Supreme Court - NYSRPA v. Bruen - Megathread

[pastera]

Under this argument nearly everything would fall under 2a, which is obviously not what is meant.
This argument would clearly make trucks covered under 2a, see what I mean.

United States v. Miller

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 draws on the term "in common use" but uses the phrase differently as follows:
Miller:

"In common use" is used to refer to encompass the class of items used by the militia as arms using common to refer to the quantity of items held for the purpose.​

Heller:

Heller, as subsequently amplified by Caetano, uses the term to describe a particular item's use as commonly seen by the average person acting prudently​

So based on your position a rifle sling is an arm under 2a? It enhances the use of the actual arm, the rifle, just as a suppressor would. Interesting position.

Yes, a rifle sling is unequivocally an arm.
What is not in common use as an arm? A woman's handbag is not commonly thought of as an arm therefore is not facially protected by the second amendment. However, were a state to attempt to regulate the use of handbags in self defense then an as applied challenge would prevail offering protection since the definition of an arm at the time of founding encompassed all items used for defense and offense. While a person cannot legally use force, deadly or otherwise, in an offensive manner the tools to do so remain under the umbrella of the second. Yes, this brings up the idea that primarily offensive weapons are protected. I would posit that man portable offensive arms are protected but that's a rabbit hole that I haven't researched or mused upon enough to present any cogent argument for or against.

same as above

OK, so a suppressor, or any other accessory, could only be regulated if used for self defence. Great, most of us will never use one in a defence situation, and if we did we probably wouldn't care what the gov had to say about it, at least we'd be alive.

There is just no logical path from suppressor to 2a, and why would we even want one. Some may suggest, grouping it with arms under 2a somehow protects it. Really? I own 3, how many do you guys in MA own? Hows that protection working for you.

Under 18 USC § 921(a)(25), the government has explicitly regulated only those sound mitigation devices "designed or redesigned, and intended" "for silencing, muffling, or diminishing the report of a portable firearm". This linkage by the government places those devices explicitly under the 2nd's protection.
Bringing up that Mass bans silencers has no bearing on the topic. Marrying a person outside your race was once banned in many states but they were still unconstitutional, it just took time for the issue to work its way through our flawed legal system.

On the other hand, if it wasn't an arm, there are no laws allowing the Fed to regulate it. They would need to pass new laws, and establish an agency to create rules and enforce them. Or pass more laws to give that responsibility to an existing one. To get the money and laws, they will need to show some compelling need, a reason the Fed needs to do this. Crime you say? Sorry no stats of one being used in a crime. Politicians would rather spend time lining their pockets.

True - if the legal linking of a silencer and firearms is broken then the 2nd would have no influence and the government would be free to regulate in whatever manner they feel necessary.

Ask yourself why the NFA didn't ban items outright but only taxed the possession of them?
Because at the time people understood that those items were protected and the legislature went as far as they felt they could without having the law overturned.

 

[42!]

If silencers are not an arm then the government is not restricted from infringing on the personal possession or use of them.
It is our duty to show that they are an arm protected by the 2nd and prima facia evidence of that fact is that the NFA itself.

But in reality, their inclusion under 2a is the only thing that allows them to be restricted.

Even without a constitutional amendment a thing can't be regulated without an underlying law that allows it. Having "protection" (theoretical protection because it clearly isn't being applied as an absolute) under the bill of rights changes the process and in theory enforces a greater standard, but it does not remove the need for a process/law. And laws, still need to be justified. And as I pointed out, they lack the ability to do that if its not included in the group "arms"

Let me see if I got the second part right. Suppressors are restricted because they are arms. They are arms because the NFA says so. The NFA is what restricts them. You argue that we need to maintain this. But I'm saying they never should have been "arms", therefor not under the NFA, and as a result not restricted. And thus no need for "protection".

There are so many "things" that are not regulated, we don't even think about them. That is the group suppressors should belong to. We are actually maintaining the lie that they are special, they are members of a group that is regulated. We would never consider a sling an arm under 2a, why is this accessory special? By fighting to include it in 2a WE are making it restricted. Normalize it as a "thing", undeserving of special attention, and there is no authority to restrict it.

 

[milktree]

But in reality, their inclusion under 2a is the only thing that allows them to be restricted.

This seems like a ridiculous statement. .gov restricts/heavily regulates all sorts of things that are not arms:

Lead, asbestos, pharmaceuticals, vehicles, bedsheets, toys, food, employment, travel…

 

[42!]

