Category: Courts

BLUF
A decision point is coming. Decisive action by the Chief Justice could save the judicial branch by restoring the judicial modesty that preserves the respect of the other branches. If only we could be confident that John Roberts was wise enough to do it.

The Agony of John Roberts.

Pity poor John Roberts. No, he’s not corrupt or compromised. He is simply a man who has found himself at a pivotal time and place in a position of great responsibility for which he is utterly unsuited. He’s not a dumb man. He is, in fact, a very smart man – Hugh Hewitt knew him personally in the Reagan administration and testifies to that. I have no doubt it’s true. I know many smart people who have similar flaws. As objectively intelligent as John Roberts is, he is unwise, and he is endangering the institution he wants to preserve because he does not understand human nature or the times he finds himself in.

Frankly, I’ll take wisdom over raw intellect any day of the week.

If he had the capacity to lead that he so manifestly lacks, John Roberts could save his institution with decisive and bold action. But that’s not who he is. Understand what John Roberts wants. He is an institutionalist who has always wanted to protect the judiciary branch. He wants it to be a fully co-equal branch that is respected by all. But the very actions he has chosen to take – or not to take – in response to the current crisis of out-of-control subordinate courts are guaranteeing that it will fall. Continue reading “”

The Unitary Executive Meets the Unitary Judiciary

The Use of Nationwide Injunctions by U.S. District Courts

Authors

Paul Larkin

Paul Larkin

Rumpel Senior Legal Research Fellow

giancarlo

GianCarlo Canaparo

Senior Legal Fellow, Edwin Meese III Center

Federal courts may—and should—supply complete relief to a victorious party, but that can be done without granting strangers the same judicially enforceable rights that a judgment provides to a successful litigant. Nationwide injunctions not only cross that line, but also prevent the federal government from enforcing an act of Congress, executive order, or agency rule against nonparties. Unless and until Congress endorses that practice, the federal courts should limit the reach of their judgments to the parties to a lawsuit. The Supreme Court would need to overrule its unanimous decisions in Zbaraz and Mendoza to uphold a nationwide injunction like the ones that have been entered against the government. That is as unlikely as it would be unwise.

Key Takeaways

  1. Supplying complete relief to a victorious party can be done without granting strangers the same judicially enforceable rights that a successful litigant enjoys.
  2. Nationwide injunctions both cross that line and prevent the federal government from enforcing an act of Congress, executive order, or agency rule against nonparties.
  3. Unless and until Congress endorses that practice, the federal courts should limit the reach of their judgments to only the parties to a lawsuit.

[FYI; It’s l-o-n-g, and like all legal treatises by lawyers, they interject the  source of citation directly after a cite, breaking up the text and making it difficult to read.]

So:

Introduction: The Practice of Issuing Nationwide Injunctions

The Unitary Executive Theory1

Continue reading “”

Judge includes new USAID head in order against dismantling the agency

Days after a federal judge blocked billionaire Elon Musk and the U.S. DOGE Service from taking further actions to dismantle the U.S. Agency for International Development, he made clear in a separate ruling this week that the prohibition also applied to the agency’s new chief operating officer — a former DOGE team leader inside USAID who started his new role on the day of the first order.

Jeremy Lewin, a 28-year-old Harvard Law School grad on DOGE’s team dismantling USAID, joined the humanitarian agency Tuesday as its chief operating officer and deputy administrator for policy and programming, according to a court filing Wednesday by the Department of Justice. The Department of Justice asked the Maryland federal judge to clarify or modify his order so that it wouldn’t apply to Lewin.

U.S. District Judge Theodore D. Chuang, in declining the request Thursday, added that he reserves the right to modify the preliminary injunction to expand who it applies to if “additional personnel actions have the effect of circumventing” it.

On Friday, the Department of Justice filed notice that it will appeal Chuang’s original ruling to the U.S. Court of Appeals for the Fourth Circuit.

