We were asked “Why don’t we see juries involved in all of these Second Amendment cases? The simple answer is “they are not needed”. Read on for why.

Court cases are decided in two different ways, on the merits of the case, and procedurally.

Consider the question “Does the District of Columbia’s restriction on having a functional firearm within the home violate the Second Amendment?”

Prior to 2008 many courts were using the collective right interpretation of the Second Amendment. With this in mind the most of these cases were dismissed for procedural reason. I.e. if you were not the militia challenging the restriction you did not have standing. Standing is a procedural issue.

Cases that are decided on a procedural basis can be brought up again once the procedural issue is corrected.

A case decided “on the merits” is a case where the facts in evidence are used to decide the case. In other words, the question of “Did she kill those children?” is a question that must be answered. In order to answer it the evidence must be examined and a decision, based on the evidence presented, and only the evidence presented, must be used to determine the actual fact.

So the state says “This is one of the firearms recovered at the scene. We are going to present evidence that she held and fired the firearm.” The state then presents evidence that the firearm was recovered at the scene by such and such a person and that it was tagged and bagged. It presents evidence that a particular person took possession of that evidence bag at some point in the future. They present evidence that a particular person opened the bag and that person testifies that the bag had all the right markings and was not tampered with. The state then presents evidence that fingerprints were taken and and and.

At the end of that long string of evidence the court makes a decision “She held the firearm.” The state then must present evidence that she shot the weapon and the court must decide if that evidence shows she shot the firearm.

Lots and lots and lots of this goes on. After the plaintiffs present their evidence and the state presents their evidence, the court decides on what the facts in question are.

I’ve used the term “The court decides” that’s because the court could be a Judge or it could be a Jury.

If there is evidence to be examined and facts determined from that evidence a jury can be involved. In our example the jury could be asked to decide on the facts in question. Was there enough evidence to prove that she held that firearm?

Once all the facts have been determined, the court decides on the value and meaning of those facts to reach a decision.

Did the state present evidence good enough to show that she used that weapon to shoot and kill those people at that time and at the place? If so the court renders their decision and says “Guilt or Not Guilty”

Whether a jury or judge renders the decision, it is upto the judge to decide on the sentence.

Jury trials are more expensive and there is more room for humanizing decisions to be made.

Consider the question “Does a restriction on 18-20 year olds getting permission to carry a handgun infringe on their second amendment rights?”

People on the Jury might not understand or even know about the Bruen and Heller decisions. If the lawyers got involved trying to explain Supreme Court opinions and the like most juriest would just go to sleep. In addition, both parties would have lawyers arguing and the jury would have to decide which version they wanted to acccept.

Instead the Jury is much more likely to make decisions of fact based not on the evidence presented but instead on what they feel the right answer should be. Would you allow any person for Giffard’s, Brady, or Everytown onto such a jury and expect them to make any finding that was pro gun?

In our Second Amendment cases all of the facts that must be determined are facts of law. These are facts that should not be put to a jury. A jury is not qualified to make decisions on facts of law. Most people would not be able to answer the question of “what is the controlling case law?” so they are not qualified to make that determination.

A judge is qualified to make that determination.

When a case is filed a “complaint” will be entered. This complaint will detail who is involved with the case, what the question to be answered is, what remedies the plaintiffs are seeking, what harm is being done that requires an answer.

The defendants will file a reply/answer which addresses each point in the complaint, paragraph by paragraph. Some paragraphs the defendants will agree is true “Yes, the law is as quoted if no errors were made”. It is all slippery worded so that neither party slips something in. As an example, I read a recent court opinion where the Judge accidently attributed to the defendants what the plaintiffs said. It was a typo, nothing more.

In the complaint/answer if the answer said “you got it right” and there was a typo then it takes a bit of work to correct. So the answer never actually agrees totally on anything.

At the end of that complaint/answer there will be facts that both parties have agreed to. There is no need for a Judge to say or do anything about it.

In a case out of CT the parties agreed that the officer “stopped” the vehicle. Both parties agreed that the officer searched the trunk of the car. Since both parties agreed, the court can state as “fact” that the officer searched the trunk of the car.

