Hanson V DC, The DC Magazine Capacity Case

[Occam]

Ok . I wasn't sure if that wasn't a wink- nod for jack handles to be field expedient impact weapons .

Well, that too :-)

 

[rbird7282]

Not quite , and only potentially indirectly so .

Common usage of particular firearms or categories of firearms is quantifiable , including their capacities . Whether in specific instances how many rounds are used , doesn't change their common usage .

Exactly.


Sent from my iPhone using Tapatalk

 

[Sunrise]

According to the judge "the Complaint and the motion for a preliminary injunction focus on Plaintiffs’ right of self-defense." (footnote pg 16) The judge focused on what the plaintiffs told him to focus on and the plaintiffs could not back up what they were saying. The problem is not the judge, it is the plaintiffs lawyers and their poor arguments.

Your twitter guy even mentions this. "if it is true that the Plaintiffs conceded this point too easily, they should argue it differently on summary judgment."

This Judge already had a predetermined outcome in mind. That’s what he was focused on.

“If true” doesn’t mean true.

 

[jcutonilli]

Not quite , and only potentially indirectly so .

Common usage of particular firearms or categories of firearms is quantifiable , including their capacities . Whether in specific instances how many rounds are used , doesn't change their common usage .

While specific instances of things do not necessarily represent common usage, specific instances of the number of shots fired were not used to determine common usage in this case. The NRA Armed Citizen database was used to determine the average number of shots fired in defensive use. The conclusion that both sides came to was that the average number of shots fired was 2.2 and that no self defense in the home had more than 10 shots fired.

While there are flaws in the conclusion, that is theoretically one way to demonstrate common usage.

 

[Occam]

While there are flaws in the conclusion, that is theoretically one way to demonstrate common usage.

People also come up with theoretical cases for the earth being flat.

Any discussion of an infringement on a right explicitly protected in the Bill of Rights cannot be based on stats. These are capital-P Principles we're talking about. The first amendment isn't about protecting "common" speech, it's about protecting even what most would consider outlying or even extreme speech and opinion. The 2A is no different. It's not about "common" uses like hunting or sport shooting. It's entirely about the prospect of extreme need and protecting your right to rise to that need by keeping and bearing arms.

Giving ANY oxygen to a statistics-based doling out of limited rights is offensive to the entire premise of our constitution. Splitting hairs over whose statistics were used and how is doing nothing but nurturing the infringement that we're fighting. No, Bruen didn't get into ten rounds vs. fifteen. No more than the founders did, ON PURPOSE. Because quietly tapping your toe to that song - even if you don't get up and dance to it - flies in the face of every bit of why the 2A is next to the top of the BoR.

 

[Biggfoot44]

Only if simultaneously shown that all of those defensive shootings only involved firearms with 3 round capacity .

 

[jcutonilli]

@jcutonilli: You did see this, right?

Yes I saw it. If you quote something you need to make sure that you are quoting it correctly.

 

[jcutonilli]

This Judge already had a predetermined outcome in mind. That’s what he was focused on.

“If true” doesn’t mean true.

I don't believe the judge had a predetermined outcome. I believe he is more likely to agree with the defense and more skeptical of the plaintiffs arguments. The plaintiffs arguments made it easy for the judge to make the decisions he made.

 

[jcutonilli]

People also come up with theoretical cases for the earth being flat.

Any discussion of an infringement on a right explicitly protected in the Bill of Rights cannot be based on stats. These are capital-P Principles we're talking about. The first amendment isn't about protecting "common" speech, it's about protecting even what most would consider outlying or even extreme speech and opinion. The 2A is no different. It's not about "common" uses like hunting or sport shooting. It's entirely about the prospect of extreme need and protecting your right to rise to that need by keeping and bearing arms.

Giving ANY oxygen to a statistics-based doling out of limited rights is offensive to the entire premise of our constitution. Splitting hairs over whose statistics were used and how is doing nothing but nurturing the infringement that we're fighting. No, Bruen didn't get into ten rounds vs. fifteen. No more than the founders did, ON PURPOSE. Because quietly tapping your toe to that song - even if you don't get up and dance to it - flies in the face of every bit of why the 2A is next to the top of the BoR.

The discussion on the infringement on the right protected by the 2A is dependent on what the right actually is. SCOTUS has not defined the boundaries of the right, but has provided some general guidance to indicate that it does not protect all arms, just those in common use. The details of what common use means has not been established, but it certainly seems that stats could be used to establish what common use means.

The plaintiffs produce stats on how many "large-capacity" magazines are in existence. Do you agree that these stats should not be used and the plaintiffs were wrong to include them? How should one determine if these magazines have protection without stats?

 

[jcutonilli]

Only if simultaneously shown that all of those defensive shootings only involved firearms with 3 round capacity .

I don't understand what you are getting at here.

 

[swinokur]

In Caetano, they deemed 200,000 stun guns in Common Use.

So it has been quantified

 

[Biggfoot44]

The reason used is that since the supposed statistical average of rounds fired is two point something , it is then inferred that defensive firearms only had a capacity of that number of rounds , as trying to define Common Usage .

