Legal Court Dunce
A rogue, agenda driven, judge in Massachusetts finds that “Assault Weapons” and “Large Capacity Magazines” can be banned because the Supreme Court didn’t thing “common use” through.

And besides, they are dangerous, so they can be banned.
(3600 words)

Just skimming through the first part, which for the most part is the background of the case, the following sticks out

Plaintiffs contend that “assault weapon” is “a rhetorically charged political term meant to stir the emotions of the public.” (Pls. Mem. ¶ 1). They propose using the term “banned firearm” instead. Because the First Circuit used the term “assault weapon” to refer to the same statute in Worman v. Healey, 922 F.3d 26 (1st Cir. 2019), this memorandum and order will follow suit.
Capen v. Campbell, No. 1:22-cv-11431, slip op., n. 3 (D. Mass.)

It is always a sign of a rogue court when they find a reason to use “assault weapon”. This is worsened because they cite to a First Circuit court case from 2019, before Bruen.

The court then correctly cites Winter for the factors in granting a preliminary injunction. The takeaway, for me, is that they cite to Ryan v. U.S. Immigr. & Customs Enf’t,974 F.3d 9, 18 (1st Cir. 2020) as the First Circuit’s Winter equivalent.

The gist of both Winter and Ryan v. Immigration & Customs Enforcement is that the court needs to evaluate if the movant is likely to prevail on the merits. Both cases say that if the movant is not likely to win on the merits, that is where the court should stop.

The twisting and turning begins

Heller interpreted the Second Amendment as having two constituent parts: a prefatory clause (“A well regulated militia, being necessary to the security of a free State”) and an operative clause (“the right of the people to keep and bear Arms, shall not be infringed”). Id. at 579, 595. Interpreting the latter, the court ruled that the term “arms” applied “to weapons that were not specifically designed for military use and were not employed in a military capacity.” Id. at 581. It also confirmed the holding in Muscarello v. United States, 524 U.S. 125 (1998), that to “bear arms” meant to “wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.” Id. at 584.
id. at 5

When reading citations from rogue judges, it is imperative to verify every claim they make. They will lie by omission, and they will lie with false emphasis.

Here is the paragraph from Heller immediately preceding the court’s citation:

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “[w]eapons of offence, or armour of defence.” 1 Dictionary of the English Language 106 (4th ed.) (reprinted 1978) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “anything that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary; see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
District of Columbia v. Heller, 467 U.S. 837, 581 (2008)

The Supreme Court has given the definition of “arms” here. “Weapons of offence or armor of defense” and “anything a man wears for his defense or takes into his hands to strike at another” (language cleaned, see above for original).

In Miller the Supreme Court looked at text, history, and tradition, and found that the NFA was constitutional, as applied to short barreled shotguns because short barreled shotguns were not designed for military use and were not employed in a military capacity.

So Heller continued:

The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, § 6, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42 Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (3d ed. 1794) (emphasis added).
id. at 581–82

This is the paragraph the court pulled from. His interpretation of the pulled passage does not match mine. Nor do I think it matches what the Supreme Court meant. This paragraph seems to be telling the inferior courts that Miller‘s limitation to military weapons was not the correct understanding of “arms”.

To make that clearer to the inferior courts, Heller continued:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
id. at 582

Emphasis added.

I suppose that if one is myopic enough, blinded by their agenda, they could pick out the sentence that can be misinterpreted and omit the clear statement.

And you have to love it when they hide language from a dissent.

Unlike the Court, I do not think dictionaries, surveys of press reports, or the Bible tell us, dispositively, what “carries” means embedded in §924(c)(1). On definitions, “carry” in legal formulations could mean, inter alia, transport, possess, have in stock, prolong (carry over), be infectious, or wear or bear on one’s person.[5] At issue here is not “carries” at large but “carries a firearm.” The Court’s computer search of newspapers is revealing in this light. Carrying guns in a car showed up as the meaning “perhaps more than one-third” of the time. Ante, at 129. One is left to wonder what meaning showed up some two-thirds of the time. Surely a most familiar meaning is, as the Constitution’s Second Amendment (“keep and bear Arms”) (emphasis added) and Black’s Law Dictionary, at 214, indicate: “wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.”
Muscarello V. United States, 141 L. Ed. 2d 111, 142–43 (1998) Justice Ginsburg, dissenting

This is the cite in Heller. We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.Heller, 467 U.S. at 584.

