Archive for the 'Second Amendment' Category

Never forget that you owe this precedent-setting debacle of an empowered ATF making up law out of whole cloth to Donald Trump.  Never forget that. This all gave the go-ahead for the pistol brace rule, and many other things yet to come.

Huge Breaking 2A News! Biden administration late last night at the last hour before the final deadline filed a 197-page Writ of Certiorari, aka request that the US Supreme Court hears the Garland v Cargill bump stock lawsuit at SCOTUS. #2A #GoodFriday2023 #2AShallNotBeInfringed pic.twitter.com/wY8XSzQ0Bz

— Michael Cargill (@michaeldcargill) April 7, 2023

It’s all a myth.  So says Serene Jones of Union Theological Seminary, writing at Salon.  She discusses politics extensively, and then finally gets to her main point.

But as a theologian with deep biblical expertise, I must say, I’m struggling to find the part in the Bible about unlimited access to guns. I hate to break it to these “devoted” religious followers: The Bible says absolutely nothing about allowing people to run amuck with guns. It’s a completely ludicrous reading of the text.

Generally, conservative politicians justify this vague connection by claiming the Bible gives people the right to self-defense. But that’s a preposterous jump from the text. The Bible barely touches on a right to self-defense. There are a few sentences that could allude to one – but in no way is there a concrete message on the subject. Plus, the deadliest weapon the Bible ever mentions is a sword – hardly an AR-15 that can kill dozens of people in seconds.

All in all, it seems to me that the Bible would perhaps support a hefty supply of pepper spray. But weapons of war? That’s absurd.

One might cite Exodus 21:12-15, Numbers 35:6-34, and Deuteronomy 19:1-13, Exodus 22, Nehemiah 4:8-23 and especially Esther 8:11-12.  But it’s apparent she doesn’t want to hear it.

Something simpler must be done.  Here we will get detailed and a bit deep for a usual post, so the reader must pay closer attention than the usual 2 or 3-minute read.

Recall that we’ve approached this many times from the perspective of the Decalogue, the most didactic and straight forward statement on the issue of man being man in God’s image.  We’ll do that shortly, but in order to couch this in the usual boundary conditions thrown around by statists, it’s necessary to mention that the American government doesn’t function like Paul intended in Romans 13.  Evil doing goes unpunished, and even more to the point, there is no legal requirement for the police to provide protection of its citizens.

That’s a myth usually told to those with childlike thinking in order to pacify them.  The American court system has ensured that the police can watch a woman being raped on the streets, eat doughnuts while it happens, and then arrest the perpetrator after the fact and be within the law (even if not their department policies depending on the specific PD).  The police are there to effect arrests for law-breaking, not make peace or supply protection.  For those who doubt this, see again the following cases.

Castle Rock v. Gonzalez

Warren v. District of Columbia

DeShaney v. Winnebago County

In fact, the surest and quickest way to get shot is to invite the police into any situation.  So if the police cannot and will not provide protection, who will?  Who will protect the women and children?  Who will provide the same function as the men did in Esther 8:11-12?  It isn’t enough to conflate protection of national borders with the self protection discussed in Esther.  The armed forces of the nation are no located on the street corners protecting women and children.

Ms. Jones teaches a course on John Calvin.  It’s to Calvin we turn right now.  The best case for the necessity of self defense comes straight from the Decalogue.  John Calvin, commenting on commandment and prohibition, observes:

We do not need to prove that when a good thing is commanded, the evil thing that conflicts with it is forbidden.  There is no one who doesn’t concede this.  That the opposite duties are enjoined when evil things are forbidden will also be willingly admitted in common judgment.  Indeed, it is commonplace that when virtues are commended, their opposing vices are condemned.  But we demand something more than what these phrases commonly signify.  For by the virtue of contrary to the vice, men usually mean abstinence from that vice.  We say that the virtue goes beyond this to contrary duties and deeds.  Therefore in this commandment, “You shall not kill,” men’s common sense will see only that we must abstain from wronging anyone or desiring to do so.  Besides this, it contains, I say, the requirement that we give our neighbor’s life all the help we can … the purpose of the commandment always discloses to us whatever it there enjoins or forbids us to do” (Institutes of the Christian Religion, Vol. 1, Book 2, Chapter viii, Part 9).

