Continuing from our last article, Cases are won and lost before they are heard, we look at —No. 36 Lafave v. The County of Fairfax, Virginia, No. 1:23-cv-01605 (E.D. Va.).

The state wants discovery. They put the plaintiff’s (good guys) reasoning as:

Plaintiffs’ position: Plaintiffs’ position is that no discovery is required in this case, which presents a pure question of law to be resolved by the Supreme Court’s instructions in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). The only issue presented in this case is whether the County’s ordinance is consistent with the Second Amendment, as analyzed under Bruen. Bruen itself was resolved solely on the pleadings. See 142 S. Ct. at 2124-25, 2135 n.8; see also id. at 2159 (re: “deciding this case without a trial and factual findings;” “The record before us, however, tells us everything we need on this score.”) (Alito, J., concurring). Bruen requires judicial reliance on historical analogues, particularly Founding-era laws, for which no expert testimony is necessary. All relevant historical information can be provided by briefs and declarations. In the event the Court believes there should be a discovery schedule, Plaintiffs do not object to the schedule proposed by Defendants below.
id. at 1–2

The plaintiffs are correct. No discovery is required. Are the plaintiffs part of The People? Do they wish to keep or bear an arm? If the answers are both yes, the plaintiffs’ burden is met. The burden then shifts to the state to demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, 8 (U.S. 2022)

Not only was Bruen resolved solely on the pleadings, so were Heller, McDonald and Caetano. I’m not sure about Stables.

When the question is purely of law, there is no need for experts. The experts are the courts. The parties bring forth their arguments via pleadings. The court reads the pleadings, listens to the arguments, evaluates case law, and then issues their opinion.

“Expert testimony” is expressly forbidden to give legal opinions. If there are legal arguments, the parties must present them, as their own experts.

In one of the Ninth Circuit cases, the state is arguing that certain expert testimony is actually opinions of law and must be discarded.

Even if the state was arguing about “The People” or “arm”, there are no experts involved.

Defendants’ position: Defendants disagree with Plaintiffs’ position that no discovery is required in this case. District courts in Second Amendment cases since Bruen regularly provide for both fact and expert discovery—including written and document discovery, expert disclosures, and depositions—just as in other civil litigations. See, e.g., Schoenthal v. Raoul, No. 3:22-cv-50326, Dkt. 45 (N.D. Ill. Apr. 21, 2023) (case management and scheduling order providing for fact and expert discovery in Second Amendment challenge to Illinois law restricting guns on public transit); Rocky Mountain Gun Owners v. Town of Superior, No. 1:22- cv-02680, Dkt. 49 (D. Colo. Jan. 19, 2023) (same, in Second Amendment challenge to local Colorado ordinances restricting assault weapons and large-capacity magazines); Jones v. Bonta, No. 3:19-cv-01226, Dkt. 105 (S.D. Cal. Jan. 18, 2023) (same, in Second Amendment case remanded by the court of appeals for further proceedings in light of Bruen). And, contrary to Defendants’ assertion, courts have relied upon expert testimony and other evidence developed through discovery in deciding post-Bruen Second Amendment challenges. See, e.g., Or. Firearms Fed’n v. Kotek, — F. Supp. 3d —-, 2023 WL 4541027 (D. Or. July 14, 2023) (rejecting Second Amendment challenges to Oregon firearm licensing and large-capacity magazine laws after a week-long bench trial with twenty witnesses, including eleven defense expert witnesses).
#36 in Lafave v. The County of Fairfax, Virginia (E.D. Va., 1:23-cv-01605), No. 1:23-cv-01605, slip op. at 2

The state offers a powerful argument. Surely, overpowering the weak argument of the plaintiffs, who relied on Supreme Court opinions and holdings. The state tells the court that other district courts allowed expert testimony and discovery.

This is as bad as the Seventh rejecting arguments for The People because courts inferior to them had ruled against The People.

Ignoring the courts that found for The People.

This discovery process can be very intrusive and expensive.

The reality of this is that the discovery process will add 5 months to this litigation.

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By awa

3 thoughts on “What does the state want to discover?”
  1. The Progressives on the Court are trying to support a pillar of the Progressive agenda; to disarm the Public to prepare it for tyrannical rule by Elites.

  2. Heh. What the state wants to discover, is how to get us to shut up and go away and let them infringe in peace. 🙂

  3. Adding 5 months to the process isn’t a bad thing…if you’re one of the attorneys involved who gets to bill for that extra 5 months.

Only one rule: Don't be a dick.

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