Good thing me and my cousins always pay cash for our gun purchases.New code, backed by NY lawmakers, will help credit card companies track gun purchases
New code, backed by NY lawmakers, will help credit card companies track gun purchases
Gun safety advocates, including several public officials, argue the measure will make it easier to flag suspicious activity before guns are trafficked or someone commits a mass shooting.gothamist.com
Not quite sure if this belongs here or not.
Article: Last June in New York State Rifle and Pistol Association v. Bruen, the Supreme Court ruled that it was unconstitutional to require that people who want to carry handguns in public for self-defense demonstrate that they have "proper cause" to do so. New York legislators and Gov. Kathy Hochul responded by eliminating that requirement while simultaneously imposing a raft of new restrictions, including criteria for proving a carry-permit applicant's "good moral character" and bans on firearm possession in a long list of "sensitive locations." Yesterday a federal judge issued a temporary restraining order (TRO) against enforcing many of those rules, saying they probably violate the Second Amendment.
U.S. District Judge Glenn T. Suddaby's decision in Antonyuk v. Hochul casts doubt on the constitutionality of the vague standards that New York and several other states retained even after Bruen. It also suggests that sweeping, location-specific gun bans like New York's, which make leaving home with a gun legally perilous even for permit holders, are inconsistent with the constitutional right to bear arms.
Suddaby notes that New York's law "expressly prohibits the issuance of a license [to carry a handgun] unless the licensing officer finds (meaning unless the applicant persuades him or her through providing much information, including 'such other information required by review of the licensing application that is reasonably necessary and related to the review of the licensing application') that the applicant is of 'good moral character,' which involves undefined assessments of 'temperament,' 'judgment' and '[]trust[].'" He adds that "shouldering an applicant with the burden of showing that he or she is of such 'good moral character' (in the face of a de facto presumption that he or she is not) is akin to shouldering an applicant with the burden of showing that he or she has a special need for self-protection distinguishable from that of the general community."
That is exactly the sort of requirement that the Supreme Court rejected in Bruen, which said New York's "may issue" permit policy, in contrast with "shall issue" laws that allow people to carry guns if they meet a short list of objective criteria, gave local officials too much discretion. "In essence," Suddaby says, "New York State has replaced its requirement that an applicant show a special need for self-protection with its requirement that the applicant rebut the presumption that he or she is a danger to himself or herself, while retaining (and even expanding) the open-ended discretion afforded to its licensing officers. Simply stated, instead of moving toward becoming a shall-issue jurisdiction, New York State has further entrenched itself as a shall-not-issue jurisdiction."
Suddaby's TRO also applies to New York's requirement that applicants supply information about their social media accounts so that licensing officials can decide whether they have said anything suggesting they lack "good moral character." As the gun owners who challenged the new regulations saw it, that demand violated the right to freedom of speech as well as the right to bear arms, making the latter contingent on how applicants have exercised the former.
Suddaby also blocked enforcement of New York's requirement that carry-permit applicants meet in person with licensing officials for an interview, saying "the
Court finds that no such circumstances exist under which this provision would be valid." He likewise said the state had failed to justify its demand for the "names and contact information for the applicant's current spouse, or domestic partner, any other adults residing in the applicant's home, including any adult children of the applicant, and whether or not there are minors residing, full time or part time, in the applicant's home." Suddaby deemed that requirement "far more invasive and onerous" than the requirement that an applicant supply four character references, which he let stand.
In analyzing whether these provisions were likely to pass constitutional muster, Suddaby applied the test that the Supreme Court prescribed in Bruen: whether a rule is "consistent with this Nation's historical tradition of firearm regulation." Meeting that test requires citing historical analogs that resemble the challenged restriction, which New York had trouble doing for several of its rules.
