The short version: A three judge panel of the Third Circuit court found that 18, 19, and 20 year olds are part of the people.

One judge doesn’t think so.

Circuit Judge Restrepo does not believe that infringing on the right of adults to keep and bear arms is unconstitutional.

His argument focuses on the phrase “The People”. However, there is no dispute that there is some age threshold before which the protection of the Second Amendment does not apply. I’m not sure if this is true.

I’m not double-checking his citations. That could be an error on my part.

The public in 1791 did not understand those under 21 to be part of “the people” protected by the Second Amendment.

This is a strong statement, his argument:

The Majority said, The words “the people” in the Second Amendment presumptively encompass all adult Americans, including 18-to-20-year-olds,….

From this, it follows that there are some people who are not adults and thus are not part of The People. Since those that were under the age of 21 were considered minors from before the founding and through Reconstruction were considered minors, they were not adults and thus not part of The People.

Restrepo: there is evidence that the Founding-era public would not have understood the text of the Second Amendment to extend its protection to those under 21.

At the time of the founding, a person under the age of 21 was considered an infant under the law, and a minor in common speech. Multiple citations to legal definitions from the Founding.

Ok, it took a bit to get here, but the Majority does provide the clues to get there.

Under Heller, as affirmed in Bruen, we first consider if the proposed conduct implicates the plain text of the Second Amendment. If it does, then the government carries the burden of providing a history and tradition of regulations matching the current infringement.

Those two steps, “plain text” and “historical analysis” are very distinct.

Under the plain text of the Second Amendment, every American’s right to keep and bear arms is protected. Be that a felon, a law-abiding citizen, a drunkard, or a newborn infant. That is the plain text.

Since the plaintiffs (good guys), are a member of The People, and their proposed conduct implicates the Second Amendment, they have satisfied the first step in Heller.

The dissent argues that are not part of the people. Since they are not part of the people, the Second Amendment doesn’t apply to them. Since the Second Amendment doesn’t apply to them, there is no need for the government to prove a history or tradition.

This is moronic circular reasoning.

The plain text is implicated. The government now has the burden to prove, by us of regulations from the founding era, that there is a history and tradition of denying those under 21 the right to keep and bear arms.

The reasons our founding fathers use might be that those under 21 are not part of the people. Or it could be some other reason, but the state still bears the burden of providing those historical regulations.

Judge Restrepo’s argument reminds me of the “you ain’t the militia, the Second only applies to the militia” reasoning of the late twentieth century through 2008 courts.

It is difficult not to get caught in that sort of reasoning. The founding fathers might have considered those under 21 to be minors or infants. But that doesn’t matter. It only matters if there are regulations denying them rights.

In addition, we have amendments after the founding that changed that definition. Regardless of what the founding fathers considered a minor, we modified our constitution to make 18 year-olds adults in the eyes of the law. To deny that truism is to say that only white, landed, men are protected under the Constitution.

I hope you enjoy this short one.

Thank you for the replies to “The Argument”. The person I was speaking with was listening. He wasn’t anti-gun, nor was he regurgitating anti-gun talking points.

This is different from some of the people who stuck their oar in. The people who said things like, “We need to ban assault weapons, those large bullets are too dangerous.” or something like that. Another was, “There is no reason for large capacity magazines.” Those people aren’t listening nor are they open to learning. They might be, but that is a different discussion.

I don’t do the car ban thing. The response argument is always, “But we NEED cars. You don’t need a gun.”

My wife loves me dearly. She reads my articles. Her eyes glaze over when I quote too much from a case document. Trying to explain to somebody without the papers in hand how the Second, Seventh, and Ninth twist words is futile, in my opinion.

My “Why are you advocating for breaking the law?” is my attempt to address this.

The “slippery slope” argument is difficult to make. In my opinion, the better way of addressing it is to ask, “What is your exit plan if your proposal doesn’t work as you think it will?”

I have had luck in changing people’s feelings. I handed a NYC boy a magazine with more than the allowed number of bullets. He took it, I grabbed it back. “You can’t have that! Your state says that having that will turn you into a mass murder.” I took one round out, handed it back. “Ok, now we are safe.”

The absurdity of that was enough for him to open his mind and actually think.

Sometimes facts are not about accepting or disregarding, sometimes it is about interpretation. The problem with that is exactly the same as with “We’ve never tried real Communism with me in charge. If I’m in charge, it will be a utopia on earth.”

