{"id":94938,"date":"2023-08-04T14:29:07","date_gmt":"2023-08-04T19:29:07","guid":{"rendered":"https:\/\/milesfortis.com\/?p=94938"},"modified":"2023-08-04T14:29:07","modified_gmt":"2023-08-04T19:29:07","slug":"94938","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=94938","title":{"rendered":""},"content":{"rendered":"

How a \u201cpoison pill\u201d in NYSRPA v. Bruen is being exploited by a lower court<\/a><\/p>\n

The last year has seen some significant successes in the restoration of our Second Amendment rights. From coast to coast, unreasonable gun laws written for the express purpose of harassing law-abiding citizens and infringing on the rights of the body politic are being struck down. Before the\u00a0Bruen<\/i>\u00a0text\/history\/tradition test, just about every infringement was rubber-stamped by biased anti-Rights judges who always put a thumb on the scale in favor of restrictions.<\/p>\n

Unfortunately, there is a sort of \u201cpoison pill\u201d in the Court\u2019s\u00a0Bruen<\/i>\u00a0decision that provides a small loophole that anti-Rights judges can drive a truck through. This is the \u201cunprecedented Societal Concern or dramatic technological changes\u201d caveat in the\u00a0Supreme Court\u2019s opinion<\/a>:<\/p>\n

While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach. <\/span><\/strong><\/span><\/p>\n

The regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. Fortunately, the Founders created a Constitution\u2014and a Second Amendment\u2014\u201cintended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.\u201d McCulloch v. Maryland, 4 Wheat. 316, 415 (1819) (emphasis deleted). <\/span><\/strong><\/span><\/p>\n

Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated. See, e.g., United States v. Jones, 565 U.S. 400, 404\u2013405 (2012) (holding that installation of a tracking device was \u201ca physical intrusion [that] would have been considered a \u2018search\u2019 within the meaning of the Fourth Amendment when it was adopted\u201d).<\/span><\/strong><\/span><\/p><\/blockquote>\n

To be fair, the Court\u2019s opinion talks about the importance of the right to keep and bear arms and how it has a fixed meaning and leaves it up to judges to apply those basic principles to circumstances beyond what the Founders specifically anticipated.\u00a0The context, however, is not the infringement of rights but consistent support for rights over time.<\/i>\u00a0To drive home the point, the Court provides an example from\u00a0United States v. Jones,<\/i><\/a>\u00a0and talks about how the installation of a GPS tracker was a physical intrusion that would have been considered a search. The Founders lived during an era when there was no electricity, but the Fourth Amendment is still applicable to small GPS devices that use signals from orbiting satellites to determine someone\u2019s location.<\/p>\n

But judges with inherent bias will take advantage of even the smallest opening, and we saw that yesterday at the United States District Court for the District of Connecticut in\u00a0National Association for Gun Rights v. Lamont,<\/i>\u00a0which deals with Connecticut\u2019s \u201cassault weapons\u201d ban. The plaintiffs in this case sought to get a preliminary injunction to stop the enforcement of Connecticut\u2019s \u201cassault weapons\u201d ban. The Court\u00a0denied the injunction<\/a>, saying that the plaintiffs have failed to show their likelihood of success on the merits.<\/p>\n

<\/p>\n

Bruen noted that \u201canalogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check,\u201d cautioning courts against upholding any law that only \u201cremotely resembles\u201d an analogue or striking laws down which do not have a historical \u201ctwin.\u201d Id. at 2133.<\/span><\/strong><\/span><\/p>\n

a) Whether Violence Perpetrated through Use of Assault<\/span><\/strong><\/span><\/p>\n

Defendants submit that the Challenged Statutes address an unprecedented societal concern and dramatic technological change that requires a more nuanced analogical inquiry to determine if the regulation is consistent with firearms regulation in America. <\/span><\/strong><\/span><\/p>\n

Amici Brady and March for Our Lives support Defendants\u2019 position that because semi- automatic firearms were not introduced until \u201cmore than half a century after ratification of the Fourteenth Amendment,\u201d the lack of a historical tradition of regulating them dating back to the Second and Fourteenth Amendments\u2019 enactments is \u201cmeaningless,\u201d and the Court should instead take a broader view of what may be a comparable analogue. (Brady Amicus at 17.) <\/span><\/strong><\/span><\/p>\n

Plaintiffs rejoin that because lawmakers in the Founding era were familiar with mass casualty and mass murder, mass shootings are instead a \u201cgeneral societal problem that has persisted since the 18th century.\u201d42 (Pls. Reply at 7) (quoting Bruen, 142 S. Ct. at 2132.)<\/span><\/strong><\/span><\/p><\/blockquote>\n

Semi-autos have been around for a long time and hardly represent a dramatic technological change. They are overwhelmingly used by law-abiding citizens for lawful purposes. Mass killings are not an \u201cunprecedented societal concern,\u201d and have been committed\u00a0using<\/a>\u00a0sharp<\/a>\u00a0objects<\/a>\u00a0and<\/a>\u00a0vehicles<\/a>\u00a0also<\/a>,\u00a0with<\/a>\u00a0dramatic body counts<\/a>. The District Court is taking advantage of a tiny opening like the\u00a0culvert at Helm\u2019s Deep<\/a>\u00a0and blowing up the fortifications protecting our right to keep and bear arms.<\/p>\n

This is par for the course, however. Justice Scalia provided\u00a0a small opening in\u00a0DC v. Heller<\/i><\/a>\u00a0when he wrote, \u201cFrom Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.\u201d<\/p>\n

The Supreme Court will soon need to weigh in, so this opening is not stretched in unforeseen ways to attack our rights yet again.<\/p>\n","protected":false},"excerpt":{"rendered":"

How a \u201cpoison pill\u201d in NYSRPA v. Bruen is being exploited by a lower court The last year has seen some significant successes in the restoration of our Second Amendment rights. From coast to coast, unreasonable gun laws written for the express purpose of harassing law-abiding citizens and infringing on the rights of the body … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,95],"tags":[],"class_list":["post-94938","post","type-post","status-publish","format-standard","hentry","category-courts","category-mendacity"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/94938","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=94938"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/94938\/revisions"}],"predecessor-version":[{"id":94939,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/94938\/revisions\/94939"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=94938"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=94938"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=94938"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}