The state's justification for the character-reference requirement, for example, relied on three historical analogs, including a Delaware law that said "any free negro or free mulatto" who wanted permission to carry a gun had to submit the "written certificate of five or more respectable and judicious citizens of the neighborhood" attesting to his "fair character." In a footnote, Suddaby notes that he took that precedent into account despite its "racist and abhorrent" nature. New York also cited two municipal ordinances regulating public possession of guns, one requiring a police recommendation and one requiring references from "at least three reputable freeholders."
That thin record was enough for Suddaby to let New York demand that a carry-permit applicant submit four character references. But he said the state had not shown that its expansive definition of "sensitive locations" was consistent with the historical understanding of the right to bear arms.
"The Court respectfully reminds Defendants that, because the Second Amendment's plain text covers the conduct in question (carrying a handgun in public for self-defense), 'the Constitution presumptively protects that conduct,'" Suddaby writes. "Defendants must then rebut the presumption by 'demonstrat[ing] that the regulation is consistent with this Nation's historical tradition of firearm regulation.'"
In the landmark Second Amendment case District of Columbia v. Heller (2008), the Supreme Court described "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" as "longstanding prohibitions." But in Bruen, it noted that "the historical record yields relatively few 18th- and 19th-century 'sensitive places' where weapons were altogether prohibited." They included "legislative assemblies, polling places, and courthouses."
New York's location-specific gun bans, by contrast, include 20 broad categories that encompass myriad places where people might want to carry firearms for self-defense. Suddaby rejected many of these restrictions, including the prohibition of firearms in public transportation, in entertainment venues, in places where alcohol is served, and in "the area commonly known as Times Square." He said the ban on guns in places of worship was overly broad because it did not include an exception for "persons who have been tasked with the duty to keep the peace" in such locations.
More generally, Suddaby rejected New York's default rule that guns are prohibited in all businesses open to the public unless the owner expressly allows them and posts signs to that effect. Contrary to the state's claim that it is defending the prerogatives of business owners, he says, New York is "making a decision for private property owners that they are perfectly able to make for themselves…as well as arguably compelling speech on a sensitive issue." In any case, he adds, "this policy dispute is irrelevant, because it does not regard the Supreme Court's 'historical tradition' standard."
That standard may prove to be an insurmountable challenge for states that pretend to comply with Bruen while imposing licensing requirements just as nebulous as the "proper cause" test that Court rejected or making it practically difficult for permit holders to carry guns for self-defense. Judging from Suddaby's decision, courts may not be as easy to fool as anti-gun politicians hope.
Article: Assume, for example, that a law-abiding citizen purchases a firearm from a sporting goods store. At the time of the sale, that firearm complies with the commercial regulation that it bear a serial number. The law-abiding citizen takes the firearm home and removes the serial number. He has no ill intent and never takes any otherwise unlawful action with the firearm. Contrary to the Government's argument that Section 922(k) does not amount to an "infringement" on the law-abiding citizen's Second Amendment right, the practical application is that while the law-abiding citizen's possession of the firearm was originally legal, it became illegal only because the serial number was removed. He could be prosecuted federally for his possession of it. That is the definition of an infringement on one's right to possess a firearm.
Now, assume that the law-abiding citizen dies and leaves his gun collection to his law-abiding daughter. The daughter takes the firearms, the one with the removed serial number among them, to her home and displays them in her father's memory. As it stands, Section 922(k) also makes her possession of the firearm illegal, despite the fact that it was legally purchased by her father and despite the fact that she was not the person who removed the serial number. These scenarios make clear that Section 922(k) is far more than the mere commercial regulation the Government claims it to be. Rather, it is a blatant prohibition on possession. The conduct prohibited by Section 922(k) falls squarely within the Second Amendment's plain text….
Having found that Section 922(k) does implicate conduct that is protected by the Second Amendment, the statute is presumptively unconstitutional unless the Government can show that "it is consistent with the Nation's historical tradition of firearm regulation." This analysis is constrained by the Supreme Court's definition of "historical tradition" as the time of the founding and ratification of the Second Amendment in 1791. According to Bruen, "[h]istorical evidence that long predates [the ratification] … may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years." Likewise, the Court cautions that lower courts "must also guard against giving postenactment history more weight than it can rightly bear," by only considering those postenactment sources that help "determine the public understanding of [the Second Amendment]" at the time of its ratification.
