Quote of the day—Judge James Carr

Misapplying the law for a long time provides no immunity from scrutiny.

Judge James Carr
U.S. Federal Judge Norther District of Oho
December 2019
Design of AR-15 could derail charges tied to popular rifle
[Gun shops are in Washington state are selling complete AR lowers with the upper as a separate item to bypass the current “assault weapon” restrictions.

It’s a good start. Now, the judges need to stop misapplying the 2nd Amendment and remove bans, licensing, and background checks from the legal books.

H/T to Rolf.—Joe]

16 thoughts on “Quote of the day—Judge James Carr

  1. What bothers me the most, when I read the court cases regarding 2A challenges to gun laws is that the courts are very upfront about stating: The law in question infringes on the 2nd Amendment.

    Then the courts go on to say that just because the law infringes doesn’t mean that the law is unconstitutional because…

    What we have to be aware of is all of those “because” issues. SCOTUS has stated that there can be limits on the 2A. And then laid out how to find those exceptions. Lower courts have consistently found exceptions where there shouldn’t be any.

    New York State Rifle & Pistol Association Inc. v. City of New York, New York is one of those cases: “merely regulates rather than restricts the right to possess a firearm in the home and is a minimal, or at most, modest burden on the right.” N.Y. Rifle & Pistol Ass’n. , 86 F.Supp.3d at 260 ” N.Y.S. Rifle & Pistol Ass’n, Inc. v. City of N.Y., 883 F.3d 45, 54 (2d Cir. 2018)

    “”Neither Heller nor McDonald … delineated the precise scope of the Second Amendment or the standards by which lower courts should assess the constitutionality of firearms restrictions.” ” N.Y.S. Rifle & Pistol Ass’n, Inc. v. City of N.Y., 883 F.3d 45, 55 (2d Cir. 2018)

    And here is the 2nd circuit court’s reason why this infringement is none-the-less legal:
    At the second step, we consider whether to apply heightened scrutiny. In Second Amendment cases, our Circuit has recognized at least two forms of heightened scrutiny—strict and intermediate. See Kachalsky , 701 F.3d at 93 (holding that although “some form of heightened scrutiny would be appropriate,” strict scrutiny was not necessary, and instead applying intermediate scrutiny). Our Circuit has also recognized that a form of non-heightened scrutiny may be applied in some Second Amendment cases. See United States v. Decastro , 682 F.3d 160, 166 (2d Cir. 2012) (holding that heightened scrutiny is not appropriate where the regulation does not impose a “substantial burden on the ability of [plaintiffs] to possess and use a firearm for self-defense”). This recognition is limited by the Supreme Court’s indication in Heller that rational basis review may be inappropriate for certain regulations involving Second Amendment rights. 554 U.S. at 628 n.27, 128 S.Ct. 2783. But we need not determine here which types of regulations may be subject only to rational basis review, or whether some form of non-heightened scrutiny exists that is more exacting than rational basis review. As explained below, we find that the Rule does not trigger strict scrutiny and that it survives intermediate scrutiny.

    N.Y.S. Rifle & Pistol Ass’n, Inc. v. City of N.Y., 883 F.3d 45, 55-56 (2d Cir. 2018)

    So the 2nd circuit court had no problems seeing that the law in question infringed on the 2nd, but because previous cases, not all of which were SCOTUS cases, exceptions allow them to decide that “for the good of…” is enough to allow this infringement.

    • This is why I keep harping on the bogosity of the concept of “scrutiny”, whether “strict” or not. All these — as you point out — amount to “the government is allowed to infringe on the Constitution if it comes up with a plausible excuse for doing so”.
      None of this is in any way justified by the plain letter of the Constitution, and every time it’s done it needs to be condemned as a violation of the Supreme Law of the Land.

      • Not plausible – Rational Basis Test means there is a non-risible excuse for the law and if the court does not burst out in giggles explaining why the law is not an infringement, then it’s constitutional.

  2. Wait, WA State has “assault weapon” restrictions? When did that happen? Or is it just “preparatory” and getting ready for such stupidity? I know some were proposed recently (an annual thing, just about), but I’d not heard of any getting close to passing.

    “Yeah, I’ll take the stripped lower, please, which has no threaded barrel, no collapsible stock, no flash hider, no bayonet lug, and no shoulder thingy that goes up, plus one of the Stoner uppers in .223 as an accessory, plus an adjustable lower completion kit. No, of COURSE I’d never want an assault weapon? Who would?” Shish.

    • Surely you jest. Didn’t you vote against I-1639 and sign the petition to repeal it?

      You now have to take a class before you can buy an “assault weapon” Ruger 10/22. No one under age 21 may possess one. See the short version here.

      Here is what the gun stores are doing.

  3. Surely you see where this is going. There are several demands to “fix the problem” of defining the AR lower receiver as a firearm. Then;
    “Prosecutors worry that more rulings against the government could allow people prohibited from having guns to purchase weapons piece by piece with no regulation or background check.”

