"The law is hard to defend on logical, practical, or constitutional grounds."

[springfield shooter]

https://reason.com/2023/01/12/illinois-just-banned-assault-weapons-because-their-only-intent-is-mass-murder/?itm_source=parsely-api

 

If you aren't familiar with it, "Reason" is a libertarian leaning publication. Here's a two paragraph section of the article:

 

"Speaking of the Supreme Court, how is H.B. 5471 likely to fare against the inevitable constitutional challenges? In the 2008 case District of Columbia v. Heller, the Court said the Second Amendment covers arms "in common use" for "lawful purposes," a description that plainly applies to the guns and magazines that Illinois has banned. Last year in New York State Rifle & Pistol Association v. Bruen, the justices said gun control laws must be "consistent with this Nation's historical tradition of firearm regulation."

 

After Bruen, the Court vacated four appeals court decisions upholding state bans on "assault weapons" and "large capacity" magazines. It instructed the lower courts to reconsider those cases in light of Bruen. The Firearms Policy Coalition and other gun rights groups argue that "assault weapon" bans and magazine limits clearly fail the Bruen test."

 

 

[lilguy]

Have any AWBs enacted been thrown out or are they still in effect on appeal  or been rewritten and replaced?

[powderhead]

On 1/15/2023 at 3:05 PM, lilguy said:

Have any AWBs enacted been thrown out or are they still in effect on appeal  or been rewritten and replaced?

Thank you for that question.  I am wondering the same thing myself, and while we are asking questions.  What are the chances of getting an injunction to stop this until the courts have their say on the matter?

[Evil Porkchop]

On 1/15/2023 at 5:13 PM, powderhead said:

Thank you for that question.  I am wondering the same thing myself, and while we are asking questions.  What are the chances of getting an injunction to stop this until the courts have their say on the matter?

Sort of, after being appealed to SCOTUS, they remanded then back to the circuit courts and said apply Bruen. Which is basically telling the circuits you were wrong to uphold AWBs.

[Upholder]

On 1/15/2023 at 5:05 PM, lilguy said:

Have any AWBs enacted been thrown out or are they still in effect on appeal  or been rewritten and replaced?

 

 

There are also cases in Colorado where AWBs have been overturned.

 

You've asked this question a number of times and it has been answered repeatedly.  AWBs have been found unconstitutional at all levels of courts, up to and including the Supreme Court of the United States.

[mab22]

On 1/15/2023 at 5:56 PM, Upholder said:

 

 

There are also cases in Colorado where AWBs have been overturned.

 

You've asked this question a number of times and it has been answered repeatedly.  AWBs have been found unconstitutional at all levels of courts, up to and including the Supreme Court of the United States.

So the SCOTUS already heard the case, not sure I fully understand.

 

[Matt B]

On 1/15/2023 at 8:50 PM, mab22 said:

So the SCOTUS already heard the case, not sure I fully understand.

 

Here’s what happened.

 

The circuit court said AWBs were constitutional. SCOTUS vacated (cancelled) that decision, and sent the case back to the circuit court to “try again” under the stronger 2A protections provided by Bruen. It’s an extremely strong indication the Supreme Court believes AWB are unconstitutional.

[mab22]

On 1/15/2023 at 9:33 PM, Matt B said:

Here’s what happened.

 

The circuit court said AWBs were constitutional. SCOTUS vacated (cancelled) that decision, and sent the case back to the circuit court to “try again” under the stronger 2A protections provided by Bruen. It’s an extremely strong indication the Supreme Court believes AWB are unconstitutional.

Thank you!
 

[lilguy]

So the last highest court has not ruled  definitively that AWBs are unconstitutional. If they had all bans would be null and void now, which no court has ruled yet. Thank you.

 

For 50 years the “experts” have been telling me the FOID is unconstitutional. You see why

I’m a little cautious is accepting 

what folks think is fact.

[mousegun6]

I'm not a lawyer. I don't know **** about anything except from my experience in life. The law, IMHO, is about nuance and semantics. Lawyers love to hear themselves talk and try to be more clever than the next guy. Read the Bruen decision and the other opinions, for and against, by the other justices. Under the law, "and" means something much different than "or". "May certainly means something different than "shall". The Supreme Court is made up of people who all bring their own prejudice to the table. Until a firm, all conclusive, ruling against AWBs is on the books we are in jeopardy. A different court, down the road, may rule differently, on the same subject. Look at Roe v Wade. It was settled law until it wasn't. I look at the law as a  30 gallon coffee pot brewing all the time and depending on when you get your coffee it may be great or it may be bitter. The law percolates like the coffee does and we don't really know what is going to be dispensed by the court at any time. To us, the 2nd Amendment is the only thing that matters. To the gun-grabbers, the 2nd Amendment is the bitter dregs of the coffee pot and they want to throw out the whole brew and start over with a clean pot. In the meantime, they will try to flavor and water down the 2nd Amendment. Nothing is for certain in this fight.

[yurimodin]

On 1/16/2023 at 7:53 AM, mousegun6 said:

I'm not a lawyer. I don't know **** about anything except from my experience in life. The law, IMHO, is about nuance and semantics. Lawyers love to hear themselves talk and try to be more cleaver than the next guy. Read the Bruen decision and the other opinions, for and against, by the other justices. Under the law, "and" means something much different than "or". "May certainly means something different than "shall". The Supreme Court is made up of people who all bring their own prejudice to the table. Until a firm, all conclusive, ruling against AWBs is on the books we are in jeopardy. A different court, down the road, may rule differently, on the same subject. Look at Roe v Wade. It was settled law until it wasn't. I look at the law as a  30 gallon coffee pot brewing all the time and depending on when you get your coffee it may be great or it may be bitter. The law percolates like the coffee does and we don't really know what is going to be dispensed by the court at any time. To us, the 2nd Amendment is the only thing that matters. To the gun-grabbers, the 2nd Amendment is the bitter dregs of the coffee pot and they want to throw out the whole brew and start over with a clean pot. In the meantime, they will try try flavor and water down the 2nd Amendment. Nothing is for certain in this fight.

