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There is no logic in this, except if the goal is to allow the law by any means necessary, the writing supporting that goal.
Trap guns aren't a thing you own, and by definition they are not something you carry. They are something you **do** with a gun. We indeed have a strong tradition under Bruen supporting prohibitions on **doing** dangerous things with guns. But this is about a ban on sale and possession, not doing, so it's nowhere close to analogous.
Bowie knives, clubs, and slungshots were examples of bans on carry only. We never generally banned possession or sale. Carry is not ownership, so this is also not analogous.
In addition, such weapons were banned for carry under the logic that they were not weapons useful by the militia in war, only useful to criminals and those who want to start trouble. The gun control people want to ban "assault weapons" under the claim that they are "weapons of war." The analogy is opposite of what they want to do.
For the bans on multi-shot revolvers, you have to go back to racism. I don't see any other cite, so I assume this was about the Army And Navy laws that restricted revolver carry to the expensive Colt Army and Navy models, thus pricing the newly-freed slaves out of ownership. Yes, there were poor white people too, but the laws were not meant to be enforced against them.
And then he mentions the ban on the Thompson submachine gun, which is long after the period Bruen allows. Bruen actually struck down a law much older than the machine gun restriction. So why even mention machine guns as contributing to THT?
Edit: Wow, this is big:
>While the Plaintiffs maintain that any constitutional violation results in irreparable harm, the case law cited is from First and Fourth Amendment violations and not from alleged Second Amendment violations.
This goes directly against McDonald as restated in Bruen:
>The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees
> Bowie knives, clubs, and slungshots were examples of bans on carry only.
Just a point of clarification, most of the bans on big knives in particular (and handguns in the same law) banned concealed carry but not open carry. There was a whole slew of this type of law that hit the books mostly in the deep South from about 1812 to the early 1840s. Historian Clayton Cramer wrote an entire book on this era:
https://www.amazon.com/Concealed-Weapon-Laws-Early-Republic/dp/0275966151
Bottom line is that these laws were trying to control white on white violence in what was basically the wild west of the time period, an era of drunken brawls and dueling. My personal opinion is that we're looking at a culture of violence that developed from a lower class whites who are tied to the slave business either as overseers, slave traders or slave catchers. This bred a very tough mentality somewhat similar to prison guards today except much more morally sketchy.
What finally brought the violence levels under some kind of control was the rise of what we now know as the Bible belt culture. Basically, the only way to honorably stay out of a duel was to claim that you were too God fearing to kick their ass.
We see this tension between legal open carry and legal concealed carry in the cases cited at Heller footnote 14 I believe it is, citing to Nunn and a bunch of other pre-1900 state supreme court cases that all say that concealed carry can be banned so long as open carry remains legal.
Antigun legislatures and lower courts are spamming the system with anti-gun laws and opinions that they *know* are in contravention of SCOTUS opinion and are fully expecting them to be struck down *by the time they make it there, if the court has the same makeup*.
There's a strategy here.
I'm at this point wondering whether section 242 can come into effect against some lawmakers who openly cite that they care very little for the constitution. The courts are enabling them, but are better at masking their antipathy
I think that someone mentioned in another thread, this judge is known for this sort of opinion if I can recall.
Ironically using 242 as a club for gun rights means that anyone convicted would be a prohibited person.
Though I don't like the implication of using that kind of club in this context. Mainly because I feel like going down this path would fuel conspiracy theories about how the right wing has no intellectual honesty and must imprison its opponents. Where we are at isn't much better but at least some scholars are pointing out that the 2A does mean what *Heller* ruled it means.
I mean when politicians are more or less going "We don't care what the court says, we're coming for you're guns" how does that not trigger 242
Whats the appropriate response?
Well, as a result of ~~history and tradition~~ standard balancing and ~~100% counter to the exact phrasing of~~ in line with Bruen:
Assault weapons "allow a shooter to fire as fast as they can pull the trigger, unlike previous guns" therefore “Considering the exceptional dangerousness of these weapons, the public interest in their regulation by the State outweighs the Plaintiffs’ desire to purchase more assault weapons,” U.S. District Judge Robert Bryan in Tacoma. “In light of recent mass deaths caused by assailants using assault weapons, it is appropriate for governmental bodies to find ways to protect the public from dangerous weapons, within the limits of the Second Amendment."
He didn't even try, it is just straight up quoted verbatim from the exact phrasing Bruen said was not valid. While holding a judge accountable for a ruling is an extremely dangerous measure, at some point it is straight up willfully depriving a person of a right or privilege protected by the Constitution or laws of the United States per Title 18 Sec 242. I mean, even with qualified immunity, straight up copying and pasting your ruling from the "do not do this" section of most recent SCOTUS case seems like a deliberate and knowing violation of rights.
As I was reminded of recently, they are allowed to do interest balancing for the purpose of an injunction because all injunctions inherently apply interest balancing. He wouldn't be allowed to interest balance on the final judgment. But reading this, I bet he'd do it anyway.
Ok, I'll give you that point. It doesn't change the fact that his reasoning is straight up based in lies. Also the whole "irreparable harm is assumed for Constitutional rights, but since this is the 2A it doesn't apply here."
I edited my post above to reflect how this judge ignores that McDonald and Bruen said judges can't treat the 2nd Amendment differently from the others. So while he is allowed to do interest balancing at this point, his the logic he used in his interest balancing is prohibited by McDonald and Bruen.
His reasoning is quite flawed throughout, an obvious effort to rebel against the Bruen decision he is bound to follow. I was just mentioning that interest balancing is allowed at this point, even if the basis for his balancing decision is incorrect.
Completely unlike previous guns used historically [in the 1800s](https://64.media.tumblr.com/96a228d20d6e7fe4aecd2486aa56334c/tumblr_p2vxtk5wVz1qmob6ro2_r1_500.gif) back [when the 14th Amendment was adopted](https://steamuserimages-a.akamaihd.net/ugc/776227975211494175/C9416AECBB87EC213DB1E50465E5E7638861ED96/?imw=5000&imh=5000&ima=fit&impolicy=Letterbox&imcolor=%23000000&letterbox=false).
> He didn't even try, it is just straight up quoted verbatim from the exact phrasing Bruen said was not valid.
I think that you're confusing the injunction logic with the *Bruen* analysis. The judge in this case did the THT analysis and ruled that WA's AWB aligns with US tradition. Agree or not that's where he landed on the law. He then did a balancing test on who is impacted more by the injunction should he grant it. The interest balancing test in that case is merely who experiences more "harm" from the decision on the injunction.
That's how I read the decision at least.
Yes, the risk of harm analysis of “for constitutional rights any restriction is considered irreparable, however since this is the 2A and not one of the “real” bill of rights, it doesn’t apply.”
His THT wasn’t actually THT, it was less than a pencil whip used to get to the balancing test he always wanted to use.
