Posted on 12/13/2023 9:50:20 AM PST by Red Badger
A coalition of twenty Democratic attorneys general, including several from states without a prohibition on so-called assault weapons, are sounding off in support of California’s gun ban. In an amicus brief filed with the Ninth Circuit Court of Appeals in Miller v. Bonta, New Jersey Attorney General Matthew Platkin and Massachusetts AG Andrea Campbell and the attorneys general of Arizona, Colorado, Connecticut, Delaware, D.C., Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington contend that California’s ban doesn’t violate the Second Amendment because the arms that are prohibited aren’t protected by the Constitution in the first place.
U.S. District Judge Roger Benitez disagreed with that assertion in his decision in Miller, noting that AR-15s and other so-called assault weapons are in common use for lawful purposes across the United States. That was enough for Benitez to determine that the guns in question are protected by the language of the Second Amendment, but the Democratic attorneys general argue that Benitez got it wrong.
The District Court wrongly concluded that Plaintiffs-appellees’ conduct—to possess and carry “firearms like the AR-15 rifle that are commonly-owned for lawful purposes”—is covered by the Second Amendment’s plain text. Assault weapons are not “arms” that are in “‘common use’ for self-defense today”—a prerequisite for Second Amendment protection. For instance, weapons like M-16s that are “most useful in military service” do not fall within the protection of the Second Amendment.
Despite their contention that only arms that are in common use for self-defense are protected by the Second Amendment, what the Supreme Court said in Heller is that the “definition of ‘bearable Arms’ extends only to weapons in common use for a lawful purpose. … [which] is at its core the right to individual self-defense.” While the central reason for the right to keep and bear arms might be self-defense, the Court itself has explicitly stated that weapons in common use for a lawful purpose are prima facie protected by the Second Amendment’s language. That was made explicitly clear not only in Heller but in the Caetano case a few years later where a unanimous Court determined that electronic weapons were covered by the Second Amendment despite the fact that they weren’t around in 1791.
Are AR-15s most useful in military service? Considering that no branch of the military equips service members with semi-automatic AR-15s, I’m gonna go out on a sturdy limb and say “no.” The semi-automatic rifles banned by California have great utility for hunting, self-protection, and sport, but they’re not the weapon of choice for our armed services. The Democratic AGs rely on language from the Seventh Circuit, which denied an injunction against an Illinois ban on “assault weapons” by asserting that the AR-15 is not materially different from the M[-]16,” but if that were really the case we’d be able to walk into our local gun store and pick up an M-16 if we wanted. The federal government clearly believes there’s a significant difference between a select-fire rifle and a semi-automatic rifle, even if Democratic politicians would prefer to consider them one and the same.
The attorneys general also take issue with pointing to the tens of millions of modern sporting rifles that are lawfully owned by citizens as a measure of whether these arms are in common use, declaring that “[t]he number of weapons in circulation depends in significant part on when the government enacted legislation prohibiting it; had governments banned AR-15s the moment they became commercially available, the number of such firearms in circulation would be negligible.” That might be true, but the fact remains that the government did not enact such a ban in the 1960s. It wasn’t until thirty years later that the federal government imposed a ban on the manufacture and sale of arms it considered “assault weapons,” and that prohibition expired in 2004. Since then, the ownership of modern sporting rifles has become even more common, while the number of states that prohibit their purchase or manufacture still make up a small minority of the country at large.
There’s simply no getting around the fact that AR-15s and other modern sporting rifles designated by California as “assault weapons” are in common use for lawful purposes, including (but not limited to) self-defense, and are therefore prima facie protected by the Second Amendment.