    This is nothing more than a run-up to restricting the sale of gun parts, as in some other countries, where you can’t purchase a barrel without going through the rigmarole.

    Mark my words; that’s where this is going.

    A “good start”? Hardly. These dismissals are merely a precursor; the setup. The punchline will be a new series of excuses for more restrictions, by way of “fixing the problem”.

    Meanwhile, anyone willing to break the law can, of course, as always, have any weaponry they want, whereas the law-abiding are increasingly hindered, harassed and discouraged in their actions. As more restrictions pile up, there is created an increasing imbalance of power in favor of the law-breaker. A banned weapon is tantamount to a government-enforced monopoly on that weapon, set aside for criminal use only.

    This, I submit, is the very purpose and goal of all second amendment infringements (all gun restrictions). A certain segment of the public goes along with it out of a visceral allegiance with the criminal element, and thus the notion of a well armed, law-abiding society strikes them with a visceral fear, hatred and dread.

    • Lyle,
      According to gun Jesus, in other countries, the part that is required to be serialized, the part that is the “firearm” is the “pressure container”. I might have that wrong.

      So you can buy parts kits for all sorts of things that we have to get 4473’s for, but they have to get permission to buy the barrel.

      We can buy the barrel without paperwork, but we need paperwork to buy a chunk-o-aluminum that can hold the fire control group.

      • And I would hate to see that change. It would be a lot harder and more expensive to turn and bore a steel barrel with rifling than a chunk of aluminum. That’s assuming that they would still allow us to DIY. As it is you can mill a lower from a solid block on a relatively cheap and rigid cnc router or just use a jig on an 80%

    • I just posted the following over a Say Uncle’s. Like Lyle, I don’t see this ended well either.

      I’ve long wondered about this oddity. For an FN-FAL, the serialized part is the upper. For an AR-15, it’s the lower.

      For those that don’t know, the FAL upper has essentially the same function as an AR-15 upper. It carries the bolt and bolt locking mechanism, the barrel and gas system. Functionally identical to an AR-15 in principle, just a different way of doing it.

      This is likely going to end badly I’m sad to say. The best outcome is that the AR-15 upper becomes the serialized part, just like the FAL. This has minimal impact, other than each upper requiring a 4473.

      The worst possible outcome is that neither the upper, nor the lower meet the definition according to law, and the law gets re-written. This opens the door to all sorts of nasty legislation. I can be optimistic, but no way in hell to I see a re-written law resulting in a better situation for us.

      Just the way I see it folks….

      Earl

      • The question is, what happens with the tens of millions of uppers in private hands without serial numbers?

        And keep in mind the same sort of question can be asked about a Ruger 10/22. You can buy barrels over the counter/Internet with no questions asked.

        I’m betting that question will stall or even derail any attempt at new legislation which makes it the serialized part. And I can’t see the ATF deciding the lower is the really a gun with rewriting the law.

        So… I think the worst that will happen is that Congress rewrites the law to say a serial number is must be on something like “the major firearm component”.

        No matter what they say there will be manufacturers driving truck loads of “not firearms” through the loopholes. Add in the 3D printing and home machinists and the anti-gun people will be tied up trying to plug the loopholes and not have time for anything else.

          • So far ATF has never appealed a District Court dismissal of this kind of case when the defense has decided to push it hard forward.

            The speculation is that ATF’s staff lawyers & the U.S. attorneys would rather let these cases go away as opposed to taking the chance that the court might wad up Chevron Deference and throw it in the wast basket.

  4. “Misapplying the law for a long time provides no immunity from scrutiny.”

    Ten years later and the courts are starting to get fetch a clue…

    “Justice Sotomayor, States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional.” – Alan Gura, Oral arguments, Heller V. D.C.

  5. “Justice Sotomayor, States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional.” – Alan Gura, Oral arguments, Heller V. D.C.

    I like that, of course, and would like to see it expanded upon and greatly. A man can dream.

    To reiterate and expand the quote;
    The long continuance of abuses and usurpations, such as we have endured, far from making said crimes acceptable, makes them all the more egregious for their duration and repetition– A serial killer is no less guilty for his having made murder a habit (having established a “precedent” for murder, if you will, or making it a “tradition” or “custom”). To the contrary; repetition makes the offender all the more guilty, and the need for his arrest all the more urgent. The justice deficit increases minute by minute, so long as the abuses continue.

    The guilty party(ies) will of course take the position that “The first offense being the capital crime, all those that follow are free.” The incentive therefore, is to get as much crime done as is possible, as egregious as possible, before they are finally stopped. The perpetration of crime then becomes an urgent need. Furthermore, the longer the list of abuses, and the larger the conspiracy, the more the guilty party has at his disposal to bargain with after being arrested.

    If all that is so, expect an all-out orgy of crime among our “officials”, followed by a lot of them turning on one another like mad dogs after “the penny drops”.

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