Arms and the Law

Over at Instapundit. The place appears to be falling into Mad Max level dysfunction, and its citizens are learning to fight for themselves.

What they need is the appropriately-named Sheriff John Slaughter.

The Times discovers gun free zones don't protect anyone.

Right here. I have an 1859 book, "Rifle and Rifle Practice," in which the author points out how tactics must change in light of the advent of rifled muskets. Previously, artillery batteries attacking infantry would deploy at just beyond musket range, 200-300 yards, and shred the infantry with canister. Based on a British experiment with rifled muskets, the author concludes that a battery deploying at that range would be immobilized by hits on its horses in just a few minutes, and be unable to fire due to hits on its artillerymen in a few minutes more.

Why do courts consider legislative enactments, restrictions on the right to arms, as evidence of the popular understanding of the Second Amendment? Those seem to be the main focus in recent decisions.

The underlying reasoning must go like this: (1) legislators would not enact a law if they thought it was unconstitutional (yeah, I know this is quite an assumption) so (2) the fact that they did enact a restriction on a right (around the time of the framing(s)) is evidence, or at least suggestive, that what was restricted was not seen as within the right in question.

Apply that to the Second Amendment. As of Barron v. Baltimore (1833), the Supreme Court had ruled that the federal Bill of Rights did not restrict the states. As of the Slaughterhouse Cases and Cruikshank (1873 and 1876), the Supreme Court had ruled that the 14th Amendment didn't require states to conform to the federal Bill of Rights, either.

So state legislatures would have understood, throughout the 19th and 20th centuries, that the Second Amendment did not bind them. The above reasoning is thus without basis. A state legislature's enactments don't suggest that the legislators thought the restrictions comparable with the Second Amendment, because they wouldn't have thought that the Second Amendment constrained their actions.

Opinion here. Now, the defendant was someone who ought to be behind bars, for a long time, and fn. 4 suggests that he will be behind bars for a time on state charges. Given that, I wonder why the federales brought charges, over what was the least of his offenses. Maybe looking for publicity?

The Fifth Circuit notes that, under Bruen, the test is text, history, and tradition, and the analogs the government advanced were either inappropriate (the Militia Act of 1662, which was part of the basis of the 1688 Declaration of Rights) or simply stretching things too far.

Opinion here. The court expands the TRO to prevent enforcement in additional classes of alleged "sensitive places."

I received my ballot issue of TAR today, and these are my thoughts. Chime in with your own.

I personally am very impressed by Curtis Jenkins (just look at his bio for an idea of how committed he is to the cause--his bio starts with him being a Georgia legislator who introduced the first bill protecting manufacturers against BS lawsuits, 16 years in the GA House with NRA A+ ratings), and Steven Schreiner (he's committed as well, and earned in combat the Silver Star and Bronze Star with "v").

Others that do especially good service are Tom Arvas, Bill Carter, Charles Cotton, Walt Walter, Patrica Clark (in the competitions and shooting areas), and Amanda Suffecool sounds like she will be a useful addition.

As always, I'll be voting for the people I think are tops, not for the entire 26 that you are allowed to. Voting for the entire 26 means risking that your #25 or 26 will be elected over the head of the people you ranked #1 or 3.

Both FPC and the state have agreed to an order forbidding the state to enforce a new law forbidding handgun carry by, and issuance of concealed carry permits to, 18-20 year olds.

At PJ Media, Kevin Downey has a post on the issue. 33 in 22 days, that made the press, and at 3+ million per year, a few hundred thousand that did not.

"EVERYTOWN STATEMENT ON TEMPORARY RESTRAINING ORDER AGAINST THE PROTECT ILLINOIS COMMUNITIES ACT

SPRINGFIELD, Ill. - Everytown for Gun Safety and the Illinois chapter of Moms Demand Action, a part of Everytown for Gun Safety's grassroots network, released the following statement regarding the temporary restraining order issued by a state court judge against the Protect Illinois Communities Act, a critical gun violence prevention legislative package signed into law by Governor J.B. Pritzker earlier this month.

"We strongly disagree with the court's decision which focused on meritless claims of procedural defects in the passage of the law and included a gross misreading and misapplication of the recent U.S. Supreme Court case interpreting the Second Amendment," said John Feinblatt, president of Everytown for Gun Safety."

Opinion here. The local officials challenging the law argued that they had some mysterious "immunity" against state law because they were legislators. It doesn't work like that...

Story here. The charges will involve involuntary (negligent rather than intentional) manslaughter. I wonder that they didn't charge second degree murder, a killing that can include gross negligence: "if in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another."

Story here. The four cases will be argued on March 20. As the article notes, the Alito-Thomas concurrences in the earlier motion to stay may be functioning as a shot off the Second Circuit's bow. "Treat these matters with care, we're willing, even eager, to grant cert. on them."

Online here. As a guy who did admin law for ten years, I like it! It raises a novel point. It argues that, in the rule making process, notice and comment and final rule, ATF should be required to consider the Bruen standards. In most rule makings, nobody worries about constitutionality, but rule makings about firearms are arguably different. I know that when, eons ago, my friends at Interior promulgated a rule about protests on the White House sidewalk, the entire rule making centered on the First Amendment.

Unsigned ruling here. Justices Alito and Thomas add their opinion:

"I understand the Court's denial today to reflect respect for the Second Circuit's procedures in managing its own docket, rather than expressing any view on the merits of the case. Applicants should not be deterred by today's order from again seeking relief if the Second Circuit does not, within a reasonable time, provide an explanation for its stay order or expedite consideration of the appeal."

Nation Devastated As Congress Resumes Functioning. Well, we had a few days of peace.

Houston police ask customer who shot robber to come forward. I'm sure the victims who saw him will be unable to describe him well, so why volunteer?

Its response in the Supreme Court, in that case where the Court may be looking to rebuke both New York and the Second Circuit. It'd be a good response if this were the ordinary appeal, which it is not.

Mark Smith makes an interesting point, worth any 2A litigator's memorizing.

One of the tests mentioned in Heller, which took it from Miller, is whether the firearm at issue is one that is in "common use." (I disagree with this test, BTW. Miller just mentioned in passing that the early militia was expected to turn out with the firearms in common use at the time. That's a statement of historical fact, not a legal test. As a test, it turns circular -- if an arm is tightly restricted from its early history, it'll never be in common use).

Smith points out that in ATF's rule making on receivers, the agency states that the AR-15 is one of the most popular guns in America. Yes, that may be very useful in court.

His review of the decision striking down the NY ban on guns in churches, even if the church in question is good with that.