B.L.U.F. An examination of how judges act and how to read the tea-leaves. Also, the sorts of ridiculous things that are said and don’t get rebutted.

The head judge is Frank Easterbrook. He has a history of dumping on the Second Amendment at every chance he can. He is the judge who got means-end into the 7th circuit court.

All quotes are from the machine created transcript, with edits by me. I will only be adding the speaker to the quotes.

present argument on issues raised in their briefing, such as historical analogs like gunpowder restrictions and other issues related to the scope of the Second Amendment. — Hunger

Here we see that she is off to a great start, banning modern sporting rifles and standard capacity magazines is exactly like fire codes from the founding era.

We know from Bruen that courts must begin by assessing whether the regulated instrument is protected by the plain text of the Second Amendment — Hunger. Nope, it is if the conduct is protected by the plain text. She is twisting words here.

The instruments must be arms. They must be bearable, and they must be in common use for self-defense. The instruments at issue here do not satisfy that standard for at least two reasons. First, large capacity magazines are not arms. They are accessories that are not necessary to the operation of any firearm. — Hunger.

We see the standard twisting from “in common use for lawful purposes” into “in common use for self-defense”, no surprise there.

Of course, the Supreme Court has issued an opinion saying that ammunition and magazines are indeed arms.

And I take it when you say that you’re you understand some sort of ammunition feeding device needs to be there, but it could be a 10 round device, not a 30 round or something bigger. — Wood. Judge Wood is also bad on the Second Amendment, and it shows throughout the oral argument.

The state responds that as long as they give you some sort of magazine, you are good to go. The state also says that they get to choose what the “needed” magazine capacity is.

Part of the state’s argument is that these are not arms. Which is pretty hard to reconcile with because they are. They want the plaintiffs (good guys) to PROVE that semi-automatic rifles and magazines are arms.

The Supreme Court has given an upper limit on what constitutes “common use”. In Caetano the Supreme Court said that “100s of thousands of stun guns are in use for lawful purposes”. This makes them “in common use”. It is pure, raw numbers. There was no question about how often they were activated against attackers, nor in how often they sent people to the hospital or the morgue. The only question was “how many are in the hands of The People”.

Our view is that it likely would mean something that someone could carry. And that is why it is our view that it is not an appropriate standard for the plain text step and why it makes more sense to look at whether or not something is in common use for self-defense or else, you know, you could literally have shoulder fired rocket launchers would count as bearable arms, and then you have to go into the second step of the analysis and do this huge historical inquiry. When everyone knows those are military grade weapons that are not protected by the Second Amendment.
— Hunger

To rephrase her words, too many things are covered under the plain text of the Second Amendment, so we think you should look at “common use for self-defense” instead.

NO. Bruen clearly says that if the conduct is covered under the plain text of the Second Amendment, it is presumptively protected. Using emotional blackmail, the state argues that if you follow the constitution, there will be people wandering around with rockets on their shoulders.

One of the worst arguments ever, “Everybody knows…”. Prove it. I don’t know that, therefore your statement is factually challenged from the get go.

One of the messages that came through was that the state believes it is just too much work for them to do the history and tradition research. It really should be the plaintiff’s burden, not the government’s.

So then we get into the first real issue, in my opinion. The plaintiffs are not arguing for M16s or other full automatic weapons. They just give the state a pass on that. It would be a distraction to the actual case. This allows the state, and court in the form of Judge Wood, to claim that the plaintiffs concede that M16 bans are constitutional.

Here is the thing, Machine Guns are not banned in most states. They are mostly banned in Illinois.

The reason this is so important is that the state will argue that because the M16 platform and the AR-15 platform are the same but for that magic extra hole they are “virtually identical”.

There is a bunch of language in here conflating “weapons of war” with AR-15s. The reason that is brought up is that in Heller (according to Ms. Hunger), the NFA was allowed to stand because the NFA covered weapons of war.

