Case Law doesn't work that way...

(1600 words) There are two cases that have been kicking around for nearly a decade now. They have been to the Supreme Court, granted certiorari, had the inferior court's opinion vacated, and then remanded down to the inferior court "in light of the opinion in Bruen"

One is Duncan v. Becerra. This is part of the games people play when they know they are losing. In short: the District court found for The People. The Ninth shit on The People. The Supreme Court said to the Ninth, "You got it wrong, morons, do it over, right.". The Ninth sent it back to the district "in light of Bruen" with "It was done wrong, do it over." The district found for The People again. The Ninth decided that a merits panel might find for The People, which they would not allow. So they took the case en banc and have yet to hear oral arguments.

The other is Bianchi v. Frosh which is now Bianchi v. Brown because it has been going on so long, the AG of Maryland has changed.

The United States operates under the concept of "Common Law".

Currently, a number of societies around the world are reforming their legal systems, often upon emerging from years of oppression. Two transatlantic models, the civil law and common law, will have a great influence on these reforms. For one thing, the two basic models already cover over 70 percent of the world’s population in some 62 percent of the existing legal systems. Moreover, there will be many practical, economic advantages to westernizing a legal system, which necessarily means incorporating at least some aspects of one or both transatlantic models. The key is to extract the best features of the models and adapt them to the specific legal culture. The civil law approach to judicial design in particular has much to recommend it. A dominant feature of the civil law model is the responsibility it places on the judge in dispute resolution. True, common law judges have more authority in the sense that they can evolve the law through precedent, whereas civil law judges do not have that authority. The civil law judge, however, dominates individual litigations and hence sound dispute resolution depends on the quality of its judges and on assuring that they have the wherewithal to perform their responsibilities to the best of their abilities. Thus, the lessons from civil law judicial design are particularly worthy of consideration in reforming a legal system. [xCite item="5ZWLX94S" pos=0]

The dictionary definition doesn't help much. The key in common law is the use of precedent. Under common law, judges should use the decisions of previous courts to make current decisions. This leads to everybody being treated equally under the law, theoretically.

By the arrangement of superior courts and inferior courts, when inferior courts decide the same question differently, the superior court examines the split and issues an opinion setting precedent, saying how all the inferior courts should answer this (type) of question moving forward.

A superior court's precedent setting opinion is called "case law".

When a superior court issues an opinion, they prefer to follow their own precedent. Thus, we have Heller and Bruen referring back to Miller. They said that Miller got it right, that the current opinions are just clarifications or expansions of Miller.

Even though they said to the inferior courts, "You got it wrong, do it right moving forward," they did not change their past opinion. This process is called stare decises which means "to stand by things decided."

This was a big question for the Conservative nominees to the Supreme court. This was polite speak for "Are you going to overturn Row v. Wade?"

Occasionally, a court looks at the question and says, "We got it wrong, we have to fix it.", This was done in Dobbs v. Jackson and Dred Scott v. Sandford.

What this means, to us, is that when there is a conflict between current case law and previous case law, current case law is the correct case law to use.

Nobody would argue that the 18th Amendment is binding today. They would be laughed out of court.

In District of Columbia v. Heller, 554 U.S. 570 (2008), this Court left no doubt that “weapons that are most useful in military service—M-16 rifles and the like—may be banned.” Id. at 627. Consistent with that pronouncement, the State of Maryland, like nine other states and the District of Columbia, has prohibited possession of certain highly dangerous, military-style assault weapons, of the sort used in a series of highly publicized mass shootings. [xCite item="JG6YM6RR" pos=1]

Note the date, 2008. Leaving aside the question of what makes a weapon

it is clear that this case law was issued in 2008.

Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Königsberg v. State Bar of Cal., 366 U. S. 36, 50, n. 10 (1961). [xCite item="75DAVPP7" p=8 pos=2]

This was issued in 2022. This case law takes precedence over any other opinion issued before it.

Of course, the state cannot be trusted, we have to look at the context of their citation:

It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the concep­tion of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. [xCite item="LPGQXCDT" p="627-628" pos=3]

Isn't interesting how the state left out that all important word "if"? That seems to be because they are hiding what the Supreme Court was actually saying.

Backing up to the previous paragraph, we can see what the cited clause is actually saying:

We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weap­ons.”

[xCite item="LPGQXCDT" p=627 pos=4]. The "most useful in military service" is actually a reference to "dangerous and unusual weapons." And we know from Heller that weapons in common use cannot be unusual and can NOT be banned.

We know from Caetano that the absolute number required to be "in common use" is no higher than 200,000.

This Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), did not call that analysis into question. Although Bruen rejected the tiers-of-scrutiny framework that many courts of appeals had applied, the Court left intact its pronouncement in Heller that “M-16 rifles and the like” are weapons that “may be banned.” Nonetheless, in the wake of Bruen, this Court vacated the Fourth Circuit’s decision in this case and remanded for consideration in light of Bruen. [xCite item="JG6YM6RR" pos=5]

Do you smell that? It is the state's pants burning up. The AG's pants are on fire.

Does the plain text of the Second Amendment cover the individual's conduct? Then the conduct is presumptively protected. It is then the state's burden to demonstrate that the modern regulation is consistent with this Nation's historical tradition of firearm regulation.

There is nothing in the holding of Bruen that allows the courts to skip answering the question? Does the plain text of the Second Amendment cover the individual's conduct?

The plain text does not create categories of arms, some covered, some not. The plain text does not talk about lawful use. The plain text does not discuss self-defense, nor does it have implications of unusually dangerous or even unusual.

Is it an arm? Is the individual a member of The People? Does the individual wish to possess/acquire the arm or does the individual wish to carry the arm?

Three yeses and the plain text covers the conduct of the individual.

Besides the spurious argument that "most useful for military service" allows an outright ban, the state argues that it isn't time for the Court to consider these cases.

Why?

Well, it's been less than two years since Bruen issued. A right delayed is a right denied. It should be the state's position that challenges on constitutional issues be addressed as fast as possible.

Harriet Scott, the wife of Dred Scott, was part of the initial suit, started in 1846, which was decided by the Supreme Court in 1857, 11 years. Because of Chief Justice Taney's horrible opinion, they spent 11 years more in slavery. They were freed in 1857 by the Blow family, which purchased the pair.

Dred lived for a year as a free man. His wife died in 1876.

I would rather not wait 8 more years in order for the state to be found to have kept citizens of my great country as surfs.

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