Quote of the Day

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” We explained in Heller and McDonald that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” Heller, supra, at 592, 128 S.Ct. 2783; see also McDonald, supra, at 767-769, 130 S.Ct. 3020. We excluded from protection only “those weapons not typically possessed by law-abiding citizens for lawful purposes.” Heller, 554 U.S., at 625, 128 S.Ct. 2783. And we stressed that “[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Id., at 634, 128 S.Ct. 2783 (emphasis deleted).

Instead of adhering to our reasoning in Heller, the Seventh Circuit limited Heller to its facts, and read Heller to forbid only total bans on handguns used for self-defense in the home. See 784 F.3d, at 407, 412. All other questions about the Second Amendment, the Seventh Circuit concluded, should be defined by “the political process and scholarly debate.” Id., at 412. But Heller repudiates that approach. We explained in Heller that “since th[e] case represent[ed] this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.” 554 U.S., at 635, 128 S.Ct. 2783. We cautioned courts against leaving the rest of the field to the legislative process: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” Id., at 634-635, 128 S.Ct. 2783.

Based on its crabbed reading of Heller, the Seventh Circuit felt free to adopt a test for assessing firearm bans that eviscerates many of the protections recognized in Heller and McDonald. The court asked in the first instance whether the banned firearms “were common at the time of ratification” in 1791. 784 F.3d, at 410. But we said in Heller that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” 554 U.S., at 582, 128 S.Ct. 2783.

The Seventh Circuit alternatively asked whether the banned firearms relate “to the preservation or efficiency of a well regulated militia.” 784 F.3d, at 410 (internal quotation marks omitted). The court concluded that state and local ordinances never run afoul of that objective, since “states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade firearms.” Ibid. But that ignores Heller’s fundamental premise: The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs, but by what private citizens commonly possess. 554 U.S., at 592, 627-629, 128 S.Ct. 2783. Moreover, the Seventh Circuit endorsed the view of the militia that Heller rejected. We explained that “Congress retains plenary authority to organize the militia,” not States. Id., at 600, 128 S.Ct. 2783 (emphasis added). Because the Second Amendment confers rights upon individual citizens—not state governments—it was doubly wrong for the Seventh Circuit to delegate to States and localities the power to decide which firearms people may possess.

Lastly, the Seventh Circuit considered “whether law-abiding citizens retain adequate means of self-defense,” and reasoned that the City’s ban was permissible because “[i]f criminals can find substitutes for banned assault weapons, then so can law-abiding homeowners.” 784 F.3d, at 410, 411. Although the court recognized that “Heller held that the availability of long guns does not save a ban on handgun ownership,” it thought that “Heller did not foreclose the possibility that allowing the use of most long guns plus pistols and revolvers … gives householders adequate means of defense.” Id., at 411.

That analysis misreads Heller. The question under Heller is not whether citizens have adequate alternatives available for self-defense. Rather, Heller asks whether the law bans types of firearms commonly used for a lawful purpose—regardless of whether alternatives exist. 554 U.S., at 627-629, 128 S.Ct. 2783. And Heller draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns. Id., at 624-625, 128 S.Ct. 2783. The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles. See 784 F.3d, at 415, n. 3. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. See ibid. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons. See McDonald, 561 U.S., at 767-768, 130 S.Ct. 3020; Heller, supra, at 628-629, 128 S.Ct. 2783.

The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits. See 784 F.3d, at 411-412. The court conceded that handguns—not “assault weapons”—”are responsible for the vast majority of gun violence in the United States.” Id., at 409. Still, the court concluded, the ordinance “may increase the public’s sense of safety,” which alone is “a substantial benefit.” Id., at 412. Heller, however, forbids subjecting the Second Amendment’s “core protection … to a freestanding `interest-balancing’ approach.” Heller, supra, at 634, 128 S.Ct. 2783. This case illustrates why. If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.
Friedman v. City of Highland Park, Ill., 136 S. Ct. 447 (Supreme Court 2015)

Thank you Clarance Thomas.