Continue reading “”

Supreme Court Second Amendment Update 3-20-2025

Given that the Supreme Court has scheduled a “large capacity” magazine ban cert petition to tomorrow’s conference for the ninth time (plus two reschedules), the timing of the 9th Circuit Court of Appeals en banc panel upholding California’s ban on magazines that hold more than ten rounds is interesting.

“[T]he en banc court concluded that California’s law comported with the Second Amendment for two independent reasons. First, the text of the Second Amendment does not encompass the right to possess large-capacity magazines because large-capacity magazines are neither “arms” nor protected accessories. Second, even assuming that the text of the Second Amendment encompasses the possession of optional accessories like large-capacity magazines, California’s ban on large-capacity magazines falls within the Nation’s tradition of protecting innocent persons by prohibiting especially dangerous uses of weapons and by regulating components necessary to the firing of a firearm.” Here is a link to the decision.

In any event, there are other Second Amendment cert petitions scheduled for the conference. I’ve listed them below, along with the questions presented. Clicking on the docket number will take you to the SCOTUS docket, where you can take a deep dive into the petitions.

Continue reading “”

I’m actually shocked.

New York’s Top Court Rules Noncitizen Voting in NYC Elections Is Unconstitutional.

New York’s highest court struck down NYC’s controversial law allowing non-citizens to vote in a 6-to-1 decision, limiting voting only to citizens after a three-year legal battle.

In a blow to Democrats, liberal judges on the New York State Court of Appeals sided with their conservative colleagues on March 20 to reject the law as unconstitutional in a major victory for voter integrity.

The law, which was passed by the Democrat-run New York City Council in December 2021, would have enabled nearly 800,000 “lawful permanent residents” with green cards, work authorization and DACA status, and who have lived in the city for at least a month, to vote to vote in local elections.

Non-citizens under those categories would have been entitled to vote in city elections for mayor, comptroller, public advocate, borough president and the City Council, thus giving the Democrats an even larger majority of votes.

Continue reading “”

Ninth Circuit Upholds California Mag Ban, But Not Without Epic Dissent From Trump-Appointed Judge

Thursday’s decision by the Ninth Circuit Court of Appeals upholding California’s ban on “large capacity” magazines wasn’t exactly unexpected, but the video dissent from Judge Lawrence Van Dyke was a curveball that I doubt anyone saw coming.

An en banc panel had previously ruled the state’s magazine ban in line with the Second Amendment, but SCOTUS vacated that decision and remanded the case back to the appellate court after Bruen in 2022. In turn, the Ninth Circuit sent the case back down to U.S. District Judge Roger Benitez, who’d previously declared the ban unconstitutional. Benitez reached the same conclusion the second time around, and just like before an en banc panel has now overruled the West Coast “saint” of the Second Amendment.

“First, the Founders protected the right to keep and bear ‘Arms,’ not a right to keep and bear ‘Arms and Accoutrements,’ a common expression at the time of the Founding,” the opinion said. “Large-capacity magazines are optional accessories to firearms, and firearms operate as intended without a large-capacity magazine. A large-capacity magazine is thus an accessory or accoutrement, not an ‘Arm’ in itself. Possession of a large-capacity magazine therefore falls outside the text of the Second Amendment.”

The judges wrote that even if large-capacity magazines were covered by the Second Amendment, “California’s law falls neatly within the Nation’s traditions of protecting innocent persons by prohibiting especially dangerous uses of weapons and by regulating components necessary to the firing of a firearm.”

Under the Ninth Circuit’s argument, virtually all detachable magazines, regardless of their capacity, would fall beyond the Second Amendment’s protections because they’re “accoutrements” and not arms. The Court tried to get around that absurdity with its argument about a national tradition of prohibiting “especially dangerous uses of weapons”; establishing a whole new test that flies in the face of existing Supreme Court precedent. Going back to Heller the Court has held that arms that are in common use for lawful purposes are, prima facie, protected by the right to keep and bear arms. Magazines that can hold more than ten rounds aren’t just common, they’re ubiquitous, and they are possessed and used by far more lawful gun owners than violent criminals or mass shooters.