United States v. Miller

Heller draws on the term "in common use" but uses the phrase differently as follows:
Miller:

"In common use" is used to refer to encompass the class of items used by the militia as arms using common to refer to the quantity of items held for the purpose.​

Heller:

Heller, as subsequently amplified by Caetano, uses the term to describe a particular item's use as commonly seen by the average person acting prudently​

These reference arms, since my position is that they are not arms. Circular arguments never stand, they are arms under these rulings because the rulings say they are arms, is a circular argument, and therefor BS.

Yes, a rifle sling is unequivocally an arm.

Well, I'll I can say is I don't see this any more than a handbag is an arm

What is not in common use as an arm? A woman's handbag is not commonly thought of as an arm therefore is not facially protected by the second amendment. However, were a state to attempt to regulate the use of handbags in self defense then an as applied challenge would prevail offering protection since the definition of an arm at the time of founding encompassed all items used for defense and offense. While a person cannot legally use force, deadly or otherwise, in an offensive manner the tools to do so remain under the umbrella of the second. Yes, this brings up the idea that primarily offensive weapons are protected. I would posit that man portable offensive arms are protected but that's a rabbit hole that I haven't researched or mused upon enough to present any cogent argument for or against.

A handbag can't be regulated under NFA, but still could be protected under 2a? OK, suppressor is no different than a handbag. No problem with that.

Under 18 USC § 921(a)(25), the government has explicitly regulated only those sound mitigation devices "designed or redesigned, and intended" "for silencing, muffling, or diminishing the report of a portable firearm". This linkage by the government places those devices explicitly under the 2nd's protection.
Bringing up that Mass bans silencers has no bearing on the topic. Marrying a person outside your race was once banned in many states but they were still unconstitutional, it just took time for the issue to work its way through our flawed legal system.


True - if the legal linking of a silencer and firearms is broken then the 2nd would have no influence and the government would be free to regulate in whatever manner they feel necessary.

Ask yourself why the NFA didn't ban items outright but only taxed the possession of them?
Because at the time people understood that those items were protected and the legislature went as far as they felt they could without having the law overturned.

Circular argument. The NFA didn't ban because they fell under 2a, they are regulated under NFA BECAUSE they fall under 2a,
NFA couldn't regulate handbags because they aren't arms. Solution, make suppressors not arms.

 

[pastera]

But in reality, their inclusion under 2a is the only thing that allows them to be restricted.

Even without a constitutional amendment a thing can't be regulated without an underlying law that allows it. Having "protection" (theoretical protection because it clearly isn't being applied as an absolute) under the bill of rights changes the process and in theory enforces a greater standard, but it does not remove the need for a process/law. And laws, still need to be justified. And as I pointed out, they lack the ability to do that if its not included in the group "arms"

Let me see if I got the second part right. Suppressors are restricted because they are arms. They are arms because the NFA says so. The NFA is what restricts them. You argue that we need to maintain this. But I'm saying they never should have been "arms", therefor not under the NFA, and as a result not restricted. And thus no need for "protection".

There are so many "things" that are not regulated, we don't even think about them. That is the group suppressors should belong to. We are actually maintaining the lie that they are special, they are members of a group that is regulated. We would never consider a sling an arm under 2a, why is this accessory special? By fighting to include it in 2a WE are making it restricted. Normalize it as a "thing", undeserving of special attention, and there is no authority to restrict it.

No, they are covered by regulation because the NFA has not been properly challenged

 

[42!]

No, they are covered by regulation because the NFA has not been properly challenged

That too

 

[pastera]

These reference arms, since my position is that they are not arms. Circular arguments never stand, they are arms under these rulings because the rulings say they are arms, is a circular argument, and therefor BS.

Your position can be that they are not arms however the legal truth is that they are given the explicit definition as an arm in statute and the case law definition under Heller including them by the use of the historical definition of arms

Well, I'll I can say is I don't see this any more than a handbag is an arm

Doesn't matter what you see - sorry but that's the truth, see my post for the legal definition of an arm per Heller

A handbag can't be regulated under NFA, but still could be protected under 2a? OK, suppressor is no different than a handbag. No problem with that.

No, a handbag can be regulated in whatever manner the government sees fit since it is not an arm "in common use" therefore not protected from government infringement. However, the government would not be able to regulate their use as an arm since then, as applied they become an arm.

