Gun Free Zone

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Case Analysis Legal

DSSA v. Del. Dept. of Safety and Homeland Security

Byawa

Mar 29, 2023

B.L.U.F. District Court of Delaware Judge Richard Gibson Andrews decided on 2023-03-27 that a ban on some firearms and some magazines was constitutional in denying a preliminary injunction.
Slight updates to correct spelling and Judge’s name.
Delaware State Sportsmen’s Association, Inc v. Delaware Department of Safety and Homeland Security (1:22-cv-00951)

Prior to Bruen the courts used a two step analysis that first determined if the regulation touched on the core right of the Second Amendment, self-defense. If it did then they then used a means-end balancing act where they considered just how much infringing was being done (just how much rape was done to you Mrs Jones? If it wasn’t too much rape then it really isn’t a big case and we don’t need to prosecute him as a felon.)

Once the courts had determined there was infringement and had established just homehow much that infringement harmed the individuales core civil rights it used a balancing act against the public need as defined by the state. Thus if the state said that the regulation was going to make the public safer that would be balanced against just how much the individual was effected. The individual almost always lost this game.

Post Bruen there are still two steps, the first step is determine whether ‘the Second Amendment’s plain text covers an individual’s conduct’ — Memorandum Opinion at P.6 quoting Bruen. If the answer is yes, then the burden shifts to the state to show a history and tradition of analogous regulation from the time of the founding.

If it is an arm then the individual’s conduct is presumptively protected by the Second Amendment.

In order to win the case, the state has to prove only one of the following:

  • The plaintiffs do not have standing
  • There is no acceptable remedy that the court can enforce
  • That the regulation does not cover an arm
  • That the regulation isn’t a regulation
  • That the arm is unusual and dangerous
  • That there is a history and tradition of this type of regulation
  • That there is a new societal problem that the regulation of this arm addresses allowing for a more nuanced match to hisotry and tradition

Standing

This is always going to be a battle. If the state can argue a lack of standing on even some part of the challenged regulation then it can protect parts of that regulation.

Out in Oregon it looks like they are attempting to moot multiple cases by changing the law to allow something for the next few years. Since it isn’t actually banned at this moment in time there is no standing.

The Court Has No Remedy to Offer

This is an argument that gets made but nothing I’ve seen so far indicates that it is making any impact on the cases. It is more as if there is a standard template to follow and this is part of that template.

It Is Not An Arm

The state will argue that a particular thing is not an arm so it can be banned. We see this with things like magazines and stocks and other bits and pieces. Some of these things might pass muster as “not an arm” others most definitely are.

It is pretty clear that ammunition is an arm under the Second Amendment. The infringers will attempt to argue that they can ban bullets, types of bullets, ammunition components and all sorts of other things all while claiming it doesn’t infringe. At this time there are multiple cases moving forward regarding magazine bans.

It Isn’t An Arm’s Regulation

This is where the arguments get stupid. Unfortunately it has been going on for many many years. This is the use of the states authority to tax or charge fees in order to infringe.

In New Jersey the state is arguing that paying $100/year for a permit to carry is reasonable. NH permit to carry is $2/year. The infringing states have no issues attempting to price people out of their rights. All while claiming they aren’t infringing.

Begun in the 1890s as a legal way to keep African Americans from voting in southern states, poll taxes were essentially a voting fee. Eligible voters were required to pay their poll tax before they could cast a ballot. A “grandfather clause” excused some poor whites from payment if they had an ancestor who voted before the Civil War, but there were no exemptions for African Americans.
— Poll Taxes

You would think that the state would understand that poll taxes are unconstitutional.

Unusual and Dangerous

This is where much of the argument goes.

In the Heller Court they stated that it is not the state that gets to decide if something is “[unusually] dangerous”. The People have made that determination if the arm in question is in common use. By definition all arms are dangerous. To even come close to being unusually dangerous it has to be more dangerous than something else.

The state spends a lot of time in trying to say that certain classes of arms or actions are unusually dangerous.

