Legal

The Cascade of Opinions


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

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As Applied?


B.L.U.F.
What is the difference between an as applied challenge and a facial challenge to law?
(1550 words)


In Antonyuk v Hochul, the plaintiffs challenged parts of New York’s CCIA on facial grounds. This is to say, they claimed that the challenged legislation is always unconstitutional.

For example, it has been established that a ban on all handguns is unconstitutional. There is no case in which it would be considered constitutional. The state argues around the fringes, if a ban on all handguns is unconstitutional, how about a ban on some guns?

Consider a different civil right, a right protected by the constitution, the right to assemble for free speech.

In my town we have a commons. It has a pretty gazebo and during the summer months they will have open air concerts and art festivals and discussions and all sort of assemblies. If I want to show up and start playing my fiddle (badly) at the gazebo, there is no issue.

On the other hand, if I would like to have an ‘event’, I need a permit.

The first question asked is, “Does this touch fingers with a core civil right?” The answer to that is an unequivocal “YES”.

Since the proposed conduct, having an event on the public commons, implicates the plain text of the First Amendment, it meets the first prong of a facial challenge.

Permitting is well established, so only a lawyer interested in fleecing me would take the case, but assume it got into court.
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