Are the Infringers Running Out of Go Juice?

B.L.U.F.
Brady’s amici curiae is extremely weak, replaying old, disproved arguments.
(900 words)

It gets tiring reading the same old arguments from the state, state actors, and state supporters.

Heller tells us that if the plain text of the Second Amendment is implicated by the proposed conduct, then it is the burden of the state to prove a history and tradition of analogous regulations.

I propose this simple test to see if the plaint text is implicated: If Everytown, Brady, or Giffords files an amici brief, then the proposed conduct implicates the Second Amendment.

After Bruen we saw the standard infringers jumping in. The state with their sycophants tossed every regulation that they could find that might, possibly, support their argument for civilian disarmament. We’ve seen 1000s of pages of electronic ink spilled telling us the horrors of guns and how this particular infringement requires a nuanced view of history and tradition.

On November 28, 2023, Brady filed an amici brief in Duncan v. Bonta in the Ninth Circuit court. It is weak stuff indeed.

The Second Amendment Right Articulated in Bruen and Heller Is Based on Lawful “Self-Defense”

No, it was not. It mentions self-defense. Even if the Second Amendment was entirely about self-defense, that includes defense of self against all threats, foreign and domestic, i.e., a tyrannical government.

The Challenged Law Does Not Burden the Right to Lawful Self-Defense

Irrelevant. The test is not if it burdens the right to lawful self-defense, the test is if the plain text of the Second Amendment is implicated.

Bruen Requires a “More Nuanced Approach” to Historical Analysis in Light of “Dramatic Technological Change” or “Unprecedented Societal Concerns”

Bruen does not require a more nuanced approach. It allows it if there has been dramatic technological change.

Modern Firearms Capable of Firing Repeatedly Without Reloading Reflect “Dramatic Technological Change” Requiring a “More Nuanced Approach” Under Bruen.

False, there were firearms in the 1700s that were capable of firing repeatedly without reloading. Even one such arm in the 1700s known to the Founding Fathers is more than enough to put this to rest.

Firearms capable of firing repeatedly without reloading were not widespread among civilians until at least the late 19th century>

Widespread is not the test. The technological change took place earlier, and the Founding Fathers knew about repeating firearms. Given that they wrote the Second Amendment when people purchased cannons and personal warships, it is highly likely they would have approved of “civilians” owning them.

Modern firearms capable of firing repeatedly without reloading reflect “dramatic technological change” resulting in “unprecedented societal concerns.”

Except that they are not dramatic technological change and there is no indication of unprecedented societal changes.

The Challenged Law Is “Relevantly Similar” to Early 20th Century Laws Restricting Weapons Capable of Firing Repeatedly Without Reloading.

Wrong century by far. 1791 is not anywhere near the 1920s.

The Challenged Law Is Relevantly Similar To 18th and 19th Century Historical Laws and Thus Is Constitutional.

• Hill v. State from 1874, too late by far.
• State v. Langford 10 N.C. 381 (1824). This is the right era. It is upholding an indictment:
  An indictment charging that the defendants, with force and arms, at the house of one S. R., situate, etc., did then and there wickedly, maliciously, and mischievously, and to the terror and dismay of the said S. R., fire several guns, is good. No technical words are necessary, but it should appear that such force and violence were used as amount to a breach of the peace. All that the law requires in indictments of this kind is that the facts shall be so charged as to show a breach of the peace and not merely a civil trespass.

  State v. Langford, 10 N.C. 381, (N.C. 1824)

• English v. State 1871, too late.
• Andrews v. State 1871, too late.
• State v. Mitchell Indiana Supreme Court, It was held in this case, that the statute of 1831, prohibiting all persons, except travellers, from wearing or carrying concealed weapons, is not unconstitutional. So not a regulation banning anything. It was a restriction on carrying and only applied to citizens of Indiana. In addition, it is likely that this was “not unconstitutional” to the state constitution.
• State v. Reid, 1 Ala. 612, 614, 621 (1840); Another state Supreme Court decision. It was a challenge to the state’s constitution and was a concealed firearm and Bowie knife restriction. Not the same as a complete ban.
• State v. Jumel, 13 La. Ann. 399 (La. 1858)

Same as the last two. Concealed weapon challenge.

One take away from the above is that they are all citations to cases, not regulations. The state has the burden of proving a history and tradition of regulations that are analogous to the modern regulations. In addition, the Supreme Court actually looked at some of the cited cases in Bruen and Heller and did not find them to be persuasive.

Brady also claims that city prohibitions on discharging firearms within their cities are a match. Or prohibiting gun traps or discharging firearms after dark.

None of which are total bans.

Conclusion

The arguments are simple, limited to “self-defense”, laws on canceled carry, Bowie Knives restrictions are similar enough. Nuance must be used. Anything more technologically advanced than a muzzle-loading rifle is a dramatic technological change.