J.Kb. posted a nice write up today about how the district courts and lower state courts all seem to be following Bruen and handing out win after win. This is great!

I do want to point out a potential issue that we all have to be careful about.

Plaintiffs have demonstrated a probability of success on the merits of their Second Amendment challenge to the relevant provisions of Chapter 1`31 Section 7(a), which criminalizes carrying handguns in certain “sensitive places,” subparts 12 (public libraries or museums), 15 (bars, restaurants, and where alcohol is served), 17 (entertainment facilities), and 24 (private property), as well as section 7(b)’s ban on functional firearms in vehicles. The State may regulate conduct squarely protected by the Second Amendment only if supported by a historical tradition of firearm regulation. Here, Plaintiffs have shown that Defendants will not be able to demonstrate a history of firearm regulation to support any of the challenged provisions. The deprivation of Plaintiffs’ Second Amendment rights, as holders of valid permits from the State to carry handguns, constitutes irreparable injury, and neither the State nor the public has an interest in enforcing unconstitutional laws. Accordingly, good cause exists, and the Court will grant the motion for temporary restraints. An accompanying order of today’s date shall issue

In Bruen the Court said that once the Second Amendment is implicated it is then on the government to demonstrate a history and tradition of firearm regulation in support of that infringement.

This is very important as it changes the burden of proof from the plaintiffs (good guys) to the defendants (bad guys). In many of the cases we have covered we’ve seen how the state, over and over again, makes a broad sweeping statement of “it is supported by history and tradition” but then doesn’t bring the proof.

Instead the state argues that it is upto the plaintiffs to prove that there was no such history or tradition. It is impossible to prove a negative. As soon as it becomes the accepted methodology we are going to see a series of cases where the state claims there is a tradition and history and the courts will require the plaintiffs to prove that it isn’t.

At which point the state merely has to show one case that disproves the position. The case will devolve into arguments about if it is an outlier or something else.

For example, Bruen explicitly excludes gun control laws from the frontier west. While there are many signs and lots of history showing that many western towns had the people turn in their guns when they rode into town, the size of the population of the United States in the western states where these laws and regulations existed was less than 1%.

But in an argument before the Ninth Circus court I would not be at all surprised to see this flipping of the burden of proof and then having the state point to these western outliers as enough to show that the plaintiffs had not succeeded in proving there was no history or tradition. Also not that there is a logic error there.

The state is required to show a law has history AND tradition. The opposite of that is “no history or no tradition” but the state puts it as “no (history or tradition)” which is logically wrong.

All in all this is a great opinion. We want to make sure we watch for those word games that can turn this on its head.