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What was the First Circuit Thinking?

Mar 17, 2024 Anonymous Web Angel(GFZ)

I’ve been struggling with the opinion of the First Circuit court in [xCite item=”YEEWNP5J” pos=0]. I know that it is a twisted opinion, attempting to keep as many abuses of our rights in place for the longest period of time possible.

Still, I want to understand their logic. This is not the same as agreeing with them, I need to understand what they are attempting to do and what they are saying.

The first thing that the First did was to assume that LCMs are “arms” within the scope of the Second Amendment [xCite item=”YEEWNP5J” p=8 pos=1]. This is plain nasty, evil crap for the circuit courts to do.

Bruen directs the inferior courts to follow Heller. The first step is to determine if the individuals’ conduct is within the scope of the Second Amendment. “Assuming” is not “determining”. This would be as bad as a court saying “We assume the party would win on the merits, but we find that they will lose on balance of equity, so there is no need to do the first prong of the Winter factors.”

I’m sure the lawyers who are reading this are saying, “Idiot, it happens all the time.” I am not a lawyer. I’m a computer geek. No matter how you slice it, it is a shitty thing to do. It is lazy and unprofessional. Everybody knows that we need the circuits to say whether LCMs are “arms” or not. As soon as they say they are not, then we can start the appeals to get that overturned.

Having stated that they are going to assume, without finding, they First then moves to answer the question, “Is HB 6614 [LCM ban] consistent with our history and tradition.”

Plaintiffs contend that because firearms capable of firing more than ten rounds without reloading “are nothing new” and have at times been unregulated, Rhode Island’s ban is at odds with tradition. To support this position, they point out that some multi-shot firearms existed in the late 1700s, and others were more common by the mid-to-late 1800s in the form of the Henry and Winchester rifles. But as plaintiffs concede, today’s semiautomatic weapons fitted with LCMs are “more accurate and capable of quickly firing more rounds” than their historical predecessors. And they are substantially more lethal.
[xCite item=”YEEWNP5J” p=8 pos=2]

This is a true statement that makes no difference. Having decided that this is an arms ban case, the question then becomes “are LCMs in common use for lawful purposes?”. If the answer is “yes”, then the case is over, in our favor.

But, of course, the First claims it does matter:

More importantly, we find in the record no direct precedent for the contemporary and growing societal concern that such weapons have become the preferred tool for murderous individuals intent on killing as many people as possible, as quickly as possible. This is unsurprising, given evidence that “the first known mass shooting resulting in ten or more deaths” did not occur in this country until 1949. Oregon Firearms Fed’n, Inc. v. Brown, 644 F. Supp. 3d 782, 803 (D. Or. 2022). Likewise, “[a]t the Founding, there was no comparable problem of gun violence at schools.”
[xCite item=”YEEWNP5J” p=9 pos=3]

Taking the latter first, my rights are not dependent on the acts of others. Just because Maxine Waters gets in front of her people and the cameras and says, “Get in their face; bother people at every restaurant where you can find a Cabinet Member”, I don’t lose my First Amendment protected rights to free speech. No matter how much “hate speech” they use, no matter how much racist crap they spew, it does not allow them to abuse my rights.

But let’s look at the former. The First Found no direct precedent. That might be the case, but it is irrelevant.

While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach. The regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. Fortunately, the Founders created a Constitution—and a Second Amendment“intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819) (emphasis deleted). Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated. See, e.g., United States v. Jones, 565 U. S. 400, 404–405 (2012) (holding that installation of a tracking device was “a physical intrusion [that] would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted”).
[xCite item=”75DAVPP7″ p=19 pos=4] slip opinion

The Bruen court has clearly stated that cases like Bruen and Heller are relatively simple, not requiring a nuanced approach.

What type of cases are Heller and Bruen? They are arms ban cases! Exactly what Ocean State is challenging. They are challenging an arms ban case.

The circuit courts like to pretend that mass shootings are a new societal concern. They are full of it. The Supreme Court was well aware of mass shootings.

April 16, 2007, 33 people were killed and 17 wounded on the grounds of Virginia Tech. The asshole doing the shooting was using a handgun. Heller was about a handgun ban. The Supreme Court considered mass shootings before they issued their opinion in Heller.

The Supreme Court had multiple cases before them seeking cert. that briefed them on the horrors of mass shootings and the horrors of “assault weapons”.

