In the Seventh Circuit, Procedural Red Herrings Threaten the Second Amendment

The Seventh Circuit heard oral argument on November 12 in Viramontes v. County of Cook, Illinois, a challenge to Cook County's ban on semiautomatic rifles like the AR-15, inaccurately labeled as assault weapons. These bans are flatly unconstitutional under Heller, which establishes that the law-abiding citizens of this Nation have a right to possess firearms that are in common use. Semiautomatic rifles undoubtedly are in common use – indeed, the AR-15 has been the best-selling rifle in the Nation for years. Unfortunately, the Seventh Circuit departed from Heller in a case called Bevis to hold that arms that are predominantly useful for military purposes can be banned. But even under that reasoning, semiautomatic rifles cannot be banned. They are common civilian firearms, not military firearms, because they lack the capacity for automatic and burst fire.

 The questioning at the Seventh Circuit, however, did not focus much on the merits of the case. Rather, the panel (consisting of Judges Sykes, Brennan, and St. Eve) took a surprise detour through a series of procedural objections put forward in Cook County's briefs. (Take a listen here). Judges Sykes and St. Eve appeared to think that Viramontes' challenge should fail because he didn't put forward critical evidence about semiautomatic rifles in the district court. Viramontes' lawyer challenged that notion, including by citing to specific pages in the record containing key pieces of evidence. I decided to dig deeper into the history of the case to see who has the better of the argument. The short answer is that Viramontes does. Indeed, he has built one of the most robust records I have seen by a plaintiff in a case challenging a semiautomatic rifle ban.

Procedural History

Before turning to the record, it is helpful to take a step back to see how we got to this point. When Viramontes filed his case, the constitutionality of a ban on semiautomatic rifles was controlled by two Seventh Circuit precedents, Wilson and Friedman. Viramontes did not initially seek to build a record in the district court because his sole path to victory was to have the Seventh Circuit or U.S. Supreme Court declare that Wilson and Friedman were wrongly decided.

Cook County, however, requested the opportunity to build a record, and the district court obliged. Then, while the case was proceeding in the district court, the U.S. Supreme Court decided Bruen, arguably wiping out Wilson and Friedman as precedent. It was in this context that the parties put forward their evidence and engaged in summary judgment briefing. It was not until summary judgment was fully briefed that the Seventh Circuit decided Bevis, and the parties addressed that decision in short filings.

Summary Judgment Briefing

Viramontes and Cook County both filed summary judgment motions. In those motions, the parties differed in how they presented the materials that they claimed supported their affirmative cases. All the key facts at issue in the case are what are called legislative facts – that is, general facts about the world that are not specific to the parties in the action, such as the overwhelming extent to which law-abiding citizens own semiautomatic rifles and why they own them. The Seventh Circuit has said that legislative facts may either "be incorporated in the argument section of [a] brief" or "in [a] statement of facts." Wiesmueller v. Kosobucki, 547 F.3d 740, 742 (7th Cir. 2008).

Viramontes chose the first option. Thus, in the argument section of his summary judgment brief, he cited legislative fact materials that he claimed entitled him to prevail, including: surveys about the possession of semiautomatic rifles by the Washington Post, the National Shooting Sports Foundation, and William English; information about the criminal misuse of firearms from sources like the U.S. Department of Justice and scholarly publications; and information about the distinction between automatic and semiautomatic fire and the defensive value of the latter from sources like the U.S. Army and scholarly publications.

Cook County chose the second option, putting in a lengthy statement of material facts setting forth its legislative fact material. Viramontes, accordingly, responded to Cook County's statement by identifying contrasting legislative fact material. This is expressly contemplated in the local rules, which provide that a response to a statement of material facts may include facts that are "fairly responsive to the asserted fact to which the response is made." N.D. Ill. LR 56.1(e)(2). Viramontes' response to Cook County's statement of facts is a 105-page document, backed by 105 exhibits spanning over 2,000 pages.

