A long look at what the state is arguing. It has become repetitive. We continue to examine each filing made by the state, looking for some new argument.
The best I’ve found is “oh, look at what all the district courts in infringing states have said!”
Four-hundred ninety-four days ago, the Supreme Court slapped down the infringing states, “may issue” game. The Supreme Court emphasized that the two-step shuffle of means-end was not acceptable. They commanded that the inferior courts use text, history, and tradition when analyzing a Second Amendment Challenge.
The Bruen opinion calls into question every gun-control infringement in the country. The states, not happy with being forced to issue CCWs, responded with Bruen Tantrum Bills. These bills were intended as direct challenges to the Supreme Court.
Since then, there have been hundreds of Second Amendment challenges filed. Both as civil suits and as criminal defenses.
The State’s Starting Point
The states start by looking at the Heller, McDonald, and Bruen opinions. They are looking for any openings to support their infringements.
Their go-to citations are:
- The Second Amendment is not a straight-jacket
- We are aware of no dispute over longstanding regulations
- We presume that laws regulating NFA items are constitutional
Since the Supreme court did not explicitly say that there are no constitutional regulations on firearms, that means there must be constitutional limits. It is the task of the state to find those constitutional regulations.
The Plain Text
In Heller the court spent many pages defining exactly what each word and phrase in the Second Amendment meant. Every. Single. Word.
There is no excuse for the inferior courts to get it wrong.
The state, correctly, says that it is the responsibility of the good guys to “prove that the proposed conduct implicates the Second Amendment”.
This seems to be pretty straightforward, and is. Until the state sticks their grimy fingers in the pie.
In order for the Second Amendment to be implicated, the conduct must be about keeping or bearing arms. That means there are only two things that the good guys need to prove: The thing is an arm, and the conduct is about bearing or keeping that arm.
The state cheats. They attempt to make transfer the burden as much as possible to the good guys. One of the methods is that they have been attempting to say that the first step is that the good guys have to prove it is a “protected arm”.
This is incorrect. The good guys only have to prove it is an arm. If it is an arm, then it is presumptively protected.
The devil is in the details, the Supreme Court has defined what the word “Arms” means.
—District of Columbia v. Heller, 467 U.S. 837, 2791 (2008)
even that source stated that all firearms are “arms”—id..
What this means is that the Supreme Court has defined “Arms” to include all firearms. If it is a gun, it is an arm. At the same time, they have not included things like “cannon” and other items that are not bearable in their explicit definitions.
This means that all so-called “assault weapons” are “arms” under the Second Amendment, but an M777 155m howitzer is not explicitly covered.
In other case law, the Supreme Court has ruled that the things that make firearms function are also protected by the Second Amendment.
—Minneapolis Star & Tribune Co. V. Minnesota Commissioner of Revenue, 75 L. Ed. 2d 295, 591–92 (1983)
In this case, the Supreme Court found that a tax on the ink and paper used by a press was unconstitutional. In the same way, the state cannot make regulations on ammunition or ammunition components that implicate the Second Amendment.
Under Bruen, supported by 460 U.S. 575, all taxes on firearm components are unconstitutional unless they are general taxes. If there is a sales tax on goods, the sales tax on ammunition or firearms cannot be higher than that sales tax on goods. If there is no use tax on goods in general, there can be no use tax on firearms, ammunition, or ammunition components.
The Supreme Court has expressly stated that ammunition is covered by the Second Amendment. This implies that any accessory or component is protected by the Second Amendment.
Again, the state wants to put the burden on the good guys to prove the arm is protected by the Second Amendment.
Is The Arm Protected?
Under Heller the common use methodology was created. The Supreme Court undertook an inventory of historical regulations and traditions. They started by determining that handguns are arms. That the Second Amendment applied to The People (not just the militia).
Now that the Second Amendment was implicated, they looked at historical regulations.
What they found, and documented in Heller, was that there were no historical regulations banning arms in common use.
This is the law of the land. Arms in common use were not banned in historical regulations.
