B.L.U.F.
The state dances around “in common use” because they fear it. They even explain why it can’t be used. If it was used, then they would lose.
(1650 words)
In
Bruen, the Supreme Court rejected the interest-balancing test that many courts of appeals had applied since
District of Columbia v. Heller, 554 U.S. 570 (2008), and replaced it with a two-step test rooted in text, history, and tradition.
Bruen’s first step asks whether “the Second Amendment’s plain text covers an individual’s conduct[.]” 597 U.S. at 17. If so, “the Constitution presumptively protects that conduct.”
Id. Only at that point is Bruen’s second step triggered, under which “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”
Id.
—
No. 105 Dominic Bianchi v. Anthony Brown, No. 21-1255, slip op. at 1 (4th Cir.)
Ok, the state starts with a clear, concise, and correct statement of Heller‘s text, history, and tradition methodology.
One aspect of Bruen’s first-step textual determination, and one that is central here, is whether the object being regulated is an “arm.” That is because, if a regulated object is not an “arm” as that term is understood for purposes of the Second Amendment, it falls outside of that amendment’s protections. See Bevis v. City of Naperville, 85 F.4th 1175, 1192 (7th Cir. 2023), petitions for cert. filed, Nos. 23-877, 23-878, 23-879 (U.S. Feb. 14, 2024), No. 23-880 (U.S. Feb. 15, 2024) (“We begin by assessing whether the assault weapons and large-capacity magazines described in those laws are Arms for purposes of the Second Amendment. If not, then the Second Amendment has nothing to say about these laws: units of government are free to permit them, or not to permit them, depending on the outcome of the democratic process.”).
—id. at 2
When a circuit court issues an opinion, it can be cited in other cases. Here, the state is referencing an opinion from the Seventh Circuit, which said that it was the plaintiff’s burden to prove that something is an arm.
This is pure sophistry. The Seventh Circuit is saying something true to hide the false premises that will come later.
In order for the Second Amendment to presumptively protect a conduct, that conduct must fall within the scope of the Second Amendment. Thus, the object must be an Arm. The conduct must have something to do with keeping or bearing that arm.
“Is it an arm?” is the first question to be asked. The Seventh Circuit stated that correctly. The state states that correctly here.
The state then begins its dance. [T]he the Supreme Court in Heller explored the parameters of what constituted an “arm” such that it would fall within the protections of the Second Amendment.
—Gun Conrtrol Act of 1968, 18 USC § 921 (U.S. 1968)
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