B.L.U.F. — What’s with all these court cases and what does it all mean in the grand scheme of things?
How Come We Have To Work So Hard At This?
If everything was as it should be, when the Bruen Court issued their opinion all of the states would have looked at the laws they currently had in place, looked at what would not pass muster, and then would have created new legislation to bring the state into line with the Bruen decision. The infringing states could not bring themselves to do the right thing.
In fact some (all?) of the infringing states jumped on the “Bruen Response” bandwagon to see who could do the most harm to gun owners the fastest.
This starts the long, slow march back to the Supreme Court to get more of these infringements knocked down.
There is a game that is played to accomplish this because the infringing states want to continue to infringe.
In the best of their imaginary worlds only the people they control who are loyal to them would have guns. And those firearms would not be allowed out of the control of dear leader. In their warped world view a cop would travel to work on public transport, they would be issued their duty weapon(s) and would then do a tour. At the end, they would turn in all their duty weapons and ride public transport home.
There would be nobody to stand up to their will.
To get this they need to disarm The People. This means passing regulations that disarm the people.
The Fight, Standing
To fight this sort of thing we The People only have our voices in the ears of our representatives. When your representative hasn’t found an infringement they wouldn’t vote for it is hard for the second amendment side of things to make progress. It is only after there is regulation in place that The People can actively fight those laws.
Repeating what I’ve written before, to sue the government to stop a regulation you have to have standing, there has to be a remedy that the court can provide, there has to be a question.
So consider a new regulation with four dozen different infringements within it. To take just a couple, an infringement on your ability to get permission to carry your firearm without proving you are of good moral character and sections declaring places of worship and vehicle refueling stations “sensitive” or gun free zones.
The first thing that happens is that you have to prove standing. You claim that the sensitive places limits your right to bear arms. The state shows that you haven’t been to church except for your friends wedding 12 years ago. The court is not going to grant you standing to challenge the restriction on carrying in places of worship because it doesn’t apply to you.
It also turns out that you lost your driver’s license last year and have been using a bicycle for the last 5 years. Again the court is not going to grant you standing because there is no reason for you to enter a refueling location because you don’t need to.
The Fight, You Aren’t A Part of The People
Finally you claim that your rights are infringed because you have to prove that you have good moral character before you are granted government permission to exercise your right to bear arms. For this the court decides that you do have standing so the case can move forward.
The state now wants to attack your case so that there is no second amendment challenge. Under Bruen if the regulation touches fingers with the second amendment then there can be a second amendment challenge. So the state wants to make sure that there is no touching of fingers.
— District of Columbia v. Heller, 554 US 570 – Supreme Court 2008 at 2846
Here are the words from Heller that are what the state is attempting to use to exclude people and to allow for their infringements. The Heller court said in this dicta that it is the
law-abiding, responsible citizen [that has] the right to keep and use weapons in the home for self-defense — Id. According to the state, this allows them to judge you to make sure that you are law-abiding and responsible.
The language they use is “good moral fiber”. This language is not well defined and allows the state to use subjective measurements. In the Jim Crow era the laws required that voters be literate. The definition of “literate” was not well defined. In places in the south a white man only needed to be able to read something like “See Sally Run.” While the black man would be asked to read something like
vincam nequissimum et indocile genus illorum, et hoc puta vatem dixisse: quandoque ista gens suas litteras dabit, omnia conrumpet, tum etiam magis, si medicos suos hoc mittet — Cato the Elder or maybe something in Greek so that it had strange symbols. In some cases the poll workers would just show the black man a page of letters with no actual words.
Good moral fiber means whatever the state wants it to mean, at the time they apply it, to the people they apply it to.
If the state can get the court to agree that the supreme court has decided that the regulation being challenged does not touch on the conduct that you wish to pursue, then there is no case.
For the sake of argument, let’s assume that you do prevail. That you do have standing. That your conduct is infringed on by the regulation being challenged and that it touches fingers with the second amendment. Let’s continue with the court deciding that the regulation is unconstitutional and you win every appeal all the way through to the Supreme Court.
In our hypothetical case the Supreme Court rules that a “good moral fiber” requirement is unconstitional.
The rest of that horrible regulation, making places of worship and refueling locations legal gun free zones, still stands. The state puts severability clauses in all of these regulations.
— Law Insider – Clause – Severability Clause
In this example it is talking about an “agreement”. In legislation it would be “law” or “regulation” or other term representing that particular bill. With such a clause in place, each part of the regulation must be fought in court.
The Fight, It Ain’t An Arm
So far we’ve talked about standing and how the state works to use dicta to allow them to make exercising your right to keep and bear arms more difficult. The other thing that they do is they attempt to limit arms by limiting things that are not quite arms.
Is a rifle stock a firearm? No. Is it an “arm?” According to the state it isn’t. If it isn’t an arm then they can ban it.
So there are lots of ways that the state attempts to keep their regulations outside the umbra of the second amendment.
If the state requires that firearms be safe in order to be sold in their state is that an infringement or is that just product safety?
All of this is designed to allow the state to keep infringing.
We Are Winning
Regardless, we are winning. Each time a court, at any level, rules in favor of the second amendment, our stance becomes stronger.
When a district court rules that magazines are arms under the second amendment that ruling can be used in other courts to argue that magazines are arms under the second amendment.
Judges don’t really like to be first. They don’t mind being second. Being able to say “Using the well reasoned opinion of the such and such case in such and such court we find that …” is much safer for a judge than being the first to say it. One of the reasons that Judge Benitez is so revered by the second amendment community is that he was the first, in direct conflict with his bosses, the Ninth Circus court.