The reality is ( other than Derringers) that every one of those guns in common usage had a capacity of at least 5 rounds , and the festivities were brought to a conclusion of whatever manner after 2 point whatever rounds , and the remaining rounds were on standby if required .

And the whole two point something rounds has always been a statistical manipulation .

The two main sources of somewhat large samples for this have been FBI and NYPD .

Manipulation #1 is that includes AD's , suicides . and putting down injured animals . Remove those , and the average jumps to something like 3.7 rounds fired in actual defensive situiations .

Manipulation #2 , particularly with NYPD data . Officer & bad guy both go bang - bang at each other , then each goes zig zag , and go bang- bang again , then bad guy runs to the corner and another cycle of bang banging , they compile that as three separate two round events , instead of a six round event .

 

[Occam]

In Caetano, they deemed 200,000 stun guns in Common Use.

So it has been quantified

And they didn't get into how many volts, the battery type, number of uses between recharges, or any similar specs.

 

[Occam]

The discussion on the infringement on the right protected by the 2A is dependent on what the right actually is.

We have ample discussion among the authors of the Bill of Rights as well as speeches, letters, transcripts and other materials surrounding the discussion about and ratification of the BoR to look to. The equivalent of examining contemporary communication surrounding debate of a bill in order to later make a case about legislative intent. Joyce Lee Malcolm did a pretty job of doing that homework for the Supreme Court during Heller. Arguably, that type of looking-back research into the history and underlying principles involved - not hardware specs - are what saved the 2A in Heller.

Plaintiffs talking stats now looks more like something they have to do so it's not conspicuous by its absence - so goes far too much constitutional litigation, now. It's the environment in which these things get raised and argued. Fine, they can talk about it, but if for no other reason than to say that it doesn't matter, since rights don't go away when the circumstances in which they're exercised stray outside of some absurd grading curve's central hump. If the right doesn't apply at the margins, it's meaningless.

SCOTUS has not defined the boundaries of the right, but has provided some general guidance to indicate that it does not protect all arms, just those in common use.

And that's as far as they should have to go. The SCOTUS shouldn't be in the rights details laundry list business, any more than Maryland should have a pistol roster.

An enumerated right doesn't have boundaries that lurk somewhere inside the Constitution like the statue of David lurking inside a block of granite, waiting to be chiseled out. Even looking for such a boundary, in the form of things like magazine capacity statistics, is misunderstanding the very nature of a natural right enumerated by the founders as a hands-off matter when it came to governance.

The details of what common use means has not been established, but it certainly seems that stats could be used to establish what common use means.

Of course, any court could choose to ignore Thomas's admonition that the 2A isn't some single enumerated right within the BoR that's to be treated as some minor regulatory-arena squabbling match. It's every bit as un-"boundaried" as the 1A or the others.

How should one determine if these magazines have protection without stats?

By recognizing that as part of a commonly possessed firearm, they are by definition something that is protected by the very existence of the 2A, not by some bureaucratic leger or tally-sheet suitable to a particular season's or year's retail user preferences.

 

[jcutonilli]

The reason used is that since the supposed statistical average of rounds fired is two point something , it is then inferred that defensive firearms only had a capacity of that number of rounds , as trying to define Common Usage .

The reality is ( other than Derringers) that every one of those guns in common usage had a capacity of at least 5 rounds , and the festivities were brought to a conclusion of whatever manner after 2 point whatever rounds , and the remaining rounds were on standby if required .

And the whole two point something rounds has always been a statistical manipulation .

The two main sources of somewhat large samples for this have been FBI and NYPD .

Manipulation #1 is that includes AD's , suicides . and putting down injured animals . Remove those , and the average jumps to something like 3.7 rounds fired in actual defensive situiations .

Manipulation #2 , particularly with NYPD data . Officer & bad guy both go bang - bang at each other , then each goes zig zag , and go bang- bang again , then bad guy runs to the corner and another cycle of bang banging , they compile that as three separate two round events , instead of a six round event .

I think you are misunderstanding what is going on.

Averages measure a typical value for a range of values. They do not represent a boundary limit. The defense has not suggested that averages should infer some kind of capacity of the firearms that were used.

The data that was used comes from the NRA Armed Citizen database of gun use. I am not aware that the FBI has a database on the number of rounds fired in defensive situations. I am aware of the NYPD data, but would be surprised that the incidents they used are separated the way you suggest. In 2017 there were 23 incidents (out of 5.4 million calls) where an officer fired their weapon in adversarial conflict (ignoring AD, suicide and putting down animals).

Both sides calculated the averages in the NRA and came up with the same averages.

What the defense did to determine a boundary was to point out that there were no incidents in the home with greater than 10 rounds used.

The problem that I have with the NRA database is that it typically does not report the number of rounds that were used. It is designed to demonstrate that someone used a firearm in some capacity to defend themselves. It is not designed to provide details of what happened.

