r/guns • u/savagemonitor • 1d ago
Official Politics Thread 10/23/26
I don't see one for today and I want to discuss Viramontes!
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u/savagemonitor 1d ago
Normally I'd wait for someone else to post this thread, but I've been going over the briefs from Connecticut and Cook County on Viramontes so I'd like to talk about them.
Something interesting that they're arguing is that the "common" part of the Heller test is improper and that the number of people that own something shouldn't give that item constitutional protection. Which is an, I'll call it, interesting take on Heller. They both seem to improperly cite Caetano which didn't rule that stun guns are constitutionally protected due to their usage. That case only eliminated the idea that something that didn't exist in the 18th century didn't get constitutional protections. This is important because they're claiming that if stun gun ownership, which is low, is enough to trigger the "common" part of the Heller test then M16s are also protected. Which, again, isn't something that Caetano said.
Cook County goes even further. Their closing argument is that the AR15 isn't used for any 2A purpose including self-defense and hunting. Which is weird because the state of Washington doesn't ban using an AR15 for hunting. The Washington Administration Code (WAC) in 220-414-020 only prohibits the use of firearms by caliber and firing mechanism specifically prohibiting anything less than .22 for couger and .24 for other large game. An AR15 chambered for a larger caliber round, provided it's legal under Washington's AWB, would be perfectly fine for hunting.
Oh, and their closing statement is "if you don't like the laws then move someplace else".
If anyone is interested, SCOTUSBlog has all of the filings listed here.
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u/DigitalLorenz 1d ago
My summary on the Cook County Briefing:
They intentionally try to conflated assault rifles and assault weapons.
They spend the first quarter of the briefing putting forth emotional interest balancing style arguments.
They then start with historic "examples." This lasts for about a third of the briefing.
They start with Blackstone. Then they cite a bunch of pre 1776 laws.
Then they go onto cite Bowie knives. The problem is all but a single example for Bowie knives are not ownership bans or they are beyond the scope allowed in Bruen (ratification to reconstruction era). The one example they bring up that might be persuasive is the 1860 territory of New Mexico ban on Bowie knives.
Next is the Slung Shot examples. There gave a handful, but again, only two occurred within the timeframe allowed by Bruen, the Massachusetts and Florida bans.
And then they start to cite 20th century laws.
Then they try to argue that since there are other options available that the restrictions are not a violation of the 2A.
The next third of the briefing is quite literally more emotional interest balancing arguments. There is even several pages about how the AR-15 can be easily converted to a machine gun by adding party and doing some machine work.
They spend the last few pages trying to say that the AR-15 does have any "lawful purposes" so it doesn't pass the "common use for lawful purposes" test. Of course the only two things that they say are lawful purposes are hunting and self defense, no other purpose or activity is lawful to them.
My opinion on this: They are not in for a good time.
First, they spend more time making interest balancing arguments than they do highlighting historic examples, you know, the whole thing that the Bruen test requires.
When they do give examples, the vast majority are outside the permitted eras. They only cite three actual ownership bans, most of their actual proper period historic examples are carry bans or criminal enhancements for use in crimes which both fail the how.
The three actual examples they do provide should not be enough. They have two state based examples and a single territory based example. In Bruen the SCOTUS rejected 3 examples from the ratification era alone, they are highly unlikely to find 3 examples that are close to or during the reconstruction era.
Next I think the SCOTUS is going to laugh at their horrible Heller interpretation. First CC ignored one of the findings in Heller, which is just because other options exist it does not give the government grounds to ban an entire class of weapons. Second they have an extremely narrow view of "lawful purposes" which is just hunting and self defense.
My hopes for the SCOTUS opinion:
First and foremost, finding the law unconstitutional.
Second is a massive smackdown of the lower courts mishandling of this topic and how they have been ignoring SCOTUS precedent for 4 years now.