I then make these remarks.  “Matthew Henry observes the same concerning Proverbs 24:11-12 (“If we see the lives or livelihoods of any in danger of being taken away unjustly, we ought to bestir ourselves all we can do to save them …”).  Far from a weak or forced case for self defense, this is one of the strongest in the Scriptures.  Thou shalt not kill means that thou shalt not allow yourself or those around you to be killed, thus says the Lord.  It isn’t an option – it is His commandment.”

“Self defense – and defense of the little ones – goes well beyond a right.  It is a duty based on the idea that man is made in God’s image.  It is His expectation that we do the utmost to preserve and defend ourselves when in danger, for it is He who is sovereign and who gives life, and He doesn’t expect us to be dismissive or cavalier about its loss.  Finally, self-defense may actually result in one of the greatest examples of human love. Christ Himself said, “Greater love has no one than this, that he lay down his life for his friends” (John 15:14).”

As the reader might suspect, it’s necessary to invoke Luke 22:36, if for no other reason than to dismiss the persistent false views of what Jesus is saying there.

Paul Carter writing at Gospel Coalition states the following.

This passage is often submitted as evidence that Jesus permitted violent self defence if the situation so warranted. However, the vast majority of commentators think Jesus was speaking metaphorically here and that the disciples misunderstood the point he was trying to make. John Calvin for example said:

It was truly shameful and stupid ignorance, that the disciples, after having been so often informed about bearing the cross, imagine that they must fight with swords of iron. [1]

Indeed, had the disciples’ understanding been accurate, it would be hard to understand why just a few hours later Jesus would rebuke Peter for drawing a sword in self defence.  “Jesus said to him, “Put your sword back into its place. For all who take the sword will perish by the sword” (Matthew 26:52 ESV).

Either Jesus had a very short memory, or the disciples were guilty of gross misinterpretation of his teaching.

I’m not aware of a single commentator who thinks Jesus was telling the disciples to stock up on actual swords.

He utterly misses the point, misapplies Calvin here, and falsely states that Jesus spoke in riddles.  Calvin nowhere denies the biblical right of self defense, but rather states clearly that the sword will not win the souls of men.

Also quite clearly, Jesus did tell His disciples to purchase swords (actually, what was common then was a more concealable cross between a knife and sword).  More to the point, however, is that this command directly ordered His disciples to violate Roman law in order to obtain weapons of self defense.

… for some evidence, see Digest 48.6.1: collecting weapons ‘beyond those customary for hunting or for a journey by land or sea’ is forbidden; 48.6.3.1 forbids a man ‘of full age’ appearing in public with a weapon (telum) (references and translation are from Mommsen 1985). See also Mommsen 1899: 564 n. 2; 657-58 n. 1; and Linderski 2007: 102-103 (though he cites only Mommsen). Other laws from the same context of the Digest sometimes cited in this regard are not as worthwhile for my purposes because they seem to be forbidding the possession of weapons with criminal intent. But for the outright forbidding of being armed while in public in Rome, see Cicero’s letter to his brother relating an incident in Rome in which a man, who is apparently falsely accused of plotting an assassination, is nonetheless arrested merely for having confessed to having been armed with a dagger while in the city: To Atticus, Letter 44 (II.24). See also Cicero, Philippics 5.6 (§17). Finally we may cite a letter that Synesius of Cyrene wrote to his brother, probably sometime around the year 400 ce. The brother had apparently questioned the legality of Synesius having his household produce weapons to defend themselves against marauding bands. Synesius points out that there are no Roman legions anywhere near for protection, but he seems reluctantly to admit that he is engaged in an illegal act (Letter 107; for English trans., see Fitzgerald 1926).

There is a wide gulf between negating OT law regarding self defense, and merely emphasizing that the kingdom of God will not be won without the winning of souls.  It’s all too easy for modern “scholars” to conflate these ideas.

