We exist within the framework of our knowledge base, and this colors how we think of our world.
When I look at a machine and find that all the screws are machine screws and that no screws are “hidden,” this tells me that the item is designed to be taken apart.
This was never clearer to me than when I took apart the automatic down feed of my Bridgeport Mill. I had put it off for months because I feared what I would find inside.
There was a logical sequence to follow, when the control came out of its mounting, it was easy to see how it could be taken apart further.
I did take it apart, I was able to repair it with a little light cleaning. There was only one way for it to go back together, and it all just worked.
My wife can’t tell the difference between a well-built machine and a disposable machine. I had to drive her car the other day. It was making a thumping sound as it went over rough bumps. I told her that the bushings were likely bad, and it needed to be repaired before our trip.
She had not heard the sounds, didn’t recognize them. She did not have the world view to understand what she was hearing/observing.
Our skills and knowledge base modifies what we observe.
One of the justices, in oral arguments, asked something about “800 rounds/second”. We know this is ridiculous, but that’s only because we have that knowledge base.
(for those of you that don’t know, normally we express rate of fire in rounds/minute. The M-16 has a rate of fire of around 600 rounds/minute. The Justice’s 800/s is only 80 times faster than the M-16 actually fires)
There is such a thing as “judicial notice.” It only works when something is known by the court. When it is a single judge, then it is simple, they either know or they don’t know.
When it is a panel, some justices might know and others might not know. If a judge wants everybody on the panel to know a fact, they need to tease it out of the attorneys.
In 1992, the Supreme court heard —United States V. Thompson/Center Arms Co., 119 L. Ed. 2d 308 (1992). The state was attacking Thompson/Center Arms, Co. of selling short barreled rifles.
Thompson made a single-shot pistol called the “Contender”. The frame/receiver could have different barrels attached to it. Thus, you could buy a single pistol and have it in .22LR, .38 SPL, or almost anything else, just by changing the barrel.
Thompson then sold a different package. This consisted of a 21in barrel and a shoulder stock. The stock and barrel could be attached to the Contender frame/receiver, making a single shot carbine.
The state claimed, if the pistol and conversion package were sold to the same person at the same time, that Thompson was selling an SBR. Sounds like the Ghost Gun non-issue the ATF is doing now.
The Supreme Court held that Thompson had not made a firearm; therefore it wasn’t an NFA item. It was the act of putting the stock on the receiver with a short barrel that made an NFA item, not just having the pieces.
It reminds me a little of the ATF claiming that if you had any of the 6 magic M-16 fire control group parts, and you possessed an AR-15, there was constructive intent to have a machine gun, and you were in violation of the NFA.
So what is this all about?
MR. HALBROOK: Well, rim fire cartridge is the smallest cartridge made, and it only means that the firing pin hits the rim of the cartridge to make it go off, whereas most bigger calibers have a center fire which hits the primer —
—id. oral arguments
The question came from Justice Scalia. Justice Scalia was well versed in firearms. He was a shooter. He darn well knew what a “rim fire cartridge” was.
What he wanted, was for the attorney to put it in the record.
The Win?
On March 5, 2024, the Fourth Circuit court issued an order.
The parties are directed to file supplemental briefs specifically addressing the following issue:
The Bruen Court stated, Under Heller, when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.
—New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
The summary and two other places the Bruen court said this. It is absolutely clear that the first step is to determine if the plain text of the Second Amendment covers the conduct, that the conduct is protected, unless the state can show a history and tradition.
The burden to prove history and tradition rests squarely on the state. Proving the conduct is covered under the plain text of the Second Amendment is the burden of the plaintiffs (good guys).
So why is the court asking about “common use”. The reason is that the state wants to shift as much of the burden as possible onto the plaintiffs. It is that simple.
Nowhere in the Second Amendment does it talk about “in common use”. “The right of the people to keep and bear arms shall not be infringed.” Is it an arm? All firearms are arms. The M-16, AR-15, SKS, and Colt SAA are all “arms”. If I want to keep them, that is conduct protected by the Second Amendment.
The plaintiffs do not have to prove it is a protected arm. The state must prove that it is NOT protected.
But the state has a nearly impossible task, I hope it is actually impossible, in arms ban cases. In 2008, the Heller court did the analysis of history and tradition and found that there are NO regulations from the correct era that banned arms in common use.
The only bans the Heller court conceded might exist are bans on arms that are unusual and dangerous. And when they talk about “dangerous” they mean significantly more dangerous than just being a firearm.
If the arm is “in common use”, then it is not unusual. If it is not unusual, then it is not “dangerous and unusual”. If it is not dangerous, or it is not unusual, then it cannot be banned.
The “in common use” argument is a rebuttal to the state saying they have found history and tradition to ban arms.
The state will have a difficult time arguing that “in common use” is part of the plaintiff’s burden. The plaintiffs will have another opportunity to knock these silly state arguments down.
There has long been a tenet of the legal profession, and of common sense that, when serious matters are afoot, one does not ask a question in public to which the answer is not already known and, preferably, well established. A good courtroom jurist knows not only the law, in detail, but also possesses comprehensive language management skills and no small amount of psychology; how a question is posed, the words used, voice inflection, the interrogatories leading up the the question, knowledge of the respondent’s background, all form a platform for the respondent’s answer, and, to some degree, what objections may be raised by his or her opponent.
Managing a witness’ live testimony is very much 4-D chess and not a game for amateurs. Meaning, a very good jurist presupposes potential answers and does not just follow a script for questions, but within the structure and confines of the law and language designs and forms the entire interrogatory playing field, complete with yard markers and boundaries, including what information he wants the presiding judges, and jurors, and spectators in the gallery, to be aware, and have understanding, of. Done well, it is legal artistry.
And, as high art, the exclusive field of only a small cohort.
Common use and dangerous and unusual have always felt like such trojan horses to me.
The right answer of course is “shall not be infringed”. But given that lawyers are involved here — “men professionally trained in finding plausible excuses for dishonest and dishonorable acts” as Mencken once put it — a set of weaselwords that protects the RKBA most of the time is certainly a step in the right direction.
I take you point, and also that is precisely why, too much room for weaseling to be found in common use and dangerous and unusual.
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There is a good case to argue that machine guns are not in common use among the civilian populace and are not protected. Don’t think that Miller saying anything with a military use is explicitly protected would stop anyone from making that argument and hanging precedent on it.
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What weapon isn’t dangerous? Obscure automatically mean unusual. Maybe I can legally own a firearm of a certain type but not brass knuckles or a switch blade because those are dangerous and unusual (that are considered such in CT state law).
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We all know that the way the winds blow can change and thus the interpretation changes and what was once legal no longer is. There is plenty of precedent for this with how blacks were treated legally. Roe v Wade is another very recent example.
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I know I’m choir preaching here, but the sooner we get shall not be infringed to mean shall not be infringed, the better!
The Constitution has provisions for privately owned warships. Cannon were likely not in common use during the framing, but they were perfectly acceptable for private ownership.