B.L.U.F.
A look at how the state is attempting to restrict our rights by redefining what “The People” means.
(2450 words)
Heller was the first domino to fall in the restoration of our Second Amendment protected rights. McDonald was the next. After a long time, we had the third domino fall, Bruen.
After Heller there was a rash of cases that were filed. As these cases made their way up the court system, the infringing, rogue, courts profoundly erred in how they interpreted Heller.
They looked at the methodological processes that were used to decide cases in court. Two different methodologies were examined, and then adopted. The first was how the Supreme Court had addressed First Amendment cases.
They determined that the rights protected under the First Amendment were not absolute. There were exceptions. To determine if a regulation is constitutional, the regulation is evaluated using “strict scrutiny”.
Under strict scrutiny, the state must show that there is a compelling state interest, that the regulation is narrowly tailored and is the least restrictive means available to the state. Strict scrutiny only applied to content-based or viewpoint-based regulations. If the regulation was not abridging content or viewpoint speech, then intermediate scrutiny was applied.
This also matched the ways and reasons injunctions/stays were issued, likelihood of success on the merits, irreparable harm, balance of equities, and public interest.
Given these two methodologies, the inferior rogue courts adopted a means-end methodology for Second Amendment rights. First, the court would determine that the regulation did not infringe the core right of self-defense too much, just like they determined content or viewpoint-based speech. The courts then looked at the state interest.
If the state interest was “compelling”, the court would use strict scrutiny. If the state interest was not compelling, the court would use intermediate scrutiny.
Having decided on the level of scrutiny, the rogue courts would assume without finding that the regulation being challenged was facially unconstitutional, and then rule it constitutional because the state had shown significant interest to justify the regulation under the level of scrutiny used.
This stopped progress in Second Amendment challenges. Just as the previous profoundly erroneous evaluation of the Second Amendment only applying to the militia.
After Bruen, the state could no longer use means-end to get around the Second Amendment. They then moved to attacking the conduct or item as not implicating the Second Amendment. To attacking the person as not being part of “the people” protected by the Second Amendment. And to arguing that regulations with poor fit to the current regulation was close enough when the court squinted hard enough, i.e., the nuanced approach.
In looking at how the state is attacking the definition of “The People”, we look to Heller first.
We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.
—District of Columbia v. Heller, 467 U.S. 837, 2815–16 (2008), For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens.
—id. at 2816, And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
—id. at 2821 from the majority opinion.
But the Court itself reads the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to “law-abiding, responsible citizens,” ante, at 2821
—id. at 2827, Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment as “elevat[ing] above all other interests” “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”
—id. at 2831 from the dissenting opinion(s).
You can see where the court uses the term “law-abiding”. The dissent jumped on that term and harmed it home. At one point they argued that since there is not a Free Speech limit to “law-abiding” that the Heller court is saying that “The People” in the Second Amendment are not the same as “The People” in the First and Fourth Amendments.
We can also see the use of the term “responsible”.
This is the hat peg the state uses to justify limiting the set of people that belong to “The People.”
In Fraser v. ATF, the state argues that 18,19, and 20-year-olds are not part of The People, in part because they are not yet old enough to be ‘responsible”.
The issue with “law-abiding, responsible” is that it is open to opinion.
Notice that the state claims that they can disarm those who are not law-abiding, responsible citizens. Wow. This means that the state can disarm those that are not citizens. “The People” applies to non-citizens in First and Fourth Amendment situations. Why doesn’t it apply to the Second Amendment?
“Responsible” is one of those weasel words. To quote Lewis Carroll:
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.‘”
—Lewis Carroll & John Tenniel, Through the looking-glass, and what Alice found there (Macmillan Children’s Books 2. [Dr.]; Repr ed. 1997)
It is irresponsible to litter. Does that mean if you throw some garbage on the ground, you lose your Second Amendment protected rights?
“Law-abiding” is fraught with the ability to be misused. We see that today, already. When §922(g) was amended, they added paragraph 9 who has been convicted in any court of a misdemeanor crime of domestic violence
—Unlawful Acts, 18 U.S.C. § 922 (U.S. 1968). There are many people who are prohibited persons under §922(g)(9) because they pleaded guilty to a misdemeanor crime of domestic violence sometime in their past.
