2A Does Not Apply

2A Does Not Apply

“Counselor, you make the argument that the Second Amendment applies here, but does it?  The Second Amendment only applies to law-abiding citizens.  You have offered me no proof that your client is a law-abiding citizen.”



“Excuse me, your Honor?”



“You claim your client resides in Idaho, but you have offered no proof of that.  You claim your client is entitled to protections of the Second Amendment on an as-applied basis, but you lay no factual grounds that he is ‘The People’ the Second Amendment offers protection for.”


“Well, your Honor, the complaint that is part of your record shows that our client has no criminal record in California, and there is a copy of his Idaho driver’s license attached as evidence in the complaint.”



“Well, his resident status notwithstanding, counselor, you still have not convinced me he is a law-abiding citizen.”



“Your Honor, what would allow the court to reconnect with the established presumption of innocence and allow us to move forward with our argument on our as-applied challenge?”



“I’ll let you figure that out.  We will set another hearing for March.”




This is my world.



We have a judge who would appear to be adopting a standard the State has been proffering since NYSRPA v Bruen:  The Second Amendment’s protections only apply to “The People”… and the State gets to decide who “The People” are.



Let me explain:



The Bruen test has two components.  The first component requires parties arguing for Second Amendment protection to show how their Second Amendment rights have been abrogated by the State.  Assuming they prevail on their argument, then 2A protection is presumptive.  The burden then shifts to the State to show how the statute or regulation is consistent with our nation’s history, text, and traditions of firearms regulations as existed in 1791 during the ratification.  If the State fails to show that consistency, then the law is deemed to be unconstitutional.



The State has taken up the challenge not by focusing on its burden, rather it has chosen to focus on the first step:  Does the Second Amendment even apply to the moving party.



In our case (and in other cases where the State’s laws are being challenged), the State has been making the argument that the oppositional party is not entitled to Second Amendment protection because they fall outside the category of “The People”.



Remember… the Second Amendment states the right of the people to keep and bear arms shall not be infringed.



So… who does the State say is “The People”?



Well… what it is claiming is that criminals fall outside of “The People”… and how do we define what criminals are?



“Please, Steven, I know you are a purist… but I know what a criminal is, and I don’t want them owning guns!”



Fair enough, but since the State is being fairly loose with its language, when do criminal prohibitions manifest?  When the State says it does?



If you are convicted of shoplifting when you were 18 years old, do you lose your 2A rights?



If you get a speeding ticket, do you lose your 2A rights?



After all, the argument is not that those who violate this specific law are prohibited from exercising their Second Amendment rights… the State is making a blanket argument that Second Amendment rights simply do not exist for those who have arguably ever engaged in any criminal conduct.



In our case, mentioned at the beginning of this blog, the Judge seems to be favoring an argument that until parties can prove clear and unambiguous evidence they have never engaged in criminal conduct, it will be presumed that they have, and thus, are not afforded Second Amendment protections.



This is not only wrong… it is, to paraphrase our good friend, Judge Carny, “Noxious to the Constitution”.



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Comments (5)

  • Jeff Tucker Reply

    Would it also apply to everyone in every situation? The preamble states “We the people . . .” One could argue that unless the judges could show that they are not criminals, they would not have the right to preside over anyone. A ludicrous argument for the state to make. Is this actually being applied in your cases, or is this theoretical? It’s downright appalling. Federal court?

    03/06/2024 at 08:24
  • Hugh Everhart Reply

    So, the State is asserting that the individual in the case is NOT part of We the People? Isn’t that asserting “facts” not in evidence? Doesn’t the State have to offer some degree of proof that someone is a criminal to uphold the State’s assertion? I could claim Steven is a Russian spy but wouldn’t I have to provide evidence to prove that assertion before we could lock him up? Is this a real thing we are actually seeing?

    03/06/2024 at 10:10
  • Robert Hagler Reply

    We are becoming fatigued with the attacks on the American Constitution/Law. How did we end up with chaos, when the laws we have traditionally lived with provided most of us with a type of peace that could be experienced on a lazy Sunday? In other words, we felt at ease, and society functioned with rules – that were enforced. Now it seems that every day brings new chaos – even our traditional Sunday.
    I believe that it is no coincidence that the chaos is growing as our traditional laws and standards are being challenged and upended in search of a more perfect union – by those who might be; shall we say – progressive. The camp that changes things, only to create a new problem, only to create a new solution, (dog chasing it’s tail?) . I hope that the young generation is getting a good dose of civics which might just serve the future of America well.
    Thank you Steven (and so many others) for doing your part to shine the light, and help lead us through these tough times. Keep up the good work.

    03/07/2024 at 13:48
    • John Denney Reply

      We trusted our public servants.
      Bad idea.

      Whittaker Chambers said in his 1952 autobiograph, “Witness”, that in the 1920s the Soviets targeted education, media, & unelected government positions for infiltration.
      They were wildly successful & were never rooted out.
      So, commie ed, media, & Deep State, influencing all.

      FDR’s right hand man was Alger Hiss, a commie who fed government docs to his friend Chambers to pass on to the Soviets, until the day Chambers realized there is indeed a God in heaven, & that communism is evil. He backed out of the network, but kept some docs as evidence, hidden on microfilm in a pumpkin on his farm, which were dubbed, “The Pumpkin Papers”, when he led investigators to them during the Hiss hearings, at which Chambers was a witness, hence the book title.

      03/09/2024 at 12:19
  • Norm Ellis Reply


    03/09/2024 at 12:33

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