Hello again everyone. Welcome to Washington Gun Law tv. I am Washington Gun Law President William Kirk. Thanks for joining us. Hey, we're going to talk about a ruling that came out today, the day I'm recording. This is October 29th. Hopefully you'll see it either that day or on the 30th. But for those of you who thought that Rahimi was not a big deal and even I said, Hey, I think they got the ruling right, however, and the big however is there was way, way too much problematic language in there and it was going to ultimately come back and bite us in many ways. I was kind of alone on an island was saying that, hey, the problem is not the ruling. The problem is all the extra language in there and many kind of scoffed at me and well, maybe at the time I deserved it, however I told you so, and I'm going to give you an example of it today. It's about the magazine Band Challenge out in the District of Columbia, and you're going to see exactly how a court can take the language in Rahimi and just beat us over the head, which makes this the most dangerous ruling you'll read all year.
Okay, America, the case we're talking about today is Hansen versus District of Columbia. This is a now twice unsuccessful challenge to the district. Columbia's Magazine ban capping magazine limits at 10 rounds. The reason this is so dangerous is unlike all of the ridiculous escape hatch arguments that most courts rely upon just to never get to the meat of the matter, the Second Amendment doesn't imply more appropriate for military use or all that. No, no. Rather here, the court here actually takes it all head on and they take it head on in a pretty intellectual fashion. But what they ultimately do then is they, well, they use rahimi and you're going to see how they can use Rahimi for just about anything. And this literally provides them with a roadmap of how you can uphold gun controlled legislation thanks to the language that was left in Rahini.
This means that all your liberals leaning judges will certainly have a roadmap. And let's not forget that we've already identified several conservative judges who are candidly just not real good on these issues. And for that reason, if they politically believe that striking down gun control legislation is bad for them from a political standpoint, this will provide 'em with a perfect playbook on how to uphold gun controlled legislation like magazine bans and also assault weapon bans. Now, it's a very deceiving opinion to read because when we first start off, we realized that the court here actually wants to call any magazine which holds more than 10 rounds lcms, and I was like, what the heck is an ELCM? Well, that's an extra large capacity magazine. So that kind of tells you right away where the court is going, but then they kind of zig rather than zag on you because they start taking many of the really ridiculous arguments such as these magazines are in arms.
No, the court readily says, no, no, all the ancillary rights necessary to the exercise of the fundamental right are equally as protected. So they don't buy on that argument. They don't buy off on maybe in common use, but in what geographical area? Yeah, because the court realizes we're talking about a constitutional right, so the geographical area would be the entire United States, and there is no doubt that large capacity magazines are, in this case, extra large capacity magazines are in fact being used commonly throughout the United States. It's about what's in common use for self-defense, not just the numbers. The court actually didn't buy off on that argument either. Okay? However, you'll see later on they did water it down a little bit. These are more appropriate for military use. Oh yeah, that is one that is commonly used, but the court did not even buy off on that.
So therefore, the typical arguments that the second Amendment is not even in play is not where the court went. As a matter of fact, the court ruled accordingly because Hanson has shown it is likely that extra large capacity magazines are arms and are in common use for self-defense. Today. It appears on this record that the Second Amendment plain text covers and therefore presumptively protects the possession of lcms. Well, this is the first place that the court parts, because candidly, if a firearm is in common use for any lawful purpose, including self-defense, and here they have found that it is in common use for self-defense, that should in fact be the end of the inquiry. But the court decides that even though we have kind of reached the endpoint, no, the government is still allowed to justify this through historical analogs. Okay, so then a lot of you are sitting there going, alright, well if we're getting into the history, then how could this ban possibly be upheld?
Well, let me remind you something that is that the Rahimi case says, well, you don't really need to have a dead bringer. In fact, you don't even really need to be in the ballpark. You don't even really need to be in the parking lot next to the ballpark. You just need to be somewhere inside city limits of which there is a parking lot that happens to sit next to a ballpark. We think appropriate level of generalization is one that aligns the regulation in question with the how and why of the historical analog. As we explained in Bruin, the appropriate analysis involves considering whether the challenge regulation is consistent with the principles that underpin our regulatory tradition. But this is where a noun is going to start turning into a verb because what happened here is the plaintiffs got rahed. With this understanding in mind, we now turn to whether on this preliminary record, the district court has identified a relevantly similar historical analog for its magazine cap as explained in greater detail below, we apply the nuanced approach under Bruin to this inquiry.
