SCOTUS considering Bianchi v Frosh/Duncan v Bonta the turning point for AW/magazine ban?

[armoredman]

Thank you for the updates, hope dinner was excellent - I had Subway.

 

[LiveLife]

Thank you for the updates, hope dinner was excellent - I had Subway.

I made wife's favorite, ribeye steaks cooked medium rare.

OK, here's the rest of the "flying" transcript of the arguments.

Update to Harrel v Raoul (IL AW/magazine ban) - https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-12#post-12614688

Recording of oral arguments - https://media.ca7.uscourts.gov/sound/external/kra.23-1353.23-1353_06_29_2023.mp3

• At 1:40 minute, attorney for city/state parties states at the beginning of argument that "large capacity magazines are not arms" but at 1:50 minute, judge clarifies that "ammunition feeding devices" are arms and while city/state attorney agrees 10 round magazines are arms but 30 round rifle magazines and 15 round handgun magazines are not arms ... [That's like saying knives with blades shorter than 3 inches are knives but blades longer than 4 inches are not knives ... Wow]
• At 2:30 minute, attorney also states "large capacity magazines and assault rifles" are not protected by the Second Amendment because they are not "in common use" ... [Really? Wow, just wow] At 2:50 minute, judge asked for source of authority and reminds the attorney that Bruen removed the two step approach and burden shifted to the state.
  
• At 4:50 minute, attorney tries to explain what "bearable arm" is asked by the judge and correctly answers "being able to carry". While describing M16 as full-auto same as AR15 which is semi-auto but claims it is dangerous because it is "military grade".
• At 8:00 minute, judge clearly explains Bruen removed the two step approach and mandates one step "text and history" approach to laughters of other judges and attorney seemingly nervously laughs with the judges
• At 13:30 minute, judge asks for explanation of "self defense" being an objective test or subjective test and attorney states handguns and shotguns are more suitable for self defense than rifles because they are easier to move around than rifles [Wow, I guess she hasn't seen too many 16" AR15s or handled them compared to shotguns]
• At 14:30 minute, attorney states "assault weapons" are being regulated by the state because they are "militaristic" and especially with large capacity magazines are easy to use by those with little training to "murder" people because they were designed for the battlefield ... [I guess she is not aware shotguns are also used by the US military to kill people]
• At 23:30 minute, attorney for the city states AR15 is not an arm protected by the Second Amendment because it is a dangerous and unusual weapon
• At 24:00 minute, judge clarifies that "why" of gun powder regulation of fire prevention is different for "why" for Bruen but attorney disagrees with the judge saying the "why" is same to "prevent mass death". Judge points out they are concerned about that and attorney responds that law enforcement is afraid to respond because of "militaristic" AR15s used by "mass shooters".
• At 25:30 minute, judge points out that Dr. Herrera had to defend himself because of lack of police protection.
• Through 32:00 minute, argument made that historically, there has been some kind of regulations by the state and term "military grade" kept being mentioned along with notion that self defense is not unlimited right
• At 32:00 minute, when judge asked for "best historical analogue" for "why", argument made that "gun powder and spring gun [shotgun]" are two best analogue for mass deaths and examples of regulations by the state

• At 34:00 minute, argument made by attorney for plaintiffs
• At 34:15 minute, argument made for "millions" of semi-auto rifles/pistols/shotguns and "millions more" magazines are "in common use today" and under Bruen ruling
• At 34:45 minute, judge points out "in common use 'today'" that machine guns were banned in 1938 and machine guns were "in common use" in 1938 like AR15s are in common use
• At 35:20 minute, argument made that "in common use" are different because machine guns in 1938 were "in common use" by criminals in Chicago but in 2023, AR15s are "in common use" all across the nation by "law abiding citizens" for lawful purposes and "specific words used in Heller" (You can hear judge's audible "Hmmmm" at 35:35) [Very good point by plaintiff's attorney]
• At 35:50 minute, argument made that machine guns were not typically possessed by law abiding citizens. At 35:55 minute, judge asks if there is data to base this statement. At 36:00, argument made that only few thousand machine guns were sold and mostly "found home" with mobsters used for criminal purposes.
• At 36:45 minute, judge points out "historic inquiry under Bruen" doesn't look for analogue in recent decades or in 1938 or in 2020s as these are "current events". "Current events are for legislature" but "history is demanded by the Constitution."
• At 38:00 minute, judge repeats the question of where "historical analogue" comes from and attorney makes argument for historical tradition as applied to "in common use" today
• At 39:00 minute, judge asks for clarification of "in common use" firearms by the military and attorney clarifies "in common use" applies to "ordinary law abiding citizens" in light of Bruen
• At 42:00 minute, attorney argues to better clarify "in common use". At 42:45, judge even states "Handgun" is "in common use" as stated by Supreme Court in Bruen. At 44:00, attorney argues that semi-auto rifles are second most common firearms behind handguns and more common than revolvers or shotguns.
• At 45:00 minute, judge points out AR15s became popular and started being "in common use" 20 years after introduction in 1950s. So if there was a ban in 1957, AR15s would not be "in common use". At 47:15, attorney argues technology improved but judge rephrased the point that at 47:25 that Congress banned machine guns in 1938 and whether that is unconstitutional.
• At 48:00 minute, another judge points out that Constitutional decisions are "enduring decisions" that do not change over time as protection of First Amendment doesn't change because of popularity or unpopularity of subject. At 49:50, attorney argues that Bruen actually confronted this question but at 49:30, judge states "No it didn't ... Bruen confronted question posed in Bruen and decided on [carry outside of home] but not what types of arms as opinioned by justices Kavanaugh and Alito. "It hasn't been decided"
• At 50:35 minute, attorney argues Bruen ruling on page 21 through 43 that applies to firearms "in common use" today even though they were not "in common use" back in colonial days. Judge states "I read Bruen too ..." [Followed by general laughter]
• At 51:15 minute, judge states it's troubling to allow popularity contest decide a constitutional principle and discussion ensued on definition, scope and meaning of bearable arms along with dangerous and unusual
• At 54:00 minute, discussion ensued regarding restriction on possession, storage, transport and use
• At 56:00 minute, attorney argues that Second Amendment protects arms available to the civilians and what civilians chose to make popular. Semi-auto firearms became popular and later magazine fed semi-auto firearms became "in common use" because that's what the civilians/citizens chose to use. Law abiding citizens had the option to choose full-auto firearms to make popular and "in common use" but they did not. Just because something is legal doesn't necessarily become popular and "in common use".
• At 58:00 minute, attorney argues what the state is trying ban is the single most popular and second most popular type of firearm people chose to make it "in common use" for self defense
• At 59:00 minute, judge brings up whether the state has gone too far in banning arms or perhaps "democratic" legislation is the proper solution for regulation of arms BUT at 59:45, attorney clearly points out Supreme Court is clear that legislature is over reaching regarding Second Amendment issues of protecting individual rights and legislature cannot take away arms used for self defense as millions of firearms are "in common use" in accordance to historical tradition established by Bruen.

