Good and Bad News (RI Mag Ban Case)

[cyberalex]

To be fair, the plaintiffs did not really present a strong rebuttal as to why mags are not arms. Most of the time, rulings like these can be traced to poorly argued cases. Bruen is not going to stop rulings like this.

It makes me scratch my head because detachable magazines are required for many AR-15-style rifles, and Bruen stated that the government has the burden of proof on whether or not there was historical precedent on the gun control law being challenged. Plus, to me, it doesn't matter whether or not magazines existed in 1791 or 1868, the conduct is in question because the idea of magazines are to carry multiple rounds of ammunition for a firearm at a time. On top of that, the bans on magazines that hold more than 10 rounds are the mere concept of rationing ammunition for gun owners, which was never before done either around 1791 or 1868. I've not found any law that said gun owners can't have more than 10 rounds of ammunition in their household or place of business.

 

[jcutonilli]

It makes me scratch my head because detachable magazines are required for many AR-15-style rifles, and Bruen stated that the government has the burden of proof on whether or not there was historical precedent on the gun control law being challenged. Plus, to me, it doesn't matter whether or not magazines existed in 1791 or 1868, the conduct is in question because the idea of magazines are to carry multiple rounds of ammunition for a firearm at a time. On top of that, the bans on magazines that hold more than 10 rounds are the mere concept of rationing ammunition for gun owners, which was never before done either around 1791 or 1868. I've not found any law that said gun owners can't have more than 10 rounds of ammunition in their household or place of business.

The first step in the process is to determine if the law addresses "arms". That burden has always been on the plaintiff. Simply stating that detachable mags are required for certain arms does not really establish whether mags are really "arms". It is a nit picky argument, but that is what happens when you don't really want to do something but can't explicitly state so. There certainly are ways around this nit picky argument, but it requires more detail than the plaintiffs supplied.

Once it can be established that the law addresses "arms", the burden of proof shifts to the government to demonstrate analogs to historical precedent.

 

[kcbrown]

The first step in the process is to determine if the law addresses "arms".

I disagree, though I’m sure the courts are currently thinking that way.

The first step should be to show that the law affects arms.

Why? Because otherwise, every law could be written to address some component of an arm in such a way as to have the same effect as if it were addressing the arm directly, but without actually addressing the arm.

For instance, the state could pass a law forbidding the carry of ammunition without a “may issue” permit (or at all). Since ammunition is not “arms” it follows that the law would not fall under the 2nd Amendment.

At least, that’s the implication of the argument you’re bringing up here.


After all, if it’s good enough for the commerce clause, it’s good enough for the 2nd Amendment, right?


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[cyberalex]

The first step in the process is to determine if the law addresses "arms". That burden has always been on the plaintiff. Simply stating that detachable mags are required for certain arms does not really establish whether mags are really "arms". It is a nit picky argument, but that is what happens when you don't really want to do something but can't explicitly state so. There certainly are ways around this nit picky argument, but it requires more detail than the plaintiffs supplied.

Once it can be established that the law addresses "arms", the burden of proof shifts to the government to demonstrate analogs to historical precedent.

I would argue that magazines that hold more than 10 rounds are commonly owned and used for lawful purposes, including, but not limited to, defense. While gun controllers would argue that hunters don't need a 30 round magazine, the Second Amendment isn't just about hunting, and according to the Congressional Sportsmen Foundation, magazines that hold more than 10 rounds are popular among the recreational shooting community with approximately 80% of firearm sales for non-hunting purposes (CSF, n.d.). Also, firearms that held more than 10 rounds of ammunition at a time have existed even before the English Bill of Rights from 1689, as the earliest known firearm to do so was a repeater from 1580 that was able to fire 16 shots without requiring a reload at anytime in between shots (Kopel, 2020). In the 1640s, there were Danish rifles that could hold up to 30 rounds, then in 1722, Boston gunsmith John Pim introduced an 11-shot repeater that he built and offered for sale to a group of Indians, and then during the Revolutionary War, an inventor by the name of Joseph Belton came up with a 16 shot long gun, but the Continental Congress couldn't get an order as it was unable to meet the inventor's demand of money (Kopel, 2020).

