In a little noticed case, SCOTUS shows that regardless of how many members of the Court are co-called “originalists” or conservatives, the slippery slope just got a little slipprier.

The idiom that you “can’t see the forest for the trees”, which means that the parts are distracting you from comprehending the whole, is a perfect example of what has occurred regarding SCOTUS 2nd Amendment decisions. As a result it seems SCOTUS can’t see the entirety of the amendment, its simplicity, as it is  preoccupied with details and overlooks the bigger picture or the end goal, to allow the arming of all citizens so they would be able to resist a takeover by the federal government or a foreign invader. It has become the problem with how to approach what ought to be a simple situation, deciding what the words of the 2nd Amendment mean.

The case is Christopher Paris, Commissioner, Pennsylvania State Police v Madison M. Lara; Sophia Knepley; Logan D. Miller; Second Amendment Foundation, Inc.; Firearms Policy Coalition, from the 3rd Cirtuit Court of Appeals, which was docketed in SCOTUS as No. 24-93 for the Petition for certiorari. SCOTUS reviewed the petition including the Circuit Court opinion and issued this notation on its docket:

Oct 15 2024        Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of United States v. Rahimi, 602 U. S. ___ (2024).

In other words SCOTUS decided not to hear the case and give us some guidance regarding the opinion of the Circuit  Court, instead sending the case back down for that court to read one of its recent cases on the 2nd Amendment. Was it appropriate or is the Court just avoiding the work as it often does?

The facts of the case: The Pennsylvania case involved a situation in which, through the combined operation of three statutes, the Commonwealth of Pennsylvania effectively bans 18-to-20-year-olds from carrying firearms outside their homes during a state of “emergency”. The parties involved,  Madison M. Lara, etc., sued contending the results were in violation of the 2nd Amendment rights of persons of those ages. Madison Lara, Sophia Knepley, and Logan Miller, who were in that age range when they filed this lawsuit, want to carry firearms outside their homes for lawful purposes, including self-defense.

The question that might be asked is why would the police sue to enforce these statutes? Was it not to have to deal with 18-20 year olds in a situation of “emergency”? What if they needed the help of every armed citizen in a time of the “emergency” would they then forego enforcement of the laws? Is this the present thinking now that the police have become militarized and desire to be in complete control of any situation regardless of whether its actions are unconstitutional?

Extensive portions of the Circuit Court of Appeals opinion will be set out in this article so you can see the reasoning of that lower court. The Circuit Court is reversing the lower federal District Court that held the statutory scheme did not violate the 2nd Amendment. The Circuit Court opinion begins:

…The Supreme Court’s new, two-part test The Second Amendment, controversial in interpretation of late, is simple in its text: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear

Arms, shall not be infringed.” U.S. Const. amend. II.

In an important footnote to support the above statement of the Circuit Court about the SCOTUS two-part test which they believe is controversial, the court states:

6Compare, e.g., Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second Amendment Adjudication, 133 YALE L.J. 99, 105 (2023) (“Although there is still time for courts to develop workable standards (as they did after []Heller), post-Bruen cases reveal an erratic, unprincipled jurisprudence, leading courts to strike down gun laws on the basis of thin historical discussion and no meaningful explanation of historical analogy.”), with Nelson Lund, Bruen’s Preliminary Preservation of the Second Amendment, 23 FEDERALIST SOC’Y REV. 279, 289 (2022) (“[T]he Bruen majority [saw] that the circuit courts were generally treating the Second Amendment with dismissive hostility, as if it were a second-class provision of the Bill of Rights.”).

The Circuit Court then outlines the reasoning of SCOTUS by which it is confused:

In Heller, the Supreme Court held that, regardless of militia service, the Second and Fourteenth Amendments guarantee to an individual the right to possess a handgun in his home for self-defense. 554 U.S. at 584, 592. In that opinion, which addressed a District of Columbia law that banned handguns and required other “firearms in the home be rendered and kept inoperable at all times,” the Court observed that the challenged law would be unconstitutional “[u]nder any of the standards of scrutiny … applied to enumerated constitutional rights.” Id. at 628-30. We and other courts had interpreted that observation as endorsing a means-end scrutiny analysis in Second Amendment cases.

