B.L.U.F.Looking at another amicus brief by Everytown. Since they are consistently filing briefs in all these Second Amendment cases, it behooves us to see what they are saying.

I came back to add this text. You might get angry with Everytown over this brief. Regardless, they did a good job. Their arguments are self-consistent. They take a stand, then hammer the point home. Their goal isn’t to necessarily win these cases, but to give the court something to hang a bad decision upon.

Everytown is now the overarching group for “Moms Demand”, “Mayors Against Illegal Guns”, It looks like they are claiming “March for our lives” but they don’t do so by name. They claim to have nearly ten million “supporters” with nearly 10,000 of those “supporters” in Rhode Island. Make not that “supporters” are not “members”

For the tax year 2020 they had total revenue of $20,492,640. $20,288,442 of that was from contributions. They reported expenses of $52,280,883 for a net lose of $31,788,243. The largest listed expense is $11,390,489 for other salaries and wages and around $500,000 for the Executives and fundraising. I could not find a “members” number. They only speak in nebulous terms, which could mean anything from a person going around knocking on doors, to the mom that dropped a five dollar bill in their begging hat.

Using the standard modification of language, they claim [Everytown] is the nation’s largest gun-violence-prevention organization, with nearly ten million supporters across the country, including nearly 40,000 in Rhode Island.Amicus Curiae, Brief for Ocean State v. Rhode Island, No. 23-1072 (Court of Appeals)

Argument Summary

Rhode Island’s large-capacity magazine restriction is constitutional under the approach to Second Amendment cases established in New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), for the reasons set out in the State’s
brief, Dkt. 00118022922 (“State Br.”). Everytown submits this amicus brief to expand on three methodological points. First, on the initial, textual inquiry of the Bruen framework, Plaintiffs have the burden to establish that large-capacity magazines are protected “arms” within the meaning of the Second Amendment, and they have not met that burden. Second, in applying the historical inquiry of the Bruen framework—asking whether the regulation is “consistent with the Nation’s historical tradition of firearm regulation,” 142 S. Ct. at 2130—the Court should center its analysis on 1868, when the Fourteenth Amendment was ratified. Moreover, 1868 is not a cutoff; examining “legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification” is also “a critical tool of constitutional interpretation.” District of Columbia v. Heller, 554 U.S. 570, 605 (2008) (second emphasis added). And, as Bruen instructs, this is particularly so where, as here, the challenged law implicates “unprecedented societal concerns or dramatic technological changes.” 142 S. Ct. at 2132. Third, Bruen’s analysis reveals that a small number of laws can be sufficient to establish this nation’s tradition of firearm regulation, at least so long as there is not overwhelming affirmative evidence of an enduring tradition to the contrary. Although not directly implicated here, given the robust historical record before the Court, we highlight that point in case the Court chooses to address it.
id. at 3

This is pretty clear. The first thing they do is argue that magazines are not arms. More, they place that burden on the plaintiffs (good guys). In many of the infringing cases, we see the state argue this. “AR-15s aren’t arms”, “Big magazines aren’t arms”, “Sawed off shotguns aren’t arms”, but a hunk-o-alumninum is an arm, a plastic stock is a machine gun as is a shoelace.

The second thing is, they argue that the court should look at 1868 as the date to understand what the Second Amendment means. We have discussed this in previous posts. The date of the 14th amendment’s ratification is the date at which 3/4s of the states agreed to accept the Bill of Rights as it was understood in 1791.

They did not redefine the meaning of the Second Amendment in 1868. They affirmed that they accepted it as it was understood in 1791.

Their final argument is that there has been “unprecedented societal concerns or dramatic technological changes” which means that they don’t have to match historical regulations as closely.

The last two arguments are very telling. It means that the state and state operators, such as Everytown, understand that there are no good matches to laws in the founding era. Since there are no good matches, they need to either change the time period or they need to open up what “a good match” means.

They also make the claim that a small number of laws will provide a “tradition and history” of analogous regulations. They are begging for the court to give them as much leeway as possible.