So we are watching these little wins show up again and again. We are finding things like the Fifth Circuit Court ruling that §922(g)(8) was unconstitutional. This was used in United States v. Connelly to good effect when that court ruled that §922(g)(3) and §922(d)3 were unconstitutional.
So far there has been only one circuit court setback, that was when the Eleventh Circuit Court ruled that Florida’s ban on 18-20 year olds was constitutional. That ruling didn’t survive out of the court before it was blocked, by the Eleventh Circuit. That’s right, the court looked at this ruling from a 3 judge panel and said “nope, not happening”. That case is moving to an en banc hearing.
Tactics and Strategy
From here we start to see the state making strategic decisions. There are many many anti-gun people out there that are very unhappy with New York. When the Supreme Court granted certiorari in Bruen they wanted NY to drop the “good cause” requirement to moot the case.
Because the state of NY didn’t do that, we now have the Bruen decision. This is WONDERFUL.
So right now we are looking at challenges from all over the place going on.
There are the challenges to AWB. These haven’t made it to the Circuit Court level yet. The 4th Circuit court had Bianchi v. Frosh GVR from the Supreme Court. They heard oral arguments in December. They are likely to rule that Kolbie is no longer good law and remand the case back to the district court.
This is a delay tactic. If they remand the case back to the district court it will take at least another year before the case is heard and decided. Longer if the District Court is anti-gun.
There are more AWB’s happening in different parts of the country. None of them have made it to the circuit court level on the way up.
At a strategic level the anti-gun courts might very well rule in our favor and remand the cases back to the district court a couple of times.
Regardless, each time a district court gives us a win, it helps build that platform for the next case to stand on.
The Rats Are Scrambling
To this end what we find is that many of the arguments the state makes is not of court rulings or opinions but instead on the fact that the state, in those cases where they lost at the district level, appealed.
This is sort of like announcing to the press that you have been granted “whistleblower status” by the state. What does it take to get that status? You fill out a form with the state saying you are a whistleblower. Or like claiming that the state thinks you are a great driver because the issued you a driver’s license.
The other place we are going to be seeing wins is in the courts ruling that magazines and such are arms under the second amendment. As these wins pile up it will get harder and harder for the state to get away with magazine bans.
Where we are seeing huge wins is in the dismantling of §922, the Gun Control Act. Multiple courts at the district level have found parts of §922(g) unconstitutional. As has the 5th Circuit. The state is going to appeal that one all the way up the chain.
My guess is that the Supreme Court wants those cases to get there. But I think that they are going to hear them on conference and not issue a decision on certiorari. This will leave those cases in limbo. This is what happened with Duncan v. Bonta It just sat at the Supreme Court for a very long time.
The Supreme Court can then choose to merge the different §922 challenges into one case and hear it as just a single case. This would allow the court to issue an opinion over more of §922 than just one part. While it would be nice to get §922(g)(3), unlawful user or addict of any controlled substance, ruled unconstitutional, or even §922(g)(8), Subject to court order being ruled unconstitutional. It would be much much nicer if the Supreme Court struck down §922 (a)(3) (buying out of state), (a)(4) moving SBRs or SBS across state lines, (a)(5) interstate gun sales and transportation, (a)(6) lying to the government when purchasing a firearm, (a)(7) limits on “armor piercing ammunition”, (a)(9) “sporting purposes”. (b)(1,3,4,5) (c) interstate sales, including internet sales, all of (d) transfer to prohibited persons, (e) Inform common and contract carriers that you are shipping a firearm, all of (g) prohibited persons.
If the GCA were to fall that might take the Hughes Amendment with it.
The other side of the coin is not pleasant. More and more we are seeing people using lawfare to attempt to destroy the firearms industry. They just opened a case against American Tactical claiming that AT is responsible because they sold 60 round magazines when some asshole shot up a FedEx facility in 2021.
This is the same sort of thing that is being done with the Uvaldi shooting where they are suing Daniel’s Defense.
It looks like the Supreme Court is eager to hear the next second amendment case. I expect it will be another strong case advancing our recovery of our second amendment rights.
3 thoughts on “Just What Do All These Legal Cases Mean?”
‘Lawfare’ isn’t a new tactic. Back in the late 90’s/early 00’s, deep blue cities started suing gun manufacturers/dealers/etc as third parties under ‘nuisance’ laws and anti-gun groups like the NAACP joined in the fun. They didn’t care about winning, they just wanted to bankrupt as many as they could. This pretty much ended w/ the PLCA act but w/ courts/states weakening/ignoring it, they’ve been cropping up again.
Tyrants gonna tyrant.
So, since it takes a long time to get there, the pro second amendment community must pass to their children the education required to remain in the legal fight. But as I look out over the American Societal Landscape, currently, it doesn’t look like we have protected our abilities to accomplish this essential responsibility.
Ironically, however, is the fact that more firearms are owned by Americans than at any other time in history. And it’s due to the culture war waged by the anti-second amendment crowd. I would like to know exactly who holds the majority of power on the issue of the right of the “people” (literally means citizen in the original context) to keep and bear arms, shall not be infringed. Do the pro-second amendment people have more power than the opposition? Where are the billionaires siding on this issue?
Teaching our children, the correct function of a “comma” and teaching them how to successfully wage the ideological war in defending the function of the comma, should be all that is required to win the battle……that is, if it is a fair fight, which it’s not. My guess is it will all come down to who wages actual physical war more effectively, ironically with a GUN with the high-capacity magazine.
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