WA AWB Case

The #1 community for Gun Owners of the Northeast

Member Benefits:

  • No ad networks!
  • Discuss all aspects of firearm ownership
  • Discuss anti-gun legislation
  • Buy, sell, and trade in the classified section
  • Chat with Local gun shops, ranges, trainers & other businesses
  • Discover free outdoor shooting areas
  • View up to date on firearm-related events
  • Share photos & video with other members
  • ...and so much more!
  • lazarus

    Ultimate Member
    Jun 23, 2015
    13,678
    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

    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."
    ARs sure aren't dangerous and unusual. A weapon can be though. Chemical weapons, nukes, heck cruise missiles. Etc.

    And I am pretty sure the current court will, if an AWB does get to them, better define dangerous and unusual. I notice some courts interpreting that as dangerous OR unusual. But I also think there is not a plurality on the court that is going to overturn the NFA. At least not completely. And I doubt they'll overturn Hughs. Maybe I am not an optimist, but I just don't see it happening.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    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.”

    What, exactly, would constitute "adequately disputing the issue"? This is the text of the Plaintiffs' reply brief on the subject of Bowie knives:

    Next the State points to “regulations on Bowie knives and pistols.” The state emphasizes that “[ s ]tarting in the 1830s and ending around the start of the twentieth century, ‘every state’ except New Hampshire ‘restricted Bowie knives.’ “ State Br. 21. But Plaintiffs are not aware of any antebellum statute that completely banned possession of Bowie knives. And there is significant evidence that the more onerous restrictions on Bowie knives were understood to violate the right to bear arms for self-defense unless they could be construed more narrowly. See Nunn v. Georgia, 1 Ga. 243 (1846); see also Heller, 554 U.S. at 612, 626, 629 (singling out Nunn as “particularly instructive” regarding the meaning of the Second Amendment). In fact, most of the restrictions cited by the State are not as severe as the restrictions at issue here, instead they often escalate punishments for crimes committed with Bowie knives, see 1837 Ala. Acts 7 (Ex. E at 1); 1853 Comp. L. Cal. § 127 (Ex. E at 9), or target concealed carry (or open carry with intent to do harm), see 1859 Ind. Acts 129 (Ex. E at 27), but leave the right to possess such weapons intact.

    In what ways does it not adequately dispute the issue?

    Bear in mind that this is the defense argument (from the State's PI opposition brief) the above is in response to:

    Knives are obviously very old, with a wide variety of knives having been utilized
    throughout human history for various purposes. But in the 1830s, the “Bowie knife” became popular in the U.S. after Jim Bowie used the distinctive knife to kill one man and injure another in a duel. Spitzer Decl., at p. 7; Rivas Decl., ¶ 13. The knives “were widely used in fights and duels, especially at a time when single-shot pistols were often unreliable and inaccurate.” Spitzer Decl., at p. 7; see also Rivas Decl., ¶ 14. Like assault weapons today, the demand for Bowie knives was partly fueled by their notorious reputation. Spitzer Decl., at p. 8. The proliferation of the knives, and their subsequent widespread criminal usage, prompted states to restrict them. Id. Starting in the 1830s and ending around the start of the twentieth century, “every state” except New Hampshire “restricted Bowie knives.” Id. at p. 9. Fifteen states “all but banned the possession of Bowie knives outright (by banning both concealed and open carry),” while others taxed their acquisition or possession, often prohibitively. Id.; see also id., Exs. C, E, H. “[T]hese taxes were clearly designed to discourage trade in and public carry of” Bowie knives. Rivas Decl., ¶ 26.
     
    Last edited:

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    What, exactly, would constitute "adequately disputing the issue"? This is the text of the Plaintiffs' reply brief on the subject of Bowie knives:



    Bear in mind that this is the defense argument (from the State's PI opposition brief) the above is in response to:




    In what ways does it not adequately dispute the issue?
    It does not explain why the states were creating the regulations. The defense argument is more involved than what you cite because they are referencing additional expert testimony that expand on the issue. The judge cited this additional testimony in his opinion.

    If you want to see how I addressed the issue look at the amicus brief I submitted in the 7th circuit. I did not have time to specifically address bowie knives, but there is additional briefings due in June so I can make some revisions to specifically address bowie knives.
     

