis Star & Tribune Co. V. Minnesota Commissioner of Revenue, 75 L. Ed. 2d 295 (1983)
Staples V. United States, 128 L. Ed. 2d 608 (1994)
District of Columbia v. Heller, 467 U.S. 837 (2008)
Winter V. Natural Resources Defense Council, Inc., 172 L. Ed. 2d 249 (2008)
Nken v. Holder, 556 U.S. 418 (2009)
Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010)
Caetano V. Massachusetts, 194 L. Ed. 2d 99 (2016)
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
Ocean State Tactical, LLC v. State of Rhode Island, No. 23-1072 (1st Cir.)
Cass R. Sunstein, On Analogical Reasoning, 106 Harvard Law Review 741 (Jan. 1993)
Wikipedia: Enoch Brown school massacre (Feb. 2024)

Bad Opinions poison the well

Back in August 2023, the Ninth Circuit broke peoples minds when they issued a Second Amendment opinion.

The merits panel decided that “butterfly knives” were arms. Since Andrew Teter wished to keep and bear butterfly knives, his conduct was covered by the plain text of the Second Amendment.

Having decided that the conduct was covered by the Second Amendment, the panel found that the conduct was presumptively protected by the Second Amendment. Thus, the burden shifted to the state to prove a history and tradition of banning an arm in common use.

The state failed to meet their burden, and the panel reversed and remanded the case.

Of course, this lead to the state freaking out. They begged for mommy to save them. In February 2024, mommy stepped in and agreed to overturn the merit panel. Sorry, they agreed to hear the case en banc

This case was originally docketed with the Ninth Circuit court in May 2020. The en banc oral arguments are now scheduled for June 2024. 4 long years of litigation.

Last week, the First Circuit court decided that means-end balancing was still acceptable.

They assumed, without finding, that magazines were arms under the plain text meaning of the Second Amendment. They went on to find that the plain text of the Second Amendment covered the conduct. As such, the conduct was presumptively protected by the Second Amendment.

I.e., they said that magazines are arms and keeping and bearing them is presumptively constitutional.

They then moved on to the historical analysis. Somehow, they decided that a lack of historical matches required them to use an analogical analysis. They reasoned that since they couldn’t find any regulations banning anything like magazines, that meant that carrying magazines was a new societal issue.

According to the First Circuit, the Supreme Court “directs” them to examine how the burden of the modern regulation matches the burdens of historical regulations.

In the First Circuit, if the court decides the level of rape being done to you, today, isn’t worse than the level of rape done by some past law, the current rape is allowed.

The state has told the Ninth Circuit court:

Ocean State correctly recognized that courts must “compar[e] the ‘burden on the right of armed self-defense’ imposed by the new regulation to the burden imposed by historical regulations” and then “turn to the ‘why,’ comparing the justification for the modern regulation to the justification for historical regulations.” 2024 WL 980633 at *4 (quoting Bruen, 597 U.S. at 29).

The First Circuit properly looked to “how a regulation actually burdens the right of armed self-defense, not how it might be imagined to impose such a burden.” Id. On the record before it, the court found that “civilian self-defense rarely—if ever—calls for” large-capacity magazines, noting plaintiffs had identified just a single example. Id. Appellants here have similarly identified just one arguable example of butterfly knives being used for self-defense—one occurring outside the United States. See Reh’g Pet. 10-11.
Ocean State Tactical, LLC v. State of Rhode Island, No. 23-1072 (1st Cir.)

This entire “burden” argument comes from the law imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted.id. at 8, Justice Breyer, dissenting.

The majority, did mention “burden”. They said, Nothing about those fire-safety laws undermines our analysis; they do not remotely burden the right of self-defense as much as an absolute ban on handguns. Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents.id.

In other words, the Heller court found no historical law matched a ban on arms.

Regardless, we can see the poison of bad opinions spread, constantly. It will not surprise me if the Ninth takes up this “burden” bullshit. It is just another “means-end” lie to infringe on our rights.

Friday Feedback

Next week, the Fourth Circuit court will be hearing Bianchi for the 3rd time. The first time it was heard by a 3 judge merits panel. They said Kolbe was good law and still applied. The case then went to the Supreme Court.

After Bruen, the Supreme Court GVR’d Bianchi.

A different 3 judge merits panel heard the case. Before they issued their opinion, the Fourth Circuit decided to hear the case en banc. Oral arguments will be heard on the 20th.

We’ve had another Second Amendment challenge heard at the circuit level by the Third Circuit court of Appeals. This is a challenge to Delaware’s “assault weapons” ban.

TikTok is in the news. My concern with banning TikTok is that it could be used to justify banning other applications, such as Gab, Parlor or even X, if the people in power decide to do so.

I understand, completely, why TikTok is a horrible application that is known for spying on its users. It should not be allowed into anyplace where sensitive information could be heard or seen.

Jumping back to the court cases.

Immediately after Bruen, there was a spat of cases filed. Things seemed to be moving, moving rapidly even.

Some of the most inferior courts got it wrong, but enough got it right that we had strong cases.

