By Tom Grieve
We have two major victories for the Second Amendment, both coming out of courts, one coming out of the state court in Oregon, another one coming out of the Federal fourth Circuit Court of appeals striking down Maryland law. Guys, we're going to do something a little bit differently today. We're going to be talking about two different outcomes in one video. Guys, let's get into it.
Oregon
So we're going to cover Oregon first. This one comes to you thanks to the gun owners of America, second one's going to be coming out of Maryland thanks to the Firearms Policy Coalition, both fantastic groups that deserve your support in every sense of the term. So be sure to check 'em out. If you're not a member, I'd strongly consider that you becoming one immediately. I'm a member of both. I support both. I'm a big fan of both, so be sure to check that out. First one's coming from Oregon. Now, the Oregon situation's actually pretty unusual because we already have the federal court that ruled on this and upheld the law, upheld the law. Now we're talking about the state court that has enjoined the law declaring that it violates the Oregon constitution. Now they can do this because they ruled under the Oregon law not the federal law, and therefore we avoid any particular issue where a federal court went left and a state court goes right because they're talking about the exact same legal test very intelligently.
Remote paper puncher
The state court ruled carefully seemingly to avoid this particular issue. So lemme break this down, but before I do guys, there's a secret giveaway going on right now. You can join it, check out the pin comment as well as the description box below. Can't tell you what it is because YouTube will hate me, but it kind of goes in the shape of something fits in your holster. You can defend yourself with it. It's remote paper puncher. Be sure to check that out. It's very real. I've met multiple people who have said that they've won these. Yes, very real Back to Oregon. So the plaintiffs, that's the pro-Second Amendment, people who are trying to strike this down argued that firearms capable of firing multiple rounds were present in Oregon back in the 1850s, and they were known to those who ratified the state constitution, which presumably had some sort of protection for Second Amendment.
All the amendments for that matter
Now that took effect back in 1859. Now if you're confused about that, remember that as of 1859, we had not yet incorporated the 14th Amendment. Why is this relevant? It's relevant because up until we saw the 14th Amendment, the Federal Bill of Rights, so we're talking about First Amendment, second Amendment, fourth Amendment, while all the amendments for that matter, they only protected you from federal government action. So in other words, your first Amendment was protected from DC but it wasn't protected from Springfield, from Madison, from wherever it is that your state capitol or your local laws, whatever it is that they were going to do, your local law enforcement, they can, not saying they could do virtually, whatever, but let's put it this way, the federal Constitution, and specifically I'm talking about the Bill of Rights, was not going to be stopping them until the 14th Amendment, which came out in the late 1860s, although it would not unfortunately apply to the Second Amendment until 2010.
semi-automatic firearms
That's the reason why you see a lot of states pass constitutional amendments to basically mimic the Second Amendment because they had to pull in those protections into the state constitution, as we've see in Oregon, as we see in many other states. So quick history lesson there. So the defense meanwhile said that look, and we're talking about the government here. The government argued saying, look, modern semi-automatic firearms were technology distinct from revolvers and multi barrelled pistols that were available in 1850s. So the argument here is this, the pro firearm people are saying, look, laws aimed at regulating firearms, capable of holding multiple rounds, firing multiple shots in a row without reloading per se. All of this technology existed back when Oregon passed their state constitution, and that's the reason why. Look, all these sorts of things absolutely apply. The government is saying no semi-automatic firearms are not the same thing as revolvers and we did not have semi-automatic firearms back in the 1850s.
So the issue here is whether or not the Oregon Constitution should step in to block this. That's the issue here because if we did not have similar sorts of technology, then arguably this could be some sort of technological leap that wasn't anticipated and therefore a leap may not fall within the purview of the law. That's not what I'm saying. I'm saying that's basically the gist of the arguments here. Now in the judge's opinion, the judge disputed the government's claim that banning large capacity magazines, again their wording, not mine, normal capacity magazines would help make mass shootings any less deadly. The judge recognized that mass shootings quote have a significant impact on the psyche of America when they happen, but went on to add that they rank very low in frequency and the court finds that 10 round magazine bans are no panacea to prevent a mass shooter panacea.
