Stupid Arguments before the Supreme Court

The Rahimi case has brought out all the normal infringers, along with a number of lesser known groups and people. They filed numerous amicus curiae briefs. I had intended to do a brief look through them all. Nope, no, forget it. Too much pain. What follows is a sampling of the first few, along with a couple of others I found interesting. Most of the text came from the table of contents. Take it for what you will.

(2300 words, mostly theirs)

If you want to go read these yourself, they are all on the Supreme Court’s webpage under the Rahimi case.

American’s Against Gun Violence

  1. Bruen’s “text and history” test, applied in Rahimi, relied on two deeply flawed assumptions
    1. Both Bruen and Heller are based on the false premise that the text and history of the Second Amendment established an individual right to own a gun
      1. The “well regulated militia” clause refers to the right to possess and use firearms in connection with militia service
      2. The “keep and bear arms” clause refers to a right to possess firearms if needed for and in relation to military activities
      3. The Second Amendment did not codify any right inherited by English ancestors because no such individual right to own firearms ever existed
      4. The drafters of the Second Amendment knowingly did not include language to provide for an individual right to possess firearms for self-defense
      5. Heller and Bruen improperly departed from this Court’s interpretation of the Second Amendment
    2. Bruen’s framework is also improper because it compels a foregone conclusion and perpetuates the myth that gun ownership is important for individuals’ safety and self-defense
  2. Heller and its progeny “threaten the breakdown of law and order” as Justice Breyer warned in the Heller dissent
    1. Gun related deaths have been significantly increasing since Heller
    2. Gun ownership conveys a greater risk than benefit
    3. Gun related deaths in the United States far exceed those of any other high-income country
These infringers admit that under Heller and Bruen there is no gun control law that survives. … because it compels a foregone conclusion

American Medical Association

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Corpus Linguistics

Corpus linguistics is the study of a language as that language is expressed in its text corpus (plural corpora), its body of “real world” text. Corpus linguistics proposes that a reliable analysis of a language is more feasible with corpora collected in the field—the natural context (“realia”) of that language—with minimal experimental interference.

The text-corpus method uses the body of texts written in any natural language to derive the set of abstract rules which govern that language. Those results can be used to explore the relationships between that subject language and other languages which have undergone a similar analysis. The first such corpora were manually derived from source texts, but now that work is automated.
Wikipedia: Corpus linguistics (Jan. 2023)

Why is this of interest in the Second Amendment

It has been litigated at the Supreme Court three times now. The right of The People to keep and bear arms is an individual right. This is shown by dictionary meanings of “to bear” and “to keep”. It makes plain sense.

It is also a plain reading of the text.

The infringers want our right to self-defense to be restricted. Horribly restricted.

The easiest way to do that is to get rid of that nasty old pest, the Second Amendment.

How they do that is to attempt to make things “not arms”. They are failing. They attempt to make it not apply in this particular location. That is being challenged and they expect to lose.

They are also attempting to redefine what “The People” means to exclude most, or at least make the process of becoming a member of “The People” a matter for the state. In other words, the state wants “The People” to mean only law-abiding, responsible citizens, as defined by them.

There is another attack vector they are using. They want the Second Amendment to be a collective right, granted to the organized militia controlled by the state.

The path they are using is corpus linguistics. The gist of which is they take all the written works from that culture, as defined by location and time, and create a “normal” meaning.

Since the term “bear arms” appears primarily in the context of armies and militias, the state, and their amicus, claim that “to keep and bear arms” exists only in the context of the Militia.

Let’s take a modern version of this. The workword “Fuck”.

To fuck has a dictionary meaning of “have sex with someone” or “an act or instance of having sex.”

If we were to collect all the uses of the word “fuck” in the United States for over the last decade (or more) we would find a different “normal” meaning. That would be more of a word of contempt, “fuck you”. Or of annoyance, “Fuck it”. Or, as just a way of adding emphasis, “clean your fucking room.”

The Supreme Court isn’t stupid. They saw through this the last time it was brought forward, and many times before.

That never stops the infringers. When we are all dead and gone, if there is still a protected right to keep and bear arms, you can bet your bottom dollar that there will be infringers out there making the same tired arguments.


Wikipedia: Corpus linguistics (Jan. 2023)

A “new” argument

B.L.U.F. The “new” argument from the state.

In June 2008, the Supreme Court issued their first Second Amendment ruling in nearly 80 years. They were asked …whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.Wikipedia: Corpus linguistics (Jan. 2023) The District of Columbia generally prohibited the possession of handguns.

The law was set up such that each of the pieces was individually “acceptable” before the Court’s opinion. There was a law making it a crime to carry an unregistered firearm. Then the limits on who could register a handgun were such that almost nobody was ever allowed to register a firearm.

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
Missing citations for LPGQXCDT

This defines what an “arm” is. The Heller Court went on to say:

The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XIII, § 6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed.1981 (pt. 1)); see generally State v. Duke, 42 Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (1794) (emphasis added).
Missing citations for LPGQXCDT

This says that arms protected by the Second Amendment include both those “most useful for military/militia use” and those arms which are not. If it is an arm, it is protected by the Second Amendment.

From this place, the court then put limits on the arms that are protected by the Second Amendment. These were dangerous and unusual arms and NFA items. The NFA is not mentioned by name.

The court was exceptionally clear regarding “muskets are the only arms protected by the Second Amendment”. Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way.…Missing citations for LPGQXCDT

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.
Missing citations for LPGQXCDT

Yeah, it is an individual right.

Here is the crux of the post Heller battle for gun rights:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U.S., at 179, 59 S. Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N.C. 381, 383-384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N.C. 288, 289 (1874).
Missing citations for LPGQXCDT

This is what every infringing legislature hangs their argument on. This is the hook that will allow their particular infringement to slip past the protections of the Second Amendment. Unfortunately, Heller went on to say “text, history, and tradition” are the actual methods of judging a regulation.