We have had an excellent opinion out of the Third Circuit court. You can go listen to Mark Smith talk about it, or I’ll give you a write-up tomorrow.

I’m eagerly awaiting this week’s comments. Please comment.

I attended a get-together on Saturday. One of the other people there started a discussion about firearms and the Second Amendment. Since we were in an area where there were not a bunch of people, and because he was acting in good faith and with an open mind, we engaged in a discussion.

As most such discussions go, it is difficult to pin somebody down. There is a heartfelt need to “do something”.

Some of the issues that I had were his inability to accept that we already know that bad things happen when we give an inch.

A big issue for him was training. The standard, “You are ok, and he is ok, but there are idiots out there that do dumb things, they should have training.”

My response was that a training requirement leads to de facto bans. He claimed that we don’t know that they will. When I listed the states that had done this recently, that was not accepted as proof.

He drove forward with the idea that we could write a law that would be safe from that type of meddling. He invited me to propose language for that.

I went home unhappy with my performance.

Having thought about it a bit, I think my argument should be more along the lines of:

Why do you want to break the law?

Every one of the people that I have discussions with has some sort of acceptable way of working around the Second Amendment. They argue that I should “follow the law” if they pass an unconstitutional law. At the same time, they are unwilling to obey the law, themselves.

Often they want to engage in hypotheticals where they can make such a law.

One of my standard responses is, “If you would like to do that, then you need to pass an amendment. That amendment will then allow you to pass such laws.” I did use it. He’s response was, “You would oppose that?” “Absolutely, totally.”

I then explained that they are pre-existing rights. That the Second Amendment is there to protect those rights. The Second Amendment does not grant those rights.

Regardless, I’m left feeling unsatisfied with my performance. I need more practice.

For my wife’s birthday, a few years ago, I got us tickets to see Scott Bradly’s Postmodern Jukebox. It is the only concert that I have ever paid to see.

He started on YouTube making covers of songs in different styles. In this cover of the Friends theme, they provide it in styles from the 1920s through the actual Rembrandt’s sing their version.

But this is the song I wanted to bring to you. It is one of my wife’s favorite songs. We did see Joey in concert.

I once played a Postmodern Jukebox song at the office, my office mates went down the rabbit hole, and we listened to them for a good solid week.

How does this case affect anybody else? It doesn’t. This is an as applied challenge to the 18 U.S.C. §930(a), possessing a firearm in a Federal Facility.

Mr. Emmanuel Ayala was a truck driver hauling mail for the U.S. Postal Service. He had a concealed carry permit from the state of Florida. It appears he was somebody that always carried.

On September 14, 2022, he was carrying as he walked from the employee parking lot and into the post office. Shortly after clocking in, two Post Office cops stopped him and attempted to detain him.

He took off. He was later arrested by the Tampa Police Department.

He was indicted for knowingly bringing a firearm into a Federal facility and for forcibly resisting arrest.

Unfortunately for Mr. Ayala, he is going to get screwed by the state in the end. Not for carrying a firearm, but for resisting arrest. When the cops say they are arresting you, just about any action that isn’t “yes sir, three bags full sir.” and full compliance can get a “resisting arrest” charge piled on.

In some jurisdictions, it is a defense that the arrest was unlawful. In other jurisdictions, Texas for example, it is not.

Once, Mr. Ayala made a motion to dismiss the charges based on a Second Amendment challenge, the court ordered the state to reply.

The state’s reply can be summarized as “The law is constitutional because the Supreme Court said that we can ban guns in government buildings! Besides, we did all the paperwork right!”.

The court was not satisfied with this response.

From our side, once the text of the Second Amendment is implicated in a gun ban case, we only need to look to the Heller methodology and the dicta which says you cannot ban an arm in common use, today.

In other words, we can say that Heller shortcuts the court’s command to do a historical analysis looking for analogous regulations. The Supreme Court says there are none.

The state is arguing, in this case, that they have that shortcut in banning guns in government buildings. The difference is that Heller, McDonald, and Bruen all had as their holdings that gun bans are unconstitutional and that the people have the right to bear arms.

The dicta said how they reached that conclusion and how the inferior courts should do so in the future. A passing reference to not striking down other laws does not mean that those other laws are constitutional.