Unfortunately for us, they have no problem in introducing people that are not experts as experts just to get the court to hear how awful something is.

This last characteristic[, inflicting severe wounds,] is one that Defendants discuss at length. (Id. at 21-22). Because an assault rifle bullet travels at multiple times the velocity of a handgun bullet, it imparts an “exponentially greater” amount of energy upon impact. (D.1. 37-2, Ex. 12 at 3). Furthermore, as the result of its high speed, an assault rifle bullet typically “yaws” upon contact with tissue, meaning that the bullet turns sideways. (D.1 . 42 at 26-27). The resulting wounds are “catastrophic.” (D.I. 37 at 21). Upon passing through a target, the bullet’ s “blast wave” creates a temporary cavity that can be “up to 11-12.5 times” larger than the bullet itself. (D.I. 37-2, Ex. 12 at 4; D.I. 42 at 27). The yaw movement of the bullet can cause it to fragment upon striking bone, contributing to additional tissue damage extending beyond the cavity. (D.I. 42 at 27). Doctors who treat victims of assault rifles encounter “multiple organs shattered,” bones “exploded,” soft tissue “absolutely destroyed,” and exit wounds “a foot wide.” (D.I. 37-2, Ex. 12 at 2, 6). Due to their severity, these injuries often cannot be repaired. (Id. at 4). Handgun bullets, by contrast, only injure a structure by striking it directly; although they produce a small temporary cavity, that cavity “plays little or no role in the extent of wounding.” (D.I. 42-1 , Ex. 1 at p. 183). The power and velocity of assault rifle bullets pose a particularly high risk to law enforcement officers. (D.I. 37 at 22). Although the body armor typically issued to law enforcement officers protects against most handgun bullets, it is not designed to withstand the high-velocity bullets described above; assault rifles therefore “readily penetrate” such body armor. (D.I. 42 at 55).
— Memorandum Opinion at P. 22

There is no wound ballistics expert that has ever testified to such destructive effects of 5.56×45 rounds. None. All of the testimony presented by the states in regards to wound ballistics has been done by people that are not qualified as experts and should have been disqualified from testifying under Federal Rule 702. Testimony by Expert Witnesses.

All of this ignores that it does not matter under Bruen. there is no balancing of “dangerous” in the findings of Bruen as confirming Heller. Heller is still good law.

It is not a question of how dangerous, it is a question of is it an arm.

Because Heller tells us It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. — Heller at P.2818 In other words, We The People choose to use a particular arm in significant numbers then by definition it is not unusually dangerous.

In addition the state is always trying to shift the definition given in Heller from “in common use for lawful purposes” to “in common use for self-defense” where the state claims The People have to prove that the particular arm has been used in self-defense.

So the AR-15 in its rack in my bedroom isn’t in use for self-defense, according to the state. But Kyle’s AR-15 was in use but that didn’t count because he actually killed people with his arm of choice.

My fire extinguisher is in use right now because it is at hand ready to fight a fire. My insurance is in use right now, it is there if another falling tree limb hits my roof. My smoke detectors are in use right now, even though they only go off to tell me my son is cooking. My AR-15(s) are in use right now because it is at hand ready to fight.

There is History and Tradition of This Type of Regulation

The state, in multiple cases, has not been able to establish any historical tradition of regulations that match gun bans or magazine bans.

There is a History and Tradition of This Type of Regulation If You Squint Real Hard

Here is the language that the state is betting on cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach. — Bruen at 2132

The Bruen Court was concerned about making sure that there was some way to match regulations from 1791 to current laws, if such regulations existed. Therefore they added this text, in my opinion. The idea being that if something truly unusual comes along the state can match a new regulation to a less similar regulation from the founding era as justification.

If there was a law in the 1790’s that banned people from using poison darts that might be used to justify a ban today of bullets carrying a poison. Even though the darts in question were hand tossed.

It is hard to come up with these similar enough for a ban but not similar enough to use as is.

The state is attempting to get the definition loosened to the point where they can use fire code, surety laws, and carry laws to be close enough to allow them to ban arms.

