Thursday, April 27, 2023

DC Judge Contreras Holds Standard Capacity Magazines are "not in common use for Self Defense"


In the case of Hanson v. District of Columbia, in the District Court of the District of Columbia, on April 20, 2023, federal Judge Rudolf Contreras issued an opinion holding standard capacity magazines which hold more than ten rounds of ammunition are not protected under the rights which the Second Amendment was written to protect. Judge Contreras acknowledges magazines which hold more than ten rounds are in common use in the United States of America. Judge Contreras acknowledges magazines which hold more than ten rounds are arms as defined by the words of the Second Amendment.

Judge Rudolf Contreras goes to great lengths to determine magazines which hold more than ten rounds are *not * included under the rights  by the Second Amendment. The linguistic juggling to accomplish this difficult task is impressive, not to mention the stretching and twisting of logic.

From the opinion:

More importantly, Heller II recognized that whether LCMs are “in common use” is merely the beginning of the analysis. The full inquiry is “whether the prohibited weapons are ‘typically possessed . . . for lawful purposes.’” Heller II, 670 F.3d at 1260 (emphasis added) (quoting Heller, 554 U.S. at 625). On that critical question, Heller II expressed uncertainty: “based upon the record as it stands, we cannot be certain whether these weapons are commonly used or are useful specifically for self-defense[.]” Id. at 1261 (emphasis added). That is the question this Court must now resolve.

The simple and straightforward understanding of whether magazines with a capacity of over ten rounds are typically in common use for lawful purposes is clear. There are tens or hundreds of millions of such magazines in the United States. If they were typically possessed for unlawful purposes, the crime committed with them would be astronomical. But crime with them is not astronomical. The mere fact of common possession equates to common use. Judge Contreras is working very hard to limit the term "common use" to only those uses specifically documented on the record, for self defense.  From the opinion:

The District disagrees; it argues that LCMs are not in common use for self-defense for two reasons. First, it claims that LCMs’ military characteristics make them a poor fit for self-defense and take them outside the scope of the Second Amendment. Second, the District claims that law-abiding individuals do not use LCMs for self-defense because incidents where a civilian actually expends more than ten bullets in self-defense are “vanishingly rare.” Defs.’ Opp’n at 18. The Court agrees with the District on both arguments.

This is exactly the means-end type of argument which Bruen prohibits. The government is not allowed to decide whether a typical arm is useful for self-defense or not. If the arm is in common use for lawful purposes (not just self-defense), it is protected.

The other bizarre claim is arms which are useful for military purposes, such as use by a militia, are not protected under the Second Amendment. All scholars agree the Second Amendment protects arms which are to be used by a militia. The vast preponderance of scholarship is: one purpose of the Second Amendment is to preserve an armed population, which could bring their arms to service in a militia, when the need arises. Arguments which claim arms useful to a militia are explicitly excluded from protection by the Second Amendment are counterfactual to the text of the Amendment itself.

Opinion:

Judge Contreras may be working to clarify Bruen further, by prompting the Supreme Court to note magazines holding more than ten rounds are obviously useful in militias, for the common defense.  It seems unlikely. Judge Contreras is Heller II as precedent in the DC circuit, without considreing it to be overriden by the Bruen decision.

Judge Contreras fails to mention the opinion of  Judge Benitez in the Ninth Circuit.  Judge Benetiz considers AR15 rifles to be excellent militia arms. Militias, under the Second Amendment, are to be drawn from an armed population. Progressive judges and scholars have, for decades, declared the Second Amendment only protects use of arms in a militia. Now they declare military uses of arms are not protected by the Second Amendment. Progressive (leftist) ideology is never hindered by logic or facts. Only the political goals of the moment are considered important. Power over others is the singular consistent goal of progressive ideology.

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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4 comments:

ScienceABC123 said...

Again, this nonsense is only going to end one of two ways: either the US Supreme Court finally rules all gun control laws are unconstitutional, or a second Civil War. I hope for the former, but fear it will be the latter.

Sorry for getting up on my high horse, Dean.

Anonymous said...

I think I would have to say some judge reflect what the words true morons define, Just about every weapon for sale comes with at least two magazines Years ago Arizona passed a law that you could only use five round magazines for deer hunting. It takes about two seconds to change a magazine 10 five round magazines are the same number of rounds as five ten round magazines. I prefer the eleven 30 round magazines. I have But then I have some combat experience and wish I could get 50 round magazines. I have taken deer at 500 yards with one shot from the two five round magazines I keep just to be legal for deer hunting. The five 10 round magazine just carry my reloads for the two five round magazines. It really helps to take a horse with you 500 yards is a long way to pack a deer out. A seven shot tube fed 30-30 does a lot of meat damage. and my M-1 30 carbine is much lighter weight. I went deer hunting with a bow once my arrow quiver hat 2 dozen broad head arrows in it arrows can cost over 15 dollars each. He who runs out of ammo first looses.

Anonymous said...

Science ABC: The words ratified in the Second Amendment are the only words that can be considered . In the English of that day Those words were written for their exact meaning. Shall Not Be Infringed means exactly that. there are no valid gun laws and the State constitutions are required to comply with the Federal constitution We fought the Revolutionary war with many home made weapons, when the Militias were called up they were told to bring their own weapons because we did not have arsenals to issue weapons from and bare means anything you can own and pick up. We fought the revolutionary war to throw o that form of Democracy and turned this country into a constitutional Republic So the people could control the power of government not the government controlling the people. as in Democracy That is the difference Liberals think government is supposed to control the people and in a constitutional Republic the people control the power of government. Don't get me started on the unconstitutionality of the IRS and income tax. When the constitution was ratified it had the stipulation written that all existing treaties were to be carried forward and retained for the new government. One of those treaties forbids the taxing of Wages. Wages are not profit. Liberals are now trining to make us think Government owns OUR Money.

Anonymous said...

I think it is H and R that puts out a nine shot revolver How do these kinds of laws work with that? If we ever get invaded from the west coast California will just be a slide through with all of the ignorant gun laws they have I have yet to see a trigger that pulls its self the person is the criminal No gun ever picks its self up aims and fires If you ever get caught up in a mass shooting and you don't shot back you caused the problem They will have to kill me with their first shot or their hide will look like a sieve.