Archive for the 'Second Amendment' Category

David Codrea.

This is where our “gun rights leaders” may have painted us into a corner, by seizing on the criteria of being “in common use at the time” as the standard to determine if a gun ban violates the Second Amendment. It was never intended as a popularity contest.

Since no innovation ever begins “in common use,” a government with the power to do so can ban all new weapon developments from those they would rule, retaining them exclusively for itself. Remember the core purpose of the Second Amendment. To argue the Founders thought sending an outmatched yeomanry to their slaughter would be “necessary to the security of a free State” is insane.

I know that David has had problems with it when Mark Smith uses the “in common use” argument, and properly so, although Mark would say that we need to win the fights we can when we can and tackle the next one using another scheme, or something along those lines.

I wish there was another way to argue this, and in fact, David has suggested it. The government knew that the yeomanry had “weapons of war” and always has and never had a problem with it. I agree, and have pointed out the obvious, to wit, the notion that the founders would have wanted their fellow freedom fighters limited by weapon is ridiculous. Since the founders were the ones who were alive at the time of the BoR, they certainly wouldn’t have read the 2A that way.

I have also pointed out before that Heller – the genesis of the in common use argument – was a weak ruling. This hasn’t won me any friends over the years, but I stand by my position. Citing David Williams, Indiana University Maurer School of Law …

Heller offers a Second Amendment cleaned up so that it can safely be brought into the homes of affluent Washington suburbanites who would never dream of resistance-they have too much sunk into the system–but who might own a gun to protect themselves from the private dangers that, they believe, stalk around their doors at night. Scalia commonly touts his own judicial courage, his willingness to read the Constitution as it stands and let the chips fall where they may. But Heller is noteworthy for its cowardice.

Those are strong words, but he’s right on with every one of them.

David Codrea.

“Trump administration says machine guns aren’t protected by Second Amendment,” The Washington Times reports. “The Trump administration is taking heat from gun rights advocates after the Justice Department argued in court that machine guns fall outside the scope of firearms guaranteed by the Second Amendment.”

The story quotes Assistant U.S. Attorney Jennifer Case, who, in arguing a brief in the Fifth Circuit Court of Appeals to overturn a lower court ruling, asserted “Machine guns are not the kind of arms protected by the Second Amendment.”

District Judge Carlton Wayne Reeves of the United States District Court for the Southern District of Mississippi had properly ruled that the Supreme Court’s Bruen decision, codifying that text, history and tradition at the time the Constitution was ratified, defined the standards to be used in determining Founding Era intent.

Besides, the Second Amendment says “arms.” It doesn’t say “kinds of arms.” Continental Congress Delegate Tench Coxe’s views were reflective of what the understanding was at the time, when he wrote, “Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…. [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”

Yes, and a thousand times yes.

Theoretically David is of course right. But here’s the issue.

The SCOTUS will not move on this – they won’t even move on Snope, at least not quickly.

The SCOTUS is very, very dependent on what Congress says about things like this. They don’t like to lead the way. They have their finger in the wind on just about every issue before them.

There is zero interest in Congress in this issue. Even if the FedGov loses in court, the SCOTUS will turn it around.

If it never gets to the SCOTUS it will stop at the fifth circuit and the ATF will ignore the ruling and no other circuit will honor it.

The second amendment has been made palatable for the beltway types who want the peasants happy enough, suppressed and taxed to death. So that’s what they have with all of the congressional laws and SCOTUS decisions.

Until of course they get scared of semiautomatic weapons, and then the states pile of those giving us things like the Snope case that the supreme court refuses to deal with.

GOA.

Gun Owners of America (GOA) is proud to announce the successful passage of SB1360/HB073 in the Tennessee General Assembly—legislation aimed at significantly strengthening legal protections for Tennessee-based members of the firearms industry. The bill, which was backed by GOA, passed both chambers with overwhelming majorities on April 15 and now awaits the governor’s signature. 

This critical legislation enhances Tennessee’s version of the Protection of Lawful Commerce in Arms Act (PLCAA), creating stronger legal immunity for firearm businesses targeted by the radical anti-gun lobby. It sends a clear message: Tennessee is a safe haven for lawful firearms commerce and won’t be used as a collection arm for unconstitutional out-of-state rulings. 

