B.L.U.F.
Judge Krause beclowns himself in his written dissent. He should have kept his mouth shut so people only thought him a foold. Instead, he chose to write his opinion, removing all doubt.
(2000 words)

The Third Circuit court declined to rehear Lara en banc. This left the merit panel’s opinion that 18, 19, and 20-year-olds are part of the people and their rights shall not be infringed.

Six of the 14 judges would have granted the rehearing. Judge Krause decided to beclown himself with a written dissent.

When The People ratified the Bill of Rights, they did not intend to bind the nation in a straightjacket. They intended to bind the government in a straightjacket.

Our constitution is unusual in that it is built around limiting the government as much as possible, while reserving for the state and the people as much power as they can retain.

The right of the people to keep and bear arms shall not be infringed. is some of the strongest language in the constitution. It is a straightjacket, binding the government. The government has succeeded in escaping that straightjacket. We are fighting to get it back into that straightjacket.

The Supreme Court, has stated many times, that the meaning of the plain text of the constitution is set when it was adopted and the meaning of the plain text of the amendments is set when the amendment is ratified.

The meaning of the 14th Amendment was set in 1868. The states may not abridge the privileges or immunities of citizens of the United States.

That does not define what those privileges and immunities are. In keeping with the first amendments and the constitution as written, it is a negative right. It is a bound on the government. A citizen of the United States is a part of “The People”. Their right to keep and bear arms is protected by the Second Amendment. The states cannot abridge those protected rights.

In addition, the Supreme Court found that the application of equal protection incorporates all the Federal Constitution above any state regulations. If this was not the case, then your rights, as protected by the federal constitution, could be abridged in different ways as you traveled through these United States.

When The People ratified the 14th Amendment, they agreed to be bound by the meaning of the plain text of the constitution when it was adopted and the meaning of the plain text of the amendments when they were ratified.

The Supreme Court has made this clear in many opinions. Regulations of the late 19th century can be used to bolster the meaning when an amendment was ratified, it cannot be used in place of regulations from the ratification/adoption.

Said differently, the laws of the 1870s can be used to show a tradition of a regulation existing from the founding era.

I am not a lawyer, I do not have hundreds of dollars per month to buy Westlaw Research. I am more than allowed to make general statements, such as “The Supreme Court has made this clear in many opinions.”

That would get me an ‘F’ on a legal paper. You don’t say “many” and expect the reader to know or to do the research for you. Instead, you quote and cite the actual opinions and documents.

There is not a single citation in that paragraph to support the claim [the Supreme Court] has relied on Reconstruction-era sources in each of its recent major opinions on the right to bear arms. —id. at 1.

The Supreme Court did acknowledge the “ongoing scholarly debate”. Guess what? It doesn’t matter in a court of law. The scholars can debate and argue as much as they want. They are not the experts in law. The state experts are the courts.

Baizuo Krause has admitted he wants to go back to pre Bruen methods. He might have “consistently looked to Reconstruction-era” regulations, that doesn’t make him right. It makes him a Baizuo.

The analysis of civil rights challenges is elementary. Is the plain text implicated? If so, the government has the burden to show a history and tradition of equivalent regulations.

I want to walk in front of the town office with a sign that says, “The mayor is a crook!”.

A few minutes after I start my demonstration, the cops show up and arrest me under a city ordinance.

I sue, claiming that my civil rights were violated.

The court first looks at the meaning of the plain text of the First Amendment to see if it is implicated.

This should be and is an easy task. Protesting my government is explicitly mentioned in the First. My conduct implicates the First amendment.

It is now the government’s burden to show that their modern ordinance has a historical analogous regulation. If the state cannot locate such a historical analogous regulation from the time the First Amendment was ratified, they lose.

Clarifying its historical methodology in the absence of Founding-era analogues. is bullshit. He is playing at being ignorant, or stupid, or both. He is claiming he is too stupid to know that unless the Supreme Court tells him, again, that a lack of analogous historical regulations renders the modern regulation unconstitutional.

If there is no regulation [that] is consistent with this Nation’s historical tradition the conduct is constitutional protected.

Translations: We got it wrong before Bruen. I liked it that way. We ignored the spanking the Supreme Court gave the inferior courts because we don’t think it applies to us.

Translation: I think we should be looking at a different era, not the founding, ’cause reasons!

Translation: In the founding era, they discriminated against Indians and Blacks, and other disfavored groups. These were or would have been struck down as unconstitutional as the constitution was amended. But these racists laws are support for allowing racists, discriminatory laws today.

Translation: Since all the other three reasons are absolute bullshit, we need a more nuanced approach so we can make our on rules.

This is one of the most misused quotations of modern jurisprudence. It rivals “You can’t yell fire in a crowded theater.”

Heller and Bruen were bans or a denial of civil rights. Mr. Heller was denied the right to keep a load, functional handgun in his home. Mr. Koch and Mr. Nash were denied the right to keep a loaded, functional arm on their person.

In Lara, he is being denied the right to keep and bear arms. All of these are relatively simple. There is nothing unprecedented in the current societal concerns. Judge Krause even says as much when he says that the founding fathers disarmed disfavored groups.

If he wants to claim that there are historical regulations, then there are no unprecedented societal concerns.

This quote has an important component, other cases Other cases implicating, other than the type of cases that match Heller or Bruen. If a case matches Heller or Bruen then there is nothing implicating unprecedented societal concerns.

Conclusion

Judge Krause profoundly erred when he put his opinion on paper. “It is better to be thought a fool than to open your mouth and remove all doubt.”

His agenda driving hatred of the Second Amendment and The People is apparent in his writing. His support often comes from briefings and motions rather than final judgments. His logic is more ends oriented than logical.

One thread that runs through his ramblings is that the rehearing should be granted because the merits panel got it wrong, and if the majority wants that to become the new case law for the Third Circuit, then it must be an en banc hearing.