Multiple states filed an Amicus Brief in the magazine ban out of the District of Columbia. They use the same old arguments. There are a few interesting bits of lawyering, things to pay attention too. All of this is designed to shave the corners of a square peg to get it to fit through the round hole authorized by Heller and upheld by Bruen.
(2350 words)

It gets tiring reading the same tired arguments from people that will not admit that what they want and what is Constitutional are two completely unique things.

Every one of these infringing bastards starts with some version of: The Supreme Court said that some infringements are allowed, this infringement is one of them. I’m just surprised that they haven’t mentioned straightjackets in the first paragraph.

Part of the problem is that the Supreme Court has said that reasonable firearms regulations” can exist within the protections of the Second Amendment.

the States have adopted a variety of restrictions on weapons and accessories that are not in common use for self-defense.Andrew Hanson v. DC, No. 23-7061 (D.C. Cir.) What is this “reasonable firearms regulation”? A complete ban on magazines holding more than ten rounds.

As has been pointed out by multiple sources, the fact that the states can’t decide what the round limit should be, indicates it is arbitrary.

the District’s LCM provision preserves the right of law-abiding, responsible citizens to use firearms for self-defense.id. The interesting part of this is that they cite to Heller II. The state claims that parts of Heller II were abrogated by Bruen.

This, of course, means that they get to keep whatever they want.

District’s LCM law “does not effectively disarm individuals or substantially affect their ability to defend themselves”).id. quoting Heller II

I bring you Heller:

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.
District of Columbia v. Heller, 467 U.S. 837, 2818 (2008)

The state is arguing, again, that if they give you a 1 round magazine, your rights are not infringed.

The state makes the ridiculous claim that magazines are not arms under the plain text of the Second Amendment: Large-capacity magazines are not “Arms” under the plain text of the Second Amendment because they are not commonly used, nor are they useful, for self-defense.Amicus Brief: Andrew Hanson v. DC, No. 23-7061 But that is not the standard. The standard is “in common use today”. Nothing at all about “self-defense”.

Even though many of the laws regulating magazines define them as “ammunition feeding devices”, the state now calls them “container accessories”.

They continue with conflate fire regulations with arms bans, use regulations with arms bans. Even though the Supreme Court has already discounted these types of historical regulation, the state continues to try to use them.

They point to Heller not striking the NFA as proof that they can ban magazines, semi-automatic rifles, or anything else their little (evil) hearts desire.

Occasionally, I get overwhelmed by the verbiage. Yes, I know I am a wordy bastard. I just realized that the state has just spent four pages telling the court that “lots of other people do it!” The Constitution is not a popularity contest. You don’t get to poll a 1000 people on what they think the Constitution means.

That pool was taken when the Constitution was adopted and again when each amendment was adopted. If 99 out of 100 people want something that is unconstitutional, that doesn’t make it constitutional. The constitution is there to protect The People from the mob.

You just know they are cheating when you see additions and subtractions from quotes. Here is the quote from the state’s argument:

The Second Amendment’s “plain text” does not protect using LCMs because under the Amendment’s “normal and ordinary meaning” when it was ratified, LCMs are not bearable arms, and because LCMs are not “common[ly] use[d] today for self-defense.” Bruen, 142 S. Ct. at 2126-27, 2134 (internal quotation marks omitted).
id. at 9

The state claims their quote of 5 words can be found on 3 different pages of the Bruen opinion. In addition, the removed internal quotation marks.

Let’s see if we can take a guess at what the original might have looked like: “common use” today for self-defense. Hmm. Just what did Bruen say?

Nor does any party dispute that handguns are weapons “in common use” today for self-defense.
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, 2134 (U.S. 2022)

Do you think the addition of some letters and removal of quotation marks changes the meaning of the text? I do.

The state twists words like they were playing Twister with a bunch of collage girls in short skirts. Just as bullet-holders like cartridge boxes were considered accoutrements and not arms historically, the same is true for bullet-holders like LCMs now.Amicus Brief: Andrew Hanson v. DC, No. 23-7061, slip op. at 10

You see, magazines aren’t required components of semi-automatic firearms. They are ammunition feeding devices, as the state claimed yesterday. No, they are “bullet-holders”.