The newer Isaiah Jennings' repeaters, which came in 15-20 shot models, came about in the 1820s, there were pepperbox handguns in the 1830s that held up to 24 rounds, and 21-round pinfire revolvers, 38 or 60 shot Porter rifles, and the 42 shot Ferris Wheel pistol were sold to the market during the 1850s (Kopel, 2020). The first Wesson and Winchester gun was the Volcanic rifle, which came out in 1859, held 30 rounds, and it was succeeded by the 1861 Henry rifle, which could fire its full capacity of 16 rounds in 11 seconds, and it was issued to Union soldiers by the following year (Kopel, 2020). It was used by Captain James M. Wilson of the 12th Kentucky Cavalry to eliminate 7 armed Confederate neighbors who invaded his home and ambushed his family (Kopel, 2020). At the time the Fourteenth Amendment was before Congress, the Henry was improved and the Winchester Model 1866 rifle was born, which could hold 18 rounds depending on the caliber, then the Luger M1899 came about and there were 32 round magazines available for the pistol, and no law ever came about that restricted the capacity of firearms and/oir banned the sale of them until 1927 (Kopel, 2020).

Because laws forbidding the conduct in question never came about until the 1927, the Bruen decision will not consider these laws to be constitutional as they are not considered historical precedent, so even if for whatever reason, we cannot get past the nit picky argument, the laws have to be struck down as laws in 1900 and beyond do not hold water on the government's side. SCOTUS even ignored a law that Florida passed in 1893 to restrict certain firearms after a repeater was used to deter a lynch mob (Kopel, 2020). Lastly, the Ninth Circuit Court of Appeals ruled that California's ban on magazines that hold more than 10 rounds was unconstitutional, as "...high-capacity magazines are "protected arms" under the Second Amendment and that they are often used for legal purposes and are not considered "unusual arms" that would fall outside the scope of constitutional protection." (Levenson, 2020, para. 2), and this was about 2 years before Bruen was decided by SCOTUS, so if a 3-judge panel of the most liberal Circuit Court of Appeals in the United States ruled it unconstitutional, then other circuit courts will eventually rule the same. It's just a matter of time.

References
Congressional Sportsmen's Foundation. (n.d.). Standard capacity magazines. https://congressionalsportsmen.org/policies/state/full-capacity-magazines

Kopel, D. (2020, February 11). Magazines over 10 rounds were well-known to the founders. Reason. https://reason.com/volokh/2020/02/11/magazines-over-10-rounds-were-well-known-to-the-founders/

Levenson, M. (2020, August 14). California's ban on high-capacity magazines violates the second amendment, court rules. The New York Times. https://www.nytimes.com/2020/08/14/...t said,the scope of constitutional protection.

 

[cyberalex]

I disagree, though I’m sure the courts are currently thinking that way.

The first step should be to show that the law affects arms.

Why? Because otherwise, every law could be written to address some component of an arm in such a way as to have the same effect as if it were addressing the arm directly, but without actually addressing the arm.

For instance, the state could pass a law forbidding the carry of ammunition without a “may issue” permit (or at all). Since ammunition is not “arms” it follows that the law would not fall under the 2nd Amendment.

At least, that’s the implication of the argument you’re bringing up here.


After all, if it’s good enough for the commerce clause, it’s good enough for the 2nd Amendment, right?


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That's what I fear. If courts were to rule that magazines, ammunition, and accessories for firearms are not protected under the Second Amendment, then that would give way for let's say background checks and mandatory registration for all of the mentioned objects as the local, state, and federal governments would have the green light to enact such extreme regulations.

 

[jcutonilli]

I disagree, though I’m sure the courts are currently thinking that way.

The first step should be to show that the law affects arms.

Why? Because otherwise, every law could be written to address some component of an arm in such a way as to have the same effect as if it were addressing the arm directly, but without actually addressing the arm.