Circular argument. The NFA didn't ban because they fell under 2a, they are regulated under NFA BECAUSE they fall under 2a,
NFA couldn't regulate handbags because they aren't arms. Solution, make suppressors not arms.

Not true.
Your simply not understanding that the NFA is an impermissible infringement on items protected by the 2nd Amendment.
No arm covered by the NFA was banned only taxed since at that time the populous was educated to a much higher extent on the limits constitutional powers of the government.
The only reason that it did stand is that people willingly looked the other way since they wanted the violence directly caused by the governments infringement in banning alcohol to be controlled.
We see the exact same issue today with the war on drugs - the government created the illicit market by banning your right to self medicate as you see fit, powered it by removing fathers from homes with their war on poverty, and now they are selling the solution to be a further removal of rights.

 

[LakeTrout]

So based on your position a rifle sling is an arm under 2a? It enhances the use of the actual arm, the rifle, just as a suppressor would. Interesting position.

No. Did you read my post? I did not refer to these accessories as arms. So I'm not sure why you are asking me about a sling being an arm.

I specifically stated that the part of the 2A that covers such devices is the part that grants the people a well-regulated militia. Part of being well-outfitted includes such accessories, training, and equipment additional to the firearm itself. Your sling and your suppressor is covered under this clause, even though they are not "arms".

 

[Coyote33]

I've had my unrestricted (now thankfully a meaningless distinction) MA LTC for months and that is all well and good, but I can't take my guns to NY when I go to visit. As far as I can tell, NY does not issue permits to non-residents and therefore it is impossible for someone who is not a New York resident to carry there, which seems awfully non-compliant with Bruen. So when can we start talking about those of us who live in MA (or one of the 48 other states) suing NY?

Is this for all guns, including shotguns and rifles; or just for handguns? Thinking of some people I know who hunt in New York. Now I'm wondering if they bow hunt.

 

[Coyote33]

The 2nd applies because the nature of the laws restrictions
A muffler on your car is required by law even though it serves the same purpose - to protect the user's hearing and lesson annoyances to others.
A silencer is only regulated when the muffiling device is designed to attach to a firearm with the effect of lessening its report. The actual action is against reducing the signature of firearms not sound mufflers in general.

Now that's the idea.
A muffler doesn't become unlawful until its used on a firearm, hence it's the action.
But this would mean the assumption of some kind or "constructive" use, since mere possession of a suppressor is unlawful.

On the other hand, a muffler isn't a car, so why would a suppressor be a gun?
And while there is regulation of the noise levels a car can make, they don't tell the manufacturers how to make it happen, if they can do it without a muffler that's ok too.

Interesting point.

One muffler is required to keep down the noise, the other muffler is not allowed because it keeps down the noise.

 

[pastera]

No. Did you read my post? I did not refer to these accessories as arms. So I'm not sure why you are asking me about a sling being an arm.

I specifically stated that the part of the 2A that covers such devices is the part that grants the people a well-regulated militia. Part of being well-outfitted includes such accessories, training, and equipment additional to the firearm itself. Your sling and your suppressor is covered under this clause, even though they are not "arms".

No, the right is detached from militia per Bruen

In Heller, we began with a “textual analysis” focused on the “‘normal and ordinary’” meaning of the Second Amendment’s language. 554 U. S., at 576–577, 578. That analysis suggested that the Amendment’s operative clause—“the right of the people to keep and bear Arms shall not be infringed”—“guarantee the individual right to possess and carry weapons in case of confrontation” that does not depend on service in the militia. Id., at 592. From there, we assessed whether our initial conclusion was “confirmed by the historical background of the Second Amendment.” Ibid. We looked to history because “it has always been widely understood that the Second Amendment . . . codified a pre-existing right.” Ibid. The Amendment “was not intended to lay down a novel principle but rather codified a right inherited from our English ancestors.” Id., at 599 (alterations and internal quotation marks omitted). After surveying English history dating from the late 1600s, along with American colonial views leading up to the founding, we found “no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.” Id., at 595.

A sling IS COMMONLY USED AS A PART OF AN ARM, therefore for the purpose of regulation it falls under the second amendment, end of story.

Edit - fix strikethrough text created from the formatting copied from the PDF

 

[pastera]

Interesting point.

One muffler is required to keep down the noise, the other muffler is not allowed because it keeps down the noise.