This is not a new issue. There is no excuse for a “nuanced approach” by the First Circuit.

Concern about the increasing frequency of LCM-aided mass shootings today prompted the Rhode Island legislature to pass HB 6614.6 And since the record contains no evidence that American society previously confronted — much less settled on a resolution of — this particular concern, we have no directly on-point tradition on which to rely in determining whether Rhode Island’s ban is consistent with our history and tradition.
[xCite item=”YEEWNP5J” p=10 pos=5]

Can you find a historical regulation banning murder? Yes. And it is a tradition, too. Can you find a historical regulation banning murder with guns? No. It is subsumed into murder. It is already banned. Can you find a historical regulation banning murder with guns with detachable magazines? No, you can not.

The lack of a “twin” to the modern regulation banning murder with a gun doesn’t invalidate the current ban. There is a history and tradition of banning murder.

The First makes a profound error here. They claim that because there is no match to the modern regulation, they are instructed by the Supreme Court to loosen the requirements for a match.

What the Supreme Court actually said was that if there is no match, then the modern regulation is unconstitutional.

The First then uses that “too specific to match” to lie by omission. there was no comparable problem with gun violence at schools Maybe there was no “gun violence” but there was certainly violence.

On July 26, 1764, four Delaware (Lenape) Native Americans entered a settlers’ log schoolhouse in the Province of Pennsylvania and killed the schoolmaster, Enoch Brown, and ten students. One other student named Archie McCullough was wounded. The massacre is the first school shooting recorded in U.S. history. Historian Richard Middleton described the massacre as “one of the most notorious incidents” of Pontiac’s War.
[xCite item=”IM7F4SVL” pos=6]

The number of armed attacks by Indians upon settlers is extensive.

So the First exhibited ignorance when they said school shootings were unknown in the founding era.

Having decided to ignore Bruen‘s statement of when the state can use looser criteria in matching past laws, the Court then decides to resurrected from the ashes good old interest balancing.

“Relevantly similar” is the language of the Supreme Court.

What did the Bruen Court say?

Much like we use history to determine which modern “arms” are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding. When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are “relevantly similar.” C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993). And because “[e]verything is similar in infinite ways to everything else,” id., at 774, one needs “some metric enabling the analogizer to assess which similarities are important and which are not,” F. Schauer & B. Spellman, Analogy, Expertise, and Experience, 84 U. Chi. L. Rev. 249, 254 (2017). For instance, a green truck and a green hat are relevantly similar if one’s metric is “things that are green.” See ibid. They are not relevantly similar if the applicable metric is “things you can wear.”
[xCite item=”75DAVPP7″ p=”19-20″ pos=7]

Note, my citation and theirs differ, yet the language is a match.

The Bruen court, in explaining how Heller works, says that regulations must match using a good metric.

we do think that Heller and McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense. [xCite item=”75DAVPP7″ p=20 pos=8]

To rephrase, “how a regulation burdens a citizen’s right to keep and bear arms” and “why a regulation burdens a citizen’s right to keep and bear arms.”. That seems pretty simple.

The Supreme Court continues, whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified [xCite item=”75DAVPP7″ p=20 pos=9]

Here is where the First Circuit stakes their claim of comparing burdens.

This does not mean that courts may engage in independent means-end scrutiny under the guise of an analogical inquiry. Again, the Second Amendment is the “product of an interest balancing by the people,” not the evolving product of federal judges. Heller, 554 U. S., at 635 (emphasis altered). Analogical reasoning requires judges to apply faithfully the balance struck by the founding generation to modern circumstances, and contrary to the dissent’s assertion, there is nothing “[i]roni[c]” about that undertaking. Post, at 30. It is not an invitation to revise that balance through means-end scrutiny.
[xCite item=”75DAVPP7″ n=7 pos=10]

When the Supreme Court speaks of “burden on” they mean how the people were burdened by the regulation. Were they told how to store their arms? What arms they could possess? What arms they could carry? How they carried their arms?

These are the “how metric” of Heller as affirmed by Bruen.

To gauge how HB 6614 might burden the right of armed self-defense, we consider the extent to which LCMs are actually used by civilians in self-defense. [xCite item=”YEEWNP5J” p=11 pos=11] This is a profound misreading of Heller and Bruen. The “how” in question is “the modern regulation is banning an arm”.

