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Supreme Court - NYSRPA v. Bruen - Megathread

Once again, the court is stating folklore as fact. Quoting from the decision: 'Bowie knife, a distinctive weapon with a "longer blade[] designed expressly for fighting, rather than hunting or utility.'" In reality, a Bowie knife was originally not much more than a butcher's knife with an added guard. In size and shape. The 19th century knives were probably closer in weight to the carving knife shown below rather than the modern smith-made Bowie.

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Per The History of Bans on Types of Arms Before 1900 by KOPEL & GREENLEE there was no real distinction of a Bowie knife or Arkansas toothpick back in the early 19th century:

"The knife had been made by Rezin Bowie, Jim’s brother. According to Rezin,the knife was intended for bear hunting. He stated, “The length of the knifewas nine and a quarter inches, its width one and a half inches, single-edged,and blade not curved.”436 Nothing about the knife was novel.The initial and subsequent media coverage of the Sandbar Fight was oftenhighly inaccurate.437 As “Bowie knife” entered the American vocabulary,manufacturers began labeling all sorts of large knives as “Bowie knives.” Someof these were straight (like Rezin’s) and other had curved blades. Rezin’s knifewas single-edged, but some “Bowie knives” were double-edged. Rezin’s knifedid not have a clip point, but some so-called “Bowie knives” did. Likewise, somehad crossguards (to protect the user’s hand), and others did not. “Bowie knife”was more a sloppy marketing term than a description of a particular type ofknife—just as some people today say “Coke” to mean many kinds of carbonatedbeverages. (The difference is that true “Coke” products, manufactured by theCoca-Cola Company, do exist; there never was a true “Bowie knife,” other thanthe one used at the Sandbar Fight.) Manufacturers slapped the “Bowie knife” label on a wide variety of large knives that were well-suited for hunting andself-defense. In words of knife historian Norm Flayderman, “there is no onespecific knife that can be exactingly described as a Bowie knife."
 
Not surprising. The United States Court of Appeals for the First Circuit upholds Rhode Island's magazine ban.

https://storage.courtlistener.com/r....49969/gov.uscourts.ca1.49969.108117623.0.pdf
SCOTUS needs to reach out and bitch slap one of these circuit courts limiting the scope of review to only those items shown to be commonly used to full capability in self defense.

The standard is not common use in self defense, it is pulled from Miller's "And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Heller expounds on this to give us the modern scope of protected arms to be: "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes,"
Therefore, the 2nd amendment covers all arms that are typically possessed for lawful purposes; Not commonly possessed for self-defense or even common in general (although common possession did seem to be added in Caetano) - the standard is typically possessed without concern for rate of possession. And by that measure no magazine with a capacity over 10 rounds can be said to be typically possessed for unlawful purpose, How?

There are at least 150 million large capacity magazines in possession in the US with approximately 20k murders committed with firearms, without regard to magazine capacity, leaving us with a maximum of only 0.014% of large capacity magazines per year being used, or 99.986% held for lawful purpose. There is no objective analysis methodology that could find that large capacity magazines are not typically possessed for lawful purpose (7141 times more likely to be held lawfully than for violence)

The measurement is not what criminals typically use - if that was true then Heller was incorrectly held as handguns are the most common arm used by criminals by far, and Heller distinctly holds handguns as central to those items protected under the 2nd.

So, it is established that magazines are an arm typically and commonly possessed for lawful purpose in general and self-defense in particular ( 4 of the top 5 selling handguns have standard magazine capacities over 10 rounds)
 
His titles tend to be much less click bait than armed scholar and I like his presentation and depth of content better
But it is true that a few of the good Lawtubers can be a hard watch.
Tom Grieve is a great watch but he does more 2a legal news than legal scholarship
I was following a bunch of those YouTubers and there was a big increase in all of them with titles like "SC Destroys AW BAN!!" and you watch it to find out nothing new made it to the SC, some state court made some proceedural decision that doesn't mean any thing and nothing has changed anywhere, and I just stopped watching all of them.
 
I was following a bunch of those YouTubers and there was a big increase in all of them with titles like "SC Destroys AW BAN!!" and you watch it to find out nothing new made it to the SC, some state court made some proceedural decision that doesn't mean any thing and nothing has changed anywhere, and I just stopped watching all of them.
Precisely! Just fantastic headlines that have no real meaning, and a bunch of blather for 20 minutes which is a total waste of time. People need to stop posting them here.
 
Precisely! Just fantastic headlines that have no real meaning, and a bunch of blather for 20 minutes which is a total waste of time. People need to stop posting them here.

If you are talking about armed scholar, I would tend to agree.
For FourBoxes, his click baiting is tolerable considering the depth of the constitutional analysis.
Most people will be bored and not GAS about the why's and how's that he expounds on but it is extremely valuable information to those who deeply analyze cases.
 
