B.L.U.F. Cook County tells the court that modern sporting rifles aren’t arms, and other fairy tales.
Plaintiffs cannot establish that Assault Weapons are “arms” protected by the Second Amendment.
You know it will be a chuckle fest when the state starts their argument with such an absurd claim.
—Viramontes v. The County of Cook, No. 1:21-cv-04595, slip op. at 2 (N.D. Ill.)
Off the rails they go
When the lawyers can’t even understand plain English, you know they are just going to be lying.
the general definition covers —New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, 2117 (U.S. 2022) isn’t giving a limitation, it is saying that this set of arms,
modern instruments that facilitate self-defense —id. are subsumed in the superset of the definition of arms given in Heller
The goal of the state is to make it the plaintiffs’ burden to prove that something is an arm. All the while, trying to tighten the definition of arms to limit that definition as much as possible.
—#116 in Viramontes v. The County of Cook (N.D. Ill., 1:21-cv-04595), No. 1:21-cv-04595, slip op. at 2–3
While it might be the case that the Bruen Court did not conduct a step one analysis, they did explain in dicta how that step should be conducted. If it is an arm, as defined in Heller and the proposed conduct is within the scope of the Second Amendment, then that proposed conduct is presumptively protected by the Second Amendment.
In addition, there is one mention of “in common use for self-defense” and multiple mentions of “in common use for lawful purposes.” The state is trying to confuse the matter by changing the requirement for “in common use”. The state is creating conflict where none exists by demanding that an inferior court define what “in use for self-defense”. “Common” omitted on purpose.
The state wants that definition to be as tight as possible, maybe limited to just instances when a round is fired resulting in death or injury to the bad guy. As many have stated, the gun in a cop’s holster, as he walks down the street, is in use for self-defense. You do not need to be pulling the trigger for it to be in use.
In addition, the state wants to exclude all “in use” for other purposes, sporting, training, hunting, and the like.
Heller does distinguish between dangerous and unusual weapons. They say that if an arm is in common use, it is not unusual by definition. Since it is not unusual, then there is no need to determine if it is dangerous.
The state also conflates a modern semi-automatic rifle with a “weapon most useful for military service”. There is a carve out in Heller for the NFA. The Heller Court did not want to go that far; thus they let the NFA stand presumptively. I.e. they didn’t say it was constitutional, they said they weren’t going to address it.
More quotes from —id. at 3–14
- The Regulated Weapons are not in common use for a lawful purpose
- Plaintiffs cite no binding precedent that Assault Weapons must be considered common.
- Possession and popularity do not establish “common use.”
- Plaintiffs present insufficient evidence that the Regulated Weapons are “used” for a lawful purpose like self-defense.
- Weapons that are dangerous and unusual are not protected.
- Plaintiffs ignore the Second Step of the Bruen Analysis
- Bruen does not abrogate binding Seventh Circuit Precedent.
- Plaintiffs’ Motion for Summary Judgment fails as it is not supported by admissible evidence.
- The state refuses to accept anything suggesting that common use can be determined from observation. They claim that sales records of millions of so called ‘assault weapons’ does not mean that there are hundreds of thousands of owners of ‘assault weapons’.
- The state wants the District Court to punt the question of common use to the Seventh Circuit.
- That depends on what your definition of “is” is.
- The state continues to attempt to work “self-defense” into “common use for lawful purposes. They actually want the plaintiffs to argue the number of times an arm is used in self-defense. If the plaintiffs do this, they will have lost a major battle.
- But “assault weapons” are not unusual. The state argues that they are because the plaintiffs have not proven they are in common use.
- According to the state because the plaintiffs are using the Heller Court’s holding that if an arm is in common use, it cannot be banned, that the plaintiffs are ignoring the states’ gunpowder storage history.
- This is the big one. This translates to “Are appellate Court opinions from before Bruen still good law?” Once the Supreme Court changes the method used to reach an opinion, the district courts are free to use Supreme Court opinion over their circuits opinions.
- The state argues that the plaintiffs failed to follow the rule on what they brought in as evidence. They really want this to be a battle of experts. It is not. They want anything that has not had a confrontational hearing to be ruled out of order.
Wow, the state gets it right:
But this approach renders the “common use for lawful purposes such as self-defense” standard Heller derived from Miller, and which the Court specifically reiterated in Bruen, meaningless. Extending Plaintiffs’ argument to its logical conclusion means arms are protected if commonly owned, with no further limitation.—id. at 4. That’s right, if it is in common use, it cannot be banned!