B.L.U.F.We took a look at the bad guy’s arguments via Everytown earlier this week. Today we look at the reply brief submitted by the appellants/plaintiffs (good guys).

There is a huge issue that the good guys have to overcome in these cases, getting the Court to do their job. If you look at the plain text of the Second Amendment, is the proposed conduct implicated? If so, the conduct is presumptively protected under the Second Amendment.

The state is doing all in their power to make this first step as difficult as possible. As we observed in the Everytown brief, they don’t have any historical regulations to support their infringements. Because they don’t have the history nor the tradition, they desperately want to stop cases from getting to that point.

There is an old legal aphorism, “If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table.”

When I write about “emotional blackmail”, I’m discussing how the state is pounding the table. They don’t have facts on their side, they don’t have the law on their side. They pound the table in frustration, begging the court to give them just a little inch.

What this means, at a tactical level, is that the lawsuit almost all say “It is a regulation of conduct that is protected under the Second Amendment. Grant us an injunction stopping it.” The state then gets to do the song and dance “welllllll, it isn’t actually an arm. It doesn’t go boom boom.”. Or they try and say that as long as they allow you this arm, they don’t have to allow you that arm. All of this is just bonkers when the plain text is used.


The plaintiffs start their response:

Just last year, the Supreme Court confirmed once and for all that “the Second Amendment protects the possession and use of weapons that are ‘in common use.’” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.Ct. 2111, 2128 (2022) (quoting District of Columbia v. Heller, 554 U.S. 570, 627 (2008)). Rather than respect that clear teaching, Rhode Island veered far in the opposite direction, banning all devices that feed ammunition into semiautomatic firearms and are “capable of holding … more than ten (10) rounds,” R.I. Gen. Laws §11-47.1-2(2), -3(b)(1)(i), even though tens of millions of Americans own hundreds of millions of those devices as integral components of the firearms they keep and bear for self-defense. Under a straightforward application of Bruen, HB6614 is profoundly out of step with our nation’s history of firearm regulation and a violation of the Second Amendment.
Ocean State Tactical, LLC v. State of Rhode Island, No. 23-1072, slip op. at 1 (Court of Appeals for the First Circuit)

My lady has a difficult time answering simple questions. “Are you done with your homework?”. Reply: “Sort of, I’ve been working on it for hours. The …(172 words later) so I’m still working on it.” “Thank you, are you done with your homework?” “I just told you.” “No, you didn’t. You said many things in response to a yes, no answer without ever actually answering the question.”

The state is much like that. They don’t actually answer the question presented and instead talk about this or that. The plaintiffs (good guys) can’t force the state to answer. Only the Court can do that. If the state doesn’t answer the court, then the court can treat that none-response as meaningful.

In an effort to salvage HB6614, the state asks this Court to ignore what the Supreme Court has repeatedly identified as “the Second Amendment’s definition of ‘arms,’” Bruen, 142 S.Ct. at 2132, in favor of a definition more to its liking. The state asks this Court to pretend that people do not “use” their firearms when they keep and carry them for self-defense, even though the Supreme Court has explicitly defined the Second Amendment right as a right to “be[] armed and ready for offensive or defensive action,” id. at 2134, not just to fire at would-be attackers. …

Exactly what we have been saying. I’m pleased that this reply has stated it so clearly. I expect to use this in the future.

These guys really hammer the state: “Pretend”, “fiction”, “deny Bruen“, “ignore what the Supreme Court”. This is polite lawyer talk for “the state is a lying sack of flaming dog poo”.

HB6614 Violates The Second Amendment

Under Bruen, a plaintiff’s threshold burden is slight: All one must show to establish a prima facie case is that “the Second Amendment’s plain text covers” the “conduct” the challenged law restricts. Bruen, 142 S.Ct. at 2126. If it does, then “the Constitution presumptively protects” what the law restricts and “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id.
id. at 2

Very plain text about using plain text.

The argument about the question “Are magazines arms?” is hard. Not because there is any real difficulty, but in the fact that there are so many games to play. And the state uses them all. The state argues that a magazine is just an accoutrement, which is not an arm.

Yet, the state, in its own laws, defines a magazine as an ammunition feeding device. This means that they haven’t banned enblocs nor stripper clips because those are not ammunition feeding devices. Yet, those might be easier to justify as not being “arms”.