I guess this might be true. The thing is, they try to present it as if they are delivering very important news about something, and it is not that at all. Wolf wolf wolf!
Some of the information is extremely important but only to those developing or executing a case (and those that geek out on analyzing how all of the circuit court actions fit together)
 
If you are talking about armed scholar, I would tend to agree.
For FourBoxes, his click baiting is tolerable considering the depth of the constitutional analysis.
Most people will be bored and not GAS about the why's and how's that he expounds on but it is extremely valuable information to those who deeply analyze cases.
Four Boxes Diner posts one video per day, whether anything is happening or not.
Sometimes his vids when nothing is happening, for example history of the 2A stuff, are more interesting than his modern case analysis IMHO.
 
Not surprising. The United States Court of Appeals for the First Circuit upholds Rhode Island's magazine ban.

https://storage.courtlistener.com/r....49969/gov.uscourts.ca1.49969.108117623.0.pdf

Positive thinking!

"One interesting aspect of this ongoing litigation is that, because about 12-15 states have AWBs or LCM bans in place (with a lot of overlap), there are only certain circuit courts that could even conceivably pass on a Second Amendment challenge to such a law. The states with such laws in place are overwhelmingly concentrated in the First, Second, Third, Ninth, and D.C. Circuits. The only other circuits with even a chance of fielding such cases are the Fourth Circuit (due to Maryland), the Seventh Circuit (due to Illinois) and the Tenth Circuit (due to Colorado’s LCM ban[3]); the Fifth, Sixth, Eighth and Eleventh Circuits will never deal with these challenges in the current regulatory landscape. I think that likely means that the Supreme Court may well take up an AWB or LCM ban case sooner rather than later, even without a direct circuit split."
 
Maybe the Texas AG Ken Paxton can help the country out and initiate a AWB and Mag ban case through the 5th circuit who would ultimately rule in favor of the 2A causing a real circuit split. Dreaming?
 
Maybe the Texas AG Ken Paxton can help the country out and initiate a AWB and Mag ban case through the 5th circuit who would ultimately rule in favor of the 2A causing a real circuit split. Dreaming?
There are already a bunch of AWBs being challenged in several different circuits. They would get to SCOTUS quicker than a new case.

There is literally no benefit to a new AWB in Texas at this point. SCOTUS isn’t waiting on a circuit split to take up an AWB case, what they want is a case that is on a final judgement and not interlocutory appeal.
 
There are already a bunch of AWBs being challenged in several different circuits. They would get to SCOTUS quicker than a new case.

There is literally no benefit to a new AWB in Texas at this point. SCOTUS isn’t waiting on a circuit split to take up an AWB case, what they want is a case that is on a final judgement and not interlocutory appeal.

What he’s talking about wouldn’t need to get to SCOTUS, only the 5th circuit court of appeals.

MAYBE they’re only waiting for a final judgement. But it could be that they’re actually waiting for a circuit split with final judgements. We just don’t know.
 
MAYBE they’re only waiting for a final judgement. But it could be that they’re actually waiting for a circuit split with final judgements. We just don’t know.
I think we do, by the fact that they already granted cert in Bianchi pre-Bruen before there was no circuit split and remanded the case in light of Bruen. If they wanted a circuit split they wouldn’t have granted cert then.

EDIT: slight clarification, what I mean to say is they held onto Bianchi until after Bruen was decided. If they wanted a circuit split they would’ve just denied cert
 
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Don’t think that’s what they mean when they say a circuit split
I agree but if one studies Bruen's analysis the lack of historical restrictions is a positive indication that the restriction is likely impermissible.
If 60+% of states consider mag limits and AWBs impermissible restrictions then that is a controversy of constitutional limits.
 
I agree but if one studies Bruen's analysis the lack of historical restrictions is a positive indication that the restriction is likely impermissible.
If 60+% of states consider mag limits and AWBs impermissible restrictions then that is a controversy of constitutional limits.
But the historical analysis takes place at the time of the founding, not in the modern era. It doesn’t matter if even 49/50 states in 2024 think AWB/mag bans are cool today, if there’s no historical tradition of it from 1791 then it’s unconstitutional.

Realistically Bruen isn’t even involved with arms ban cases, SCOTUS already did the historical analysis in Heller and found that only dangerous and unusual weapons can be banned. If a weapon is in common use by Americans for lawful purposes, including but not limited to self defense, then it can’t be banned.
 
But the historical analysis takes place at the time of the founding, not in the modern era. It doesn’t matter if even 49/50 states in 2024 think AWB/mag bans are cool today, if there’s no historical tradition of it from 1791 then it’s unconstitutional.

Realistically Bruen isn’t even involved with arms ban cases, SCOTUS already did the historical analysis in Heller and found that only dangerous and unusual weapons can be banned. If a weapon is in common use by Americans for lawful purposes, including but not limited to self defense, then it can’t be banned.
I'm speaking hypothetically and tongue in cheek
There won't ever be a true circuit split since those circuits that would rule against a ban are in areas that wouldn't pass ban in the first place.

That there is a controversy over the exent of an enumerated right should be enough to trigger a Supreme Court review but that's not happening with Roberts in charge.
 
I'm speaking hypothetically and tongue in cheek
There won't ever be a true circuit split since those circuits that would rule against a ban are in areas that wouldn't pass ban in the first place.