Cure all medicine
For those of you riding in lawnmower who cannot Google that, we're basically talking about some sort of cure all medicine or anything like that. So the judge is saying, look, a 10 round magazine ban ostensibly to somehow prevent mass shooting that doesn't check out. It doesn't pass the smell test the judge went on to write. People tend to believe these events are prolific and happen all the time with massive levels of death and injury. The court finds this belief though sensationalized by the media is not validated by the evidence, which is absolutely correct and we've covered this many, many times in this channel before, and I won't take the time to do so here again. But look, mass shootings while obviously horrible and tragic and frankly largely avoidable, thanks to the fact that they're happening in gun-free zones and if we didn't have a lot of those issues at malls, at movie theaters and so forth, maybe things would be a little bit different.
History of firearm law and regulations.
It is curious, depending upon the fact that which study you want to believe between 86 to 95% of mass public shootings take place in gun-free zones. I don't look at that as a coincidence. I look at that as causation, not coincidence. Now, this ruling contrasts with what the federal judge ruled in the federal opinion regarding the Oregon law. In a separate federal ruling, the US District Court judge appeared to take into account the Supreme Court's new recent directive talking about the history of firearm law and regulations. In that particular case, the judge ruled that, look, large capacity magazines are not commonly used for self-defense and are therefore not protected by the Second Amendment. Yes, a federal judge said that magazines in excess of 10 rounds are not commonly used in self-defense. Out of curiosity, in the common field below, comment for me, how many of you have ever or ever or will ever plan on carrying a so-called large capacity magazine in self-defense at any point that could be car trunk carry, that could be home carry, that could be conceal, carry, open carry, woods, carry, whatever else, how many are out there?
Law's restrictions
I know that frankly I do that every single day, but apparently I'm not common. Are you common? Let me know. The judge went on to write that look and even if they are protected, this is the federal judge. The law's restrictions are consistent with the country's history and tradition of regulating uniquely dangerous features of weapons and firearms to protect public safety. As a note, the judge further ruled that. So-called permit to purchase, provision to be constitutional declaring that the Second amendment allows governments to ensure that only law abiding responsible citizens keep and bear arms. Yikes. The judges in the federal case saying, look, so-called high capacity, normal capacity magazines are not commonly used, and even if they are, hey, history and tradition allow us to regulate them out because we are allowed to regulate out. So-called dangerous features of weapons and firearms to protect public safety.
What the judge is referring to here is an old lineage of case law talking about, so-called dangerous and unusual weapons going back to English common law. If you want to see me unpack that and go into this to debunk it, let me know in the comment field below. So we've got two different rulings about the Oregon law, one federal, one state going opposite directions. What's the outcome? The outcome is although it's going to be appealed, at least for the time being, the Oregon law has been partially stopped thanks to the actions of a state court judge. The federal court ruling is currently also as a note pending on appeal in the Ninth Circuit Court of appeals. So we've got two different ways, two different vectors for the Oregon law in which way it's going to go. One of these sorts of laws, whether it's Oregon, whether it's Illinois, whether it's potentially Maryland that we're going to be getting to next one of these could be another one going to the US Supreme Court.
Maryland
So guys, before we change to Maryland, don't forget that free giveaways going on right now. Also, if you've not already done so, let me know that you like this sort of video. I'm doing two laws at the same time, a little unusual for us. So I want your feedback the description box below, and be sure to hit that like button as well. Let's talk about Maryland and I've got a little bit more on this one here. So this one is the case called Maryland Shell Issue versus More. And as mentioned before, this one's brought to you by the Firearms Policy Coalition. The other one was brought to you by Gun Owners of America. So FPC Firearms Policy Coalition initially lost this in the federal district court. That's the trial court level for federal court where lawsuits almost always start very rare that you have the Supreme Court taking original jurisdiction or something like that.