All of the specific sources referenced in the Seventh Circuit argument on November 12 can be found in these exhibits:

• Gregory Wallce, "Assault Weapon" Lethality, 88 Tenn. L. Rev. 1, 13–14 (2020): dkt. 98, ex. 12 (PageID 1835).
• Dennis P. Chapman, The AR-15 Controversy: Semiautomatic Rifles and the Second Amendment (2nd ed. 2022): dkt. 98, ex. 82 (PageID 3117).
• William English, 2021 National Firearms Survey: Updated Analysis Including Types of Firearms Owned at 33–34, Geo. Univ. (May 13, 2022): dkt. 98, ex. 15 (PageID 2004).
• Poll of current gun owners, Wash. Post-Ipsos (Mar. 27, 2023): dkt. 98, ex. 16 (PageID 2051).
• Commonly Owned: NSSF Announces Over 24 Million MSRS in Circulation, NSSF (July 20, 2022): dkt. 98, ex. 50 (PageID 2639).

These sources establish that semiautomatic rifles like the AR-15 are commonly-possessed firearms that law-abiding citizens keep in their homes for self-defense; that the military does not use semiautomatic-only rifles as standard service rifles; and that automatic fire is used for military operations that require laying down suppressive fire. There is much else besides, and material from the exhibits is referenced in the responses to the statement of facts, which are then incorporated as appropriate into the response to Cook County's summary judgment brief.

Assessment

Having reviewed the record, Viramontes' lawyer was clearly right: Viramontes built a substantial record in the district court; Cook County had ample opportunity to address the materials in the record; and Viramontes should prevail based solely on the materials in that record.

Of course, because legislative facts are at issue there is no reason to limit the materials considered by the Court of Appeals to what was in the district court record. Both Viramontes and Cook County supplemented those materials with new materials in their appellate briefing. But regardless of whether a broader body of information or only the district court record is considered, Viramontes should prevail, whether under the Bevis test or under the Heller common use test. My hope is that the Seventh Circuit does not get sidetracked by spurious procedural objections but instead decides the case that has been presented to it on the merits.

 

Comments

[Grifhunter]

Bevis mistates the holding in Miller, concluding SCOTUS banned sawed off shotguns. What I recall from Miller was such weapons could be protected under the 2A if it could be shown that sawed off shotguns were "suitable" for use in militia service. As there was no facts in the record as to suitability, the issue was remanded without ever passing on the shotgun.

Post Heller jurisprudence on weapon type is always dancing around the right to individual "self defense" to potential criminal attack. SCOTUS needs to open another front, by recognizing that the 2A also protects civilian arms for defense of the homeland, and not just the home and bodega. By enshrining the right to martial arms to resist attacking foreign armies or massive insurrectionist forces, there would be protection for, at a minimum, a citizen' s entry level "military style" semi auto rifle, ie AR 15.

[Brett Bellmore]

Yes, they "need" to do that, but there aren't remotely the votes on the Court to do that. Not yet. It will be a long gradual slog, getting the Court to finally restore our 2nd amendment rights in full, not just the neutered version Scalia crafted in Heller.

[ReaderY]

I read Heller as having essentially abandoned Miller, focusing on an unemumerated stand-alone right of personal self-defense disconnected from any association with a militia. In this respect, I think Heller was atextual.

[Mike Hansberry]

The Heller court did not abandon the view that the second amendment was intended to preserve the militia, but they did abandon the dissent's myopic, atextual, and ahistorical view that the right to keep and bear arms applied only when in service of the militia.

"The Government’s Miller brief thus provided scant discussion of the history of the Second Amendment—and the Court was presented with no counter discussion. As for the text of the Court’s opinion itself, that discusses none of the history of the Second
Amendment. It assumes from the prologue that the
Amendment was designed to preserve the militia, 307
U. S., at 178 (which we do not dispute)..."

US vs Miller (1939): “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”

Since some degree of uniformity/compatibility of arms between the citizens and the regular military is needed to make possible an effective fighting force. Therefore, civilian versions of current military arms are essential, this remains so even if certain features such as full auto capability are restricted in civilian versions of the “ordinary military equipment” referred to in Miller.

It follows from Miller and Heller that AR-15s are well within the scope of the second amendment.

The more difficult argument would be to convince the court that the people have a right to keep and bear any and all of the standard issue military weaponry, as Scalia's comments in Heller cast doubt on that. But that argument can wait for another day.