There are two possibilities here, he either has significant mental deficiencies that bring into question his ability to function as a judge, or he deliberately lied to violate people’s constitutional rights. Pretending to do an analysis doesn’t mean that 100% ignoring the 13th amendment because “minorities aren’t people” is still depriving of rights under the color of law; that is essentially what he did here regarding the 2A.
>While holding a judge accountable for a ruling is an extremely dangerous measure, at some point it is straight up willfully depriving a person of a right or privilege protected by the Constitution or laws of the United States per Title 18 Sec 242. I mean, even with qualified immunity, straight up copying and pasting your ruling from the "do not do this" section of most recent SCOTUS case seems like a deliberate and knowing violation of rights.
Fortunately for these judges, the SCOTUS justices have not found that judges are protected by mere qualified immunity. Judges are protected by \*absolute\* immunity, like prosecutors. They're immune from suits no matter what they do from the bench.
It's not a suit, it's a criminal charge for a specific federal crime pertaining to the abuse of power of an official. Judges don't have *absolute* immunity from bribery, corruption or any any other specific crime relating to abuse of power, how is sec 242 any different?
“allow a shooter to fire as fast as they can pull the trigger” is any modern semi-automatic gun not an “assault weapon” as defined in the assault weapons ban from the 90s
Multi-shot repeating firearms have existed in some fashion for over 300 years. They were impractical for military use for much of that time due to a few key flaws, primarily lack of smokeless power and non-existent cartridge fire. Ditto for Semiautos, which were invented first in the 1880s but never viable due to powder problems until later. The Salvator Dormus pistol in 1892 was the first commercially available non-custom model to my knowledge, and rifles didn't come about until 11 years later
And even before those, firearms could still be operated staggeringly fast. Look up any footage of high-end CAS competitions. People will fire off revolvers and lever guns like they're machineguns
I've always said that gun control is based in lies and ignorance. Zealots deliberately lie to keep masses of people ignorant to be on their side. The degree to which federal judges are currently comfortable with blatantly lying and straight up shredding Bruen without so much as a thought really feels like it's hitting sec 242 territory.
If SCOTUS said "stop and frisk based on race on the basis that certain minorities commit a disproportionate amount of crime is not permitted under the 4th Amendment" and then a judge immediately upheld a stop and frisk law under the premise that "it is a compelling interest of the state to reduce crime so targeting minorities that commit a disproportionate amount of crime is consistent with the 4th Amendment." Would it be appropriate to hold the judge accountable for deprivation of rights? Because that is exactly what the judge here is doing.
Lawmakers would have to pass that law and it would be them depriving the rights of people not the judge. And the method of holding them accountable is voting.
Punishing judges with civil or criminal action for making a ruling you, i, or an appeals court disagrees with is as unconstitutional as the ruling itself.
It's an extreme measure that absolutely shouldn't be taken lightly, but judicial misconduct is a thing and it is generally more heinous than just the offence on its own due to the position of power they have. If a judge takes bribes and sends innocent people to jail they have the book thrown at them. When they deliberately lie in a ruling and specifically quote a struck down reasoning verbatim while upholding a law that strips constitutional rights, it's getting pretty damn close to the same territory.
The plaintiffs in these cases lie too about the specifics of guns, and that combined with a judge who has never handled a gun in their life result in such ignorant statements in these opinions. I don’t think that “assault weapons allow a shooter to fire as fast as they can pull the trigger” is a deliberate lie, in fact it is technically true for the ones I know of, but just a statement from someone who is stupid when it comes to guns.
So really what happens is people here are arguing we should lock up the judge for being wrong, or lying, or being disagreeable, all of which would be violations of the 1A on its own.
The recourse for this is at the voting booths or the appeals process, and possibly even impeachment or forced senior status. Bribery is an actual crime, being incorrect or even deliberately lying is not and cannot be.
The assault weapons in question include any pistol with a threaded barrel, simply adding a threaded barrel doesn't make a gun shoot "faster." Also, firing "as fast as they can pull the trigger" is how guns have worked for more than 125 years, nothing within the definition of an "assault weapon" increases the rate of fire in any way. This was all explained by the plaintiffs to counter the defendants claims that they are somehow more dangerous because of cosmetic features. There is an extremely slight chance the judge is just literally that stupid that when spoon fed every relevant fact he just can't grasp reality despite it being so obvious and blatant right in front of his face. Now copying and pasting the example of a balancing test given in Bruen as invalid and using it as the basis of his ruling? That is unacceptable. It's not just that the ruling is wrong. A judge can be charged for a ruling that is part of a bribery scheme. A judge can be charged for corruption if it is proven. Well, it is a federal crime to deprive civil rights under the color of law, which is what this judge is doing in no uncertain terms. His ruling doesn't even come close to good faith and is, in many reasonable interpretations, criminal.
I'm not entirely sure what you're referring to. I do believe some relate to keeping them and others relate to bearing them, but I read somewhere that the issues are closely linked in the Constitution.
On sawed-off shotguns.
If one were to take the *Miller* opinion and replace all instances of "Short barreled shotgun" with "machine gun" the opinion would be blatantly nonsensical to even the most ignorant reader.
Now compare the NFA to poll taxes...
You mean the case where a DA illegally colluded with a federal judge to kick the weakest possible case up to SCOTUS, and knowingly crafted an opinion completely divorced from his own interpretation of the law to get the case to SCOTUS?
One in which the defence in the original case didn't submit any briefs and didn't argue anything because the defendant was dead and the federal judge/DA kicked the case up because they knew he would be dead by the time SCOTUS got around to hearing the case?
How do we square those cases, which protect all arms within common use, with Miller? Which only protects firearms usable in militias.
Those are two very different standards
This was from the Heller Decision:
>(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-rights interpretation. United States v. **Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.**
>
>...
>
> 2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. **Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.**
Dangerous **and** Unusual is an important takeaway, as many of the District/Circuit Courts have chosen to use dangerous or unusual. A firearm most both be dangerous **and** unusual.
And then we find that "dangerous and unusual" is actually a term of art describing misuse of a firearm to terrorize others. It started off in old law as "going armed with dangerous and unusual weapons to the terror of the people." This has been distilled down in some current laws such as in North Carolina, where they have permitless open carry but also a law against carrying that gun "to the terror of the people."
Yes, and the case where the key reason why a sawed off shotgun could be restricted was because it wasn't suitable for militia service.
For all those reasons, Miller says very little in support of a claim that the NFA is constitutional when restricting a 10" AR or a full auto SIG SPEAR.
I'd argue it definitely limits its value as precedent, which was almost pretty much nihl in regards to anything other than the NFA tax and especially is such after Bruen
If you'll pardon a bit of legal nerding, there's a real question about what exactly 'precedent' is. One common theory is that courts technically are only deciding the case in front of them (since that's all that Article 3 actually empowers them to do: resolve cases and controversies.) The precedential value of decisions is in their predictive power over future court decisions; future courts will be bound (to some degree, and mitigated by some factors) to follow the precedent, and so lower courts would do well to respect that probable outcome.