They did not go further than this, they mentioned in dicta (in passing) that arms that were both unusually dangerous AND unusual might be banned.
This is a short circuit. If the good guys can show that their conduct implicates the Second Amendment AND that the state has a ban on the arm(s) in question, the regulation is Unconstitutional.
The Supreme Court has already done the heavy lifting for the inferior courts. If it is in common use, then the arm is protected under the Second Amendment. FULL STOP.
It is the burden of the government to prove that the arm(s) in question are not in common use.
In common use for self-defense!
No matter how loudly the state yells this, it isn’t the correct standard. If the standard were “in common use for self-defense”, then the Supreme Court would have had to gather evidence that handguns were in common use for self-defense. They would have asked the question of the state.
What we find, instead, is that the Supreme Court has never asked the question of “how often were these arms used in self-defense?” Instead, the Supreme Court has merely asked, “How many are possessed by The People?”
See Heller and Caetano to observe how the Supreme Court decided on “in common use”.
Are the good guys part of The People?
The state has made many arguments that The People only applies to a subset of people. Generally, they want to add qualifiers such as lawful, of good moral character, responsible, well-trained, and of the correct age. By limiting those that are covered to a limited subset, the state takes control of who gets to exercise their Second Amendment protected rights.
This is the core question in Rahimi. Is Mr. Rahimi a member of The People? At the time the TRO was entered against him, Mr. Rahimi lost his Second Amendment Protected rights. He did not lose any of his other Constitutionally Protected rights.
If he is still protected by the First, Fourth, and Fifth Amendments, then he should still have his Second Amendment protected rights.
Part of the reason the DoJ pushed Rahimi to the Supreme Court is because Mr. Rahimi seems to be a pretty despicable person. I’m sure there is a J.Kb. policy that would have Mr. Rahimi properly punished for his rude behaviors.
This is also an argument used by the state, they claim that the “in common use” test requires the good guys to prove that the arm is in common use (for self-defense) by a limited subset of The People.
What if it isn’t in common use?
As I said above, the in common use test applies to bans and is a shortcut. Even if the arm is unusual, the state still has the burden to present a history and tradition of the type of regulation they are defending.
Let’s say that the state gets the court to separate the SIG M400 from the Colt AR-15 SP1. The serial number records for the AR-15 SP1 indicate that around 83,400 were manufactured. This isn’t the 200,000 that Caetano suggests, but it is a fair number. Let’s just assume that it is ruled “in common use”.
Let us further assume that only a few thousand SIG M400s have been sold. That means that the state can claim that the M400 is not in common use; thus it can be banned if it is “unusually dangerous”.
The good guys only have to show that the M400 is not unusually dangerous when compared to the protected AR-15 SP1 to have met the requirements. The M400 would not be both unusual AND unusually dangerous.
Is there a History?
The state always starts their historical argument with a claim that there is cause for the courts to use “nuance.” This is bogus on so many levels.
To use a “more nuanced” approach, the state must prove that there is an unprecedented societal change or that there has been a significant technological change.
Let’s take the AK-47 style firearm. It is a semi-automatic weapon. We saw semi-automatic weapons being produced in the early 1900s. The first successful semi-automatic firearm was the 1885 Mannlicher, per Wikipedia. This means that semi-automatic firearms are not a new technological change.
The AK-47 feeds from a box magazine. There are detachable box magazines going back to the 1800s.
That means that we have a short stroke gas piston operating system. This was first the long stroke, such as the M1 Garand. This means that every part of the AK-47 style weapon existed for an extensive period of time. There is no “significant technological change” that requires a new approach to regulation.
This leaves “unprecedented societal change”. The state claims that mass shootings are unprecedented. Except that we had mass shootings back in the 1700s. The Boston Massacre, for example. Using flint lock military style weapons, a group of British soldiers killed 5 men and injured 6 more.
Mass killing has been going on for millennia. Some of the worst mass killings were done by governments, but religions have done their fair share. We have documentation from multiple civilizations where they proudly documented the killing of thousands.
A nuanced approach is not indicated.
