After Heller, the law of the land was that if the proposed conduct implicated the plain text of the Second Amendment, then the history and tradition of arms regulation was examined. If there was an analogous regulation from the ratification of the Second Amendment, then the modern-day regulation was constitutional.
The rogue, inferior Article III courts then proceeded to take unimportant parts of dicta, focused on those crumbs with laser like intensity to discover that the state could still infringe.
Because the Supreme Court, in Heller was only deciding on a single question, there were laws that were not directly struck down. To put this in perspective, when Bruen was decided, there was only one law struck down, that being the good cause part of the NYC permitting requirement.
Every other law in the land still stood, exactly as it had been written.
When the Supreme Court GVRed several cases, no laws were vacated. Instead, the inferior courts were told “Do it over. Do it right.”
In Heller, the Supreme court told the inferior courts how to analyze Second Amendment challenges. Those rogue courts looked at the dicta, the crumbs, and decided to use an interest balancing test instead. They claimed that since the state was allowed to interest balance free speech, and because no right was absolute, that they should engage in interest balancing in Second Amendment cases.
This allowed the inferior, rogue courts, to decide just how badly a regulation was raping you, and then allow the state to argue it was in the best interest of the rest of the state’s subjects to allow you to be raped just that little bit.
Bruen was a slap in the face to those rogue, inferior courts. The major point of Bruen was to say, “We told you how to do it in Heller. You refused. So now we are going to explain it to you, in simple words, that even a lawyer can understand.”
If the plain text of the Second Amendment is implicated, the burden shifts to the state to show a history and tradition of analogous laws from the time of the ratification of the Second Amendment.
If it is an arm or if it is ancillary to the right to keep and bear arms, then we look to see if there is an infringement.
Samuel Johnson’s Dictionary, published in the 175 and 1773 defined “infringe” as:
- To violate; to break laws or contracts
- To destroy; to hinder.
If a regulation hinders your ability to keep or bear arms, then the Second Amendment is implicated.
This puts the burden on the state to find laws that match the modern-day law.
There were not any in the 1791. Thinking about it, The People have just done an interest balancing test of the right to keep and bear arms. The People have decided that this is one of the most important unalienable rights that must be protected from government overreach.
Because The People believe it to be a core, unalienable, right, they have enshrined protection of the right to keep and bear arms in their newly created Bill of Rights.
If the right to keep and bear arms is so essential to The People, is there any reason to expect them to be creating laws that destroy or hinder that right? No. There is no reason.
This means that the modern state has not been able to find analogous laws. They just don’t exist. They have to reach in to the 1600s or the late 1800s before they can find analogous laws. Even those laws are questionable.
What they did find were regulations that removed arms from people who were individually dangerous. Many of those regulations allowed for disarming a person for only the duration of the danger. A drunk person could be disarmed while drunk. When they were sober, their arms were returned.
If a person was dangerous, they could be incarcerated. While incarcerated, they would be disarmed.
If a person was too dangerous to possess arms, the state could make a finding of dangerousness, and disarm a person.
These infringements on an individual’s right to keep and bear arms are what the state is using to disarm us today.
Their stated reasoning is that since the state has the authority to disarm a dangerous person, the state also has the authority to determine if you are dangerous before allowing you to possess a firearm.
We argue that this is backwards. By default, we have the right to keep and bear arms. The state’s argument is that they have to be given a chance to prove you are dangerous before you can possess a firearm.
In Rahimi the Supreme Court pushed the state to articulate what criteria they were using to disarm Mr. Rahimi. The state dithered between “responsible” and “dangerous”. They want the criteria to be “responsible” because that is an easier objective standard to reach than “dangerous”.
It is fairly clear that Mr. Rahimi was not a responsible person. He had not been proven, in a court of law, by a jury of his peers, beyond all reasonable doubt, with a strenuous defense, that he was dangerous.
Translation: He has to have access to a lawyer and have his day in court.
When the state was backed into a corner by the Justices, they relented and stated that it was only the “dangerous” criteria that they actually could justify.