    Attachments

    • JAC amicus barnett v raoul.pdf
      12.8 MB · Views: 29

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    It does not explain why the states were creating the regulations. The defense argument is more involved than what you cite because they are referencing additional expert testimony that expand on the issue. The judge cited this additional testimony in his opinion.

    If you want to see how I addressed the issue look at the amicus brief I submitted in the 7th circuit. I did not have time to specifically address bowie knives, but there is additional briefings due in June so I can make some revisions to specifically address bowie knives.

    Excellent.

    An additional argument that may be worth raising is this: The Supreme Court explicitly held that the government must demonstrate that the law in question "is consistent with the Nation's historical tradition of firearm regulation" (NYSRPA v Bruen, 142 S. Ct. 2111 at 2126). For a law to be consistent in that manner, it must be analogous to a law or type of law that had been adopted by the majority of states at or within one generation after the time of the adoption of the 2nd Amendment. And this is so because the purpose of the holding is to ensure that the law in question is consistent with the founding-era understanding of the 2nd Amendment, i.e. the understanding of those who were in the majority at the time of the adoption of the Bill of Rights, because "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them," (District of Columbia v Heller, 128 S. Ct. 2783 at 2821).

    So unless the majority of states had adopted Bowie knife laws by the time of or within one generation after the adoption of the 2nd Amendment, they are inapt for use as exemplars of laws that illustrate the "Nation's historical tradition of firearm regulation".

    It is not enough for the plaintiffs to merely fail to rebut the government's argument. The government's argument must stand on its own. That is what a demonstration is. That an argument has not been raised against it doesn't automatically grant it legitimacy (though obviously, the plaintiffs would be idiots to not address it anyway). The judge errs if he simply automatically adopts the government's argument irrespective of whether or not its legitimacy was positively and definitively demonstrated.

    And note, too, that Bowie knives are not firearms, so laws governing them probably should not be regarded as relevant even if they met all of the other requirements, because Bruen is explicit about the tradition in question being that of firearm regulation, and not arms regulation.
     
    Last edited:

    Bob A

    όυ φροντισ
    MDS Supporter
    Patriot Picket
    Nov 11, 2009
    30,687
    Seems to me that Bowie knives are the 19th century equivalent of "assault rifles."

    No one can define them adequately, they all look different, but OMG! SCARY!!

    Once again, the rational must submit to the fears of the ignorant and easily terrified. . . or not.
     

    Allen65

    Ultimate Member
    MDS Supporter
    Jun 29, 2013
    7,063
    Anne Arundel County
    Excellent.

    An additional argument that may be worth raising is this: The Supreme Court explicitly held that the government must demonstrate that the law in question "is consistent with the Nation's historical tradition of firearm regulation" (NYSRPA v Bruen, 142 S. Ct. 2111 at 2126). For a law to be consistent in that manner, it must be analogous to a law or type of law that had been adopted by the majority of states at or within one generation after the time of the adoption of the 2nd Amendment. And this is so because the purpose of the holding is to ensure that the law in question is consistent with the founding-era understanding of the 2nd Amendment, i.e. the understanding of those who were in the majority at the time of the adoption of the Bill of Rights, because "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them," (District of Columbia v Heller, 128 S. Ct. 2783 at 2821).

    So unless the majority of states had adopted Bowie knife laws by the time of or within one generation after the adoption of the 2nd Amendment, they are inapt for use as exemplars of laws that illustrate the "Nation's historical tradition of firearm regulation".

    It is not enough for the plaintiffs to merely fail to rebut the government's argument. The government's argument must stand on its own. That is what a demonstration is. That an argument has not been raised against it doesn't automatically grant it legitimacy (though obviously, the plaintiffs would be idiots to not address it anyway). The judge errs if he simply automatically adopts the government's argument irrespective of whether or not its legitimacy was positively and definitively demonstrated.

    Agreed. Unfortunately the Judiciary has been deferring to the Executive Branch's "expertise" for at least 4 decades across a wide range of issues, and it's going to be a hard habit to break. You think courts aren't following Bruen? Wait until SCOTUS overturns Chevron once and for all; the judicial intellectual laziness that deference enabled won't go away in the lower courts without a long, hard, deliberate fight, probably longer and harder than we're seeing with 2A because lots of money is involved.