It would have been useful if Ms. Jones had provided more of her allegedly biblical objections to self defense, but she does not.  Her focus here is mainly on politics.  But it’s easy enough to demonstrate that a rock is useful in self defense, a stick maybe more so, a sword even more so, and a firearms the premier self defense weapon in the world today.

I usually ask most who object to the notion of self defense if they would take a life to prevent a home invader from taking the life of their wife.  When the moralistic legalistic among us tell us no, it’s interesting to watch the reactions of their wives.  They are quite literally willing to sacrifice their wives to rape and even death for the sake of their false sense of morality.  The next follow-on question usually ends the discussion: What about your children – are you willing to sacrifice their lives too?  Is your duty to protect the little ones?  What would Jesus do?

In the end, Ms. Jones is advised to moderate her claims to having “deep biblical expertise.”  I’ve done a bit of reading and study myself, my professor having forced me to read Francis Turretin, “Institutes of Elenctic Theology.”  It would also be wise to rehearse her knowledge of Calvin before teaching on him again.

And she might want to question her husband or other protector on his intentions in a home invasion.  She might find the results bracing.

It doesn’t help to assert as some do that God will take care of us.  That’s ineffective even for a Calvinist like me.  God expects us to follow His laws, meet our responsibilities, and fulfil our duties.

If this comes down to what weapon we think best to effect the self defense that God commands, Ms. Jones is stepping in between God and man if she presumes to decide that for us, and is taking the seat of Christ.  That’s a dangerous perch.

She would be best to ask the question, “Why has society changed so that misuse of weapons is the problem we think it is today?”  Or better yet, “Where does sin come from, and how long has man been committing it?”

As for the later, read Genesis Chapter 3.  As for the former, she might ponder the effects of the Auburn Affirmation with its rejection of the deity of Christ, the infallibility of the Scriptures, and the general defenestration of Biblical theology, along with the awful effects on American culture of that decision to make friends with the source, form and redaction criticism of the Germans.  In other words, look in the mirror, Ms. Jones.

Cases.  Because there is more than one.

I dislike that the judge relied on the fact that no psychiatrist needs to be involved in the current New York law in order to seize firearms.  The mere word of another person can do it.  This law should have been overthrown because it’s clearly unconstitutional.  But turning to the neighborhood witch doctors for the infallible word on your state of mind is a bad idea for too many reasons to list, not the least of which is the fact that only God knows the heart of man.  Another problem is that one can trust due process only if they trust the process (this sounds like a tautology but it’s not).  The ‘due’ part of due process relies on the truthfulness and viability of the justice system to administer justice.  More often than not, justice is whatever wicked men want it to be.

But this is better than the alternative, which is that the law could have been found constitutional.

I had completely missed this significant case coming from U.S. District Court, Northern District of Indiana, South Bend Division.  It had to do with Mr. John Holden who, upon completion of his Form 4473 as it turns out, was under indictment at the time.  Being under indictment is not the same thing as being found guilty of a crime.  Furthermore, recall that the Fifth Circuit has dealt with a situation somewhat similar to this one.

Anyway, the judge makes this startling statement in the conclusion of the decision.

This opinion was drafted with an earnest hope that its author has misunderstood New York State Rifle v . Bruen, 142 S. Ct. 2111. If not, most of the body of law Congress has developed to protect both public safety and the right to bear arms might well be unconstitutional . For one constitutional reason or another, a similar fate has befallen several other laws that Congress adopted with beneficent purposes . But unlike those instances , the decimation of the nation’s gun laws would arise from an assumption that our leaders and ratifying legislators in the late 1700s didn’t foresee that their descendants might need a different relationship than the founders had between the federal government and the right to bear arms. Yet a glance at the Constitution they were amending shows that they could foresee the growth in population that would change the number of representatives to be elected ,that future members of Congress might need higher pay, and that future states might aspire to join the union.