Then, last year, in New York State Rifle & Pistol Ass’n Inc. v. Bruen, the Supreme Court held that “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun … outside the home.” 142 S. Ct. 2111, 2122 (2022). The Court rejected “means-end scrutiny in the Second Amendment context” and announced a new two-step analytical approach. Id. at 2122, 2126-27. At the first step, a court determines whether “the Second Amendment’s plain text covers an individual’s conduct.” Id. at 2129-30. That “‘textual analysis’ focuse[s] on the ‘normal and ordinary’ meaning of the Second Amendment’s language.” Id. at 2127 (quoting Heller, 554 U.S. at 576-78). If the text applies to the conduct at issue, “the Constitution presumptively protects that conduct.” Id. at 2130.

 At the second step, a court determines whether the regulation in question “is consistent with the Nation’s historical tradition of firearm regulation.” Id. If it is, the presumption made at the first step of Bruen is overcome, and the regulation in question can stand.

To aid the court in that second-step analysis, the government bears the burden of identifying a “founding-era” historical analogue to the modern firearm regulation. Id. at 2130-33. We are to look to the founding because “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Id. at 2130, 2136 (quoting Heller, 554 U.S. at 634-35). The question is “whether historical precedent from before, during, and even after the founding evinces a comparable tradition of regulation.” Id. at 2131-32 (quoting Heller, 554 U.S. at 631 (internal quotation marks omitted)). In considering that precedent, however, we discount “[h]istorical evidence that long predates” 1791 and “guard against giving postenactment history more weight than it can rightly bear.” Id. at 2136-37.

Assessing the similarity of current regulations to those of the founding era calls on us to consider both “how and why the regulations [being compared] burden a law-abiding citizen’s right to armed self-defense.” Id. at 2133; see also id. (“[W]hether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are central considerations when engaging in an analogical inquiry.”) (internal quotation marks omitted). We must be wary of a modern law that only “remotely resembles a historical analogue,” because to uphold such a law risks “endorsing outliers that our ancestors would never have accepted.” Id. (quoting Drummond v. Robinson Twp., 9 F.4th 217, 226 (3d Cir. 2021)). “On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” Id.

In sum, at a high level, Bruen requires two distinct analytical steps to determine the constitutionality of a firearm regulation. The court first decides whether “the Second Amendment’s plain text covers an individual’s conduct.” Id. at 2126. If it does, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id.

Next the Circuit Court had to decide if 18-20 year-olds were included in the term “the people” of the 2nd Amendment. It wrote:

… The Commissioner contends that the Appellants are not among “the people” to whom the Second Amendment applies, and that the Nation’s history and tradition of firearm regulation support the statutory status quo. We disagree. The words “the people” in the Second Amendment presumptively encompass all adult Americans, including 18-to-20- year-olds, and we are aware of no founding-era law that supports disarming people in that age group.

The Circuit Court said:

… In Heller the Supreme Court reiterated that “the people … refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” Id. at 580 (quoting United States v. Verdugo–Urquidez, 494 U.S. 259, 265 (1990)). The Court also explained that, like other references to “the people” in the Constitution, “the term unambiguously refers to all members of the political community, not an unspecified subset.” Id. Accordingly, there is “a strong presumption that the Second Amendment right … belongs to all Americans.”8 Id. at 581.

and:

Taking our cue from the Supreme Court, we have construed the term “the people” to cast a wide net.

further:

We therefore hold that 18-to-20-year-olds are, like other subsets of the American public, presumptively among “the people” to whom Second Amendment rights extend. If there is any argument to be made that the Commonwealth can restrict the rights of 18-to-20-year-olds with respect to firearms, Bruen teaches that the Commissioner must make that argument by showing that such restrictions are part of the nation’s historical tradition of gun regulation. 142 S. Ct. at 2130.

The police commissioner argued that there was support for determining 18-20 year olds were not covered under the 2nd Amendment provisions so the court pointed to the history of our nation and stated :

Against that conspicuously sparse record of state regulations on 18-to-20-year-olds at the time of the Second Amendment’s ratification, we can juxtapose the Second Militia Act, passed by Congress on May 8, 1792, a mere five months after the Second Amendment was ratified on December 15, 1791. The Act required all able-bodied men to enroll in the militia and to arm themselves upon turning 18. 18 Second Militia Act of 1792 § 1, 1 Stat. 271 (1792). That young adults had to serve in the militia indicates that founding-era lawmakers believed those youth could, and indeed should, keep and bear arms.