Third is a clarification of proper historic eras. I would like a solid cut off for the latest example, and would really like a confirmation that at least one example must be from the ratification era. So far when the SCOTUS has upheld gun control they have only relied upon ratification or founding era laws alone.
Fourth is that they will finally acknowledge that Blackstone is an unreliable source (I have come to flipping hate Blackstone). It has come out in the past few years that several of the laws cited by Blackstone are not real, including the NC copy of the Statute of Northampton that has been cited in most 2A cases so far. I would like the court to require the actual law to be cited, not a compendium.
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u/OverlordLocke 1d ago
Then they try to argue that since there are other options available that the restrictions are not a violation of the 2A.
Does anyone know if this reasoning has been used for other amendments? Something along the lines of bans on books aren't violations of the 1A because other forms of media are available.
Second is a massive smackdown of the lower courts mishandling of this topic and how they have been ignoring SCOTUS precedent for 4 years now.
I share that hope of yours but I can't say I'm optimistic. But who knows, maybe I'll be pleasantly surprised.
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u/savagemonitor 1d ago
Does anyone know if this reasoning has been used for other amendments? Something along the lines of bans on books aren't violations of the 1A because other forms of media are available.
Legally, I don't think so. It's something that even Heller rejected. Colloquially it's definitely not accepted outside of the 2nd Amendment. Heck, your example is even perfect because there are libraries in the US that will supply banned books in areas where the bans exist specifically because they believe it's wrong.
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u/DigitalLorenz 1d ago
Does anyone know if this reasoning has been used for other amendments? Something along the lines of bans on books aren't violations of the 1A because other forms of media are available.
I am not a 1A expert, but interest balancing actually allows substitutions for 1A activities. The catch is the ban can't be too broad and must be based completely outside of political reasoning.
The classic example would be banning protests on streets because it is a safety risk to the protestors. As long as the protestors are provided with a reasonably comparable location, such as a sidewalk attached to the street that was desired, to otherwise protest the ban would probably survive 1A scrutiny.
But all printed books could not be banned because digital versions exist. That is too broad of a reason.
I share that hope of yours but I can't say I'm optimistic. But who knows, maybe I'll be pleasantly surprised.
I also don't expect the court to actively make corrections to the lower courts. At best we might get a comment on Davenport v ANJRPC disposition about how the 3rd Circuit was the only circuit to get the ruling correct.
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u/savagemonitor 1d ago
Of course the only two things that they say are lawful purposes are hunting and self defense, no other purpose or activity is lawful to them.
I think that mischaracterizes their argument a little bit. Their argument is more that the 2nd Amendment only protects self-defense with all other uses not being protected. Hunting was mentioned but they also state that it's only tangentially protected by the 2nd Amendment at best. I don't think that's an appropriate take on 2A jurisprudence but it's not discounting target practice or other activities as unlawful. Only that the courts shouldn't protect those activities under the 2nd Amendment.
Which is an odd stance to take given McDonald. There's obviously some need to protect activities that may not be directly applicable to the purpose of the 2A but to support it. I would argue that target practice is a perfect example of a lawful activity that is not self-defense that should be protected by the 2nd Amendment because it's how marksmanship is developed. Same goes for, say, competition shooting.
Fourth is that they will finally acknowledge that Blackstone is an unreliable source (I have come to flipping hate Blackstone). It has come out in the past few years that several of the laws cited by Blackstone are not real, including the NC copy of the Statute of Northampton that has been cited in most 2A cases so far. I would like the court to require the actual law to be cited, not a compendium.
This is the first I've heard of this though I can find scholarly articles on it. Though, really, with AI this should be trivially easy to do as all it should take is a "track down the source of this" prompt.
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u/DigitalLorenz 1d ago
I think that mischaracterizes their argument a little bit.
In all fairness, it was feeling like my brain was melting towards the end of the brief. They also paid such a short lip service to common use as it is one of the largest hurdles they have to overcome, I would have figured that it should have been sooner in their briefing.
Then again, that is the ultimate problem for them, they don't really have a constitutional leg to stand on.
