WA AWB Case

[jcutonilli]

Apparently one of the WA AWB cases had their PI denied. It seems that none of the plaintiffs in these post Bruen cases want to address why certain historical arms were banned and they wind up losing because of it. Luckily it is only a PI and not on the merits.

 

[press1280]

Sounds like they are trying to just re-package the pre-Bruen interest balancing tests

 

[jcutonilli]

Sounds like they are trying to just re-package the pre-Bruen interest balancing tests

The problem with that interpretation is that it is not supported by the opinion. The judge never tries to balance one interest against another. The judge straight up determines that the new regulations are relevantly similar to the historical regulations which is straight out of Bruen.

 

[teratos]

The problem with that interpretation is that it is not supported by the opinion. The judge never tries to balance one interest against another. The judge straight up determines that the new regulations are relevantly similar to the historical regulations which is straight out of Bruen.

Which historical regulations ban a class of firearms which are in common use?

 

[Garet Jax]

Not sure this is bad news. It might finally inspire SCOTUS to step in and do something about the rogue states. At some point this has to be worked out. None of the leftists states are following the direction from Bruen. If they aren't forced to, then the direction is meaningless.

 

[jcutonilli]

Which historical regulations ban a class of firearms which are in common use?

The judge is claiming that dangerous and unusual trumps in common use. None of this is well defined and the judge is making his own determination.

The specific regulations in question are related to prohibitions on Bowie knives. The plaintiffs were silent on the issue in their initial PI motion. They tried to dismiss the relevance of these prohibitions in their reply brief by arguing the prohibitions were not as extensive as the defendants make them out to be. They did this in one paragraph.

Not a good way to address such an important issue.

 

[alucard0822]

We allowed them to ignore the Constitution for a century, what makes people think they won't ignore a SCOTUS ruling.

 

[jcutonilli]

We allowed them to ignore the Constitution for a century, what makes people think they won't ignore a SCOTUS ruling.

Defying a SCOTUS ruling happens more than people realize. It took almost a decade for some schools/counties to abide by the Brown v Board of Education case.

Brown v. Board of Education - Wikipedia

en.wikipedia.org

 

[teratos]

The judge is claiming that dangerous and unusual trumps in common use. None of this is well defined and the judge is making his own determination.

The specific regulations in question are related to prohibitions on Bowie knives. The plaintiffs were silent on the issue in their initial PI motion. They tried to dismiss the relevance of these prohibitions in their reply brief by arguing the prohibitions were not as extensive as the defendants make them out to be. They did this in one paragraph.

Not a good way to address such an important issue.

Thanks for the thorough reply.

 

[kcbrown]

The judge is claiming that dangerous and unusual trumps in common use. None of this is well defined and the judge is making his own determination.

The specific regulations in question are related to prohibitions on Bowie knives. The plaintiffs were silent on the issue in their initial PI motion. They tried to dismiss the relevance of these prohibitions in their reply brief by arguing the prohibitions were not as extensive as the defendants make them out to be. They did this in one paragraph.

Not a good way to address such an important issue.

Did the Bowie knife regulations prohibit sale or ownership of Bowie knives or just carry of them in public?

It matters, a lot. The AWB laws can’t legitimately be considered to be analogous to the Bowie knife laws if the latter cover only carry in public.

The “dangerous and unusual” purpose has generally been used against carry in public. If that justification has been used against ownership or commerce, then what founding era laws did so?


Sent from my iPhone using Tapatalk

 

[jcutonilli]

Did the Bowie knife regulations prohibit sale or ownership of Bowie knives or just carry of them in public?

It matters, a lot. The AWB laws can’t legitimately be considered to be analogous to the Bowie knife laws if the latter cover only carry in public.

The “dangerous and unusual” purpose has generally been used against carry in public. If that justification has been used against ownership or commerce, then what founding era laws did so?


Sent from my iPhone using Tapatalk

I have not looked closely at the regulations. The quote the judge uses from a defense expert seems to suggest there were states that banned the sale of these knives.

I suspect that these laws help understand what "dangerous and unusual" means. The problem with the defense argument is that they don't really explain why the knife was considered dangerous and unusual. I suspect the court would have reached a much different conclusion if the plaintiffs documented why the knife was considered dangerous and unusual.

 

[Bob A]

I have not looked closely at the regulations. The quote the judge uses from a defense expert seems to suggest there were states that banned the sale of these knives.

I suspect that these laws help understand what "dangerous and unusual" means. The problem with the defense argument is that they don't really explain why the knife was considered dangerous and unusual. I suspect the court would have reached a much different conclusion if the plaintiffs documented why the knife was considered dangerous and unusual.

I have no doubt that Bowie knife bans were enacted for the same reasons that people oppose gun ownership.

A few drunken knife fights in the town square would set the populace against the tools, not the people wielding them.

Idiocy is always with us. It might even be genetic.

 

[jcutonilli]

I have no doubt that Bowie knife bans were enacted for the same reasons that people oppose gun ownership.

A few drunken knife fights in the town square would set the populace against the tools, not the people wielding them.

Idiocy is always with us. It might even be genetic.

I think it was more than that. Some of the laws seem to confine the ban to concealed carry. Reading the court cases that addressed these bans indicate that they really only apply to arms that did not have legitimate use for self defense and were primarily used for criminal purposes. In Aymette v. State, 21 Tenn. 154 (1840), the court upheld the prohibition of concealed carrying of Bowie knives because the legislature has “a right to prohibit the wearing or keeping [of] weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defence.”