The Dunce Report

With these principles in mind, I begin by examining the regulations at issue here. HB 450 and SS 1 for SB 6 were enacted in the immediate aftermath of several mass shootings. On May 24, 2022, a gunman used an AR-15 style rifle and 30-round magazines to murder nineteen students and two teachers at an elementary school in Uvalde, Texas. (D.I. 37 at 2). This occurred only ten days after another mass shooting, in which a gunman used an AR-15 style rifle and 30-round magazines to murder ten people in a grocery store in Buffalo, New York. (Id). Delaware enacted HB 450 and SS 1 for SB 6 approximately one month later, with the stated purpose of furthering Delaware’s “compelling interest to ensure the safety of Delawareans.” HB 450. The preamble to HB 450 references both tragedies, as well as “dozens more mass shootings during the last decade,” and notes several exceptional dangers of “assault-style weapons,” including their “immense killing power,” military origins, and disproportionate use in mass shootings. Id
— Opinion at P.20

Post Bruen the emotional blackmail no longer has any place in court. The fact that nearly 400 cowards stood around and let children die is not cause for the courts to take my rights. The big takeaway from the Bruen opinion was that the only things that mattered were text, history and tradition. There was no interest balancing. Anytime a judge talks about social good of a regulation without immediately saying “It doesn’t matter” is not getting it right.

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.
— United States v. Rahimi — Opinion United States Court of Appeals for the Fifth Circuit

In this example we see the Fifth Circuit nailing it. This is what Judge Andrews should have done.

In Judge Andrews’ case he is using the testimony of R. Spitzer. Neither were repeating rifles popular during the Civil War and Reconstruction; during these periods, they were used sparingly as military weapons and were available for civilian acquisition in limited numbers. — Opinion at P. 20. Judge Benitez, in California, pointed out in a hearing on Duncan v. Bonta that R. Spitzer’s testimony could be easily disproved just by going to the Winchester web page which showed that civilians bought thousands and thousands of lever action rifles, from Winchester alone.

Judge Andrews goes on, accepting the states argument that assault weapons and LCMs implicated unprecedented societal concerns — Opinion at P. 21 This is the hook the state wanted. This allows them to bypass history and tradition.

In sum, I find that Defendants have sufficiently established that assault long guns and LCMs implicate dramatic technological change and unprecedented societal concerns for public safety.
— Opinion at P.23

He had no need to make that finding of fact. It is irrelevant to Second Amendment law.

All of this is to allow Judge Andrews to find that laws on conceal carry, and Bowie knife regulations justify an “Assault weapon and LCM” ban.

The plaintiffs(good guys) pointed out that the NFA was put in place to stop criminal use of machine guns and thus did not apply to an outright ban on The People. The Judge turned this around to say that the NFA banned machine guns The Tommy gun was rarely used by criminals. (D.I. 40 at 31). Its association with criminal activity was the product of the public’s growing awareness of devastating, high-profile shooting incidents, as well as the rise of lurid and sensational news reports covering gun crime. — Opinion at P.26

And here is the money shot:

I think that, to the contrary, these historical regulations are “relevantly similar” to the regulations at issue in the two “central” respects identified by the Supreme Court: they impose comparable burdens on the right of armed self-defense, and those burdens are comparably justified. Bruen, 142 S. Ct. at 2132-33. First, both sets of regulations impose a “comparable burden.” Indeed, the burden that the challenged regulations impose is slight. This is where Defendants’ suitability arguments-which I dismissed in supra Section III.A.1-become relevant. As discussed, Defendants have shown that LCMs with more than 17 rounds are “unnecessary for self-defense,” as individuals in self-defense situations rarely fire even 10 rounds (D.I. 37 at 19), and the record does not reflect that any firearms require LCMs to operate. (D.I. 48 at 1). Defendants have shown the same with respect to assault weapons, which, too, are rarely used defensively. (D.I. 37 at 19). Furthermore, some of the historical regulations are broader than the challenged statutes. For example, multiple nineteenth-century laws regulating melee weapons were blanket restrictions on the carry of entire categories of weapons. (D.I. 40 at 13 (noting laws “barring the category or type of knife embodied by the Bowie knife but without mentioning them by name”)). HB 450, by contrast, is not a categorical ban; the “assault long guns” it prohibits are specifically enumerated. 11 Del. C. § 1465(2). Accordingly, I find that the LCM and assault long gun restrictions of HB 450 and SS 1 for SB 6 do not impose a greater burden on the right of armed self-defense than did analogous historical regulations.