Three judges appointed during President Donald Trump’s first term authored dissenting opinions. Judge Ryan Nelson wrote that his colleagues flouted the standard set by the Bruen ruling and in so doing “(butchered) the Second Amendment and (gave) a judicial middle finger to the Supreme Court.”

Judge Lawrence VanDyke included in his dissent a video of himself operating firearms in his chambers. Seven of the eight judges who were part of the majority opinion joined in an opinion calling the video “wildly improper,” both because the video introduced facts that were not part of the record and because VanDyke appeared to be attempting to offer expert testimony.

It may be wildly improper in the eyes of VanDyke’s gun-controlling colleagues, but frankly I’d like to see more of this. Most folks aren’t going to read through more than 100 pages of legal arguments, but they’d be much more inclined to watch an 18-minute video on YouTube.

Continue reading “”

What’s been made crystal clear is what they would really rather Trump simply go away so they can return to their normal, everyday corruption. This includes the courts.

Chief Justice Roberts Speaks

Today, Chief Justice Roberts issued a statement:

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.

This statement follows on the heels of the Judicial Conference meeting last week, in which Judges Sutton and Sullivan raised similar alarms about impeachment:

“Impeachment shouldn’t be a short circuiting of that process,” Sullivan said. “And so it is concerning if impeachment is used in a way that is designed to do just that.”

U.S. Circuit Judge Jeffrey Sutton, an appointee of Republican President George W. Bush on the Cincinnati-based 6th U.S. Circuit Court of Appeals who chairs the Judicial Conference’s executive committee, echoed those comments.

“One thing worth keeping in mind is if we dilute the standards for impeachment, that’s not just a problem for judges,” Sutton said. “That’s a problem for all three branches of government.”

I think we need a sense of perspective.

Last year Representative AOC and other members of Congress introduced articles of impeachment against Justices Thomas and Alito. As best as I can recall, Roberts said nothing about this. Likewise, the Federal Judges Association and the American Bar Association said not a word about the never-ending crusade against two members of the Supreme Court. These attacks were never about disclosures. These critics were trying to delegitimize the Court. Yet, everyone was silent.

Likewise, in 2023, Senator Ron Wyden told President Biden to “ignore” any ruling from Judge Matt Kacsmaryk concerning mifepristone. We aren’t talking about turning planes around over international waters. This would be a ruling that could be timely appealed in the normal course. Yet Roberts did not say a word about this in his end-of-year address or anywhere else. The FJA, the ABA, and all the usual suspects were silent. To the contrary, the Judicial Conference acceded to the criticism of Judge Kacsmaryk by trying to force down a rule to take cases away from him! I realize that Chief Justice Roberts is hitting the panic button, but his protest has started a bit too late.

Taking a step back, I think the standard for the impeachment process has indeed been diluted. At least with regard to the presidency, the first Trump Administration demonstrated that nebulous offenses that are untethered to any actual crime were impeachable offenses. Remember “abuse of power”?

Continue reading “”

A great Second Amendment victory in the 9th CCA, for now.
21-16756 Todd Yukutake, et al v. Anne E. Lopez, et al

On Friday, March 14, 2025, a divided three-judge panel of the 9th Circuit Court of Appeals held that two Hawaii laws violate the Second Amendment. Invalidating the two laws, in and of themselves, although a victory, was not a great victory.

The most important thing is how the laws were invalidated.

Charles Nichols’ Substack is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.

Unless the three-judge panel decision is vacated and the decision subsequently overruled by an en banc panel of the 9th CCA (or the US Supreme Court), the three-judge panel decision will be binding on all subsequent three-judge panels deciding Second Amendment cases.

The two laws invalidated were 1) a permit to purchase a handgun that expired 30 days after it was issued and 2) a requirement that newly purchased firearms be brought to a police station to verify that the paperwork to purchase the firearm matched the firearm.

Two of the three judges on the panel facially invalidated the two laws.