Oh, the arrogance of this particular court. Justice Thomas said that means-end was a two-step process that went one step too far. This inferior court is laughing at the Supreme Court, saying “So they said the two-step analysis is wrong, but then made us do a two-step analysis. Isn’t that stupid, funny?”

But just to be clear, you just said a minute ago that it’s the state’s maybe preferred position, or at least I’m inferring that you mean preferred position, that you can look at the text of the Second Amendment, somehow discern from that word arms, you know, keep and bear arms, the notion that it’s talking about non-military weapons, the kind of things somebody would use for self-defense, perhaps lawful sporting purposes, there, you know, there’s a set of lawful purposes. And that’s enough that we somehow can intuit from those words in the Second Amendment, this classification.
— Wood

Except that they do not have to “somehow discern” what the words of the Second Amendment mean. The Heller court defined each word, each phrase, and explicitly stated what it meant. This judge is just playing dumb or ignorant.

And now for a word from the mentally balanced on the bench:

I struggle with that argument, though, because in that paragraph, it connects the two petitioners, the people. It never, though, connects arms to in common use for self-defense. That’s elided.
(Hunger’s words omitted)
We’ve got to look at this amendment in light of all the amendments. And I can’t think of another constitutional amendment that would be approached in this manner that would read it so narrowly from the front end. We certainly don’t read the first amendment that way. We don’t read the fourth amendment that way.
— Judge Brennan

When the ruling on this comes out, I’m betting it is a 2-1 against use. Brennan voting for the Second Amendment. The other two voting for the state.

Can I ask you one last question, though? You’ve a couple of times referred to dangerous slash unusual. And there’s been some side debate about whether something has to be both dangerous and unusual, whether it needs to be dangerous or unusual, unusually dangerous. I mean, you can play with these words as as you wish. But it could make a difference, you know because if it’s if it’s dangerous in a way that is not typically the case for other other guns of various kinds of their firearms, then maybe that’s one thing. If usual just means how many of them can you count, then there are a lot of them out there? Everybody keeps using this number 24.4 million. So, so what are we to make of that little phrase?
— Wood

At no time has the Supreme Court used the phrase “dangerous or unusual”. It is always “dangerous and unusual”. The state desperately wants that little “and” to become an “or”.

Here is the opening statement by Miss Schreller, representing the government at some level.

Good morning, and may it please the court. My name is Assistant State’s Attorney Jessica Scheller, and I will be presenting argument this morning on behalf of the county defendants. There are three independent bases upon which the court may affirm the denial of Dr. Herrera’s preliminary injunction beyond those discussed by the state in their presentation this morning. We would like to draw your attention to these points. The AR-15 sought by Dr. Herrera is not protected by the Second Amendment. It is not an arm, as that term was interpreted by Heller. Next, the AR-15 is not protected as its use is not consistent with this nation’s historical tradition of moderate self-defense. It is instead a dangerous and unusual weapon. And finally, this nation’s historical tradition supports regulation of materials causing mass death, even those protected by the Second Amendment, such as gunpowder.
— Scheller

The state thinks that the plain text of the Second Amendment does not cover the conduct of carrying an AR-15 because it is not an “arm” Go read between the lines of Heller and it will tell you so.

The state then argues that they should be able to ban AR-15s because the cops in Uvalde were too scared to do the right thing. See, that bad guy had an AR-15. And they only had LOTS of AR-15s, body armor, shields and numbers. They might have gotten a boo-boo.

We saw the same thing in Florida, the police didn’t do, so you should pay.

The state then argues that Dr Herrera is not a member of the SWAT team because he’s only their medic. Since he isn’t really a member, he doesn’t get to carry an AR-15. Under the AWB being challenged, if the good Dr saw the shit go down and picked up a fallen officers’ weapon, he would be in violation of the Illinois AWB.

