How States are arguing 2A cases post Bruen

First it is important to know that every argument made has to be designed such that the inferior court can claim to be following the guidelines set forth by the Supreme Court. If the inferior court is not following those guidelines then the case will be overturned.

The only question in these cases of not following the Supreme Court guidelines is when will the bad rulings be overturned.

In March of 2004, Heller’s suit against the District of Columbia was first ruled on by District Judge Sullivan. Judge Sullivan took the stance that the Miller opinion of May, 1939 limited the Second Amendment to those that were members of the militia.

Shelly PARKER, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.

The actual decision issued by the Supreme Court doesn’t say that. What it does say is that “These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

This required the gun banners to twist the words of the Supreme court to mean that ONLY members of the “militia” were covered by the second amendment and that the “militia” no longer meant “all males physically capable of acting in concert for the common defense”.

By redefining the term “militia” the gun grabbers created the concept of “collective rights” in regards to the second amendment.

UNITED STATES v. MILLER et al.

Once this was done most courts just dismissed second amendment claims from individuals as having no standing. In order to affect this, many states passed laws making “militias” illegal. Yeah, 1st amendment violations right there.

The case was then appealed in decided March, 2007 in the United States Court of Appeals, District of Columbia Circuit.

The District of Columbia argues that the prefatory clause declares the Amendment’s only purpose — to shield the state militias from federal encroachment — and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right. In other words, according to the District, the operative clause is not just limited by the prefatory clause, but instead both clauses share an explicitly civic character. The District claims that the Second Amendment “protects private possession of weapons only in connection with performance of civic duties as part of a well-regulated citizens militia organized for the security of a free state.” Individuals may be able to enforce the Second Amendment right, but only if the law in question “will impair their participation in common defense and law enforcement when called to serve in the militia.” But because the District reads “a well regulated Militia” to signify only the organized militias of the founding era — institutions that the District implicitly argues are no longer in existence today — invocation of the Second Amendment right is conditioned upon service in a defunct institution. Tellingly, we think, the District did not suggest what sort of law, if any, would violate the Second Amendment today — in fact, at oral argument, appellees’ counsel asserted that it would be constitutional for the District to ban all firearms outright. In short, we take the District’s position to be that the Second Amendment is a dead letter.

This is the circuit court’s analysis of the state’s argument. The state’s argument being “only the militia” and “the militia no longer exists.”

(sidebar) Ok, I’m new to this legal analysis stuff. I’m a computer nerd, not a lawyer. I read and put my best interpretation on things. I try and locate original documents and quote them and link to them. In light of that when I read something like the following, it helps to tell me I’m doing this correctly.

The District claims that Miller’s historical account of the “Militia” supports its position. Yet according to Miller, the militia included “all males physically capable of acting in concert for the common defence” who were “enrolled for military discipline.” And Miller’s expansive definition of the militia — qualitatively different from the District’s concept — is in accord with the second Militia Act of 1792, passed by the Second Congress.[11] Act of May 8, 1792, ch. XXXIII, 1 Stat. 271 …

(end sidebar)

The state then argues “The District responds that, notwithstanding the broad language of the Code, a judge would likely give the statute a narrowing construction when confronted with a self-defense justification.”

So 3 years after the district court decided the case the appeals court decided the case again and held that the district court is reversed and the case remanded. (A win for Heller)

Another year and a half go by before Heller is decided in June of 2008. Figure 5 years from start to finish.

1. The right is collective to members of the Militia and the Militia no longer exists
2. The firearm wasn’t in common use in 1791
3. It doesn’t matter what the law actually says, if you use your firearm in self-defense the judge will cut you a break

With Heller we have the Supreme Court telling all the inferior courts and all of the different little government tyrents that the second amendment is an individual right.

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2788 – 2816.

Then the court gives words that the gun grabbers will twist:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller‘s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 2816 – 2817.

and finally:

The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D.C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 2817 – 2822.

DISTRICT OF COLUMBIA et al., Petitioners, v. Dick Anthony HELLER.

With Heller the collective right gambit was put to rest. The second amendment defines a individual right, not a collective right. Given this ruling it instantly became clear that all other gun control laws could be challenged on a second amendment claim. The states were in a panic. They had to adjust their arguments so they added the following:

4. The second amendment right to keep and bear arms is not unlimited so at least some laws must be constitutional
5. Concealed weapons can be banned
6. Arms can be prohibited in sensitive places
7. Laws can restrict the commercial sale of arms and all sales are commercial
8. Laws banning dangerous and unusual weapons are allowed
9. The core right of the second amendment is self-defense within the home
10. Standards of scrutiny are allowed
11. Heller did not apply to the states

Argument 1 was no longer available but they added 8 new arguments.