Plaintiffs Have Not Met Their Burden To Establish that the Second Amendment’s Plain Text Covers Their Conduct

Bruen’s framework requires both a textual inquiry and a historical inquiry. A court first must ask “whether the challenger is ‘part of “the people” whom the Second Amendment protects,’ whether the weapon at issue is ‘“in common use” today for self-defense,’ and whether the ‘proposed course of conduct’ falls within the Second Amendment.” United States v. Alaniz, No. 22-30141, __ F.4th __, 2023 WL 3961124, at *3 (9th Cir. June 13, 2023) (quoting Bruen, 142 S. Ct. at 2134-35). If so, the court then moves on to ask whether the government has shown that its regulation is “consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2130. See generally id. at 2134-38 (separating application of test into Part III.A (text) and Part III.B (history)). If not, the inquiry ends: self-evidently, if people, weapons, or conduct are outside the Second Amendment’s protection, then the government may regulate them without infringing the Second Amendment. See, e.g., Alaniz, 2023 WL 3961124, at *3 (describing step one as a “threshold inquiry” and explaining that “[i]f the first step is satisfied, we proceed to Bruen step two”); United States v. Reyna, No. 3:21-cr-00041, 2022 WL 17714376, at *5 (N.D. Ind. Dec. 15, 2022) (dismissing challenge because “§ 922(k)’s regulated conduct [possessing a firearm with an obliterated serial number] is outside [the] scope of the Second Amendment” and that “is enough to decide” the case; declining to reach historical inquiry).
Amicus Curiae, OST v. RI, Everytown Amicus Brief, No. 23-1072

There is a bit to unpack here. While they argue that the court must decide if the person is a part of “the people”, the reality is that the Supreme Court has defined this. It includes all citizens of these United States, as well as those that have become Americans. In other places, the Supreme Court has said The People are all members of the body politic. At no time has the Court said that the Second Amendment applies to only a subset of The People.

Everytown uses the standard language shift, in common use today for self-defense. The Supreme Court has stated that arms in common use today are protected by the Second Amendment. They did NOT say that only arms in common use today.

Consider the statement, “driving 90 MPH in a 35 MPH is speeding.” This is a true statement. It makes it absolutely clear that 90 MPH in a 35 is speeding. It does not imply that going 55 MPH in a 35 is not speeding.

An arm in common-use today is absolutely protected under the Second Amendment. That does not mean that a strange new arm is not covered.

As Mr Write, ESQ. Said to the 5th Circuit:

He did, Your Honor, and as would anyone covered by this statute, a protective order, a finding at least of a risk of future violence. But in terms of the Second Amendment’s coverage, which I understand your question, is the terms of the Second Amendment’s coverage, which I understand your question, is he covered by the amendment or not? The Bruin opinion tells us that that question should be answered by the plain text of the Second Amendment. Is the conduct covered by the plain text of the Second Amendment? Yes, it is. The conduct here is the possession, the keeping, and the carrying, the bearing of arms. And if the question is who does that right extend to, well, Heller answers that and Bruin answers that with the people. The people unambiguously means the political community of the United States.
Oral Arguments, machine transcription, United States v. Rahimi, No. 21-11001 (5th Cir.)

They bring in a recent case from the 9th Cir. which decided that there was a history and tradition of punishing a person possessing a firearm during the commission of a felony.

Applying the two-part test adopted by Bruen, the panel assumed, without deciding, that step one is met—when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. At step two, however, the panel found §2D1.1(b)(1) constitutional because it clearly comports with a history and tradition of regulating the possession of firearms during the commission of felonies involving a risk of violence.
Opinion, United States v. Alaniz, No. 22-30141 (9th Cir. Jun. 23, 2023)

This might have bearing on the U.S.A. v. Rahimi, which is before the Supreme Court. The question really is, “When do you lose the protection of the Second Amendment?” It is clear that the Second Amendment doesn’t protect you from the misuse of an arm. I.e. murdering somebody is not a protected act.

