B.L.U.F. Overview of the types of arguments being made by the state to justify infringements. Start of a series.
There are three identified arguments that are currently being presented by the state to justify their infringements.
- It isn’t within the scope of the Second Amendment
- It is just a fee/cost/expense, not a ban.
- There is a history and tradition of this type of regulation
Within the Scope of the Second Amendment
The first argument is generally premised on either the thing isn’t actual an “arm” or that it is an arm but so dangerous that it is excluded from Second Amendment Protections. So we are told by the state that magazines aren’t really arms, or that a certain type of bullet isn’t really arms, and so forth.
The second way is to say that a particular arm is unusually dangerous. Since the Supreme Court said that longstanding regulations on dangerous weapons are allowed this infringement should be allowed.
These arguments depend on parsing language in particular ways. It depends on picking small parts out of Supreme Court opinions and using them in ways I do not believe SCOTUS intended them to be used.
It is just a fee
Next in the list is expenses bills. These are bills designed to increase the cost of gun ownership, gun manufacturing, and gun resale.
If you didn’t have access to Westlaw you would have to contact the clerk of the court where the case was being heard and request records from them. This always had a cost.
PACER has no upfront cost. The price is $0.10/page with a $3.00 max per document with only searches being unlimited in cost. If you spend less than $30.00 per ??? then there is no cost.
From a Lawyer’s point of view, that is darn cheap. Much much cheaper than the old methods.
In the realm of cost bills are things like requiring extended training hours, specialty insurance, taxes on firearms, ammunition and firearm accessories. Permitting costs.
Included in this are all of the regulations and laws that cost extensive time. Measure 114’s requirement that you have to wait for their state background check to complete before you can purchase a firearm. Those costs are measured in months.
There is a history
There are subsets of this argument:
- Laws outside the timeframe set in Bruen
- Laws from prior to 1791
- Laws after 1820’s
- Laws around the ratification of the 14th amendment
- Laws at the start of the 20th century(1900’s)
- Laws after around 1960
- Laws about hunting
- Laws about fire safety with restrictions on powder storage
- Laws about booby-traps
- Laws restricting slaves, Indians, Negro’s and other undesarables
- Laws restricting method of carry
- Laws restricting certain non-firearm weapons
- Local laws that actually do ban arms
Summary
It is likely that there are arguments that aren’t covered within this brief overview. Future articles will discuss different bad arguments in particular or as a class.
It is important to note that these arguments are all designed to get a toe in the door. Once that toe is in the door, it becomes easier for the state to win court cases.
Comments
3 responses to “Bad Arguments: Overview”
How does the introducing fees through whatever sneaky methods being proposed such as insurance, extra background checks at your expense, or added sin taxes that fund something or others pass muster?
We can liken it to a poll tax but do you or one of our great commenters know what kind of legal trickery they use to say “this is not that” in this situation because it escapes me.
The ‘super duper dangerous .223’ ones I’ve been seeing a lot of lately. They all boil down to either ‘it tumbles and blows out some other part of the body’ myth or from that one examiner who claimed it ‘liquefied’ the poor kids at Uvalde. Both of which are inherent nonsense but are making it into these filings.
Personal favorite “bad argument”:
“It will save lives.” Where the it is; magazine capacity limits, universal background checks, or waiting periods. Bad argument because they have nothing except their opinion to back it up.