The biggest of their arguments were “not unlimited”, “dangerous”, and “standards of scrutiny”. Given that standards of scrutiny was allowed that means there must be a method of determining what level of scrutiny should be used. That was by addressing how much the infringement encroached on the “core” right of self-defense within the home.

Once level of scrutiny was accepted by the infringement allowing courts, the argument turned almost entirely into making the case that what was being banned wasn’t covered by the second amendment or if it was, the infringement was so minor as to not exceed the good of the challenged law.

In most cases argued they didn’t try to prove that the arm was not covered by the second amendment but instead went directly to getting a means-ends balancing that would allow the state to keep whatever law they had put in place.

Since Heller specifically stated that prohibitions on concealed weapons was constitutional, the states that were “no issue” continued to not issue concealed carry permission slips and most of the may issue states continued to have egregious requirements on who could get a concealed carry permission slip.

It only took 2 years from Heller before the Supreme Court heard and decided their next second amendment case Otis McDONALD, et al., Petitioners, v. CITY OF CHICAGO, ILLINOIS, et al.

McDonald
The state argued “Chicago and Oak Park (municipal respondents) maintain that a right set out in the Bill of Rights applies to the States only when it is an indispensable attribute of any “`civilized’” legal system. If it is possible to imagine a civilized country that does not recognize the right, municipal respondents assert, that right is not protected by due process. And since there are civilized countries that ban or strictly regulate the private possession of handguns, they maintain that due process does not preclude such measures.”

The US District Court for the Northern District of Illinois, Judge Milton I. Shadur Presiding, agreed with the city and found in their favor. Even if the second amendment was an individual right, it didn’t apply to the states because the second isn’t indispensable and that is proven because some countries have completely banned guns.

The 7th Circuit Court of Appeals affirmed the district court.

Chicago and Oak Park are poorly placed to make these arguments. After all, Illinois has not abolished self-defense and has not expressed a preference for long guns over handguns. But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”); Crist v. Bretz, 437 U.S. 28, 40-53, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) (Powell, J., dissenting) (arguing that only “fundamental” liberties should be incorporated, and that even for incorporated amendments the state and federal rules may differ); Robert Nozick, Anarchy, State, and Utopia (1974). Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

NATIONAL RIFLE ASSOCIATION OF AMERICA, INC., et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, ILLINOIS, and Village of Oak Park, Illinois, Defendants-Appellees.

The Supreme court heard oral arguments just 9 months later and issued their opinion in June, 2010.

The Supreme court actually said that the seventh circuit court did the analysis correctly. They then said that their old opinions that limited the scope of the fourteenth amendment were no longer to be used. “In the late 19th century, the Court began to hold that the Due Process Clause prohibits the States from infringing Bill of Rights protections.”

The 7th circuit court referenced UNITED STATES v. CRUIKSHANK ET AL. which was decided in 1874-1875.

On the good side for us was that the Supreme court held that the judgement of the circuit court and district court was reversed and the case remanded.

It seems that “reversed” is a stronger statement than “vacated”.

This ended the 11th argument but allowed everything else to stand.

We saw small government infringers (cities and such) attempting to zone gun stores out of existence. “No gun stores within 200 yards of a school, church, or playground/park” sorts of things. Which created a zoning nightmare for a gun store with maybe three buildings in a city meeting the requirements and nobody willing to lease in those locations. Some of these were struck down, some were not. They just didn’t make much headway. What they did do is give the gun grabbers hope and motivation.

The big new argument was “dangerous and unusual weapons” should and could be banned.

In logic there is a law called “De Morgan’s Law” which states “the complement of the union of two sets A and B is equal to the intersection of the complement of the sets A and B.” All of that mathy gobbly gook is really important in figuring out what happens when you negate a statement.

Consider the statement “laws banning dangerous and unusual weapons are allowed”. This can be read as Laws banning dangerous weapons are allowed and laws banning unusual weapons are allowed”

But what if it was read as “a weapon must be both dangerous and unusual before it can be banned”? This is how the opinion of the Supreme Court is actually written. A weapon must be BOTH before it can be banned.

By inverting the statement by moving the “not” to a different location the gun grabbers take advantage of the fact that most people don’t know how to do that correctly.

In logic it is written as “NOT (A AND B)” the gun grabbers state that this means “NOT A AND NOT B” but the correct application of logic rules is actually “NOT A OR NOT B”.

