Teaser: Petition for Cert

Petition for Cert.

As noted, Heller stated that the textual analysis focuses on the normal and ordinary meaning of the words in the constitutional text. Heller, 554 U.S. at 576. The plain and ordinary meaning of “arm” obviously includes all firearms. This is what Heller said. Id. at 581 (citing with approval a source that said that all firearms constituted arms.). Thus, it follows that the firearms banned by the State are arms within the meaning of the text.

Not so fast, says the Seventh Circuit. The word “arms” in the text includes some firearms but not others. And how does one discern the difference? The ordinary meaning of the text is no help according to the panel majority because the word “arms” in the Second Amendment has an idiomatic meaning that in the context of firearms includes only “firearms that are not too ‘militaristic.’” App. 42.

Of course, the panel seems to have drawn this line between firearms covered by the text and those that are not in an effort to cabin Heller as much as possible to its specific facts. But as then-Judge Kavanaugh wrote in Heller v. D.C. (“Heller II”), 670 F.3d 1244 (D.C. Cir. 2011), a line based on a desire to restrict Heller is “not a sensible or principled constitutional line for a lower court to draw.” Id. at 1286 (Kavanaugh, J., dissenting). Justice Kavanaugh was correct, and the panel majority’s approach to the text cannot be reconciled with Heller’s “plain and ordinary meaning” mandate.

There is much more. The gist is that the plaintiffs (good guys) are calling out the Seventh Circuit and the District court for refusing to follow Supreme Court instructions, as they are required, as inferior courts.