B.L.U.F.
Another day, another rogue inferior court scratching for anything that allows them to upload an infringement.
This time it is a CO law requiring a waiting period before taking possession of a legally purchased firearm. The mental gymnastics this Jimmy Carter appointee goes through would make Mary Lou Retton jealous.
(1250 words)
After examining the language of the Second Amendment using the Supreme Court’s analysis in Heller, I find, for the purposes of Plaintiffs’ Motion, that the plain text does not cover the waiting period required by the Act. This conclusion is bolstered by the fact that the Act is a regulation on the commercial sale of firearms and thus is presumptively permissible. However, even if the waiting period implicated the plain text of the Second Amendment, the evidence before me establishes that the Act is consistent with the Nation’s historical tradition of firearm regulation. Plaintiffs, therefore, have not carried their burden to show they are likely to succeed on the merits of their claims.
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I have read, or remember reading, that the Supreme Court has issued an opinion on acquiring, purchasing, or selling firearms. It might have had to do with ammunition as well. If anybody can give me a citation to case law regarding acquiring firearms or ammunition by The People, I would greatly appreciate it.
From this reading of the plain text, it is clear the relevant conduct impacted by the waiting period—the receipt of a paid-for firearm without delay—is not covered. Still, Plaintiffs attempt to equate the words “obtain” and “possess.” Reply in Supp. of Mot. for Prelim. Inj., ECF No. 21 at 11 (“The Second Amendment’s plain text applies to ‘an individual’s conduct’ of obtaining a firearm. See Bruen, 142 S. Ct. at 2134 (‘[T]he “textual elements” of the Second Amendment’s operative clause—“the right of the people to keep and bear Arms, shall not be infringed”—guarantee[s] the individual right to possess and carry weapons in case of confrontation.’) (emphasis added, cleaned up).”). But these terms are not equivalent. To “keep,” under the definitions provided in Heller, meant to retain an object one already possessed. It did not mean to receive a newly paid-for item, and it certainly did not mean to receive that item without delay. Likewise, “hav[ing] weapons” indicates the weapons are already in one’s possession, not that one is receiving them.
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The court profoundly erred in their reading of Heller and Bruen. The first step is to determine if the conduct proposed implicates the plain text of the Second Amendment.
We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”
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To “have weapons” is the conduct that the plaintiffs (good guys) wish to do. To refute this frivolous argument on the part of this inferior, rogue court, all one needs to do is extend the waiting period from 3 days to 3 years.
Would a waiting period of three years implicate the Second Amendment’s protected right of “keeping”, “possession” or “having” arms? Yes, it would.
Thus, the conduct implicates the plain text of the Second Amendment.
Once the Second Amendment is implicated, the conduct is presumptively constitutional and the modern-day regulation is presumptively unconstitutional and should be vacated.
One of the things we keep discussing is the fight to keep Second Amendment challenges in the legal realm. There is no need for history professors or experts in what the founding fathers wanted or thought. All that is required is an examination of the regulations of the time.
The Government merely needs to bring regulations from the founding era that are a match for the state’s modern regulations to the attention of the court. If they can do that, they will win.
Today, I might have to order a firearm from my LGS. I might have to wait for it to arrive. Or I can choose from something in stock and walk home with it. Professors Spitzer and Roth gave their expert opinion that a three-day waiting period was to be expected in the founding era because people couldn’t just buy the firearm they wanted.
This is irrelevant. If I want a Serbu BFG-50, it will have to wait for it to be made. It will take a few weeks. So what? I can still buy other firearms right now if I wanted it.
This is why the battle of the “experts” is not allowed under Heller and Bruen.
The judge then says that all the case law showing that acquiring a firearm is protected by the Second Amendment is no longer good case law. “Because they happened before Bruen and didn’t examine the plain text”. Of course, he fails to note that the actual methodology was put in place with Heller in 2008, so all those cases after 2008 are good case law IF they followed Heller. I.e., didn’t use means-end.
This judge should be impeached. The Supreme Court ordered the inferior courts to look first at the plain text of the Second Amendment. If the conduct implicated the Second Amendment, the state had the burden to bring forth a history and tradition of regulations that are analogous to the modern regulations.
Because, as the parties agree, no law requiring a waiting period was enacted in the United States until 1923, I must consider “whether ‘historical precedent’ from before, during, and even after the founding evinces a comparable tradition of regulation.” Bruen, 142 S. Ct. at 2131-32 (quoting Heller, 554 U.S. at 631). Bruen explained this inquiry as follows:
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First, he says that purchasing a firearm doesn’t implicate the plain text of the Second Amendment. Then he says that since the state can’t show a history of regulations requiring waiting-periods, he is going to look for a tradition of waiting periods.
Since the Waiting-Period Law is a “modern regulation[] that w[as] unimaginable at the founding,” I must reason by analogy and “determin[e] whether a historical regulation is a proper analogue” for, or “relevantly similar” to, the Act. Bruen, 142 S. Ct. at 2133. In doing so, I focus on “how and why the regulations burden a law-abiding citizen’s right to armed self-defense,” and look for a “historical analogue”—not a “twin.” Id. The Governor and Professor Spitzer point to two types of historical analogues: laws involving intoxicated persons and licensing regimes.
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This means that there wasn’t a founding era regulation for waiting periods. The fact that society, as a whole, didn’t have the same level of instant gratification as today, doesn’t mean that waiting periods can be forced today.
The judge relies on the Spitzer declaration of laws from 1623, 1631, 1632, 1655, 1868, 1878, 1883, 1879, 1888, and 1893 regulating possession of firearms by intoxicated purposes to justify a waiting period. Please note the era that is missing from that list of dates. That’s right, nothing from the founding era.
Because this is a request for a preliminary injunction, the Winter factors are being analyzed. That is to say, the likelihood of success on the merits, irreparable harm, balance of equity, and public interest. If the challenge involves the deprivation of a core civil right, irreparable harm is done. If the court finds that it doesn’t involve a core civil right, they can use other means to decide on the level of harm.
In the same way, once the court decides the constitution doesn’t apply, they can balance the equities in favor of the state and use “good enough reasons” to determine the public interest.
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