[defaultdotxbe]

On 1/15/2023 at 11:10 PM, lilguy said:

So the last highest court has not ruled  definitively that AWBs are unconstitutional. If they had all bans would be null and void now, which no court has ruled yet. Thank you.

 

For 50 years the “experts” have been telling me the FOID is unconstitutional. You see why

I’m a little cautious is accepting 

what folks think is fact.

It's a step in the right direction. I wouldn't go so far as to read into it that SCOTUS wants to overturn AWBs, but more that they want litigants to reframe their arguments in the light of Bruen and polish them in the lower courts before coming to the big stage.

 

I think we are in the best position to get them struck down, better than we have been since CA put the first one in the books in the late 80s, but it's far from a certainty. Roberts doesn't like to rock to the boat so I'm sure he'll vote to uphold. I'm sure it will be a 5-4 decision, but I don't know which way it will go.

[mousegun6]

On 1/16/2023 at 12:52 PM, yurimodin said:

Yep, spelling was never my best subject. I would like to take a cleaver to this law and trim all the unconstitutional provisions off and give them back to the legislature for a hearty lunch of crap.

[Upholder]

On 1/16/2023 at 1:53 PM, defaultdotxbe said:

It's a step in the right direction. I wouldn't go so far as to read into it that SCOTUS wants to overturn AWBs, but more that they want litigants to reframe their arguments in the light of Bruen and polish them in the lower courts before coming to the big stage.

 

Heller (quoting miller) says that weapons in common use for legal purposes are protected and cannot be considered "dangerous and unusual" as anything that is common is by definition not unusual:

• Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179.
• The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose.
•  Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), 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.

 

Caetano v. Massachusetts says that 200k in the US is enough to be considered in common use for legal purposes and reinforces that they have to be both dangerous and unusual:

• The more relevant statistic is that “[h]undreds of thousands of Tasers and stun guns have been sold to private citizens,” who it appears may lawfully possess them in 45 States. People v. Yanna, 297 Mich. App. 137, 144, 824 N. W. 2d 241, 245 (2012) (holding Michigan stun gun ban unconstitutional); see Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights To Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199, 244 (2009) (citing stun gun bans in seven States); Wis. Stat. §941.295 (Supp. 2015) (amended Wisconsin law permitting stun gun possession); see also Brief in Opposition 11 (acknowledging that “approximately 200,000 civilians owned stun guns” as of 2009). While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts’ categorical ban of such weapons therefore violates the Second Amendment.
• The Supreme Judicial Court’s holding that stun guns may be banned as “dangerous and unusual weapons” fares no better. As the per curiam opinion recognizes, this is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual. Because the Court rejects the lower court’s conclusion that stun guns are “unusual,” it does not need to consider the lower court’s conclusion that they are also “dangerous.” See ante, at 1–2. But make no mistake—the decision below gravely erred on both grounds.

 

These two cases together, even before Bruen which has put the inferior courts on notice that intermediate scrutiny is not an acceptable test, are enough to show that the SCOTUS will not allow banning of a type of arm of which there are an estimated 20-45 MILLION possessed for lawful use.  It does not matter if they might be "dangerous" -- they are common and that ends the analysis.

 

The GVR of the Maryland AWB is very clearly the SCOTUS saying "you got it wrong, go back and get it right."  Same with the pair of Magazine bans that were GVR'd and the Carry case Young v. Hawaii that was also GVR'd.

 

 

[defaultdotxbe]

Caetano was unanimous, so unless you honestly think Kagen and Sotomayor will vote to strike down AWBs then you necessarily acknowledge that at least some of the justices will apply a different standard to rifles than they did to tasers, which leaves room for a decision to uphold the bans if two on the conservative side take that route as well.

 

I agree if decisions were consistent the logic made sense it would be a slam dunk, but if government played by those rules we wouldn't be here in the first place.

[yurimodin]

On 1/16/2023 at 2:56 PM, defaultdotxbe said:

Caetano was unanimous, so unless you honestly think Kagen and Sotomayor will vote to strike down AWBs then you necessarily acknowledge that at least some of the justices will apply a different standard to rifles than they did to tasers, which leaves room for a decision to uphold the bans if two on the conservative side take that route as well.

 

I agree if decisions were consistent the logic made sense it would be a slam dunk, but if government played by those rules we wouldn't be here in the first place.

As long as no one gets Scalia'ed or retires the current make up of the court is the same one that gave us Bruen.

[Jeffrey]

Is the SCOTUS worried that if they rule on an AWB that the trickle effect on NFA items would lose their taxability?

[mikew]

On 1/16/2023 at 4:07 PM, Jeffrey said:

Is the SCOTUS worried that if they rule on an AWB that the trickle effect on NFA items would lose their taxability?

I cannot imagine anyone worried about the loss of $200 in taxes

[mab22]

On 1/16/2023 at 5:06 PM, mikew said:

I cannot imagine anyone worried about the loss of $200 in taxes

Democrats politicians want every penny of yours and mine that they can get!

[defaultdotxbe]

On 1/16/2023 at 4:07 PM, Jeffrey said:

Is the SCOTUS worried that if they rule on an AWB that the trickle effect on NFA items would lose their taxability?

SCOTUS might be worried that the trickle effect would mean we'd all go out and buy new machine guns after they strike down the NFA. But since SCOTUS themselves would be the gatekeeper of that trickle I don't think they'd be convinced by the logic.