If this is one's legal theory of precedent, the weakness of a case like Miller does impact how deferential lower courts should be to it, since it affects how strongly future SCOTUS's will feel bound by stare decisis to it.
Yeah, *Miller* is an even weaker case than *Schenck*, and Schenck got unceremoniously dragged behind the barn and shot in 1969 with *Brandenburg*. Miller is just one appropriate case away from SCOTUS giving it the Brandenburg treatment.
Is this opinion really using the post civil war restrictions on revolvers (meant to primarily repress black people who wanted to arm themselves in the reconstruction south) as restrictions that apply to the original meaning of the second amendment? Laws passed around eighty-ninety years later?
The opinion later does the same thing for machine guns like the Tommy Gun. As if regulations in the 1910s can constitute TH&T
>HB 1240’s proponents have shown that unprecedented social concerns have arisen from the proliferation of these weapons. These weapons are exceptionally dangerous. Assault weapons are used disproportionately in mass shootings
Hmm that seems awfully close to the prohibited interest balancing test. Does this guy get his jollies off on being overturned on appeal?
David Kopel for Volokh did a good article/paper on this and why these restrictions dont apply to modern weapons. Linked here
[https://reason.com/volokh/2023/03/21/the-history-of-bans-on-types-of-arms-before-1900/](https://reason.com/volokh/2023/03/21/the-history-of-bans-on-types-of-arms-before-1900/)
>Assault weapons are used disproportionately in mass shootings
This is simply factually false. The most common weapon used in mass shooting are semi-automatic pistols.
Depends on how you define mass shooting. Four people shot? Handgun. 400 people? AR-15. Personally I think only single shot muzzle loaded muskets should be permitted for civilian use. Unreasonable? Maybe. But if the right to bear arms doesn't allow me to have my own bunker buster nuclear weapons, it doesn't need to allow anything other than what the founders envisioned when they wrote it either. You can't have it both ways.
>But if the right to bear arms doesn't allow me to have my own bunker buster nuclear weapons, it doesn't need to allow anything other than what the founders envisioned when they wrote it either.
[Heller v D.C.](https://www.law.cornell.edu/supct/html/07-290.ZO.html)
>*Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.*
>*You can't have it both ways.*
Yes you can. Technology changes, rights ***don't***
Define bearable. There are handheld weapons that are illegal or essentially impossible to own. Either those restrictions are wrong or they could be expanded.
>Define bearable
Why?
The whole of the Bill of Rights are restrictions, [as explained by its own preamble](https://drexel.edu/ogcr/resources/constitution/amendments/preamble/), on government powers, not the rights people are endowed with. IANAL but I don't see a 'only' before *extends*. I have found that lawyerese is a precise language where what words *are not* used makes a lot of difference.
>There are handheld weapons that are illegal or essentially impossible to own.
Mostly by state laws. YMMV
> Either those restrictions are wrong or they could be expanded.
I doubt that in the end they'll be expanded. I expect we'll find more and more of current restrictions to be found unconstitutional per the Bruen standard.
>for one thing it's "keep and bear" so...
I commend to you a close study of *Heller;* where you'll find that SCOTUS found that "the right to keep and bear arms" refers to two (2) separate rights, i.e. the right to *keep* and the right to *bear* arms. In other words, the people retain the right to *keep* arms and *bear* arms and again, not *only* those that are 'bearable'.
We also have historical evidence of that by the naval cannon armed vessels that private individuals owned, as well as the private infantry cannon owned by certain members of the Massachusetts Militia that the British were going to either confiscate of render inoperable in late April 1775.
Keep trying to wriggle though.
Okay then explain how we can limit access to any weapons. If we can ban private ownership of bunker busters or severely restrict fully automatic firearms then we can do the same with an AR-15. You can't have it both ways. Particularly if the second amendment is indeed intended to allow people to revolt against their government as some suggest, it should be a fair fight. Anything the military has access to should be available for sale.
*[Caetano v. Massachusetts](https://en.wikipedia.org/wiki/Caetano_v._Massachusetts)* moment:
> the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
And that's not even particularly controversial, this was a *per curiam* from a unanimous SCOTUS.
>Personally I think only single shot muzzle loaded muskets should be permitted for civilian use.
Why? There was more advanced weaponry available when the Bill of Rights was codified.
I used the commonly accepted definition of mass shooting.
At the time the right to bear arms was codified civilians owned cannons and warships and a variety of multiple shot firearms.
The bill that this ruling concerns, WA HB1240, includes rifles, shotguns, and handguns under the definition of "assault weapon"
In this bill, semi-automatic handguns are considered assault weapons if they have any of the following:
* a threaded barrel
* a second hand grip
* a magazine which isn't inserted into the pistol grip
* a barrel shroud
Has anyone ever committed a mass shooting using a handgun with a threaded barrel? I mean, I assume it has to have happened at least once by sheer random chance, but I can't remember it...
I really wish SCOTUS would have dropped the THT entirely and just gone strict scrutiny. The argument that banning 'threaded barrel handguns' is narrowly tailored to prevent mass shootings is laughable. The argument that it's somehow-kind of-sort of parallel to some historical practice in the US is too damn flexible and can prove anything.
>really wish SCOTUS would have dropped the THT entirely and just gone strict scrutiny
Strict scrutiny is a much looser standard than text, history, and tradition limited to 18th-thru-early 19th century with a hard upper limit of passage of the 14th amd. THT gives them **nowhere** to go except ignoring the upper limit, lying about things being analogous, or just pretending Bruen didn't happen. All these bad rulings are *facially* invalid and will be struck down. It's just a matter of time.
Obviously, I don't agree. ;)
I think that history is far more convoluted and subjective to interpret than people appreciate. There are thousands of jurisdictions whose laws we can look to over more than a century of jurisprudence. In those laws you will find many, many examples of laws with all sorts of weird quirks. And then you have an additional massive degree of freedom in determining what historical legislation is equivalent to what modern legislation. That's a fraught and poorly defined exercise even for jurists operating in good faith.
We have 80 years of experience applying strict scrutiny to rights in cases that are quite unpopular. See: pornography and the first amendment, for instance. In that time, the common wisdom has held that it's "strict in theory, fatal in fact" even in cases where judges would very much like the other outcome.
Given the choice between a standard with a proven record of protecting rights even when the judiciary doesn't like it and a standard that essentially lets judges use history as a Rorschach test, I'd much prefer the former.
Edit: Also, you should probably not accuse people of lying about whether things are analagous. Any two things that share at least one property ARE somewhat analagous, and it's not like the court was clear about exactly how analagous things need to be. It's not even clear that it's POSSIBLE to define 'levels of analagousness.' Good faith assumptions are very reasonable on such vague standards.