• At 1:03:00, another attorney for the plaintiffs points out machine guns and dangerous and unusual arms like grenade launchers are legal to own and use under NFA but they are not popular and in common use because they are expensive and limited in numbers of availability. And these are not banned rather "regulated".
• Attorney argues that popular AR15 is linear [modernized] descendant of popular firearms used in colonial days that were "in common use" and at 1:04:30, uses printing press and [modernized computer/tablet] ipad as linear descendant example.
• At 1:05:10, attorney argues progression of firearm development and points out bolt action rifles used for world wars are immensely evolved firearms compared to muskets used by the colonials and argued the court would not question whether [modern] bolt action rifles are protected by the Second Amendment.
• At 1:06:00, discussion ensues distinguishing "ban" from "regulation" and argument made that Second Amendment post Bruen does not allow legislature to "ban" linear descendants of arms used by the colonials.
• At 1:08:00, Caetano v Mass mentioned justice Alito stated 200,000 stun guns were "in common use" and semi-auto rifles and magazines state is trying to ban is well beyond that number in "tens of millions" and used for "lawful purposes including self defense along with competition and hunting".

• At 1:10:00, argument/discussion made regarding Dr. Herrera and the Militia Act where arms were kept by the people that were "in common use" for self defense at home and also for Militia purposes.
• At 1:12:00, judge points out full-auto M16 could be used for home defense and bump stock is about to be reviewed by the Supreme Court. And if Supreme Court decides Second Amendment protects bump stock, then why not for machine gun. At 1:13:20, attorney points out the case is about semi-auto rifle banned by the state.
• At 1:13:40, judge points out full-auto firearm could benefit 70 year old who may not be proficient with firearms in self defense at home against an intruder, especially for 65 or 80 year old arthritic home owner.
• At 1:14:40, attorney once again points out full-auto is good for "suppressive fire" and not necessarily good for self defense purpose in effectively hitting the intended target. At 1:15:50, attorney points out again in response to judge's point that full-auto in the military is mainly used for suppressive fire and not aimed fire of hitting the target.
• At 1:17:00, argument is made AR15 represents the popular arm "in common use" according to historical tradition of what colonials kept "in common use" and also for Militia use.
• At 1:23:00, judge asks if the Winchester lever action is protected under the Second Amendment and points out that the lever action was not the same as muzzle loading muskets colonials used but the lever action was in common use and was the AR15 of the pioneering days. [VERY GOOD POINT!!!]

 

[AlexanderA]

At 4:50 minute, attorney tries to explain what "bearable arm" is asked by the judge and correctly answers "being able to carry".

This issue is actually not that cut-and-dried. A plausible case has been made that in the 18th century, "to bear" arms didn't mean just to carry, but to carry or use within a military formation or at least in some sort of military context. Therefore, "bearable arms" would not just be man-portable arms, but would include crew-served weapons as well. Where do you draw the line? I would say that a .50 cal. machine gun would definitely be "bearable" even though it would be tough for one person to carry one. You could extend the same rationale to artillery and other things.

 

[Hooda Thunkit]

I would say that a .50 cal. machine gun would definitely be "bearable" even though it would be tough for one person to carry one.

I remember once, back when I worked for Our Crazy Uncle, carrying the M2 receiver and BOTH barrels from the armory to the APC (M113).
I also had my M16a1 with a 203 grenade launcher mounted, and whatever web gear.

It was about 1/2 mile walk - or stagger, more like- and I never tried it again. I weighed about 160 back then, and I'm almost certain that 50 Cal weighed more than me.

 

[Styx]

They're going to lose this case, and from the aggressive questioning of the pro gun side, the light ball questioning of the state's attorney, and the type of questions being asked hint to me where the judges' minds are at.

 

[JTHunter]

Fantastic work LiveLife ! Thanks !
It is so much easier to be able to read and possibly go back and re-read a certain line to better understand what they are saying.

 

[LiveLife]

type of questions being asked hint to me where the judges' minds are at.