[ReaderY]

But they did abandon Miller’s holding that the kind of weapons the 2nd Amendment protects are those that suitable for use in a well-regulated militia. Instead, the Heller standard is those weapons suitable for use for personal self-defense.

In general, the Miller standard probably permits heavier weapons, and hence is more favorable to Mr. Halbrook’s position, then Heller. Militias and militia-like groups today not only almost universally use automatic weapons, they commonly use things like shoulder-fired antitank and antiaircraft missiles.

I think the debate over automatic and semi-automatic weapons represents an example of where the Heller interpretation is narrower than Miller’s.

I think Miller is also narrower than Miller in some respects. I think that under Miller, Stares could if they want to reinstate the militia concept and require everybody who wants to possess a gun to attend basic training and serve a week or two a year in a militia unit or something like that. Under Heller, a state can’t impose anything like that kind of obligation as a condition for gun possession.

[Brett Bellmore]

Yes, Scalia abandoned Miller's holding, while pretending to be following it.

But, no, I don't think that under Miller states could condition gun ownership on militia service. It was a right to weapons suitable for militia use, not to weapons in the context of militia use. You're perhaps confusing the Miller holding with Stevens' attempt to moot the amendment?

This fundamentally goes to the meaning of the word "right"; "Rights" are exactly what states can't condition the exercise of.

[ReaderY]

I’m talking anout a universal all-adults militia, not something limited like a national guard, by which everyone with a weapon is a member of the militia and subject to milita regulations. The kind of militias that existed in the early days of the country. I think this is a correct interpretation of the 2nd Anendment textually.

Note: U.S. v. Miller was a federal prosecution. Under Miller, the federal government can’t regulate the kinds of weapons people can have except to limit them to those suitable for use in a militia. I’m talking here about State regulation. As I read it, states not only have a right to regulate their militias, they have a right to regulate them well.

[Brett Bellmore]

The government, federal and state, could absolutely require militia service, absolutely require people to own suitable weapons, absolutely require them to practice with them and demonstrate proficiency, but this is a product of the Constitution's militia clauses, and state reserved powers, NOT the 2nd amendment.

But, again, you're just getting the nature of rights wrong.

Just as the government can mandate school attendance, but can not condition exercise of the 1st amendment rights of freedom of speech and the press on having attended school, it can mandate militia participation, but cannot condition gun ownership on that participation. Because that's not how rights work, rights are just precisely those things the government CAN'T require you to jump through hoops to do.

You might also notice that it's the People, not the militia, who are guaranteed the right. You've got it as a result of being a member of the People, not of the militia.

[ReaderY]

I understand many commenters on this blog have argued that the first part of the 2nd Amendment (“A well-regulated militia, being necessary to the security of a free state,”) is just meaningless preamble or puffery that adds nothing to what the constitution actually says, But I don’t think we should read constitutional text to be meaningless when a meaningful reading is not only possible but entirely reasonable. I think this text gives states rights with respect to a militia (if they choose to have one) that they wouldn’t otherwise have.

[Brett Bellmore]

No, it's NOT just meaningless puffery. As the motivation for the 2nd amendment is securing the viability of a militia system, it makes clear that it is militia suitable weapons that we have the right to keep and bear.

Really, this does come down to the difference between "rights" and 'powers", and the fact that the 2nd amendment is about the former, not the latter.

Powers are granted government in the expectation that government will use them to do the right thing, and to understand them you ask what that right thing is. And who decides if a power is exercised, and how? The government does.

But RIGHTS are guaranteed against government out of the fear that the government would otherwise do the wrong thing, and to understand rights you must ask what that wrong thing is. And who decides whether and how a right is exercised? Not the government, but instead the people it is guaranteed to.

So, what is the wrong thing the 2nd amendment is intended to fend off? Why was a militia system considered to be necessary to the security of, specifically, a free state?

Because arms in the hands of the people themselves, rather than just a group of professional soldiers doing the government's bidding, meant that the government could not use the military to oppress the people.

What the founders feared is that the militia system would be replaced with a standing army or 'select' militia, where most people would be unarmed, and the government would have the upper hand.

To this end the right to be armed in the manner of soldiers is guaranteed to the people at large, not some set of people selected by the government, so that the government can't reduce the militia to just a small subset of the population, not by any pretext whatsoever.

