B.L.U.F.We took a look at the bad guy’s arguments via Everytown earlier this week. Today we look at the reply brief submitted by the appellants/plaintiffs (good guys).
There is a huge issue that the good guys have to overcome in these cases, getting the Court to do their job. If you look at the plain text of the Second Amendment, is the proposed conduct implicated? If so, the conduct is presumptively protected under the Second Amendment.
The state is doing all in their power to make this first step as difficult as possible. As we observed in the Everytown brief, they don’t have any historical regulations to support their infringements. Because they don’t have the history nor the tradition, they desperately want to stop cases from getting to that point.
There is an old legal aphorism, “If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table.”
When I write about “emotional blackmail”, I’m discussing how the state is pounding the table. They don’t have facts on their side, they don’t have the law on their side. They pound the table in frustration, begging the court to give them just a little inch.
What this means, at a tactical level, is that the lawsuit almost all say “It is a regulation of conduct that is protected under the Second Amendment. Grant us an injunction stopping it.” The state then gets to do the song and dance “welllllll, it isn’t actually an arm. It doesn’t go boom boom.”. Or they try and say that as long as they allow you this arm, they don’t have to allow you that arm. All of this is just bonkers when the plain text is used.
Introduction
The plaintiffs start their response:
Just last year, the Supreme Court confirmed once and for all that “the Second Amendment protects the possession and use of weapons that are ‘in common use.’” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.Ct. 2111, 2128 (2022) (quoting District of Columbia v. Heller, 554 U.S. 570, 627 (2008)). Rather than respect that clear teaching, Rhode Island veered far in the opposite direction, banning all devices that feed ammunition into semiautomatic firearms and are “capable of holding … more than ten (10) rounds,” R.I. Gen. Laws §11-47.1-2(2), -3(b)(1)(i), even though tens of millions of Americans own hundreds of millions of those devices as integral components of the firearms they keep and bear for self-defense. Under a straightforward application of Bruen, HB6614 is profoundly out of step with our nation’s history of firearm regulation and a violation of the Second Amendment.
—Ocean State Tactical, LLC v. State of Rhode Island, No. 23-1072, slip op. at 1 (Court of Appeals for the First Circuit)
My lady has a difficult time answering simple questions. “Are you done with your homework?”. Reply: “Sort of, I’ve been working on it for hours. The …(172 words later) so I’m still working on it.” “Thank you, are you done with your homework?” “I just told you.” “No, you didn’t. You said many things in response to a yes, no answer without ever actually answering the question.”
The state is much like that. They don’t actually answer the question presented and instead talk about this or that. The plaintiffs (good guys) can’t force the state to answer. Only the Court can do that. If the state doesn’t answer the court, then the court can treat that none-response as meaningful.
In an effort to salvage HB6614, the state asks this Court to ignore what the Supreme Court has repeatedly identified as “the Second Amendment’s definition of ‘arms,’” Bruen, 142 S.Ct. at 2132, in favor of a definition more to its liking. The state asks this Court to pretend that people do not “use” their firearms when they keep and carry them for self-defense, even though the Supreme Court has explicitly defined the Second Amendment right as a right to “be[] armed and ready for offensive or defensive action,” id. at 2134, not just to fire at would-be attackers. …
—id.
Exactly what we have been saying. I’m pleased that this reply has stated it so clearly. I expect to use this in the future.
These guys really hammer the state: “Pretend”, “fiction”, “deny Bruen“, “ignore what the Supreme Court”. This is polite lawyer talk for “the state is a lying sack of flaming dog poo”.
B.L.U.F.Looking at another amicus brief by Everytown. Since they are consistently filing briefs in all these Second Amendment cases, it behooves us to see what they are saying.
I came back to add this text. You might get angry with Everytown over this brief. Regardless, they did a good job. Their arguments are self-consistent. They take a stand, then hammer the point home. Their goal isn’t to necessarily win these cases, but to give the court something to hang a bad decision upon.
