Turning BRUEN On Its Head

The Firearms Policy Coalition and the Second Amendment Foundation are suing Washington over its “high capacity” (10+ rounds) magazine ban. That’s old news in itself. What is new is that the Aliiance for Gun Responsibility joined the case as “intervenor-defendant.”

Yes, someone petitioned the court to be sued. Odd, but not unprecedented. More often if someone thinks they have valid points to bring to the court’s attention they would file an amicus brief. But actually being a party to the case gives them more leeway to file motions and responses and potentially call more witnesses.

But I couldn’t help wondering exactly what the AGR, the primary backers of the ban, expected to bring before the court that the existing governmental defendants couldn’t or wouldn’t.

The Alliance specifically denies Paragraph 38’s assertion that LCM regulations are “recent phenomena.”
[…]
The Alliance specifically denies Paragraph 39’s assertion or suggestion that LCMs have been common in America (or anywhere else in the world) for hundreds of years.

Wait. What? Large capacity magazines aren’t recent but have been around for quite a while, but they haven’t been around for quite a while? They regulated something that hadn’t been around?

The Alliance admits that, to the extent weapons capable of firing more than ten rounds existed before the 20th century, they were experimental, unusual, impractical, unreliable, prohibitively expensive, or otherwise not analogous to modern firearms equipped with LCMs—and thus unlikely to necessitate government regulation. The Alliance admits that the only known example in existence of the Wheellock rifle was made in Germany around 1580 and was capable of firing 16 shots.

Basically, we are looking at a –admittedly confused — variation of the old “the founders never envisioned anything but single-shot muskets” argument. Buy with a weird twist to account for the ruling in BRUEN.

The Alliance admits that, to the extent weapons capable of firing more than ten rounds existed before the 20th century, they were experimental, unusual, impractical, unreliable, prohibitively expensive, or otherwise not analogous to modern firearms equipped with LCMs— and thus unlikely to necessitate government regulation.

BRUEN requires that gun control laws and regulations have a basis in general, historical tradition.

The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. Of course, 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. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it.

AGR is arguing that specific firearms — innovations — have a basis in such tradition, or they can by default be regulated. AGR’s attorney, Kai Smith, just got BRUEN completely ass-backwards.

Never mind that SCOTUS disposed of that very argument in BRUEN. Or, for that matter, in the earlier Caetano v. Massachusetts (2016)

the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding”

AGR would have us — and specifically the court — believe that the only reason that the government didn’t “envision” magazine limits was that they didn’t envision “high capacity” magazines. And of course if they’d anticipated that, they would have preemptively banned such Progress of Science and useful Arts”.

Instead of promoting innovation.

Pro-tip, AGR: Just because Madison didn’t invent “high capacity” magazine-fed semi-automatic firearms does not mean he didn’t anticipate such a possibility.

James Madison, known for his role in drafting the Bill of Rights (including that pesky 2A) lived through the rise of repeating firearms, breechloaders, paper cartridges, percussion caps, metallic cartridges, pinfire cartridges, centerfire cartridges, revolvers, and mass production of firearms.
[…]
Yet never once did Madison stop and say, “Whoa, guys! We didn’t have any of this new shit in mind. The Second Amendment is just for muskets.”

It’s almost as if they foresaw “Progress of Science and useful Arts” — including arms. And communications systems. You might even get the impression they sought to “promote” such advancements by “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

This — aside from the lack of a law degree — is why I’ll never be a federal judge. I’d have sanctioned attorney Kai Smith for that frivolous, self-contradictory filing that completely reverses the meaning of two separate Supreme Court rulings.

 

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