Possessing a firearm is obviously protected conduct under the Second. Using it to rob somebody is not. Having it with you during a felony jaywalking is currently considered, in the 9th Circuit, as grounds for enhanced sentencing guidelines.

The problem that Everytown seems to have, here, is that everybody involved with this case is “law-abiding”. They are part of The People.

I’ve heard and read that the Supreme Court has ruled that ammunition, magazines and other items for use with a firearm are “arms”. I don’t know the case. It would be good to find it

<div class=”quote’>Plaintiffs have failed to satisfy their burden under Bruen’s textual inquiry, because they have failed to establish that large-capacity magazines are among the “arms” that the Second Amendment protects. To fall within the Second Amendment’s text, Heller established that a weapon must not only be a “bearable arm” or “[w]eapon[] of offence,” but must also be one “in common use” and “typically possessed by law-abiding citizens for lawful purposes” like self-defense. Heller, 554 U.S. at 581-82, 625-27.3 Bruen further confirmed that the inquiry should focus specifically on common use for the lawful purpose of self-defense. As the district court correctly held, Plaintiffs have not carried their burden here. See A34-44, A45 (explaining that plaintiffs have failed to show that large-capacity magazines are “Arms” or are “weapons relating to self-defense”); see also Or. Firearms Fed’n, 2022 WL 17454829, at *9-12 (making similar findings in denying motion for a temporary restraining order as to Oregon large-capacity magazine law); see also Hanson v. District of Columbia, No. 1:22-cv-02256, 2023 WL 3019777, at *12 (D.D.C. Apr. 20, 2023) (concluding, under textual inquiry of Bruen’s framework, that “the Second Amendment does not cover [large-capacity magazines] because they are not typically possessed for self-defense”), appeal docketed, No. 23-7061 (D.C. Cir. May 17, 2023)
Amicus Curiae at 5–7, OST v. RI, Everytown Amicus Brief, No. 23-1072

Wow, did you know that standard capacity magazines are not commonly used for self-defense? The common use argument is not limited to just self-defense. That doesn’t matter. Everytown is using the standard state argument that an arm is only in use when the trigger is being pulled in self-defense. If you don’t pull the trigger, it isn’t used.

All of this is based on reading what is not in the Supreme Court’s opinions.

The Correct Historical Analysis Centers on the Reconstruction Era and Encompasses Consistent 20th-Century Regulations

If the Court proceeds to the second, historical inquiry, it should first conclude that the most relevant time period for that inquiry centers around 1868, when the Fourteenth Amendment was ratified and made the Second Amendment applicable to the states. And it should further conclude that the historical inquiry extends thereafter—including into the 20th century—given the “dramatic technological changes” and “unprecedented societal concerns,” Bruen, 142 S. Ct. at 2132, present in this case.
id. at 8

Everytown admits that there are no relevant regulations from the founding era. If there were, they would cite and use them. Instead, they are asking the Court to give them the “kiddy rules” version of Bruen.

I don’t play golf, but I have been on a golf course once (maybe twice). At the tee, there are two points to put your ball for your first swing. The men’s line and the woman’s line.

Everytown can’t win playing on equal ground, so they are begging the court to use the woman’s line. They are the William Thomas of constitutional law. They can’t do it straight, so they find an advantage.

Even so, they make the claim that the state can ban magazines because of gunpowder storage laws, laws on “particularly dangerous weapons”, and some regulations of “pocket pistols”. None of these are good matches.

From there, they go into all the Circuit Court opinions that state that 1868 is the controlling date. [T]he question is if the Second and Fourteenth Amendments’ ratifiers approved [the challenged] regulations…id. at 11 The idea being that the Fourteenth Amendment somehow modified the meaning of the Second Amendment.

Context matters.