It's not up to the government whether you can be armed. That's what it means to say that it's a "right", and this is, deliberately, a right, not a power, because the government is not trusted to decide who can be armed.

[Grifhunter]

Well said, Brett. And this idea of "rights" v. "gov power" is where the Heller dissent trips over itself.

[ReaderY]

I think if a state reinstitutes a traditional universal all-adults militia it could also do a number of other things, like standardize the weapons people are allowed to have to ensure compatibility and consistency of ammunition in case the militia is called into service. In general it could regulate its militia in a variety of ways. as long as its militia regulations are reasonably connected to the purposes of a militia and not just a pretext for limiting the right to keep and bear arms

If the Supreme Court had taken this route, and potentially it still could, blue states that want to institute gun control could potentially use a state militia as a means for ensuring citizens with guns receive basic training, have weapons with safety features, and perform a certain amount of service taking up a moderate but noticable amount of their time (e.g. a week a year) . This might in practice serve as a sort of gatekeeping barrier by limiting the right to keep and bear arms to people willing to volunteer their time in this manner.

[Brett Bellmore]

Again, wrong: The government can order you to own a specific sort of arm, but can't limit you to that arm, in the same manner that the government could mandate that you own a specific book, but can't mandate that you NOT own a different book.

You seem to be rather determined to treat the 2nd amendment as not guaranteeing a right, despite the fact that it comes right out and uses that word...

[ReaderY]

Miller says it gives them a right to bear arms, but not any kind of arms they want. It only gives them the right to keep and bear arms useful to a well-regulated militia.

I’m just extending the reasoning behind Miller ever so slightly. From the federal point of view it’s “a” well-regulated militia. But what I’m proposing is that from the point of view of a state that actually has such a militia, the 2nd Amendment only confers a right to keep and bear arms useful to “the” - the state’s specific, particular - well-regulated militia.

I think it’s a very fair reading of Miller. It still preserves a meaningful right to keep and bear arms. This is particularly the case because I think state militia regulations have to be reasonable. A state can’t use its militia powers as a pretext for surpressing the individual 2nd Amendment right by e.g. making the service requirements too onerous (except in war, civil unrest, or emergency), imposing weapons standards unrelated to militia suitability or too out-of-reach (although it could of course give out weapons free if it wants), etc. And in my view federal courts would have the power to review state regulations to ensure this.

[Brett Bellmore]

Even if the constitutional right were only to weapons suitable for militia purposes, once you acknowledge a right to own military weapons, it's basically impossible for a ban of lesser weapons to survive even rational basis scrutiny.

[Grifhunter]

Virtually every "sporting" or civilian self defense arm design of the last 250 years was born of or associated from military designs at some point. Bolt and lever action rifles, revolvers, semi auto pistols, shotguns (including sawed-off!), magazine fed semi-auto rifles, etc. all served in the service of the US military at some time. The Miller test of suitability for militia service, if the appeal was followed to its conclusion, would have protected virtually every gun in civilian gun stores including Mr. Miller's shorty 12 gauge.

[Mike Hansberry]

"But they did abandon Miller’s holding that the kind of weapons the 2nd Amendment protects are those that suitable for use in a well-regulated militia. Instead, the Heller standard is those weapons suitable for use for personal self-defense."

Still not quite right. The Heller court abandoned Miller's view that ONLY the standard military equipment was protected, citing Aymette vs TN for that narrow viewpoint. The Heller court cited Nunn vs State and other sources for a much broader view of the amendment, and they did not require that the handgun Mr Heller wished to keep be of the type used by the military (Horseman's pistols as per Aymette) in order to fall under 2A.

The Heller court did say that machine guns might not be protected, but overall, their view of the types of arms one may possess is much broader than the Miller court.

“We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)”

Note that the Heller court does not limit the “in common use” test to self defense ("for lawful purposes like self defense").

Lastly, the deniers of a broad individual right to keep and bear arms have claimed that the second amendment only applies when one is in service of the militia. It would be awfully strange then to limit the types of arms to those which are not useful in warfare, but only useful for self defense. The Standard Model holds that the right to keep and bear arms includes self defense as well as the great political right/collective defense/defense of the laws, etc.