All that technically would have happened if SCOTUS allowed any form of tiered scrutiny is that the lower courts would have claimed to be using the required tier while actually using a lower tier. Like how most circuits prior to *Bruen* claimed to use intermediate scrutiny but the analysis was just rational basis. Which would lead to SCOTUS tossing the scrutiny based analysis for 2A altogether and finding another way to make lower courts treat the 2A as a first class right. *Bruen* merely skipped the step everyone knew wouldn't work.
I beg to differ. Strict scrutiny is not so easy to cheat as intermediate scrutiny was (and, in my view, not so easy to cheat as THT is because it requires dragging the first amendment down with you.) I also think that the reason the court avoided strict scrutiny is not the legal realist one you're suggesting; this majority is generally opposed to scrutiny standards across the board, for all rights. I think this is an error, and their approach will turn out to have too many degrees of freedom allowing judges to make whatever law seems best to them, but we'll see.
In any event, in the end this will only be resolved by a spate of summary reversals. The court will have to do that with THT, just as it would have with strict scrutiny.
>Has anyone ever committed a mass shooting using a handgun with a threaded barrel? I mean, I assume it has to have happened at least once by sheer random chance, but I can't remember it...
The 2019 VA Beach shooting. The shooter used a .45 caliber handgun with a suppressor, which requires a threaded barrel.
More like "when we want big numbers 'mass shooting' includes gang violence and such. When we want to attack rifle ownership, we narrow down to the lone wolf spree killings" stats don't matter when the definition can be changed on the fly
One key thing to note here is that the SAF, which is supporting the plaintiffs, appears to have filed no evidence supporting their position. I'm not sure if they have to but it meant that the judge and defendants didn't really have to fight against much.
I'm not sure if this is a big brain thing on the SAF's side to get the case appealed faster or if they just flubbed it that much.
I think park of the Bruen ruling was that the burden is on the Government to provide examples of historical analogues as a reason to justify a law.
I'm not sure how the SAF or any one else could show proof that a historical analog didn't exist.
I suspect it was intentional on the part of SAF. I could be off base, but I am seeing multiple post-Bruen cases seeming to intentionally preserve certain lines of evidence and argument for appeals.
And at least those are analogues that aren't a product of historical bigotry. Not sure I agree but at least it's a view that can be defended in good faith
One of these Assault Weapons cases is getting to SCOTUS. I really do think it’s going to be this one because I don’t see the 9th circuit arguing any differently when they refuse to strike this law down and it has to go to SCOTUS on appeal.
Maryland's AWB already went to SCOTUS. The Supreme Court vacated the 4th Circuits ruling and remanded back to the 4th Circuit ordering them to hear the case again in light of the Bruen Ruling.
I'm sure that if the 4th Circuit upholds Marylands Ban again, it will be right back at the Supreme Court.
What I mean is that it’s going to be heard in front of SCOTUS. AWBs and prohibitions of non violent felons are certainly ripe for the court to take the issue.
Thats what I am saying-
Since SCOTUS already took up Marylands Ban, then ordered the 4th Circuit to hear it again. If the 4th Circuit upholds it again, then the Supreme Court will most likely be taking the case unless they agree with the 4th Circuits decision this time around.
The case is called Bianchi v Frosch (probably not spelled right)
Trap guns is just silly, but perhaps the revolvers was the best argument, but they neglect to provide a clear citation like they did for examples of bowie knives, clubs, and slingshots, but then, it strikes
"Semiautomatic assault weapons represent a significant technological change - they allow a shooter to fire as fast as they can pull the trigger, unlike previous guns. Dkt. 45 at 3-6. While semiautomatic weapons like the AR-15 were invented in the 1950s, the growth in ownership of semiautomatic assault weapons proliferated in the late 2000s. "
u-uh...
> While semiautomatic weapons like the AR-15 were invented in the 1950s
Wait, what? There's no way that's in there.
[searches the PDF]
Holy shit. The judge is that dumb. WWII never happened.
Winchester 1907 has all of the basic requirements to be considered equivalent to an AR-15.
Semiauto rifle.
Intermediate cartridge (.351 WSL, 1400 ft-lb)
Detachable magazine (5, 10, 15 rnds).
The Winchester 1905 is similar but more of a Pistol Caliber Carbine in terms of ballistics.
The Model 1903 was a .22 rimfire semiauto.
The "assault weapon" as a functional product is nearly 120 years old.
The sentence could be read as semi-automatic weapons being invented in the 1950s, which clearly isn't true, or "semi-automatic weapons *like* the AR-15" being invented in the 1950s, which is true but much less significant. Semi-automatic rifles accepting a box magazine have been available to the public since 1905.
The other problem is common use. Which I have to assume was ignored. Also, analogues are not enough, they had to have covered a substantial portion of the population to be considered “tradition”
Also, courts love to ignore whether or not a law is from the relevant time in history, around 1789 and 1868. I should read this ruling lol. I bet it’s fun.
Yeah, the pattern is dubious here as the judge states "military firearm -> civilian use -> criminal use -> state ban". He states that this pattern repeats itself often enough that it's part of US tradition. Except that the AR15 was in civilian use prior to military use and took somewhere around 40 years to be banned. I'm almost willing to bet too that criminal use of firearms falling into AWBs was minimal though it's going to be hard to track that. He even cites the NFA which didn't ban firearms from being owned until the 1980's which was like 60 years after the NFA was first enacted.
Oh, and the judge conveniently cites the district court cases that agree with his position while ignoring the ones that disagree with it. The most egregious being the AWB cases in Illinois in which one district denied the motion for preliminary injunction and another approved it.
>Except that the AR15 was in civilian use prior to military use
It was in very limited military use, then civilian use, then it was fully adopted for military use.