The new bill fortifies the state’s 2023 PLCAA law in multiple ways: 

• Expands legal protections to include additional industry players, including private sellers, suppressor manufacturers, and magazine producers. 

• Prohibits Tennessee courts from recognizing or enforcing out-of-state or foreign court judgments that conflict with Tennessee’s pro-Second Amendment public policy. 

• Penalizes bad-faith litigation by imposing triple damages on out-of-state plaintiffs and their attorneys who attempt to enforce hostile judgments in Tennessee courts—an unprecedented safeguard for gun rights advocates and businesses. 

Doing the work that other states, the FedGov and the courts refuse to do.

David Codrea has a great find on a recent petition for writ of certiorari before the supreme court concerning D.C.’s limit on magazine capacity. Here is the document.

But by rewriting Heller’s “in common use” test to add a dangerousness element, lower courts have continued to interest balance under a different name. At bottom, lower courts have decided that criminal misuses of firearms (as in mass shootings) justify complete bans on certain arms. They then use questionable analogical reasoning to justify that result. Both Heller and Bruen already rejected that sort of “subjective dangerousness” reasoning, and the Court should do so again here. And while the majority below said that the plus-ten magazine ban was comparable to laws that addressed weapons capable of unprecedented lethality, it could only get there by limiting the Second Amendment solely to individual self-defense. Viewing the Second Amendment through the correct lens—that it protects the right to bear arms for community defense, too—the historical analogues the majority relied on below fail.

The decision here shows that analogies under Bruen are helpful only when courts have an underlying theory about how to identify the relevant similarity. Unfortunately, many courts still don’t grasp the underlying principles of the Second Amendment.

[ … ]

By adding a dangerousness test designed to override the “in common use” test, courts have adopted “the very sort of means-end scrutiny that Bruen explicitly forbids courts from applying in the Second Amendment context.” Bianchi, 111 F.4th at 479 (Gregory, J., concurring). Nothing has changed except that courts now “cloak[] interest balancing under the guise of ‘tradition.’” Duncan, 2025 WL 867583, at *47 (Bumatay, J., dissenting) (comparing Ninth Circuit’s analysis pre- and post-Bruen and noting “little” change). Worse, “even the regulations that failed in Heller or Bruen would survive” the lower courts’ dangerousness test. Id. at *52 (VanDyke, J., dissenting).

Even if analogies were necessary here, they weren’t used correctly. To analogize well, courts need to know the Second Amendment’s purpose. Heller confirmed that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592. Although Heller clarified that the Second Amendment covers individual self-defense, it noted other lawful purposes for keeping and bearing arms, such as preserving the militia and hunting. Id. at 599. But after Heller and Bruen, courts have narrowed the Second Amendment to protect only keeping and bearing arms for individual self-defense against crime.

This petition is very well written. I wish it had been written for AR-15 bans and they had petitioned the court to hear Snope.

I commend this for your reading today. It smashes the “in common use” test as applied only to individuals. It specifically states what we all know and need to be addressed. The court either recognizes the role of militia or it doesn’t. If so, then good. If not, then they will have completely given up any legitimacy to caring what the words of the 2A say.

Dean Weingarten has a good find at Ammoland.

Judge Eduardo Ramos, the U.S. District Judge for the Southern District of New York,  has issued an Opinion & Order that a ban on stun guns is constitutional. A New York State law prohibits the private possession of stun guns and tasers; a New York City law prohibits the possession and selling of stun guns. Judge Ramos has ruled these laws do not infringe on rights protected by the Second Amendment of the United States Constitution.

Let’s briefly revisit statements made by Justice Roberts concerning the authority of the court.

U.S. Supreme Court Chief Justice John Roberts on Tuesday warned about a rising number of threats to the judiciary’s independence, including calls for violence against judges and “dangerous” suggestions by elected officials to disregard court rulings they disagree with.

He didn’t just come out with this statement once, but felt obligated to reiterate his concerns in March of this year.

“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose,” Roberts said in the statement.

Make no mistake. He’s saying the same thing regardless of how the caution is worded. This is remarkable since the NY court decision is clearly in contravention of the Caetano ruling. Let’s quote.

The Court has held that “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,” District of Columbia v. Heller, 554 U.S. 570, 582, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U.S. 742, 750, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N.E.3d 688, 691 (2015).

The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.”