The extent that magazines are used or not used has nothing to do with how a regulation burden’s a member of The People.

Given the lack of evidence that LCMs are used in self-defense, it reasonably follows that banning them imposes no meaningful burden on the ability of Rhode Island’s residents to defend themselves. True, one could imagine Hollywood-inspired scenarios in which a homeowner would need to fend off a platoon of well-armed assailants without having to swap out magazines. But we read Bruen as requiring us to ascertain how a regulation actually burdens the right of armed self-defense, not how it might be imagined to impose such a burden. And even if we were to consider imagined burdens in our analysis, we would certainly accord them little weight. Otherwise, the assessment of how a regulation burdens the right of armed self-defense would always find a substantial burden.
[xCite item=”YEEWNP5J” p=11 pos=12]

Here is the dirty little secret of civil rights, the amount of burden is not at issue.

It’s no real burden to stand over in that place to speak. It’s no real burden to get government permission to stand on your soapbox and talk. It’s no real burden to tax printing ink.

That might be true. That it is “no real burden”. That doesn’t mean that there is no burden.

If there is a burden, the courts must find that the how of the burden has a historical match.

And yes, First Circuit, any burden on the right to armed self-defense is a substantial burden.

To attempt to save themselves, they then use the NFA as a “historical” match in weapons ban. How did the NFA burden the right of armed self-defense with regulated arms? You had to pay a substantial tax. Was it a ban? No! There are no federal bans on sawed of shotguns. There are no bans on short barreled rifles. There are no bans on machine guns.

All such bans are at the state level, which have not been directly challenged — yet.

So the “how” doesn’t match. Never mind that the regulation comes much too late in history.

They also bring up the tired old and even the severe restrictions placed on Bowie knives by forty-nine states [xCite item=”YEEWNP5J” p=13 pos=13] Except those historical “severe restrictions” were on carrying Bowie knives. Not a ban.

The rest of the opinion is filled with obfuscations. They say that the why for the NFA is a match for their magazine ban. They are correct. It is a match. In 1934. Nowhere near 1791. It can be discounted, out of hand.

They then go back to the Bowie knife argument. Most of those regulations came after the founding era. The Court claims the earliest was 1830. That is barely inside the range of “founding era.”

The Heller court was aware of the Bowie knife regulations. They didn’t find them enough to justify a ban on arms for self-defense.

I think I have my head around this. I’m going to go swallow a couple of Tylenol, maybe my head will stop hurting then.

[xCiteBib]

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Bad Opinions poison the well

Mar 16, 2024 Anonymous Web Angel(GFZ)

Back in August 2023, the Ninth Circuit broke peoples minds when they issued a Second Amendment opinion.

The merits panel decided that “butterfly knives” were arms. Since Andrew Teter wished to keep and bear butterfly knives, his conduct was covered by the plain text of the Second Amendment.

Having decided that the conduct was covered by the Second Amendment, the panel found that the conduct was presumptively protected by the Second Amendment. Thus, the burden shifted to the state to prove a history and tradition of banning an arm in common use.

The state failed to meet their burden, and the panel reversed and remanded the case.

Of course, this lead to the state freaking out. They begged for mommy to save them. In February 2024, mommy stepped in and agreed to overturn the merit panel. Sorry, they agreed to hear the case en banc

This case was originally docketed with the Ninth Circuit court in May 2020. The en banc oral arguments are now scheduled for June 2024. 4 long years of litigation.

Last week, the First Circuit court decided that means-end balancing was still acceptable.

They assumed, without finding, that magazines were arms under the plain text meaning of the Second Amendment. They went on to find that the plain text of the Second Amendment covered the conduct. As such, the conduct was presumptively protected by the Second Amendment.

I.e., they said that magazines are arms and keeping and bearing them is presumptively constitutional.

They then moved on to the historical analysis. Somehow, they decided that a lack of historical matches required them to use an analogical analysis. They reasoned that since they couldn’t find any regulations banning anything like magazines, that meant that carrying magazines was a new societal issue.

According to the First Circuit, the Supreme Court “directs” them to examine how the burden of the modern regulation matches the burdens of historical regulations.

In the First Circuit, if the court decides the level of rape being done to you, today, isn’t worse than the level of rape done by some past law, the current rape is allowed.