What does that mean? Well, what it means is it just takes all the bumpers off of it, all the guardrails off of it, and now we just need to be kind of close or as the court put it here, our inquiry turns upon whether the district court can identify a historical regulation that restricts the possession of an arm based on a justification similar for the magazine cap, namely to respond to a growing use of LCMS to facilitate crime and specifically to perpetrate mass shootings. Okay, so then let's go through the normal historical analogs that the government has cited time and time and time again, right? Like gunpowder, did the court buy on that? Was that relevantly similar? No time, place and manner restrictions, the sensitive places, the gun-free zones, all of that. Was that relevantly similar? No prohibition error regulations about consuming alcohol, places that serve alcohol, all of that other stuff, all the other types of prohibition error regulations that came through.
Was that relevantly similar? No restrictions of weapons, particularly capable of unprecedented lethality. Yeah, the Bowie knife. And what the court is basically saying is, is listen, when you take a look at why we ban the Bowie knife and then you take a look at why we're banning high capacity magazines. And of course this would then equate to semi-automatic rifles or anything that states call assault weapons. Yeah, that is a relevantly similar historical analog. And what do they use in justification of it? Because again, if it has to only be relevantly similar, well, they go around and they find a case from 1859 from the state of Texas in which someone had challenged the regulation of Bowie knives there. And specifically the court in Texas way back in 1859 found the Bowie knife differs from guns or swords in its device and design. It is the instrument of almost certain death.
He who carries such a weapon for lawful defense as he may makes himself more dangerous to the rights of others considering the frailties of human nature that if he carried a less dangerous weapon. Now, I want you to think about that quote. I want you to think about that quote because that quote is going to be used time and time and time again. So that allows the court of appeals in DC to create the following rule. We emphasize that our identification of relevant historical tradition is based upon the regulation of weapons that are particularly capable of unprecedented lethality and not as the dissent would have it upon the regulation of Bowie knives specifically, nor is our conclusion based upon statutes. The dissent characterizes as not only too little but also too late. But if you think that's bad and it is, guess what? It gets way, way worse because using that Texas Bowie knife statute, the court comes to the conclusion that if long as we are trying to promote public safety, well the world is your oyster if you're a state legislature, a law which is intended to merely promote personal security and to put down lawless aggression and violence, and to that end inhibits the wearing of certain weapons in such a manner as is calculated to exert an unhappy influence upon the moral feelings of the by making him less regretful of personal security of others does not come in collision with the constitution state v Reed, an Alabama case from 1840 relevantly similar.
And then of course the court lays out a perfect little playbook, a perfect little roadmap about how these really are unprecedented concerns requiring something that is much more relevantly similar, using that more nuanced approach. For example, large capacity magazines have given rise to an unprecedented societal concern, mass shootings, and of course the technology argument, a nuanced approach is also appropriate for the analysis of historical analogs to the district's magazine cap because large capacity detachable magazines for semi-automatic handguns are a relatively modern invention. And listen, one of the other arguments that the court is making here is, listen, if we're talking about a modern instrument, we really don't have to go back and look at history, and here's why. We do not expect to find a historical tradition of regulating handguns with detachable magazines before ratification of the 14th amendment, much less ratification of the Second Amendment because there was no relevantly similar weapon in common use until the late 19th or early 20th century when the Maer C 96 semi-automatic pistol entered circulation.
That's right. Now, every single liberal leaning appellate court is become a firearm expert on the Maer C 96. So here's the problem is that despite the fact that we see a lot of these bans upheld on just absolutely ludicrous, absurd rulings, this is a case where the court has actually done a fairly intellectual job. Now, I completely disagree and think that the regulation of Boeing knives, which oftentimes only restricted the locations in which you could carry and not the actual possession, but I digress, are not relevantly similar, even under a more nuanced approach. This also begins to show why the United States Supreme Court absolutely positively has to accept now review of the Snope case because it is clear that Bruin is not getting these courts to the correct equation yet, and therefore the need to tighten it up, the need to clarify some of this oftentimes injected confusion essentially to shut up many of these stupid arguments has never been more necessary than it is now.
So that's why we very carefully need to watch that Maryland assault weapon ban case. Okay, the case once again is Hansen verse District of Columbia. We're going to link up the court's order down below so that you can geek out on it. Remember, this is just an appeal on our preliminary injunction. This does not get us the final arguments on the merit, but obviously things don't really look that well. If you got any questions about this or anything else related to what's left of your Second Amendment rights, you guys should know how to get ahold of Washington gun law by now. But if you don't, that's okay. That information is down in the description box. If you got an idea for a video that we should be doing around here, hey us all about it, click on that link right there and let us know. Might be better than anything we're going to come up with. If you want to subscribe to our monthly newsletter, the ability to do all of that is right down there in the description box. And then finally, and most importantly, America, let's remember the part of being the lawful and responsible gun owner, like we talk about all the time here, is to know what the law is in every situation, how it applies to you in any instance that you may find yourself. Until next time, thanks for watching and stay safe.
YouTube Video Link: https://www.youtube.com/watch?v=ppeVW4LbakU
Credit: William Kirk, Esq. Washington Gun Law