One of the first cases back in court after Bruen was Duncan v. Bonta. This was a case that was waiting for certiorari at the Supreme Court. After Bruen, the Supreme Court granted certiorari, vacated the Ninth Circuit’s ruling, and remanded it back to the Ninth. The Ninth then vacated judge Benitez’s ruling and remanded the case back to the District court to gather a complete post Bruen record.
Judge Benitez then told the state to provide him with history and tradition. He told the plaintiffs (good guys) to provide him with text.
The state came back with a massive document listing hundreds of regulations from pre-colonial times through the modern era. The judge then told the state to present him a short list of their strongest regulations under Bruen.
My point in this, is that the state when to the Duke Center for Firearms Law and copied everything they had.
After Heller, before the means-end two-step shuffle, the infringers were terrified of text, history, and tradition. The created the Duke Center for Firearms Law explicitly to find historical regulations to support their current infringements.
From that massive document dump done in Duncan, the state has gotten much more targeted in their history. They keep stretching, they keep missing.
Outside The Founding Era
The founding era is roughly defined as 1791 through 1826. Anything before that time period or after does not represent the meaning of the Second Amendment at the time of its ratification. Neither do regulations from other countries.
The state likes to pull up English laws, claim the United States adopted those laws, and thus those English laws define the meaning of the American Second Amendment. While we did take much of our Common Law from England, the Constitution sets the binding law.
The state also likes to bring up proposed regulations from the constitutional conventions the 13 states held. The way it works, according to the state, is that I submit a bill saying “The militia has the right to bear arms”. My proposed bill is defeated. From this, the state claims that the actual bill “the right of the people to keep and bear arms” was actually understood to mean what my defeated bill said.
If a law or regulation is vacated, it is as if it never existed. When slavery was abolished, all laws regarding slaves were vacated. If there was a law that said that slaves were not allowed to learn to read, that law was vacated. Even if the law was written such that the word “slave” did not appear in the law.
Having been vacated, those racists laws no longer exist. They cannot be used as case law. They cannot be used for anything except a glimpse into history.
The state constantly brings up laws that were vacated as part of their “history”.
Bowie Knives and Fire Regulations
Because there are no historical infringements, the state twists laws for other purposes into support for their infringements.
The two biggest we see are the states claim that fire regulations justify their bans on magazines.
Black powder is extremely flammable. I’ve seen a half pound of powder in the open disappear in a poof in less than a second.
When black powder burns, it produces large amounts of gas. If that gas is contained, the pressure inside that container increases greatly. If the pressure inside exceeds the structural strength of any part of the container, the container will burst.
When this happens, there is a big “kaboom”.
When a house is the storage container and there is a big kaboom, bits and pieces of that building will be thrown great distances. If those pieces are aflame, the fire will spread.
To control the spread of fire within cities made of wood, there were storage requirements for black powder. You were only allowed to store a limited amount of powder within your house. If you had more than that amount, you had to store it in an approved storage facility.
This is not even close to the same as a ban on magazine size.
Bowie knives were considered unusually dangerous. There are laws from near the founding era limiting how Bowie knives could be carried. The state attempts to use these laws to justify their infringements.
The state doesn’t have good arguments. Judge Benitez did an outstanding job in letting the state commit themselves to every possible argument. The state through everything they could into their arguments. He then proceeded to destroy every argument the state made.
The state’s great hope, is that Mr. Rahimi is so despicable, that the Supreme Court decides to find an exception for him, or that the Supreme Court is unwilling to hear the public outcry when they upload the Constitution.
If the Supreme Court holds firm, we are going to see another big win for The people.
What we really need to see, is some of these rogue circuit courts release their opinions. My guess is that they are attempting to find a way to support the infringers, but which doesn’t allow the Supreme Court to easily slap them down.
Once the Supreme Court issues their opinion in Rahimi, the good guys will rush to file their FRAP 28(j) letters.
There is only so much delay that the Supreme Court or the good guys will accept. Justice Thomas has already said to the plaintiffs to come back if they don’t get timely service out of the Second Circuit.
Good times, they are a coming.