At this point the defendants are going to start arguing about procedural issues. Standing is always a big one. If the defendant can get the case dismissed on procedural grounds there are never any facts “in evidence” and there is no precedent for the plaintiffs to build on.

Once the court determines that the plaintiffs likely have standing motions get entered. Motions for TROs, Motions for Preliminary Injunctions, Motions for Dismissal, Motions for Summary Judgement.

Most of the motions for dismissal are based on procedural arguments.

A motion for Summary Judgement says “Court, you have everything you need to decide this case on the merits, please do so. We do not need any more fact finding, we don’t need oral arguments, just look at the facts and it will be clear to you what should be decided.”

Of course it is possible for both parties to file for summary judgement and the opposing party will file answers opposing summary judgement in favor of their opponents.

The parties will then be asked to present their arguments regarding the each motion.

For a second amendment case, once the procedurals are meet, the next steps are:

  • Have the plaintiffs established that the plain text of the Second Amendment covers the individual’s conduct?

That’s it. That’s all the plaintiffs need do. It is a little more complex because the plaintiffs have to establish that the regulation affects an arm and that it affects the plaintiffs ability to “keep and bear” that arm. That is the extent of what the plaintiffs are required to do.

The defendants will need to argue that the conduct is not covered under the second amendment.

These are all questions that the Judge is qualified to answer. These are fact based questions that requires the Judge to look at case law, such as Bruen, and determine if that case law applies.

Once that determination is made, the case moves to the second stage. Can the state provide analogous laws to the regulation being challenged.

The state is required to provide that list of laws. They have to justify why they believe that those particular regulations are analogous. The plaintiffs will respond as to why the state is full of it.

In Duncan v. Bonta Judge Benitez told the state that a garbage list of 300 plus regulations going back to the 1600’s in England is not acceptable. That instead they were going to have to provide him with a short list of analogous laws. The best they could find.

Again, the Judge decides which of the regulations presented are within the correct time period. The judge then decides which of those remaining regulations are actual representative regulations.

In the 18-20 year old carry bans, the state was bringing up rules and policies at University as “regulations”.

The Judge decides if those rules and policies are actually regulations.

Finally the Judge needs to determine if the regulations that remain are analogous to the regulation being challenged.

If it is analogous the judge needs to determine if the “why” of that regulation matches.

If the remaining regulation(s) actually support the states view, the judge then needs to decide if those laws establish a tradition.

This article is just north of 1500 words. The cases we are looking at often contain thousands of pages of documents. One small one I just looked at had one docket entry with over 250 pages in it.

That is a boat load of text to read and understand. I mess it up all the time because I skim to much of it. That is not something that can really be done as a jury.

When everything is said and done, a Jury just isn’t suitable to this sort of case.

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By awa

3 thoughts on “Why are there no juries in these 2A cases?”
  1. Thanks, AWA.
    I suppose what concerns me here is, while any given judge is supposed to be qualified to make decisions of fact (or to research and understand precedent and instruction from higher courts) directly, we keep seeing them making decisions in conflict with Heller and more recently Bruen.
    I don’t know that there’s any good solution for that; there are issues with both election and appointment methods of judicial selection, etc. And certainly it can be hard if not impossible to expel a judge who is continuously making bad rulings (as determined by overturn rate, perhaps), so long as they do not violate ethical or criminal codes. (And, as I recall, even then it can be hard.)

    1. You are asking a completely different question, how do we stomp on judges and courts that get it wrong consistently. I will answer with two quotes:

      I understand the [Supreme] Court’s denial today to reflect respect for the Second Circuit’s procedures in managing its own docket, rather than expressing any view on the merits of the case. Applicants should not be deterred by today’s order from again seeking relief if the Second Circuit does not, within a reasonable time, provide an explanation for its stay order or expedite consideration of the appeal.
      Statement of Justice Alito


      Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny. Pp. 2126-2130.
      Bruen at P. 2118
      1. Yep, I changed topics. Questions lead to questions whose answers lead to more questions… 🙂

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