B.L.U.F. Another District Judge gets it wrong because they are another rogue judge.
The first thing we notice is that judge Rudolph Contreras uses the Ocean State Tactical v. Rhode Island to get his definitions.
When a multiple-round device like an LCM is attached, a handgun becomes a ‘semiautomatic’ weapon, meaning that it is capable of rapidly firing several bullets, one right after another.—HANSON v. DISTRICT OF COLUMBIA, No. 1:22-cv-02256, slip op. at 2–3 (District Court, District of Columbia) quoting the judge in Ocean State Tactical.
He also plays the language game. The law talks about “ammunition feeding devices”. He switches to “magazine” and once there talks about them as simple boxes. This is precisely the issue that the recent briefing to the Supreme Court addressed. By using the term “ammunition feeding device” throughout their brief, they make a solid case for why it is an arm and not just a box.
The good news is that the plaintiffs (good guys) did establish standing. All the plaintiffs have licenses to carry in D.C. All of them declared that but for the regulation, they would carry ammunition feed devices capable of holding more than 10 rounds. And some of them attempted to register firearms and were denied because the feed devices were “too big”.
Here we start to see the thumb on the scale
On December 1, 2022, the Court permitted three nonprofit organizations, Brady, Gifford Law Center to Prevent Gun Violence, and March for our Lives to jointly submit an amicus brief in support of the District.—id. at 4. I have yet to find a 2A case where these groups don’t have their grubby fingers in there, pounding the table and attempting emotional blackmail.
Double emphasis added.
It is only complicated when you are looking for what is not there. “Shall not be infringed” means don’t infringe. What aren’t you supposed to infringe on? “The right to keep and bear arms”. Whose right is it? “The People”.
Is this a BLEEP gun control regulation? Yes? Then it is an infringement. FULL STOP. Game over.
When a court looks at the plain text of the Second Amendment and starts arguing semantics, you know it will be a shitty day for the Second Amendment. He knows, we know, and the state knows that the regulation is part of gun control regulations.
The judge isn’t doing shitty pull quotes, he is giving context and using more complete quotes:
Heller also cautioned that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.”
the Supreme Court stated that “the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Thus, the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.”
And the Court did not “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
This isn’t the pull three words from here, 2 words from there and glue them together with your own words to make them mean what you want to. He still pulls the magic words from Heller that every infringing bastard hangs his particular infringement on.
—id. at 6
This was the game played. In this paragraph, we see that in Heller II the court got all the way to the “in common use” test and then punted. There is nothing in Heller that limits lawful use to
specifically for self-defense or hunting—Memorandum & Opinion – #28 in HANSON v. DISTRICT OF COLUMBIA (D.D.C., 1:22-cv-02256), No. 1:22-cv-02256 The D.C. Circuit court added that out of whole cloth. It wasn’t there, it isn’t there, it was never part of the Heller opinion.
Today they are trying even harder with the phrase “in common use for self-defense”. There is a good reason for that change in language.
Before Bruen the inferior courts did just what the D.C. Circuit court did in Heller II,
the Circuit expressly declined to resolve the first step on the merits, instead assuming without deciding that the first step was satisfied.—id.
If the courts had actually decided that ammunition feeding devices were arms in common use for lawful purposes, that would have become case law. As case law, it could have been used in other cases to build up a body of caselaw which moves more and more arms under the protection of the Second Amendment.
By “assuming without deciding” the courts were able to bypass that risk. The courts then went on to level of scrutiny.
Before Bruen the courts often did the two-step shuffle. But they almost always “assumed” the first step in favor of the plaintiffs. The plaintiffs aren’t going to appeal when the court agrees with them. No superior court would hear that appeal. The state isn’t going to appeal that opinion because they don’t care.
The courts then moved to the second stage, picked a level of scrutiny which allowed them to find for the state.
This is sad, if they had done the first step right, today we could point to Heller II and say, “The Supreme Court said that the two-step analysis was one step too far. The first step was generally consistent with Heller. Heller II said that LCMs are arms in common use for lawful purposes, satisfying the first stage of Bruen“.
We can’t. The courts never gave us anything concrete to hang our current cases on. So we do the same battles over and over again.
Again, the court uses good citing
Analogical reasoning “is neither a regulatory straightjacket nor a regulatory blank check.—id. at 8
Do the plaintiffs have standing?
The Court finds that at least one Plaintiff, Tyler Yzaguirre, has demonstrated a substantial likelihood of standing because he was denied registration for a firearm on the ground that its magazine had a 12-round capacity in violation of D.C.’s LCM ban.—id. at 10 The court then continues explaining that the plaintiffs didn’t do a good job of showing they had standing, but the state didn’t argue that they didn’t. The entire section on “Do they have standing?” is purely in the court’s hands.
Does the plain text of the Second Amendment cover the individual’s conduct?
Here, the judge goes off the rails:
… the first question in this case is whether the Second Amendment covers LCM possession—id. which he answers with
The Court holds that the answer to the first question is no.—id.
This court knows it is on shaky ground with this opinion. We know this because the judge immediately says
Although that alone resolves the case for the District, the Court will nonetheless proceed to analyze the second question and hold that in the alternative, …—id. at 10–11
When a court knows that they got it right, they don’t go to the effort to provide “even if I got this part wrong, this other part is right”.
The Court will therefore follow the persuasive reasoning of ANJRPC, Kolbe, and Duncan in concluding that LCMs are “arms” within the meaning of the Second Amendment.—id. at 14.
Are they in common use for lawful purposes?
Ok, from that quote, I’m going to guess that the court thinks that they are not in use for lawful-purposes by law-abiding people.
Plaintiffs seize on this observation as if it alone decides the question of whether LCMs are covered by the Second Amendment. It does not. Heller II’s comment was dicta because the Circuit ultimately assumed, without deciding, that LCMs were covered by the Second Amendment.
—id. at 15 As I stated above. All the cases where the Circuits said that something was assumed to be protected under the plain text of the Second Amendment don’t count.
—id. at 16
Did you see the sleight of hand? We went from “in common use for lawful purposes” to “in common use for self-defense”, with “self-defense” defined as “shots fired”.
Most Useful in Military Service
—District of Columbia v. Heller, 467 U.S. 837, 2817 (2008)
This is the only time that “most useful in military service” is mentioned in Heller
Here is how the court quoted it:
Heller specifically contemplated that “weapons that are most useful in military service” fall outside of Second Amendment protection.—Memorandum & Opinion – #28 in HANSON v. DISTRICT OF COLUMBIA (D.D.C., 1:22-cv-02256), No. 1:22-cv-02256, slip op. at 16. The court didn’t get that from Heller though. Instead, they pulled the quote from —Duncan v. Bonta, 19 F. 4th 1087, 1106 (9th Cir. 2021)
The Fourth Circuit concluded that, “[w]hatever their other potential uses … large-capacity magazines … are unquestionably most useful in military service.” quoting Kolbe
A plain reading of the text of Heller shows that they are not claiming that “most useful for military purposes” is outside the protection of the Second Amendment.
—id. n. 22
BUMATAY, Circuit Judge, with whom IKUTA, and R. NELSON, Circuit Judges, join, dissenting
The dissents in Duncan v. Bonta are quite spectacular. I’m going to have to read them. I believe that Duncan is back at the 9th. Circuit after a GVR from the Supreme Court.
The gist is that this judge wanted to find for the state. He did it by finding that ammunition feeding devices are not covered arms under the protection of the Second Amendment. According to the court, they can’t be in common use for lawful purposes because the Military finds them more useful than civilians.