Moreover, although Bruen disapproved the second, scrutiny-based step of the predominant framework lower courts had applied, it declared that “[s]tep one of” that framework “is broadly consistent with Heller.” Id. at 2127. Accordingly, the step-one analyses in the cases just cited remain, as a general matter, good law.
id. at 12

The step-one analysis was normally a presumption of “conduct is presumptively protected by the Second Amendment”. Not sure of the particular cases cited here. Regardless, the context of the is broadly consistent with Heller was that any case that used a level of scrutiny was no longer good law.

Mostly they are arguing that since this is a state law, not a federal law, the meaning of the Second Amendment was as the people of 1868 understood it. Interestingly, they are unable to cite any regulations from Rhode Island to support their position. If they are claiming that the 1868 is the controlling date because this is a state law, doesn’t that imply that they can only search the historical record for Rhode Island laws?

They use Kurt T. Lash’s paper published in 2022 to support this interpretation. This is another circle jerk situation. Much like the multiple authors who cite each other’s anti-gun articles, this is an opinion by somebody that is not submitting to the courts.

But Bruen rejected the possibility of different standards for the state and federal governments. Bruen, 142 S. Ct. at 2137 (“[W]e have made clear that individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government.”). Accordingly, originalists must justify applying either the 1868 understanding or the 1791 understanding (where they conflict) to all levels of government.
id. at 13

Again, they admit they have nothing relevant from 1791. They are arguing that the entire country shift to their view of 1868 as the controlling year. Even the Federal Government. “We want 1868, we are going to stomp our feet and hold your breath until you agree with us!” “Oh? You agreed with us in this case, well, that means you have to use 1868 in all cases.”

As stated multiple times, the anti-gun people argue about what’s not said in Supreme Court decisions. An out of context example if the majority believed those decisions controlled the issue, it would have said so. Instead, the Court expressly left open the question whether 1868 or 1791 is the relevant focusOpinion, United States v. Alaniz, No. 22-30141 The question of which year wasn’t before the Bruen court. They didn’t answer that question. The state and their sycophants argue that means the inferior courts can do whatever they want.

This Court Should Reject Any Effort To Dismiss the State’s Historical Analogues as “Outliers”

Reading tea leaves and never give an inch.

Specifically, Bruen repeated Heller’s identification of “schools and government buildings” as sensitive places, 142 S. Ct. at 2133 (quoting Heller, 554 U.S. at 626), and then recognized that three additional, more specific locations (legislative assemblies, polling places, and courthouses) were also “‘sensitive places’ where arms carrying could be prohibited consistent with the Second Amendment,” id. But the sources the Court cited for the historical record justifying restrictions in those three locations identified only two laws naming legislative assemblies and two laws naming courthouses. See Kopel & Greenlee, 13 Charleston L. Rev. at 235, 246; Br. for Indep. Inst. as Amicus Curiae 11-12, Bruen (No. 20-843).15 Moreover, the two laws both sources cited as prohibiting guns in legislative assemblies in the pages the Court referenced were from a single colony, Maryland, and were enacted three years apart, in 1647 and 1650.
Amicus Curiae at 20–21, OST v. RI, Everytown Amicus Brief, No. 23-1072

We do the same, I guess. We use the hundreds of thousands from Caetano as meaning that if there are more than 200,000 of a class of arms in use, they are common. Here they argue that because the Supreme Court attempted to give them the ability to ban guns in some sensitive places, that it only takes one or two such laws to establish a history and tradition.

They refuse to use the plain text. It is always the strange interpretations. It is always the words left out. Or, they take a couple of words from here, a couple from there, put them together in a sentence and make a claim.