For instance, the state could pass a law forbidding the carry of ammunition without a “may issue” permit (or at all). Since ammunition is not “arms” it follows that the law would not fall under the 2nd Amendment.

At least, that’s the implication of the argument you’re bringing up here.


After all, if it’s good enough for the commerce clause, it’s good enough for the 2nd Amendment, right?


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My explanation is an imprecise explanation and was meant as a laymen explanation. The test from Bruen is

The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.

The mag ban cases (OR and RI) have already made the argument that mags do not have 2A protection because they are not "arms" per textual and historical understanding.

Mags certainly are not arms in and of themselves, so the question becomes how do you demonstrate that they do have 2A protection. It seems like people (including the plaintiffs) keep repeating things like common use without really implicating the 2A.

Shoes have been commonly used by militaries/for self defense for centuries and continue to be commonly used today. Does that mean shoes are protected by the 2A? I don't believe they are and don't see anyone making a compelling argument that shoes have 2A protection.

The question for the mag ban cases is did the plaintiffs present sufficient information to demonstrate that mags really do have 2A protection. While, I think the court was overly critical of the plaintiffs arguments, the plaintiffs certainly did not present sufficient information in these cases.

 

[pcfixer]

https://casetext.com/case/duncan-v-becerra-5 We are beating a dead horse on OR and RI arguments. This must be viewed as
settled law. Judges in OR and RI in what ever context, are on the FACE unconstitutional. Yes, maybe the attorneys and Judges made bad arguments, never the less; Magazines- OEM are 20 or 30 rounds are part of the gun either rifle or pistol. A magazine is not an accessory.


I do like and think kcbrown's statements are in fact better choice of words.

 

[pcfixer]

The mag ban cases (OR and RI) have already made the argument that mags do not have 2A protection because they are not "arms" per textual and historical understanding.

Mags certainly are not arms in and of themselves, so the question becomes how do you demonstrate that they do have 2A protection. It seems like people (including the plaintiffs) keep repeating things like common use without really implicating the 2A.

Maybe that's the incorrect question to ask to begin with! It's all in the question presented or how the question is answered.

Quoted:
We declined to engage in means-end scrutiny because “[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, 554 U. S., at 634.

 

[Allen65]

Maybe that's the incorrect question to ask to begin with! It's all in the question presented or how the question is answered.

Quoted:
We declined to engage in means-end scrutiny because “[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, 554 U. S., at 634.

If the judge is intent on finding that nothing other than the serialized frame of the gun is actually an "arm", no arguments about decision making methodology matter because the items in question aren't within the scope of the right.

One good thing coming out of all this is Thomas will now know what holes were left in Bruen, and those will get patched once and for all when a case makes it back up to SCOTUS in a few years. Bruen was a jurisprudence equivalent of recon by fire. Expose a target, see where fire comes from, and suppress it.

 

[pcfixer]

If the judge is intent on finding that nothing other than the serialized frame of the gun is actually an "arm", no arguments about decision making methodology matter because the items in question aren't within the scope of the right.

One good thing coming out of all this is Thomas will now know what holes were left in Bruen, and those will get patched once and for all when a case makes it back up to SCOTUS in a few years. Bruen was a jurisprudence equivalent of recon by fire. Expose a target, see where fire comes from, and suppress it.

One Really must read-& reading fundamentals- comprehend the opinion of Bruen 20-843. I'm not the only one-they do finds so called holes- but many of those are out of context. One could quote as I did a sentence - but read the paragraph and paragraphs before and after such quotes for understanding. OKAY.