Yes, and I was listening carefully to judges' questions and clarifications they were making with some concern that perhaps they already made up their minds but the last question and point that was made stopped me dead in my track as perhaps it was the most important point made during the arguments - https://media.ca7.uscourts.gov/sound/external/kra.23-1353.23-1353_06_29_2023.mp3

At 1:23:00, judge asks if the Winchester lever action is protected under the Second Amendment and points out that the lever action was not the same as muzzle loading muskets colonials used but the lever action was in common use and was the AR15 of the pioneering days.
​

Let's digest the question that was asked and the point that was made.

= Judge's question =

At the end of the arguments, judge asked if the Winchester lever action is protected under the Second Amendment. I believe the judge used the Winchester lever action to specifically address the primary focus of the case whether "modern" magazine fed semi-auto rifles are protected under the Second Amendment.

Winchester lever action:

• Is "modern" version of muzzle loading single shot musket used by the colonials and utilizes faster repeating action (Lever action)
• Shoots "modern" version of ball and powder ammunition of self contained cartridges
• Uses "modern" ammunition storage device called "magazine" (Tube magazine specifically) instead of pouches of lead balls and powder horn
• Became popular and "in common use" after initially being introduced

So if Winchester lever action with magazine is protected under the Second Amendment (BTW, it is), same can be applied to even more "modern" type of firearm called AR-15:

• Is "modern" version of muzzle loading single shot musket used by the colonials and utilizes faster repeating action (Semi-auto action)
• Shoots "modern" version of ball and powder ammunition of self contained cartridges
• Uses "modern" ammunition storage device called "magazine" (Stick magazine for AR-15) instead of pouches of lead balls and powder horn
• Became popular and "in common use" after initially being introduced

And since city/state's attorney kept mentioning magazine fed AR-15 as "military grade/militaristic" rifle being dangerous and unusual capable of mass murder, same could be said of magazine fed Winchester lever action as it was used for military and was effective in killing multiple enemies, animals for hunting and threats for self-defense. And contrary to city/state's attorney, courts have already ruled magazines are "arms" protected under the Second Amendment regardless whether attached or detachable magazine in similar manner Bruen ruled "carry" outside of home is Constitutional regardless type of carry whether open or concealed.

So if "modern" Winchester lever action with faster repeating action that uses magazine is protected under the Second Amendment (BTW, it is), then even more "modern" AR-15 with semi-auto action that uses detachable magazine should also be protected under the Second Amendment.

= Judge's point =

And I believe what the judge pointed out after asking the question may hold the key to the entire case:

[Winchester] lever action was not the same as muzzle loading muskets colonials used but the lever action was in common use and was the AR15 of the pioneering days​

 

[LiveLife]

Update to DSSA v Delaware (DE AW/magazine ban) - https://www.foxnews.com/politics/gun-rights-groups-appeal-overturn-delaware-assault-weapons-ban

• HB 450 was signed into law in 2022 and bans certain semi-auto "assault" rifles, pistols and "large capacity" magazines along with increase in age to purchase firearms from 18 to 21 and strengthened background checks
• After being denied request for preliminary injunction to block HB 450 by District Court in March of this year, Delaware Sportsmen's Association (DSSA) and other groups appealed to three-judge panel of the 3rd Circuit Court of Appeals
• DSSA filed 86 page brief for the 3rd Circuit panel - https://dssa.us/wp-content/uploads/...ppellants-OB-with-Vol-I-Appendix-7-3-2023.pdf
• Citing Bruen ruling, DSSA argued there is "... no historical tradition of banning arms in common use by law-abiding citizens for lawful purposes" ... "The District Court was not faithful to Heller and Bruen. Instead, the District Court upheld the Regulatory Scheme by invoking false historical analogues that bore no resemblance to the Regulatory Scheme and by engaging in improper interest-balancing under the guise of inapplicable ‘unprecedented societal concerns’ and ‘dramatic technological changes.’ The Regulatory Scheme violates the Second Amendment."
  
• Firearms Policy Coalition (FPC), Second Amendment Foundation (SAF) and other groups filed similar challenges to the ban that have now been consolidated in the appeal to the 3rd Circuit - https://www.firearmspolicy.org/legal
  
• FPC Vice President of Communications Richard Thomson - "No matter what the State of Delaware thinks, the guns and magazines it banned are protected by the Second Amendment and thus cannot be prohibited ... We look forward to the Third Circuit getting right what the district court got wrong when it declined to preliminarily enjoin Delaware’s bans."

 

[armoredman]

Interesting

 

[LiveLife]

Update to DSSA v Delaware (DE AW/magazine ban) - https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-13#post-12670458

20 states' AG join and file brief to support DSSA pointing out Supreme Court's Caetano v Mass ruling expands 2A protection to "modern" arms that are "bearable" for carry outside of home as ruled in Bruen with mandate to use "text and history" approach for 2A cases and complete ban (not regulation) of arms is not historical and 2A is not a "second class right" - https://content.govdelivery.com/attachments/MTAG/2023/07/11/file_attachments/2551895/DSSA v. DDSHS Amicus FINAL Filed.pdf

The States of Montana, Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, New Hampshire, North Dakota, South Carolina, South Dakota, Utah, Virginia, West Virginia, and Wyoming (“Amici States”) submit this amicus brief to safeguard individuals’ “constitutional right to bear arms in public for self-defense” against unnecessary intrusions. And that necessarily includes the right to keep and bear “modern [arms] that facilitate armed self-defense.” ... (citing Caetano v. Massachusetts) ... Amici States urge this Court to reverse the decision below [District Court's denial of request for preliminary injunction].

SUMMARY OF ARGUMENT

Bruen reaffirmed that the right to keep and bear arms “is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’” The Second Amendment stands as a reminder to state governments that “the people” have a “preexisting” right to keep and bear arms.

