This case was another challenge to 18 U.S.C. §922(k) possession of a firearm with an obliterated serial number.

Mr. Avila is a bad dude. He was charged with four counts, 2 counts of distributing fentanyl, 1 count of distributing cocaine, and 1 count of felon in possession of a firearm.

Mr. Avila, through his state provided attorney, asked the court if §922(k) was constitutional. This was construed by the court as a motion to dismiss count 4, §922(k).

This case is now dead because Mr. Avila pleaded guilty, and I’m not paying to find out exactly what he pleaded guilty to and what he got out of it.

I’m sure we all play the game of “Guess what their opinion will be based on how they describe the problem.” I do that with court orders/opinions.

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held these words secure an “individual right to possess and carry weapons in case of confrontation.” Id. at 592. A short two years later, the Court held this newly recognized right—in one way or another—applied against the states. McDonald v. City of Chicago, 561 U.S. 742, 791 (2010) (plurality opinion) …
No. 40 United States v. Avila, No. 1:22-cr-00224, slip op. at 3 (D. Colo.)

That jab of “A short two years later” is nasty. It is nasty because, as a court, he knows that a right delayed is a right denied. Waiting 2 years for our rights is “A short two years.”. I’m not feeling good about this judge right now.

Despite this broad consensus and the agreement of the United States with the approach developed by the lower courts, the Supreme Court held the lower courts employed “one step too many.” Id. at 2127. “Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. Bruen instructs lower courts “to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding” and go no further. Id. at 2131. In doing so, courts should “consider whether ‘historical precedent’ from before, during, and even after the founding evinces a comparable tradition of regulation.” Id. at 2131–32. This task, the Court acknowledged, “will often involve reasoning by analogy,” which “requires a determination of whether the two regulations are ‘relevantly similar.’” Id. at 2132 (quoting C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993)).
id. at 4–5

We again have that jab, this court is saying that because inferior courts had decided to turn the Second Amendment’s protections into a joke, the Supreme Court should have done the same.

The citations are correct. There is nothing extraordinarily bad about them. What they are, though, is second best.

When the Supreme Court says, “We hold …” they are telling you the answer. After they give the holding, the rest is dicta, explaining that holding.

On the record before it, the Court concludes that firearms with obliterated serial numbers are not within the class of firearms typically possessed by law-abiding citizens for lawful purposes. The Court also finds that firearms with an obliterated serial number—like the one Defendant is accused of possessing—are dangerous and unusual weapons and, therefore, not within the scope of the Second Amendment’s guarantee.
id. at 11

The court plays word games again. Is a firearm an arm, with in the meaning of the Second Amendment? All firearms are arms. Is a firearm without a serial number an arm? Yes. The state argues constantly that “ghost” guns are arms that should and can be regulated. Is a firearm with a serial number an arm? Yes. Quod erat demonstrandum

If a firearm with a serial number is an arm, and a firearm without a serial number is an arm, then a firearm who’s serial number has been removed is still an arm.

Even though the court did not explicitly say that the plain text of the Second Amendment doesn’t cover the individuals’ conduct, they did not say what part of this Nation’s historical tradition of firearms regulation is analogous to §922(k).

This means the court profoundly erred in this decision.

A bit further, the court actually says it:

In sum, the Court holds that the kinds of firearms § 922(k) prohibits are not “Arm[s]” within the meaning of the Second Amendment, and as a consequence Defendant’s constitutional challenge to this statutory provision fails.

We are seeing this argument over and over again. After Bruen, I expected the fight to be in the realm of “sensitive” places. And that battle is happening. It does not appear to be a winning argument for the state. Mainly because after the Bruen court told the states that they can’t just declare a large area a “sensitive” place because cops sometimes patrol, the states then proceeded to do just that.

On the other hand, the courts and the state turning when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022) into a first step hurdle.

Is it an arm? Well, duh, it’s a gun. That makes it an arm. Go read Heller‘s definition of what an “arm” is. There are no asterisks in the Second Amendment. There is nothing that says, “we are only talking about these types of arms.” or “we aren’t talking about those types of arms.” It is all arms.

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By awa

8 thoughts on “United States V. Avila No. 40, Order”
  1. IMHO, SCOTUS did us no favor when in Heller it agreed to the idea of “certain places are/can be sensitive places.” I’m hard pressed to consider anywhere so “sensitive” that mere presence in that space legitimately precludes an individual’s right to defend his life with the most effective means available.

    I will grant that prudence should – emphasis on “should” – dictate reasonable possession standards; if I’m undergoing a medical procedure that involves an elevated level of anesthesia, either full general anesthesia or what’s frequently called “sedation dentistry” in which consciousness is barely maintained, by definition I’m not going to be in full cognitive control of my firearm so it’s reasonable to secure it.

    And for those who chirp “the children,” please explain to me why you believe lawful carriers should be prohibited around children but the potential for exposing those same children to harm via the unlawful use of a firearm by a user intending harm is so much more betterer.

    1. Court houses — because of the types of people who tend to be there. You know, like lawyers.
      Rooms near MRI machines or other over-strength magnets.

    2. Re sensitive spaces, I would think places where a negligent discharge could potentially cause a mass casualty event might qualify. Certain types of chemical plants, petroleum refineries, maybe nuclear reactors (although that would be a stretch for a well-designed one).
      But that’s about it.

    3. “Sensitive places” wasn’t on the table in Heller; it’s not the question SCOTUS was asked, so it would have been inappropriate for them to hold either way.
      I’d like to say that if it wasn’t the question asked, the opinion shouldn’t have mentioned it. But then, they had to have the discussion to determine that a person’s home CANNOT be listed as a “sensitive place”, so bringing it up was inevitable.
      But it does show how anti-gun lawyers will latch onto ANYTHING they think will bolster their argument, including a discussion in dicta that in context is separate from the question SCOTUS is asked and says so. IIRC, the opinion specifically says that SCOTUS is not determining the Constitutionality of “sensitive places”. Using that to support an argument that they are Constitutional is weak tea at best.
      (It’d be like a police officer arresting a driver for DUI and not doing a Breathalyzer test, but using it as evidence at trial because “It didn’t say you were not drunk.”)

  2. I’m fascinated by the notion that a gun can be made “dangerous and unusual” simply by sanding off some numbers stamped on the outside. If ever there was a demonstration that gun banners do not have functioning brains, this one is.

  3. Judges routinely ignore opinions they don’t like, even those from the SCOTUS, for a simple reason. Nothing happens to them for doing so. They suffer ZERO personal consequences. Till that fact changes, activist judges….who are invariably leftists…will continue to do whatever the hell they want.

  4. A short two years later, the Court held this newly recognized right—in one way or another—applied against the states.
    You already touched on the “short two years later” part and how that shows an anti-2A bent.
    There’s also the “newly recognized right” part. Not only is the 2nd Amendment anything but “new”, he may as well have put the word “right” in air-quotes for all the respect he gives it.
    And “in one way or another”. As if the “far-Right-wing SCOTUS” (with its 5-4 bare majority) wasn’t simply reading the Constitution for what it says. Nope, SCOTUS was grasping at any straw it could, no matter how tenuous, to apply 2A to the states.
    And on that note, “applied against the states”. Not “applied to the states”, per the 14th Amendment. Nah, 2A is applied against the states.
    So many anti-2A phrases in one short sentence. It’s pretty clear that he doesn’t believe the 2nd Amendment should be the national, Constitutional standard. He believes that every state in the Union should be able to regulate it as they see fit, including restricting it into non-existence, and the Constitution be damned.

Only one rule: Don't be a dick.

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