Another quote from Bruen:
Moreover, Heller and McDonald expressly rejected the application of any “judge-empowering ‘interest-balancing inquiry’ that ‘asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.’” Heller, 554 U. S., at 634

Just seems to me this is taken magazine bans ( LCM) is new terminology. See my last few posts.
I'd believe the same goes for serialized frames. See VanDerStok v Garland challenge to ATF Frame or Receiver Rule
Docket: N.D. TX case no. 4:22-cv-00691, Fifth Circuit case no. 22-11071, 22-11086 | CourtListener Docket

 

[jcutonilli]

https://casetext.com/case/duncan-v-becerra-5 We are beating a dead horse on OR and RI arguments. This must be viewed as
settled law. Judges in OR and RI in what ever context, are on the FACE unconstitutional. Yes, maybe the attorneys and Judges made bad arguments, never the less; Magazines- OEM are 20 or 30 rounds are part of the gun either rifle or pistol. A magazine is not an accessory.


I do like and think kcbrown's statements are in fact better choice of words.

Duncan v Becerra (now Duncan v Bonta) has been vacated twice since the opinion you cite was released and the case is currently in the district court. Definitely not settled law.

Judges in the federal court are constitutional and have been created in accordance with the constitution.

Cases are decided based on the arguments presented. Both OR and RI have been decided based on a TRO and/or PI so the arguments may be able to improved before final judgment. We will wait and see if that actually happens. You don't seem to think we need to make any changes, which is guaranteed to be a loosing argument. Past experience with the circuit courts suggest things are not going to get any better there.

Mags certainly seem to meet the common definition of an accessory. The states claim even the manufacturers refer to them as accessories. Mags are made to be readily interchanged with another mag and are not dedicated to a particular firearm like any other part.

 

[Allen65]

Mags certainly seem to meet the common definition of an accessory. The states claim even the manufacturers refer to them as accessories. Mags are made to be readily interchanged with another mag and are not dedicated to a particular firearm like any other part.

What line of argument do you think would work to bring magazines, sights, ammunition, etc. under the protection of 2A post-Bruen?

 

[kcbrown]

My explanation is an imprecise explanation and was meant as a laymen explanation. The test from Bruen is

The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.

Yes. Firearms regulations. Regulations which affect firearms, their acquisition, their use, etc. More generally, regulations which the founding generation would have understood to fall under the ambit of the 2nd Amendment.

The mag ban cases (OR and RI) have already made the argument that mags do not have 2A protection because they are not "arms" per textual and historical understanding.

This is the same as the argument that the trigger doesn't have 2A protection because it's not an "arm". Or the firing pin, or hammer, or any other part of the firearm. Or ammunition. It's an inane argument.

The question is whether or not the thing being regulated is designed to affect the functionality of the weapon or the use of the weapon. And magazines most certainly qualify for that, as do other "accessories". If something is designed to affect the functionality of the weapon, then regulation of it is regulation of the firearm, just like regulation of the characteristics of the tires of a car is regulation of the car.

Again, if the reasoning is good enough for establishing the reach of the commerce clause, it's certainly good enough for establishing the reach of the 2nd Amendment.

Shoes have been commonly used by militaries/for self defense for centuries and continue to be commonly used today. Does that mean shoes are protected by the 2A? I don't believe they are and don't see anyone making a compelling argument that shoes have 2A protection.

That's because shoes are neither arms nor are they designed to affect the functionality of a weapon. However, if a regulation were to forbid the use of shoes as part of a self-defense action, that might well fall under the ambit of the 2nd Amendment.

The question for the mag ban cases is did the plaintiffs present sufficient information to demonstrate that mags really do have 2A protection. While, I think the court was overly critical of the plaintiffs arguments, the plaintiffs certainly did not present sufficient information in these cases.

That might well be. But that doesn't render the court's decision correct, either.

The court has a duty to analyze the arguments in the context of the framework of law provided by the founders, in accordance to the originally understood meaning and implication of the terms and phrases used, irrespective of the arguments raised by either side. Just because neither side raises the correct definition of a term or phrase doesn't automatically mean that the court gets to claim that the term or phrase must have one of the offered meanings. The court's duty is first to the Constitution and its originally understood meaning, because the court's power derives directly and solely from it, and because the Constitution is the Supreme Law of the land.

