B.L.U.F.
A fun little trip through the FPC and SFA’s briefing on what “in common use” means to the Fourth Circuit court.
Text comes first.
Then history. If the arm is in common use, the history analysis has been done by the Supreme Court, we win.
(1400 words)
The Tip-Off
—No. 105 Dominic Bianchi v. Anthony Brown, No. 21-1255, slip op. at 1 (4th Cir.)
As noted, the correct response to a court asking about “in common use” or the state claiming that the plaintiffs bear the burden, is to simply point to the Supreme Court’s own words.
If the plain, or bare, text of the Second Amendment covers the conduct, then the Constitution presumptively protects that conduct.
The state is attempting to move the courts from “plain or bare text” to “nuanced meaning of the text” or, worse still, “interpretation of the text”.
If the state or court wants the meaning of “arms” to be evaluated in the context of “dangerous” or “unusual” or “primarily of military use”, they are not looking at the plain text. They are looking past the plain text.
The Ref calls it
As the Supreme Court has held, as a plain text matter, “arms” at a minimum includes all firearms, and there is no dispute that the semiautomatic firearms Maryland bans are firearms.
—id. at 2.
In Heller the Supreme Court used the definitions of the 1700s to set the meaning of “arms” as used in the Second Amendment. They went further, stating that all firearms are arms.
The term “firearm” is defined in federal law, 18 U.S.C. § 921(3)
—Gun Conrtrol Act of 1968, 18 USC § 921 (U.S. 1968)
Not that the definitions within federal law make any difference in court. The only definitions the Circuit court should care about are those of the Supreme Court as they pulled them from the time of ratification OR other contemporary authoritative works.
The State Fouls, Again.
As we saw in The State Tap Dances, the state doesn’t think that “plain text” means plain text. They think that it is the plaintiffs’ burden to prove that the arm they wanted to be protected is protected by the Second Amendment, before the state has any burden to prove history or tradition.
Yes, that is the circular reasoning. You have to prove that the firearm you say is protected by the Second Amendment is protected by the Second Amendment, before the plain text of the Second Amendment presumptively protects the conduct.
e burden therefore falls to the State to demonstrate a tradition of regulation that would support its ban.
—#105 in Dominic Bianchi v. Anthony Brown (4th Cir., 21-1255), No. 21-1255, slip op. at 2 It is clear that the plain text of the Second Amendment covers the conduct. The state now has the burden to prove history and tradition.
That can’t. They know they can’t. Because they know they can’t, they would rather not have to prove it.
This is the same song and dance they state did before Heller. You challenge a regulation on Second Amendment grounds. The courts deny you have standing because you are not “the militia”.
Before you can address the question of the infringed conduct, you have to overcome an artificial barrier.
It would not surprise me to see the rogue inferior courts adopt a methodology of “you’re not part of the people, you have no standing” because then they don’t have to look at the regulation.
Dunking on the Special Needs attorney
The Plain Text of the Second Amendment Applies to All “Arms,” Common or Not.
As Bruen instructs, the analysis begins with the text, a straightforward inquiry in this case. Bruen repeatedly emphasized that the subject of this analysis is the Amendment’s “plain text,” 597 U.S. at 17, 24, 32, 33, or “bare text,” id. at 44 n.11. In other words, the focus is only upon the words of the amendment, their historical meaning, and what they fairly imply. Distinctions that do not appear on the face of the text cannot be found at this stage of the analysis and must be derived, if at all, later, through history.
—id. at 2–3
Two points!
Seriously, the state is trying hard to make the words “plain text” cover distinctions, derivation, interpretations, and all other twisting of words. The state is intentionally lying to the court. They won’t be called on it by the court, but the plaintiffs certainly did.
In the state’s briefing (—No. 104 Dominic Bianchi v. Anthony Brown, No. 21-1255 (4th Cir.)), they carefully avoid quoting the actual definition of “arms”, given in Heller. They ignored this plain text in Heller, Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.”
—District of Columbia v. Heller, 467 U.S. 837, 581 (2008)
There is no reading of any part of Heller, McDonald, Caetano, or the Second Amendment that would even remotely suggest that firearms are not arms.
The plaintiffs (good guys) have clearly stated why this is a Second Amendment challenge, and that the plain text of the Second Amendment covers the individuals’ proposed conduct.
One Basket After Another
They then move on to the history and tradition.
This is where “in common use” comes into play.
The state, at this point, has an opportunity to prove that their modern infringement has a match in history and tradition. The history is from the time of the adoption of the Second Amendment. Tradition means that it can’t be a one-off, and it has to have survived for a period of time. It must have become a tradition.
There is a history of laws prohibiting murder. There is a tradition of laws prohibiting murder. The state would have no difficulty proving a history and tradition of banning the use of firearms for murder.
The Heller court analyzed the history of arms regulation. They found a history of bans on carrying arms that were dangerous and unusual. They did not find any history nor any tradition of banning the possession of arms that were in common use.
If the modern arms infringement involves an arm that is in common use, then the Supreme Court in Heller has done the work. There is no history, nor is there tradition. Thus, the state fails to meet its burden and the modern infringement is unconstitutional.
If the state succeeds at proving that the arm in question is not common, that does not mean that the modern infringement is constitutional.
What it means is that the state must now go through the work of finding regulations from the founding era that are analogous to the modern infringement.
A ban on carrying an arm does not match the “how” of a modern infringement banning the possession of an arm. Carrying and possession are not analogous.
A ban on storing large quantities of powder because it presents a fire hazard does not match a ban on possessing magazines for the purposes of “reducing lethality” of a weapon system. The “why” is not a match.
Conclusion
A powerful brief by the plaintiffs. Dominic Bianchi, David Snope, Micah Schaefer, Field Traders LLC.
And, of course: The Firearms Policy Coalition, Inc, and The Second Amendment Foundation.
With help from the Citizen Committee for the Right to Keep and Bear Arms.