    And note, too, that Bowie knives are not firearms, so laws governing them probably should not be regarded as relevant even if they met all of the other requirements, because Bruen is explicit about the tradition in question being that of firearm regulation, and not arms regulation.
    2A says "arms". As SCOTUS has said in Heller and affirmed in Caetano, "arms" encompasses all bearable items useful for offense or defense. Okay, I'm paraphrasing a bit. Anyway, non-firearm arms weren't among the issues presented to SCOTUS in Bruen, so they were not explicitly part of the decision. But SCOTUS jurisprudence is about more than just one case.
     

    HaveBlue

    HaveBlue
    Dec 4, 2014
    733
    Virginia
    In 69 pages, the word Heller appears 164 times.. including this passage

    “Having made the constitutional standard endorsed in Heller more explicit, the Court applies that standard to New York's proper-cause requirement. Pp. 23-62.”

    Maybe someone can correct me?…. I’m not aware of any part of Bruen that reigns in or restricts Heller‘s holdings.
     

    Allen65

    Ultimate Member
    MDS Supporter
    Jun 29, 2013
    7,063
    Anne Arundel County
    In 69 pages, the word Heller appears 164 times.. including this passage

    “Having made the constitutional standard endorsed in Heller more explicit, the Court applies that standard to New York's proper-cause requirement. Pp. 23-62.”

    Maybe someone can correct me?…. I’m not aware of any part of Bruen that reigns in or restricts Heller‘s holdings.
    There's no part of Bruen that restricts Heller. Bruen clarifies Heller so that, in theory, lower courts will stop misapplying it in favor of the State. Unfortunately, it hasn't been effective in 2CA, 7CA, and 4CA (yet), which are exactly the Blue areas where SCOTUS was aiming the clarification.

    With Heller, SCOTUS gave general guidance. In Bruen, SCOTUS said "Maybe we weren't clear enough the first time, here's clarification on how to adjudicate these cases." With the next 2A case from an appellate panel or en banc to get before the Bruen 6 again, it's going to be "This is what you are directed to do."
     
    Last edited:

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    2A says "arms". As SCOTUS has said in Heller and affirmed in Caetano, "arms" encompasses all bearable items useful for offense or defense. Okay, I'm paraphrasing a bit. Anyway, non-firearm arms weren't among the issues presented to SCOTUS in Bruen, so they were not explicitly part of the decision. But SCOTUS jurisprudence is about more than just one case.

    Be that as it may, Bruen was a firearms case. This is a firearms case. So the argument that non-firearms laws are relevant to establishing the applicable National regulatory tradition for a firearms case, particularly this one, when Bruen's command (remember, it's in the holding) is explicit in saying that the tradition must be that of firearm regulation, seems like it would be a non-starter.

    The Supreme Court doesn't pen words just for fun. If it says something in a particular way, it means it in that particular way, especially in the holding. So that means that the fact that the holding explicitly said "firearm regulation", and not "arm regulation", is significant. It cannot legitimately be read to be indistinguishable from wording that uses other key terms that have a different meaning. To insist otherwise is to insist, ultimately, that we can substitute whatever meaning we wish for what was actually said.
     
    Last edited:
    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.
    Who's going to enforce it? Supreme Court doesn't have an enforcement unit they rely on the department of Justice for such and the department of Justice right now is run by a far left second amendment hating political advocate.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    Another of the WA AWB cases was denied a PI

    I don't understand why the court wouldn't have put a hold on it considering it's a brand new law. Far easier to hold the law and wait until the dust settles then let it go into affect a year or two only to have it knocked down.
    Again, we see similar pre-Bruen logic (you can simply buy another non-assault firearm, so no harm here).
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    Who's going to enforce it? Supreme Court doesn't have an enforcement unit they rely on the department of Justice for such and the department of Justice right now is run by a far left second amendment hating political advocate.
    It can't be enforced yet since it hasn't been specifically ruled on.

    If for example NY barred someone from a CCW due to lack of need then that would be enforceable.
     

    Users who are viewing this thread

    Forum statistics

    Threads
    274,918
    Messages
    7,258,752
    Members
    33,348
    Latest member
    Eric_Hehl

    Latest threads

    Top Bottom