[Brett Bellmore]

It’s worth noting that reading Miller as saying that the NFA was unconstitutional in its restrictions on machine guns would NOT have been a startling reading at the time. The NFA was essentially the first ever federal gun control law, and it was written as a tax law specifically because its drafters knew that they WERE treading on dangerous constitutional ground, and that it probably was unconstitutional for them to have simply banned ownership of those arms.

Since prior to the NFA Americans had an unrestricted (federal) right to own any gun whatsoever, and had routinely owned the very same firearms the military was using, nobody would have found that conclusion even a bit startling. Scalia was attributing to people living in the 1930’s his own sensibilities that had been shaped by a couple generations of federal gun control laws accumulating while the Court refused to take 2nd amendment cases.

This is a persistant problem with people looking back at early gun control cases, and analyzing them from a modern perspective. Americans' attitudes towards guns back then were spectacularly different from the modern judiciary's attitude.

When I was a child you'd routinely see advertisements for surplus military weapons, even anti-materiel guns, in the backs of magazines, and you could purchase them mail order, no questions asked. Prior to the NFA, machine guns were sold mail order!

[Mike Hansberry]

A fair reading of Miller informs that if either Mr. Miller or Layton had attended, and had shown short barreled shot guns were part of the standard military equipment, they would have won at the supreme court as they had in the lower court. The Heller court was concerned that the same reasoning would hold for machine guns.

It would be great to have been able to listen in on the discussions the Heller majority had when formulating the "we might as consider" paragraph. Instead we have only the text of the decision.

[Brett Bellmore]

An historical reading of Miller, though, informs that it came after ‘the switch in time that saved Nine’, and there was no freaking way the government was not going to prevail.

Thanks to Miller not being represented, (This was not an accident, Miller was a carefully crafted test case, his absence at the appeal was anticipated.) the Court was able to uphold the NFA on the narrowest grounds conceivable. If Miller had been represented, the 2nd amendment might have been subject to some really horrific precedents.

THE PECULIAR STORY OF
UNITED STATES V. MILLER

“This essay concludes that Miller is coherent, but largely irrelevant to the contemporary debate over the meaning of the Second Amendment. Miller was a Second Amendment test case, teed up with a nominal defendant by a district judge sympathetic to New Deal gun control measures. But the Supreme Court issued a surprisingly narrow decision. Essentially, it held that the Second Amendment permits Congress to tax firearms used by criminals.”

[Henry]

Miller showed nothing to the lower court, as he was never tried. The case was dismissed under demurrer by (Judge) Hartsell Ragon. Layton's usefulness to the record ended at the moment he copped a guilty plea and screwed himself out of a possible victory.

[ReaderY]

That’s a bit like saying that Dobbs didn’t actually overturn Roe and it’s wrong to say it did. It ONLY overturned that small part of Roe that said there was a constitutional right to an abortion.

I similarly see the part of Miller that Heller overturned as being central, not minor or peripheral.

[Carl_N_Brown]

The Heller decision on the D.C. Handgun Ban of 1975 did not undo Miller which said, among other things, the 2nd Amendment protects the keeping and bearing of the current military service for civilian marksmanship training.
Heller added to Miller; it did not take away.

[Mike Hansberry]

Consider the below from Heller.

"In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia
Supreme Court construed the Second Amendment as
protecting the “natural right of self-defence” and therefore
struck down a ban on carrying pistols openly. Its opinion
perfectly captured the way in which the operative clause of
the Second Amendment furthers the purpose announced
in the prefatory clause, in continuity with the English
right:
“The right of the whole people, old and young, men,
women and boys, and not militia only, to keep and
bear arms of every description, and not such merely as
are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our
opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our
own Magna Charta!” (end quote)

[TheAmazingEmu]

I've argued before that the "right to self-defense" comes from the penumbras and emanations of the Second Amendment to hyperbolically use language criticized by originalists and textualists. In other words, a strict constructionist who rejects Substantive Due Process should believe that a state could pass a law abolishing the defense of self-defense in a criminal case.