The United States Constitution, as amended and as imperfect as itwas ,is the legacy ofthose eighteenth-century Americans ; it insults both that legacy and their memory to assume they were so short-sighted as to forbid the people, through their elected representatives, from regulatingguns in new ways.

The role ofa United States District Court is to apply the law as understood by the United States Supreme Court; today’s rulingrecognizes that role. But the author of this opinion retains hope that he hasn’t accurately grasped the Supreme Court’s understanding of the Second Amendment.

The court GRANTS Mr. Holden’s motion to withdraw guilty plea and GRANTS Mr. Holden’s motion to dismiss the indictment . Mr. Holden’s plea of guilty is WITHDRAWN and the indictment DISMISSED.

The Firth Circuit was unapologetic in their decision, whereas Judge Miller seems to be begging and pleading for his interpretation of Bruen to be shown incorrect.

I think his interpretation is correct, as much as he hates it.  On a positive note, it’s nice that he was honest in his stated loathing of the Bruen decision, while still coming to a constitutional decision.

Mark discusses strategy concerning future gun rights cases.

Here is the case.  It concerns mootness of the case because, presto, the licensing authority suddenly found it within themselves to issue permits, thus avoiding a judgment on the entire scheme.

GRNC.

Grass Roots North Carolina and gun rights supporters made history today. Senate Bill 41 cleared its final hurdle and will become law after both chambers of the North Carolina General Assembly voted to override Governor Roy Cooper’s veto. SB 41 is the first override of a Cooper veto since 2018 and the first-ever override of a vetoed gun bill in North Carolina.

SB 41 repeals North Carolina’s Jim Crow-era pistol purchase permit law and closes the loophole under which concealed carry has been prohibited in churches which sponsor schools, giving those churches the same protections that most NC churches have enjoyed since 1995.

Yesterday, SB 41 cleared the NC Senate in a party line vote of 30-19, giving Republicans the expected 6/10 supermajority to override Cooper’s veto.

The NC House then fast-tracked the bill, taking it up as its first order of business this morning. Clearly, Speaker Tim Moore was in no mood to permit grandstanding by anti-gun Democrats as Rules Chair Rep. Destin Hall immediately offered a motion to “move the previous question,” a procedural maneuver that closes all debate and forces an immediate vote on the bill. With all House Republicans voting for the bill, SB 41 passed the House by a vote of 71-45, narrowly exceeding the necessary 6/10 supermajority.

It should be noted that Rep. Michael Wray (D- Halifax, Northampton, Warren), who was a co-sponsor of a similar bill and had voted for SB 41 the first time, apparently did not vote. It is not clear whether that was due to a deal with Republicans, or whether he sold out Second Amendment supporters. However, Rep. Shelly Willingham (D-Bertie, Edgecombe, Martin), who voted for SB 41 last time, reneged on his public statement that he would not change his position on the override. By voting “no” on the SB 41 override, he clearly betrayed gun rights supporters. Also unknown as of this writing is whether the other three Democrats who did not vote were present in the chamber.

AP reports it this way.

Moore used parliamentary maneuvers Wednesday to block floor debate before the vote, causing frustration among Democrats.

Cooper, who is term-limited from seeking reelection next year, criticized the the move by House leadership, saying in a tweet that arguments to uphold his veto would have been “too compelling for them to hear.”

In North Carolina, supposedly free men must turn over their information to the CLEO (Chief Law Enforcement Officer) for approval to purchase a handgun.  The investigation (and information you must turn over) to obtain a concealed handgun permit includes: a full background check, fingerprints, and full medical records.  They contact area hospitals to ensure you haven’t had admissions for mental health or substance abuse.

The investigation if you don’t have a concealed handgun permit is substantially the same as with one, it’s just that you must obtain a permit for every handgun purchase, with a fee to the county each time you apply.  The permitting scheme for a single purchase apparently goes a bit quicker than a concealed handgun permit, but both can take very long (months, and in some cases almost years when the CLEO claims to be “backed up” like the communist Sheriff of Mecklenburg County).

It’s quite the tax collecting scheme, to be sure.

That’s all done away with now.  It’s gone.  Effective immediately.

