If a Weapon is in Common Use, Heller and Caetano Protect it from Gun Control Laws

BY Herschel Smith
1 year, 1 month ago

I should be more specific and say that those weapons are protected from bans.

“Under Bruen and Heller, the irreducible minimum of the Second Amendment is this: States may not ban arms that millions of Americans possess for lawful purposes. That most basic of principles dooms HB 5471. The Court should grant Plaintiffs’ motion for a preliminary injunction.”

“The Second Amendment secures “the right of the people to keep and bear Arms.” U.S. Const. amend. II. And as the Supreme Court made clear last year, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.Ct. 2111, 2126 (2022). The first question this Court must ask in analyzing HB 5471 is thus whether the firearms and magazines the statute bans fit within “the Second Amendment’s definition of ‘arms.’” Id. at 2132. After all, one can neither “keep” nor “bear” what one cannot acquire or possess in the first place. If the answer to that first question is yes (which it plainly is, see infra pp.1-6), the Court must then ask whether the firearms and magazines HB 5471 bans are “highly unusual in society at large” today. Id. at 2143 (quoting Heller v. Dist. of Columbia, 554 U.S. 570, 627 (2008)). If the answer to that question is no (which it plainly is, see infra pp.6-11), then the inquiry is over and the statute is invalid, because a state may not “prohibit[] … an entire class of ‘arms’ that is overwhelmingly chosen by American society for [a] lawful purpose.” Heller, 554 U.S. at 628; see also Bruen, 142 S.Ct. at 2128, 2143 (“[T]he Second Amendment protects … weapons that are unquestionably in common use today.”).”

“The rifles, pistols, and shotguns that HB 5471 flatly bans, see 720 ILCS 5/24-1.9(a)(1), (b)-(c), obviously fit that bill. Indeed, if the most ubiquitous firearms in America do not even fall within the ambit of the Second Amendment, then Bruen, Heller, and the Amendment itself mean nothing. The AG nonetheless contends that the firearms HB 5471 bans are not “Arms” covered by the Second Amendment because (he says) “they are not commonly used for self-defense” today and were not “in common use at the time the Second or Fourteenth Amendments were ratified.” AG.Br.2, 16. The first argument is analytically confused; as for the second, the Supreme Court has twice “rejected” it as “‘bordering on the frivolous.’” Caetano v. Massachusetts, 577 U.S. 411, 414 (2016) (Alito, J., concurring) (quoting Heller, 554 U.S. at 582); see id. at 411-12 (per curiam).”

Read the whole brief to the court.


Comments

  1. On March 27, 2023 at 9:51 pm, Mario said:

    Excellent article, I’ve just posted it on Gab. Great work, thank you.
    M-Dawg

  2. On March 28, 2023 at 10:24 am, Frank Clarke said:

    “If society is honest and historically accurate, the only question that has any relevance to the gun control debate is: “Do you trust those in government, now and forever in the future, to not take your life, liberty, or property through the force of government?” If the answer to that quesion is ‘no’, the gun control debate is over.” —KrisAnne Hall, JD

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You are currently reading "If a Weapon is in Common Use, Heller and Caetano Protect it from Gun Control Laws", entry #34475 on The Captain's Journal.

This article is filed under the category(s) Second Amendment and was published March 27th, 2023 by Herschel Smith.

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