When they pleaded guilty to the misdemeanor, it was no big deal. A simple slap on the wrist, and the rest of the nasty going on in court just went away. Years later, Congress adds paragraph 9 and those people have become prohibited people. Having lost their Second Amendment Protected rights.
What level of crime does it take before the state deems you no longer “law-abiding”.
GENERAL PRELOGAR: Of course, Justice Thomas. So I would break that into its two constituent components. With respect to those who are not law-abiding, history and tradition shows that that’s defined by those who have committed serious crimes defined by the felony-level punishment that can attach to those crimes.
This case focuses on the “not responsible citizens” principle, and in this context, we think that history and tradition show that it applies to those whose possession of firearms would pose an unusual danger, beyond the ordinary citizen, with respect to harm to themselves or harm to others.
—Transcript: Rahimi, No. 22-915, slip op. at 5–6
Ms. Prelogar is playing a game here. She is making an unsupported claim as if it is fact: … who have committed serious crimes defined by the felony-level punishment that can attach to those crimes
Let’s take an example of this game in play. Martha Stewart was accused of insider trading. The insider trading seems to have come from somebody at the brokerage telling Stewart that her friend was selling off his stocks. That friend was the CEO of the company he was selling stocks in.
Now, having the CEO of a company sell company shares just before bad news comes out is the living definition of “insider trading”.
Having been accused of insider trading, Martha Stewart was investigated. Because she didn’t admit her guilt to the investigators, they tacked on charges related to lying to the government.
She was put on trial and found guilty on all four counts. She was sentenced to 5 months in prison, 5 months of home detention, and 2 years of probation.
She is now a prohibited person. According to Ms. Prelogar, Martha Stewart is guilty of “serious crimes” and while she was only sentenced to 10 months of confinement, she could have been sentenced to more than a year.
It actually gets worse:
GENERAL PRELOGAR: So I think that there would be a history and tradition to support the idea that if someone has improperly stored their firearms and thus demonstrated by their conduct that they’re not fit to keep and bear arms, they would fit within this category of those who are not responsible. And – and there were a number of historical laws that operated that way, for example, those who had improperly stored gunpowder and caused the risk of explosions.
—id. at 6
The Solicitor General of the United States, the best lawyer the state has to offer, is telling the Supreme Court that the state believes that you should lose your right to keep and bear arms if you don’t store your arms properly.
—id. at 7
Notice the term “make predictive judgments”. What does that mean? It means, that in her official opinion, the state can label anybody as potentially dangerous and disarm them. Do you want to own guns? The state has passed legislation that wanting to own firearms will create an untenable risk of danger. Thus, you are now prohibited.
Ms. Prelogar continues in the same way for a bit longer. She is walking a very thin line here. On the one hand, she wants §922(g)(8) to withstand the challenge. The problem she has is that Mr. Rahimi wasn’t a felon when the TRO was issued.
The TRO is issued as a predictive judgment of his characteristics. The court was correct, but that doesn’t raise a TRO to the level of felony.
Until page 10, Ms. Prelogar is really pushing the “responsible” part. Unfortunately for her, the Justices are pushing back on what that actually means. Is it driving 5 MPH over the speed limit? Is it not recycling properly? So she punts.
—id. at 10
She is saying that the words “not responsible” means exactly what it means and no more. But it doesn’t mean those things that are ridiculous. Just the real “not responsible” things, like the Supreme Court meant in their opinion. No, I won’t define it.
Having been caught out, she pivots hard. Chief Justice Roberts gives her the opening, and she dives through Well, just to be clear, you’re – you’re using “responsible” as a placeholder for dangerous with respect to the use of firearms?
—id. She then tries to hide her misstep by claiming she was just using the Court’s words.
One of the things she does multiple times is tell the Supreme Court what they meant when they issued the Heller and Bruen opinions.
—id. at 12
She still really, really, wants that “responsible person” to stick. Even though she’s pretty sure it isn’t. So she now claims that a TRO is a finding of dangerous, but since it isn’t proven felony level, it is allowed under “responsible”.
Most of the rest of her argument is about claiming that TROs are only given when there is actual reason to believe that the person is actually dangerous. The problem she has is that there are enough documented cases where TROs were issued without any evidence of potential violence.