Finally.

Without that albatross hanging on us, and with both states now being legal to openly carry, NC and SC gun laws are similar.  Here’s an exception: Open carry is legal in NC without a permit, and in SC, one needs his permit.  Also in SC, the legislature is considering permitless carry.

In neither state, as of today, must a CLEO approve a gun purchase.

Goober Roy Cooper can suck on it.

My regular readers know that in these parts, we speak the names of John Moses Browning and Eugene Stoner with hushed reverence.  As an engineer, I have a special appreciation for fine engineering as was performed by both of these men, as well as by Jim Sullivan.

There have been indications in the past that Eugene Stoner’s family was opposed to civilian ownership of the very weapon he designed and built.  This article points to that.

“Our father, Eugene Stoner, designed the AR-15 and subsequent M-16 as a military weapon to give our soldiers an advantage over the AK-47,” the Stoner family told NBC News late Wednesday. “He died long before any mass shootings occurred. But, we do think he would have been horrified and sickened as anyone, if not more by these events.”

But their comments add unprecedented context to their father’s creation, shedding new light on his intentions and adding firepower to the effort to ban weapons like the AR-15. The comments could also bolster a groundbreaking new lawsuit, which argues that the weapon is a tool of war — never intended for civilians.

Eugene Stoner would have agreed, his family said.

Of course, this is supposition and hearsay, with his family attempting to leverage the reputation of their father for their own political ends.  But you see why nerves are sometimes a bit on edge when someone like Reed Knight speaks about these issues.  Reed knew him better than virtually anyone else and worked with him at KAC before Stoner passed away.

Along with (on the same day as) the shooting in Tennessee, no less than four hit pieces came out in the legacy media on the AR-15.  It’s not my intent to rehearse the details of the shooting (nor to tackle every hit piece).  That has been done elsewhere, from the rapid response of the police (versus in Uvalde), to the need to harden schools, and finally to the fact that she chose this school because it was a soft location whereas other potential targets had too much security.

My intention is to fisk one of the hit pieces from The Washington Post.  In this piece, Mr. Knight is quoted.

Eugene Stoner, a World War II veteran who invented the AR-15 in the late 1950s while working at Armalite, a small engineering firm in Hollywood, had no interest in civilians using his invention, said C. Reed Knight, who owns a Florida gunmaking company and considers Stoner his mentor.

“He looked at this thing as only for the military side of the house,” Knight said. Stoner, who died in 1997, thought his invention was past its prime by the mid-1990s, Knight said. He added that Stoner would have been horrified by the idea that “he invented the tool of all this carnage in the schools.”

I figured that this was a response to a very specific chronological question, and so I contacted Mr. Knight for clarification.  He graciously allowed me to spend some time with him over the telephone.  Since there is no transcript (I didn’t do this interview via email), I’ll try faithfully to reproduce some of the things he conveyed to me.  You’ll have to trust that I got it right.

First of all, Reed began a rundown of the history of Eugene’s work on the AR platform.  I knew all of this anyway, but it was nice to here Mr. Knight reminisce about his relationship and Eugene’s work.  He began in the late 1950s on the design.  It is of course correct to say that Eugene didn’t design the rifle for civilian use, since his work was targeted towards the military, and it was a military contract under which he worked.  He was paid to work on a rifle for the military.

There is a great gulf between saying that his work was done for, and financially supported by, the U.S. military, and asserting that civilians shouldn’t own the rifle, or that Eugene would have been opposed to such ownership.  That’s what’s being implied in The Washington Post.  Both Mr. Knight and I agreed on this point, and Mr. Knight made it clear that he was answering a very specific question on chronology, not politics or liberty and rights.

As an editorial point, I’ll observe that what Mr. Reed stated to me and what I recalled as the next events dovetail together.  Eugene sold the patent for the AR platform rifle to Colt in the early to mid 1960s.  Reed said to me, “… and colt immediately wanted to market the rifle in the civilian community, which of course is their right.”