Why is this of great importance? Because in 2022, the United States Supreme Court held in US v. Rahimi that a Second Amendment facial challenge fails if there are any constitutional applications of the law (seemingly, a single application is all it takes for a facial challenge to fail).

Continue reading “”

SAF FILES RESPONSE BRIEF WITH SCOTUS IN MINNESOTA CARRY CASE

BELLEVUE, Wash. — March 10, 2025 — Attorneys representing the Second Amendment Foundation and its partners in a case challenging the State of Minnesota’s prohibition on licensed concealed carry by young adults ages 18-20 have filed a response brief with the U.S. Supreme Court encouraging the justices to “grant plenary review and set the case for argument.”

The case is known as Jacobson v. Worth, originally filed in June 2021 as Worth v. Harrington. SAF is joined by the Minnesota Gun Owners Caucus, Firearms Policy Coalition, and three private citizens, Kristin Worth, for whom the case is named, Austin Dye, and Axel Anderson. While all three have turned 21, the Eighth Circuit Court granted a motion to supplement the record and allow another individual, Joe Knudsen, to carry the complaint. They are represented by attorneys David H. Thompson, Peter A. Patterson, John D. Ohlendorf and William V. Bergstrom at Cooper & Kirk in Washington, D.C.

SAF won this case at trial and at the appeals court level. Minnesota is appealing the ruling.

“Today’s filing is unique in that we are agreeing with Minnesota’s request in asking the Supreme Court to hear our case to resolve a dispute between the circuits,” said SAF Executive Director Adam Kraut. “The lower courts are not unanimous in their approach to the Second Amendment rights of 18-20-year-olds. It is important that the Court weigh in to confirm that 18-20-year-olds are part of ‘the People’ and the Second Amendment applies in full to those individuals. The ban Minnesota seeks to uphold eviscerates the right of those adults to be able to carry a firearm for self-defense. This is patently unconstitutional and while we prevailed at the court of appeals, the Supreme Court needs to ensure all the lower courts reach the proper result. By taking this case, they can do just that.”

“A clear majority of federal courts have already protected the Second Amendment rights of young adults,” added SAF founder and Executive Vice President Alan M. Gottlieb. “As we note in our brief, we are not aware of any evidence of colonial or Founding-era laws restricting 18-to-20-year-olds from their right to keep and bear arms. Indeed, history is full of evidence that people in this age group were not prevented from keeping or carrying their own arms.”

The Only “Constitutional Crisis” is That Democrats Lost, Now They’re Trying To Govern from the Courtroom

My Hot Take on Democat Lawfare: “There is no constitutional crisis other than the Democrats lost. They are trying to create a constitutional crisis by having the judiciary and the federal district courts assume control of the executive branch.”

Democrats have launched a pre-planned, well-organized lawfare campaign against the Trump administration.

The NY Times reported in late November 2024 on the massive effort which was two-years in the making and in the immediate post-election period focused heavily on finding plaintiffs and lining up legal groups to challenge expected Trump policies:

More than 800 lawyers at 280 organizations have begun developing cases and workshopping specific challenges to what the group has identified as 600 “priority legal threats” — potential regulations, laws and other administrative actions that could require a legal response, its leaders said. The project, called Democracy 2025, aims to be a hub of opposition to the new Trump administration….

Democracy Forward has spent the last two years working to identify the possible actions the new Trump administration could take on issues they see as key priorities to defend, the group’s leaders said, using as a blueprint Mr. Trump’s first-term actions, his campaign promises and plans released by his allies, including the Heritage Foundation and its Project 2025 agenda….

The flotilla of lawyers is preparing to challenge new regulations released by the Trump administration, even beginning the process of recruiting potential plaintiffs who would have legal standing in court.