The AGs do offer the Ninth Circuit a couple of other arguments as fallback positions; first that states impose a “range of restrictions… on dangerous weapons and accessories not commonly used for self-defense”, and secondly, California’s “assault weapons” ban is relevantly similar to “historical restrictions on firepower and on new, and distinctly dangerous” weapons. Those arguments are even more flimsy than the notion that AR-15s aren’t protected by the Constitution, however. The restrictions that the attorneys general document are all modern creations that have nothing to do with the text, history, and tradition test laid out by the Supreme Court in Bruen, and are utterly meaningless as far as determining the constitutionality of California’s ban.
As for the supposed historical analogues found by Platkin and Campbell, the pair once again try to rewrite both Heller and Bruen to their liking by claiming that the cases “compel the conclusion that courts must consider the broad sweep of our country’s history—including nineteenth- and twentieth-century history—when reviewing the constitutionality of a state law.” But as the Supreme Court stated in Bruen, “when it comes to interpreting the Constitution, not all history is created equal. ‘Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.’ The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates or postdates either time may not illuminate the scope of the right.”
The AGs need to be able to point to 20th century gun bans to buttress their case because there are no such sweeping prohibitions in the 18th or 19th century. As they write:
The absence of eighteenth- and nineteenth-century legislative enactments addressing such weapons cannot mean there exists no historical tradition of comparable regulation, because there would have been scant reason for States to regulate the weapons during those eras. This case is a prime example: “[t]he true semi-automatic weapon did not become feasible and available until the beginning of the twentieth century, and the primary market was the military.”
For the sake of argument let’s assume that’s correct. Even if semi-automatic firearms didn’t become available until the turn of the 20th century, where are the similar prohibitions on multi-shot revolvers and repeating rifles in the 19th century? Both of those developments were akin to the technological advance of semi-automatic firearms, yet the historical record doesn’t show any moms demanding lever-action rifles be banned or cities like Washington, D.C. or Chicago banning the possession and sale of revolvers around the time that the Fourteenth Amendment was ratified.
Bans on commonly owned firearms, be it the handgun bans imposed by D.C. and Chicago or the “assault weapon” bans created by a handful of states, are thoroughly modern creations without any historical analogues. The arguments raised by the Democratic AGs will probably be warmly received by the Ninth Circuit, but I don’t think they’re going to fare nearly as well when the Supreme Court does decide the time is ripe to weigh in on the constitutionality of prohibiting so-called assault weapons.
If an army invading a state had it, the people were allowed to have it, too, because they were "necessary to the security of a free state."
-PJ
ok, drop all the sales of what might be assault weapons to all law enforcement in those states.
Wonder why SCOTUS now doesn’t have original jurisdiction ?
Imho these people are not nucking futs, they’re dangerous and very evil.
5.56mm
“Democrat AGs Declare”
Well, there’s “your Democracy” at work. This is the democracy they always say they are fighting to save.
Just declare it, and it is so.
The same people who want to ban assault weapons are the same ones who define what is an assault weapon. But their security teams are heavily armed with those same weapons.
SCOTUS has appellate jurisdiction but not original jurisdiction in this matter
Art III, Section 2, paragraph 2:
“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
The SCOTUS needs to declare that all gun laws are null and void. Also explain that any attempt at introducing a gun law is a violation of the constitution and is punishable with extreme severity.
The muzzle loading musket was the assault weapon of its day, and that was covered by the second. That foolish opinion has no standing.
Anything but Not the SPAM!
and muzzle brakes were banned.
= = =
I thought it was ‘flash hiders’ that were banned.
And muzzle brakes were OK. And sometimes the only way to tell the difference was by military part description and part number.
Oh Brainie Biden-—
IDIOCRACY on Parade !
the USAF green M-16 I carried had a selector switch for either ‘full auto’ or ‘single fire’. It was something, considerring the only rifle I shot before that was a Remington x40 single shot target rifle in.22 long rifle, as part of OtisAFB Junior NRA.
AR-15s are ONLY semi-automatic.Any designer of ‘assault weapons’ would be one huge grabassticlizardzit, were he to design single shot weapons only.
