As we have discussed, multiple times, the courts are only allowed to act when there is an active dispute. This is most often seen in “The Question” put to the court.

The formation of those questions can make or break a case.

As cases move through the appeals process, the parties will state the question in the most favorable light to that party.

The state might say: The question is whether the state has the authority to regulate the sale of dangerous implements?

The People might phrase it as: Does the Constitution protect The People’s right to acquire arms?

Part of the problem is that we all fall into the trap of using the enemy’s language. When we do, we have lost at least part of the battle, and maybe the war.

Judge VanDyke wrote a powerful dissent in Duncan. In that dissent, he wrote about how the courts should analyze Second Amendment cases. His answer, to the Ninth Circuit, was that they should use strict scrutiny.

We have learned that the correct answer is we use the text and this Nation’s historical tradition of firearms regulation.

When we use text and history, we win.

What this means, is that we should never be fighting for strict scrutiny. Any level of scrutiny is a request for the judiciary to balance away our rights.

Questions Presented

  1. Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with semiautomatic firearms that are in common use for lawful purposes.
  2. Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with ammunition magazines that are in common use for lawful purposes.
  3. Whether enforcement of Illinois’s semiautomatic firearm and ammunition magazine bans should be enjoined.

Harrel v. Raoul

The question(s) should not have are in common use for lawful purposes. The reason is simple, that is not what the plain text of the Second Amendment says. It says, “shall not be infringed.”

Remember, it is text first. Does the conduct of the individual, wishing to possess semiautomatic banned by Illinois, implicate the plain text of the Second Amendment and if so, has the state provided examples of firearms regulation in keeping with this Nation’s historical traditions?

Now, my phrasing isn’t the best. I hope you get the idea. When we simplify the question (K.I.S.S.) then it becomes clear that this isn’t about “lawful purposes”, nor is it about “law-abiding”, nor “responsible” citizens. It is text, and historical tradition of firearms regulations.

The state has not met their burden of proving that historical tradition.

For context, here is the state’s response:

Question Presented

Whether petitioners are entitled to a preliminary injunction on their claim that state and local laws restricting civilian possession of assault weapons and large-capacity ammunition feeding devices violate the Second Amendment.

Notice that the question presented by the state has nothing to do with the constitutionality of the law in question, it is about the interlocutory state of the case.

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By awa

One thought on “Ask The Right Question”
  1. Einstein said many things of note, but a couple seem pertinent; one was “Make things as simple as possible, but no simpler,” and the other was he was reported to have said that if he only had one hour to solve a problem he would spend 55 minutes defining the problem and the remaining 5 minutes solving it routinely.

    To that end, I’ll ask “how is the word ‘infringement’ defined?” Is there a simple, basic definition of ‘infringement’ that can be accepted universally? I would think that once a universally accepted definiton of infringement was established the “simple but no simpler” principle would come into play: ‘Does this action/law/ordinance/policy constitute an ‘infringement’ by the accepted universal defintiion of the word? If so, the Constitution forbids it by the coupled use of the words “shall’ and ‘not’.

    Now, if the definition of a word, any word, is so randomly flexible as to be indistinguishable from “maybe,” “kinda sorta,” “sometimes,” or “only if / when,” then the problem is considerably greater, likely insoluable, and there’s no part of the founding document – or even a rental or sale contract – that’s sufficiently reliable to be of any value.

Only one rule: Don't be a dick.

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