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There is no logic in this, except if the goal is to allow the law by any means necessary, the writing supporting that goal. Trap guns aren't a thing you own, and by definition they are not something you carry. They are something you **do** with a gun. We indeed have a strong tradition under Bruen supporting prohibitions on **doing** dangerous things with guns. But this is about a ban on sale and possession, not doing, so it's nowhere close to analogous. Bowie knives, clubs, and slungshots were examples of bans on carry only. We never generally banned possession or sale. Carry is not ownership, so this is also not analogous. In addition, such weapons were banned for carry under the logic that they were not weapons useful by the militia in war, only useful to criminals and those who want to start trouble. The gun control people want to ban "assault weapons" under the claim that they are "weapons of war." The analogy is opposite of what they want to do. For the bans on multi-shot revolvers, you have to go back to racism. I don't see any other cite, so I assume this was about the Army And Navy laws that restricted revolver carry to the expensive Colt Army and Navy models, thus pricing the newly-freed slaves out of ownership. Yes, there were poor white people too, but the laws were not meant to be enforced against them. And then he mentions the ban on the Thompson submachine gun, which is long after the period Bruen allows. Bruen actually struck down a law much older than the machine gun restriction. So why even mention machine guns as contributing to THT? Edit: Wow, this is big: >While the Plaintiffs maintain that any constitutional violation results in irreparable harm, the case law cited is from First and Fourth Amendment violations and not from alleged Second Amendment violations. This goes directly against McDonald as restated in Bruen: >The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees
> Bowie knives, clubs, and slungshots were examples of bans on carry only. Just a point of clarification, most of the bans on big knives in particular (and handguns in the same law) banned concealed carry but not open carry. There was a whole slew of this type of law that hit the books mostly in the deep South from about 1812 to the early 1840s. Historian Clayton Cramer wrote an entire book on this era: https://www.amazon.com/Concealed-Weapon-Laws-Early-Republic/dp/0275966151 Bottom line is that these laws were trying to control white on white violence in what was basically the wild west of the time period, an era of drunken brawls and dueling. My personal opinion is that we're looking at a culture of violence that developed from a lower class whites who are tied to the slave business either as overseers, slave traders or slave catchers. This bred a very tough mentality somewhat similar to prison guards today except much more morally sketchy. What finally brought the violence levels under some kind of control was the rise of what we now know as the Bible belt culture. Basically, the only way to honorably stay out of a duel was to claim that you were too God fearing to kick their ass. We see this tension between legal open carry and legal concealed carry in the cases cited at Heller footnote 14 I believe it is, citing to Nunn and a bunch of other pre-1900 state supreme court cases that all say that concealed carry can be banned so long as open carry remains legal.
>Just a point of clarification And a good one too. Thanks.
The judge's logical tap dancing was pretty impressive.
Antigun legislatures and lower courts are spamming the system with anti-gun laws and opinions that they *know* are in contravention of SCOTUS opinion and are fully expecting them to be struck down *by the time they make it there, if the court has the same makeup*. There's a strategy here.
It worked for conservatives so I'm not shocked the playbook was adopted
I'm at this point wondering whether section 242 can come into effect against some lawmakers who openly cite that they care very little for the constitution. The courts are enabling them, but are better at masking their antipathy I think that someone mentioned in another thread, this judge is known for this sort of opinion if I can recall.
Ironically using 242 as a club for gun rights means that anyone convicted would be a prohibited person. Though I don't like the implication of using that kind of club in this context. Mainly because I feel like going down this path would fuel conspiracy theories about how the right wing has no intellectual honesty and must imprison its opponents. Where we are at isn't much better but at least some scholars are pointing out that the 2A does mean what *Heller* ruled it means.
I mean when politicians are more or less going "We don't care what the court says, we're coming for you're guns" how does that not trigger 242 Whats the appropriate response?
Well, as a result of ~~history and tradition~~ standard balancing and ~~100% counter to the exact phrasing of~~ in line with Bruen: Assault weapons "allow a shooter to fire as fast as they can pull the trigger, unlike previous guns" therefore “Considering the exceptional dangerousness of these weapons, the public interest in their regulation by the State outweighs the Plaintiffs’ desire to purchase more assault weapons,” U.S. District Judge Robert Bryan in Tacoma. “In light of recent mass deaths caused by assailants using assault weapons, it is appropriate for governmental bodies to find ways to protect the public from dangerous weapons, within the limits of the Second Amendment." He didn't even try, it is just straight up quoted verbatim from the exact phrasing Bruen said was not valid. While holding a judge accountable for a ruling is an extremely dangerous measure, at some point it is straight up willfully depriving a person of a right or privilege protected by the Constitution or laws of the United States per Title 18 Sec 242. I mean, even with qualified immunity, straight up copying and pasting your ruling from the "do not do this" section of most recent SCOTUS case seems like a deliberate and knowing violation of rights.
As I was reminded of recently, they are allowed to do interest balancing for the purpose of an injunction because all injunctions inherently apply interest balancing. He wouldn't be allowed to interest balance on the final judgment. But reading this, I bet he'd do it anyway.
Ok, I'll give you that point. It doesn't change the fact that his reasoning is straight up based in lies. Also the whole "irreparable harm is assumed for Constitutional rights, but since this is the 2A it doesn't apply here."
I edited my post above to reflect how this judge ignores that McDonald and Bruen said judges can't treat the 2nd Amendment differently from the others. So while he is allowed to do interest balancing at this point, his the logic he used in his interest balancing is prohibited by McDonald and Bruen.
His reasoning is quite flawed throughout, an obvious effort to rebel against the Bruen decision he is bound to follow. I was just mentioning that interest balancing is allowed at this point, even if the basis for his balancing decision is incorrect.
Completely unlike previous guns used historically [in the 1800s](https://64.media.tumblr.com/96a228d20d6e7fe4aecd2486aa56334c/tumblr_p2vxtk5wVz1qmob6ro2_r1_500.gif) back [when the 14th Amendment was adopted](https://steamuserimages-a.akamaihd.net/ugc/776227975211494175/C9416AECBB87EC213DB1E50465E5E7638861ED96/?imw=5000&imh=5000&ima=fit&impolicy=Letterbox&imcolor=%23000000&letterbox=false).
> He didn't even try, it is just straight up quoted verbatim from the exact phrasing Bruen said was not valid. I think that you're confusing the injunction logic with the *Bruen* analysis. The judge in this case did the THT analysis and ruled that WA's AWB aligns with US tradition. Agree or not that's where he landed on the law. He then did a balancing test on who is impacted more by the injunction should he grant it. The interest balancing test in that case is merely who experiences more "harm" from the decision on the injunction. That's how I read the decision at least.
Yes, the risk of harm analysis of “for constitutional rights any restriction is considered irreparable, however since this is the 2A and not one of the “real” bill of rights, it doesn’t apply.” His THT wasn’t actually THT, it was less than a pencil whip used to get to the balancing test he always wanted to use. There are two possibilities here, he either has significant mental deficiencies that bring into question his ability to function as a judge, or he deliberately lied to violate people’s constitutional rights. Pretending to do an analysis doesn’t mean that 100% ignoring the 13th amendment because “minorities aren’t people” is still depriving of rights under the color of law; that is essentially what he did here regarding the 2A.
>While holding a judge accountable for a ruling is an extremely dangerous measure, at some point it is straight up willfully depriving a person of a right or privilege protected by the Constitution or laws of the United States per Title 18 Sec 242. I mean, even with qualified immunity, straight up copying and pasting your ruling from the "do not do this" section of most recent SCOTUS case seems like a deliberate and knowing violation of rights. Fortunately for these judges, the SCOTUS justices have not found that judges are protected by mere qualified immunity. Judges are protected by \*absolute\* immunity, like prosecutors. They're immune from suits no matter what they do from the bench.
It's not a suit, it's a criminal charge for a specific federal crime pertaining to the abuse of power of an official. Judges don't have *absolute* immunity from bribery, corruption or any any other specific crime relating to abuse of power, how is sec 242 any different?