And it extends to all “bearable arms,” including arms carried “for offensive or defensive action in a case of conflict.” On the heels of Bruen, Delaware enacted a package of gun control bills prohibiting the manufacture, purchase, sale, or possession of socalled “assault weapons” and large-capacity magazines (“LCMs”) ... Subject to limited exceptions not relevant here, HB 450 enumerates 44 semi-automatic “assault long gun" ”—including the AR-15, AK-47, Uzi, and more—19 semi-automatic “assault pistol,” and “copycat weapon.” But HB 450 permits people who purchased or possessed prohibited firearms before its effective date to continue to possess and transport those firearms under certain conditions.

SS 1’s LCM ban applies to magazines “capable of accepting, or that can be readily converted to hold, more than 17 rounds of ammunition.” Unlike HB 450, SS 1 doesn’t grandfather any magazines; instead, it requires Delaware to implement a buy-back program. Between July 2022 and January 2023, three sets of plaintiffs challenged HB 450, SS 1, or both, on the grounds that they violated plaintiffs’ rights under the Second and Fourteenth Amendments of the U.S. Constitution. In each case, the plaintiffs moved for a preliminary injunction. The district court denied DSSA’s request for preliminary relief because it found that DSSA failed to establish the two threshold preliminary injunction factors—likelihood of success on the merits, and irreparable harm.

Bruen’s analogical inquiry requires courts to employ a “nuanced approach” to determine whether proposed historical analogues are “relevantly similar” to a challenged regulation. That inquiry requires courts to do more than simply count the number of historical state laws restricting certain weapons—instead, courts must consider “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.” And discerning “the original meaning of the Constitution” remains the guiding light of that inquiry. The district court’s analysis falls short of the “nuanced” inquiry Bruen requires.

Nearly all of the historical regulations that the district court relied on stop short of complete bans, and instead tailored their prohibitions to minimize the criminal use of certain dangerous and unusual weapons. But HB 450 and SS 1 go farther and impose complete bans on so-called assault weapons and LCMs, so they are not “relevantly similar” to the proposed historical analogues. Because deprivations of Second Amendment rights, like deprivations of First Amendment rights, cannot be restored after-the-fact, this Court should extend the presumption of irreparable harm applied in First Amendment cases to the Second Amendment context. Unlike First Amendment violations, which are all evaluated under some form of means-end scrutiny, Second Amendment violations after Bruen are not evaluated under any form of means-end scrutiny. For these reasons, this Court should reverse.

ARGUMENT

After Bruen, courts must determine whether the “text of the Second Amendment applies to a person and his proposed conduct.” For DSSA, that proposed conduct is keeping or bearing the “arms” prohibited by HB 450 and SS 1. And if the Second Amendment’s text covers DSSA’s proposed conduct, the government “must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

... I. Delaware fails to show that its assault weapon and LCM bans align with this Nation’s tradition of firearm regulation.

... II. After Bruen, Second Amendment violations should be presumed to constitute irreparable harm.

CONCLUSION

The Second Amendment guarantees all Americans the right to bear arms for self-defense and other lawful purposes “subject to certain reasonable, well-defined restrictions.” No doubt HB 450 and SS 1 were motivated by an understandable concern with the recent rise in mass shooting incidents, but they are inconsistent with this Nation’s historical tradition of regulating dangerous and unusual weapons. This Court should reverse.​

 

[LiveLife]

Update to OFF v Brown (OR magazine ban/permit to purchase) - https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-10#post-12484256

NOTE: While Federal court ruled in support of Ballot Measure 114 [And likely will be appealed to 9th Circuit], Temporary Restraining Order granted for state case Arnold v Brown (OR magazine ban/permit to purchase) supported by Oregon Supreme Court is still in place so no change for Oregonians wanting to purchase larger than 10 round capacity magazines - https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-12#post-12549700

Federal district court judge Karin Immergut ruled that Oregon Ballot Measure 114 is constitutional - https://www.oregonfirearms.org/category/off-alerts

While not entirely unexpected, Immergut’s ruling is simple nonsense and sure to be overturned at the 9th circuit.

When faced with the clear and undeniable issues about all magazines being banned and the permit system being completely unworkable, she essentially said “not my problem.”

We are sure there will be plenty of parsing of this absurd decision in the coming days, but it was clear from the very first day that Immergut was both painfully ignorant and in the pocket of Oregon’s far left “Department of Justice.”

No doubt it took this long for her to come up with a reason to reach this conclusion when none of the facts were on her side.

You can read her decision here.

Please keep in mind Ballot Measure 114 is still prevented from going into effect because of the State Court decision in Harney County. A full trial on the merits there will be held in September.

​

Let's take a look at judge Immergut's incorrect conclusion - https://www.oregonfirearms.org/wp-content/uploads/2023/07/ruling.pdf

CONCLUSION

The Supreme Court has held that Second Amendment protects an individual right to selfdefense inside and outside of the home. [Correct]

LCMs are not commonly used for self-defense, and are therefore not protected by the Second Amendment. [Incorrect as ruled by other courts and Heller/Caetano]

Even if LCMs are protected by the Second Amendment, BM 114’s restrictions are consistent with this Nation’s history and tradition of regulating uniquely dangerous features of weapons and firearms to protect public safety. [Incorrect as identified in Duncan v Bonta case where there is no historical tradition of magazine ban]
​

Ex FPC attorney discuss OFF v Brown ruling and Arnold v Brown TRO

 

[LiveLife]

Repost from another thread due to pertinence to this thread topic discussion - https://www.thehighroad.org/index.php?threads/federal-judge-rules-oregon’s-tough-new-gun-law-is-constitutional.921034/#post-12672794

It's not clear if the votes to void bans actually exist in Scotus given the views that Roberts and Kavanaugh are weak. Who is to know?