This rogue court has totally missed the target. Of course, he wasn’t aiming at the target, his goal was to miss.

It’s not unlimited!!!!

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. 285 (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.
id. at 595

We have heard this for every infringement offered up by every legislator intent on stomping on the rights of The People. We hear it repeated by the state so often we just shake our heads in disgust, move on to the next stupid thing the infringers are going to say.

Let’s take a moment to look at some operative clauses in this passage. How about Before turning to limitations upon the individual right?

This seems to indicate that this passage does not stand on its own. There is clarifying language to follow.

How about the speak for any purpose? It would seem to indicate that there are purposes for which speech can be limited. There is. Defamation is illegal. So is libel and slander.

There are also limits on inciting violence. Those purposes can cause the speech to fall outside the protections of the First Amendment.

Applying the same logic to “carry arms for any sort of confrontation“? What could that mean?

How about carrying your arms to commit murder? That seems to be a purpose that falls outside the protection of the Second Amendment. So would “going armed to the terror of the people.” This is the act of intentional terrorizing the people.

A bunch of cowboys riding into town with rifles and pistols holstered is not “going armed to the terror of the people”. Having the same cowboys ride into town with rifles and pistols in hand, pointing them at people, is terrorizing the people.

Going armed to the terror of the people certainly does not mean having a pistol concealed on your person that nobody sees.

So what did the Heller Court say about the limitations on individuals’ protected right to keep and bear arms?

…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms
id. at 626–27

Ok, in Heller they said that nothing in Heller cast[s] doubt Interestingly, while they support §922(g)(1) and §922(g)(4), they said nothing about §922(g)(2,3,5,6,7,8, or 9). Now isn’t that interesting to consider in light of so many cases challenging §922(g)(3), §922(g)(8), and §922(g)(9).

Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” …
id. at 627

Weapons in common use at the time are protected. There is a tradition of prohibiting the carrying of “dangerous and unusual weapons.”

This is the core of Heller.

It gets better: It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory

If I’m reading this correctly, every one of those infringing fascists that claim that weapons that are most useful in military service can be banned, because of what Heller said, have had to pull the quote out of context.

It may be objected is saying that other might say this. It is not saying we are saying it. This would be the equivalent of somebody saying that AWA said, “assault weapons can be banned” because I quoted some rogue judge as saying those words.

Back to the nonsense the district court spouted

The court specifically clarified that one of the limitations of the Second Amendment is that it “extends only to certain types of weapons.” Id. at 623. Among other things, the court discussed its decision in United States v. Miller, 307 U.S. 174 (1939), where the court “upheld against a Second Amendment challenge two men’s federal indictment for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act.” Heller, 554 U.S. at 621-22. The court emphasized that the basis for the Miller decision was not that the defendants had been carrying the shotguns for “nonmilitary use,” but that “the type of weapon at issue was not eligible for Second Amendment protection …” Id. at 622.
#62 Capen v. Campbell, No. 1:22-cv-11431, slip op. at 6

There is a complete section in Heller that discusses the limitations of the Second Amendment. It starts halfway down page 626. While the words cited are in the opinion, it is not part of the Supreme Court’s discussion on the limitations of the Second Amendment.

The Courts “basic Principles”

Second, the regulation of certain types of weapons is permissible. See Heller, 554 U.S. at 623 (“Miller stands … for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.”). Some firearms may be regulated either (1) because they are not in “common use”—that is, not “typically possessed by law-abiding citizens for lawful purposes,” like self-defense—and therefore fall outside the scope of the Second Amendment, or (2) because they are historically subject to regulation, such as “dangerous and unusual” weapons. Heller, 554 U.S. at 625-28. Heller made that clear, and nothing in McDonald, Caetano, or Bruen altered, or even cast doubt on, that basic proposition. See, e.g., Bruen, 597 U.S. at 21 (quoting Heller, 554 U.S. at 627) (reiterating that there are historical analogues for regulating “dangerous and unusual” weapons).
id. at 12

This is an amazingly complex way of inverting the logic of Heller. Instead of saying, “firearms may not be regulated if they are in common use today”, the court used the negative form, multiple times.