That there is a controversy over the exent of an enumerated right should be enough to trigger a Supreme Court review but that's not happening with Roberts in charge.
Although Roberts sucks, we can’t blame him entirely. He’s not even necessarily the swing vote on the court anymore. It takes 4 Justices to vote to hear a case in order for cert to be granted. That means there are at least a couple of other conservative justices who are choosing not to act. Honestly, my guess is that Justices Thomas, Alito and maybe Gorsuch are the ones in the minority on this.
 
Although Roberts sucks, we can’t blame him entirely. He’s not even necessarily the swing vote on the court anymore. It takes 4 Justices to vote to hear a case in order for cert to be granted. That means there are at least a couple of other conservative justices who are choosing not to act. Honestly, my guess is that Justices Thomas, Alito and maybe Gorsuch are the ones in the minority on this.
He is still chief justice and has a lot of sway over the court.
I would put Barrett on the list of minority votes.
 
He is still chief justice and has a lot of sway over the court.
I would put Barrett on the list of minority votes.
Just to clarify, when I say minority I’m saying that the people choosing to grant cert are the ones in the minority while the majority are the ones choosing to deny cert. If Barrett were with the others I listed in the minority that would make it 4 which is enough to grant cert.

My basis for listing Alito, Thomas and Gorsuch in the minority is their statements in Antonyuk v. Nigrelli and Peruta v. California. Here’s a quote from Justice Alito, with whom Justice Thomas joins, in Antonyuk:

I understand the Court’s denial today to reflect respect for the Second Circuit’s procedures in managing its own docket, rather than expressing any view on the merits of the case. Applicants should not be deterred by today’s order from again seeking relief if the Second Circuit does not, within a reasonable time, provide an explanation for its stay order or expedite consideration of the appeal.”

And here is a quote from Justice Thomas, with whom Justice Gorsuch joins, in Peruta:

For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.

Seems pretty clear to me that these 3 are the ones who want to grant cert, but their hands are tied by the rest of the court.
 
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I don’t disagree, but Peruta was denied Cert in 2017, 7 years ago and before Barrett was on the Court and before Bruen was decided.

I’m holding out hope that an assault weapon ban case is granted Cert soon.
 
I don’t disagree, but Peruta was denied Cert in 2017, 7 years ago and before Barrett was on the Court and before Bruen was decided.
Fair enough, assuming Gorsuch has flipped that means we only have Alito, Thomas and maybe Kavanaugh (that’s a very strong maybe, he’s another wishy-washy Justice like Roberts who sides with the liberals too much for my liking). The rest are very clearly denying cert.
I’m holding out hope that an assault weapon ban case is granted Cert soon.
not likely, but anything can happen. The procedural posture of all the current AWB cases before SCOTUS isn’t to their liking, but the one with the best chance of success to be granted certiorari is Bianchi v. Brown out of the 4th Circuit dealing with MD’s AWB. There’s probably less than a 30% chance of that happening though.
 
what they want is a case that is on a final judgement and not interlocutory appeal.
OK. So, what are the choices there, and which is most likely to get to this point?


SCOTUS already did the historical analysis in Heller and found that only dangerous and unusual weapons can be banned.
Sure, tell that to Massachusetts!


holding out hope that an assault weapon ban case is granted Cert soon.
Which cases are in the pipeline for this? Which ones aren't part of that "interlocutory" process/problem? Which one is closest to happening?
 
Which cases are in the pipeline for this? Which ones aren't part of that "interlocutory" process/problem? Which one is closest to happening?
Duncan v Bonta is a California Magazine case and Bianchi Vs Frosh (renamed Bianchi v Brown) is the Maryland AWB case. Both were Granted Cert, Vacated and Remanded (GVRd) once already by SCOTUS days after the Bruen Decision.
I don’t see how SCOTUS could grant Cert to those cases in 2021 and not grant Cert to them again when those cases make it back up to SCOTUS again, which should happen next year. 🤞🤞🤞
 
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Just to clarify, when I say minority I’m saying that the people choosing to grant cert are the ones in the minority while the majority are the ones choosing to deny cert. If Barrett were with the others I listed in the minority that would make it 4 which is enough to grant cert.

My basis for listing Alito, Thomas and Gorsuch in the minority is their statements in Antonyuk v. Nigrelli and Peruta v. California. Here’s a quote from Justice Alito, with whom Justice Thomas joins, in Antonyuk:

I understand the Court’s denial today to reflect respect for the Second Circuit’s procedures in managing its own docket, rather than expressing any view on the merits of the case. Applicants should not be deterred by today’s order from again seeking relief if the Second Circuit does not, within a reasonable time, provide an explanation for its stay order or expedite consideration of the appeal.”

And here is a quote from Justice Thomas, with whom Justice Gorsuch joins, in Peruta:

For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.

Seems pretty clear to me that these 3 are the ones who want to grant cert, but their hands are tied by the rest of the court.
Alito, Barrett, Gorsuch and Thomas are smart enough that they wouldn't grant cert in a case they were concerned with if they only had the minimum four votes.
 
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