Taking those instructions together, the crux of the historical inquiry is to determine the understanding of the right at the time it was enshrined in the Constitution. Any modern regulation that does not comport with the historical understanding of the right is to be deemed unconstitutional, regardless of how desirable or important that regulation may be in our modern society….
Prior to Bruen, courts considering the constitutionality of Section 922(k) found that the requirement that a serial number not be removed was a minimal burden on lawful gun owners compared to the value serial numbers provide to society. Specifically, by requiring serial numbers and "channeling the sales of firearms through federally licensed dealers," who keep a record of those sales, the Gun Control Act on the whole helps to keep firearms out of the hands of "individuals whose possession of them would be contrary to the public interest." And, the Third Circuit explained, "It is no secret that a chain of custody for a firearm greatly assists in the difficult process of solving crimes. When a firearm is stolen, determining this chain is difficult and when serial numbers are obliterated, it is virtually impossible." Certainly, the usefulness of serial numbers in solving gun crimes makes Section 922(k) desirable for our society. But the Supreme Court no longer permits such an analysis.
Under Bruen, I am limited to considering whether Section 922(k) is "consistent with the Nation's historical tradition of firearm regulation." Where the regulation confronts a longstanding "perceived societal problem" that the founders could have addressed but either did not address or addressed through "materially different means," the regulation is unconstitutional. On the other hand, where the societal problem addressed by the regulation is "unprecedented," such that it would have been "unimaginable at the founding" or is based on "dramatic technological changes," the approach may be more nuanced. In those instances, the Government may point to an analogous regulation in the relevant historical tradition as evidence that the modern regulation is constitutional. In either case, the burden is on the Government to establish the constitutionality of Section 922(k)….
Serial numbers were not broadly required for all firearms manufactured and imported in the United States until the passage of the Gun Control Act of 1968…. Notably, these prohibitions were only on transporting, shipping, or receiving firearms—that is to say, when the firearms were in the stream of commerce.
Even in 1968 there was no prohibition on mere possession of a firearm that had the serial number altered or removed. In fact, it was not until the Crime Control Act of 1990 that Section 922 was amended to insert "or to possess or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce." …
Given this history, the "societal problem" addressed by Section 922(k) appear to be crime, including crime involving stolen firearms, and assisting law enforcement in solving crime. It is difficult to imagine that this societal problem did not exist at the founding. While firearms then were not the same as firearms today, there certainly were gun crimes that might have been more easily investigated if firearms had to be identifiable by a serial number or other mark. The Government has presented no evidence, and the court is not aware of any, that any such requirement existed in 1791. And, insofar as the Gun Control Act was intended to keep firearms out of the hands of those who might commit crimes with them, there is evidence, as I discuss later, that the founders addressed that problem through materially different means. According to Bruen, that the societal problem addressed by Section 922(k) was likely in existence at the founding but not addressed by similar means "is relevant evidence that the challenged regulation is inconsistent with the Second Amendment."
Even assuming the societal problem addressed by the regulation is "unprecedented," such that it would have been "unimaginable at the founding" or is based on "dramatic technological changes," it is the Government's burden to show that there were analogous regulations at the time to support Section 922(k)'s constitutionality. In an attempt to meet its burden, the Government argues broadly that there is a historical tradition of "restricting the types of weapons that can be possessed," and that "there is a general historical practice of imposing 'conditions and qualifications on the commercial sale of arms.'" As I have already held, Section 922(k) is not a commercial regulation because it criminalizes possession even after a firearm is out of the stream of commerce. Evidence of historical commercial regulations is therefore inapposite.