Everytown is now the overarching group for “Moms Demand”, “Mayors Against Illegal Guns”, It looks like they are claiming “March for our lives” but they don’t do so by name. They claim to have nearly ten million “supporters” with nearly 10,000 of those “supporters” in Rhode Island. Make not that “supporters” are not “members”
For the tax year 2020 they had total revenue of $20,492,640. $20,288,442 of that was from contributions. They reported expenses of $52,280,883 for a net lose of $31,788,243. The largest listed expense is $11,390,489 for other salaries and wages and around $500,000 for the Executives and fundraising. I could not find a “members” number. They only speak in nebulous terms, which could mean anything from a person going around knocking on doors, to the mom that dropped a five dollar bill in their begging hat.
Using the standard modification of language, they claim [Everytown] is the nation’s largest gun-violence-prevention organization, with nearly ten million supporters across the country, including nearly 40,000 in Rhode Island.—Ocean State Tactical, LLC v. State of Rhode Island, No. 23-1072, slip op. at 1 (Court of Appeals for the First Circuit)
Argument Summary
Rhode Island’s large-capacity magazine restriction is constitutional under the approach to Second Amendment cases established in New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), for the reasons set out in the State’s
brief, Dkt. 00118022922 (“State Br.”). Everytown submits this amicus brief to expand on three methodological points. First, on the initial, textual inquiry of the Bruen framework, Plaintiffs have the burden to establish that large-capacity magazines are protected “arms” within the meaning of the Second Amendment, and they have not met that burden. Second, in applying the historical inquiry of the Bruen framework—asking whether the regulation is “consistent with the Nation’s historical tradition of firearm regulation,” 142 S. Ct. at 2130—the Court should center its analysis on 1868, when the Fourteenth Amendment was ratified. Moreover, 1868 is not a cutoff; examining “legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification” is also “a critical tool of constitutional interpretation.” District of Columbia v. Heller, 554 U.S. 570, 605 (2008) (second emphasis added). And, as Bruen instructs, this is particularly so where, as here, the challenged law implicates “unprecedented societal concerns or dramatic technological changes.” 142 S. Ct. at 2132. Third, Bruen’s analysis reveals that a small number of laws can be sufficient to establish this nation’s tradition of firearm regulation, at least so long as there is not overwhelming affirmative evidence of an enduring tradition to the contrary. Although not directly implicated here, given the robust historical record before the Court, we highlight that point in case the Court chooses to address it.
—id.
This is pretty clear. The first thing they do is argue that magazines are not arms. More, they place that burden on the plaintiffs (good guys). In many of the infringing cases, we see the state argue this. “AR-15s aren’t arms”, “Big magazines aren’t arms”, “Sawed off shotguns aren’t arms”, but a hunk-o-alumninum is an arm, a plastic stock is a machine gun as is a shoelace.
The second thing is, they argue that the court should look at 1868 as the date to understand what the Second Amendment means. We have discussed this in previous posts. The date of the 14th amendment’s ratification is the date at which 3/4s of the states agreed to accept the Bill of Rights as it was understood in 1791.
They did not redefine the meaning of the Second Amendment in 1868. They affirmed that they accepted it as it was understood in 1791.
Their final argument is that there has been “unprecedented societal concerns or dramatic technological changes” which means that they don’t have to match historical regulations as closely.
The last two arguments are very telling. It means that the state and state operators, such as Everytown, understand that there are no good matches to laws in the founding era. Since there are no good matches, they need to either change the time period or they need to open up what “a good match” means.
They also make the claim that a small number of laws will provide a “tradition and history” of analogous regulations. They are begging for the court to give them as much leeway as possible.
Plaintiffs Have Not Met Their Burden To Establish that the Second Amendment’s Plain Text Covers Their Conduct
I admit the reason I bothered to do the transcription for this case is because I was playing with my tools. I’m to the point where I am either going to have to learn more, write my own, and learn enough about deep learning and AI training to be able to get the results I want.
Just to give you an idea of where all of these sit, three separate “AI”s worked to produce the video and transcript.
The first one is used to convert speech to sound. It is trained on around 680,000 hours of audio data. On my system, it runs at either 1:10 if I use the large data set and at about 8:1 if I use the small data set. The small data set runs on my GPU. The large does not.