Ending the decision of the Circuit Court of Appeals the court concluded:

For the foregoing reasons, we will reverse the decision of the District Court and remand with instructions to enter an injunction forbidding the Commissioner from arresting law-abiding 18-to-20- year-olds who openly carry firearms during a state of emergency declared by the Commonwealth.

The Circuit Court decision, as is shown above is clearly based on the fact the age group involved were required when they turned 18 “… to enroll in the militia and to arm themselves….” They had not been “found to pose a credible threat to the physical safety of another…” Nothing could be clearer to show the distinction.

No opinions were written by any of the SCOTUS judges in the decision not to hear the case as it was sent back to the Circuit Court so we do not know what the reasoning was of those judges. However, we do know the reasoning of Justice Thomas because he disagreed with the decision, stating that the Court should have considered the case. He said:

After New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), this Court’s directive was clear: A firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation. Not a single historical regulation justifies the statute at issue, 18 U. S. C. §922(g)(8). Therefore, I respectfully dissent.

Justice Thomas said that the Bruen case:

… laid out the appropriate framework for assessing whether a firearm regulation is constitutional. Bruen, 597 U. S., at 17–19. That framework requires the Government to prove that the “regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

He determined the statutes involved in this case failed the tests and violated the 2nd Amendment because:

First, it targets conduct at the core of the Second Amendment—possessing firearms. Second, the Government failed to produce any evidence that §922(g)(8) is consistent with the Nation’s historical tradition of firearm regulation.

The Rahimi case SCOTUS was referring to in its order sending this case back down to the Circuit Court for re-consideration involved:

A federal statute prohibits an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that he “represents a credible threat to the physical safety of [an] intimate partner,” or a child of the partner or individual. 18 U. S. C. §922(g)(8). Respondent Zackey Rahimi is subject to such an order. The question is whether this provision may be enforced against him consistent with the Second Amendment.

The decision was based on this language:

When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect. Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.

The Court in Rahimi then stated:

“Like most rights,” though, “the right secured by the Second Amendment is not unlimited.” District of Columbia v. Heller, 554 U. S. 570, 626 (2008).

However, in Heller that statment was dicta, in other words not necessary to the decision in that case, and therefore should not have been re-stated by the Court because it has no binding effect. Additionally, where in the 2nd Amendment is such language included? The Court created the language itself without any authority or support from the constitutional right which is absolute and has no stated limitations.

The problem with citing the Rahimi case for the Circuit to follow is the case only decided:

… we conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.

By this time you are probably as confused as is the Circuit Court of Appeals, as are many other courts and others.  SCOTUS made a mistake in not hearing this case and instead sending it back to the Court of Appeals “... for further consideration….“. What further consideration should there be and what guidance is given to the lower court? We can only hope the Circuit Court of Appeals will decide the case the same and when it is appealed to SCOTUS again it will have a chance to consider it with the view of Justice Thomas outlined in his dissent.

Perhaps we should be reminded of the words of Alexandar Hamilton who said:

I go further and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution but would even be dangerous…. The Federalist, No. 84, p. 579.

Dangerous indeed. Little did he know that the danger would come from the SCOTUS “interpreting” some of the clearest language of the Constitution by adding its own.

The Tyranny continues with respect to the 2nd Amendment, seemingly one of the clearest of the amendments.

Don

To read the entire opinion of the Circuit Court of Appeals, go to the Appendix A of the Appendices attached to the Petition for Writ of Certiorari by clicking here.

Please visit and ask others to visit this link where information can be found about me, my family, and my book, “The Tyrannical Rule Of The U.S. Supreme Court; How The Court Has Violated The Constitution”. In the book you will learn more about how SCOTUS has ruled us without support from the Constitution.

Contact: donsbooks@proton.me

© 2023 Donald Brockett

#SCOTUSReform #SupremeCourt #secondammendment #DistrictAttorney #Justice #lawyer

Facebook: CAST-Citizens Against Supreme Court Tyranny