Bad Judge Writes More Bad Opinions — UPDATED

The Question

Does an ordinance that prohibits possession of assault weapons or large-capacity magazines violate the Second Amendment protections?

The City of Highland Park, IL, has an ordinance that does just that. Arie Friedman filed a lawsuit challenging the ordinance in state court in 2013. The city had it removed to the District Court of Northern Illinois. This isn’t uncommon.

There the District Court heard arguments and in September 2014, Judge John W. Darrah granted Summary Judgement to the city (bad guys). From there it was appealed to the Seventh Circuit Court.

The District Court followed the presidents provided to them by the Seventh Circuit court. The gist of which was to use the two-step shuffle and to consider anything that wasn’t a handgun used in self-defense outside the core protections of the Second Amendment.

The Analysis

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Bad Judges Continue to Make Bad Opinions

B.L.U.F. Judges have history, and it is important to understand their history. We explore a series of opinions issued by one Judge that are consistently anti-Second Amendment, even though the Supreme Court has told him he is wrong.

National Rifle Ass’n of Amer., Inc. v. City of Chicago, 567 F.3d 856 (7th Cir. 2009)

Back in 2009, the NRA et al. challenged the City of Chicago’s ban on the possession of most handguns. This was after District of Columbia v. Heller, 467 U.S. 837 (2008). In an opinion, written by Chief Judge Easterbrook, the Seventh Circuit court affirmed a lower court finding that such a ban was constitutional.

He begins with:

Two municipalities in Illinois ban the possession of most handguns. After the Supreme Court held in District of Columbia v. Heller, ___ U.S. ____, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), that the second amendment entitles people to keep handguns at home for self-protection, several suits were filed against Chicago and Oak Park. All were dismissed on the ground that Heller dealt with a law enacted under the authority of the national government, while Chicago and Oak Park are subordinate bodies of a state. The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1876); Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886); Miller v. Texas, 153 U.S. 535, 14 S. Ct. 874, 38 L. Ed. 812 (1894). The district judge thought that only the Supreme Court may change course. 2008 WL 5111112, 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008).
National Rifle Ass’n of Amer., Inc. V. City of Chicago, 567 F.3d 856 (7th Cir. 2009)

Here the judge is saying that district courts were dismissed because the Second Amendment didn’t apply to the state nor to subordinate bodies of a state. He goes on to say that three cases from the 1800s support this because the Supreme court did not take up such cases.

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United States v. Miller et al. History

B.L.U.F. — Examining the 1939 case of United States v. Miller 307 U.S. 174 where we first lost our Second Amendment Rights. Touching on how Heller, McDonald, and Bruen all reference back to Miller but how it got twisted to allow the courts to allow infringements to continue


On April 18, 1938, the Arkansas and Oklahoma state police stopped Miller and Layton outside of Siloam Springs, Arkansas, en route from Claremore. They had an unregistered, short-barreled shotgun in the car and apparently were “making preparation for armed robbery.” So the police arrested them.

Miller and Layton ended up in Fort Smith, Arkansas, where United States Attorney for the Western District of Arkansas Clinton R. Barry charged them with violating the National Firearms Act. Barry knew all about Miller, as he had attended the O’Malley trials and seen Miller testify. Barry was eager to ensure the government could prove an NFA violation. It is “[e]xtremely important this case be investigated by competent federal officers quickly before these parties released on bond to prove possession this weapon in Oklahoma immediately before arrest in Arkansas to show transportation.” The United States Attorney’s office forwarded Barry’s request to the F.B.I. for investigation.
N.Y.U. Journal of Law & Liberty [Vol. 3:48 2008]

There is a different version of the arrest of Miller in Unintended Consequences, this appears to be more factual.