Concluding that a small number of state and local laws can demonstrate a “public understanding” of a limitation on the Second Amendment right is also consistent with bedrock federalism principles that entitle a state to effectuate the policy choice of its citizens within constitutional bounds. Local conditions matter. Just as states today may (or may choose not to) “experiment[] with reasonable firearms regulations,” McDonald, 561 U.S. at 785 (plurality opinion) (cleaned up), states historically may have chosen not to regulate certain weapons, people, or conduct, not because the public understood the right to keep and bear arms to prevent such regulations, but because of democratically supported policy choices. As Judge Easterbrook explained in Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015), “the Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a search for national uniformity,” and “[t]he central role of representative democracy is no less part of the Constitution than is the Second Amendment.” Id. at 412. And the fact that states have latitude to experiment with regulations that meet their unique needs means that states historically may well have chosen not to regulate to the limits of constitutional permissibility. Cf., e.g., Davenport v. Wash. Educ. Ass’n, 551.S. 177, 185 (2007) (“The constitutional floor [by which the First Amendment restricts public-sector] unions’ collection and spending of agency fees is not also a constitutional ceiling for state-imposed restrictions.”). Accordingly, while state laws restricting firearms demonstrate that the people of those states understood the right to keep and bear arms to permit such restrictions, the absence of such laws in other states does not warrant any inference that their citizens considered such restrictions unconstitutional.
id. at 21–22

The Supreme Court said that to justify a modern regulation, the state must show a history and tradition of analogous regulations. Everytown argues that a lack of such regulations does not mean the people of that time didn’t understand that the limits could be placed on the protected conduct, they just choose not to.

It wasn’t the Second Amendment protecting the right of The People to keep and bear arms, it was just that at that time and place they choose not to regulate The People in an infringing manner.

Judge Easterbrook is the anti-gun judge out of the 7th Circuit court that created the McDonald case. He is the judge who said, “The Second Amendment wasn’t incorporated by the Fourteenth Amendment because the Supreme Court hasn’t said it was.” He went on to opine that the state could pass any regulation they wanted.

He was also part of the group of judges that established the two-step shuffle of “scrutiny” as the methodology to use in Second Amendment challenges. I believe that was —Ezell v. City of Chicago, 651 F. 3d 684 (7th Cir. 2011).

And again, we see the state ignoring how amendments work. If the body of the Constitution establishes a federal republic with certain powers and The People amend the Constitution to add more limits (or remove limits), it is the amendment that is binding, not the original text.


Amicus Curiae, Brief for Ocean State v. Rhode Island, No. 23-1072 (Court of Appeals)
Ezell v. City of Chicago, 651 F. 3d 684 (7th Cir. 2011)
Opinion, United States v. Alaniz, No. 22-30141 (9th Cir. Jun. 23, 2023)
Oral Arguments, machine transcription, United States v. Rahimi, No. 21-11001 (5th Cir.)

William Thomas” was born in 1999. In 2020, he started using the name “Lia Catherine Thomas” and started competing on the woman’s swim team at U.Penn.

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5 thoughts on “Ocean State Tactical, LLC v. State of Rhode Island (1st Cir)”
  1. When every day they are out crowing how much “good” they are doing yet screaming about gun violence every day, I bet they will be proven to be another blm scam. Spending bloombergs millions to line thier pockets as shannon did with the colorado mansion.. and getting lots of exposure from liberal media.

  2. The whole ‘supporters’ thing started some time back. Since they don’t have any actual memberships like the NRA, SAF, etc. They come up w/ fantastical numbers based off of polls, facebook likes, and such.

    I haven’t done the breakdowns in some time but historically, a big chunk of those funds comes from the Joyce Foundation, Bloomberg himself, and other bigtime donors.

  3. If you don’t agree nor like something said or in writing, just change the context to what you need it to be, then make the claim that you have a right to interpret it in that sense or understanding, otherwise you’ll assert victim status and make those in dissent spend time and money to prove you wrong. If they fall for the ruse, at least you’ll get some reward in that they paid a higher price while you paid only the initial price.
    Conflate everything to see what slips through and never stop because eventually the odds will produce some progress.

  4. “They only speak in nebulous terms, which could mean anything from a person going around knocking on doors, to the mom that dropped a five dollar bill in their begging hat.”
    Or, more likely they are including anyone who “follows” them on social media as a supporter, even though I suspect a lot of their followers are gun rights supporters keeping tabs on the enemy.

    1. One group in IL added up FB likes from 3 different pages and declared that as their ‘membership’ during a committee hearing.

Only one rule: Don't be a dick.

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