Also as an editorial point, for more evidence of both the timeline here, and ATF malfeasance, my friend and colleague David Codrea sent me this article (which I had read before but forgot), in which Len Savage worked with Stephen Stamboulieh to obtain original classification letters through FOIA.  The results are interesting.

“Colt sent a pilot model rifle (serial no. GX4968) to the BATF for civilian sale approval on Oct. 23, 1963. It was approved on Dec. 10, 1963, and sales of the ‘Model R6000 Colt AR-15 SP1 Sporter Rifle’ began on Jan 2, 1964,” one critic of the article contended. “The M16 wasn’t issued to infantry units until 1965 (as the XM16E1), wasn’t standardized as the M16A1 until 1967, and didn’t officially replace the M14 until 1969.”

Civilians had this rifle before the troops in the field did.

“There are several things that are interesting,” Savage told AmmoLand News about the classification letter. “One, it shows pre-Gun Control Act ATF policy on the AR-15 system,” He noted. “It also shows why the most likely reason an AR lower is considered a ‘frame or receiver’ is that from 1962-1968 Colt marked the lower receivers with the information (flat surface as the upper is round). Meaning the regulatory scheme used by ATF  1968 to present is based on what Colt marked pre-1968 and not the statute. Willfully and knowingly.”

“Len hit the nail on the head,” Stamboulieh weighed in. “The current notice of proposed rule-making reads as if there was just no way the ATF could have known that the AR-15 split modular design was a thing. Back in 1968, the agency promulgated the definition of frame or receiver, post-dating the classification letter of the AR15, and that shows why they should have originally known what they were making a definition for.”

He and Savage also cleared up a point of potential confusion on why the classification letter refers to the AR-15 as an “automatic rifle.”

“It is because (my thoughts) that they sent two rifles,” Stamboulieh offered. “One was an automatic rifle, and the other was the modified rifle made to be not a machinegun (a semi-automatic version). So the ATF said, yes, this modified ‘automatic rifle’ is not a firearm under the NFA (therefore, not a machinegun and in other words, a semi-auto).”

“Bingo!” Savage replied. “They sent an ‘Unserviceable’ M16 so ATF could compare it and the new rifle and were told it was still considered an MG even if unserviceable since it was not properly destroyed. I laughed when Colt was told ‘file a Form 2’ in order to get it back… Wonder if it is still in National Firearms Collection?”

“In 1968 firearms industry terminology ‘automatic rifle’ means the same as ‘auto-loading rifle,’ i.e., a rifle that loads itself for the next shot,” he recalled. “Even in 1979-1980 when I took my hunters’ safety course the State of Michigan used the two terms interchangeably throughout the course.”

Thanks to David for reminding me of this article, and to Len and Stephen for the work on the FOIA.

Returning to Reed Knight, I continued with him on what Eugene thought about firearms ownership by civilians.  He told me that Eugene had a large collection of firearms and was a strong supporter of the second amendment.  Just to close the loop on all of this, I asked Reed if he believed that the rifle he currently builds at Knight’s Armament should be prohibited from civilian ownership?

I was met with an unequivocal ‘NO’.  He did opt to clarify that he firmly believes that, but most of the work they do at KAC is for the military since they focus their efforts on military contracts.  But that doesn’t change his beliefs about and support for the 2A.

Reed went on to discuss the current state of affairs concerning schools, shootings, etc.  We both believe in firmer security including armed resource officers and armed teachers, and he mentioned cultural changes that might have led to the situation we see today, including video games (I don’t happen to agree with that assessment concerning FPS gaming), unaddressed mental health issues, and other things.  I mentioned that my own readers might strongly add spiritual and moral problems as the primary cause, and he agreed with me that those issues play a role.

I’ll close my interview report by conveying two quotes by Reed: “I can’t blame the thieving that goes on in the jewelry store on the hammer that broke the glass.”  “It’s terrible to piss on Eugene’s grave because of what evil people do.”

That’s common sense, but not so common today.