“May be regulated” “not in common use” “not typically possessed by” are all negatives. This is meant to confuse the reader and hide a logic error.

In logic, there is DeMorgan’s Law. It explains how to negate a logic expression. If Miguel is armed AND J.Kb. is armed AND AWA is armed THEN all are armed. END.

What if we wanted to invert that logic. “If NOT (M == A AND J == A AND AWA == A) THEN all are unarmed END”. That might be difficult to read, so we expanded it.

IF NOT M==A AND NOT J == A AND NOT AWA == A THEN all are unarmed END. is incorrect. It looks right but it not. The correct version is “NOT M==A OR NOT J == A OR NOT AWA == A”.

This judge is using those negative statements to slip in “or because they are dangerous and unusual weapons”

We need to be on our guard now.

Fifth, handguns are the “quintessential self-defense weapon.” Heller, 554 U.S. at 629. It seems likely, therefore, that legislatures have some greater degree of latitude when regulating firearms that are not handguns.

This is another profound error by this rogue judge. There is nothing in any of Heller, McDonald, Caetano, or Bruen that suggests that the Second Amendment should be analyzed differently for rifles than for handguns.

The under pinning of his abuse of The People

Both Heller and Bruen stated, in multiple contexts, that the Second Amendment applies to firearms that are “in common use.” See, e.g., Heller, 554 U.S. at 627 (“Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”); Bruen, 597 U.S. at 32 (“Nor does any party dispute that handguns are weapons ‘in common use’ today for self-defense.”). That has led to considerable confusion among courts and commentators over the meaning and application of the phrase “in common use” and the interplay between the phrases “in common use” and “dangerous and unusual” weapons.
id. at 13

It has only led to confusion when a rogue court wants to allow abuses of the rights of The People.

Heller analyzed the language of the Second Amendment to put shut the lie that the Second Amendment only applied to Militias. The state argued that the Second only applied to militias. The common militias had all been banned or become part of the National Guard. The National Guard was under the control of the state.

Thus, the only entity that had standing to challenge a regulation on Second Amendment grounds was the Militia, i.e., the state.

The Heller Court then confirmed the methodology of Miller, that you first look to the plain text of the Second Amendment, then to history and tradition.

Finally, they used text, history, and tradition to analyze the question before them, D.C.’s ban on handguns.

As part of that analysis of the handgun ban, they did all the heavy lifting and found that arms in common use today cannot be banned.

I call this the Heller shortcut.

If we are considering a ban of an arm, the inferior court need only ask, “Is this arm in common use today?” If the answer is “Yes”, then the case is finished, with the ban being found unconstitutional.

If the answer is “no”, then the Government has the burden of proving a history and tradition supporting their modern regulation.

Plaintiffs contend that if a weapon is popular—that is, if thousands or even millions of copies of that weapon have been sold—then, by definition, it is “in common use” and is protected by the Second Amendment. Put simply, in their view, if a firearm is currently in “common use,” its sale and possession are protected and no further analysis is required.
id. at 13–14

Well, that is what the Heller Court said. Then in Caetano the Supreme court put an upper limit on the number of arms in circulation to be considered “in common use today” at 200,000. If there are more than 200,000 of an arm in use by The People for lawful purposes, it is protected by the Second Amendment.

