B.L.U.F. A thought exercise in why the state is producing so many opinions that don’t seem to matter within the bounds of the Bruen opinion. Maybe it is because they are attacking a particular clause in Bruen

There is a classic scene in most cowboy and Indian movies where the new person is with the more experienced person and spots an Indian. The new guy points him out and the grizzled old dude says something like:

If you see him, he wants you to see him. If there is one there are a hundred

The point being that it wasn’t an accident. The Indian wanted to be seen in order to accomplish some strategic or tactical goal.

Much of combat is attempting to get your enemy to misinterpret your actions. If your troops start moving back from the front line and the enemy doesn’t believe that it is because they are pushing you back, they are going to expect a trap. If on the other hand your troops hold as long as they can before retreating, pulling the enemy into ambush, the enemy is more likely to believe they forced the retreat.

As much as we like to call the gun infringers names, like “moron” or “idiot” or “Col. USMC(Ret.) Tucker Stupid”, these are not stupid people. If you believe for one moment that AG Rob Bonta or his people are stupid then you are in for a rude awakening.

These people don’t play to lose unless it is to their advantage.

So if they are presenting huge amounts of what I have called emotional blackmail and items outside of the bounds set forth under Bruen there must be a reason.

The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. In some cases, that inquiry will be fairly straightforward. For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional. And if some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.
New York State Rifle & Pistol Assn, Inc. v Bruen, 142 S. Ct. 2111 – Supreme Court 2022 at 2131

Double emphasis added.

This is the key that I believe is going to be the core of the state’s argument moving forward on bans. …addresses a general societal problem that has persisted

What this means is that if the state can get the court to decide that something is a new societal problem, then the state is not as limited in what history and tradition they can use to support their infringement.

We have page after page of electronic ink telling us that mass shootings are a new problem, that the devastation of rapid fire detachable magazine weapons is a new problem, that the type of injuries from the bullets fired from modern weapons is all a new problem.

Consider the argument of Lucy in Rupp v. Bonta. Her arguments are about how much impact public mass shootings have on society as a whole. Is the state going to argue that “impact on society as a whole” is a new societal problem?

If the state can get the judge to agree that it is a new societal problem, then they are going to argue that the restrictions that were put in place in response to older perceived societal problems is an acceptable and constitutional action today.

While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach. The regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. Fortunately, the Founders created a Constitution—and a Second Amendment—”intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” McCulloch v. Maryland, 4 Wheat. 316, 415, 4 L.Ed. 579 (1819) (emphasis deleted). Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated. See, e.g., United States v. Jones, 565 U.S. 400, 404-405, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (holding that installation of a tracking device was “a physical intrusion [that] would have been considered a `search’ within the meaning of the Fourth Amendment when it was adopted”).
Id. at P. 2132

Double emphasis added.

And that is the goal, if the state can convince the court that this is a new societal problem then the court will be asked for to apply a more nuanced approache which will quickly become the new means-end of Second Amendment litigation.

I hope I am wrong.

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By awa

8 thoughts on “Why are they arguing outside of <i>Bruen</i>”
  1. You’re not wrong, sorry to say. Judges at all levels of government are increasingly becoming social justice activists; warriors who determine what order and disorder is (good and evil), subjectively in accordance with their ideological views on American Demographics. In many cases judges and prosecutors who have a string of letters after their name, construct and form their legal opinions by constructing word-salad comparisons, evaluating US Law through the historical case laws from other nations. These types of social justice warriors have one thing in common, they’re all proponents of a utopian globalist society. And they all believe the USA should lead the way in this effort to true peace.

    1. I’ll post what I consider a utopian word-salad example from a well credentialed American attorney, law professor, and former prosecutor for the US DOJ, who holds several law degrees from the most prestigious schools in the nation. Conflation never looked so good – https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4355071#:~:text=Funk%2C%20PhD%2C%20T.%20Markus%2C%20Busting%20the%20Durable%20Myth,at%20SSRN%3A%20https%3A%2F%2Fssrn.com%2Fabstract%3D4355071%20or%20http%3A%2F%2Fdx.doi.org%2F10.2139%2Fssrn.4355071%20Download%20This%20Paper

      1. David, I followed and read the paper referenced by your link. As far as I can tell it is somebody writing in an erudite manner telling us that US self-defense law is more restrictive than the laws in the UK and Germany. Did I miss something?

        1. Awa, you’re correct about Fink’s manner of writing, but the context and conclusions of that writing are completely misplaced because he doesn’t fully understand Use-of-Force Law in the U.S. I’ll post an example and my take on it.
          To illustrate the real-world impact of this honest-belief-only standard, recall embattled Rittenhouse prosecutor Thomas Binger. In his closing arguments, Binger asked the jury repeatedly what a “reasonable person” would have done in Rittenhouse’s position: “Would you have gone out after curfew with an AR-15 looking for trouble? Would you have aimed at other people? Would you have tried to use the gun to protect an empty car lot? No reasonable person would’ve done these things!”

