{"id":97826,"date":"2023-11-17T15:00:38","date_gmt":"2023-11-17T21:00:38","guid":{"rendered":"https:\/\/milesfortis.com\/?p=97826"},"modified":"2023-11-17T15:00:38","modified_gmt":"2023-11-17T21:00:38","slug":"97826","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=97826","title":{"rendered":""},"content":{"rendered":"

Analysis: \u2018One Weird Trick\u2019 to Uphold Gun Restrictions Returns to Federal Court<\/a><\/p>\n

particularly flimsy legal theory has reappeared in federal Second Amendment litigation.<\/p>\n

On Monday, US District Judge John L. Kane\u00a0upheld Colorado\u2019s three-day waiting period<\/a>\u00a0for gun purchases. He ruled the sales restriction didn\u2019t violate the Second Amendment. His reasoning? The Second Amendment doesn\u2019t actually protect gun sales at all.<\/p>\n

\u201cAfter examining the language of the Second Amendment using the Supreme Court\u2019s analysis in\u00a0Heller<\/em>, I find, for the purposes of Plaintiffs\u2019 Motion, that the plain text does not cover the waiting period required by the Act,\u201d he wrote in\u00a0Rocky Mountain Gun Owners v. Polis<\/a>.<\/em>\u00a0\u201cThis conclusion is bolstered by the fact that the Act is a regulation on the commercial sale of firearms and thus is presumptively permissible.\u201d<\/p>\n

Judge Kane, a Jimmy Carter appointee, said the state\u2019s restriction passes the Second Amendment test established in the Supreme Court\u2019s\u00a0New York State Rifle and Pistol Association v. Bruen<\/em>\u00a0decision by effectively short-circuiting it. Instead of examining the historical record for analogs to the modern waiting period, he argued that was unnecessary because the \u201cright to keep and bear arms\u201d doesn\u2019t directly mention a right to buy, make, or sell them.<\/strong><\/p>\n

\u201cFrom this reading of the plain text, it is clear the relevant conduct impacted by the waiting period\u2014the receipt of a paid-for firearm without delay\u2014is not covered,\u201d he wrote. \u201cStill, Plaintiffs attempt to equate the words \u2018obtain\u2019 and \u2018possess.\u2019 But these terms are not equivalent. To \u2018keep,\u2019 under the definitions provided in\u00a0Heller<\/em>, meant to retain an object one already possessed. It did not mean to receive a newly paid-for item, and it certainly did not mean to receive that item without delay. Likewise, \u2018hav[ing] weapons\u2019 indicates the weapons are already in one\u2019s possession, not that one is receiving them.\u201d<\/p>\n

As I said when a judge in the Ninth Circuit\u00a0employed the same logic to uphold a homemade gun ban last year<\/a>, this is like a \u201cone weird trick that plaintiffs hate\u201d theory of\u00a0Bruen<\/em>. There\u2019s no need to perform the analysis the Supreme Court requires if you cut the case off before it even really begins.<\/strong><\/p>\n

\u201cThough it leads with a recognition of the primacy of\u00a0Bruen\u2019s<\/i> \u2018plain text\u2019 point, [the plaintiff] seeks in its opening brief to jump ahead in the analysis to a historical\/tradition assessment (and to jump ahead in\u00a0Bruen<\/em>\u00a0to that decision\u2019s discussion of how to conduct such an assessment),\u201d Judge George H. Wu wrote in\u00a0his ruling<\/a>\u00a0rejecting a request for a preliminary injunction against California\u2019s ban on unserialized homemade guns. \u201cBut it has effectively attempted to avoid the necessary threshold consideration \u2013 does the \u2018Second Amendment\u2019s plain text\u2019 cover the issue here? No, it plainly does not. AB 1621 has nothing to do with \u2018keep[ing]\u2019 or \u2018bear[ing]\u2019 arms.\u201d<\/p>\n

There has been a lot of disagreement among the lower court as to how best to implement the\u00a0Bruen<\/em>\u00a0test. Judges have come down on different sides of whether the same restrictions have relevantly similar historical analogues. That disagreement will likely continue until the Supreme Court steps in and further clarifies how lower courts should carry out its test\u2013a process it\u2019s expected to start in its current case\u00a0United States v. Rahimi<\/em>.<\/p>\n

But the idea that the Second Amendment guarantees the right to keep and bear arms but not the right to make or acquire arms isn\u2019t likely to be part of that clarification. It\u2019s simply too cute by half. The argument makes you wonder what exactly Judge Kane and Wu think the point of protecting keeping and bearing arms is if the government can simply ban their manufacture or sale.<\/p>\n

Judge Kane seemed to realize this because he did go through an attempt to do the actual Bruen analysis. He ruled that the law would still stand even if the Second Amendment protects sales. He argued colonial-era laws that disarmed intoxicated people were relevantly similar to the waiting period because both aimed at \u201cpreventing impulsive acts of firearm violence.\u201d<\/p>\n

\u201cThese measures are sufficient to show that our Nation had a historical tradition of regulating the carrying and use of firearms by intoxicated individuals,\u201d Judge Kane wrote. \u201cPlaintiffs do not seem to dispute this determination, but instead focus on whether those regulations are \u2018relevantly similar\u2019 to the Waiting-Period Act. For the purposes of this proceeding, I hold that they are.\u201d<\/p>\n

That line of argument doesn\u2019t seem much more likely to persuade the Supreme Court\u2013if it ever makes it that far up the ladder. But it at least engages with the test the Court handed down. The idea that the Second Amendment provides no protection at all to the act of acquiring arms is little more than an attempt to hand wave away\u00a0Bruen<\/em>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Analysis: \u2018One Weird Trick\u2019 to Uphold Gun Restrictions Returns to Federal Court particularly flimsy legal theory has reappeared in federal Second Amendment litigation. On Monday, US District Judge John L. Kane\u00a0upheld Colorado\u2019s three-day waiting period\u00a0for gun purchases. He ruled the sales restriction didn\u2019t violate the Second Amendment. His reasoning? The Second Amendment doesn\u2019t actually protect … 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":[23,11,9,24],"tags":[],"class_list":["post-97826","post","type-post","status-publish","format-standard","hentry","category-courts","category-crap-for-brains","category-enemies-foreign-domestic","category-rights"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/97826","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=97826"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/97826\/revisions"}],"predecessor-version":[{"id":97828,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/97826\/revisions\/97828"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=97826"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=97826"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=97826"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}