The Judge had this to say about the state’s first response to the motion to dismiss: … the United States’ response to Ayala’s Second Amendment challenge was “unhelpful in this task.” App. B at 3. That two-paragraph response lacked any “searching analysis into the historical record to determine whether § 930 as applied to Ayala” complies with the Second Amendment.—Madison Lara V. Commissioner Pa State Police, No. 21-1832 (3d Cir. Jan. 18, 2024)

The state constantly attempts to bring experts into the equation. The judge was having none of that:

She is correct. There are no facts in dispute. He carried the gun into a post office. He says that it is constitutional protected. The plain text of the Second Amendment covers his conduct. The state must present a history and tradition of regulations to support the modern infringement.

The state has failed to provide that history. The experts in questions of law are the lawyers and the judge. “Experts” are not allowed to give legal opinions in court, that is reserved for the lawyers and the judge. The lawyers present the regulations and case law, the judge determines the outcome.

The judge says there are no distinctly similar historical regulations addressing regulating firearms in post offices. Even if the lack of a distinctly similar historical regulation was not dispositive, the United States has offered no relevant historical analoguesMissing citations for CDGJ6CNM

She goes on:

In other words, I must determine “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.” Missing citations for CDGJ6CNM quoting Bruen

Much of the rest of the judge’s order is her doing the work of the state. She repeatedly states that the United States did not show a history nor a tradition of banning firearms in post offices, or government buildings in general.

She is doing this to provide backing for other Second Amendment challenges.

Her words strongly imply that she expects this case to be appealed.

I’m not sure that it will be. The defendant (good guy) got his win. But that win is an “as applies”, which limits it to just him. This is a district court ruling. This limits this to just the Middle District of Florida.

If the state were to appeal this case, it would go to the Eleventh Circuit court, which is highly likely to rule for The People.

If the Circuit Court rules in favor of The People, then that affects everybody in the Eleventh Circuit. The Eleventh Circuit could easily extend this from an “as applied” to a “facial challenge”. If they do make it a facial challenge, then 18 U.S.C. §930 could be found unconstitutional.

No matter how you slice it, this is a great win for The People.

The state can request a warrant upon presenting, to an authorized judicial authority, the proper reasons for a warrant to issue. Once a warrant has been issued, the state can then search in the named locations for the named items, and seize those items.

For example, the state can claim that Bobby-Joe is operating a house of ill repute. They go to the judge and tell the judge, in writing, what evidence they have that Bobby-Joe is operating a house of ill repute. They tell the judge where they want to search, and what they are looking for.

Judge, we believe that Bobby-Joe is operating a house of ill repute because 3 to 5 women go to the house every evening and don’t leave until 0330, see provided photographs. That she is living beyond her documented means, see the two new homes she’s purchased with cash, the fancy cars, and the expensive jewelry.

We want to search the premises to locate her contacts and her books. We believe that these might be electronic. We wish to seize all electronic devices, any business related communications, any and all calendars, and any payment agreements.

The judge signs his X on the dotted line, then goes back to “snuggling” with one of Bobby-Joe’s employees.

The raid happens. During the search, the state finds drugs, firearms, and cash. They seize all the computers, phones, and digital storage devices and all the documents they can find. They seize the drugs and guns and cash.

It is all legal because the Judge signed the warrant.

This only works in a criminal investigation. In a civil investigation, the state is not involved in an authoritative stance. By this, I mean that the state can’t just get warrants issued because there are no crimes being alleged in the civil suit.

I am NOT a lawyer. I’m sure there are exceptions to this. But in general, when the state is a defendant in a civil case, they can just get a warrant to search for information they believe the plaintiffs hold.

Instead, the parties engage in discovery. In my opinion, discovery in Second Amendment Challenges is a waste of time, money, and resources.

If the argument is about the law, then there is no need for experts. The only experts in the courtroom are the lawyers and the judge. The lawyers present their arguments on why the judge should rule in their favor, the judge evaluates the arguments and then issues his judgement regarding the argument.

If the case is an as applied, then evidence might need to be presented.

Let’s consider the situation where a few individuals challenge a law for Second Amendment reasons. The FPC joins the suit as an organizational entity.

The FPC has to prove that the individuals are members of the FPC when the FPC joins the case.

It does not matter if they are life members, if they were gifted the membership, if they joined 20 years ago, 5 years ago, or 5 hours ago. The only thing that matters is that they are members.

The state can subpoena the plaintiffs for information that proves or disproves the membership. If that information has already been presented by the plaintiffs, then they can not.

The problem sometimes arises that the parties want formal proof. That might be a statement taken under oath or a notarized copy of the document proving membership.

When the court grants discovery, this means that the parties can start asking questions of the other party and of third-parties that can reveal evidence.