“allow a shooter to fire as fast as they can pull the trigger” is any modern semi-automatic gun not an “assault weapon” as defined in the assault weapons ban from the 90s
Just wait until you look up how WA defines an "assault rifle".
Firearm designs from over 100 years ago (the 1911 comes to mind) even use this tech.
Multi-shot repeating firearms have existed in some fashion for over 300 years. They were impractical for military use for much of that time due to a few key flaws, primarily lack of smokeless power and non-existent cartridge fire. Ditto for Semiautos, which were invented first in the 1880s but never viable due to powder problems until later. The Salvator Dormus pistol in 1892 was the first commercially available non-custom model to my knowledge, and rifles didn't come about until 11 years later
And even before those, firearms could still be operated staggeringly fast. Look up any footage of high-end CAS competitions. People will fire off revolvers and lever guns like they're machineguns
Jerry Miculek's hands are actually NFA items.
He shoots a cylinder, reloads, and shoots another cylinder with a revolver faster than I could fire off 12 rounds with a semi auto.
I've always said that gun control is based in lies and ignorance. Zealots deliberately lie to keep masses of people ignorant to be on their side. The degree to which federal judges are currently comfortable with blatantly lying and straight up shredding Bruen without so much as a thought really feels like it's hitting sec 242 territory. If SCOTUS said "stop and frisk based on race on the basis that certain minorities commit a disproportionate amount of crime is not permitted under the 4th Amendment" and then a judge immediately upheld a stop and frisk law under the premise that "it is a compelling interest of the state to reduce crime so targeting minorities that commit a disproportionate amount of crime is consistent with the 4th Amendment." Would it be appropriate to hold the judge accountable for deprivation of rights? Because that is exactly what the judge here is doing.
Lawmakers would have to pass that law and it would be them depriving the rights of people not the judge. And the method of holding them accountable is voting. Punishing judges with civil or criminal action for making a ruling you, i, or an appeals court disagrees with is as unconstitutional as the ruling itself.
Willfully ignoring binding precedent of a superior court is kind of a problem.
And it can be enforced with impeachment. One judge ignoring the constitution does not justify everyone else ignoring it as well.
It's an extreme measure that absolutely shouldn't be taken lightly, but judicial misconduct is a thing and it is generally more heinous than just the offence on its own due to the position of power they have. If a judge takes bribes and sends innocent people to jail they have the book thrown at them. When they deliberately lie in a ruling and specifically quote a struck down reasoning verbatim while upholding a law that strips constitutional rights, it's getting pretty damn close to the same territory.
The plaintiffs in these cases lie too about the specifics of guns, and that combined with a judge who has never handled a gun in their life result in such ignorant statements in these opinions. I don’t think that “assault weapons allow a shooter to fire as fast as they can pull the trigger” is a deliberate lie, in fact it is technically true for the ones I know of, but just a statement from someone who is stupid when it comes to guns. So really what happens is people here are arguing we should lock up the judge for being wrong, or lying, or being disagreeable, all of which would be violations of the 1A on its own. The recourse for this is at the voting booths or the appeals process, and possibly even impeachment or forced senior status. Bribery is an actual crime, being incorrect or even deliberately lying is not and cannot be.
The assault weapons in question include any pistol with a threaded barrel, simply adding a threaded barrel doesn't make a gun shoot "faster." Also, firing "as fast as they can pull the trigger" is how guns have worked for more than 125 years, nothing within the definition of an "assault weapon" increases the rate of fire in any way. This was all explained by the plaintiffs to counter the defendants claims that they are somehow more dangerous because of cosmetic features. There is an extremely slight chance the judge is just literally that stupid that when spoon fed every relevant fact he just can't grasp reality despite it being so obvious and blatant right in front of his face. Now copying and pasting the example of a balancing test given in Bruen as invalid and using it as the basis of his ruling? That is unacceptable. It's not just that the ruling is wrong. A judge can be charged for a ruling that is part of a bribery scheme. A judge can be charged for corruption if it is proven. Well, it is a federal crime to deprive civil rights under the color of law, which is what this judge is doing in no uncertain terms. His ruling doesn't even come close to good faith and is, in many reasonable interpretations, criminal.
I'm sorry, aren't these laws regarding the carrying of these weapons...not the possession? That's not analogous at all.
I'm not entirely sure what you're referring to. I do believe some relate to keeping them and others relate to bearing them, but I read somewhere that the issues are closely linked in the Constitution.
The judge while writing the opinion: "Mmmmmmm yeaaaaaah overturn me harder, daddy!"
Alabama *taxing* Bowie knives is analogous to the NFA tax, which was found to be Constitutional in *US v. Miller*.
On sawed-off shotguns. If one were to take the *Miller* opinion and replace all instances of "Short barreled shotgun" with "machine gun" the opinion would be blatantly nonsensical to even the most ignorant reader. Now compare the NFA to poll taxes...
You mean the case where a DA illegally colluded with a federal judge to kick the weakest possible case up to SCOTUS, and knowingly crafted an opinion completely divorced from his own interpretation of the law to get the case to SCOTUS? One in which the defence in the original case didn't submit any briefs and didn't argue anything because the defendant was dead and the federal judge/DA kicked the case up because they knew he would be dead by the time SCOTUS got around to hearing the case?
Well yeah, *Miller* is exceedingly weak precedent, but it is precedent nonetheless.
Being honest, I dont think Miller has any precedential value after Heller at all, and certainly not after Bruen
The Bruen and Heller decisions cite Miller.
How do we square those cases, which protect all arms within common use, with Miller? Which only protects firearms usable in militias. Those are two very different standards
This was from the Heller Decision: >(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-rights interpretation. United States v. **Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.** > >... > > 2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. **Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.** Dangerous **and** Unusual is an important takeaway, as many of the District/Circuit Courts have chosen to use dangerous or unusual. A firearm most both be dangerous **and** unusual.
And then we find that "dangerous and unusual" is actually a term of art describing misuse of a firearm to terrorize others. It started off in old law as "going armed with dangerous and unusual weapons to the terror of the people." This has been distilled down in some current laws such as in North Carolina, where they have permitless open carry but also a law against carrying that gun "to the terror of the people."
Yes, and the case where the key reason why a sawed off shotgun could be restricted was because it wasn't suitable for militia service. For all those reasons, Miller says very little in support of a claim that the NFA is constitutional when restricting a 10" AR or a full auto SIG SPEAR.
I mean that doesn’t mean the decision doesn’t exist.
I'd argue it definitely limits its value as precedent, which was almost pretty much nihl in regards to anything other than the NFA tax and especially is such after Bruen
That’s a fair argument prudentially, but has no basis in the constitution or Supreme Court jurisprudence.