The state has told the Ninth Circuit court:

Ocean State correctly recognized that courts must “compar[e] the ‘burden on the right of armed self-defense’ imposed by the new regulation to the burden imposed by historical regulations” and then “turn to the ‘why,’ comparing the justification for the modern regulation to the justification for historical regulations.” 2024 WL 980633 at *4 (quoting Bruen, 597 U.S. at 29).

The First Circuit properly looked to “how a regulation actually burdens the right of armed self-defense, not how it might be imagined to impose such a burden.” Id. On the record before it, the court found that “civilian self-defense rarely—if ever—calls for” large-capacity magazines, noting plaintiffs had identified just a single example. Id. Appellants here have similarly identified just one arguable example of butterfly knives being used for self-defense—one occurring outside the United States. See Reh’g Pet. 10-11.
[xCite item=”K3J7PSGU” pos=0]

This entire “burden” argument comes from the law imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted. [xCite item=”LPGQXCDT” p=2848 pos=1], Justice Breyer, dissenting.

The majority, did mention “burden”. They said, Nothing about those fire-safety laws undermines our analysis; they do not remotely burden the right of self-defense as much as an absolute ban on handguns. Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents. [xCite item=”LPGQXCDT” p=”2819-2820″ pos=2]

In other words, the Heller court found no historical law matched a ban on arms.

Regardless, we can see the poison of bad opinions spread, constantly. It will not surprise me if the Ninth takes up this “burden” bullshit. It is just another “means-end” lie to infringe on our rights.

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Friday Feedback

Mar 15, 2024 Anonymous Web Angel(GFZ)

Next week, the Fourth Circuit court will be hearing Bianchi for the 3rd time. The first time it was heard by a 3 judge merits panel. They said Kolbe was good law and still applied. The case then went to the Supreme Court.

After Bruen, the Supreme Court GVR’d Bianchi.

A different 3 judge merits panel heard the case. Before they issued their opinion, the Fourth Circuit decided to hear the case en banc. Oral arguments will be heard on the 20th.

We’ve had another Second Amendment challenge heard at the circuit level by the Third Circuit court of Appeals. This is a challenge to Delaware’s “assault weapons” ban.

TikTok is in the news. My concern with banning TikTok is that it could be used to justify banning other applications, such as Gab, Parlor or even X, if the people in power decide to do so.

I understand, completely, why TikTok is a horrible application that is known for spying on its users. It should not be allowed into anyplace where sensitive information could be heard or seen.

Jumping back to the court cases.

Immediately after Bruen, there was a spat of cases filed. Things seemed to be moving, moving rapidly even.

Some of the most inferior courts got it wrong, but enough got it right that we had strong cases.

Then the rogue, inferior, Circuit courts weighed in. They weighed in with their thumbs on the scale. They delayed and denied. They twisted dough in ways that would make a pretzel maker blush.

Everything seemed to have ground to a stop.

That log jam seems to have been broken. More cases are making it through the circuit courts. Cases are requesting cert from the Supreme Court.

It would not surprise me if we started to see some “not horrible” results to start coming out of the Appellate courts, just to keep cases away from the Supreme Court.

While many of our readers have expressed good arguments supporting the Second Amendment challenges, it is difficult for laymen, people not of the clothe, to understand just how arcane courts are.

It is entirely possible for the same lawyer to argue, before the same judge or panel on the same day, two opposing views of the same fact pattern.

Is it an arm? Yes, when we are talking about banning them under the NFA or GCA. No, if we are talking about the right to keep and bear arms.

It is open season in the comments. Give us your feedback. Give us your thoughts.

Have a fantastic weekend.

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The Good Guys Dunk on the state

Mar 14, 2024 Anonymous Web Angel(GFZ)

Legal Case Analysis
B.L.U.F.
A fun little trip through the FPC and SFA’s briefing on what “in common use” means to the Fourth Circuit court.

Text comes first.