I have raised this point earlier in this thread to show that firearms silencers must fall under the protection of the 2nd simply because their definition in statute and their common use (how they are normally used) places them there.

 

[Coyote33]

If silencers are not an arm then the government is not restricted from infringing on the personal possession or use of them.
It is our duty to show that they are an arm protected by the 2nd and prima facia evidence of that fact is that the NFA itself.




Given that the definition only applies to a "device for silencing, muffling, or diminishing the report of a portable firearm" and by statute is controlled as a firearm, then the government has explicitly stated that it's common use is as an arm as defined by the History, Text and Tradition of the COTUS. As state by Heller and amplified by Caetano, that device need not have existed at the time of the founding in order to fall under the protection of the 2nd Amendment.

Unless they cancel out that definition because IT does not follow "history, text, and tradition".

 

[pastera]

Unless they cancel out that definition because IT does not follow "history, text, and tradition".

Heller sets the definition of an arm from TH&T

we interpret their object: “Arms.” The 18th-century meaning is no
different from the meaning today. The 1773 edition of
Samuel Johnson’s dictionary defined “arms” as “weapons
of offence, or armour of defence.” 1 Dictionary of the
English Language 107 (4th ed.) (hereinafter Johnson).
Timothy Cunningham’s important 1771 legal dictionary
defined “arms” as “any thing that a man wears for his
defence, or takes into his hands, or useth in wrath to cast
at or strike another.” 1 A New and Complete Law Dic-
tionary (1771); see also N. Webster, American Dictionary
of the English Language (1828) (reprinted 1989) (hereinaf-
ter Webster) (similar).

Since a firearms silencer is "designed or redesigned, and intended" for use on a firearm its "common use" is that of an arm.

Case law is being formed at this time that will overturn the NFA's stranglehold on SBRs, MGs, SBSs, AOWs and silencers. Some level of regulation will still be allowed but the massive wait times and state level bans will fall.

 

[xtry51]

You say "Once we start looking at those roots - which will have to happen when investigating THT - we'll find that an accepted contemporary definition of "arms" includes "tools, implements (of war)." This broader definition seems to me to obviously include the kind of useful accessories that include suppressors."

Tools and implements of war would clearly include wheels, trucks, on and on. under this definition. We clearly do not consider these arms. So this "accepted" definition clearly isn't.

Everything is an arm. The government should not be allowed to prevent you from owning anything.

 

[LakeTrout]

No, the right is detached from militia per Bruen

I'm not sure what you are stating. Can you clarify?

 

[Dench]

No, they are covered by regulation because the NFA has not been properly challenged

It's only been 88 years give it time.

 

[Dennis in MA]

From Heller

Anything is an "arm" for 2A purpose when used in lawful defense

Daddy's gettin an auto knife and a zoobow!

 

[Coyote33]

Doesn't matter what you see - sorry but that's the truth, see my post for the legal definition of an arm per Heller

Heller sets the definition of an arm from TH&T

OK, but isn't it true that Heller has been ignored completely in many places. SOL there, then?

 

[pastera]

I'm not sure what you are stating. Can you clarify?

Quoting your post for continuity:

No. Did you read my post? I did not refer to these accessories as arms. So I'm not sure why you are asking me about a sling being an arm.

I specifically stated that the part of the 2A that covers such devices is the part that grants the people a well-regulated militia. Part of being well-outfitted includes such accessories, training, and equipment additional to the firearm itself. Your sling and your suppressor is covered under this clause, even though they are not "arms".

Heller
You really need to read the first few pages of Scalia's opinion to understand the historic reasoning behind the declaratory statement that I based my post on.

The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service.

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia.

These provisions demonstrate—again, in the most analogous linguistic context—that “bear arms” was not limited to the carrying of arms in a militia.

The prefatory clause gives further meaning to but does not restrict the rest of the 2nd's language.

 

[pastera]

It's only been 88 years give it time.

How long did it take for a significant portion of the population to be recognized as full and free people? 1791 -> 1964

 

[pastera]

OK, but isn't it true that Heller has been ignored completely in many places. SOL there, then?

Until McDonald it did not apply to the states.
Yes, some states are doing everything they can to keep the corpse of gun control alive but in doing so they create the circumstances that make creating good case law against their positions relatively easy (notice I didn't say fast).

 

[pastera]

Daddy's gettin an auto knife and a zoobow!