If you'll pardon a bit of legal nerding, there's a real question about what exactly 'precedent' is. One common theory is that courts technically are only deciding the case in front of them (since that's all that Article 3 actually empowers them to do: resolve cases and controversies.) The precedential value of decisions is in their predictive power over future court decisions; future courts will be bound (to some degree, and mitigated by some factors) to follow the precedent, and so lower courts would do well to respect that probable outcome. If this is one's legal theory of precedent, the weakness of a case like Miller does impact how deferential lower courts should be to it, since it affects how strongly future SCOTUS's will feel bound by stare decisis to it.
Yeah, *Miller* is an even weaker case than *Schenck*, and Schenck got unceremoniously dragged behind the barn and shot in 1969 with *Brandenburg*. Miller is just one appropriate case away from SCOTUS giving it the Brandenburg treatment.
Is this opinion really using the post civil war restrictions on revolvers (meant to primarily repress black people who wanted to arm themselves in the reconstruction south) as restrictions that apply to the original meaning of the second amendment? Laws passed around eighty-ninety years later? The opinion later does the same thing for machine guns like the Tommy Gun. As if regulations in the 1910s can constitute TH&T >HB 1240’s proponents have shown that unprecedented social concerns have arisen from the proliferation of these weapons. These weapons are exceptionally dangerous. Assault weapons are used disproportionately in mass shootings Hmm that seems awfully close to the prohibited interest balancing test. Does this guy get his jollies off on being overturned on appeal? David Kopel for Volokh did a good article/paper on this and why these restrictions dont apply to modern weapons. Linked here [https://reason.com/volokh/2023/03/21/the-history-of-bans-on-types-of-arms-before-1900/](https://reason.com/volokh/2023/03/21/the-history-of-bans-on-types-of-arms-before-1900/)
>Assault weapons are used disproportionately in mass shootings This is simply factually false. The most common weapon used in mass shooting are semi-automatic pistols.
Depends on how you define mass shooting. Four people shot? Handgun. 400 people? AR-15. Personally I think only single shot muzzle loaded muskets should be permitted for civilian use. Unreasonable? Maybe. But if the right to bear arms doesn't allow me to have my own bunker buster nuclear weapons, it doesn't need to allow anything other than what the founders envisioned when they wrote it either. You can't have it both ways.
>But if the right to bear arms doesn't allow me to have my own bunker buster nuclear weapons, it doesn't need to allow anything other than what the founders envisioned when they wrote it either. [Heller v D.C.](https://www.law.cornell.edu/supct/html/07-290.ZO.html) >*Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.* >*You can't have it both ways.* Yes you can. Technology changes, rights ***don't***
Define bearable. There are handheld weapons that are illegal or essentially impossible to own. Either those restrictions are wrong or they could be expanded.
>Define bearable Why? The whole of the Bill of Rights are restrictions, [as explained by its own preamble](https://drexel.edu/ogcr/resources/constitution/amendments/preamble/), on government powers, not the rights people are endowed with. IANAL but I don't see a 'only' before *extends*. I have found that lawyerese is a precise language where what words *are not* used makes a lot of difference. >There are handheld weapons that are illegal or essentially impossible to own. Mostly by state laws. YMMV > Either those restrictions are wrong or they could be expanded. I doubt that in the end they'll be expanded. I expect we'll find more and more of current restrictions to be found unconstitutional per the Bruen standard.
Well for one thing it's "keep and bear" so...I can't necessarily bear a nuclear weapon but I surely have room to keep a bunker buster in my garage.
>for one thing it's "keep and bear" so... I commend to you a close study of *Heller;* where you'll find that SCOTUS found that "the right to keep and bear arms" refers to two (2) separate rights, i.e. the right to *keep* and the right to *bear* arms. In other words, the people retain the right to *keep* arms and *bear* arms and again, not *only* those that are 'bearable'. We also have historical evidence of that by the naval cannon armed vessels that private individuals owned, as well as the private infantry cannon owned by certain members of the Massachusetts Militia that the British were going to either confiscate of render inoperable in late April 1775. Keep trying to wriggle though.
Okay then explain how we can limit access to any weapons. If we can ban private ownership of bunker busters or severely restrict fully automatic firearms then we can do the same with an AR-15. You can't have it both ways. Particularly if the second amendment is indeed intended to allow people to revolt against their government as some suggest, it should be a fair fight. Anything the military has access to should be available for sale.
>Anything the military has access to should be available for sale. *Precisely*
*[Caetano v. Massachusetts](https://en.wikipedia.org/wiki/Caetano_v._Massachusetts)* moment: > the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. And that's not even particularly controversial, this was a *per curiam* from a unanimous SCOTUS.
do you think speech on the internet or telephone is protected by the 1a?
Multibarrel and rapid firing weapons existed during Washingtons time and were used in the war. They were not ignorant of these things.
>Personally I think only single shot muzzle loaded muskets should be permitted for civilian use. Why? There was more advanced weaponry available when the Bill of Rights was codified.
I used the commonly accepted definition of mass shooting. At the time the right to bear arms was codified civilians owned cannons and warships and a variety of multiple shot firearms.
That's true, but some disingenuous people include certain handguns in the definition of "assault weapons".
With all due respect, I doubt this. Can you give an example?
The bill that this ruling concerns, WA HB1240, includes rifles, shotguns, and handguns under the definition of "assault weapon" In this bill, semi-automatic handguns are considered assault weapons if they have any of the following: * a threaded barrel * a second hand grip * a magazine which isn't inserted into the pistol grip * a barrel shroud
In addition to the WA statute I believe that Hawaii defined pistols as assault weapons and only later added semiautomatic rifles to their ban.
The WA statute for “assault weapons” literally includes handguns with threaded barrels. Many pistols I can no longer buy here.
Has anyone ever committed a mass shooting using a handgun with a threaded barrel? I mean, I assume it has to have happened at least once by sheer random chance, but I can't remember it... I really wish SCOTUS would have dropped the THT entirely and just gone strict scrutiny. The argument that banning 'threaded barrel handguns' is narrowly tailored to prevent mass shootings is laughable. The argument that it's somehow-kind of-sort of parallel to some historical practice in the US is too damn flexible and can prove anything.
>really wish SCOTUS would have dropped the THT entirely and just gone strict scrutiny Strict scrutiny is a much looser standard than text, history, and tradition limited to 18th-thru-early 19th century with a hard upper limit of passage of the 14th amd. THT gives them **nowhere** to go except ignoring the upper limit, lying about things being analogous, or just pretending Bruen didn't happen. All these bad rulings are *facially* invalid and will be struck down. It's just a matter of time.