The second AI is tasked with segmenting the audio. That is, it listens to the audio and finds where there is speech and where there is not speech. It can go further and detect that the speech is different. This has nothing to do with turning sounds into words nor in identifying the speakers, just labeling the audio for the next “AI”.
The third AI further segments the audio by speaker. It then clusters the different segments and assigns them a label. These labels correspond to individual speakers.
Finally, the NI (natural intelligence) uses inferences to determine the name of the person who is associated with each speaker.
The audio recording has some of the audio missing from the front. Read More
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. Read More
This is the oral arguments for the above case. This is an AW/LCM ban case.
I hope you don’t have high blood pressure. I’m going to be reading this tomorrow and figuring out what some of the dumbest things said were.
Case argued by Erin Murphy for Amicus Curiae National Shooting Sports Foundation, Inc. and Ms. Sarah A. Hunger for Appellee State of Illinois in 23-1353, Gilbert Dickey for Appellant Javier Herrera, Ms. Sarah A. Hunger for Appellees Brendan F. Kelly and Kwame Raoul and Jessica M. Scheller for Appellees Toni Preckwinkle and Cook County, Illinois in 23-1793, Ms. Sarah A. Hunger for Appellants Brendan F. Kelly and Kwame Raoul and Erin Murphy for Appellees Caleb Barnett, Brian Norman, Hood’s Guns & More, Pro Gun and Indoor Range and National Shooting Sports Foundation, Inc. in 23-1825, Attorney Mr. Thomas G. Maag for Appellees Jeremy W. Langley, Timothy B. Jones and Matthew Wilson in 23-1827. [157] [7320281] [23-1353, 23-1825, 23-1793, 23-1826, 23-1827, 23-1828] (KRA)
Case heard and taken under advisement by panel: Frank H. Easterbrook, Circuit Judge; Diane P. Wood, Circuit Judge and Michael B. Brennan, Circuit Judge. [156] [7320278] [23-1353, 23-1825, 23-1793, 23-1826, 23-1827, 23-1828] (KRA)
Robert Bevis v. City of Naperville, 23-1353, (7th Cir.)
When you read court opinions, it is sometimes hard going. I use the term “emotional blackmail” to describe the type of argument which is based on feels instead of facts.
The children will die if you don’t… Women will die in back alley abortions if you… People will solve disagreements in bloody gun fights if you…
It reminds me of the teacher who once told me that she was terrified of people having a gun in the school. If she said something bad about their precious child, the parent might snap and shoot her. If a parent is willing to murder her for her attitude, why aren’t they beating the crap out of her now?
In —Ocean State Tactical, LLC v. State of Rhode Island, No. 23-1072, slip op. at 1 (Court of Appeals for the First Circuit) all the concurring opinions start with facts. I have only double-checked Roberts’ opinion written for the court. When the liberals start their opinions, it is about goals. They want to reach a particular goal, and they tell you why that goal is good, and you should just do “the right thing” without letting that pesky constitution get in the way. Read More
B.L.U.F. A look at the recent Affirmative Action case before the Supreme Court.
Originally, I intended to take Jackson apart with her own words. Instead, this is the Constitutionalist on the Court doing it for me. Having read Roberts’, Thomas’ and Gorsuch’s opinion and concurrence, it is pretty obvious that they are not sitting silent anymore regarding the opinions issued by the least qualified justices ever(?).
It is sad when you look to Sotomayer for the “reasonable” and “well reasoned” opinion from the left.
It has been another bumper term for conservatives at the Supreme Court. We have a couple of amazing wins, again.
I want to start with the following:
ROBERTS, C.J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion. GORSUCH, J., filed a concurring opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a concurring opinion. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN, J., joined, and in which JACKSON, J., joined as it applies to No. 21–707. JACKSON, J., filed a dissenting opinion in No. 21–707, in which SOTOMAYOR and KAGAN, JJ., joined. JACKSON, J., took no part in the consideration or decision of the case in No. 20–1199
—Ocean State Tactical, LLC v. State of Rhode Island, No. 23-1072, slip op. at 1 (Court of Appeals for the First Circuit)
This defines this court. On one side we have Thomas, Alito, Gorsuch, Kavanaugh, Barrett and sometimes Roberts. On the other side we have Sotomayer, Kagan, Jackson. In any case of “social impact” you can be sure that the three of them will be lock-step.