Ok, this is interesting:

However, Heller is both instructive and dispositive on the issues raised here. In Heller, the Supreme Court interpreted the operative clause of the Second Amendment. And before turning to the verbs keep and bear, the court interpreted their object or arms at page 581. And applying a historical understanding, the court noted that arms in 1773 was understood to mean weapons of offense or armor of defense. However, the court went on and stated the term was applied then as now, meaning in 2008, to weapons that were not specifically designed for military use and were not applied in the military capacity. That’s Heller at 582.

She’s not wrong. That is what Heller says. That is a big gap. Of course, it doesn’t apply to AR-15s, as they are not weapons of war.

Then comes this circular argument from Wood and Scheller. They agree that “arms” is not defined in the Second Amendment, having just read what the Supreme Court said the term means. They then agree that Heller instructs them to look at the “characteristics of the weapon” to determine if it is protected. ARGH!

At this point, we get to see just how anti-Second Amendment the court is. Ms Murphy steps up and

She barely gets her first paragraph out when Easterbrook starts. What does “today” mean? “What does in common use today mean?”

He then goes down the path of attempting to get Murphy to argue that M-16s are protected arms (they are). That is not her case. She is not there to argue for M-16s or against the NFA.

Easterbrook wants her to compare the number of machine guns in possession of civilians in the 1930s against AR-15s today. The answer is simple, hundreds of thousands.

One of the things that comes through is that parts of this inferior court are attempting to re-litigate Heller and Bruen. They didn’t like those opinions, and they want to use their own.

Wood then goes after the 24.4 million AR-15s. She wants the plaintiffs to prove that they are in the hands of The People for lawful purposes, not in the hands of the state or criminals (aren’t they the same?)

That’s enough pain for one day…

For the curious. Oral arguments are normally available to download from the circuit court’s website. I found the MP3 and downloaded it. This was then feed into “whisper” which is a speech to text conversion program. They have an online version for pay, I run it on my own computer.

One of the outputs from whisper is an SRT file, subtitles. But the utterances are not marked with the speaker.

I use pyannote in custom code to find out who is speaking when. I then process the SRT file to put speakers into the SRT. Those speakers are labeled “SPEAKER_00” and so forth.

From there, I manually figure out who is speaking. I normally have a list of judges and attorneys. The judges do not introduce themselves. I can normally guess the judges. The attorneys do introduce themselves, so that makes it much easier.

Using sed I then perform bulk search and replace to create a new SRT file.

Now I have an MP3 and an SRT file. I use ffmpeg to create an MKV or MP4 video with a visualization. Just so you aren’t bored too much while listening. ffmpeg burns the subtitles into the video. Once I have a video file, I can use my video display to play the video with subtitles.

I read the SRT file as I listen/watch the video. This allows me to handle titles where there are multiple speakers.

I also attempt to correct spelling errors and other issues I spot.

Once all the processing is done, I run another custom Perl program to convert the SRT file into HTML which can be displayed in a browser where I can actually read it.

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By awa

3 thoughts on “Bevis v. Naperville (7th Cir.) oral arguments, analysis”
  1. You’re doing God’s work here. But I fear for your sanity, having to wade through such obvious stupidity all the time…

    1. They are being obtuse, “I don’t/can’t/won’t understand what the definition of “is” is.

  2. I propose a system where when a judge or lawyer gets funny with wording you have a couple of grade schoolers sitting in a room nearby. When the jackwagons ask “but what does in use today mean” someone can hit a button and a clerk will go to the room, ask the chillens the same question and return with an answer and a bat, or a switch if you’re kinder hearted than me.

    They will then ask the jackwagon to answer their own question if it is not as sensible as that proposed by the kids they get one solid whack to the shin.

    “Little Sally, if I asked you to explain what something in common use today means what would you say?”

    “Well Mr or Mrs Clerk……I guess it means something that people use all the time….today? Now I guess?”

    “Thank you……..now Jackwagons. Please answer the same question.”

    “Well gosh, we just can’t be sure-” WHACK.”

Only one rule: Don't be a dick.

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