This is how the District Judge Heartsill Ragon described it:

The defendants in this case are charged with unlawfully and feloniously transporting in interstate commerce from the town of Claremore, Oklahoma, to the town of Siloam Springs in the State of Arkansas, a double barrel twelve gauge shot gun having a barrel less than eighteen inches in length, and at the time of so transporting said fire arm in interstate commerce they did not have in their possession a stamp-affixed written order for said fire arm as required by Section 1132c, Title 26 U.S. C.A., the regulations issued under the authority of said Act of Congress known as the National Firearms Act, 26 U.S. C.A. § 1132 et seq.
United States v. Miller, 26 F. Supp. 1002 (W.D. Ark. 1939)

There are some significant aspects to this case and how it was charged. The state would have to prove that the firearm in question required a NFA tax stamp, that it did not have that tax stamp, that it had been transported across state lines. And that the police had reason to make the stop.

This was before Miranda but the law still required some reason to arrest and search people.

The Miller case was a case of tax evasion. Failure to pay a $200 tax on a $15 shotgun. In addition, the NFA made transporting a registered firearm across state lines a crime unless the state first gave permission.
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Why are there no juries in these 2A cases?

We were asked “Why don’t we see juries involved in all of these Second Amendment cases? The simple answer is “they are not needed”. Read on for why.

Court cases are decided in two different ways, on the merits of the case, and procedurally.

Consider the question “Does the District of Columbia’s restriction on having a functional firearm within the home violate the Second Amendment?”

Prior to 2008 many courts were using the collective right interpretation of the Second Amendment. With this in mind the most of these cases were dismissed for procedural reason. I.e. if you were not the militia challenging the restriction you did not have standing. Standing is a procedural issue.

Cases that are decided on a procedural basis can be brought up again once the procedural issue is corrected.
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Is Barrel Proofing an Analogous Regulation?

It was suggested by it’s just Boris that a founding era firearm safety requirement could be used to support the California Roster system. In particular, they suggested that proof testing would be a close enough match.

It isn’t. Proofing a firearm is entirely different from the idea of requiring or forbidding features.

The original proofing was done to make sure that guns did not blow up in your face. Because of the metallurgy of the time it was not a good idea to trust a pressure vessel until it had been tested. To this end “proofing” was required.

Once completed, all of the individual parts would be sent to one of the royal arsenals to be carefully inspected for quality and to ensure they were “to pattern” with the control piece. If the parts passed inspection they would receive an inspector’s stamp and be fitted to a gunstock along with the other parts of the musket. The stocks were supplied to the arsenals by rough stockers who selected the appropriate blank stocks (specifically, seasoned walnut heartwood) from timber mills throughout Britain. The blank stocks were sent to the arsenals, and the final assembly of the musket was completed at the arsenal by the master gunsmiths employed there. Each musket was fired with an excessive amount of powder to ensure its strength and received a final acceptance stamp if it passed. This was known as proofing. Once the production process was complete, the muskets could then be issued to the state for use. The raw materials—such as coal, brass, iron and wood—had to pass through several processes to reach the final product and would have gained value with each step. The value of the work put into each step would culminate into the final value of the finished musket. This value, plus use-value, is the complete value the Board of Ordnance would have paid for each musket.
The Production of Muskets and Their Effects in the Eighteenth Century

Emphasis added.

What is very important about the requirement for “proofing”, from a Second Amendment view, is that no class of arm, “pattern” was outright banned.

What was happening is that a level of third party quality control was being performed, by the government.

At times the proofing wasn’t done a the royal proofing houses but was instead done at the manufacturer’s location.

With the California roster, the concept is that if California doesn’t like the weapon it is banned. Not that the weapon has to perform as designed and not blow up.

In addition, while proofing was required in Europe, I can find no regulations that actually require the proofing of firearms from 1790-1799. I used both Google and Duke Center for Firearms Law. It is likely that with a bit more work I could find something at Duke but the real proof is that the state has not made the argument in any of the cases I’ve read.

Words are hard

Everything in this article that is not a quote is my understanding. I AM NOT A LAWYER so the odds of me getting something wrong is non-zero.

In Boland v. Bonta: Another District Court Win “UHA” I quoted and wrote.

The Complaint, and every cause of action therein, is barred by the equitable doctrines of estoppel, laches, unclean hands, and/or waiver.
Answer to Amended Complaint at P 16

I should have spent some more time figuring out what this all means.

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