Then history. If the arm is in common use, the history analysis has been done by the Supreme Court, we win.
(1400 words)

The Tip-Off

In New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), the Supreme Court “employ[ed] and elaborate[d] on the text, history, and tradition test that Heller and McDonald require[d] for evaluating whether a government regulation infringes on the Second Amendment,” 597 U.S. at 79 (Kavanaugh, J., concurring). Specifically, the Court explained that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government … must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id. at 17. The Bruen analysis thus begins with an examination of the “plain” or “bare” text of the Second Amendment. See id. at 44 n.11. This is an exercise determining what the words of the Second Amendment meant at the time of ratification, and it largely involves using dictionaries—although Heller and Bruen have already done the work to explain the contemporaneous definitions of key words in the Amendment. If the plain or bare text is implicated, the challenged law is presumptively unconstitutional, and the burden is on the government to show both (1) that there exists a historical tradition of regulation that carves out an exception from the protection of the Amendment and (2) that the modern restriction fits into that tradition. Id. at 28–29.
[xCite item=”XDEF9PZY” p=1 pos=0]

As noted, the correct response to a court asking about “in common use” or the state claiming that the plaintiffs bear the burden, is to simply point to the Supreme Court’s own words.

If the plain, or bare, text of the Second Amendment covers the conduct, then the Constitution presumptively protects that conduct.

The state is attempting to move the courts from “plain or bare text” to “nuanced meaning of the text” or, worse still, “interpretation of the text”.

If the state or court wants the meaning of “arms” to be evaluated in the context of “dangerous” or “unusual” or “primarily of military use”, they are not looking at the plain text. They are looking past the plain text.

The Ref calls it

Read More

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The State Tap Dances

Mar 13, 2024 Anonymous Web Angel(GFZ)

Legal Case Analysis
B.L.U.F.
The state dances around “in common use” because they fear it. They even explain why it can’t be used. If it was used, then they would lose.
(1650 words)

In Bruen, the Supreme Court rejected the interest-balancing test that many courts of appeals had applied since District of Columbia v. Heller, 554 U.S. 570 (2008), and replaced it with a two-step test rooted in text, history, and tradition. Bruen’s first step asks whether “the Second Amendment’s plain text covers an individual’s conduct[.]” 597 U.S. at 17. If so, “the Constitution presumptively protects that conduct.” Id. Only at that point is Bruen’s second step triggered, under which “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id.
[xCite item=”QUAKEV8P” pos=0]

Ok, the state starts with a clear, concise, and correct statement of Heller‘s text, history, and tradition methodology.

One aspect of Bruen’s first-step textual determination, and one that is central here, is whether the object being regulated is an “arm.” That is because, if a regulated object is not an “arm” as that term is understood for purposes of the Second Amendment, it falls outside of that amendment’s protections. See Bevis v. City of Naperville, 85 F.4th 1175, 1192 (7th Cir. 2023), petitions for cert. filed, Nos. 23-877, 23-878, 23-879 (U.S. Feb. 14, 2024), No. 23-880 (U.S. Feb. 15, 2024) (“We begin by assessing whether the assault weapons and large-capacity magazines described in those laws are Arms for purposes of the Second Amendment. If not, then the Second Amendment has nothing to say about these laws: units of government are free to permit them, or not to permit them, depending on the outcome of the democratic process.”).
[xCite item=”QUAKEV8P” pos=1]

When a circuit court issues an opinion, it can be cited in other cases. Here, the state is referencing an opinion from the Seventh Circuit, which said that it was the plaintiff’s burden to prove that something is an arm.

This is pure sophistry. The Seventh Circuit is saying something true to hide the false premises that will come later.

In order for the Second Amendment to presumptively protect a conduct, that conduct must fall within the scope of the Second Amendment. Thus, the object must be an Arm. The conduct must have something to do with keeping or bearing that arm.

“Is it an arm?” is the first question to be asked. The Seventh Circuit stated that correctly. The state states that correctly here.

The state then begins its dance. [T]he the Supreme Court in Heller explored the parameters of what constituted an “arm” such that it would fall within the protections of the Second Amendment. [xCite item=”QUAKEV8P” pos=2]
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They are trying, boy are they trying.

Mar 11, 2024 Anonymous Web Angel(GFZ)

Legal Rant
(1150 words)
“6 keys to safe storage of firearms, from the experts” [xCite item=”ZAC58AGD” pos=0] came across my feeds. I didn’t expect much, but I went to read, just to have some fodder for the blog.

The first step is to identify the “experts”. The link to “experts” takes us to a single associate professor with a Ph.D. in Public Administration. Her dissertation was Assessing the Role and Impact of Public Policy on Child and Family Violence..

Her undergraduate degree was in Sociology.

So soft science. She may or may not have any real statistical background. She is a pure academic, never having worked outside the education industry.
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No meaningful burden…

Mar 10, 2024 Anonymous Web Angel(GFZ)

Heller tells us that the proper way to look at a Second Amendment Challenge is to first determine if the proposed conduct is within the scope of the plain text of the Second Amendment. If it is, then the burden shifts to the state to prove a history and tradition of equivalent regulations.