Conclusion
The state threw a bunch of stuff against the wall. Courts, such as Judge Benitez’s, and others have knocked most of the historical regulations out as not applying. The state is left with one potentially winning argument, disarming dangerous people.
Because that was determined to happen on an individual basis, the state is going to do their best to flip the argument from the state proving you are dangerous to you proving that you are not. If they can’t do that, they will push to have time to “verify” that you are not dangerous.
From this, I foresee a spat of regulations coming out of the infringing states regarding permits to purchase and other such infringements.
Have sensed the gradual aspect for a very long time (see Tucker Carlson’s latest in Las Vegas) but never pinned it down. Thank you for doing so.
Awa, dream on, dream on, for your dreams are based within morality and reason. I too share your dream, which can only come to be reality through the educational content people like you produce and publish. This blog and your contributions are indeed something to be very thankful for.
Agree.
A demonstrated dangerous person should not be allowed unfettered/unsupervised access to lethal force weapons or items easily used as as a lethal force weapon (yes…. I know that is anything… take the statement for its intent, not its words.) The operative phrase is dangerous, demonstrated to be dangerous, etc…
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Simply saying someone is not of “good moral character” is not enough. Having a restraining order filed against you is not enough. (OK, a bit closer, but not enough.) Having been in a bar fight 18 years ago is not enough.
Are you dangerous now? Will you be dangerous in the future?
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The gun control advocates will pull out their magical “future crime” fantasy and claim XYZ factor clearly demonstrates this individual is way too dangerous to be allow firearms. And, they are certainly allowed to have that opinion, but when they use it as a basis for gun control, they better prove it. Beyond any shadow of a doubt.
In Rahimi the Supreme Court pushed the state to articulate what criteria they were using to disarm Mr. Rahimi. The state dithered between “responsible” and “dangerous”. They want the criteria to be “responsible” because that is an easier objective standard to reach than “dangerous”.
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I think the State wants the criteria to be “responsible” because it’s a more subjective standard to reach than “dangerous”.
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“Dangerous” is easy to prove or disprove. There are (or can be) clear, objective definitions of what makes a person dangerous to themselves or others.
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“Responsible”, OTOH, is highly subjective.. Do you sometimes drive 3-5 mph over the limit? Irresponsible! Are you sometimes a day or two late on paying your bills? Irresponsible! (More on this in a moment.) Do you home-school your kids? “Substandard” education with limited State oversight == Irresponsible!
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Heck, by some definitions, taking your boys to Catholic church and enrolling them in the choir is irresponsible.
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If taking your kids to church, directly handling their education, or letting them play outside in your (fenced) front yard can be deemed irresponsible, then there’s literally nothing the State can’t use against you.
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There’s even another lawsuit against the Veterans Administration, challenging the policy of reporting people to the FBI to include them in NICS, if they name a third party as a fiduciary because they want help handling their finances. Does that make that person dangerous? No. Does it make them “irresponsible”? According to the VA, it demonstrates a mental incompetence that makes them unfit to own guns, even if the reason for naming a fiduciary is to do the responsible thing and make sure the bills get paid! (Plus, even though the need for a fiduciary is often temporary, inclusion in NICS is usually permanent.)
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Note that (except for the speeding) none of these examples are illegal. None of them (including the speeding) are inherently dangerous, either. But if some subjective definition of “responsible” were the legal standard, they could deny you your rights (and maybe even your kids) based on any of them, or on any other aspect of normal, daily life that someone, somewhere doesn’t like.
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And boy howdy, would the State love the power to deny you your rights based on your daily activities they don’t like!
FWIW permit to purchase took a hit yesterday when Oregon’s BM114 was declared unconstitutional under the state constitution. Of course they will waste taxpayer dollars fighting it.
Looking at recidivism rates of parolees, I’d say that The State is not a good judge of who is “dangerous.” I have no doubt that *some* politicians worry about the headlines when someone, not deemed “dangerous,” goes on to commit a crime with a firearm. When someone is victimized after being refused a firearm, it rarely comes out that they were disarmed because of state action (“unarmed person is victim of violent crime” is too much the norm).