We have seen the fruits of the lawfare planning in the opening three weeks of the Trump administration, with several dozen lawsuits filed, and many (not all) district court judges willing at least to grant temporary restraining orders, incuding one ex parte TRO issued by an emergency duty judge at 1 a.m. last Saturday morning that by its terms removed political appointee control of Treasury payment systems. (That TRO was scaled back by the judge permanently assigned to the case, and is under review by her in a ruling expected soon.) It may be that the short-term TROs are not extended to longer-term preliminary injunctions, and if that happens the “crisis” may solve itself, but I’m not hopeful.

Here is my ‘hot take’ on how the lawfare, not the Trump administration, is creating the real ‘constitutional crisis’. This is a short excerpt from my much longer (almost 20 minute) explanation as part of the podcast we just posted.

Continue reading “”

“Oopsie, Too Late” El Salvador President Mocks Judge Boasberg After Flights Land With Several Hundred Venezuelan Gang Members Deported by President Trump

President of El Salvador Nayib Bukele mocked U.S. District Judge James Boasberg after two flights from the U.S. carrying nearly between 250 and 300 Venezuelan and other gang members landed in El Salvador despite Boasberg’s emergency order issued Saturday evening in a case brought by the ACLU to turn the planes around and return the gang members to the U.S.

According to U.S. Secretary of State Marco Rubio, a few MS-13 gang members and most wanted fugitives were among the over 250 Tren de Aragua Venezuelan gang members deported after President Trump invoked the 1798 Alien Enemies Act.

El Salvador receives members of the Venezuelan gang Tren de Aragua who were deported by President Trump, screen image via President Nayib Bukele, posted March 16, 2025
El Salvador receives members of the Venezuelan gang Tren de Aragua who were deported by President Trump, screen image via President Nayib Bukele, posted March 16, 2025

Bukele posted, “Oopsie…Too late ” over a New York Post headline that reads, “Fed judge orders deportation flights carrying alleged Venezuelan gangbangers to return to US after Trump invokes Alien Enemies Act”

 

Bukele also posted video of the nighttime arrival of the deportees, showing the gang members being removed from the planes in shackles and then being taken to El Salvador’s supermax security prison, CECOT, the Terrorism Confinement Center, in a massive security operation.

Continue reading “”

And speaking of….

Big Win for Trump: Appeals Court Admits Truth About DEI Purge Before Giving Administration the Green Light

An appeals court ruled Friday that, contrary to what a previous judge had ruled, there was no constitutional right to bear DEI.

According to Reuters, the 4th U.S. Circuit Court of Appeals based in Richmond, Virginia sided with President Donald Trump and his administration, positing that a ban on diversity, equity, and inclusion programs ordered by the White House was likely constitutional.

While the ruling from the court was a mixed blessing — two of the three judges also wrote a separate opinion that DEI policies aren’t unconstitutional — the move means that the administration can move forward with a suite of programs that would end programs at federal agencies and entities which receive federal funds.

“This is a difficult case that will benefit from more sustained attention than we can give it in the present posture,” wrote Judge Pamela Harris, who was appointed to the bench by former President Barack Obama, according to The Wall Street Journal.

“But for now, I believe the government has shown a sufficient likelihood of success to warrant a stay until we can hear and decide its appeal.”

She was joined in that opinion by Judge Albert Diaz, who also felt that the final decision might depend on implementation and not the basics.

“Despite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium,” Diaz wrote.

The third judge, Trump appointee Allison Jones Rushing, said in a separate opinion that the government was likely to succeed in making its constitutional arguments about DEI.

The case was initially filed by the city council of Baltimore, with three other co-plaintiffs. All four receive federal funding and have DEI-promoting initiatives.

Trump, the Baltimore city council said in its lawsuit, “cannot usurp Congress’s exclusive power of the purse, nor can he silence those who disagree with him by threatening them with the loss of federal funds and other enforcement actions.”

Biden appointee Judge Adam Abelson of the U.S. District Court for the District of Maryland agreed in February, writing that the orders may violate the First Amendment.

“As Plaintiffs put it, ‘efforts to foster inclusion have been widespread and uncontroversially legal for decades,'” Abelson wrote in his decision, according to Reuters. “Plaintiffs’ irreparable harms include widespread chilling of unquestionably protected speech.”