Id., at 781, 26 N.E.3d, at 693. This is inconsistent with Heller ‘s clear statement that the Second Amendment “extends … to … arms … that were not in existence at the time of the founding.” 554 U.S., at 582, 128 S.Ct. 2783.

The court next asked whether stun guns are “dangerous per se at common law and unusual,” 470 Mass., at 781, 26 N.E.3d, at 694, in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller, 554 U.S., at 627, 128 S.Ct. 2783 ; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ “). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” 470 Mass., at 781, 26 N.E.3d, at 693–694. By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.

Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” 470 Mass., at 781, 26 N.E.3d, at 694. But Heller rejected the proposition “that only those weapons useful in warfare are protected.” 554 U.S., at 624–625, 128 S.Ct. 2783.

For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

Thus, the hearing was granted. This is their conclusion.

The lower court’s ill treatment of Heller cannot stand. The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense. The Su preme Judicial Court suggested that Caetano could have simply gotten a firearm to defend herself. 470 Mass., at 783, 26 N. E. 3d, at 695. But the right to bear other weap ons is “no answer” to a ban on the possession of protected arms. Heller, 554 U. S., at 629. Moreover, a weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself. Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding.

Countless people may have reservations about using deadly force, whether for moral, religious, or emotional reasons—or simply out of fear of killing the wrong person. See Brief for Arming Women Against Rape & Endanger ment as Amicus Curiae 4–5. “Self-defense,” however, “is a basic right.” McDonald, 561 U. S., at 767. I am not pre pared to say that a State may force an individual to choose between exercising that right and following her con science, at least where both can be accommodated by a weapon already in widespread use across the Nation.

A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsi est of grounds. This Court’s grudging per curiam now sends the case back to that same court. And the conse quences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self defense. See Pet. for Cert. 14.

If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.

This was a Per Curiam judgment, with the citations above belonging to Alito, with Thomas concurring. Lyle Denniston writes that “The Second Amendment expands, but maybe not by much.” I disagree.

The criteria was clear. Stun guns are “in common use for lawful purposes.” Thus, they are protected by the second amendment as the supreme court found in Heller and McDonald. For a weapon to be disallowed, it must be dangerous and unusual (according to the decision). Alito found that stun guns were not unusual.

Neither are AR-15s for that matter. Yet the fourth circuit concluded that a ban on them didn’t violate second amendment rights. That case is currently before the supreme court, having been redistributed for conference nine times (Snope v Brown). The supreme court is apparently too cowardly to take this case up and declare once and for all that AR-15s are not dangerous and unusual.

[Here I understand that other things might be going on. Thomas and Alito might know that they don’t have the support of the other justices, and don’t want bad precedent to be established. Even the supposed “libertarian” justice Gorsuch was heard suggesting in oral arguments on the bump stock ban case that congress ought to make them illegal.]

How ironic is it that the court system is allowing an inferior court to completely ignore its ruling in Caetano (or at least, the inferior court judge doesn’t care what Caetano says, and that judge certainly knew about the precedent), and that the court is allowing the fourth circuit to contravene its rulings in Heller, McDonald and Bruen by declaring an AR-15 ban constitutional, while striking out at the executive for suggesting that the court system needs reform?

What’s not surprising is that the executive might need to ignore the courts. What’s ironic is that not even the courts pay attention to the courts. They can’t even get their own house in order. Openly flouting supreme court precedent by the inferior courts is about as disorderly and vulgar as one can imagine.

Roberts has no right to criticize the executive until he cleans house. It should have been embarrassing to have issued those statements.

What a sham. Here is the decision.

I understand what happened. The lawyers took this up under the administrative procedures issue. Hindsight is 20-20, but I wish they had taken it up under the 2A. Even if we had lost, it would have prevented the justices from hiding under administrative procedures and fully come out of the closet as anti-2A. Even the great “libertarian” justice Gorsuch is on record during the bump stock oral arguments suggesting that the Congress should take action to make them illegal.

But if we implement my recommendations, there’s still a lot to be gained.

This would give us Judge James Ho and Don Willett. And the SCOTUS could be overruled by the fifth circuit. It's a win-win!

— CaptainsJournal (@BrutusMaximus50) March 27, 2025

This is his video explaining his dissent. I won’t like all of the articles where “legal experts” were aghast that he would do such a thing. I found it all quite amusing, but I won’t give them traffic for their stupidity.