Then the rogue, inferior, Circuit courts weighed in. They weighed in with their thumbs on the scale. They delayed and denied. They twisted dough in ways that would make a pretzel maker blush.

Everything seemed to have ground to a stop.

That log jam seems to have been broken. More cases are making it through the circuit courts. Cases are requesting cert from the Supreme Court.

It would not surprise me if we started to see some “not horrible” results to start coming out of the Appellate courts, just to keep cases away from the Supreme Court.

While many of our readers have expressed good arguments supporting the Second Amendment challenges, it is difficult for laymen, people not of the clothe, to understand just how arcane courts are.

It is entirely possible for the same lawyer to argue, before the same judge or panel on the same day, two opposing views of the same fact pattern.

Is it an arm? Yes, when we are talking about banning them under the NFA or GCA. No, if we are talking about the right to keep and bear arms.

It is open season in the comments. Give us your feedback. Give us your thoughts.

Have a fantastic weekend.

The Good Guys Dunk on the state

Legal Case Analysis
B.L.U.F.
A fun little trip through the FPC and SFA’s briefing on what “in common use” means to the Fourth Circuit court.

Text comes first.

Then history. If the arm is in common use, the history analysis has been done by the Supreme Court, we win.
(1400 words)


The Tip-Off

In New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), the Supreme Court “employ[ed] and elaborate[d] on the text, history, and tradition test that Heller and McDonald require[d] for evaluating whether a government regulation infringes on the Second Amendment,” 597 U.S. at 79 (Kavanaugh, J., concurring). Specifically, the Court explained that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government … must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id. at 17. The Bruen analysis thus begins with an examination of the “plain” or “bare” text of the Second Amendment. See id. at 44 n.11. This is an exercise determining what the words of the Second Amendment meant at the time of ratification, and it largely involves using dictionaries—although Heller and Bruen have already done the work to explain the contemporaneous definitions of key words in the Amendment. If the plain or bare text is implicated, the challenged law is presumptively unconstitutional, and the burden is on the government to show both (1) that there exists a historical tradition of regulation that carves out an exception from the protection of the Amendment and (2) that the modern restriction fits into that tradition. Id. at 28–29.
Ocean State Tactical, LLC v. State of Rhode Island, No. 23-1072 (1st Cir.)

As noted, the correct response to a court asking about “in common use” or the state claiming that the plaintiffs bear the burden, is to simply point to the Supreme Court’s own words.

If the plain, or bare, text of the Second Amendment covers the conduct, then the Constitution presumptively protects that conduct.

The state is attempting to move the courts from “plain or bare text” to “nuanced meaning of the text” or, worse still, “interpretation of the text”.

If the state or court wants the meaning of “arms” to be evaluated in the context of “dangerous” or “unusual” or “primarily of military use”, they are not looking at the plain text. They are looking past the plain text.

The Ref calls it

Read More

The State Tap Dances

Legal Case Analysis
B.L.U.F.
The state dances around “in common use” because they fear it. They even explain why it can’t be used. If it was used, then they would lose.
(1650 words)


In Bruen, the Supreme Court rejected the interest-balancing test that many courts of appeals had applied since District of Columbia v. Heller, 554 U.S. 570 (2008), and replaced it with a two-step test rooted in text, history, and tradition. Bruen’s first step asks whether “the Second Amendment’s plain text covers an individual’s conduct[.]” 597 U.S. at 17. If so, “the Constitution presumptively protects that conduct.” Id. Only at that point is Bruen’s second step triggered, under which “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id.
Ocean State Tactical, LLC v. State of Rhode Island, No. 23-1072 (1st Cir.)

Ok, the state starts with a clear, concise, and correct statement of Heller‘s text, history, and tradition methodology.

One aspect of Bruen’s first-step textual determination, and one that is central here, is whether the object being regulated is an “arm.” That is because, if a regulated object is not an “arm” as that term is understood for purposes of the Second Amendment, it falls outside of that amendment’s protections. See Bevis v. City of Naperville, 85 F.4th 1175, 1192 (7th Cir. 2023), petitions for cert. filed, Nos. 23-877, 23-878, 23-879 (U.S. Feb. 14, 2024), No. 23-880 (U.S. Feb. 15, 2024) (“We begin by assessing whether the assault weapons and large-capacity magazines described in those laws are Arms for purposes of the Second Amendment. If not, then the Second Amendment has nothing to say about these laws: units of government are free to permit them, or not to permit them, depending on the outcome of the democratic process.”).
id. at 8

When a circuit court issues an opinion, it can be cited in other cases. Here, the state is referencing an opinion from the Seventh Circuit, which said that it was the plaintiff’s burden to prove that something is an arm.

This is pure sophistry. The Seventh Circuit is saying something true to hide the false premises that will come later.

In order for the Second Amendment to presumptively protect a conduct, that conduct must fall within the scope of the Second Amendment. Thus, the object must be an Arm. The conduct must have something to do with keeping or bearing that arm.

“Is it an arm?” is the first question to be asked. The Seventh Circuit stated that correctly. The state states that correctly here.

The state then begins its dance. [T]he the Supreme Court in Heller explored the parameters of what constituted an “arm” such that it would fall within the protections of the Second Amendment.id.
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