DemocRat AGs, every single one of them. It is no secret that Rats want to restrict your ability to mount an effective counter to those who would round up dissidents and send us to re-education camps.
NFA is unconstitutional on its face.
The ban on sawed-off shotguns was taken to SCOTUS by a man who died before the case reached them. SCOTUS ruled that since sawed-off shotguns weren’t used by the military, they weren’t protected by the 2nd Amendment. Ironically exactly opposite to the argument now being offered to ban AR-15s.
2A is not about any specific weapon.
It encompasses all weapons and simply orders the government not to interfere with the citizens owning any of them.
BRIEF FOR AMICI CURIAE NEW JERSEY, MASSACHUSETTS, ARIZONA, COLORADO, CONNECTICUT, DELAWARE, THE DISTRICT OF COLUMBIA, HAWAI‘I, ILLINOIS, MAINE, MARYLAND, MICHIGAN, MINNESOTA, NEVADA, NEW YORK, OREGON, PENNSYLVANIA, RHODE ISLAND, VERMONT, AND WASHINGTON IN SUPPORT OF APPELLANTS AND REVERSAL
https://www.mass.gov/doc/miller-vs-bonta-amicus-brief/download
MATTHEW J. PLATKIN
Attorney General of New Jersey
/s/ Jeremy M. Feigenbaum Jeremy M. Feigenbaum Solicitor General
Angela Cai
Deputy Solicitor General
(862) 350-5800 jeremy.feigenbaum@njoag.gov
Date: December 8, 2023
KRISTIN K. MAYES
Attorney General
State of Arizona
2005 N. Central Avenue Phoenix, AZ 85004
PHILIP J. WEISER
Attorney General State of Colorado 1300 Broadway Denver, CO 80203
WILLIAM TONG
Attorney General State of Connecticut 165 Capitol Avenue Hartford, CT 06106
KATHLEEN JENNINGS
Attorney General
State of Delaware
820 N. French Street Wilmington, DE 19801
ANDREA JOY CAMPBELL
Attorney General of Massachusetts
Amanda Hainsworth
Assistant Attorney General
One Ashburton Place
Boston, Massachusetts 02108 (617) 963-2618 amanda.hainsworth@mass.gov
BRIAN L. SCHWALB
Attorney General for the District of Columbia
400 6th Street, NW, Suite 8100 Washington, D.C. 20001
ANNE E. LOPEZ
Attorney General State of Hawai‘i 425 Queen Street Honolulu, HI 96813
KWAME RAOUL
Attorney General
State of Illinois
100 West Randolph Street Chicago, IL 60601
AARON M. FREY
Attorney General State of Maine
6 State House Station Augusta, ME 04333
ANTHONY G. BROWN
Attorney General
State of Maryland
200 Saint Paul Place, 20th Floor Baltimore, MD 21202
DANA NESSEL
Attorney General State of Michigan P.O. Box 30212 Lansing, MI 48909
KEITH ELLISON
Attorney General State of Minnesota 102 State Capitol 75 Rev. Dr. Martin
Luther King Jr. Blvd. St. Paul, MN 55155
AARON D. FORD
Attorney General
State of Nevada
100 North Carson Street Carson City, NV 89701
LETITIA JAMES
Attorney General State of New York
28 Liberty Street New York, NY 10005
ELLEN F. ROSENBLUM
Attorney General State of Oregon
1162 Court Street NE Salem, OR 97301
MICHELLE A. HENRY
Attorney General Commonwealth of Pennsylvania Strawberry Square, 16th Floor Harrisburg, PA 17120
PETER F. NERONHA
Attorney General State of Rhode Island 150 South Main Street Providence, RI 02903
CHARITY R. CLARK
Attorney General State of Vermont
109 State Street Montpelier, VT 05609
ROBERT W. FERGUSON
Attorney General State of Washington P.O. Box 40100 Olympia, WA 98504
They can jam their fake laws and phony “government” where the sun don’t shine.
Total BS!
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