B.L.U.F.
Another day, another rogue inferior court scratching for anything that allows them to upload an infringement.
This time it is a CO law requiring a waiting period before taking possession of a legally purchased firearm. The mental gymnastics this Jimmy Carter appointee goes through would make Mary Lou Retton jealous.
(1250 words)
—ECF No. 32 Rocky Mountain Gun Owners v. Polis, No. 1:23-cv-02563, slip op. at 13 (D. Colo.)
—id. at 15
The court profoundly erred in their reading of Heller and Bruen. The first step is to determine if the conduct proposed implicates the plain text of the Second Amendment.
—District of Columbia v. Heller, 467 U.S. 837, 2792 (2008)
To “have weapons” is the conduct that the plaintiffs (good guys) wish to do. To refute this frivolous argument on the part of this inferior, rogue court, all one needs to do is extend the waiting period from 3 days to 3 years.
Would a waiting period of three years implicate the Second Amendment’s protected right of “keeping”, “possession” or “having” arms? Yes, it would.
Thus, the conduct implicates the plain text of the Second Amendment.
Once the Second Amendment is implicated, the conduct is presumptively constitutional and the modern-day regulation is presumptively unconstitutional and should be vacated.
One of the things we keep discussing is the fight to keep Second Amendment challenges in the legal realm. There is no need for history professors or experts in what the founding fathers wanted or thought. All that is required is an examination of the regulations of the time.
The Government merely needs to bring regulations from the founding era that are a match for the state’s modern regulations to the attention of the court. If they can do that, they will win.
Today, I might have to order a firearm from my LGS. I might have to wait for it to arrive. Or I can choose from something in stock and walk home with it. Professors Spitzer and Roth gave their expert opinion that a three-day waiting period was to be expected in the founding era because people couldn’t just buy the firearm they wanted.
This is irrelevant. If I want a Serbu BFG-50, it will have to wait for it to be made. It will take a few weeks. So what? I can still buy other firearms right now if I wanted it.
This is why the battle of the “experts” is not allowed under Heller and Bruen.
The judge then says that all the case law showing that acquiring a firearm is protected by the Second Amendment is no longer good case law. “Because they happened before Bruen and didn’t examine the plain text”. Of course, he fails to note that the actual methodology was put in place with Heller in 2008, so all those cases after 2008 are good case law IF they followed Heller. I.e., didn’t use means-end.
This judge should be impeached. The Supreme Court ordered the inferior courts to look first at the plain text of the Second Amendment. If the conduct implicated the Second Amendment, the state had the burden to bring forth a history and tradition of regulations that are analogous to the modern regulations.
—Order Rocky Mountain Gun Owners v. Polis, No. 1:23-cv-02563 0 is an unknown locator
First, he says that purchasing a firearm doesn’t implicate the plain text of the Second Amendment. Then he says that since the state can’t show a history of regulations requiring waiting-periods, he is going to look for a tradition of waiting periods.
—id. at 30
This means that there wasn’t a founding era regulation for waiting periods. The fact that society, as a whole, didn’t have the same level of instant gratification as today, doesn’t mean that waiting periods can be forced today.
The judge relies on the Spitzer declaration of laws from 1623, 1631, 1632, 1655, 1868, 1878, 1883, 1879, 1888, and 1893 regulating possession of firearms by intoxicated purposes to justify a waiting period. Please note the era that is missing from that list of dates. That’s right, nothing from the founding era.
Because this is a request for a preliminary injunction, the Winter factors are being analyzed. That is to say, the likelihood of success on the merits, irreparable harm, balance of equity, and public interest. If the challenge involves the deprivation of a core civil right, irreparable harm is done. If the court finds that it doesn’t involve a core civil right, they can use other means to decide on the level of harm.
In the same way, once the court decides the constitution doesn’t apply, they can balance the equities in favor of the state and use “good enough reasons” to determine the public interest.
Waiting periods are perhaps the stupidest thing I have ever heard of.
I cannot imagine how that will improve safety, cut down on crime, or anything else at all. Meaningless feel good law at best.
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Can anyone point to a single instance where a waiting period actually prevented a crime?