When looking at equivalent regulations, the regulation must be a regulation. This means that policies, rules and “norms” are not applicable.

If a school had a policy banning firearms on campus in the 1790s, that is not a regulation. It does not support a history and tradition of regulation.

The regulation must be a match in the how and why as well.

Banning more than 5 pounds of black powder within the city walls is not a match in the “why” to a modern limit on ammunition within the home. Those bans, from the 1700s, were fire regulations. The ban was to keep fires from spreading and perhaps starting. At no time were those bans to protect people from the “evils” of firearm ownership.

The how must also match.

If the state cannot provide analogous regulations from the founding era that are a match in “how” and “why”, the state has failed to meet its burden and the modern regulation is unconstitutional.

The lack of such laws does not mean that the rules are loosened. It means that the state failed to meet its burden.

The First Circuit recognizes, and quotes, the Supreme Court in describing, text, history, and tradition. They even discuss how they “how” and “why” must match.

To gauge how HB 6614 might burden the right of armed self-defense, ⁣ we consider the extent to which LCMs are actually used by civilians in self-defense. The answer supplied by the record in this case is that civilian self-defense rarely — if ever — calls for the rapid and uninterrupted discharge of many shots, much less more than ten. …
[xCite item=”YEEWNP5J” p=11 pos=0]

Wait, what?

The First Circuit presumed that magazines were arms without saying they were. This means that the plaintiffs have met the “arms” part of the Second Amendment.

The plaintiffs have shown that they wish to possess and carry magazines, and thus they have also met the “keep and bear” part. This means that the plaintiffs have met their burden. It is now the burden of the state to prove history and tradition.

Nowhere in Heller does it mention burden as being part of the process. It is never a question of how much rape. It is only “was there rape” or “was there not rape”. The state should never be asking, “Just how much were you raped, Mrs. Jones? Was it just a little? Was it a lot? How much raping actually occurred?”

The courts should never, ever, accept an argument about “how much were you raped?”

Yet, that is what the First Circuit does. … might burden the right of armed self-defense, … is means-end.

The Bruen Court explicitly stated that interest balancing happened when the amendment was adopted and that the courts cannot do it today. “One step too many”, is how Justice Thomas put it.

The First Circuit finds it reasonably follows that banning them imposes no meaningful burden on the ability of Rhode Island’s residents to defend themselves. [xCite item=”YEEWNP5J” p=13 pos=1]

The First Circuit Court then reasons that since the “burden” is the same, that is somehow the equivalent to “how” or “why”. Yet, the First does think that because there is little burden and that there were other regulations in the 1800s and 1900s that were allowed, that this is a match.

The circuit then uses the NFA and Bowie knife restrictions as a match. Except that Bowie knife restrictions were never bans on possession. They were all carry laws. This is an outright ban.

They then go into the standard arguments. More like an M-16 than not. Military like and so forth.

This is a situation where the court decided this wasn’t an arms ban because they said so. Since it wasn’t an “arms ban”, they were allowed to do the history and tradition research and did not have to comply with Heller in common use test.

Notice the ratchet here. The court had to keep this away from being an arms ban, so they did not have to deal with the open-and-shut aspects of “in common use”.

Once there, they use regulations that come much too late, claiming that they are allowed to use the NFA as an example of history and tradition because Heller and Bruen did not strike it down.

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In Common Use!

Mar 9, 2024 Anonymous Web Angel(GFZ)

In A Win for the 2nd?, I wrote about how the Fourth Circuit court has ordered the parties to brief them on when “common use” comes into play under Bruen.

Some comments talk about “in common use” being an issue for us. It is not.

Consider a startup company that introduces a new shell. For sake of argument, let’s call it the “Worm Breath.” When this shell is fired out of a standard shotgun, it puts out a visible flame 20 yards long.

The rogue, infringing states leap into action and ban “Worm Breath.” The legislative findings are that it is extremely dangerous and has no reason to be in the hands of civilians.

A 2A group finds a front person and sues.

Under Bruen the 2A group has to prove that “Worm Breath” is an “arm” under the plain text of the Second Amendment and that a member wishes to keep or bear it.

That is it. There is nothing in that requirement that touches on “common use”.