Justice Kavanaugh wrote his dissent in Heller II arguing that "modern" magazine fed semi-auto rifles are protected by the Second Amendment. While he voted with the majority for Bruen ruling, he did opine that states could regulate - https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf

I join the Court’s opinion, and I write separately to underscore two important points about the limits of the Court’s decision. First, the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court’s decision does not affect the existing licensing regimes—known as “shall-issue” regimes—that are employed in 43 States.

The Court’s decision addresses only the unusual discretionary licensing regimes, known as “may-issue” regimes, that are employed by 6 States including New York ... because it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense ... in effect deny the right to carry handguns for self-defense to many “ordinary, law-abiding citizens.”

... Second, as Heller and McDonald established and the Court today again explains, the Second Amendment “is neither a regulatory straightjacket nor a regulatory blank check.” Properly interpreted, the Second Amendment allows a “variety” of gun regulations.​

Chief justice Roberts opined with the majority for Bruen ruling which eliminated the "two step" approach used for decades and now mandated "text and history" approach that requires existence of historic tradition analogue by the 1791 ratification of Bill of Rights for any regulation to be considered constitutional.

At first I too was dismayed that Supreme Court remanded various 2A cases back down for reconsideration factoring Bruen mandate of "text and history" approach only. But having followed various 2A cases like Duncan and Miller, starting to appreciate why these cases were remanded down instead of Supreme Court ruling on them.

Perhaps here's why.

When 9th Circuit also remanded Miller (AW ban) and Duncan (Magazine ban) back down to the district court, judge Benitez ordered CA to provide evidence that "identifies the best historical regulation that is a proper analogue and relevantly similar to a statewide prohibition on possession of a firearm with listed features" for the Miller case. Judge Benitez also ordered CA provide historical evidence of "statewide prohibition on possession of an ammunition device or a limit on an amount of ammunition" for the Duncan case.

CA in collaboration of plaintiff's "clarification" comments, presented a spreadsheet listing all the regulations that existed before and after the 1791 signing of the BOR ratification but historical analogues to AW and magazine ban did not exist as they were relatively recent regulations - https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-11#post-12528071

So cases having been remanded back down, if/when they return back to the Supreme Court for final ruling as highest court in the nation, would have demonstrated (Shown reconsideration work of looking for historic tradition analogues) whether such analogues to regulations being challenged existed.

Interestingly, arguments for Harrel v Raoul (IL AW/magazine ban) consolidated with Langley v Kelly, Accuracy Firearms v Pritzker and Barnett v. Raoul were made recently to the 7th Circuit after securing preliminary injunction against PICA.

During the arguments, following key points were made - https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-13#post-12669295

• Attorney argues that popular AR15 is linear [modernized] descendant of popular firearms used in colonial days that were "in common use" and at 1:04:30, uses printing press and [modernized computer/tablet] ipad as linear descendant example.
• At 1:05:10, attorney argues progression of firearm development and points out bolt action rifles used for world wars are immensely evolved firearms compared to muskets used by the colonials and argued the court would not question whether [modern] bolt action rifles are protected by the Second Amendment.
• At 1:06:00, discussion ensues distinguishing "ban" from "regulation" and argument made that Second Amendment post Bruen does not allow legislature to "ban" linear descendants of arms used by the colonials.
• At 1:08:00, Caetano v Mass mentioned justice Alito stated 200,000 stun guns were "in common use" and semi-auto rifles and magazines state is trying to ban is well beyond that number in "tens of millions" and used for "lawful purposes including self defense along with competition and hunting".

Probably the best question asked and point made came from the judge who asked whether the Winchester lever action is protected under the Second Amendment to the silence of state's attorney - https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-13#post-12669936

At 1:23:00, judge asks if the Winchester lever action is protected under the Second Amendment and points out that the lever action was not the same as muzzle loading muskets colonials used but the lever action was in common use and was the AR15 of the pioneering days.
​

So communication devices like computers/cellphones are popular and in common use linear "modern" types of printing press used for free speech protected under the First Amendment that did not exist during colonial days and similarly, magazine fed Winchester lever action and magazine fed semi-auto AR-15 are "modern" types of muskets used for self defense/lawful purposes protected under the Second Amendment that did not exist during colonial days as Second Amendment is not a "second class right" to First Amendment.

Now I am starting to appreciate Supreme Court remanding these 2A cases back down as by the time they reach the Supreme Court again, very thorough study/review would have taken place to affirm Bruen decision of "text and history" and Heller/Caetano of "modern" types of arms.


ETA: More repost from same thread - https://www.thehighroad.org/index.php?threads/federal-judge-rules-oregon’s-tough-new-gun-law-is-constitutional.921034/#post-12672843

If “large capacity” magazines aren’t in common use for self-defense then why do police officers carry them?

Very good point that is gaining more and more judicial traction.

With many of these ban often exempting law enforcement, such as CA handgun roster banning "modern" models of handguns with improvements/enhancements that law enforcement uses, same argument can be made.

Why are law enforcement allowed to use these "modern" types of arms when law abiding citizens are not?

And justice Thomas eloquently stated in Bruen that the Second Amendment is not a "second class right" ... meaning same rule as applies to the First Amendment. So is law enforcement allowed "modern" forms of communication like email/text/cellphone/smartphone, etc. but not the law abiding citizens? Of course not.

So, why are law abiding citizens treated different when it comes to Second Amendment to not be allowed "modern" types of arms?