Now, as someone who believes the Due Process Clause allows enforcement of substantive rights the Ninth Amendment cautions courts not to ignore and who believes Griswold was correctly decided, I do believe there is a Constitutional right to self-defense. But this assumption that the Second Amendment protects Self-Defense is not supported by the text of the amendment.

That being said, I recognize there is a middle ground. The Second Amendment could protect an individual's right to possess a firearm for self-defense but also allow the state to prosecute anyone who exercises that right. I'm not sure if the Originalists on the Court hold this view, though.

[Brett Bellmore]

It sounds like you're talking about somebody who rejects substantive due process without reviving Privileges and Immunities. But that's not a reasonable originalist position.

I do not believe a state COULD prohibit self defense, constitutionally. They can legislate around the edges of it, certainly, but it is about as basic as any unenumerated right gets.

[Noscitur a sociis]

Can the federal government refuse to recognize it? If not, why?

[Brett Bellmore]

No, because the right to self defense is basically the Platonic ideal unenumerated 9th amendment right.

Look at the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, "

If you have the right to life, you have the right to defend your life; What good is a right you aren't entitled to defend? And government is, in principle, instituted to protect such rights, not abolish them. For a government to extinguish the right to self defense would vitiate its very reason for existing.

[Kazinski]

Saying the second amendment doesn't protect self defense is like saying the first amendment protects my right to watch Meet the Press on my TV but not American idol.

It would be like claiming I could only use my rifle for shooting redcoats, but not deer or housebreakers.

Once my right to keep and bear arms is recognized i can use my gun for any lawful purpose.

[ReaderY]

But what purposes are lawful?

I totally disagree with the idea that the 2nd Amendment somehow abrogates common-law doctrines like the duty to retreat.

Today, as in centuries past, a large proportion of shooting deaths involve domestic disputes, brawls that get out of hand, etc. I think in general the policy reasons behind the common law doctrine remain as relevant as ever. People sometimes get really mad at each other, and when they do, the law should ensure that people nonetheless live to see another day, whether they think this fair or unfair, rather than valuing abstract concepts of fairness and justice over preserving human life. Sometimes experience and wisdom are worth more than logic.

So I don’t think the 2nd Amendment creates a stand-alone right of self defense entitling federal courts to review these sorts of common-law doctrines limiting when weapons can be lawfully used. I think such a right is atextual judge-made law.

[Brett Bellmore]

Your problem is that a right to self defense goes back way before the Constitution. WAY back. It's one of the traditional rights of men that virtually all states throughout all history have recognized. In many political theories, a state that didn't respect this right would be illegitimate.

So the 2nd amendment didn't create this right, it actually pre-existed the Constitution and the Bill of Rights. All the 2nd amendment did was guarantee a right to one of the means of self-defense.

As I said, it's practically the Platonic ideal of an unenumerated 9th amendment right.

[ReaderY]

But the common law duty to retreat also preceeded the constitution.

The English courts made an exception in Semayne’s Case in 1604 in which they recognized the Castle Doctrine, limited to intrusion into a man’s home. Long before the Bill of Rights.

[Brett Bellmore]

That's what I meant by saying that they could legislate around the edges. But only the edges, since self defense itself is a fundamental right predating the Constitution.

[TaylorJ]

Also, don’t forget Miller was decided solely on the government brief. Miller’s attorney didn’t even show up to the Supreme Court.

[Henry]

The Miller decision isn't what you think it is anyway. The Miller decision was solely that Miller's case needed to be remanded back to the original court and actually heard to afford several findings of fact, instead of being dismissed out of hand, which it had been originally. Miller was never convicted of anything (at least not with respect to anything having to do with this case), and the retrial ended up never occurring after all, because Miller was found dead before the Supreme Court published their ruling. The Supreme Court never ruled anything in Miller about any particular guns being protected or not protected by the second amendment.

[Frank Drackman]

Bevis? More like Butthead

[ReaderY]

Professor Calabresi is an advocate for gun interests, not a neutral expert. He can be counted on to make an argument favoring his side, whether meritorious or not. So while his argument in this case might be correct, I nonetheless find myself skeptical about statements like “this is one of the most robust records I have seen” etc. His role here is as an advocate As an advocate, he is simply not reliable as an expert comparative assessor. He can be counted on to argue that his client’s presentation is a good one, whether it really is good or not.