As long as you are willing to be named in the resulting case then do for it.
You could be among the great names we all know: Heller, McDonald, Caetano, Bruen and Dennis

 

[Rob Boudrie]

This seems like a ridiculous statement. .gov restricts/heavily regulates all sorts of things that are not arms:

Lead, asbestos, pharmaceuticals, vehicles, bedsheets, toys, food, employment, travel…

It is not ridiculous. Remember the maxim "The power to tax is the power to destroy".

At the time NFA34 was passed, congress "knew" they could not ban what are now NFA weapons. The tax was designed to prevent ownership, not collect revenue. Based on Inflation Calculator | Find US Dollar's Value from 1913-2022 the current value of $200 in 1934 dollars is $4448.

I'm not familiar with an asbestos tax, but none of the taxes you list are at a multiple of 10x or so times the cost of the item being taxed, so your comparison of the NFA tax at the time of implementation to taxes designed to raise revenue, is not borne out by logic.

There is an interesting article on this at National Firearms Act of 1934 | Encyclopedia.com

 

[MaverickNH]

I sometime think priorities - what arms do the people require to address government tyranny and self-defense vs what pushback on gun control advocates is necessary to keep struggling up the slippery slope. While the latter is essential, it’s reactive rather than proactive.

#1 - semi-automatic rifles & handguns & ammunition, with no limitations on caliber, ammunition capacity and features

The rest is minimizing limitations on acquisition and use (who, where, when, what, why). These few priorities will occupy efforts for years to come.

The rationale for the classic Cooper Scout Rifle has passed into history. Now it’s a suppressed 556/762 semi-automatic rifle with red dot or LPVO - aka the Modern Sporting Rifle.

 

[crispnipz]

Is this for all guns, including shotguns and rifles; or just for handguns? Thinking of some people I know who hunt in New York. Now I'm wondering if they bow hunt.

Primarily to concealed carry during visiting my friends there (upstate, not the stinky armpit city). Or at the very least I should be able to get a permit to not fear arrest if I simply drive through the state with it in the trunk because NY is known for ignoring FOPA.

 

[Dench]

How long did it take for a significant portion of the population to be recognized as full and free people? 1791 -> 1964

Wasnt alive during any of those times. Don't care. Didn't have to deal with it. Would like to get things fixed that I have to deal with while I'm alive.

Call me crazy.

 

[pastera]

For those who ask why the government is allowed to legislate some things but not others understand that the Bill of Rights is written as those things the Government is not allowed to affect or restrict. All that is not listed is covered by the 10th

Amendment X​

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

If the constitution only allows the federal government to touch those areas explicitly called out in the constitution. All other areas are reserved to the states and people.
The 14th amendment brings the states under the same constitutional limitations as the federal government leaving all areas of the Bill of Rights the exclusive area of the people.
If one reads the case law on all of the infringements they will see incredible logical twists and turns to fit infringements into extremely narrow constitutional allowances

 

[LakeTrout]

Quoting your post for continuity:

Heller
You really need to read the first few pages of Scalia's opinion to understand the historic reasoning behind the declaratory statement that I based my post on.




The prefatory clause gives further meaning to but does not restrict the rest of the 2nd's language.

Thank you for clarifying. I don't think we are disagreeing here. I certainly am not trying to claim that the rights were/are limited to militia service. The point I am making is that the militia, not being part of the standing/professional army, but being made up of the ordinary able bodied men who kept their military style arms in their possesion, was intended to be well-outfitted. Being well-outfitted and well-equipped isn't limited to the "arm" itself. But includes all that goes along with being well equipped. Optics, slings, silencers, etc.

That the amendment was written in such a way to speciffically call out that the ordinary men not in the standing or professional army should be well-equipped, I think is very important. And an overlooked aspect in the debate of what type of weaponry individuals not in military service today have the right to keep and bare. And I think that firearms accessories clearly fall within the scope of what is considered to be well-regulated.

 

[pastera]

Wasnt alive during any of those times. Don't care. Didn't have to deal with it. Would like to get things fixed that I have to deal with while I'm alive.

Call me crazy.

How much time, talent and money do you dedicate to the cause?
Not to you directly but put up or shut up

I'm weary of quoting and explaining areas of law that would be completely understood by anyone of nominal intelligence who put even minimal effort into reading each of the major decisions pertaining to firearms regulation. It's not that much of an effort as one could read all of the decisions with applicable references in a short time by dedicating two hours a week for a month or two