As for its argument that restrictions on certain types of weapons are constitutional, the Government starts and stops by explaining that the Court in Heller acknowledged three permissible limits: the firearms must be "bearable arms" to receive protection, the arms must not be "dangerous or unusual weapons," and the arms must be kinds in "common use." The Government makes no attempt to explain how any of these limits are analogous to Section 922(k)'s prohibition on possessing a firearm without a serial number, and I find no apparent analogue….
[Among other things,] I can find no authority for the idea that a firearm without a serial number would meet the historical definition of a dangerous or unusual firearm. In fact, as the Government points out, the commercial requirement that a serial number be placed on a firearm "does not impair the use or functioning of a weapon in any way." …
A firearm without a serial number in 1791 was certainly not considered dangerous or unusual compared to other firearms because serial numbers were not required or even commonly used at that time. While I recognize there is an argument, not made by the Government here, that firearms with an obliterated serial number are likely to be used in violent crime and therefore a prohibition on their possession is desirable, that argument is the exact type of means-end reasoning the Supreme Court has forbidden me from considering. And the founders addressed the "societal problem" of non-law-abiding citizens possessing firearms through "materially different means"—felon disarmament laws like Section 922(g)(1). Under Bruen, this is "evidence that [the] modern regulation is unconstitutional."
Article: Public housing constitutes both an individual's home and a building owned by a state's government; however, it remains largely unsettled whether public housing developments could constitutionally prohibit firearm possession under both the Second Amendment to the United States Constitution and nearly identical provisions of certain state constitutions. See, e.g., People v. Cunningham (Ill. App. Ct. 1st Dist. 2019) (holding that a statute prohibiting visitors to public housing units from possessing firearms on the property did not violate the Second Amendment); Doe v. Wilmington Hous. Auth. (Del. 2014) (concluding that the Delaware Constitution prohibited public housing authorities from banning firearms in public housing developments); Lincoln Park Hous. Comm'n v. Andrew (Mich. Ct. App. 2004) (per curiam) (holding that a prohibition on firearm possession in public housing passed constitutional muster under the Michigan Constitution). Noticeably, various states have come to different conclusions regarding whether a ban on firearm prohibition within a public housing development is permissible. Thus, it cannot be said that public housing developments have historically "altogether prohibited" possession of firearms on the property.
Moreover, while the United States Supreme Court has identified "legislative assemblies, polling places, and courthouses" as "sensitive places," the Court has continued to emphasize that the Second Amendment must protect the right of "law-abiding citizens to use arms in defense of hearth and home." For this reason, we cannot say that an individual's public housing unit is analogous to that of other established sensitive government buildings. Thus, in light of the Supreme Court's most recent decision in Bruen and keeping in mind the presumptively unconstitutional status of Columbia Housing's policy based on the Supreme Court's decision in Heller, we conclude that a total ban on the ability of law-abiding residents—like Mr. Braden—to possess a handgun within their public housing unit for the purpose of self-defense is unconstitutional under the Second Amendment….
Article: Eight days after the Supreme Court struck down New York's unconstitutional "proper cause" requirement for conceal-carry licenses, the State responded with even more restrictive legislation, barring all conceal-carry license holders from vast swaths of the State. The complaint and motion in this case focus solely on one aspect of the new legislation, namely, the portion making it a felony for such a license holder to possess a firearm at "any place of worship or religious observation."
Ample Supreme Court precedent addressing the individual's right to keep and bear arms—from Heller and McDonald to its June 2022 decision in Bruen—dictates that New York's new place of worship restriction is equally unconstitutional. In Bruen, the Court made the Second Amendment test crystal clear: regulation in this area is permissible only if the government demonstrates that the regulation is consistent with the Nation's historical tradition of sufficiently analogous regulations. As set forth below, New York fails that test. The State's exclusion is, instead, inconsistent with the Nation's historical traditions, impermissibly infringing on the right to keep and bear arms in public for self-defense….
