{"id":92334,"date":"2023-04-29T07:46:37","date_gmt":"2023-04-29T12:46:37","guid":{"rendered":"https:\/\/milesfortis.com\/?p=92334"},"modified":"2023-04-29T07:46:37","modified_gmt":"2023-04-29T12:46:37","slug":"92334","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=92334","title":{"rendered":""},"content":{"rendered":"

Delaware: Federal District Judge Finds Unusual Way to Ban Semi-Auto Guns & Magazines<\/a><\/p>\n

On March 27, 2023, Judge Richard G. Andrews of the U.S. District Court for the District of Delaware\u00a0issued an opinion that denied<\/a> the request for a preliminary injunction to stop enforcement of the State of Delaware\u2019s unconstitutional ban on some semi-automatic rifles and standard capacity magazines.<\/p>\n

Judge Andrews dug deeply into his interpretive consideration to find a way to deny the request for a preliminary injunction.<\/span><\/strong><\/p><\/blockquote>\n

With the clear guidance given by the\u00a0Supreme Court in the Bruen decision<\/a>\u00a0to clarify the Heller decision on the Second Amendment, Judge Andrews performed some mental gymnastics.<\/p>\n

The Bruen decision told lower courts to stop using the convoluted \u201ctwo-step\u201d framework to decide Second Amendment cases. The \u201ctwo-step\u201d frame was widely criticized as a way for the lower courts to treat the Second Amendment as a \u201csecond-class right\u201d in the Bill of Rights.<\/p>\n

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Under Bruen, the decision is to be precise. First, does an individual\u2019s conduct fall under the protection of the text of the Second Amendment? From Bruen p. 14:<\/p>\n

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Today, we decline to adopt that two part approach. In keeping with Heller, we hold that when the Second Amendment\u2019s plain text covers an individual\u2019s conduct, the Constitution presumptively protects that conduct.<\/span><\/strong><\/h3>\n<\/blockquote>\n
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Suppose the government claims to be allowed to regulate the protected conduct. In that case, the government has the burden of showing their regulation is consistent with the Nation\u2019s historical tradition of firearms regulation. From Bruen, p. 4:<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n
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The burden then falls on respondents to show that New York\u2019s proper-cause requirement is consistent with this Nation\u2019s historical tradition of firearm regulation.<\/span><\/strong><\/h3>\n<\/blockquote>\n

The most relevant time would be near the time of the ratification of the Second Amendment in 1791.\u00a0 The next most relevant time period would be, to a lesser degree, at the time of the ratification of the Fourteenth Amendment, in 1868, then to an even less extent, up to 1900.\u00a0Nothing after 1900 is considered relevant.<\/em><\/p>\n

In this case, the State of Delaware attempts to justify its infringements with several suspect claims.<\/p>\n

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  • They claim that semi-auto rifles (and some pistols) are not in common use for self-defense.<\/li>\n
  • They claim common use only applies to actually being fired in self-defense.<\/li>\n
  • They claim semi-auto rifles are unusual and dangerous.<\/li>\n
  • They claim magazines with a capacity of more than 17 rounds are unusual and dangerous.<\/li>\n
  • They claim magazines with a capacity of more than 17 rounds are not in common use for self-defense.<\/li>\n<\/ul>\n
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    In an interesting twist, Judge Andrews rejects all of those claims. He finds the semi-auto rifles and magazines which hold more than 17 rounds are NOT unusual and dangerous, and they are in common use for self-defense.<\/div>\n<\/div>\n<\/div>\n

    The defendants also claim that the semi-auto rifles and pistols, and magazines with a capacity of more than 17 rounds implicate unprecedented societal concerns and dramatic technological changes. From the opinion, p. 20:<\/p>\n

    Defendants argue that the instant regulations implicate \u201cunprecedented societal concerns\u201d and \u201cdramatic technological changes.\u201d<\/span><\/p><\/blockquote>\n

    This is what Judge Andrews hangs his decision on. He conflates the regulation of fully automatic firearms with semi-automatic firearms.\u00a0 He uses history from after 1900.\u00a0 He finds restrictions on concealed carry of Bowie knives to be similar to a ban on the ownership of semi-automatic rifles and pistols.<\/strong><\/p>\n

    Then Judge Andrews states any deprivation of Second Amendment rights is not irreparable harm, as it is in First Amendment cases.<\/p>\n

    Analysis:<\/h3>\n

    Judge Andrew is finding another way to institute an interest-balancing means-ends analysis, which the Supreme Court, in Bruen, declared improper.<\/p>\n

    The case will likely be appealed. It is not clear if the denial of a preliminary injunction is being appealed to the U.S. Court of Appeals for the Third Circuit. The Third Circuit includes Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands.<\/p>\n

    Delaware State Sportsmen\u2019s Association, Inc; Et Al Plaintiffs, V. Delaware Department Of Safety<\/p>\n