Of course, the state pounds the table, telling the court that nobody needs more than 10 rounds. Rights don’t work that way. The state doesn’t get to tell me what rights I need and what rights I don’t. Those rights exist outside the wishes of the government.

We often talk about our “Second Amendment Rights”. People in other countries will claim that they have no Second Amendment Rights. They are both wrong.

The Second Amendment protects our right to keep and bear arms. That right exists even if the Second Amendment did not. Everybody has those rights. Many countries do not recognize their subjects rights, including the right to armed self-defense.

… in other words, because they are not necessary for armed self-defense. State.Br.21 (quoting A37). That is both wrong and beside the point. Without a feeding device, semiautomatic firearms (the only kind HB6614 governs, see R.I. Gen. Laws §11-47.1-2(2), -3(a)) can fire at most one bullet before needing to be reloaded. In all events, the threshold textual inquiry does not ask what is “necessary” for self-defense; it asks whether a bearable instrument “facilitate[s] armed self-defense.” Bruen, 142 S.Ct. at 2132. And semiautomatic firearms designed and equipped with ammunition feeding devices plainly fit that bill.
id. at 5

Interesting point here. The plaintiffs argue that Founding-era cartridge boxes are not magazines, Ammunition feeding devices are quite different. As their name connotes, they actively feed ammunition to the firing chamber of a firearm.id. This is a technical distinction. I do not have much faith in rogue Courts understanding technical details when it is not to their advantage. Saying that a cardboard box is analogous to a device that plays an active role in firing because both “hold” ammunition is thus like saying that a gas can is analogous to a carburetor because both “hold” fuel.id. at 5–6

Sometimes it feels like these infringement loving states are all attempting to one up each other. All the other states are attempting to ban detachable magazines holding more than X rounds. Rhode Island said all magazines capable of holding more than X rounds. This means that a semi-automatic with an internal or integrated magazine that holds more than 10 rounds is currently banned in Rhode Island.

The plaintiffs then pull it back again, Rhode Island’s only response is that “a firearm does not need a magazine
containing more than ten rounds to be useful.” State.Br.21 (emphasis added) (quoting A37). But, again, what is “necessary” for self-defense makes no difference to the threshold textual inquiry. What matters is whether a bearable instrument “facilitate[s] armed self-defense.” Bruen, 142 S.Ct. at 2132. Feeding devices indisputably do. Keeping and bearing them is thus presumptively protected.
id. at 6–7.

Exactly. The first step has been met, regardless of whatever song and dance the state presents.

The Feeding Devices HB6614 Bans Are Unquestionably in Common Use for Self-Defense and Other Lawful Purposes

This case has language we need to use. “Feeding Devices” or “Ammunition Feeding Devices”. Language is so important in shaping the story. “Assault Rifle” was used to paint the AR-15 as evil. That morphed into “Assault Weapon” because Assault Rifle was locked in the public’s mind as meaning the AR-15 and AK-47. The state started using the term “Large Capacity Magazine” to describe any magazine that held more rounds than they liked.

Here is the thing. It is important to the state that the public think of these as just boxes holding bullets. What difference does it really make if you have two small boxes or one large box? Does it really matter which Tupperware container you use, as long as the leftovers fit in it, with room for the mold to grow?” That is what they want the public to think.

The actual law has to be much more technical. The law says, “Magazine as defined in § x, y, z”. And that definition uses technical terms. “Ammunition feeding device”. An active component.

When the state argues about what size box you need, that sounds almost reasonable. Boxes aren’t protected under the Second Amendment, right? On the other hand, ammunition feeding devices are needed. They are part of the arm, which makes them just as protected as barrels, frames and triggers.

Because the feeding devices HB6614 bans satisfy “the Second Amendment’s definition of ‘arms,’” the state must prove that it nonetheless can ban them “consistent with this Nation’s historical tradition of firearm regulation.” Bruen, 142 S.Ct. at 2126, 2132. It cannot meet that burden. The Supreme Court has already decided which “arms” a state may ban “consistent with this Nation’s historical tradition of firearm regulation”: those that are (at a minimum) “highly unusual in society at large,” as opposed to “in common use today” for self-defense and other lawful purposes. Id. at 2143. The critical question, then, is whether the arms HB6614 bans are in common use for lawful purposes today.