Deputy White House chief of staff Stephen Miller argued that DEI programs violate the Civil Rights Act by illegally discriminating against individuals to promote women and minorities.

“A judge cannot nullify the Civil Rights Act and order the government to award federal taxpayer dollars to organizations that discriminate based on race,” Miller said at the time.

The 4th Circuit’s findings seemed to indicate that court didn’t buy the First Amendment defense.

In addition, Rushing’s opinion said that policy preferences on the court have little to do with the lawfulness or constitutionality of the executive orders.

“A judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding this case,” Rushing wrote.

However, the decision would only allow the administration to temporarily implement its ban on the programs; the lower court’s decision “will remain in place pending the outcome of the Trump administration’s appeal, which could take months,” Reuters noted.

Nevertheless, it’s a big win for the Trump administration: three judges, two appointed by Obama, admitting the truth about the legality of the DEI purge while the left argues that discrimination somehow equals free speech. The battle might not be over, but it’s one heck of a W to notch for the new president.

Judicial Overreach and the Separation of Powers: Why Judges Cannot Run the Executive Branch

The United States Constitution is built on a system of separation of powers, ensuring that each branch of government—the legislative, executive, and judicial—operates within its own clearly defined sphere of authority. Article II of the Constitution explicitly vests executive power in the president, granting him the sole authority to run the executive branch, hire and fire federal employees, and manage the implementation of federal policy.

However, in recent years, judicial overreach has increasingly threatened this fundamental structure. Activist judges have repeatedly interfered with executive decisions, particularly regarding federal employment and budgetary matters, effectively attempting to seize control of the executive branch. This kind of judicial activism is not only unconstitutional but also dangerous to the very principles of self-governance and democratic accountability.

The Executive Power Belongs to the President Alone

Article II, Section 1 of the U.S. Constitution states: “The executive power shall be vested in a President of the United States of America.” This is not an ambiguous statement—it makes clear that executive authority belongs to the President, not to Congress, not to the courts, and not to unelected federal bureaucrats.

Among the responsibilities that come with executive power is the authority to hire and fire federal employees. The president, as the head of the executive branch, is responsible for ensuring that federal employees serve the interests of the American people effectively and efficiently. If an administration determines that certain employees are unnecessary, redundant, or incompetent, it is well within the president’s constitutional authority to dismiss them. No federal employee has a constitutional right to a government job. Employment in the federal government is not a protected right, and courts have no legitimate authority to override the president’s decisions on workforce management.

Despite this clear constitutional framework, we have seen repeated attempts by liberal judges to interfere with the executive branch’s authority by blocking efforts to reduce the federal workforce, demanding that terminated employees be rehired, or even forcing the president to spend taxpayer money on wasteful programs that he deems unnecessary. Such rulings are blatant violations of the separation of powers and represent an unacceptable intrusion into executive functions.

Continue reading “”

Court upholds Florida gun law that bars people under 21 from buying rifles
Friday’s ruling by the full Atlanta-based appeals court upheld a three-judge panel’s decision and outlined the history of the nation’s gun laws, from its founding to recent U.S. Supreme Court decisions setting guidelines for determining how to apply the Second Amendment.

Saying the restriction is “consistent with our historical tradition of firearm regulation,” a federal appeals court on Friday upheld the constitutionality of a Florida law that raised the minimum age to purchase rifles and other long guns from 18 to 21. [really? What ‘historical tradition?]

The 8-4 ruling by the 11th U.S. Circuit Court of Appeals came after seven years of legal wrangling in the National Rifle Association’s challenge to a 2018 law passed after a mass shooting at Parkland’s Marjory Stoneman Douglas High School that killed 17 students and faculty members.

Nikolas Cruz, who was 19 at the time, used a semiautomatic rifle to gun down the victims at his former school. The NRA filed a lawsuit challenging the constitutionality of the gun-age restriction shortly after the law passed.

