Hello again everyone. Welcome to Washington Gun Law tv. I'm Washington Gun Law President William Kirk. Thanks for joining us. Hey, we're going to circle back to the Cargill case again, the Bump stock case, the one that we got the big ruling out of the United States Supreme Court last week. Now we're going to focus on the dissenting opinion. Why? Well, because everyone else in the YouTube versus is getting all spun up about it and it really is over one sentence used by Justice Soda Maor. However, it may be a big deal. I'm going to give you all the stuff to think about. You get to decide how big of a deal is it really. So today, let's get you all educated. Let's really geek out and let's talk about does soda mayor's dissent really help gun owners?
Okay, America, this is what we're talking about. We're talking about Cargill v Garland. As we know, a successful challenge two ATFs ban on bump stocks. The decision was six three in favor of Cargill. The three liberal justices were the ones who dissented. The minority opinion is authored by Justice Soda Meor. Now, to give you an idea of how narrow the majority ruling was, it's 19 pages in length. The minority opinion, the dissenting opinion is 18 pages in length almost as long as the actual ruling. Justice Sotomayor spends 17 and a half of the 18 pages putting forth various arguments as to why the majority got their statutory interpretation wrong. We're not going to talk about that. It would bore you all to death. It would actually bore me to death do. However, in the first half page, what Justice Soda Mayor does is set up a terrible tale, the tale of the horrific mass shooting in Las Vegas that occurred during the big country Western concert right there on the strip, pointing out that the gunman allegedly used firearms that were equipped with bump stocks to carry out this horrific carnage.
Now, what's got everyone spun up is a sentence that she uses in describing what bump stocks were attached to, which is he did so by a fixing bump stocks to commonly available semi-automatic rifles. Okay, so according to justice, so these semi-automatic rifles or what some people call weapons of war and other states call assault weapons are actually commonly available. Okay? If they are commonly available and you understand simple economics of supply and demand, that means that they are commonly available because there must be a quite common demand for that, which means there must be a lot of them in circulation, all of which happens to be true, which means that the firearms are in common use. Why is that a big deal? Well, theoretically we can't ban firearms which are in common use. Why do we say that? We're going to get to that in a second.
Why is all of this important? Well, it's important because we sit on the precipice of potentially one of the biggest Second Amendment issues to get before the United States Supreme Court in a very, very long time, and that is assault weapon bans and high capacity magazine bans. Because remember, even though the United States Supreme Court has decided to pass on the Maryland case, there is multiple Illinois cases still sitting on petition before the Supreme Court. And candidly, I honestly believe that if they were going to reject those petitions, they would've done so already, which means we very well may have assault weapon bans and large capacity magazine bans before the United States Supreme Court as early as next session. That is huge. What will be the critical argument that will be made in support of overturning these laws? Well, it'll be the common use test. Now, let's geek out about the common use test because it is very important, but you need to understand the historical significance of that.
Now, a lot of people, and I say it all the time myself, always say the common use test has developed in District Columbia v Heller. Now that is the case that is most synonymous with the common use test. However, if you pull up the opinion and yes, we'll link it up down below so you can geek out and do this yourself and you do a word search, you're going to see that common use is only used three separate times in the opinion. And as a matter of fact, two of the three times when that terminology is used, it actually cites to a much earlier case called United States v Miller, United States V Miller goes all the way back to 1939. It had to do with a person who attempted to take a short barrel shotgun across state lines without having his NFA tax stamp. Got to remember, the NFA was only a couple years old at that time, okay?
So it's a constitutional challenge to components of the NFA an unsuccessful constitutional challenge. But Miller going all the way back to 1939 is the case that actually develops the common use test. It's the case that actually develops the dangerous and unusual rule because in trying to determine what types of firearms the Second Amendment did protect and what types of firearms could be heavily regulated, the Miller Court specifically stated, the signification attributed to the term militia appears from the debates in the convention, the history and legislation of colonies and states and the writings of approved commentators. These show plainly enough that the militia comprised all males physically capable of acting in concert for the common defense, a body of citizens enrolled for military discipline, and further that ordinarily when called for service, these men were expected to appear bearing arms supplied by themselves and the kind in common use at the time, which means that actually our founding fathers may have actually wanted citizens to be equipped with weapons of war for the exact purpose stated here in United States v Miller.
Now United States v Miller is then reinforced in District of Columbia v Heller, an attempted ban on handguns inside the District Columbia. That happens all the way fast forwarded to 2008. Now in 2008, when the court is trying to determine there what is the scope of Second Amendment protection, because, got to remember now what the arguments are is like, well, the Second Amendment only protects muskets, right? You've heard this one. There's still people who make this argument. In fact, if you live at all out on Twitter, you see this argument all the time. Heller was quick to point out. We think that Miller's ordinary military equipment language must be read in tandem with what comes after. Ordinarily when called for malicious service, able-bodied men were expected to appear bearing arms supplied by themselves and the kind and common use at the time the traditional militia was formed from a pool of men bearing arms and common use at the time for lawful purposes like self-defense.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that sorts of weapons protected were those in common use at the time. We think that limitation is fairly supported by the historical tradition or prohibiting the carrying of dangerous and unusual weapons. Okay? So right now it appears that the case law says, Hey, listen, if the weapons are in common use at the current time for lawful purposes, they simply can't be banned. And then again, we go back to what Justice Soto mayor said, and she appears to agree that at least these firearms are in common use. But then let us also remember that in 2016, Massachusetts ban on stun guns was challenged and went all the way to the United States Supreme Court in the case of Katano v Massachusetts. And there once again, the state of Massachusetts said, Hey, listen, the Second Amendment doesn't protect stun guns because stun guns didn't exist at all when the Second Amendment was ratified, which is true.
Neither did semi-automatic rifles. However, once again, the Supreme Court found that stun guns were in common use. And by the way, if you want to really determine the lawfulness of semi-automatic rifles, then compare the number of those in circulation to the minuscule number of stun guns that are actually in circulation. The Supreme Court made it very clear in Catano that the Second Amendment protects the types of arms that are bearable today for lawful purposes as they wrote, as the foregoing makes clear the pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law abiding citizens for lawful purposes today. Now, I can assure you that Justice Soda Mayar will say, I only said that they were commonly available. I never said that they were in common use. However, this is a massive admission by a justice who we know is politically prone to probably vote in favor of upholding any type of assault weapon ban.
Do I believe that this suddenly puts perhaps Justice Sotomayor in the camp of being willing to vote and throw out assault weapon bans? Of course not. Of course not. This is not how the highest court in the land works on either side. These are political appointments and their political appointments for a reason. Okay? Now listen, we could not ask for a better time to have the United States Supreme Court accept the assault weapon ban issue, so we are keeping our fingers crossed that any one of those four Illinois petitions are accepted. Listen, the cases that we geeked out on today, once again in chronological order, will be United States v Miller District, Columbia v Heller, and Katano v Massachusetts. We're going to link 'em all up down below so that you guys can geek out on it for yourself. Maybe you got ideas for videos that we should be doing here.
If you do, go ahead and clink on that link right there. Some of the best ideas we ever had weren't really our ideas to begin with. If you've got any questions about this or anything else related to what's left of our Second Amendment rights, all of our contact information is right down there in the description box. And then finally, and most importantly, let's everyone remember the part of being lawful and responsible gun owner, like we talk about all the time here, to know what the lie is in every situation, how it applies to you in any instance that you may find yourself. Until next time, thanks for watching. Stay Safe.
YouTube Video Link: https://www.youtube.com/watch?v=BUuKSKKCrPI
Credit: William Kirk, Esq. Washington Gun Law