For the last bit, we’ve been talking about how the apparatchiks have been moving to try to redefine what the plain text step is in Heller and Bruen
The Seventh Circuit contends that
Friedman and
Bevis do not suffer from Bruen’s instruction that any two-step test is “one step too many.” Bruen at 19; see Bevis at 1191. This Circuit adopts a scheme in which, prior to conducting any Second Amendment analysis as to a weapon, attachment, or magazine, the Court must first determine if the item in question constitutes an “Arm” for purposes of the Second Amendment. See
Bevis at 1192. If the item does not, then the Seventh Circuit holds that the Second Amendment has nothing to say about a law banning or restricting it. See
id.
This method is required even if the item otherwise falls within the definition of what constitutes an “Arm” as set out in Heller and Bruen. See
Bevis at 1192–1202. The Seventh Circuit contends that this precertification process
renders Friedman consistent with the “methodology approved in Bruen” that they employed in Bevis. Id. at 1191
—
No. 166 Barnett v. Raoul, No. 3:23-cv-00209, slip op. at 4 (S.D. Ill.)
The judge agrees with us, the Seventh Circuit judges, Wood and Easterbrook, looked at their two-step method and said, “The Supreme Court can’t be talking about us.”. Then said they got it right, and the Supreme Court’s opinion matches theirs.
Or as a former president put it: It depends on what the meaning of the word “is” is. If the — if he — if “is” means “is and never has been, that is not — that is one thing. If it means there is none, that was a completely true statement.
—Volume III: Document Supplement, Part A, William J. Clinton
The Seventh feels it can define any word to mean anything they want it to mean.
Having defined the word to mean exactly what they wanted it to mean, they then claim that they have investigated themselves and found that they had done no wrong.
This Court is tasked with determining whether the Plaintiffs are entitled to the declaratory and equitable relief they seek; specifically, that Illinois be enjoined from enforcing the provisions of PICA due to their unconstitutionality. In Friedman and in Bevis, the Seventh Circuit has come at this question from a different direction than that utilized by the Supreme Court in Bruen. As will be more fully explained herein, the Plaintiffs should proceed in their constitutional challenge to PICA offering evidence relevant to the tests of Heller and Bruen as well as the tests applied in Bevis.
—Order – #166 in Barnett v. Raoul, No. 3:23-cv-00209, slip op. at 4–5
Again, Judge McGlynn takes the Seventh to task. … has come at this question from a different direction … by the Supreme Court
.
But here is the kicker, he tells the Plaintiffs that they must brief both arguments. That of the Seventh’s ridiculous contention that you have to prove that an arm is protected under the Second Amendment before the state has an opportunity to prove a historical tradition of regulations. But the Plaintiffs must also argue using the correct methodology, as laid out in Heller and affirmed in Bruen of text.
The state is going to say: The Seventh has told you that LCM’s and Assault Weapons aren’t protected arms, so you can’t challenge the law on the ground that they are protected arms.
They will contend that the Plaintiffs have not met their burden of proving that the arms in question are arms. Since the Plaintiffs did not meet their burden, the state does not have to show a historical tradition of firearms regulation that is a match.
The Plaintiffs are being required to argue that “assault weapons” are protected under the Second. That is the only argument they need to make.
The court has warned the state, “Make sure you brief historical tradition, or you might lose.”
No matter how this goes, it will be appealed. I just enjoy bringing you news of courts and judges that do get it right.
There is every indication that this judge will do the right thing.
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