Whatever the meaning of “common use,” that contention cannot be correct. Such a rule would lead to a host of absurd results. Among other things, the constitutionality of the regulation of different firearms would ebb and flow with their sales receipts. Weapons that unquestionably would have been considered within the ambit of the Second Amendment at the time of ratification (such as a smooth-bore, muzzle-loading musket) would lose their protection because of their relative rarity today. Conversely, an entirely novel weapon that achieved rapid popularity could be rendered beyond the reach of regulation if innovation and sales outstripped legislation. See Kolbe v. Hogan, 849 F.3d 114, 141 (4th Cir. 2017) (under the “popularity” approach, any “new weapon would need only be flooded on the market prior to any governmental prohibition in order to ensure it constitutional protection”).
id. at 14

This is just plain duplicitous. There are certainly more than 200,000 smooth-bore, muzzle-loading muskets in common use today. Just one site I visited showed that they had sold over 10,000 muzzle loaders.

There are dozens, if not hundreds, of companies that are producing and selling muzzle-loading firearms. I own a couple.

They are in common use today, for lawful purposes. Regardless of what this deceitful judge says.

Kolbe is under review by the Fourth Circuit court. The Supreme Court GVRed a case that depended on Kolbe, Kolbe is bad case law, the infringers have just not acknowledged it yet.

The state does not get to decide, a priori, that an arm is too dangerous for The People.

This judge is saying, explicitly, that the “in common use today” method can’t be used because the government couldn’t respond rapidly enough to ban new arms before they were protected.

Moreover, the constitutional analysis would be trapped in an infinite circularity: a weapon may be banned because it is not in common use, and it is not in common use because it is banned. See Worman, 922 F.3d at 35 n.5 (citing Friedman v. City of Highland Park, 784 F.3d 406, 409 (7th Cir. 2015) (acknowledging that assessing the constitutionality of firearms legislation based on “how common a weapon is at the time of litigation would be circular”)).

Finally, that proposed application of a “common use” standard would effectively ignore an important underpinning of Bruen: that the meaning of the Second Amendment should be grounded in text, history, and tradition, not shifting modern attitudes, and that its protection should be categorical. See Bruen, 597 U.S. at 79 (Kavanaugh, J., concurring).

Friedman is an abysmal case out of the Fourth Circuit that is currently being challenged. It is the Seventh Circuit’s equivalent of the Fourth Circuit’s Kolbe. Additionally, the Supreme Court has opinions that refute that circular argument. The reality is that a state can ban something based on it being uncommon, when it is uncommon because the state has banned it.

And with that final paragraph, this inferior court shows why this judge is using inferior logic. “In common use today” is the shortcut. That shortcut has done the text, history, and tradition analysis for the imbeciles that can’t follow instructions.

Hey Dennis, put the paste down, you know you aren’t supposed to be eating it. And no, you shouldn’t eat the Crayons. It will make the Marines upset if you eat their treats. Now Dennis, pay attention, eyes on me. What’s 2 + 2? If you don’t know, remember it is up on the wall.

Hey Judge Dennis Saylor, the answer is posted on the wall. If it is in common use today than it can’t be banned.


National Firearms Act, 48 1236 (U.S. 1934)
Unlawful Acts, 18 U.S.C. (U.S. 1968)
Slaughter-House Cases, 83 U.S. 36 (1873)
United States V. Cruikshank, 92 U.S. 542 (1876)
United States V. Miller, 307 U.S. 174 (1939)
Minneapolis Star & Tribune Co. V. Minnesota Commissioner of Revenue, 75 L. Ed. 2d 295 (1983)
Staples V. United States, 128 L. Ed. 2d 608 (1994)
Muscarello V. United States, 141 L. Ed. 2d 111 (1998)
District of Columbia v. Heller, 467 U.S. 837 (2008)
Winter V. Natural Resources Defense Council, Inc., 172 L. Ed. 2d 249 (2008)
Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010)
Ezell v. City of Chicago, 651 F. 3d 684 (7th Cir. 2011)
Rhonda Ezell V. City of Chicago, 651 F.3d 684 (2d Cir. 2011)
Friedman v. City of Highland Park, Ill., 136 S. Ct. 447 (2015)
Caetano v. Massachusetts, 136 S. Ct. 1027 (2016)
Kolbe v. Hogan, 849 F. 3d 114 (4th Cir. 2017)
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)
Capen v. Campbell, No. 1:22-cv-11431 (D. Mass.)
Dominic Bianchi v. Brian Frosh, No. 21-1255 (Court of Appeals)

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