Second, the burden imposed by both sets of regulations is “comparably justified.” The modem regulations at issue, like the historical regulations discussed by Defendants, were enacted in response to pressing public safety concerns regarding weapons determined to be dangerous. HB 450 and SS 1 for SB 6 responded to a recent rise in mass shooting incidents, the connection between those incidents and assault weapons and LCMs, and the destructive nature of those weapons. See HB 450. Plaintiffs argue that these concerns are improper for me to consider, as they “implicate the sort of interest-balancing, means-end analysis” that the Supreme Court instructed lower courts not to undertake. (D.I. 44 at 8). I disagree. Although the Bruen Court rejected means-ends scrutiny, it nevertheless advised lower courts to, in determining whether modem and historical regulations are “relevantly similar,” consider “how and why the regulations burden a law-abiding citizen’ s right to self-defense.” 142 S. Ct. at 2 132-33 (emphasis added). See Oregon Firearms Fed ‘n, Inc. v. Brown, 2022 WL 1745829, at *14 (D. Or. Dec. 6, 2022) (” In considering whether Defendants are comparatively justified in imposing Measure 114 as were this Nation’s earlier legislatures in imposing historical regulations, this Court finds that it may consider the public safety concerns of today.”), appeal voluntarily dismissed, No. 22-36011 (9th Cir. Dec. 12 , 2022). 16 Accordingly, I find that Defendants are comparably justified in regulating assault long guns and LCMs “to ensure the safety of Delawareans.” HB 450.
— Opinion at P 26-28

There you have it. This Judge read all of the Bruen and Heller decisions and his take away was that what makes historical regulations from anytime “relevantly similar” is that the state says there is a match in “why” the bills were passed.

Under this dunces methodology any gun law passed from now on can be made right with the Constitution just by the state claiming it had passed the law to ensure the safety of [group] — Opinion at P. 28

Given that his reasoning for not granting the injunction is based on means-end he goes on to say that the plaintiffs will not suffer irreparable harm.

When an alleged deprivation of a constitutional right is involved … most courts hold that no further showing of irreparable harm is necessary — Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2948.1 (3d ed. 2022)

This is how irreparable harm has been defined in regards to our core civil rights, Judge Andrews wiggles a bit: Although First Amendment deprivations, even for “minimal periods of time,” are presumed to be irreparable injuries, Elrod v. Burns, 427 U.S. 347, 373 (1976), neither the Supreme Court nor the Third Circuit have explicitly extended that holding to the Second Amendment. — Opinion at P. 29

So he can’t follow the Supreme Court’s instructions to inferior courts regarding the Second Amendment because he knows better and then decides, on his own, that since nobody told him that the Second Amendment was protecting a core civil right it can be treated as a second class right.

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By awa

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7 thoughts on “<i>DSSA v. Del. Dept. of Safety and Homeland Security</i>”

  1. So all he’s doing is delaying the inevitable and costing the state more money in legal fees when his decision gets overturned at the next level.

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  2. For quite a while, I’ve wondered what something you post frequently means. Searching hasn’t explained it. Please post an explanation of “B.L.U.F.”

    2. I write long long articles. My normal writing style ends with a conclusion after presenting my supporting information. The military adopted a methodology to put the bottom line (conclusion) at the front of the article. This allows people to know the point they can better understand the supporting information.

      1. And it’s really helpful for those of us with short attention spa…oooh, look, a squirrel!

        1

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