The state then has the burden of proving a history and tradition of banning things like “worm breath”.

They immediately talk about how this is a unprecedented societal concerns or dramatic technological changes [xCite item=”75DAVPP7″ pos=0 pos=0] and a more nuanced approach[xCite item=”75DAVPP7″ pos=1] is required.

That is, if they are in an honest court. If, instead, they are in a dishonest court, they claim that “worm breath” is not in common use and can be banned.

It doesn’t work that way. “In common use” is of use only to us. Never to the state.

The Heller court did the analysis of history and tradition and found that there is no history and no tradition of banning arms that are in common use.

In order for the plaintiffs to prevail in an arms ban case, they only need to say, “It is in common use.” if there are more than 200,000 of that arm in use.

If the manufacture of “Worm Breath” can show that more than 200,000 rounds have been sold, then “Worm Breath” is in common use and cannot be banned.

What if the manufacture cannot prove to the court that they have sold more than 200,000 rounds? Nothing happens.

The state still has the burden of proving that there is a history and tradition of regulations banning “arms” of this type.

“In common use” is a one-way ratchet, in our favor.

Yes, the state wants to make it go the other direction. Yes, the state wants the burden of proving “in common use” to rest on the plaintiffs. Yes, the state wants to negate the meaning.

What the state wants and what the Supreme Court has said are two extremely diverse things.

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Friday Feedback

Mar 8, 2024 Anonymous Web Angel(GFZ)

Two weeks ago, I wrote last week’s Friday Feedback. I was about to travel to visit my parents for the first time in years to say goodbye. I knew it was going to be hard, I wrote assuming it would be, scheduled it and planned to correct if I was wrong.

It was a hard week.

This week was harder.

That is at a personal level.

At a more 2A level, I have been thinking about where we are today vs. where we were in years past.

I turned 18 and could have purchased an M-16. The tax stamp would have accounted for 25% of my costs, not counting the other hoops. It wasn’t worth it to me. I wasn’t interested in firearms. I was into stereos, music, and knives.

In 1986, it became prohibitively expensive to purchase a machine gun. All because of an amendment to a bill attempting to protect gun owners. I was pleased that we could not travel throughout the states without being at risk for having a gun in the wrong state.

Little did I understand how that wasn’t really true.

Nor did I understand that machine guns would become so expensive.

When I purchased my first firearms, I was surprised to learn how hard it was to get a permit to carry my firearm with me.

Today, every firearm I own has a holster for it OR a sling if it has sling mounts. At the time, most gun stores in my area didn’t even bother to carry holsters. There were a few, but so few people ever carried a handgun that it wasn’t a good use of shelf space.

I remember listening to the horror stories about how people were having their rights stomped on because they had no standing. Only the militia had standing.

What I remember most vividly was the Heller decision. It was the end to this crap about not having standing. It meant that the rollback of all these infringements was just a few months away.

I believed that the courts would do the right thing.

There was that wonderful few weeks when Washington, D.C. was actually a constitutional carry location. The head of the MPD stated that D.C.’s permitting laws had been declared unconstitutional. Until new, constitutional, regulations were put in place, if you were not a prohibited person, you could carry in D.C.

When Bruen came out, I expected a slew of lawsuits designed to attack the infringements that existed. I did not expect the Bruen tantrum response bills.

I knew that some courts would fight. I wasn’t surprised when the Ninth Circuit kicked the GVR’d cases down to the district level for new briefings in light of Bruen.

I was pleasantly surprised when the Fourth Circuit heard their GVR’d case right away. And then they went radio silent for over a year.

But something different is happening this time. The 2A community started politely, they filed their suits and saw where things went. They got their cases to the circuit courts, and we watched the circuit courts uphold infringements of every sort.

I don’t expect the 2A community to go quietly into the night. But I was not expecting the level of ferocious attacks I’ve been seeing.

There are far too many briefs, orders, motions, and opinions coming out that are more impolite than I’d ever expect to see. Courts are being called out on their shit.

We are taking these cases to the Supreme Court, over and over again. And we are being heard. The Circuit courts are scrambling to find something. They know they are twisting the Supreme Court’s words to infringe when that should not be allowed.

There have been too many times when the Circuit courts have modified their behavior, fearing the Supreme Court intervening in their cases.

Are you feeling positive about the course things are taking?

The comments are open, let’s hear your thoughts.