With this word game played, the gun grabbers went to the “this thing is so dangerous that it could and should be banned.” The courts heard this and used this as part of the reasoning they used in determining what level of scrutiny to apply. Most often this was expressed as “This thing is not covered by the second amendment but even if we assumed it was it would not survive challenge under means-end”

In addition all of the “Gun Free Zones” were still considered constitutional.

This was the set of arguments used for the next 8 years. In 2019 NYR&PA v. City of New York, New York was heard in the district and second circuit court of appeals and was granted certiorari to the Supreme Court. The city immediately changed their laws to allow transportation of firearms out of the city. This didn’t seem to convince the court so the state then passed a law making it legal to transport firearms out of the city. This caused the supreme court to declare the case moot and sent it back to the circuit and district courts.

This was a interesting case because it first showed just how much New York City is a state/country unto its own and how the state of New York will do just about anything to support NYC. The entire process of mooting the case was to make sure that the case was not heard by the supreme court.

This tells us that the gun grabbers were afraid of what might happen.

And what “might happen” did happen in June of 2020. In June of this year Bruen was decided by the Supreme Court.

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.

What a wonderful opening statement from Justice Thomas.

With this statement the Supreme court invalidated argument 10.

The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. Of course, 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. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it. See, e.g., United States v. Jones, 565 U.S. 400, 404-405, 132 S.Ct. 945, 181 L.Ed.2d 911. Indeed, the Court recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to “arms” does not apply “only [to] those arms in existence in the 18th century.” 554 U.S. at 582, 128 S.Ct. 2783.

This statement puts an end to arguments 5 and 7.

Now we get to some of the words that will be twisted “And no party disputes that handguns are weapons “in common use” today for self-defense.” In the same paragraph Thomas eviscerates the “core second amendment right” argument “Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry. Moreover, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,”

And with that argument 9 is gone.

Then we have this gotcha:

Consider, for example, Heller‘s discussion of “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” 554 U.S. at 626, 128 S.Ct. 2783. Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. See D. Kopel & J. Greenlee, The “Sensitive Places” Doctrine, 13 Charleston L. Rev. 205, 229-236, 244-247 (2018); see also Brief for Independent Institute as Amicus Curiae 11-17. We therefore can assume it settled that these locations were “sensitive places” where arms carrying could be prohibited consistent with the Second Amendment. And courts can use analogies to those historical regulations of “sensitive places” to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.

So here we have another example of the limits of our court system. “we are also aware of no disputes regarding…” This is Supreme court jargon for “nobody brought it up so we can rule on it”. The entire sensitive place argument put forth in Heller is reaffirmed here because it hasn’t been challenged. If it is challenged it is likely to fall, for the most part.

To see this you only have to note that under Miller “arms” was what the militia/military would use. Under Heller it is what is in common use and NOT restricted to just arms the militia/military would use. Sometimes these movements in what the law means is not seen as the primary event in these opinions.

NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., et al., Petitioners v. Kevin P. BRUEN, in his official capacity as Superintendent of New York State Police, et al.

This takes us to the post Bruen state of laws.

The arguments being put forth are:

1. It doesn’t matter what the law actually says, if you use your firearm in self-defense the judge will cut you a break
2. The firearm wasn’t in common use in 1791
3. The second amendment right to keep and bear arms is not unlimited so at least some laws must be constitutional
4. Arms can be prohibited in sensitive places
5. Laws banning dangerous OR unusual weapons are allowed
6. There is a law from the late 1800’s and early 1900’s that banned things like this

We saw them using argument 1 in California where they were arguing that because the state said they were not going to apply the “pay all costs if any part of challenge is not affirmed” that it was OK. The state in Bianchi v. Frosh and all the other magazine bans are using “It wasn’t in common use in 1791.”

Of course NY, NJ, CA and IL are all going down the path of “everywhere is sensitive to somebody” and making it impossible to carry a firearm outside of your home. Some of the stupids of this idea extend to the point where you might have the right to have a firearm in your apartment but not have the right to actually carry it in the hallway to get to and from your apartment.

Again, there seems to be language in the Bruen decision that implies that the court hasn’t really made an opinion on sensitive places. Having NY State go so very overboard would be a good thing if it got to the Supreme Court as they are much more likely to slap down a huge over step than they are a small one.

In reading most of the arguments going on about bans it all centers around turning that “and” into an “or” in argument 5. If that is possible then it becomes a situation where the court has to decide if the weapon is dangerous and by definition guns are dangerous.

For most of the other cases the state argues strongly that they should be able to bring in laws from the late 1800’s and early 1900’s as proof of history and tradition.

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Thank you for your responses to the poll. I really wasn’t expecting it to turn out the way it did. I’m likely to come back and do an update on this post as I’m sure there are errors in it.