Federal trial court
They lost in the federal trial court. They appealed it to the Fourth Circuit Court of appeals. Recall that there are 13 federal circuit courts of appeals and the one coming for Maryland is based out of Virginia and it's called the Fourth Circuit Court. And in a two to one ruling, the fourth Circuit court of appeals ruled that Maryland cannot add more regulations for acquiring handguns than other weapons. So the court ruled that the law is unenforceable following the bru decision from June of 2022. For those of you wanting me to do a video summarizing the bru decision, and that's B-R-U-E-N. For those of you mowing your lawn, let me know by dropping a like on the video and also commenting below. I've been working on this, but frankly I kind of do things that I think you guys want to see. So you're steering the ship when you post comments and all that kind of stuff.
Handgun qualification license
You absolutely are. What's the law that we're talking about here? So for handguns specifically, you must obtain a handgun qualification license in order to purchase. So that's a precursor. It's a prerequisite in order to purchase a handgun. Getting that license requires, among other things, submitting fingerprints to undergo a background investigation. So basically a background check, a four hour long firearm safety training course in which you must fire at least one live round. Then after submitting your application for this extra license, you must wait up to 30 days for approval before you can then start the rest of the process. You must also comply with Maryland's 77 R registration process, which requires you to fill out an application with certain identified information and then wait seven days while you're trying to purchase a handgun while the state performs an additional background check. And then if you want to carry your handgun, which of course has now been guaranteed under the second Amendment by the US Supreme Court, recognizing that preexisting right, then you need to go out and get a separate carry permit to do that too, which I'm just going to hazard a guess.
license to purchase
More fees, more weights, more background checks. This lawsuit is specifically aimed at stopping the state from the initial handgun license only. So of our three layers, license to purchase the background check for purchasing and then that delay period and then the license to carry, we're talking about the first one. So why did they lose in the district court and win here? Well, Bruin is the one clear answer. You see, the case was actually filed pre-run and the case was decided by the district court pre-run, and we have different legal tests pre-run. The court would've used what's basically known as a two-step interest balancing test when weighing the constitutionality of a Second Amendment related law, at least in the fourth circuit, the court first would've asked whether a challenged regulation we're talking about a law here burdened conduct protected by the Second Amendment. If it did, then the court would assess the regulations constitutionality using a means and scrutiny.
Firearm laws fall and perish
Yet the Supreme Court held in Bruin that this approach was one step too many. So long story short, no intermediate scrutiny, no means end scrutiny, none of these kind of made up. Well, they are a hundred percent made up, but none of these, how high is the wall to protect the Second Amendment? That was the world pre brun. The US Supreme Court threw that out in June of 2022. And as a result, because of the new tests that came up, we have seen more firearm laws fall and perish just in the second half of 2022 than in the rest of the entire history of the United States. So guys, listen up, because this test is super important in its place. The courts supplied an analysis centered on the Second Amendment's text and history. And again, I'm not going to go super high detail. This is low resolution.
If you want high detail, let me know. In the common field, the court explained that when the Second amendment's plain text covers an individual conduct, the constitution presumptively protects that conduct. At that point, the challenge regulation is unconstitutional, unless the government can show that the regulation is consistent with the nation's historical tradition of firearm regulation, only then may a court conclude that the individual's conduct falls outside the Second Amendment's unqualified command. Most of that wording comes directly from the US Supreme Court that I just gave you right there. Does it mean in English step one, is the conduct protected by the Second Amendment trying to purchase a firearm, trying to purchase a handgun? Absolutely, yes. Yes. Then the needle immediately swings to, okay, the government bears the burden of proof is showing how this is legal. So it's illegal unless the government can meet their burden.