We brought this on ourselves, IMHO.

To repeat myself, Scotus was idiotic to remand. None of their legal custom, precedents, need to make the circuits do their job mean squat when basic rights are/were deprived and they could have fixed it. I suspect the votes weren't there. I also fume at the apologists who argue that the remand or failure to support the TROs was brilliant legal maneuvering.

Well, IMHO, it's actually "We the People" who did this. https://www.thehighroad.org/index.php?threads/federal-judge-rules-oregon’s-tough-new-gun-law-is-constitutional.921034/#post-12672850

Had "We the People" elected Hillary in 2016 as POTUS, justices Gorsuch, Kavanaugh and Barrett would have never been nominated to the Supreme Court and Bruen ruling would have ended up very differently and we would not even be having the discussion of 2A cases being remanded back down post Bruen.

"We the People" as framed by the founders did all this to "self govern" not by majority mob rule to impose on the rights/liberties of the minority but by Constitution/BOR to protect the rights of the minorities. Just as Supreme Court ruled to protect rights for the slaves and women in free speech and voting, so will Supreme Court also rule to protect rights for the minority gun owners in self defense/lawful use of arms.

And now we get to witness the separation of government powers with judicial branch being the check and balance to legislative and executive branches as the final rule on what is constitutional.

Yes, "We the People" did this.

Seems to me that in modern times, the slow pace of the courts isn't acceptable. If Scotus makes a major decision, it has to have a quick path where THEY take up violations of their decision in real time ... Folks are still waiting for them to da DAH, wipe out all the bad laws being passed.

https://www.thehighroad.org/index.php?threads/federal-judge-rules-oregon’s-tough-new-gun-law-is-constitutional.921034/page-2#post-12673429

It took decades for the Supreme Court to rule on various First Amendment cases before permanent enforcement was applied as federal/state laws - https://en.wikipedia.org/wiki/List_...eme_Court_cases_involving_the_First_Amendment

I anticipate similar with a lot of resistance from some states continuing to fervently pass anti-2A laws like how some states passed many anti-1A laws then getting sued.

If the Second Amendment is not a "second class right", then same will happen for the Second Amendment followed by permanent enforcement.

 

[LiveLife]

Update to Rhode v Becerra/Bonta (CA ammunition ban) - https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-12#post-12668661

• A hearing on Plaintiffs’ Motion for Preliminary Injunction will take place on Monday, July 17, 2023 at 2:00 p.m. in Courtroom 5A
• Interesting thing is the Court intends to consolidate the hearing on the motion for preliminary injunction with a trial on the merits
• At or prior to the hearing, the parties should be prepared to address, among other things:
  • a. The Plaintiffs’ continuing Article III standing;
  • b. Whether Plaintiffs’ conduct is covered by the text of the Second Amendment
  • c. Relevant historical analogues;
  • d. Applicability of footnote 9 in New York State Rifle and Pistol Association v. Bruen, 142 S. Ct. 2111 (2022);
  • e. The Dormant Commerce Clause (First Claim for Relief);
  • f. Preemption by 18 U.S.C. § 926A (Ninth Claim for Relief);
  • g. Whether judicial deference is owed to laws produced by ballot measure Proposition 63
• So instead of granting a preliminary injunction, judge Benitez could instead make a final ruling on the case

Minute Entry for proceedings held before Judge Roger T. Benitez: Preliminary Injunction Hearing held on 7/17/2023 - https://michellawyers.com/rhode-v-becerra/

• No objections were heard as to combining the preliminary injunction hearing with a trial on the merits.
• Within 30 days of today, Plaintiffs shall file a declaration(s) regarding their Article III standing.
• Within 30 days of today, Defendant shall name and file an expert report(s) or declaration(s) regarding the American history and tradition of background checks.
• Within 15 days thereafter, Plaintiffs shall decide whether to depose said expert(s), and within 30 days after deciding, Plaintiffs shall file a brief or expert declaration(s) in response.
• Additionally, within 30 days of today, Defendant shall file an updated declaration regarding ammunition purchaser background check acceptance/rejection rates and processing times, as performed previously.
• Additionally, within 30 days of today, Defendant shall report to the extent ascertainable, on persons described in previous declarations as persons who underwent background checks and were identified as prohibited persons and indicate whether such persons were prosecuted and whether firearms were located and seized from such persons.

So looks like judge Benitez is putting the burden of evidence on CA to come up with "American" history and tradition of background checks and acceptance/rejection rates along with processing times for buying ammunition.

 

[armoredman]

So, 75 days until a possible decision. It will be an interesting read, most certainly.

 

[LiveLife]

Last year, iconic AP News article on grim future of anti-2A gun laws after Bruen ruling was titled, "After Supreme Court ruling, it's open season on US gun laws" - https://apnews.com/article/gun-viol...ngs-politics-f919b74dc95062f322389349f35c0e93

... Justice Clarence Thomas said ... should only weigh whether the law is "consistent with the Second Amendment’s text and historical understanding." ... "Basically, the Supreme Court has given an invitation for the gun lobby to file lawsuits against virtually every gun law in America"

Interestingly, this article was posted on Los Angeles Times and outlines even more grim future for anti-2A gun laws.