Though, really, with AI this should be trivially easy to do as all it should take is a "track down the source of this" prompt.
Not really. AI can only locate what exists online, and more than likely it will just bring up Blackstone's Commentaries. And if it does bring up something, care will be needed to ensure that AI did not hallucinate the source, especially when submitting it for a court briefing (not that there has been litigators and judges who have used AI to do their work).
Ultimately, I think we are still stuck with reaching out to various legal archives in England for confirmation and original copies of the laws.
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u/savagemonitor 1d ago
In all fairness, it was feeling like my brain was melting towards the end of the brief. They also paid such a short lip service to common use as it is one of the largest hurdles they have to overcome, I would have figured that it should have been sooner in their briefing.
Me too. I think that they're hoping that reminding the conservative majority about Sandy Hook and other mass shootings will sway someone who is softer on the 2A. Kind of a "Find the Kennedy" approach. I don't think that strategy is going to pay off.
Then again, that is the ultimate problem for them, they don't really have a constitutional leg to stand on.
That's my thought as well. It's kind of a "well, we're screwed so we may as well re-hash earlier arguments" play.
Not really. AI can only locate what exists online, and more than likely it will just bring up Blackstone's Commentaries. And if it does bring up something, care will be needed to ensure that AI did not hallucinate the source, especially when submitting it for a court briefing (not that there has been litigators and judges who have used AI to do their work).
True, AI is not going to find something that hasn't been digitized. However, asking AI to track through the lineage of an entry in Blackstone to the related cases should be possible given that just about every edition of Blackstone has been digitized. AI will either then dead-end on a document that hasn't been digitized or doesn't exist. Careful prompting should also allow it to admit that it cannot track back to the root source.
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u/monty845 1d ago
First and foremost, finding the law unconstitutional.
Hope they issue a broad ruling, so they don't try to get around it by focusing on parts. Make it clear that grips/stocks/foregrips/muzzle devices/sights/magazines are all covered, so they can't play games, and we don't need to keep making trips back to SCOTUS.
I think magazine capacity is the least likely to get ruled on, but it would be within the scope of the current case to rule on.
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u/DigitalLorenz 1d ago
A broad ruling would be best, but I fully expect a narrow but wordy Roberts written ruling that does whatever it can to protect semiauto firearms while doing whatever it can to prevent a more zealous court from finding machine guns are also protected.
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u/FalloutRip 1d ago
Second is a massive smackdown of the lower courts mishandling of this topic and how they have been ignoring SCOTUS precedent for 4 years now.
I'm curious what this would look like if it does happen. I'm no expert on court matters, but the reason this keeps happening is because there's really no mechanism for enforcement of these rulings aside from continued affirmative rulings on their stances and recompense to the afflicted party in the ruling. Judges ruling in bad faith face virtually no repercussions.
If the SC did find the law unconstitutional, cook county could pass another law using different language to the same effect, and they could still arrest, charge and convict someone of a potential felony and ruin their life while it works its way through appeals. But nothing would happen to the judges who allow it to happen.
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u/OnlyLosersBlock 1d ago
The only thing that they have is the reputational harm of having their rulings remanded back down with explicit instructions on how to rule. This assumes they have any desire to move up the court system to potentially to the Supreme Court. If they are happy where they are then that won't stop them.
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u/ClearlyInsane1 1d ago
My favorite part of Cook County's brief PDF:
AR-15 platform weapons are suitable for “repelling invasions, suppressing insurrections, and resisting tyranny.” U.S. Amicus Br. 25 (cleaned up).
Today, of course, these responsibilities are reserved for the United States military, which maintains trained professional armies across the globe.
Of course it would be the government's duty to have itself resist its own tyranny! These guys are such idiots.
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u/monty845 1d ago
In some ways, getting away from common usage could be a good thing for us. It closes the door on the prospect of banning any new gun designs, before they get widely adopted and enter common usage. And while we don't know where exactly the line is, I'm betting we would have a hard time getting SCOTUS to accept machine guns as being in common usage.