          Prosecutor Binger’s near-singular focus on the alleged unreasonableness of Rittenhouse’s conduct serves to highlight how game-changing England’s honest-belief standard is. In England, the jury would not need to be persuaded of the objective reasonableness of Rittenhouse’s asserted belief that deadly force was required to ward off an imminent attack. Instead, Rittenhouse would be entitled to an acquittal if the jury merely concluded that he honestly held his belief. Suffice it to say that it does not take a practitioner with years of in-the-trenches experience to recognize that this honest-belief-only standard imposes significant additional burdens on prosecutors. It removes the objective reasonableness safeguard and requires prosecutors to focus their entire energy on the difficult task of disproving defendants’ claims about what they were thinking when they, say, pulled the trigger.
          Example: In Germany, on the other hand, Rittenhouse would have merely had to persuade the fact finder that his exercise of deadly force was necessary to prevent the attackers from, among other things, robbing, assaulting, or battering him. Prosecutor Binger argued that “Joseph Rosenbaum was chasing after the defendant because he wanted to do some physical harm to him, but you don’t bring a gun to a fist fight.” Such a contention could carry weight in the United States. But if prosecutor Binger made this argument in Germany, he would be conceding that a non-trial attack was in Rittenhouse’s future, thereby all but guaranteed a speedy acquittal.
          My Take:
          Fink has misapplied Rittenhouse case by presenting prosecutor Binger’s distorted interpretation of Rittenhouse’s use of force as if it is a true representation of the application of US Use of Force Law, which it is not. And as the end result of the case played out, it turns-out the Rittenhouse case was completely in agreement with Germany’s laws, proving that US Law accurately applied as intended, actually produces the same end result—justified use of force. Fink uses the grossly distorted leftist liberal interpretations of US LAW as presented by Binger as if it is an example of the legal intent of US LAW. Just because a liberal leftist prosecutor grossly distorts the law as written and applied it deceptively, using outright lies, doesn’t mean it’s a credible example of how US Law regarding Use of Force should be upheld by prosecution in a court of US Law. Only a liberal leftist mindset would believe Binger was “embattled”, meaning the prosecutor here was bond by law and doing his legal duty and was therefore credibly representing the law as written i.e., Rittenhouse had no right to, use-o -force law protection. This is not a good example of the point Fink believes should be considered to prove his assertion. But he believes it is. He therefore gives the liberal leftist mindset on Use of Force, credence by using an incorrect interpretation of Use of Force Law. Fink doesn’t make a distinction of, nor separate, social activism from actual law.

          Fink later states again, the Binger’s argument could ‘carry weight’ in the USA but not in Germany. This is again conflating Use of Force Law regarding objective reasonableness by disregarding or omitting subjective reasonableness as a key determiner in judging objective reasonableness. To be “Objective” one must understand the defendant’s subjective reasoning, in error or not.
          Fink’s final statement: Ultimately, such impactful misconceptions distract us from having a more fully informed debate about the appropriate role of, and justification for, self-preferential deadly force in a modern, democratic nation. Correcting such fallacies, then, is a vital first step towards a more balanced and promising conversation about criminal justice reform in a pluralistic society like ours.
          I believe he does not realize that he in fact has added to ironically, ‘misconceptions which distract us from having a more fully informed debate…..’ by using bad cases upon which to base his premise. But perhaps he knows exactly what he’s doing. After all, prosecutors across this nation cringed at the legal arguments presented by Binger on Use-of-Force Law in the Rittenhouse Case.

  2. There is nothing new. All of this has happened before and will happen again. Just as mass shootings did not start with the Texas tower they will not end with the latest abomination. Or the one after that.
    This is about control. Tools change. Mankind does not.

  3. Now that you mention that I am seeing in a kind of horrified flashback the language used. Things like emerging trend, disturbing new, experts are seeing a new, so on so forth and its been happening for quiet a while.

    If this has been the case then good Lord these folks have been playing the long game much much longer than most of us give them credit for. Most people subject to emotional blackmail are reactionary and minute to win it fans. There is some sociopathic spider at the center of the web tugging merrily at the strings.

  4. The question is not “are the trying this tactic” but will it sway the judge?
    In this particular situation, claiming that restrictive gun control laws are needed because “a persistent societal problem” may have some merit, but is the solution appropriate? Does it actually do anything? Or is it magical thinking at the State Government level?
    And, (IANAL warning) that is an argument that may work. Sure, people shooting each other is a societal problem, but is removing/restricting guns from everyone going to actually stop any violence?

    1. There is a simple rebuttal. If guns are the source of the violence, and removing all guns will stop all violence, then the historical record should show no violence before around 1364 AD.
      What we usually hear about is “gun violence,” not “violence.” Of course if there were no guns, nobody would die of a gunshot wound; just as nobody in history has ever died from a handheld plasma discharger, and nobody was killed by a drunk driver in a car before 1886. And so forth. The objective, it seems to me, is to conflate a true statement (“If there were no guns, no one would die of gun violence”) with an untrue statement (“If there were no guns, no one would die of violence”) by inference, and then proceed as if the second statement were true.

Only one rule: Don't be a dick.

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