Maybe there is one, but it is a serious outlier. Among the millions of violent crimes committed throughout the USA over the past decade how many happened because the criminal got mad and went out a bought a gun?
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Seriously, the process of legally obtaining a firearm is sufficiently long for someone to calm down. And, if the process of heading to the FFL, selecting the gun, filling in the paperwork, waiting for it to be transmitted/called into the FBI, waiting for the clerk to package it all up, carrying it to the register, paying, and heading back to the location of the incident is not enough to get you calmed down, a 10 day waiting period will not do much more.
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We all know gun guns. The only time we buy something at the spur of the moment is if there is a particularly nice sale on.
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Oh, and a waiting period will do nothing to stop that sale either.
It’s worse than that, even. What good is a waiting period to “cool off”, as applied to someone who already owns guns?
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Suppose a guy is really pissed off and wants to go shoot someone. (“Extreme outlier”, indeed, but just for the thought experiment, suppose he exists.) He goes in to buy a gun to commit his heinous deed, and gets stymied by a 3-to-10-day “cool off” waiting period. He can’t leave with his new gun until next week.
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Still intent on committing his crime, he goes home and selects a gun he already owns from his collection, and goes and shoots whoever pissed him off. The “common sense, reasonable” law that was upheld because it’s “vital for public safety”, did absolutely nothing to prevent violence. And in that hypothetical scenario, up until the point of the shooting the guy didn’t break any laws; it doesn’t even consider the illicit trade in stolen guns, which doesn’t make people wait at all.
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And it won’t stop mass shooters, as often claimed. Those people usually plan things well in advance; a 3-day waiting period is nothing. They’ll acquire their guns a week after deciding to do it, but won’t actually do it for several weeks. (Heck, a “One Gun a Month” law won’t help much, either; with six months to plan, they’ll have six guns to bring.)
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“Meaningless feel-good law” is 100% right.
What a tool. What kind of mental contortions did it take to intentionally avoid the conclusion that absent a right to “obtain” or “acquire” arms, there is no right to “keep arms”? You can’t “retain”, “not lose”, or “have custody of” something you can’t “obtain” or “acquire” in the first place.
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And this: Professors Spitzer and Roth gave their expert opinion that a three-day waiting period was to be expected in the founding era because people couldn’t just buy the firearm they wanted.
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Hogwash. Did they try to explain why they assume a person in the Founding Era couldn’t just buy a firearm they wanted?
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Seriously: Why wouldn’t they be able to? As you say, “If I want a Serbu BFG-50, it will have to wait for it to be made. It will take a few weeks. So what? I can still buy other firearms right now if I wanted it.” This is correct. If I want a custom gun from a boutique manufacturer, I will have to wait. But if what I want is a Glock 19 or S&W M&P in 9mm, I can walk into any LGS and they will almost certainly have one or both in stock and ready to go.
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Spitzer’s and Roth’s assertion might be true (emphasis on might) if all firearms in the Founding Era were custom made-to-order. If so, it would have just been a manufacturing reality of the era; it does not affect the right to obtain or acquire arms one bit. It would be like claiming that the rights of free speech and the press can be subject to a waiting period now, because typesetting and printing leaflets in the Founding Era took time, and they didn’t have the Internet to provide instant distribution.
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But there’s no evidence supporting their claim, and plenty of evidence showing the opposite. Guns were ubiquitous, gun companies and armories — whose sole business was the manufacture of firearms — were already established, and even though firearms were still hand-crafted, the designs, patterns, and templates were mostly standardized. There’s no reason to think a gun maker, even working alone in a one-man shop, wouldn’t be building guns full time and selling them as people wanted them. At any given time he might have several guns ready — with several more in various stages of assembly — that a buyer could just hand over money and walk out with immediately.
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Scale that up into a gun company or armory, with many people working on guns at various stages of assembly, and the claim that “people couldn’t just buy the firearm they wanted” blows up spectacularly.
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That these “experts” could fail at something so fundamental and logically elementary, calls into question their qualifications as “experts”. And it demonstrates precisely why SCOTUS said legal challenges must not become “battles of experts”.