Reverend Dr. Jimmie Hardaway, Jr. and Bishop Larry A. Boyd filed this lawsuit on October 13, 2022, and are joined by institutional plaintiffs, Firearms Policy Coalition, Inc. ("FPC"), and Second Amendment Foundation ("SAF")…. Hardaway and Boyd, leaders of their respective churches, "wish to exercise their fundamental, individual right to bear arms in public for self-defense by carrying concealed firearms on church property in case of confrontation to both themselves and their congregants." They allege that, as "leaders of their churches, they would be authorized to carry on church premises to keep the peace, and would do so, but for Defendants' enforcement of the unconstitutional laws, regulations, policies, practices, and customs at issue in this case." In particular, they seek to prevent the enforcement of New York's new law that makes it a felony to carry firearms at all places of worship and religious observation….
...
Nevertheless, the State relies on a few laws from the late-1800s to insist that a relevant tradition exists. Bruen anticipates this argument. Rejecting the relevance of an outlier analogous law and state-court decisions, the Court stated that it would "not give disproportionate weight to a single state statute and a pair of state-court decisions. As in Heller, we will not 'stake our interpretation of the Second Amendment upon a single law, in effect in a single [State], that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense' in public." …
Here, the State cites to a handful of enactments in an attempt to meet its "burden" to demonstrate a tradition of accepted prohibitions of firearms in places of worship or religious observation. The notion of a "tradition" is the opposite of one-offs, outliers, or novel enactments. Rather, "tradition" requires "continuity."
These enactments are of unknown duration, and the State has not met is burden to show endurance over time. As a result, the Court is left with a handful of seemingly spasmodic enactments involving a small minority of jurisdictions governing a small minority of population. And they were passed nearly a century after the Second Amendment's ratification in 1791. These outlier enactments also contrast with colonial-era enactments that, in fact, mandated such carry at places of worship. These enactments are far too remote, far too anachronistic, and very much outliers—insufficient, then, in the search for an American tradition….
As long as they can enforce another workaround through the gap to the next supreme court case they consider it a win.
They're playing whack-a-mole with laws now. They know the law will be overturned, they know it's unconstitutional, but the law still has to percolate all the way up to the Supreme Court through several appeals and a competent lawyer can put in many delays before it ceases, while they can pass a new unconstitutional law in a week or so.
I mean...look at the Jets.
Thie is why a registry is a bad thing.
Article: THE COURT: All right. Have I missed anyone?
Okay. Well, thank you so much for being here this morning. The reason why I called the status conference -- and I called all these cases at the same time -- is because, you know, a great deal of my life over the last few years has been devoted to dealing with these Second Amendment cases.
Article: And I would like that survey, if you would. I mean, I'm sure you all have access to Excel spreadsheets and so on. But I'd like to see a survey that does the following for me: First of all, on a chronological bases, starting with date, the date of any law, regulation, ordinance, restriction. And I'm going to refer to those from now on as "restrictions." Okay. Generically, okay, restriction or regulation. Okay.
So if you could start out chronologically, if you would give me the date, and then if you would tell me what was it that was restricted. So, for example, in many of those regulations, they regulate dirks, daggers, metal knuckles. In some cases, it might be storage of gunpowder or cartridges. Some of them, some of these, are "use" regulations. In other words, you cannot use these while committing a crime. You cannot use them while breaking and entering into somebody's property. You cannot display them in anger.
So what is it exactly that the law or the regulation restricted? What type of weapon? What was the weapon that was being restricted? Was it a knife? a Bowie knife? a stiletto? metal knuckles? pistols? rifles? Then I would like to know whether or not that statute was repealed and, if it was repealed, what was repealed by, and was it replaced by something else? And if so, if you would do the same analysis?
Again, continuing a chronological order. Right?
And then, finally, whether or not that regulation or restriction was reviewed by court or courts? And if so, what was the -- what was the outcome? For example, was it found to be unconstitutional, or was it found to be constitutional? And if you'll give me a citation so that I can then go and look at the cases and see what the cases say.