More than one judge has looked at the male in the equation and said, “I’m issuing this TRO out of an excess of caution.” No judge is going to suffer from issuing a TRO that punishes a person by depriving them of their rights. A judge who doesn’t issue that piece of paper and then something bad happens will certainly be attacked in the media.
Ms. Prelogar is not willing to admit that TROs are issued in a boilerplate manner.
I’ll finish up with the following quote because it demonstrates the evil nature of the state:
—id. at 19–20
In Heller the Court said the state needed a history and tradition of analogous regulations. If they were unable to show that history, then the modern-day regulation fails.
The state now claims that just because they couldn’t find a history and tradition of an analogous regulation doesn’t mean that their modern-day regulation is unconstitutional. The founding fathers could have passed an analogous regulation if they wanted to. It is up to the good guys to prove that the founding fathers thought that such an analogous regulation was unconstitutional.
I pray the Court slaps them down once more.
Bad facts make for bad case law…. the solicitor only gets the chance to be so disingenuous because Rahimi is so reprehensible. I think g(8) is going to survive scrutiny and we’re gonna be left fighting the state over what qualifies as ‘irresponsible’ and ‘dangerous’ for a long time.
It’s mental gymnastics like this, that makes me a dangerous person….to myself, one I spilled my coffee, and two I dropped my cigar and started a fire at my desk.
Could very easily see civil things making you irresponsible. Wages garnished for something? Irresponsible. Owe alimony or child support? Irresponsible.
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Sadly these will be the new tactics since the state is not content to give up, playing with the meaning of words.
I could see it taken to an extreme, too. Ever done anything even remotely questionable? Irresponsible.
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Never done anything even remotely questionable? 1. You’re probably lying — a.k.a. irresponsible. 2. You’re taking yourself way too seriously, which is a serious and unnecessary stressor — a.k.a. irresponsible.
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And the time-tested: You want to own a gun, a direct cause of mass violence, mayhem, injury, and death? Irresponsible; no upstanding and responsible person would ever want one of these things.
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The State would love to get that two-pronged, Kafka-trap, damned-if-you-do-and-damned-if-you-don’t standard set as SCOTUS precedent. We’ll see if Barrett and Roberts fall for it, because you know the rest of the ladies will.
Kafka trap is right. We are after all, all unconvicted felons right now anyways.
One problem I have with all these flavors of “scrutiny” or “means-end tests” is that they amount to various levels of “we will let you violate the Constitution if you can concoct a plausible excuse for doing so”. The main difference between “strict” and “intermediate” scrutiny is that strict scrutiny requires a reasonably plausible excuse, while intermediate scrutiny will accept any excuse that’s not totally absurd.
None of those methods of parsing the Constitution correspond to reading of plain English, which is what the Constitution uses. Plain English “shall not be infringed” doesn’t translate to “may be infringed if the State comes up with a plausible sounding excuse”.
On “We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns” — that’s not what Miller said. Rather, it said that such weapons had not been shown to be in regular use by the militia — which, incidentally, was because the plaintiff’s attorney committed malpractice by not even showing up in Court to argue the case.
As for “For most of our history, the Bill of Rights was not thought applicable to the States” — not true by the normal definition of “most”. It was a fairly common notion, though certainly not universally held as Halbrook points out, from 1789 to 1868. But the explicitly stated purpose of the 14th Amendment was to make the BoR apply to the states, and the 2nd Amendment in particular. So that makes 80-ish years of not applying vs. 150 years of applying.
So that makes 80-ish years of not applying vs. 150 years of applying.
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Slight correction: That makes 80-ish years of inconsistently applying vs. 150-ish years of always applying.
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In that first 80-ish years, it would have sometimes applied and sometimes not. But either way, for 2/3-ish of our history — since the 14th Amendment was ratified — it has always applied.
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The “For most of our history…” statement is false; in no rational universe can 1/3 be reasonably considered “most”.
True, though I don’t know many pre-14th cases to talk about the BoR being applied to states before then with any frequency. Not apart from one case, I’m pretty sure Halbrook cites it, a TX Supreme Court case that held the plain words of the 2nd Amendment apply to the State. And indeed, interpreted as plain English and especially considering the contrast with the 1st Amendment, that is true.