They have flat out made up a new term, just so they can claim magazines are not protected under the plain text of the Second Amendment.

I like listening to Mark Smith talk about these cases. I sometimes wonder if he reads my stuff before doing a video, correcting or expanding on a subject I’ve written about. One of the many things he points out is that when the state is on shaky ground, you hear them say things like:

Even if this Court were to assume that LCMs are arms rather than accoutrements, the Second Amendment does not protect their use for another, independent reason: LCMs are not “‘in common use’ today for self-defense.” Bruen, 142 S. Ct. at 2134 (quoting Heller, 554 U.S. at 627).
id. at 11

Note how they have restored the original text here. This is the same quote they used above.

The state is arguing, here, that the test is “in common use for self-defense”. The Supreme Court made it clear in Heller that it is “in common use”. There is no restriction to “for self-defense”.

Hagar and others pointed out to me that I’m starting to omit parts in my articles. I read something and then write it here with a ton load of context attached to it. If you don’t have that context, it doesn’t mean anything.

One of the things that I read today, is where they are citing. If they are citing to inferior courts, this means that they don’t have good case law. Good case law comes from the Supreme Court, this appellate court, and sister appellate courts.

Opinions from district courts that are being appealed are weak references, at best.

Here is what brings this about:

See Friedman v. City of Highland Park, 784 F.3d 406, 409 (7th Cir. 2015) (“[I]t would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so that it isn’t commonly owned.”).
id. at 12

This is much better case law than a district court opinion, except I recognize FriedmanFriedman v. City of Highland Park, Illinois, 784 F. 3d 406 (7th Cir. 2015). This is the case that went before Circuit Judge Easterbrook of the Seventh Circuit Court back in 2015. This is where he made means-end case law for the Seventh Circuit. He is also the judge who is currently blocking the appeals in the Seventh Circuit court.

This went up to the Supreme Court, where certiorari was denied. Justice Thomas dissented, writing multiple pages slamming the Seventh Court of Appeals.

The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits. See 784 F.3d, at 411-412. The court conceded that handguns—not “assault weapons”—”are responsible for the vast majority of gun violence in the United States.” Id., at 409. Still, the court concluded, the ordinance “may increase the public’s sense of safety,” which alone is “a substantial benefit.” Id., at 412. Heller, however, forbids subjecting the Second Amendment’s “core protection … to a freestanding `interest-balancing’ approach.” Heller, supra, at 634, 128 S.Ct. 2783. This case illustrates why. If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.
Friedman v. City of Highland Park, Ill., 136 S. Ct. 447, 449 (2015)(Justice Thomas, dissenting)

The cases at the Seventh Circuit waiting for their opinion asks directly, “Is Friedman still good law?”

Here is another example of lawyer speak that doesn’t really mean what you might think it means:

Bruen itself offered an example of such liquidation: while the Second Amendment’s text does not speak directly to the constitutionality of laws prohibiting firearms in sensitive places, the Court was “aware of no disputes regarding the lawfulness of” such enactments during the eighteenth and nineteenth centuries, so the Court “assume[d] it settled that” governments can constitutionally prohibit firearms in certain sensitive places. 142 S. Ct. at 2133.
Amicus Brief: Andrew Hanson v. DC, No. 23-7061, slip op. at 16

We’ve talked about “The Question” in multiple articles. The gist is that a court is asked to answer a particular question(s). They do not answer questions outside the stated question.

The Supreme Court will often look at the questions presented to them and reword or restate the question they will answer. This happens at the Circuit Court level as well.

When the Supreme Court says they are “aware of no disputes regarding the lawfulness of”, they are saying, “We have not been briefed on this question, we have not heard arguments on this question”. They are not saying there are no disputes. They might be well aware of disputes, those disputes are not before them. It would be improper for them to say anything, one way or the other.

When the Court said we “assume it settled that”, that is precisely what it means. They are assuming. They are not granting their approval on the assumption.