I’ll also leave a few more editorial remarks.  If we’re going to consider chronology, it’s a fact that the Remington .223 was designed before the NATO 5.56mm, and in fact, Eugene based the 5.56mm on the .223, making a few minor changes to the casing before adoption as the standard NATO round.  So civilians had both the cartridge and the gun before the U.S. military did.  I won’t go into detail on the minor differences between the .223 and 5.56mm cartridge.  That’s not within the scope of this article.

I’m left wondering how writers like Philip Bump continue to be employed, who stated flatly that …

It is estimated that there are 20 million AR-15-style rifles in the United States at this point — a powerful, deadly type of weapon that didn’t exist as a consumer product two decades ago.

First, I think this estimate is quite low.  But note that he puts the commercial availability as 2023 – 20 = 2003.  How on earth do these writers get paid unless the pay master knows they’re writing pure bunk and wants it that way?

Now, one might criticize Mr. Knight for even agreeing to interviewed by The Washington Post.  But that’s his business, not mine.  But it must be noted that there are two ways to write things: truthfully and with the complete story, or twisted so that every remark, every comment, every [partial]fact, every half-truth, and every quote feeds a narrative, that narrative being the one the publisher wants to push.

That’s what you see when you read The Washington Post and similar publications.  Legacy media indeed.  I repeat: there is a world of difference between making observations and statements in response to questions of chronology (even if the writer is too stupid to know that’s what the question and answer is really about), and world and life views concerning liberties and rights.  It’s easy enough to string hearsay together with false implications of chronology and make a narrative.  It appears to be much harder to tell the truth.

I’ll say the same thing I did to Reed Knight.  Over these pages, we value the truth above all else.

I should be more specific and say that those weapons are protected from bans.

“Under Bruen and Heller, the irreducible minimum of the Second Amendment is this: States may not ban arms that millions of Americans possess for lawful purposes. That most basic of principles dooms HB 5471. The Court should grant Plaintiffs’ motion for a preliminary injunction.”

“The Second Amendment secures “the right of the people to keep and bear Arms.” U.S. Const. amend. II. And as the Supreme Court made clear last year, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.Ct. 2111, 2126 (2022). The first question this Court must ask in analyzing HB 5471 is thus whether the firearms and magazines the statute bans fit within “the Second Amendment’s definition of ‘arms.’” Id. at 2132. After all, one can neither “keep” nor “bear” what one cannot acquire or possess in the first place. If the answer to that first question is yes (which it plainly is, see infra pp.1-6), the Court must then ask whether the firearms and magazines HB 5471 bans are “highly unusual in society at large” today. Id. at 2143 (quoting Heller v. Dist. of Columbia, 554 U.S. 570, 627 (2008)). If the answer to that question is no (which it plainly is, see infra pp.6-11), then the inquiry is over and the statute is invalid, because a state may not “prohibit[] … an entire class of ‘arms’ that is overwhelmingly chosen by American society for [a] lawful purpose.” Heller, 554 U.S. at 628; see also Bruen, 142 S.Ct. at 2128, 2143 (“[T]he Second Amendment protects … weapons that are unquestionably in common use today.”).”

“The rifles, pistols, and shotguns that HB 5471 flatly bans, see 720 ILCS 5/24-1.9(a)(1), (b)-(c), obviously fit that bill. Indeed, if the most ubiquitous firearms in America do not even fall within the ambit of the Second Amendment, then Bruen, Heller, and the Amendment itself mean nothing. The AG nonetheless contends that the firearms HB 5471 bans are not “Arms” covered by the Second Amendment because (he says) “they are not commonly used for self-defense” today and were not “in common use at the time the Second or Fourteenth Amendments were ratified.” AG.Br.2, 16. The first argument is analytically confused; as for the second, the Supreme Court has twice “rejected” it as “‘bordering on the frivolous.’” Caetano v. Massachusetts, 577 U.S. 411, 414 (2016) (Alito, J., concurring) (quoting Heller, 554 U.S. at 582); see id. at 411-12 (per curiam).”

Read the whole brief to the court.

Mark Smith makes a compelling case for his view.  He takes an incrementalist approach.  Listen to his whole argument.