What I did find most interesting is that the judge called out the ignorance of his fellow judges over video. He rocks. His fellow judges are jammed, and he comes out looking like the one who knows what he’s talking about.

But it simply could be that the other judges aren’t really that stupid and know what they’re doing. They’re just controllers at heart. Judge Van Dyke’s dissent video is still good medicine for this malfeasance.

I wouldn’t have been as nice and amiable as Judge Van Dyke. I would have engaged in name calling.

Enjoy.

Source.

A controversial proposal to repeal a law that prevents people under age 21 from buying rifles and shotguns in Florida is positioned to go to the full House, but the issue remains on hold in the Senate. The Republican-controlled House Judiciary Committee on Thursday voted 16-6 to approve the bill (HB 759), which would lower the minimum age to purchase rifles and other long guns from 21 to 18. Rep. Hillary Cassel, R-Dania Beach, joined Democrats in opposing the bill.

The Legislature and then-Gov. Rick Scott increased the minimum age for gun purchases to 21 after the 2018 mass shooting at Parkland’s Marjory Stoneman Douglas High School that killed 17 people. The House approved repeal bills in 2023 and 2024, but the measures did not get through the Senate. With the Legislature ending its third week of this year’s regular session, a Senate bill (SB 920) that would roll back the age limit has not been heard in committees. Asked about the issue Wednesday, Senate President Ben Albritton, R-Wauchula, tearfully recalled walking the halls of Marjory Stoneman Douglas High School and seeing damage from the mass shooting. But he also said he takes serious Second Amendment rights and is a lifetime National Rifle Association member. “I don’t have an answer for that right now,” Albritton said. “Like I do everything. I am thinking this through.”

Bah. Lifetime NRA member. So much for 2A rights. He should have been ejected from the NRA long ago if it was worth anything.

Next up, open carry.

Would be great to see it hit my desk — Florida needs to join the overwhelming majority of states and protect this right… https://t.co/IVB1lOwUEO

— Ron DeSantis (@GovRonDeSantis) January 31, 2025

I don’t know if I believe that Florida Sheriffs support open carry, but the police sure don’t. They align with the controllers every time.

It’s a fight in Florida and has been for a very long time.

Ron Desantis could end it instantly and once and for all. He could refuse to sign another bill, including budget, until an open carry bill hits his desk for signature. He could do the same thing for age restrictions.

I don’t know. Len Savage sends this.

I guess it’s complicated, but according to Mike, it would be a good thing for suppressors to remain under consideration as firearms because then it warrants 2A protection.

I still want to see suppressors off the NFA. For hearing protection. For me. For the children.

Slate.

It seemed inevitable that these decisions would build a consensus that the Supreme Court might embrace—until Friday, when a court broke from the pack in a surprise decision. By an 8–4 vote, the U.S. Court of Appeals for the 11^th Circuit last week upheld Florida’s law prohibiting 18- to 20-year-olds from buying guns. Better yet, the court’s opinion was authored by Chief Judge William Pryor, a highly influential George W. Bush appointee. Pryor’s decision is doggedly originalist, a meticulous history lesson that proves the constitutionality of Florida’s ban beyond all reasonable doubt. It might just be persuasive enough to convince his ideological allies on the Supreme Court to uphold this lifesaving limit on the right to bear arms.

It is hard to overstate the significance of these words coming from the pen of a deeply conservative, dyed-in-the-wool Federalist Society stalwart like Pryor. He is arguably the most influential appeals court judge active today: Supreme Court justices regularly cite him by name, invoking his authority to bolster their own arguments—a rare honor reserved for marquee lower-court jurists.

To me, he’s a nobody. I couldn’t care less about him, nor do I play the same game as the “justices” on the supreme court.

I would have thought that Judge James Ho or Judge Don Willett would be much better buddies than Pryor.

As for age, David Codrea has this to say.

We’re sure about that?

No, they’re not sure. They just made it up.

The over-mountain men were pulling in crops and couldn’t go to meet the British forces. They sent their sons. The women lined the roads and sang hymns as they sent their sons off to battle. Their sons won. Thus ended the plans by Cornwallis to use loyalists to win the war.

— CaptainsJournal (@BrutusMaximus50) March 17, 2025