2A lawsuit cases for the lawyers/judges here

[Racer X]

With all the decisions coming out where both the defendants(government) and judges refer to things that don't exist like the military use test, or my least favorite where they tack on "for self defense" (NOT what Heller actually said), what can plaintiffs do?

For example in a brief, or during oral arguments, can't they say since Heller said "(comma) LIKE self defense" but NOT limited to only self defense. Or pointing out that there is no such thing as a SCOTUS ruling limiting for or against military only use.

Is it poor form to pre emptivly warn them what Heller ACTUALLY says, or repudiating any thing remotely like a military use test as being non existent? Or reminding them that according to federal law that a suppressor is a "firearm"?

 

[Erich]

I'm a lawyer who worked in appellate law for a couple of decades.

Honestly, I'm not really sure I understand where your question is coming from so I may not be answering in a way that's helpful. But you can be sure lawyers raise such arguments and explain the law to the courts wherever appropriate.

 

[Racer X]

I've listened to/watched a lot of oral arguments at various levels up to SCOTUS. I haven't actually noticed anyone calling out defendants or lower court judges when they add on "for self defense" which is NOT what Heller I said, for example. How about "for lawful purposes. Not limited to just self defense. But for any and All lawful purposes" Nor has anyone been asked to produce WHERE a military use test actually exists in precedential rulings, that I have ever heard or read.

 

[steelslaver]

It is my observation that it is the opposing attorneys job to point out the flaws in arguments and previous decisions. The judge can ask questions and or voice an opinion during oral arguments, but usually they only do so in their decision

 

[Erich]

Bear in mind that oral arguments comprise just a sliver of what's argued - briefs do most of the arguing; OA is really more for underscoring and fleshing-out the principal arguments.

 

[Doug M.]

Go find the recent dissent in the 9th Circuit opinion in one of the Bonta cases. The circuit judge did a video dissent to go with his opinion, and it really shows how to address some of these issues. ()
It appears to me that most of the legislation is written from a position of staggering ignorance and argued by people who don't know what they don't know. To me, that is a violation of the ethical mandate of competence.
I also find it interesting that more legislation that violates Bruen (like the knowingly frivolous stuff about sensitive places) has been enacted since that opinion, as if the legislators inquisition are deliberately pushing back and wasting the people's money and that of those trying to protect us from them.

 

[Racer X]

I wanted to applaud when I first heard about, and watched the video dissent. Outstanding.

The degree to which the appellate courts let misquoted precedents and rulings stand as justification for further rulings and new precedents is beyond concerning. I don't understand why they aren't automatic grounds for SCOTUS cert to be granted.

 

[Frailer]

…Or pointing out that there is no such thing as a SCOTUS ruling limiting for or against military only use.

I am not a lawyer (my parents were married…and were not related to each other ), but the pedant in me can’t resist bringing up US v Miller (1939), in which the SCOTUS ruled that the Second Amendment doesn’t guarantee the right to possess a short barreled shotgun, due to the fact that it is not in common military use.

 

[Racer X]

Primary Holding
Only weapons that have a reasonable relationship to the effectiveness of a well-regulated militia under the Second Amendment are free from government regulation.

Not exactly the same thing. In fact. It could be an argument for fully unregulated short barreled full auto M4 carbines at the local hardware store. And today. Short barreled breaching shotguns are common in law enforcement and military use.

Miller is likely the seed that gave rise to justifying Heller's "in common use" protection as I see it.

 

[WR Moore]

IIRC, Miller, being dead; wasn't represented when SCOTUS heard that case.

 

[Racer X]

IIRC, Miller, being dead; wasn't represented when SCOTUS heard that case.

The story is wild