The state is very big on reading important meaning into things that were not said.

This next quote takes some work to parse and understand:

Heller, the Court characterized laws that originated in the twentieth century—among them, laws banning people with felony convictions or mental illness from possessing weapons—as “longstanding” and “presumptively lawful.” 554 U.S. at 626-27 & n.26; see United States v. Booker, 644 F.3d 12, 23-24 (1st Cir. 2011) (“[T]he modern federal felony firearm disqualification law … is firmly rooted in the twentieth century.”).
id. at 17

The state is fighting to find historical regulations supporting their current infringement. There are no such regulations from the 1700s. There were such regulations until maybe the later part of the 1800s, when they were put in place in the south as racists disarmament laws.

But they need to reach all the way into the 1900s to find the type of analogous regulation they need.

We all get bombarded with ads that suggest we look at a series of images with explanation text. Often these are just clickbait. You get to see one image, four score ads, and a “next” button to repeat the process. I’ve started reading articles at BoredPanda because they put all the images on one page, you can read the accompanying article or just ignore their text. It is a fun read covering many subjects.

A type of article that gets me is history articles. “Things from the past that will shock you!” or “Surprising things from history”

I hereby submit that anything that happened 20 years after I was born does NOT count as “the past” or “history”. And stop putting my childhood memories in black and white!

One meme I read puts this in perspective, Joe Biden was born closer to Lincoln’s inauguration than his own.

The Supreme Court has emphasized that twentieth century regulations are not part of the history of regulations. This above quote is there to refute the Supreme Court. The state has pulled three words to conjoin “longstanding” with “twentieth century regulations”.

Since the Supreme Court didn’t strike down laws prohibiting felons from possessing firearms, and they said “longstanding” near that part of dict AND because prohibited person regulations didn’t come into effect until the twentieth century, the Supreme Court must have meant the twentieth century to be included in “longstanding”.

This is good lawyering. It is the sort of thing that the court can use to support going rogue.

The state argues that a lack of analogous regulations means that they can regulate magazines. See, The People didn’t have access to magazines, so there was no reason to regulate them. Now that they are here, and exist, it is the state’s job to regulate them. The founding fathers would have regulated them if they had just known about them.

This Court thus may, and should, consider nineteenth- and twentieth-century practice in assessing Second Amendment challenges to state and municipal laws.id. at 19

I was once reading about psychiatrists prescribing medication to patents. Many people do not wish to take meds for mental issues. They don’t think it will be helpful. They fear the meds, whatever the reason, there is often strong push back.

The psychiatrist will frequently say, “there are some people who just have a chemical imbalance in their brains. Of those people, medication is required”.

This is a true statement. Something less than 3% of psychiatric patents have chemical imbalances. Most of the patents that are on medication will claim that they are part of that 3%. You can’t have more than 50% of a population belonging to the 3%.

In every one of these cases, the state claims that the issue their law addresses is part of an “unprecedented societal concern or dramatic technological change”. Thus, the state reasons, they demand that the court use a more “nuanced” approach.

In plain language, the state is begging the court to let in regulations that are not actually analogous.


District of Columbia v. Heller, 467 U.S. 837 (2008)
Friedman v. City of Highland Park, Illinois, 784 F. 3d 406 (7th Cir. 2015)
Friedman v. City of Highland Park, Ill., 136 S. Ct. 447 (2015)
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
Andrew Hanson v. DC, No. 23-7061 (D.C. Cir.)

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One thought on “Andrew Hanson v. DC Amicus Briefing (magazine ban)”
  1. Excellent commentary and I can not begin to fathom how someone can look at the amount of standard capacity magazines in public hands and begin to claim they are not in common use.

    But I suppose that is why they refuse to define in common use even though in my mind and many others mind Heller set it at a definite number.

    Can they produce numbers of self defense situations where reduced capacity magazines are used vs standard? Can they poll the person involved in the event and ask, would you have liked a standard capacity magazine?

    I understand the very careful use of words and passive usage attempting to present their opinion as widely accepted fact instead of an arguement.

Only one rule: Don't be a dick.

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