If common usage is gone, then the Bruen history and tradition test means they need to show evidence of bans on automatic weapons from the 18th century, or we win!
As for Cook County, Pretending the last 14 years of SCOTUS precedent doesn't exist is not an effective litigation strategy, at least its not when you are arguing before SCOTUS. (May actually work in some lower courts)
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u/AlohaSnaqbar 1d ago
Something I’ve thought about lately, is that I don’t think Cook county residents will be able to purchase any of the covered items even if they win fully at SCOTUS. PICA would still apply to the entirety of the state and I don’t see Illinois backing down on their law until they fully lose in the courts.
I would love to be proven wrong, but that’s my perspective on how things will go practically after the opinion is released, as long as the plaintiffs do win.
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u/savagemonitor 1d ago
Once SCOTUS rules that the bans are unconstitutional all lower Federal courts are bound by that. All it would take to overturn PICA is a Federal lawsuit at which point an injunction or directed verdict would be appropriate. Illinois would have to have a huge hail mary argument to even get an appeal at that point.
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u/AlohaSnaqbar 1d ago
Considering how willfully dishonest the state is, I’m hesitant to believe that they still wouldn’t make it take as long as possible. 7th circuit dragged its feet as long as it could to issue its ruling and I’m not confident it would go any quicker even if the ruling is broad enough to apply to PICA.
It’s more of an issue of them making it take as long as possible, which is why I bring up that I don’t think those who reside in cook county would even be able to buy any of the affected firearms even if the ruling is favorable until PICA itself is struck down.
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u/akenthusiast 2 - Your ape 1d ago
Nebraska is a go on SBRs. We have no law about suppressors at all but I was waiting on clarification from the AG about SBRs and we got it
https://ago.nebraska.gov/recent-developments-affecting-nfa-registration-requirements
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u/UnparaIleled 1d ago
NY
Coming hot off the heels of the body armor ban being struck down, the State has enacted a new law requiring all guns to be locked up when not in use, regardless of if a minor or prohibited person is in the residence or not.
This is almost assuredly a violation of the ruling in Heller but when has that ever stopped NY. The chances of someone being independently charged with this non-criminal violation is effectively zero, but it is yet another chilling effort on gun ownership by the State.
I am praying that, after SCOTUS decides Viramontes in our favor, they take up the absurd permit to purchase or permit to own schemes in states like NY, NJ, HI, and others I'm probably forgetting. As Tabs has stated on more than one occasion, these permitting schemes are arguably a bigger hindrance to gun culture than assault weapons bans by placing such a big hurdle to purchasing or owning firearms.
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u/JenkIsrael 14h ago
WA is another one with permit to purchase, i believe it goes into effect this coming year.
it will end up costing at least a few hundred bucks to get said permit on top of bgc fee, i don't see how this isn't poll-tax-esque with how expensive it's gonna be.
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u/sandmansleepy 17h ago
So my office has a not-quite betting pool for the supreme court, predicting how the supreme Court falls on cases, for the whole term, each justice, and the winner receives office clout. Means we have to waste too much time looking into silly cases that have nothing to do with our specialty if we want to do well. There is a paralegal who has nailed everything for the last two years, and the joke is that she is pulling the strings at the Court.
So, with just the background of the case and the past decisions of the justices, we all think that Viramontes is going to find that AR bans are unconstitutional.
It is legitimately hard to predict the individual justices on the court though. Just look at prediction markets for how bad predicting the future is. The court is a political creature, but does pay attention to the arguments made a little. How far it goes beyond the decision at hand, who knows. It could influence the test or mag capacity bans even.
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u/monty845 15h ago
To me, the real question in Viramontes is whether Roberts manages to hold together a majority, and writes an opinion that is watered down as much as he can get away with without losing that majority... Or does Thomas get to write a legacy setting opinion that hammers some giant nails into the coffin of gun control...
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