Gun control laws in California and beyond in peril as Supreme Court expands 2nd Amendment - https://www.msn.com/en-us/news/crim...preme-court-expands-2nd-amendment/ar-AA1e4nNy

• In 2008, Supreme Court ruled 2nd Amendment protected the "right of law-abiding, responsible citizens" to keep a handgun at home for self-defense. Last year, court said an "ordinary law-abiding citizen" also has a right to a state permit to carry a concealed weapon in public for self-defense.
• A self-proclaimed champion of "originalism," justice Thomas said the court should focus strictly on the "text and history" of the Constitution when considering the legality of gun control laws. "The Second Amendment does not permit — let alone require — 'judges to assess the costs and benefits of firearms restrictions,'" ... Instead, when facing a gun rights claim, "the government must affirmatively prove" the restriction is "consistent with this Nation's historical tradition of firearm regulation."
• Justice Thomas opinion has ... "... opened the floodgates for new challenges to just about every gun safety law on the books."
• Also at stake are bans on assault weapons and large-capacity magazines and a variety of other gun control measures in California and other blue states.
• An appeal raising this issue could reach the high court later this year or early next ... "I like the composition of the court for our side," said Kostas Moros, a gun rights lawyer who has represented the CRPA.
• Key questions for the court will be how far individual 2nd Amendment gun rights should go and what type of weapons are protected ... In 2008, Supreme Court ruled the 2nd Amendment protects the right to firearms that are "in common use," but not the "carrying of dangerous and usual weapons."
• State attorneys have said that semiautomatic rapid-fire rifles like the AR-15 are uniquely dangerous and can be banned ... But gun rights defenders argue that these rapid-fire weapons are in common use. The National Shooting Sports Foundation has estimated Americans own 22 million of them.
• Because federal appeals courts have yet to rule on the new challenges, the justices are not likely to hear an assault weapons case until next year. Last month, the U.S. 7th Circuit Court in Chicago heard arguments over an Illinois ban, while California attorneys are awaiting a ruling from a federal district judge Benitez in San Diego.
• On June 30, Supreme Court agreed to hear the case of United States vs. Rahimi in the fall ... Justice Thomas opinion had made it very difficult for prosecutors to defend modern gun laws such as those dealing with domestic abuse because there were no such laws in the 18th century
• U.S. District Judge Carleton Reeves, an Obama appointee, said his duty was to follow the law ... "The standard announced by the Supreme Court in Bruen is the law of the land. It must be enforced. Under that standard, the government has failed to meet its burden," he wrote in U.S. vs. Bullock. "The federal felon‐in‐possession ban was enacted in 1938, not 1791 or 1868 — the years the Second and 14th Amendments were ratified."
• He said the government had pointed to no evidence "from either era supporting the categorical disarmament of tens of millions of Americans who seek to keep firearms in their home for self‐defense." ... The outcome in the dispute over the scope of the 2nd Amendment will probably turn on conservative Justices Brett M. Kavanaugh and Amy Coney Barrett.

 

[unwashed]

I remember once, back when I worked for Our Crazy Uncle, carrying the M2 receiver and BOTH barrels from the armory to the APC (M113).
I also had my M16a1 with a 203 grenade launcher mounted, and whatever web gear.

It was about 1/2 mile walk - or stagger, more like- and I never tried it again. I weighed about 160 back then, and I'm almost certain that 50 Cal weighed more than me.

Damn a blast from the past, I did the same thing but in reverse carrying the M2 and 2 barrels from the motor pool to the armory. I was so pissed, they forced me to. I was a medic in an APC with a big red cross on it. Needles to say, I never mounted it

 

[LiveLife]

Damn a blast from the past, I did the same thing but in reverse carrying the M2 and 2 barrels from the motor pool to the armory. I was so pissed, they forced me to. I was a medic in an APC with a big red cross on it. Needles to say, I never mounted it

I was a medic for the Army but they sure wanted me "volunteered" for non-medic tasks. Perhaps they wanted us "fit" so we could readily carry wounded around. I was 200 lbs with almost no body fat and quite fit as I cycled in the mountains in High School and did weight training in college to build up my upper body in college before boot camp so I had no issues fireman carrying most soldiers (I remember fireman carrying one over my shoulder and dragging another ... Good times and oh, to be young and strong again ).

For me, it was lugging M60 machine guns around but I did enjoy "volunteering" in my unit's armory keeping M16s maintained and disassembling new M1911s to deburr so they cycled reliably. And my experience working in the armory is what planted the seed for my love for 1911 and shooting to pursue USPSA match shooting after discharge and building countless ARs/PCCs in shooting over 1 million pistol/rifle rounds past 30 years - https://www.thehighroad.org/index.p...u-change-over-the-years.913488/#post-12486394

 

[unwashed]

I was a medic for the Army but they sure wanted me "volunteered" for non-medic tasks. Perhaps they wanted us "fit" so we could readily carry wounded around. I was 200 lbs with almost no body fat and quite fit as I cycled in the mountains in High School and did weight training in college to build up my upper body in college before boot camp so I had no issues fireman carrying most soldiers (I remember fireman carrying one over my shoulder and dragging another ... Good times and oh, to be young and strong again ).

For me, it was lugging M60 machine guns around but I did enjoy "volunteering" in my unit's armory keeping M16s maintained and disassembling new M1911s to deburr so they cycled reliably. And my experience working in the armory is what planted the seed for my love for 1911 and shooting to pursue USPSA match shooting after discharge and building countless ARs/PCCs in shooting over 1 million pistol/rifle rounds past 30 years - https://www.thehighroad.org/index.p...u-change-over-the-years.913488/#post-12486394

I also loved to play with all the toys, I was assign to an armor battalion and when the tanks needed medical coverage on the range I would weasel my way to a tank for some 50 cal action and looking through their night sights. Fired some grease guns too, did 2 weeks training with Rangers, carried a 1911 sidearm and a m16 in the rack next to me while driving. But I drew the line at a 50 cal on my APC, essentially an Ambulance with a big red cross on it. Oh, yes it would be nice to be young and strong again.

