B.L.U.F.
The state dances around “in common use” because they fear it. They even explain why it can’t be used. If it was used, then they would lose.
(1650 words)

Ok, the state starts with a clear, concise, and correct statement of Heller‘s text, history, and tradition methodology.

When a circuit court issues an opinion, it can be cited in other cases. Here, the state is referencing an opinion from the Seventh Circuit, which said that it was the plaintiff’s burden to prove that something is an arm.

This is pure sophistry. The Seventh Circuit is saying something true to hide the false premises that will come later.

In order for the Second Amendment to presumptively protect a conduct, that conduct must fall within the scope of the Second Amendment. Thus, the object must be an Arm. The conduct must have something to do with keeping or bearing that arm.

“Is it an arm?” is the first question to be asked. The Seventh Circuit stated that correctly. The state states that correctly here.

The state then begins its dance. [T]he the Supreme Court in Heller explored the parameters of what constituted an “arm” such that it would fall within the protections of the Second Amendment. —id.
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A while ago I brought “Strange Fruit” by Nina Simone to Tuesday Tunes.

It was a hard listen, not because of the skill of the singer, but because of the subject.

Here is her impeccable voice in something a little lighter.

(1150 words)
“6 keys to safe storage of firearms, from the experts” —No. 104 Dominic Bianchi v. Anthony Brown, No. 21-1255 (4th Cir.) came across my feeds. I didn’t expect much, but I went to read, just to have some fodder for the blog.

The first step is to identify the “experts”. The link to “experts” takes us to a single associate professor with a Ph.D. in Public Administration. Her dissertation was Assessing the Role and Impact of Public Policy on Child and Family Violence..

Her undergraduate degree was in Sociology.

So soft science. She may or may not have any real statistical background. She is a pure academic, never having worked outside the education industry.
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Heller tells us that the proper way to look at a Second Amendment Challenge is to first determine if the proposed conduct is within the scope of the plain text of the Second Amendment. If it is, then the burden shifts to the state to prove a history and tradition of equivalent regulations.

When looking at equivalent regulations, the regulation must be a regulation. This means that policies, rules and “norms” are not applicable.

If a school had a policy banning firearms on campus in the 1790s, that is not a regulation. It does not support a history and tradition of regulation.

The regulation must be a match in the how and why as well.

Banning more than 5 pounds of black powder within the city walls is not a match in the “why” to a modern limit on ammunition within the home. Those bans, from the 1700s, were fire regulations. The ban was to keep fires from spreading and perhaps starting. At no time were those bans to protect people from the “evils” of firearm ownership.

The how must also match.

If the state cannot provide analogous regulations from the founding era that are a match in “how” and “why”, the state has failed to meet its burden and the modern regulation is unconstitutional.

The lack of such laws does not mean that the rules are loosened. It means that the state failed to meet its burden.

The First Circuit recognizes, and quotes, the Supreme Court in describing, text, history, and tradition. They even discuss how they “how” and “why” must match.

Wait, what?

The First Circuit presumed that magazines were arms without saying they were. This means that the plaintiffs have met the “arms” part of the Second Amendment.

The plaintiffs have shown that they wish to possess and carry magazines, and thus they have also met the “keep and bear” part. This means that the plaintiffs have met their burden. It is now the burden of the state to prove history and tradition.

Nowhere in Heller does it mention burden as being part of the process. It is never a question of how much rape. It is only “was there rape” or “was there not rape”. The state should never be asking, “Just how much were you raped, Mrs. Jones? Was it just a little? Was it a lot? How much raping actually occurred?”

The courts should never, ever, accept an argument about “how much were you raped?”

Yet, that is what the First Circuit does. … might burden the right of armed self-defense, … is means-end.

The Bruen Court explicitly stated that interest balancing happened when the amendment was adopted and that the courts cannot do it today. “One step too many”, is how Justice Thomas put it.

The First Circuit finds it reasonably follows that banning them imposes no meaningful burden on the ability of Rhode Island’s residents to defend themselves. —id.

The First Circuit Court then reasons that since the “burden” is the same, that is somehow the equivalent to “how” or “why”. Yet, the First does think that because there is little burden and that there were other regulations in the 1800s and 1900s that were allowed, that this is a match.

The circuit then uses the NFA and Bowie knife restrictions as a match. Except that Bowie knife restrictions were never bans on possession. They were all carry laws. This is an outright ban.

They then go into the standard arguments. More like an M-16 than not. Military like and so forth.

This is a situation where the court decided this wasn’t an arms ban because they said so. Since it wasn’t an “arms ban”, they were allowed to do the history and tradition research and did not have to comply with Heller in common use test.

Notice the ratchet here. The court had to keep this away from being an arms ban, so they did not have to deal with the open-and-shut aspects of “in common use”.

Once there, they use regulations that come much too late, claiming that they are allowed to use the NFA as an example of history and tradition because Heller and Bruen did not strike it down.

In A Win for the 2nd?, I wrote about how the Fourth Circuit court has ordered the parties to brief them on when “common use” comes into play under Bruen.