Article: So the cases have been sent back to me, given the Bruen opinion, and I'm now going to attempt to deal with them, but I don't want to have to deal and read the same stuff over and over and over again, because I've already read some of it twice. And, frankly, there's a lot of material there. I don't know how many boxes of five-inch binders I have, but it's a lot, and I have only so much time.
So I would suggest both sides, if you can, please do that for me. Okay. And I think that would be very helpful.
Article: MR. KELLY: Your Honor, could I be heard?
THE COURT: No. Sorry. I've heard all I need to hear.
No. Go ahead.
MR. KELLY: So the State would like to renew its request for an addition discovery period, not a lengthy discovery period in this action. Just a three-month is all we would ask for.
THE COURT: Tell me why.
MR. KELLY: Sorry, Your Honor?
THE COURT: Tell me why.
Article: MR. KELLY: So I will give -- one moment, Your Honor. So the Plaintiffs brought or included a declaration from Ashley Hlebinsky, who claimed that "repeating rifles were not commonly owned in the nineteenth century," presumably in response to our declaration from Professor Vorenberg.
THE COURT: I'm sorry. They said "they were not"?
MR. KELLY: They were not commonly owned in the nineteenth century.
THE COURT: She says they were not.
MR. DILLON: No.
THE COURT: No. I think you're wrong. I think you're opposite. I think she says --
MR. KELLY: Opposing counsel will correct me if I'm wrong.
THE COURT: Yeah, I think you're wrong. I think she said the opposite.
Article: THE COURT: Okay. So two miners were mining for borax. And I can't recall whether it was Montana or Wyoming or Nebraska, or whatever. These are just two miners, two common folks that were miners for miners -- I mean, mining for borax, and they're attacked by a band of 40 Indians. And these two miners happen to have Henry rifles, and they were able to defeat the 40 Indians that were attacking them.
So the point -- the point was, if you look at Mr. -- Professor Cornell's -- if you look at Professor Vorenberg's materials, which I have looked at, you see that the statement that they were not commonly owned is just not true.
For example, there's a statement in there about how after the Civil War many of the -- of the soldiers, when they were released from duty, were, in fact, allowed to buy the repeating rifles and took the repeating rifles home.
And you can do the statistical analysis, by the way, which I sat down and did because maybe I have too much time on my hands. But there was an awful lot of those weapons that wound up in civilian hands.
So, I mean, the evidence is there. You can call, I suppose, this person for a deposition and take her deposition. But I don't think, no matter what she says, it's not going to contradict her own experts' declarations and the materials that they themselves refer to.
Article: THE COURT: Well, before I get to that issue, let me point out something, Mr. Kelly. I don't know how long you've been in this case. But you said something about -- going back to the reason why you needed three months; that you needed -- that this was a new area and so on and so forth.
Did I get you right?
MR. KELLY: That's correct, Your Honor.
THE COURT: Yeah. How long you have been in this case, Mr. Kelly?
MR. KELLY: Several weeks, Your Honor.
THE COURT: It's not fair to dump you into a case like this. Mr. -- Professor Cornell has gone on record and stated -- in 2017, Professor Cornell stated that he had been researching and writing on the history and tradition of Second Amendment regulations for two decades. That's 20 years, 20 years before 2017. We're now in 2023. Add five years to that; that's 25 years. That's a quarter of a century that Professor Cornell has been writing, researching on the history of and tradition of the Second Amendment.
And I've read an awful lot of that material. Professor Cornell cites to Spitzer. Spitzer cites to Vorenberg. Vorenberg cites to Bazilli. Bazilli, I think it is, who cites to -- these folks have been working on this for a really, really long time.
In 2000- -- well, as you probably know in the Rhode -- Rhode case, I issued an opinion where I said that the State's regulation had no historical pedigree, and I was right. The Ninth Circuit asked the State to file a supplemental brief on the issue of the historical pedigree.
In response to that request from the Ninth Circuit, the State at Footnote 3, page 11 of its response, cites to Saul Cornell and Nathan DeNino, "A Well Regulated Right. The Early American Origins of Gun Control," 2004, surveying firearms regulations from Founding era through the nineteenth century.