An interesting use of language. This is an implicit statement. They are saying that magazines are arms. They are not arguing they are arms, as they did in the last section.

The answer is exceedingly easy, as the feeding devices HB6614 bans are exceedingly common. Tens of millions of Americans own hundreds of millions of these arms.id. at 7. The author of this reply has a bit of a wordsmith in his soul. They have gone to the trouble to establish that magazines are ammunition feeding devices that are arms.

Many other cases make that argument.

In the other cases, at this point, where they wish to argue “common use,” they say something like “millions of Americans own hundreds of millions of these magazines.” They lose ground with that one word. If you have proven that it is an arm, keep calling it an arm. Don’t fall into the trap set by the bad guys.

Oh, that trap worked on me too. I’m learning here.

The state’s argument in reply is to say that it is not “in common use today” but “in common use for self-defense”. They then restrict “for self-defense” to meaning actually pulling the trigger during a self-defense event.

Rhode Island does not deny any of this. Instead, it accuses Appellants of a “blatant omission” by failing to acknowledge “Bruen’s emphasis … that the weapons in question … are ‘in common use for self-defense today.’” State.Br.27 (quoting Bruen, 142 S.Ct. at 2143). That is a serious charge—and it is demonstrably false. See, e.g., Opening.Br.29 (“[T]he tradition of the American people is that law-abiding citizens may keep and bear arms that are commonly possessed for self-defense.” (emphasis added)). Appellants have never “reli[ed] on sheer numbers” alone. State.Br.27. Appellants have consistently (and correctly) argued that “the typical individual who possesses these commonplace arms does so for lawful purposes.” E.g., Opening.Br.29 (citing sources confirming this point). Rhode Island may think this whole “line of inquiry” is “absurd[],” State.Br.28, but it has no response to the fact that it comes directly from the Supreme Court. Heller made clear that the only arms “the Second Amendment does not protect” are those that are “not typically possessed by law-abiding citizens for lawful purposes.” 554 U.S. at 625.
id. at 8–9

I hope that one left a mark. Ouch.

In the state’s telling (and the district court’s), “ownership” is irrelevant, and the only “use” that matters is firing at an assailant during an armed confrontation.id. at 9 I really hope that one of the circuit courts acknowledges this game soon. It should just be stopped.

The Second Amendment protects the right “to keep and bear Arms,” not just to fire them when the need for self-defense arises.id. Simple plain text. This brief keeps hammering the simple points. This should be a winning strategy.

They even take apart the linguistic game played by the states. In Heller (IIRC), the opinion talks about the descent arguing that “keep and bear arms” only applied to the military because there were many references to men bearing arms in military service. They said:

[If bear arms were given its idiomatic meaning,] the phrase “keep and bear arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.
Language Log » Corpora and the Second Amendment: “keep and bear arms” (part 1) (updated)

quoting Heller

Taken together, these two posts will provide an extended rebuttal of the portion of Heller (consisting of only four sentences) that raised the question that these posts will address. Those four sentences were part of the court’s argument that bear arms as used in the Second Amendment couldn’t possibly have been understood in its idiomatic military sense:
(see above)
When I first read Heller, this struck me as a pretty strong argument. But I’ve rethought the issue since then, and have come to think that the argument is seriously flawed. At this point, although I don’t dismiss the argument altogether, I don’t think it rules out interpreting bear arms in the Second Amendment to mean ‘serve in the militia.’

The infringers always want to infringe. If they don’t get their way, they redefine terms. This type of argument is precisely why Heller spent so much time defining the meaning of each word and phrase in the Second Amendment. They knew that there would be infringers, arguing that the meaning was something different because …

Another good point, Indeed, Bruen held that citizens have a fundamental right to carry handguns outside the home for self-defense without ever even asking how frequently people fire them in actual self-defense situations. It sufficed in Bruen, just as it did in Heller, that “handguns are the most popular weapon chosen by Americans for self-defense.”#118029858 in Ocean State Tactical, LLC v. State of Rhode Island (1st Cir., 23-1072), No. 23-1072, slip op. at 10

For a group of lawyers intent on what isn’t said in the Supreme Court Decision, the state certainly has a difficult time finding the important ones when it doesn’t lead to an infringement.