 

[Sunrise]

Yes I saw it. If you quote something you need to make sure that you are quoting it correctly.

So there’s a substantive difference between “advantage police” and “police advantage” according to you? Since when did the standard become quoting exactly under such a circumstance?

 

[jcutonilli]

We have ample discussion among the authors of the Bill of Rights as well as speeches, letters, transcripts and other materials surrounding the discussion about and ratification of the BoR to look to. The equivalent of examining contemporary communication surrounding debate of a bill in order to later make a case about legislative intent. Joyce Lee Malcolm did a pretty job of doing that homework for the Supreme Court during Heller. Arguably, that type of looking-back research into the history and underlying principles involved - not hardware specs - are what saved the 2A in Heller.

Plaintiffs talking stats now looks more like something they have to do so it's not conspicuous by its absence - so goes far too much constitutional litigation, now. It's the environment in which these things get raised and argued. Fine, they can talk about it, but if for no other reason than to say that it doesn't matter, since rights don't go away when the circumstances in which they're exercised stray outside of some absurd grading curve's central hump. If the right doesn't apply at the margins, it's meaningless.


And that's as far as they should have to go. The SCOTUS shouldn't be in the rights details laundry list business, any more than Maryland should have a pistol roster.

An enumerated right doesn't have boundaries that lurk somewhere inside the Constitution like the statue of David lurking inside a block of granite, waiting to be chiseled out. Even looking for such a boundary, in the form of things like magazine capacity statistics, is misunderstanding the very nature of a natural right enumerated by the founders as a hands-off matter when it came to governance.

Of course, any court could choose to ignore Thomas's admonition that the 2A isn't some single enumerated right within the BoR that's to be treated as some minor regulatory-arena squabbling match. It's every bit as un-"boundaried" as the 1A or the others.

By recognizing that as part of a commonly possessed firearm, they are by definition something that is protected by the very existence of the 2A, not by some bureaucratic leger or tally-sheet suitable to a particular season's or year's retail user preferences.

Neither the 1A nor the 2A is unboundaried. This is what was said in Heller about both limitations

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

They were very clear in Heller and Bruen that the "dangerous and unusual weapons" can be prohibited. The question that remains is to figure out what should be included and what should be excluded from 2A protection.

 

[jcutonilli]

So there’s a substantive difference between “advantage police” and “police advantage” according to you? Since when did the standard become quoting exactly under such a circumstance?

There is unlikely to be a substantive difference between the words “advantage police” and “police advantage” when you are simply referring to groups of words. They are two different quotes when you quote them however. That is the generally accepted definition of a quote.

 

[Occam]

They were very clear in Heller and Bruen that the "dangerous and unusual weapons" can be prohibited.

Which is exactly why the sort of commonly owned militia-style weaponry the founders had in mind are completely within bounds, despite people trying to pretend that 2.[something] rounds is what the founders would have been thinking when they baked "shall not be infringed" into the most important part of the nation's chartering document. The entire notion is preposterous. Carrying around 2.6 pounds of nitroglycerin is worth talking about, perhaps, in the sense that it's just plain reckless, like carrying around an open bottle of smallpox. But since the founders were perfectly happy with the fact that private citizens owned canons (and big buckets of explosives to make them work), making a case out of the typical number of holes put in a bad guy during self defense is - if it weren't philosophically tragic with major liberty reducing ramifications - hilarious.

The question that remains is to figure out what should be included and what should be excluded from 2A protection.

No, that's not really a challenge. The challenge is in raising enough money to fund the litigation needed to fend off infringements that the infringing legislators and executives KNOW PERFECTLY WELL are beyond the pale in terms of constitutionality. Again, we have ample supporting language from the people who wrote, debated, and ratified the Bill of Rights to know that they were laser focused on preventing the government from having a monopoly on the sort of arms that the colonists had just faced in the hands of the British and their mercenaries. That is the entire point of the second very most thing in the entire constitution.

They didn't put that there so that two hundred years later we could regress to nitpicking over how many wounds inflicted by an average person in self defense are likely to stop an average aggressor at an average distance, and that's where liberty stops. Hell, a 1/2"-plus ball of lead from a musket back in their day would produce a devastating stop-you-in-your-tracks wound, grazing extremities not withstanding. Did they feel even the slightest urge to discuss that, or indicate anything - in a single paper, letter, speech or debate - that, "Well, we'll sort that part out later, so nobody gets shot more than necessary." No. There wasn't even a NOD towards the sort of Home-Owners-Association-How-Big-Can-Your-Mailbox-Be Karening you're currently talking about, or any suggestion that it might be necessary or should ever be tolerated. It's not necessary if you just read the text of the 2A and then read all the contemporary to its authorship musings and debates if you think you need suspenders with that belt to hold up your liberty.

 

[Sunrise]

There is unlikely to be a substantive difference between the words “advantage police” and “police advantage” when you are simply referring to groups of words. They are two different quotes when you quote them however. That is the generally accepted definition of a quote.

Well considering that I actually quoted/copied the case footnote exactly… what’s the issue here for you?