The judge is reaching an incorrect conclusion because the plaintiffs fail to adequately dispute the issue. The defense expert the judge cites uses a portion of this quote but leaves off the exception "which are not usual in civilized warfare, or would not contribute to the common defence.”

 

[kcbrown]

The judge is reaching an incorrect conclusion because the plaintiffs fail to adequately dispute the issue. The defense expert the judge cites uses a portion of this quote but leaves off the exception "which are not usual in civilized warfare, or would not contribute to the common defence.”

Did the plaintiffs have the opportunity to rebut the defense expert here? Each side gets to supply a brief and a reply brief at a minimum if I’m not mistaken, but what can the plaintiffs do if the defense has the last word and this critical piece of argumentation is supplied by the defense in its final brief to which the plaintiffs (presumably) aren’t allowed to respond?


Sent from my iPhone using Tapatalk

 

[jcutonilli]

Did the plaintiffs have the opportunity to rebut the defense expert here? Each side gets to supply a brief and a reply brief at a minimum if I’m not mistaken, but what can the plaintiffs do if the defense has the last word and this critical piece of argumentation is supplied by the defense in its final brief to which the plaintiffs (presumably) aren’t allowed to respond?


Sent from my iPhone using Tapatalk

The plaintiffs typically supply a brief and a reply brief while the defendants typically just file a response brief. The plaintiffs were silent on the issue of Bowie knife laws in their initial brief, but did respond to the issue by downplaying the importance.

Both sides briefs that were submitted can be found

Hartford v. Ferguson - FPC Challenge to Washington's "Assault Weapons" Ban

Hartford v. Ferguson - FPC Challenge to Washington's "Assault Weapons" Ban

www.firearmspolicy.org

 

[HaveBlue]

the legislature has “a right to prohibit the wearing or keeping [of] weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defence.”

So weapons that are usual in civilized warfare may not be prohibited by the legislature?

 

[ToolAA]

I have no doubt that Bowie knife bans were enacted for the same reasons that people oppose gun ownership.

A few drunken knife fights in the town square would set the populace against the tools, not the people wielding them.

Idiocy is always with us. It might even be genetic.

Ironically at the time, a Bowie Knife was probably a more effective weapon fighting weapon than a common flintlock rifle or pistol.


Sent from my iPhone using Tapatalk

 

[pcfixer]

I suspect that these laws help understand what "dangerous and unusual" means. The problem with the defense argument is that they don't really explain why the knife was considered dangerous and unusual. I suspect the court would have reached a much different conclusion if the plaintiffs documented why the knife was considered dangerous and unusual.

Yes, I agree. What is the correlation between a bowie knife and a semi-automatic AR? So called AWB?

I my curiosity, I googled this.......https://thefederalist.com/2020/05/12/the-supreme-courts-dangerous-and-unusual-error-is-worse-than-michigans-rifle-carrying-protestors/
Probably not the only place to look for definitions of dangerous and unusual. Somewhere I read that AR's can't be both dangerous and unusual.

quoted:
Heller correctly observed that the Second Amendment protects an entirely fundamental, individual right “to possess and carry weapons in case of confrontation,” including “all instruments that constitute bearable arms,” and concluded, therefore, that the District’s ban on the possession of handguns was unconstitutional. However, as I explained here and here, the Court additionally opined, contradictorily and incorrectly, that the right to arms is limited to those that are “in common use” and, therefore, the federal law that prohibits the private possession of a fully-automatic firearm manufactured after May 19, 1986—an arguably uncommon type of firearm, in part because of that law—is not unconstitutional.

However, as America’s leading Second Amendment historian, attorney Stephen Halbrook, explained in “Going Armed With Dangerous And Unusual Weapons To The Terror Of The People: How The Common Law Distinguished The Peaceable Keeping And Bearing Of Arms,”
This is better path....https://www.independent.org/issues/article.asp?id=9112

https://stephenhalbrook.com/law_review_articles/going_armed.pdf

Just ME. I've found Stephen Halbrook and his books, and opinion's pretty much spot on and in agreement with SCOTUS.

This is spot on too.
quoted.
Cases challenging state bans on semi-automatic firearms have been appealed to the Supreme Court of the United States, and Democrats working toward civilian disarmament hope to prevail in part by characterizing semi-automatics as “dangerous and unusual” even when they are kept and borne in a peaceful manner, and even though they are owned by millions of Americans.

In reviewing those bans, the Court should heed Justice Brett Kavanaugh’s recent suggestion that its errant rulings may warrant correction when they are “egregiously wrong” and have had “real-world effects on the citizenry.” Heller’s “dangerous and unusual” error surely fits that description.
I believe the main reason we are where we are at with AR's and loaded carry of pistols for self defense is
Hoplophobia. Defination... irrational fear of weapons.
I'm not a psychiatrist!
Irrational aversion to weapons

• Hoplophobia is a neologism, originally coined to describe an "irrational aversion to weapons, as opposed to justified apprehension about those who may wield them." It is sometimes used more generally to describe the "fear of weapons" or the "highly salient danger of these weapons" or the "fear of armed citizens."

 

[teratos]

So weapons that are usual in civilized warfare may not be prohibited by the legislature?

I believe this is the heart and soul of the 2A. The Miller decision in 1939 used the test of being useful in militia service.

 

[River02]

I believe this is the heart and soul of the 2A. The Miller decision in 1939 used the test of being useful in militia service.

YES!