Ok, there is an argument that is a winning argument for the state. Anytime they can bring in machine guns, they put points on the board. The reason is that, for all practical purposes, machine guns are banned. None of these cases are challenging the NFA. Because they are not challenging the NFA, the plaintiffs aren’t arguing that the NFA be found unconstitutional.

This is the situation, even if the NFA is unconstitutional. Nobody is currently fighting that particular battle.

The reason the state wins in these situations is that the good guys almost always concede that machine guns should be banned. Having conceded that point, that concession is likely to come back to bit us in the butt in a few years when theses same lawyers are challenging the NFA.

Rhode Island Cannot Identify an Analogous Historical Tradition

The feeding devices HB6614 newly bans are bearable instruments that facilitate armed self-defense and in common use today for self-defense. Under a straightforward application of Bruen, that should be the end of the analysis. In the context of a flat ban on the acquisition or even possession of classes of arms, whether the arms are commonly kept and borne for lawful purposes is the historical test. See Mark W. Smith, What Part of ‘In Common Use’ Don’t You Understand?: How Courts Have Defied Heller in Arms-ban Cases—Again (June 18, 2023), bit.ly/42OrITT. But even if further historical inquiry were necessary, Rhode Island has not come close to showing any historical tradition of prohibiting the sort of devices it has banned. To the contrary, the historical record reveals a long tradition of welcoming technological advancements aimed at enhancing law-abiding citizens’ ability to accurately fire repeatedly.
id. at 13–14

I watch most of Mark Smith’s YouTube videos. Sometimes I’ll pause at the beginning of one of his videos to write about the case he is discussing. Then I watch the rest to see how much I got “right”. I’m batting in the upper 800s.

That leaves the D.C. law discussed in Appellants’ Opening Brief (at 31 n.9), the ninth “state” law Rhode Island cites. That law did reach semiautomatics, but it “was not understood to sweep up ammunition feeding devices as an original matter”; it was not so extended until “the District achieved home rule in 1975.” More important, it was the only law enacted in this country before 1990 that restricted law-abiding citizens’ access to feeding devices of any capacity. Opening.Br.31 n.9. That point bears repeating: No state banned feeding devices of any capacity until the 1990s—even though magazines that hold more than ten rounds were widespread in this country before Henry Ford sold his first Model A, the Wright Brothers took their first flight at Kitty Hawk, or Albert Einstein realized that E=mc2. Rhode Island never acknowledges this reality. Instead, it asserts that the “absence of regulation” can somehow justify new regulation. State.Br.39. That bold claim does not pass the straight-face test, let alone pass muster under Bruen. After all, the “absence of regulation” imposes no “burden on the right of armed self-defense.” Bruen, 142 S.Ct. at 2133. But the burdens HB6614 imposes are very real.
id. at 20–21

New info for me. There were no magazine bans until 1990. I’m so old, I forgot that.


This was a good brief. Some new tactics, that I hope to produce a win. There are parts that I will attempt to emulate. Even in the paragraph above, I said “magazine” yet I thought about replacing it with “ammunition feeding device”.

Things that make you go Hmm:

Counsel of Record
706 Duke Street
Alexandria, VA 22314

This is THE Paul D. Clement that argued McDonald which brought Second Amendment protections to the states. He was also the lead lawyer in the Bruen case. Yes, he is a rock star.

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By awa

3 thoughts on “Ocean State Tactical, LLC v. State of Rhode Island Reply Brief”
  1. to your point of challenging the first part – does it implicate the 2nd? At least one federal judge has now explicitly placed that burden of proof on the plaintiffs:
    “While Bruen does not specify that the plaintiff bears the burden of showing that the challenged conduct falls within the plain text of the Second Amendment, this Court finds that is the most logical reading of the Supreme Court’s opinion. The Supreme Court explicitly states that “when the Second Amendment’s plain text covers an individual’s conduct . . . the government must then justify its regulation . . . .” Bruen, 142 S. Ct. at 2129–30 (emphasis on “then” omitted). This Supreme Court language strongly suggests that the burden shifts to the government only after the plaintiffs have shown that the challenged conduct is covered by the plain text of the Second Amendment.” From OFF v Kotek et al. (Oregon)

  2. P.S. > Good write up AWA, thanks for this! It’s important to see how the infringers infringe and how they attempt to defend their infringements in court. very instructive. I hope the multitude of 2A attorneys out there are reading and following your summaries of these cases nationally. Some of them need help.

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