 

[LiveLife]

Update to Rhode v Becerra/Bonta (CA ammunition ban) - https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-13#post-12675283

Ex FPC attorney discuss Preliminary Injunction hearing held with judge Benitez on 7/17/2023

• On 12/12/22, judge Benitez held a "status conference" where Miller/Duncan/Rhode cases along with Fouts v Bonta (CA baton ban) case were heard
• After the status conference, judge Benitez gave CA 30 days to put together a spreadsheet of enacted laws and regulations as historical evidence related to the cases
• Judge ordered CA to identify the best historical analogue for "statewide background check for buying ammunition"

• At the Preliminary Injunction hearing, judge questioned why CA was trying to use racist laws of past (Which later were deemed unconstitutional) to push relevancy with ammunition ban
• Judge was critical of why CA's historians can better explain historical law with a clear meaning, like racist laws
• Judge gave CA 30 days to submit expert declarations perhaps to avoid 9th Circuit kicking the case back to him due to procedural issues
• Judge hinted he would be OK with an issuance of "permit card" that would allow purchase of ammunition renewable every 5 years as being allowable under Bruen ruling as state regulation but not having background check for every ammunition purchase which is overly burdensome

 

[230RN]

JohnKSa said:
That very important "minor" issue is that SCOTUS has not held that firearm registration is unconstitutional. The NFA doesn't prohibit possession, it only requires registration.

ALexander A said,
"OK then, let them just declare that the Hughes Amendment is unconstitutional, and reopen the registry. And declare that registration is a "ministerial" (routine) act, without long administrative delays."

Ahem. That statutory $200 tax would be equivalent to $2776.79 today.* That, ladies and gentlemen, was not a revenue measure. It was a proscriptive tax measure designed to limit a constitutional right. (You know it, I know it, and they knew it, Terry alleges.)

How many who have paid $200 today for the stamp for their "silencers" would have paid $2776.79 in 1934 for the <ahem> <koff koff> "privilege" of registering a "silencer?"

Just a reminder and to emphasize that it was most definitely not a mere tax measure.

Terry, 230RN

*Figuring 89 years at a mere 3% flat annual inflation rate.
$200 X ( 1.03^89)
Quibble about the "3%" flat rate all you want. At a flat 2% it would be $1165.32, at a flat 4% it would be $6,561.41.

 

[AlexanderA]

Ahem. That statutory $200 tax would be equivalent to $2776.79 today.* That, ladies and gentlemen, was not a revenue measure. It was a proscriptive tax measure designed to limit a constitutional right. (You know it, I know it, and they knew it, Terry alleges.)

Yes, but how a plan is structured is very important, constitutionally. In 1934, it was believed that a "tax" would pass muster, while an outright ban wouldn't. This was the original "workaround" for the NFA. By 1986, it was believed that an outright ban (the Hughes Amendment) would pass muster. (The Hughes Amendment is structured as a ban, with a carveout for existing guns.)

If "assault weapon" bans are struck down by the SC (which many are predicting), it's almost unavoidable that the entire NFA will be struck down along with them. That might not be the case if the Hughes Amendment had not been enacted.

 

[230RN]

Yes, but how a plan is structured is very important, constitutionally. In 1934, it was believed that a "tax" would pass muster, while an outright ban wouldn't.

I thought that's what I said. Thanks for the "yes," but why the "but?"

I was using the numbers to emphasize the point that the underlying intent was proscription, i.e., in other words, a whatchamacallit... oh, yes. An "infringement."

I also note the changes in attitude between 1934 and 1986. It would almost make one think that the importance of adhering to constitutional provisions was more important back then than it was in 1968. The "muster" threshold seems to have changed in the interim. But that's just me being paranoid.

To my mind, Congress had the power to levy taxes, but should not have done so in order to violate plain Constitutional provisions. But that's just me being literal.

It changed the Bill Of Rights into a Bill Of Privileges.

Terry, 230RN

 

[TomVA]

That statutory $200 tax would be equivalent to $2776.79 today.

Using the CPI Inflation Calculator from the US Bureau of Labor Statistics, that $200 in 1934 equals $4,554 today (6/1934 to 6/2023)! Certainly an intentional restriction rather than a tax.

CPI Inflation Calculator

​

 

[Jim Watson]

Another tax on a constitutional right was struck down in 1965; the poll tax.
Is the Bad Gun transfer tax analogous?

 

[230RN]

Using the CPI Inflation Calculator from the US Bureau of Labor Statistics, that $200 in 1934 equals $4,554 today (6/1934 to 6/2023)! Certainly an intentional restriction rather than a tax.

CPI Inflation Calculator

​

Thanks for confirming my position that it was an out-and-out case of chicanery to essentially prohibit certain weapons. I don'r normally use the government CPI calcualtor since I prefer the simplicity of using a simple flat rate throughout the compounding period --mainly because I'm simple minded.

I usually use 3% for long compounding periods and 3.5% for shorter ones. I check myself when Wikipedia comes up with "in today's dollars" and they've been using about 3.5% for a long time but I recently observed a few that were higher than that, like 3.7%, so apparently they're catching up with today's reality.

I added the 2% and 4% at the end of that post to indicate how 1% changes in either direction can affect the results. That's why I said don't quibble about the 3%.

The point was, they were attempting to subvert the Constitutional provisions regarding firearms by lying about it being a mere tax measure.

I point out that both 1934 and 1968 were emotional responses to absolutely outrageous incidents, and reiterate my firm conviction that the CPI folks ought to go out and buy a gallon of milk once in a while.

Terry, 230RN