Some comments talk about “in common use” being an issue for us. It is not.

Consider a startup company that introduces a new shell. For sake of argument, let’s call it the “Worm Breath.” When this shell is fired out of a standard shotgun, it puts out a visible flame 20 yards long.

The rogue, infringing states leap into action and ban “Worm Breath.” The legislative findings are that it is extremely dangerous and has no reason to be in the hands of civilians.

A 2A group finds a front person and sues.

Under Bruen the 2A group has to prove that “Worm Breath” is an “arm” under the plain text of the Second Amendment and that a member wishes to keep or bear it.

That is it. There is nothing in that requirement that touches on “common use”.

The state then has the burden of proving a history and tradition of banning things like “worm breath”.

They immediately talk about how this is a unprecedented societal concerns or dramatic technological changes —No. 104 Dominic Bianchi v. Anthony Brown, No. 21-1255 (4th Cir.) and a more nuanced approach—id. is required.

That is, if they are in an honest court. If, instead, they are in a dishonest court, they claim that “worm breath” is not in common use and can be banned.

It doesn’t work that way. “In common use” is of use only to us. Never to the state.

The Heller court did the analysis of history and tradition and found that there is no history and no tradition of banning arms that are in common use.

In order for the plaintiffs to prevail in an arms ban case, they only need to say, “It is in common use.” if there are more than 200,000 of that arm in use.

If the manufacture of “Worm Breath” can show that more than 200,000 rounds have been sold, then “Worm Breath” is in common use and cannot be banned.

What if the manufacture cannot prove to the court that they have sold more than 200,000 rounds? Nothing happens.

The state still has the burden of proving that there is a history and tradition of regulations banning “arms” of this type.

“In common use” is a one-way ratchet, in our favor.

Yes, the state wants to make it go the other direction. Yes, the state wants the burden of proving “in common use” to rest on the plaintiffs. Yes, the state wants to negate the meaning.

What the state wants and what the Supreme Court has said are two extremely diverse things.

Two weeks ago, I wrote last week’s Friday Feedback. I was about to travel to visit my parents for the first time in years to say goodbye. I knew it was going to be hard, I wrote assuming it would be, scheduled it and planned to correct if I was wrong.

It was a hard week.

This week was harder.

That is at a personal level.

At a more 2A level, I have been thinking about where we are today vs. where we were in years past.

I turned 18 and could have purchased an M-16. The tax stamp would have accounted for 25% of my costs, not counting the other hoops. It wasn’t worth it to me. I wasn’t interested in firearms. I was into stereos, music, and knives.

In 1986, it became prohibitively expensive to purchase a machine gun. All because of an amendment to a bill attempting to protect gun owners. I was pleased that we could not travel throughout the states without being at risk for having a gun in the wrong state.

Little did I understand how that wasn’t really true.

Nor did I understand that machine guns would become so expensive.

When I purchased my first firearms, I was surprised to learn how hard it was to get a permit to carry my firearm with me.

Today, every firearm I own has a holster for it OR a sling if it has sling mounts. At the time, most gun stores in my area didn’t even bother to carry holsters. There were a few, but so few people ever carried a handgun that it wasn’t a good use of shelf space.

I remember listening to the horror stories about how people were having their rights stomped on because they had no standing. Only the militia had standing.

What I remember most vividly was the Heller decision. It was the end to this crap about not having standing. It meant that the rollback of all these infringements was just a few months away.

I believed that the courts would do the right thing.

There was that wonderful few weeks when Washington, D.C. was actually a constitutional carry location. The head of the MPD stated that D.C.’s permitting laws had been declared unconstitutional. Until new, constitutional, regulations were put in place, if you were not a prohibited person, you could carry in D.C.

When Bruen came out, I expected a slew of lawsuits designed to attack the infringements that existed. I did not expect the Bruen tantrum response bills.

I knew that some courts would fight. I wasn’t surprised when the Ninth Circuit kicked the GVR’d cases down to the district level for new briefings in light of Bruen.

I was pleasantly surprised when the Fourth Circuit heard their GVR’d case right away. And then they went radio silent for over a year.

But something different is happening this time. The 2A community started politely, they filed their suits and saw where things went. They got their cases to the circuit courts, and we watched the circuit courts uphold infringements of every sort.

I don’t expect the 2A community to go quietly into the night. But I was not expecting the level of ferocious attacks I’ve been seeing.

There are far too many briefs, orders, motions, and opinions coming out that are more impolite than I’d ever expect to see. Courts are being called out on their shit.

We are taking these cases to the Supreme Court, over and over again. And we are being heard. The Circuit courts are scrambling to find something. They know they are twisting the Supreme Court’s words to infringe when that should not be allowed.

There have been too many times when the Circuit courts have modified their behavior, fearing the Supreme Court intervening in their cases.

Are you feeling positive about the course things are taking?

The comments are open, let’s hear your thoughts.

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 —No. 104 Dominic Bianchi v. Anthony Brown, No. 21-1255 (4th Cir.). 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?

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 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. —District of Columbia v. Heller, 467 U.S. 837, 581 (2008)

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.