I often wonder how the anti-gun people get their marching orders so quickly. And why they are so lock step with one another. I just found one of the reasons:

Justice BREYER moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 2852. After an exhaustive discussion of the arguments for and against gun control, Justice BREYER arrives at his interest-balanced answer: because handgun violence is a problem because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.
Missing citations for LPGQXCDT

This is the Heller court rejecting means-end balancing. Means-end balancing comes from the dissenting opinions. In other words, from the argument that lost.

Bruen reaffirmed Heller and put a stop to means-end. This reduced the process of analyzing a Second Amendment challenge to a regulation to the following steps:

Does the challenged regulation implicate the scope of the Second Amendment? If it does not implicate the scope of the Second Amendment, the challenge loses.

Is the regulation a ban? If the regulation is a ban, are the arms banned in common use for lawful purposes? If the answer is yes, then the ban is unconstitutional.

If the regulation is not a ban, but does implicate the scope of the Second Amendment, the burden shifts to the state to prove a history and tradition of analogous regulations.

The state argues that their infringement does not implicate the Second Amendment. That is easily overcome.

The state argues that their infringement does not implicate an arm. Here, the state attempts to place the burden on the plaintiffs to prove that the item(s) in question are, indeed, arms.

If the infringement is a ban, the state then argues that the arm is not “in common use”. They try to limit the definition of “use” by putting qualifiers, “for self-defense” being the most commonly used manipulation.

The new argument

evidence in the record before this Court. Their showing is marked by argument without citations and sources showing that their argument would be supported by admissible evidence, even under the relaxed rules for preliminary injunctions. It is wholly unclear whether all of the weapons (like conversion kits or semiautomatic pistols) regulated by HB 1240 are “in common use” based on the Plaintiffs’ scant submission. The Plaintiffs have not made “a clear showing” of evidence (Winter at 22) that supports their contention that all of the weapons covered by HB 1240 are “in common use” and therefore not “unusual” (Heller at 626).
Missing citations for 4J6Z58IV

Emphasis in original.

There is no evidence that an “assault weapon” is in common use for lawful purposes?

The court is taking the side of the state here. They contend that because there is no legal evidence that hundreds of thousands of “assault weapons” are in common use, the plaintiffs have not met their burden.

I’m not exactly sure how you provide evidence that there are millions of “assault weapons” in common use. The court is unlikely to accept surveys as “evidence”. Nor are they likely to accept sales records. The court is bending over to say “well, most, if not all, of those guns were sold to law enforcement”.

They also ignore Caetano where the Supreme Court didn’t bother with figuring out exactly how many stun guns are out there. How many were owned per person.

The state has gotten this court to say that it requires that all “assault weapons” be in use for lawful purposes.

This one paragraph by the court stopped me in my tracks. They are working overtime to keep these laws from being overturned.

The reason this is important to us, is that this is not the only court that is using this to uphold infringements.

Arguments: Still not an “arm”

B.L.U.F. The last article was suppose to include this but turned into taxes aren’t infringements. I’m going to try and stay on topic with the state’s arguments about why certain things are not arms.

Bullets are not arms

This has been debunked so many times it isn’t even worth addressing. The Supreme Court has ruled that ammunition is considered “arms” under the meaning of the Second Amendment. Any ban of ammunition is an infringement and under Bruen triggers “history and tradition”.

Magazines are not arms

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Arguments: It isn’t within the scope of the Second Amendment

B.L.U.F. In the last post I described the leftist argument that Nuclear Weapons are outside of the scope of the Second Amendment. I submit that they are within the scope of the Second Amendment but that the Supreme Court’s current opinions put them outside the Scope.

This article covers the state attempting to claim that certain arms are not within the scope of the Second Amendment.

Let’s tax guns out of circulation!

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Argument: It is not an “arm” under the Second Amendment?

B.L.U.F. An analysis/opinion of the State’s attempt to move certain arms out from the protection of the Second Amendment.

This is a long running argument from the anti-gun rights people. The gist is always of the “this modern thing didn’t exist in 1791 so it isn’t covered by the second amendment.” These same people are saying this on phones, computers, The Internet, which the firmly believe are covered under the first Amendment, even though those things would not have been known at the time of the founding.

The question is legitimate, so lets take it to an extreme.

Are Nuclear Weapons Protected Arms Under the Second Amendment?

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Why are they arguing outside of Bruen

B.L.U.F. A thought exercise in why the state is producing so many opinions that don’t seem to matter within the bounds of the Bruen opinion. Maybe it is because they are attacking a particular clause in Bruen

There is a classic scene in most cowboy and Indian movies where the new person is with the more experienced person and spots an Indian. The new guy points him out and the grizzled old dude says something like:

If you see him, he wants you to see him. If there is one there are a hundred

The point being that it wasn’t an accident. The Indian wanted to be seen in order to accomplish some strategic or tactical goal.

Much of combat is attempting to get your enemy to misinterpret your actions. If your troops start moving back from the front line and the enemy doesn’t believe that it is because they are pushing you back, they are going to expect a trap. If on the other hand your troops hold as long as they can before retreating, pulling the enemy into ambush, the enemy is more likely to believe they forced the retreat.

As much as we like to call the gun infringers names, like “moron” or “idiot” or “Col. USMC(Ret.) Tucker Stupid”, these are not stupid people. If you believe for one moment that AG Rob Bonta or his people are stupid then you are in for a rude awakening.

These people don’t play to lose unless it is to their advantage.

So if they are presenting huge amounts of what I have called emotional blackmail and items outside of the bounds set forth under Bruen there must be a reason.

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