[Brett Bellmore]

Simply asserting this does not, of course, make it true.

[Stupid Government Tricks]

You'd be more credible if you'd guessed the right author. Makes you look like you jumped to a conclusion instead of paid attention.

[ReaderY]

It’s even more the case with Mr. Halbrook. There’s a reason why attorneys are generally prohibiting from personally vouching for their clients

[Stupid Government Tricks]

Your credibility sinks even lower when you can't even admit your first knee-jerk reaction was for the wrong author.

[Noscitur a sociis]

What does Prof. Calabresi have to do with anything?

[Brett Bellmore]

He forgot to swap out the name in a copy and paste attack.

[Michael Ejercito]

I wonder why such judicial hostility against the Second Amendment.

[Stupid Government Tricks]

Because government hates people who think for themselves. Independence scares the living daylights out of bureaucrats because it shows how unnecessary most bureaucrats are.

[tylertusta]

Part of it is cultural. The left half of the country has decided that guns are passe, so leftist judges tend to reflect that sentiment. The political right use guns as a totem, so the left reflexively attacks the totem. This wasn't always the case, but it's become more and more a part of our discourse on guns since the early 70's.

Another part is elitism. Even among notionally conservative judges, they probably don’t rub elbows with the kinds of people who own guns lawfully, so their only exposure to firearms is a never-ending parade of people who are haled into court on criminal gun charges.

The last part of this is a kind of cowardice. I can’t think of any judge who wants to be known as the one who allowed “Bad Things” to happen. This means that judges are predisposed to protect gun control laws as a means of protecting the public, and thus their own reputations. Even when government is caught with their legal pants down on some aspect of a gun control law, judges will tend to bend over backwards to put their thumbs on the scale to ensure that gun rights hardly win. If that means adopting asinine procedural and standing rules just for guns, they will do it.

These reasons are why, even going back to the case law immediately after Miller, courts have been reluctant to do anything that may threaten any gun control law. The occasions where Courts did the right thing are few and far between.

[Brett Bellmore]

Also, remember that the 2nd amendment is fundamentally an expression of distrust for government, it was intended to preserve the people's ability to violently resist, even overthrow the government, if that ever became necessary. The oft derided, but historically well grounded "insurrectionist" theory of the 2nd amendment.

While judges are part of that very government.

[Alpheus W Drinkwater]

As you yourself commented upthread, simply asserting this does not make it true. I would challenge your characterization of the historical evidence for your pet theory of 2nd amendment origin as "well grounded." I would suggest "far-fetched" as a more accurate one.

[Brett Bellmore]

I've quoted this often enough.

"As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." (Tench Coxe in ‘Remarks on the First Part of the Amendments to the Federal Constitution' under the Pseudonym ‘A Pennsylvanian' in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1)"

And I've pointed out that Madison actually thanked him for publishing this.

Indeed, Halbrook above is the author of more than one book detailing this sort of evidence. Denying it exists is futile.

[Kazinski]

Drinkwater probably still has Michael Bellesiles'
"Arming America: The Origins of a National Gun Culture" in his library.

Its actually still available on Amazon.

Here us how they describe it:
"How and when did Americans develop their obsession with guns? Is gun-related violence so deeply embedded in American historical experience as to be immutable? The accepted answers to these questions are "mythology," says Michael A. Bellesiles.

Basing his arguments on sound and prodigious research, Bellesiles makes it clear that gun ownership was the exception--even on the frontier--until the age of industrialization. In Colonial America the average citizen had virtually no access to or training in the use of firearms, and the few guns that did exist were kept under strict control."

[JoeFromtheBronx]

” left half of the country has decided that guns are passe”

I don’t know what “left” means but Democrats generally regularly, especially in certain states, honor the importance of guns. They regularly hunt, use guns for self-defense, target practice, serve in the military, and so on.

They argue that certain regulations are reasonable, certain types of guns are particularly dangerous, and so forth.

[Brett Bellmore]

The left on gun control are kind of like the right on abortion, really. Movements, even movements with a certain amount of popular support, tend to be run by extremists on the issue, not moderates.