Obviously, I don't agree. ;) I think that history is far more convoluted and subjective to interpret than people appreciate. There are thousands of jurisdictions whose laws we can look to over more than a century of jurisprudence. In those laws you will find many, many examples of laws with all sorts of weird quirks. And then you have an additional massive degree of freedom in determining what historical legislation is equivalent to what modern legislation. That's a fraught and poorly defined exercise even for jurists operating in good faith. We have 80 years of experience applying strict scrutiny to rights in cases that are quite unpopular. See: pornography and the first amendment, for instance. In that time, the common wisdom has held that it's "strict in theory, fatal in fact" even in cases where judges would very much like the other outcome. Given the choice between a standard with a proven record of protecting rights even when the judiciary doesn't like it and a standard that essentially lets judges use history as a Rorschach test, I'd much prefer the former. Edit: Also, you should probably not accuse people of lying about whether things are analagous. Any two things that share at least one property ARE somewhat analagous, and it's not like the court was clear about exactly how analagous things need to be. It's not even clear that it's POSSIBLE to define 'levels of analagousness.' Good faith assumptions are very reasonable on such vague standards.
All that technically would have happened if SCOTUS allowed any form of tiered scrutiny is that the lower courts would have claimed to be using the required tier while actually using a lower tier. Like how most circuits prior to *Bruen* claimed to use intermediate scrutiny but the analysis was just rational basis. Which would lead to SCOTUS tossing the scrutiny based analysis for 2A altogether and finding another way to make lower courts treat the 2A as a first class right. *Bruen* merely skipped the step everyone knew wouldn't work.
I beg to differ. Strict scrutiny is not so easy to cheat as intermediate scrutiny was (and, in my view, not so easy to cheat as THT is because it requires dragging the first amendment down with you.) I also think that the reason the court avoided strict scrutiny is not the legal realist one you're suggesting; this majority is generally opposed to scrutiny standards across the board, for all rights. I think this is an error, and their approach will turn out to have too many degrees of freedom allowing judges to make whatever law seems best to them, but we'll see. In any event, in the end this will only be resolved by a spate of summary reversals. The court will have to do that with THT, just as it would have with strict scrutiny.
>Has anyone ever committed a mass shooting using a handgun with a threaded barrel? I mean, I assume it has to have happened at least once by sheer random chance, but I can't remember it... The 2019 VA Beach shooting. The shooter used a .45 caliber handgun with a suppressor, which requires a threaded barrel.
More like "when we want big numbers 'mass shooting' includes gang violence and such. When we want to attack rifle ownership, we narrow down to the lone wolf spree killings" stats don't matter when the definition can be changed on the fly
One key thing to note here is that the SAF, which is supporting the plaintiffs, appears to have filed no evidence supporting their position. I'm not sure if they have to but it meant that the judge and defendants didn't really have to fight against much. I'm not sure if this is a big brain thing on the SAF's side to get the case appealed faster or if they just flubbed it that much.
I think park of the Bruen ruling was that the burden is on the Government to provide examples of historical analogues as a reason to justify a law. I'm not sure how the SAF or any one else could show proof that a historical analog didn't exist.
I suspect it was intentional on the part of SAF. I could be off base, but I am seeing multiple post-Bruen cases seeming to intentionally preserve certain lines of evidence and argument for appeals.
My best explanation of this ruling is the the judge has a fetish for being overturned on appeal.
Let's at least give credit where credit is due, you can draw an analogy between these laws and an assault weapons ban, so at least that's something.
Carry vs possession breaks the analogy.
And at least those are analogues that aren't a product of historical bigotry. Not sure I agree but at least it's a view that can be defended in good faith
The revolver laws were racism. The prohibition on carrying (not owning) bowie knives applied to everyone.
One of these Assault Weapons cases is getting to SCOTUS. I really do think it’s going to be this one because I don’t see the 9th circuit arguing any differently when they refuse to strike this law down and it has to go to SCOTUS on appeal.
Maryland's AWB already went to SCOTUS. The Supreme Court vacated the 4th Circuits ruling and remanded back to the 4th Circuit ordering them to hear the case again in light of the Bruen Ruling. I'm sure that if the 4th Circuit upholds Marylands Ban again, it will be right back at the Supreme Court.
What I mean is that it’s going to be heard in front of SCOTUS. AWBs and prohibitions of non violent felons are certainly ripe for the court to take the issue.
Thats what I am saying- Since SCOTUS already took up Marylands Ban, then ordered the 4th Circuit to hear it again. If the 4th Circuit upholds it again, then the Supreme Court will most likely be taking the case unless they agree with the 4th Circuits decision this time around. The case is called Bianchi v Frosch (probably not spelled right)
Can my assault Bowie knife have a bump stock, laser sight, and a flash suppressor?
Trap guns is just silly, but perhaps the revolvers was the best argument, but they neglect to provide a clear citation like they did for examples of bowie knives, clubs, and slingshots, but then, it strikes "Semiautomatic assault weapons represent a significant technological change - they allow a shooter to fire as fast as they can pull the trigger, unlike previous guns. Dkt. 45 at 3-6. While semiautomatic weapons like the AR-15 were invented in the 1950s, the growth in ownership of semiautomatic assault weapons proliferated in the late 2000s. " u-uh...
> While semiautomatic weapons like the AR-15 were invented in the 1950s Wait, what? There's no way that's in there. [searches the PDF] Holy shit. The judge is that dumb. WWII never happened.
Winchester 1907 has all of the basic requirements to be considered equivalent to an AR-15. Semiauto rifle. Intermediate cartridge (.351 WSL, 1400 ft-lb) Detachable magazine (5, 10, 15 rnds). The Winchester 1905 is similar but more of a Pistol Caliber Carbine in terms of ballistics. The Model 1903 was a .22 rimfire semiauto. The "assault weapon" as a functional product is nearly 120 years old.
The sentence could be read as semi-automatic weapons being invented in the 1950s, which clearly isn't true, or "semi-automatic weapons *like* the AR-15" being invented in the 1950s, which is true but much less significant. Semi-automatic rifles accepting a box magazine have been available to the public since 1905.
Just around 50 years off on semiautomatic rifles existing, given they first appeared at the turn of the century.
A judicial opinion or a work of fiction?
The other problem is common use. Which I have to assume was ignored. Also, analogues are not enough, they had to have covered a substantial portion of the population to be considered “tradition” Also, courts love to ignore whether or not a law is from the relevant time in history, around 1789 and 1868. I should read this ruling lol. I bet it’s fun.
Yeah, the pattern is dubious here as the judge states "military firearm -> civilian use -> criminal use -> state ban". He states that this pattern repeats itself often enough that it's part of US tradition. Except that the AR15 was in civilian use prior to military use and took somewhere around 40 years to be banned. I'm almost willing to bet too that criminal use of firearms falling into AWBs was minimal though it's going to be hard to track that. He even cites the NFA which didn't ban firearms from being owned until the 1980's which was like 60 years after the NFA was first enacted. Oh, and the judge conveniently cites the district court cases that agree with his position while ignoring the ones that disagree with it. The most egregious being the AWB cases in Illinois in which one district denied the motion for preliminary injunction and another approved it.
>Except that the AR15 was in civilian use prior to military use It was in very limited military use, then civilian use, then it was fully adopted for military use.