United States V. Avila No. 40, Order

This case was another challenge to 18 U.S.C. §922(k) possession of a firearm with an obliterated serial number.

Mr. Avila is a bad dude. He was charged with four counts, 2 counts of distributing fentanyl, 1 count of distributing cocaine, and 1 count of felon in possession of a firearm.

Mr. Avila, through his state provided attorney, asked the court if §922(k) was constitutional. This was construed by the court as a motion to dismiss count 4, §922(k).

This case is now dead because Mr. Avila pleaded guilty, and I'm not paying to find out exactly what he pleaded guilty to and what he got out of it.

I'm sure we all play the game of "Guess what their opinion will be based on how they describe the problem." I do that with court orders/opinions.

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held these words secure an “individual right to possess and carry weapons in case of confrontation.” Id. at 592. A short two years later, the Court held this newly recognized right—in one way or another—applied against the states. McDonald v. City of Chicago, 561 U.S. 742, 791 (2010) (plurality opinion) … [xCite item="N8JR6H54" p=3 pos=0]

That jab of "A short two years later" is nasty. It is nasty because, as a court, he knows that a right delayed is a right denied. Waiting 2 years for our rights is "A short two years.". I'm not feeling good about this judge right now.

Despite this broad consensus and the agreement of the United States with the approach developed by the lower courts, the Supreme Court held the lower courts employed “one step too many.” Id. at 2127. “Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. Bruen instructs lower courts “to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding” and go no further. Id. at 2131. In doing so, courts should “consider whether ‘historical precedent’ from before, during, and even after the founding evinces a comparable tradition of regulation.” Id. at 2131–32. This task, the Court acknowledged, “will often involve reasoning by analogy,” which “requires a determination of whether the two regulations are ‘relevantly similar.’” Id. at 2132 (quoting C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993)). [xCite item="N8JR6H54" p="4-5" pos=1]

We again have that jab, this court is saying that because inferior courts had decided to turn the Second Amendment's protections into a joke, the Supreme Court should have done the same.

The citations are correct. There is nothing extraordinarily bad about them. What they are, though, is second best.

When the Supreme Court says, "We hold …" they are telling you the answer. After they give the holding, the rest is dicta, explaining that holding.

On the record before it, the Court concludes that firearms with obliterated serial numbers are not within the class of firearms typically possessed by law-abiding citizens for lawful purposes. The Court also finds that firearms with an obliterated serial number—like the one Defendant is accused of possessing—are dangerous and unusual weapons and, therefore, not within the scope of the Second Amendment’s guarantee. [xCite item="N8JR6H54" p=11 pos=2]

The court plays word games again. Is a firearm an arm, with in the meaning of the Second Amendment? All firearms are arms. Is a firearm without a serial number an arm? Yes. The state argues constantly that "ghost" guns are arms that should and can be regulated. Is a firearm with a serial number an arm? Yes. Quod erat demonstrandum

If a firearm with a serial number is an arm, and a firearm without a serial number is an arm, then a firearm who's serial number has been removed is still an arm.

Even though the court did not explicitly say that the plain text of the Second Amendment doesn't cover the individuals' conduct, they did not say what part of this Nation's historical tradition of firearms regulation is analogous to §922(k).

This means the court profoundly erred in this decision.

A bit further, the court actually says it:

In sum, the Court holds that the kinds of firearms § 922(k) prohibits are not “Arm[s]” within the meaning of the Second Amendment, and as a consequence Defendant’s constitutional challenge to this statutory provision fails. [xCite item="N8JR6H54" p=11 pos=3]

We are seeing this argument over and over again. After Bruen, I expected the fight to be in the realm of "sensitive" places. And that battle is happening. It does not appear to be a winning argument for the state. Mainly because after the Bruen court told the states that they can't just declare a large area a "sensitive" place because cops sometimes patrol, the states then proceeded to do just that.

On the other hand, the courts and the state turning

when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.

[xCite item="75DAVPP7" pos=4] into a first step hurdle.

Is it an arm? Well, duh, it's a gun. That makes it an arm. Go read Heller's definition of what an "arm" is. There are no asterisks in the Second Amendment. There is nothing that says, "we are only talking about these types of arms." or "we aren't talking about those types of arms." It is all arms.