So, the general public, and even most people who are pro-life, would allow for abortion in extreme situations, (Detailed polling shows that public support for abortion craters after the first trimester for anything but medically necessary abortions and abortions for rape victims.) but the pro-live movement lobbies for virtually complete bans.

Similarly, while most people support a certain limited amount of gun regulation, the gun control movement is run by people who frankly want guns all but completely banned, and lobby to that end while pretending they're moderates who support the 2nd amendment... with an unspoken proviso that it be interpreted so as to be moot.

[Lennyk78]

The arguments that certain types of guns are particularly dangerous is in bad faith.

[tylertusta]

They regularly hunt, use guns for self-defense, target practice, serve in the military, and so on.

The statistics disagree with this statement. As of 2022, only 20% of Democrats own a gun, and only 31% of Democrats live with a firearm in their household. Furthermore, military service is outside of the scope of this conversation, since we're talking about a culture of private firearms ownership and not military service.

Of those 20%, I wonder how many actually vote for Republicans or are moderate.

[ReaderY]

Also, I don’t understanding how the judges’ statements could be described as “procedural” rather than “merits.” Saying that a party failed to produce sufficient evidence to support its claim strikes me as about as merits-related a statement as I can think of. Mr. Halbrook understandably claims the evidence was in fact substantial and sufficient. He claims the judges overlooked or gave insufficient weight to evidence his side produced. All very understandable, it’s his job to make such arguments. But I don’t see why this should be described as a procedural point rather than a merits one.

Indeed, the presence and sufficiency of the evidence isn’t a “red herring.” It’s the core of a trial, and highly relevant to many appeals of such a trial.

[Brett Bellmore]

If I’m following the argument, (To tell the truth, I tried listening to that link in the OP, and the sound level was so low I could scarcely understand what was being said.) it is that the judges treated Viramontes as not having provided the evidence At All. Which, yes, would be procedural. Not as the evidence provided not being sufficient, which would be merits.

The judge says the material wasn't submitted, the counsel cites page and line number where it was.

[Mike Hansberry]

"Saying that a party failed to produce sufficient evidence to support its claim strikes me as about as merits-related a statement as I can think of"

What makes the reasoning procedural rather than merits based is that two judges seem to want to disregard some of the facts entered to the record by Viramontes based on when/where they were submitted rather than the merits of those facts.

[Daddyhill]

The original 2A read:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

It has now been conveniently redacted by Heller to read as:

"...the right of the people to keep and bear Arms, shall not be infringed."

I say it's a redaction because the 2A has not been altered via the Constitution's amendments provision. SCOTUS has the power to interpret the Constitution, but it does not have the power, acting alone, to amend it.

[Mike Hansberry]

Why do you say that? The Heller majority correctly showed that the prefatory phrase (A well regulated Militia, being necessary to the security of a free State) did not qualify the right guaranteed by the second amendment. Far from redacting or ignoring the prefatory phrase, the Heller court interpreted the entire amendment. It was the dissent who tried to amend the text by adding "when in service of the militia" after the words "arms."

[Brett Bellmore]

Neither side got it right. Stevens wanted to turn the 2nd into a 'right' to be armed, when, where and how the government directed, when in military service, as though any sane person would call that a right.

But Scalia refused to admit that it was a right to 'every terrible implement of the soldier, not just whatever weapons the government didn't feel threatened by the public owning.

[Martinned2]

Semiautomatic rifles undoubtedly are in common use – indeed, the AR-15 has been the best-selling rifle in the Nation for years.

Leaving to one side the irrelevance of sales data to identify "use", how does a statement like that not make your head explode? We're talking about the US here, not Somalia.

[Brett Bellmore]

It doesn't make my head explode because I'm an American, and so regard being allowed to do/own any damn thing I please so long as I don't harm somebody else with it as the natural state of things. I just get pissed off that this basic principle is so often violated, instead.

You Europeans have been living in authoritarian regimes for so long you've gotten to thinking that having a boot heel on your throat is the natural order of things.

[Henry]

(Bevis) "arms that are predominantly useful for military purposes can be banned"
Can someone explain how this is AT ALL consistent with precedent in US v Miller saying that arms with "militia usefulness" are the ONLY ones protected by the 2A??