Mr. Kelly, with all due respect, Mr. Cornell and all these other folks have been researching and writing on this issue for 25 years. We're not here, looking -- this is not a question for the missing link. We're not looking for truffles. If it's a history and tradition, 25 years of research and writing should have disclosed it by now.
And as you know, probably in Bruen -- I think it was in Bruen. It might have been in Heller, as well, where the Court said, "Look, 'a lot of' doesn't show a history and tradition." Right. So I don't think -- I mean, with all due respect, I understand what you're doing, and I appreciate that. And I'm sorry that you got dumped into this just a few -- just a few weeks ago.
But, realistically, you don't need more time. I might give you a little more time to depose the one expert, and that might be it, but that's about it. Okay.
Article: THE COURT: No. I don't think we need another meet-and-confer conference after this. I think -- look, I don't want to slow-walk these cases. These are important cases both to the State and to the Plaintiffs and the people that insist that they have these rights, and I think we need to move these cases along.
So a meet-and-confer. Give me an agreed-upon historical analysis, and then what I will do is I will give you a time period for that to be filed. I'll give you a time period for additional briefs to be filed, and then we're going to have hearings, and we're going to put these cases to bed.
MR. MOROS: Your Honor, one question.
Is the State to be limited in the presentation of its laws to laws before the year 1900? Because I know in their supplemental briefing, they went into twentieth century laws, and our position is those aren't relevant. But if you want a comprehensive view, just to get everything.
THE COURT: You know, frankly, I don't see much point in those because I think that there would be so many laws. I mean, let's face it, after -- there came a point when -- when they began to grow exponentially.
I think in the Bruen opinion it talks about -- the way I see it, it places greater emphasis on those laws that were, essentially, in effect at the time the Second Amendment was adopted, and then with a secondary emphasis at the time that the Fourteenth Amendment incorporated the Second Amendment by reference. I think that's the time period.
In fact, I think the one -- if I'm not mistaken, the one statute that regulates -- that was submitted in the Fouts case, it talks about machine guns and automatic rifles, is a 1927 statute, if I'm not mistaken; which, frankly, I thought was irrelevant, anyway.
So why don't we limit it to -- how about this? How about, let's say, 20 years -- how about an arbitrary and capricious number that I'm going to give you? Twenty years after the Second Amendment was incorporated by the Fourteenth Amendment -- or the Fourteenth Amendment was adopted. How's that?
Article: THE COURT: The problem with that, though, as I said -- how many -- how many laws have been enacted? I mean, just look at California. Let's just take, for example, the Miller case, right, the AR-15-type regulations.
How many of those laws have been enacted since 1927? Lots and lots and lots and lots. But how does that help me decide the history and tradition of regulation of rifles --
MR. KELLY: I think, Your Honor --
THE COURT: -- at the time the Second Amendment was adopted, or at the time the Fourteenth Amendment was adopted? All that tells me is -- has happened after the Civil War when states found out that, yes, they could restrict certain firearms. Right. That all of a sudden there was an explosion of restrictions because the states found out, "Hey, guess what? We can do this." So then they did it.
But how does that help me determine the history and tradition of these laws at the time the Second Amendment was adopted or at the time that the Nineteenth -- I mean the Fourteenth Amendment was adopted?
MR. KELLY: Your Honor, I'm only speculating that these laws are out there. I personally do not know. I think we would just want to reserve our right and not be barred from doing so should it come to that.
THE COURT: I'll tell you what I'll do. I'll let you file a separate one. You can file -- you can file a separate survey, and we'll call it "Post 20 years after" -- "20 Years After the Ratification of the Fourteenth Amendment."
How's that?
MR. KELLY: That sounds good, Your Honor.
THE COURT: And include as many as you want. In fact, the more the merrier.