Friday’s ruling by the full Atlanta-based appeals court upheld a three-judge panel’s decision and outlined the history of the nation’s gun laws, from its founding to recent U.S. Supreme Court decisions setting guidelines for determining how to apply the Second Amendment. While the law barred people under 21 from buying rifles and long guns, they still can receive them, for example, as gifts from family members.

“From this history emerges a straightforward conclusion: the Florida law is consistent with our regulatory tradition in why and how it burdens the right of minors to keep and bear arms,” Chief Judge William Pryor wrote. “Because minors have yet to reach the age of reason, the Florida law prohibits them from purchasing firearms, yet it allows them to receive firearms from their parents or another responsible adult.”

Judges Adalberto Jordan, Robin Rosenbaum, Jill Pryor, Kevin Newsom, Britt Grant, Nancy Abudu and Charles Wilson joined the majority opinion. Judge Andrew Brasher wrote a dissenting opinion, which was joined by Judges Elizabeth Branch, Barbara Lagoa and Robert Luck.

SCOTUS is going to have to do something about this and slap these silly lower courts down, or things aren’t going to be pretty

Seventh Circuit Panel: SBRs Aren’t ‘Arms’ Protected by the Second Amendment

The Second Amendment protects the right to keep and bear arms. That should mean any weapon used for offensive or defensive acts. The reason was very clear. It was intended for us to be able to maintain a militia that could defend this nation from all enemies, foreign and domestic.

But the Seventh Circuit has decided that short-barreled rifles, or SBRs, aren’t arms covered by the amendment.

(I had to use a screenshot that I linked since X is having issues with the embed codes)

Now, this is a problem for a lot of reasons.

First, let’s talk a bit about the Miller decision. Yes, it’s a Supreme Court decision that lower courts have had to contend with for ages now. However, Miller dealt with a sawed-off shotgun. The Court in that decision said that such a weapon had no militia use, thus it wasn’t covered by the Second Amendment. That was wrong, of course, because that ruling was issued in 1934, so after shotguns had been used so effectively in World War I that the Germans tried to get using them considered a war crime.

Further, Miller himself was dead, so there wasn’t really another side arguing one way or the other in that case.

Still, when you look at Bruen, it doesn’t say anything about how you can just decide something isn’t an arm simply because you don’t think it’s useful for warfare.

Of course, then there’s the fact that if SBRs aren’t useful for warfare as a tool of the militia, then why is the standard issue weapon for the United States Army technically an SBR? The M4 has a barrel length of 14.5 inches, which is an inch and a half shorter than what is necessary for a rifle to not be considered an SBR. If SBRs aren’t useful for militia use, then why is it issued to every one of our combat troops and was used in pretty much every firefight out troops saw in Iraq and Afghanistan?

Now, let’s talk about the “step two in our Bruen” thing that’s cut off.

We turn to step two in our Bruen analysis in the interest of completeness. As discussed below, even if short-barreled rifles were “arms” within the meaning of the Second Amendment, historical tradition likely supports regulating them.

The court goes on to argue that Rahimi permits similar but more modern laws can be considered.

Rahimi, 602 U.S. at 692. When the historical laws “address[ed] particular problems” there is a good chance “contemporary laws imposing similar restrictions for similar reasons” are also permissible. Id. The laws do not need to “precisely match”—the contemporary one must only “comport with the principles underlying the Second Amendment….” Id.

Now, I’m not an attorney, but this sure looks like the Rahimi decision seems to suggest that contemporary laws can be applied when the historical laws addressed either that problem or similar ones. In other words, if the Founding Fathers were trying to address drunk people carrying guns, as they did, a more contemporary law seeking to address a similar problem would apply.

Instead, the Seventh Circuit judges just decided to accept contemporary laws as good enough simply because they don’t like the idea of SBRs.

That’s not even getting into the possibility that these judges’ nominations might not even be valid since everything Biden signed looks to have been the result of an autopen and we can’t be sure Biden even knew what was happening in the first place.