B.L.U.F.
A quick update regarding some 2A cases kicking around. Touching on how bad case law begets bad case law.
(1200 words)
In June 2022, the Supreme Court issued the Bruen opinion. This case answered one question: Is New York’s “proper cause” requirement for a CCW constitutional?
The Supreme Court answered with a resounding “NO!”.
In dealing with the question, they stated that subjective criteria was not acceptable. They went on to explain how they reached their opinion using text, history, and tradition. In the associated dicta, they told the Article III inferior courts how they should analyze any Second Amendment challenges.
It is important to understand that the Supreme Court gives explicit answers regarding the question they are answering and instructions on how the inferior courts can do it themselves.
When an inferior court says that the Supreme Court hasn’t issued an opinion on something, that is the court being cowardly, ignorant, or attempting to subvert The Constitution.
If the plaintiffs make a Second Amendment challenge, they are responsible for proving that the proposed conduct implicates the plain text of the Second Amendment.
To take just one example, a 16-year-old wishes to purchase a firearm. They are refused because they are underage.
The text of the Second Amendment reads; A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The state might argue that 16 year-olds are not part of the people for reasons. But this is not the first step.
The plaintiffs wish to purchase a firearm. All firearms are arms. Thus, the “Arms” requirement is met. They wish to purchase, possess arms. This satisfies “to keep and bear arms”.
They are a part of “the people”. That means the plain text of the Second Amendment is implicated.
If the state starts arguing that they are not part of the people protected by the Second Amendment, that is part of the second step: history and tradition.
Anytime the state is arguing that something is not an arm, or it is not being kept, or it isn’t bearing, or they are not part of the people, they are attempting to subvert the clear intentions of the Supreme Court.
Once the plaintiffs have proved that the proposed conduct implicates the plain text of the Second Amendment, the burden shifts to the state. The plaintiffs are done.
In that second stage, the plaintiffs can argue why particular regulations are not analogous, or not of the correct period. That is their job, to eliminate the regulations presented by the state from being considered.
Everything else the state brings up can be challenged as being irrelevant. If an expert is giving an opinion on legal matters, that is inappropriate. The legal experts are the attorneys and the Court, experts give opinions about non-legal issues.
The First Domino
Robert Bevis v. City of Naperville, 23-1353, (7th Cir.) was the first domino. We knew the Seventh Circuit would give use a horrible decision, they did not disappoint. It is a horrid opinion.
They did everything they could to keep the PICA alive. I wrote about it when the opinion came out.
The good news is that the Seventh Circuit has managed to get this moving up the chain of command. In other words, Justice Barrette demanded a response from the state by December 6th. We are watching to see what the Supreme Court does about this case.
Why is this a domino?
Because Easterbrook is arrogant enough that he doesn’t care that he is thumbing his nose at his bosses at the Supreme Court. He is the rightful Justice to be on the Supreme Court, in his own mind. He is the author of the Seventh Circuit court opinion that led to McDonald.
His reasoning in that case was that since the Supreme Court had never said that the 14th Amendment incorporated the Second Amendment, the Second Amendment didn’t apply to the states.
This is precisely the sort of profound error from rogue courts I discussed above. The Supreme Court says how to do things when a question comes to an inferior court. Instead, Easterbrook, threw up his hands and claimed that there was no way his court could figure it out if the Supreme Court hadn’t explicitly told him how.
Now that the Seventh Circuit has put their foot in it, the other rogue Circuit courts can issue their opinions.
The Second Domino
On December 8, 2023, the Second Circuit issued their order in Antonyuk v. Hochul, 22-2972, (2d Cir.). This was another huge opinion full of twists and proof of the disingenuous nature of the judges on the panel.
I have a complete article on this obnoxious bovine excrement.
More Dominos?
We are still awaiting the opinion of the Fourth Circuit court in Dominic Bianchi v. Anthony G. Brown, 21-1255, (4th Cir.). This is case is a bit more delicate for the rogue courts. This case has been all the way to the top once.
This case was granted certiorari by the Supreme Court. They then vacated the Fourth Circuit’s opinion and remanded it back to the Fourth to “do it right”.
If the Fourth Circuit comes to the same conclusion after the Supreme Court has told them they got it wrong, they risk major political fall out.
Every other case we have been dealing with, the courts have gone out of their way to sound like they are following Bruen. That is much harder here.
I don’t know how long a Circuit Court can delay issuing an opinion. Mark Smith suggests that this case was taken en banc in a stealth move by the Fourth Circuit. Which might explain the delay.
The Inferior Courts
Andrew Hanson v. DC, 23-7061, (D.C. Cir. Nov 08, 2023) ECF No. 1208569050 has been officially informed of the Second Circuits opinion.
Kipke v. Moore, 1:23-cv-01293, (D. Maryland Dec 11, 2023) ECF No. 45 has also been informed.
Ronald Koons v. Attorney General New Jersey, 23-1900, (3rd Cir. Dec 12, 2023) ECF No. 127 has been informed.
Reno May v. Robert Bonta, 8:23-cv-01696, (C.D. Cal. Dec 11, 2023) ECF No. 40 has been informed.
I am sure there are others. This is just from the 60 some cases I am actively tracking.
Conclusion
A log jam broke loose. I don’t like the opinion out of the Seventh, regardless, cases are moving forward. The Second issued their opinion. I would not be surprised if a number of others issue opinions shortly.
As long as they can point to the Seventh and Second as “they did it first!” they are unlikely to be slapped down too hard.
Of interest to me is the fact that I found multiple F.R.A.P. 28 letters citing to the Second Circuit court’s opinion, not so the Seventh. That might mean that even the rogue courts recognize just how bad the opinion out of the Seventh is.