Article: MR. DILLON: It will just be a straight list of the laws. We will have a chance to review it as Plaintiffs. And like a summary judgment, if we have a contested issue of the summary of the law that they present, we can note that contest in the -- you know, a joint document? Is that what you're --
THE COURT: Sounds reasonable. Sounds reasonable to me.
MR. DILLON: No problem. Thank you, Your Honor.
MR. KELLY: Your Honor, I think we would object to that as well. I think we would want, if we need to, to introduce experts to interpret some of the laws and the standards --
THE COURT: No.
MR. KELLY: -- in the language --
THE COURT: No.
MR. KELLY: -- and the statute --
THE COURT: No. Look -- no, no.
Mr. Kelly, with all due respect, I don't need -- every one of these experts that you've put forth, I have read, just like experts that they have put forth, like Mr. Copill, for example. Your experts -- these are people that have, you know, biased points of view. I mean, Mr. Bosey, for example -- I hope I'm pronouncing his name. The fellow who worked for --
MR. MOROS: Kimber, Your Honor.
THE COURT: Kimber. Yeah. Who at some point in time had an epiphany and realized that all the work that he'd been doing for all these years, selling these weapons to the public was not good. And now he works -- he's a consultant for Everytown -- I'm trying to remember.
Anyway, look. These people's opinions of what these statutes say, right, means nothing. It means nothing. It's like, I remember -- I think it was Justice Brier in -- I think it was Bruen, who talked about, "Well, we need to have this factual record," and this and that, what have you.
No. 702 says that the admission of expert testimony is help -- is possible if, because of the expert's knowledge, skill, or experience, it will assist the trier of fact. Okay.
But there's nothing. I mean, I've read these declarations. Every one of these folks come in here with a biased -- it's not like they're really neutral experts, okay, or they're not experts who've come up on these opinions as a result of these cases, okay, doing research for these cases.
These are all people that already come with preconceived ideas and opinions, but their opinion is not worth any more than your opinion or her opinion. They're going to tell me, "Well, in my opinion, if you look at this statute, this statute means that -- you know, that the State of Wyoming regulated concealed carry of brass knuckles," and so I can read that. I can figure that out by myself.
Article: THE COURT: Yeah. I noted that. I noted that. I found that to be rather distressing, even though in the -- in the past, they have referred to some instances as "dangerous or unusual." But as Justice Alito pointed out in his concurring opinion in Caetano, anyone with a ninth-grade education can read the Heller opinion and determine that, in fact, it is "dangerous and unusual," i.e., the conjunctive, not a disjunctive.
So I don't know why that keeps popping up. I mean, I heard some supposedly distinguished legal scholar make that same error, and I don't know whether that's intentional or not. I hope that's not intentional.
MR. STAMBOULIEH: Well, the Supreme Court said "dangerous and unusual," Your Honor, so we're going to go with what the Supreme Court --
THE COURT: That's a good thing to do.
MR. STAMBOULIEH: Right.
THE COURT: That's a really good thing to do.
Article: MR. BECK: Alan Beck for the Plaintiffs Fouts, Your Honor.
Our briefing also indicates that the phrase "dangerous and unusual" doesn't actually refer to any sort of intrinsic property of an arm. Historically, in Heller, the Court references the tradition of prohibiting carrying "dangerous and unusual" weapons.
And after we took a look at what that actually was, that -- that typically refers to prohibitions on carrying in certain manners, that were actually what terrified people. So our position is that the possession of any weapon cannot be justified simply through this historical tradition of carrying dangerous and unusual weapons, because it doesn't refer to types of weapons; it refers to certain types of conduct with weapons.
And in light of the fact that the State's brief was 36 pages, we're just hoping to have an equal-length brief as the brief they filed so we can demonstrate that to the Court, Your Honor.
THE COURT: And you've already prepared this, you're telling me?
MR. BECK: Yes, Your Honor.
THE COURT: Okay. File it.
MR. BECK: Thank you.
THE COURT: File it. Thank you for making my life that much more difficult, but whatever. Okay. File it. I'm done.