The media constantly yaps about getting one of the conservative justices to join the left. It happens. I don’t like it when it happens. The conservative judges who move over that line do so because that is what the constitution says. Not because they want a particular outcome.
In the same way, we often hear about some nasty piece of legislation where the democrats are trying to get a rhino to betray us. When Joe Manchin didn’t vote lock step with the democratic machine, I had to check the temperature in hell.
Chief Justice Roberts wrote this opinion. He made no bones about his opinion of the critical thinking of Justice Jackson:
JUSTICE JACKSON attempts to minimize the role that race plays in UNC’s admissions process by noting that, from 2016–2021, the school accepted a lower “percentage of the most academically excellent in-state Black candidates”—that is, 65 out of 67 such applicants (97.01%)—than it did similarly situated Asian applicants—that is, 1118 out of 1139 such applicants (98.16%). Post, at 20 (dissenting opinion); see also 3 App. in No. 21–707, pp. 1078–1080. It is not clear how the rejection of just two black applicants over five years could be “indicative of a genuinely holistic [admissions] process,” as JUSTICE JACKSON contends. Post, at 20–21. And indeed it cannot be, as the overall acceptance rates of academically excellent applicants to UNC illustrates full well. According to SFFA’s expert, over 80% of all black applicants in the top academic decile were admitted to UNC, while under 70% of white and Asian applicants in that decile were admitted. 3 App. in No. 21–707, at 1078–1083. In the second highest academic decile, the disparity is even starker: 83% of black applicants were admitted, while 58% of white applicants and 47% of Asian applicants were admitted. Ibid. And in the third highest decile, 77% of black applicants were admitted, compared to 48% of white applicants and 34% of Asian applicants. Ibid. The dissent does not dispute the accuracy of these figures. See post, at 20, n. 94 (opinion of JACKSON, J.). And its contention that white and Asian students “receive a diversity plus” in UNC’s race-based admissions system blinks reality. Post, at 18.
The same is true at Harvard. See Brief for Petitioner 24 (“[A]n African American [student] in [the fourth lowest academic] decile has a higher chance of admission (12.8%) than an Asian American in the top decile (12.7%).” (emphasis added)); see also 4 App. in No. 20–1199, p. 1793 (black applicants in the top four academic deciles are between four and ten times more likely to be admitted to Harvard than Asian applicants in those deciles).
—id.
Attempts to minimize? That is very harsh language from one Justice to another. We see Justice Jackson attempting to lie with statistics and being called on it. If we say that there is a 25% failure rate, that sounds harsh. If we’ve only done 4 tests and only the first one failed, it is not so bad.
On the other hand, saying that 100s of people are dying at amusement parks it sounds pretty bad. Until you run the numbers and find that it 201 deaths over 20 years when amusement parks are handling millions of visitors each per park. (Busch Gardens Tampa Bay theme park averaged 4 million visitors per year from 2009-2019. It fell off during the panic.)
Jackson attempted the same thing. She claims that because 65/67 == 97.01% and 1118/1139 == 98.16% that Asian applicants are who actually have the advantage.
The importance of “The Question” is shown in footnote 2:
Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. §2000d. “We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.” Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although JUSTICE GORSUCH questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself.
—id. at 2
Emphasis added. The court was not asked to give their opinion on Title VI vs. the Equal Protection Clause of the Fourteenth Amendment. Because they were not asked, they leave things as they currently are. This is an important takeaway.
Just because the Supreme Court doesn’t strike something down as unconstitutional, that doesn’t mean that it is constitutional. If they aren’t asked, they aren’t supposed to give an opinion.
This is why dicta is important. It tells the inferior courts(—id. at 5) how to rule in cases in the same areas. The idea being that the inferior courts will “do the right thing”, follow the lead of the Supreme Court.
The Supreme Court has said that there is a right to keep and bear arms. The inferior courts should follow that lead. Unfortunately, too many of the inferior courts would prefer that there was no individual right to self-defense.
