Why do the states want a more “Nuanced Approach” and what does that actually mean?
—New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, 2132 (U.S. 2022)
This is what the state is looking for, a more nuanced approach. This is because there are two different sets of rules that must be followed, depending on “nuanced” or not.
Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.—id. we start to see the state’s problem. The meaning of the Second Amendment is fixed according to those that ratified it. That means it is fixed as to its meaning in 1791.
The meaning of the 14th Amendment was fixed when it was ratified. Unless the people of 1868 thought that the ratification of the 14th included a reinterpretation of the 2nd, which cannot be proved, the meaning of the Second Amendment is fixed at 1791.
The state always starts with
implicating unprecedented societal concerns or dramatic technological changes —id.. This shifts the burden to the plaintiffs (good guys) to argue against the state’s claim. The state claims that “mass murders” are an unprecedented societal concern, except that mass murders have been happening for eons.
The state claims that mass shootings are an unprecedented societal concern, except that there have been mass shootings since before the founding. What actually happens is the state says, “well sure, there were a few, but the number is what makes it unprecedented.”
The problem the state has with that argument is that it is difficult to prove that when good guys understand simple math.
There really aren’t any real unprecedented societal concerns of today that were not encountered by the founding fathers.
That means that there must have been “dramatic technological changes”. Here, the state claims that the entire concept of “assault weapon” is a dramatic technological change. This is not difficult to disprove to an honest court.
—id. at 2131
Here, the Bruen Court says that if a nuanced approach is not called for, the state must provide regulations that are distinctly similar to historical regulations.
Our issue is that “distinctly similar” is not a well-defined legal term.
The Bruen Court’s analysis confirms this understanding. According to Bruen, the regulations at issue in both Heller and Bruen addressed the same perceived societal problem, viz., firearm violence in densely populated areas. 142 S. Ct. at 2131. According to Bruen, because “the Founders themselves could have adopted” something like the challenged modern regulation in order to confront this problem, Heller “exemplifies this kind of straightforward historical inquiry.” Id. Because it involved the same perceived societal concern, Bruen necessarily likewise implicated the “fairly straightforward” historical inquiry. Which means that, were the defendant’s argument correct, the Bruen Court should have looked for a “distinctly similar” historical regulatory pattern and ended its analysis upon not finding one. The Bruen Court, however, did no such thing. Indeed, the phrase, “distinctly similar,” makes no reappearance in the majority opinion. Nor does the phrase, “relevantly similar” but, in the course of its exhaustive, nineteen-page “journey through the Anglo-American history of public carry,” id. at 2156, the Court repeatedly compared the burdens imposed by the challenged regulation with those imposed by the historical analogues offered by the government. That, of course, is a methodology the Court identified with the “more nuanced” analysis for isolating “relevantly similar” analogues. Id. at 2132-33.
—ECF No. 32United States v. Lewis, No. 2:22-cr-00222, slip op. at 14–16 (S.D. Ala.)
What a lot of words to say that the inferior court decided that “distinctly similar” and “relevantly similar” require the same analysis and the same level of match.
Using simple language, the way it “distinctly similar” should be evaluated is that they match in why the regulation was put in place and how the regulation works.
“We don’t want people who are drunk to use firearms” is not the same as “We don’t want people who are drunk to possess firearms” which is not the same as “We don’t want people who are drunks to possess firearms” which is still different from “We don’t want people that were drunk to possess firearms”.
The distinctly similar means that the restriction matches, the reason matches, and the condition matches.
According to the state, this means “if two ships pass at night, 100 miles apart, it is the same as missing by a few feet”
They want historical regulations banning the concealed carry of Bowie Knives to be considered the same as an outright ban on possessing firearms. This is what the Alabama Court did. They considered the “distinctly” and “relevantly” similar to be the same, then used the less restrictive version.
Part of the problem is that Mr. Lewis is not a good man. He was charged with §922(g)(3). A person uses or is addicted to a controlled substance. There are a couple of other cases challenging §922(g)(3) that have much better fact patterns. Bad facts make bad law. A court is want to look at a bad man who has done bad things and let the challenge die on the vine.
If there is a real challenge, the bad man can appeal the case. For the most part, this works in our society.
The Heller Short Circuit
When the case involves an arms ban, the inferior court is not supposed to do any analysis of historical regulations. The Supreme Court has already done that for them. In the Heller opinion in 2008, the Supreme court defined all the words and phrases of the Second Amendment.
After defining the meaning of the Second Amendment, the Supreme Court moved on to the second step of the process. History and tradition.
The Heller Court decided on the relevant time period. That is the time of the ratification of the Second Amendment, 1791.
Having determined the correct period, the Heller Court looked for regulations that were similar to the modern regulation, a complete ban on the possession of a functional handgun within the home. The dissenting Justices wanted “relevantly similar” regulations to be used. The majority decided on “distinctly similar”.
In their survey of the regulations of that time, they could find no bans on arms that were in common use. The only bans that might have applied were for arms that were both unusual and unusually dangerous.
From this comes the Heller banned arms methodology: If an arm is in common use for lawful purposes today, it is protected. Period!