In this case, the court's duty is clearly to properly interpret the meaning of the 2nd Amendment, as understood by the founding generation. Just as it is an inane argument to claim that arms not available at the founding are not within the scope of the 2nd Amendment, so too is it an inane argument to claim that design attributes, features, and items which are designed to affect the functionality of modern arms are not within the scope of the 2nd Amendment.

 

[jcutonilli]

What line of argument do you think would work to bring magazines, sights, ammunition, etc. under the protection of 2A post-Bruen?

Do what Bruen says

The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.

text

... keep and bear arms ...

bear from Heller

‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’

arm from Heller

any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.

Point out obvious. The bullet is what is actually cast at or strikes another so the use in offensive or defensive action ie bearing of the arm involves more than just the arm itself. Mags feed the bullets so mags are part of the bearing of arms per text of 2A.

Point out machinegun definition and how one cannot feed more than one round without the mag. If mags are not part of the firearm then there are no machineguns and these laws become meaningless

This is not that hard, but it does need to be done if you want to win.

 

[pcfixer]

Stephen Halbrook on the Plain Text of the 2nd Amendment

Halbrook is one of the most influential writers and proponents of the Second Amendment. Some here may be interested in his article analysing the text: "Plain Text" When the Second Amendment's plain text covers conduct, it is presumptively...

www.mdshooters.com

Plain text analysis is not difficult because the Supreme Court has already defined the key terms of the guarantee that "the right of the people to keep and bear arms, shall not be infringed." Here are some of those definitions:

• "The people" facially means "all Americans." District of Columbia v. Heller (2008).
• "Arms" facially means "all instruments that constitute bearable arms."
• "Keep Arms" facially means "have weapons." Heller.
• "Shall not be infringed" facially means that the right conferred by the Second Amendment is an "unqualified command." Bruen.

Defense Distributed gets it wrong because the right to keep and bear arms necessarily includes the right to acquire them, which can take the form of buying or making, among other methods. The court disagreed with a decision of the District of Delaware on point, Rigby v. Jennings (2022). That court got it right in holding that the Second Amendment "protects the possession of untraceable firearms and unfinished firearms and receivers because its text covers the possession of firearms."

Third: "Arms." Do they include magazines? One of the cases the Supreme Court vacated and remanded after Bruen was Duncan v. Bonta. The Ninth Circuit en banc had upheld California's ban on possession of magazines holding over ten rounds under an intermediate scrutiny, interest-balancing test. But Heller relied on text and history, and Bruen reaffirmed that tiers of scrutiny is unacceptable.

On remand, California's lead argument is that "large-capacity" magazines are not "arms" because they are "not essential for the operation of any firearm." But the question is not whether "large capacity" magazines are essential for any firearm to operate. The question is whether magazines in general, regardless of whether they hold only ten rounds or more (or fewer), are an integral part of the firearm and thus "arms" under the Second Amendment.

Like barrels and triggers, magazines are essential for the operation of all multi-shot and repeating firearms, which are "bearable arms." The word "arms" must extend to these essential components of firearms. If it did not, the government could ban all magazines and limit individuals to single-shot firearms.
Before Bruen the circuit courts consistently treated magazines as arms, including Ass'n of New Jersey Rifle & Pistol Clubs, Inc. v. Att'y Gen. New Jersey (3d Cir. 2018), New York State Rifle & Pistol Ass'n , Inc. v. Cuomo (2d Cir. 2015), and Heller v. District of Columbia (D.C. Cir. 2011).
Since magazines holding over ten rounds are "arms," it is California's burden to prove that they are "not typically possessed by law-abiding citizens for lawful purposes," which it cannot do.

 

[Blacksmith101]

Magazines may be either internal or removable they hold and feed ammunition so the gun can function as designed. The Lewis and Clark Girardoni Air Rifle had a 22 round internal magazine in 1804.

 

[delaware_export]

Case heard today

for you peeps that like to listen… or you can fry their Twitter feed

 

[Boxcab]

Does any legal eagle, court following types, care to share highlights and thoughts?


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