Roberts takes another pot shot:
For that reason, one dissent candidly advocates abandoning the demands of strict scrutiny. See post, at 24, 26–28 (opinion of JACKSON, J.) (arguing the Court must “get out of the way,” “leav[e] well enough alone,” and defer to universities and “experts” in determining who should be discriminated against). An opinion professing fidelity to history (to say nothing of the law) should surely see the folly in that approach.
—id.
And:
JUSTICE JACKSON contends that race does not play a “determinative role for applicants” to UNC. Post, at 24. But even the principal dissent acknowledges that race—and race alone—explains the admissions decisions for hundreds if not thousands of applicants to UNC each year. Post, at 33, n. 28 (opinion of SOTOMAYOR, J.); see also Students for Fair Admissions, Inc. v. University of N. C. at Chapel Hill, No. 1:14–cv–954 (MDNC, Dec. 21, 2020), ECF Doc. 233, at 23–27 (UNC expert testifying that race explains 1.2% of in state and 5.1% of out of state admissions decisions); 3 App. in No. 21–707, at 1069 (observing that UNC evaluated 57,225 in state applicants and 105,632 out of state applicants from 2016–2021). The suggestion by the principal dissent that our analysis relies on extra-record materials, see post, at 29–30, n. 25 (opinion of SOTOMAYOR, J.), is simply mistaken.
—id. at 5–6
Math says that about 700 in state applicants and 5,400 out of state applicants were determined solely based on their race.
This appears to be the gist of the dissents’ argument, as expressed by Roberts.
The dissenting opinions resist these conclusions. They would instead uphold respondents’ admissions programs based on their view that the Fourteenth Amendment permits state actors to remedy the effects of societal discrimination through explicitly race-based measures. Although both opinions are thorough and thoughtful in many respects, this Court has long rejected their core thesis. The dissents’ interpretation of the Equal Protection Clause is not new. In Bakke, four Justices would have permitted race-based admissions programs to remedy the effects of societal discrimination. 438 U. S., at 362 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part). But that minority view was just that—a minority view. Justice Powell, who provided the fifth vote and controlling opinion in Bakke, firmly rejected the notion that societal discrimination constituted a compelling interest. Such an interest presents “an amorphous concept of injury that may be ageless in its reach into the past,” he explained. Id., at 307. It cannot “justify a [racial] classification that imposes disadvantages upon persons … who bear no responsibility for whatever harm the beneficiaries of the [race-based] admissions program are thought to have suffered.” Id., at 310.
—id. at 6–7
The liberals on the court believe that we have to enforce racial discrimination to combat racial discrimination. It reminds me of the often quoted line from Vietnam, “We had to destroy the village in order to save it.”
The dissents here do not acknowledge any of this. They fail to cite Hunt. They fail to cite Croson. They fail to mention that the entirety of their analysis of the Equal Protection Clause—the statistics, the cases, the history—has been considered and rejected before. There is a reason the principal dissent must invoke Justice Marshall’s partial dissent in Bakke nearly a dozen times while mentioning Justice Powell’s controlling opinion barely once (JUSTICE JACKSON’s opinion ignores Justice Powell altogether). For what one dissent denigrates as “rhetorical flourishes about colorblindness,” post, at 14 (opinion of SOTOMAYOR, J.), are in fact the proud pronouncements of cases like Loving and Yick Wo, like Shelley and Bolling—they are defining statements of law. We understand the dissents want that law to be different. They are entitled to that desire. But they surely cannot claim the mantle of stare decisis while pursuing it.
—id. at 8–9
Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown. 347 U. S., at 495 (emphasis added). It depends, says the dissent.
That is a remarkable view of the judicial role—remarkably wrong. Lost in the false pretense of judicial humility that the dissent espouses is a claim to power so radical, so destructive, that it required a Second Founding to undo. “Justice Harlan knew better,” one of the dissents decrees. Post, at 5 (opinion of JACKSON, J.). Indeed he did:
[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy, 163 U. S., at 559 (Harlan, J., dissenting).
—id. at 9
For the best fun in reading this opinion, just look at the footnotes. That is where they take shots at each other. There is also a nod from Thomas back to the Bruen opinion.
