Ask The Right Question
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
- 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.
- 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.
- 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.