That's the way that this works. So step one, the plaintiffs are part of the people in the phrase the right of the people to keep and bear arms choppy, infringe. Remember that from the Second Amendment. So who are the people? Great question, and we've seen this come up a lot. We've seen this come up here again, the Supreme Court has given some guidance already, but expect a dissertation when the Supreme Court rules on a case that they have already heard oral arguments for as part of one of three Second Amendment cases that they have accepted this year alone. This one we're talking about us versus Rahimi, which is going to be striking to the heart of the issue of who are the people? Can the people be felons? Can the people be someone convicted of a misdemeanor crime of domestic violence? Enjoined by a domestic abuse injunction are the people, adults between the ages of 18 and 21, who presently thanks to the Gun Control Act in 1968, cannot purchase handguns from an FFL.
Second Amendment
Who are the people? I've already covered this extensively in another video, so I'll leave it there and move on. But for now, the Supreme Court in Bruin did note that the people whom the Second Amendment protects includes at a minimum ordinary law abiding adult citizens. Again at a minimum. So they didn't put the upper threshold. They definitely put one threshold though saying at a minimum this is who they protect, where those fine lines are drawn. I think we may soon find out a lot more. The Supreme Court also has held that the plain text of the Second Amendment extends prima fascia. That means on its face, on its surface at first glance to all instruments that constitute bearable arms. The Supreme Court has further held that the specific weapons here, namely handguns, are protected arms as a result. The fourth Circuit sums it up rather nicely that when it comes to whether the plaintiffs in this particular lawsuit are protected by the Second Amendment when they want to purchase a handgun.
So there appears to be little room for debate on this score. That's the court's fancy way of saying, heck yes, there protected. It's a family show. Heck, there are a few technical points that the court also gets into like the fact that while the law does not interfere with the right to keep and bear arms since it only regulates the purchase, renting and transfer, that it is still a precursor, a necessary first step to keep and bear arms. This was an argument that the government can try to trott out, Hey, we're not interfering with someone's right to keep and bear arms. This strictly deals with their purchasing the arms. Once they have the arms, that's the keeping and bearing part and this doesn't deal with that. You see the little sleigh of hands that the government likes to pull there. The court basically says, yeah, you are absolutely interfering with someone's right to keep and bear arms if you stop them or delay them from acquiring those arms.
Second, and kind of related to this, the government also then goes on to say, look, this is not permanent. You have about a month or so delay in order to go through this. And it's all based on objective criteria, all arguably in compliance with both the Heller and the Bruin Supreme Court decisions. But the court points out that while the law may not permanently stop Maryland resident from getting firearms, it does stop them from getting a gun now, and that is enough once more. The big issues is whether there are historical analogs per the bru decision of similar laws from the nation's tradition. The biggest one that Maryland comes up with is the fact that there are laws that prohibit dangerous people from possessing firearms. But that is not the same thing as this law. The court points out this law prohibits everyone from possessing firearms unless they jump through hoops and not only prohibits dangerous people, it prohibits everyone.
Prohibits everybody
So this is not a law aimed at prohibiting, for instance, violent felons or something like that. This is something that prohibits everybody. Maryland also tries to use that there are militia laws that have been on the books over the years and generations past that require members to drill to train with their weapons. True, but they did not require that you do so to obtain and keep those weapons. The court wants more points out. Those are two very different things, and accordingly, these militia type training laws imposed no burden on the right to keep and bear arms. And by the way, I've done a ton of research into these militia laws, so if you want to see me, UNC Cork a video on that, it's on the back burner. I frankly don't know how popular it may or may not be, but as usual, let me know in the common field below.
But in nutshell, that's it. You'll find some links in the description box below to this. Don't forget about the free giveaway going on right now. Again, very real. Let's get to our ever popular quote of the day. This one comes from noted Greek philosopher Plato, the life that is unexamined is not worth living. It was only a matter of time until I broke that one out. Right guys, thanks for sticking around this long. I will see you in the next one as well as in the common field discussion. Take care. Thanks for sticking around to the end of the video. If you enjoyed this one, please feel free to check out some of our other great content and we'll see you in the next one.
Also read, Getting the Maryland Wear & Carry Permit by Bobcat Arts