Which takes us to the real issue with discovery, it can be abused. Occasionally, a case exists purely to be able to do discovery. The plaintiffs don’t think they will win, but they want to be able to have a look behind the veil. The discovery process can be very intrusive.

There have been several cases where information gathered during discovery has “leaked”.

If I were to be subpoenaed regarding an article I had written, they would likely ask for all of my sources. For the most part, that is not an issue. I have the citations. But what if they asked me to produce all my communications with other pro-2A bloggers?

That gets a bit more difficult and it becomes intrusive. They might be claiming that I was coordinating with other bloggers. It certainly looks like that sometimes.

I don’t know how many times I’ve written an article and then the next day watched videos from people I respect covering the same subject and answering the questions I posed in my article. Did they read my article and let their muse loose? Did I read the same primary sources that they did?

There have been many instances where I watched the first part of a video to get the identification of a case, then did my research with the primary sources, wrote my article, then finished watching their video.

Back to subpoenas.

A subpoena may:

That is very broad. They may also command somebody to attend a deposition.

Once a subpoena has been created, it must be served. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person Missing citations for DRHXFGYN. A subpoena cannot be served directly be either party. It must be a third person.

You might know that a subpoena has been issued against you, you do not have to make yourself available to be officially served. Just because they claim you were served, this is not enough.

When a process server serves a subpoena, they will certify that they have done so. When you send a letter by certified mail, requiring a signature, that might not be proof.

I have signed for certified mail for myself, for my wife, for my business, and for companies I was working for. If I signed for it, that does not mean it got to any third party.

The same is true for FedEx and UPS. Even if it says, “signature required”, that does not mean that it was actually delivered to the named person.

Why? Because it isn’t certified.

The person subpoenaed can object. There is a tight window for this of 14 days, or the time set forth in the subpoena. This means that the person would have to get a lawyer, explain to the lawyer why they don’t want to produce the commanded documents or things, and have it all filed in that time window.

One of the big things in the process is the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.Missing citations for DRHXFGYN Who gets to determine “significant expense?” If it takes me 30 hours to comply, that’s 30 hours of lost earnings. Is that enough to trigger “significant expense”?

The court may quash or modify a subpoena.

Formatting cleaned.

This is where the subpoena of Professor English is so hinky, why do they need all that information from him? Much of what is requested appears to me to be protected materials. It is not privileged, as that refers to attorney-client privilege.

Since I don’t see any filings from Professor English, the court can’t quash the subpoena for “may quash” reasons.

The other day, I noticed that the State of Washington was trying to serve a subpoena on a William English, PhD.

I have not noticed professor English’s name before, according to the state, his study was cited in Hartford v. Ferguson. Digging deeper, I find:

So he was cited. That shouldn’t be a big deal. It is a published paper. It says what we all know, that there are a boat load of “evil” semi-automatic firearms out there. Well over 24 Million gun owners that posses AR-15s or similar rifles.

What is it that they want to find out from Professor English, then? Do they doubt his numbers?

The state wants to know who funded the study, what questions were asked, who participated in the study, what was done to get the study published, and what was said to a number of Second Amendment lawyers and groups. I recognize Cooper & Kirk, Erin Murphy, Paul Clement, and Clement & Murphy. They are all big name pro-Second Amendment lawyers.

What they are not, is parties to the case. They are not representing any parties in the case.

It looks like the state intends to impugn Professor English’s study based on his sources of funding or the fact that he actually has communicated with some of these great 2A lawyers.

Why? The state claims that they have to ban “assault weapons” because there are just too many of them, and they are so dangerous. At the same time, they want to claim that they are not in common use.

The more likely reason is that the state is attempting to change the methodology laid out in Bruen.

The first question: Does the proposed conduct touch fingers with the Second Amendment? Yes, the plaintiffs wish to purchase semi-automatic rifles and the state says they can’t. The act of purchasing and possessing a rifle is clearly covered under the scope of the Second Amendment.

If the proposed conduce is within the scope of the Second Amendment, the state has the burden to show a history and tradition of regulations that are analogous to the modern infringement, in both how and why.

If the infringement is an arms ban, then the inferior court does not need to do anything more than determine that there are more than 200,000 of the arms in common use to find the infringement is unconstitutional. That is because in Heller the Supreme Court said that it is unconstitutional to ban arms in common use.

To escape the “in common use” test, the state has to prove that there are less than 200,000 “assault weapons” in use in the United States. Where “use” means possessed.