Miller v. Bonta 9th Ckt "assault weapons": Held for Duncan result 1-26-24

[BobB35]

Plaintiffs have the burden of proving that the conduct/firearm etc falls within the scope of the Second Amendment, thus establishing that the conduct etc. is lawful. The burden then shifts to the government to demonstrate that THT permits the challenged restriction.

Which they did for the 1st and the judge admits it. And then the state doesn't for the 2nd yet the judge says interest balancing rules and Self Defense

[BobB35]

This posting shows a considerable mis-understanding of the NYSRPA case, as well as the burden of proof in civil cases.

There is nothing in the NYSRPA case that shifts the burden of proof to the state to show that a statute is unconstitutional. It remains the burden of the Plaintiff to make that showing. Long ago, the U.S. Supreme Court held that statutes are presumed to be constitutional and that it's the Plaintiff that must show otherwise. Please refer to Brown v Maryland.

What the NYSRPA case did accomplish, was to change the ground rules for argument away from "Interest Balancing" and to "Text as Informed by History."

The state has no duty to prove the Plaintiff wrong. The Plaintiff has to overcome the presumption of constitutionality of the statute being challenged.

I'm not sure if this a typo or not. This again goes to being able to proving a negative.
1!. A law is passed.
2. The plaintiff sues and says...this law you just passed violates the constitution because we can find nothing in the THT at the time of the founding that is anywhere close to this.

Since nothing exists there is nothing for the plaintiff to prove...trying to prove that beyond stating it is proving a negative.

So now where does the burden lay? with the plaintiff or the defendant? The defendant needs to produce the proof there is THT that there was a body of law around the founding that supports the current law. It is not the burden of the plaintiff to say that no such body of law exists.

If that is the requirement, then these cases will go nowhere and judges will just make **** up.

I will say this, this THT test could fundamentally change some constitutional law. The assumption of constitutionality of laws is one are that I think will be revisited (Just like Chevron) for the reasons I laid out above.

If I am wrong, how would you argue that something is unconstitutional and base it on things that don't exist? I'm truly curious what approach would be used.

The CA cases all used the method I outlined, and the states responses failed in all of them to provide analogues in the THT at the founding era.

[SpudmanWP]

The burden is on the plaintiff, the state has to defend against allegations. Bruen limits *how* the state can defend, but it doesn't change *who* has to establish what.

That's not how Constitutional law works. Normal Civil Lawsuits are rules on using "preponderance of the evidence" but Constitutional suits are not.

Bruen & Heller were very clear that the Government has the burden of proof, not the plaintiff.

Under Heller, when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.

...

Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

...

Moreover, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” id., at 592, and confrontation can surely take place outside the home.

(2) The burden then falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation.

The only thing that the Plaintiff "has" to do is prove that their conduct falls under the plain text of the 2nd. After that, they can certainly pick apart the Government's attempt to show a traditional historical analog, but they are not required to. This is similar to a Criminal case where it's up to the Prosecutor to prove their case and not the Defense's job to prove their innocense.

[RickD427]

I'm not sure if this a typo or not. This again goes to being able to proving a negative.
1!. A law is passed.
2. The plaintiff sues and says...this law you just passed violates the constitution because we can find nothing in the THT at the time of the founding that is anywhere close to this.

Since nothing exists there is nothing for the plaintiff to prove...trying to prove that beyond stating it is proving a negative.

So now where does the burden lay? with the plaintiff or the defendant? The defendant needs to produce the proof there is THT that there was a body of law around the founding that supports the current law. It is not the burden of the plaintiff to say that no such body of law exists.

If that is the requirement, then these cases will go nowhere and judges will just make **** up.

Bob,

You're right, I did a typo. I shoulda said that there was nothing in NYSRPA that shifted the burden to the state to prove that the statute is constitutional.

In civil cases, the general rule is that a plaintiff has the burden to prove their case to a preponderance of the evidence standard. There are some specific types of lawsuits where case law has imposed a "Burden Shifting" requirement where the defendant bears the burden of proof, but those all require the plaintiff to make a preliminary showing. My point is that there are no cases that have specifically imposed such "Burden Shifting" on Second Amendment cases.

There is no issue of the plaintiff having to prove a negative. All the plaintiff has to do is show that Second Amendment establishes a right (and in the case of state statutes, that the right has been incorporated). That's pretty easily done through Heller and McDonald. It's long been understood that no right is absolute. The question then is whether the statute being tried unreasonably imposes on that right.

Prior to NYSRPA, many government defendants have successfully demonstrated that their statutes did not unreasonably interfere with that right under various forms of "Interest Balancing" tests (Intermediate Scrutiny and Strict Scrutiny).

NYSRPA did not alter the burden of proof. It eliminated the ability of defendants to successfully argue "Interest Balancing" and instead mandated lower courts to apply the "Text as Informed by History" test to determine if the right is unreasonably interfered with.

In the Post-NYSRPA judicial world, the Plaintiff still has to show infringement of a right and that the infringement is not reasonable in order to win a case.

There is no "nothing to prove" quandary as you suggest. The plaintiff simply shows that there is no prior history of cases meeting the "Text as Informed by History" criteria. The defense is free to argue otherwise. The Appellate Court will decide who wins.

[ritter]

In the Post-NYSRPA judicial world, the Plaintiff still has to show infringement of a right and that the infringement is not reasonable in order to win a case.

So, a proper showing with AWB (to see if I've got this right): Plaintiff claims AWB is unconstitutional. It bans a firearm in common use for lawful purposes. Plaintiff provides some numbers >than 200,000 stun guns SCOTUS already found to be in common use. Burden of proof met.

Now state is up and must defend AWB with THT, except there isn't any, so BS is applied and likely swallowed by judge.

Did I do that right?

This is a fascinating discussion. Obviously, IANAL.

[IVC]

The only thing that the Plaintiff "has" to do is prove that their conduct falls under the plain text of the 2nd. After that, they can certainly pick apart the Government's attempt to show a traditional historical analog, but they are not required to. This is similar to a Criminal case where it's up to the Prosecutor to prove their case and not the Defense's job to prove their innocense.

Proving protection under "plain text" still leaves room for permissible regulation. That's where the new required standard to justify the permissible regulation is THT instead of previously-used interest balancing. And the plaintiff pretty much *must* pick apart the government's argument, otherwise the government will prevail claiming that they have fulfilled the THT requirement for permissible regulation.

[IVC]

Now state is up and must defend AWB with THT, except there isn't any, so BS is applied and likely swallowed by judge.

Except for the "swallowed by the judge" part, yes.

Some judges might try to defy SCOTUS, but it usually doesn't end well. Inventing THT leaves very little room for maneuvering, certainly nothing like interest balancing did - we lost all cases under the standard we mockingly called "rational basis disguised as intermediate scrutiny." With THT, it's not enough to find a few outliers, it must be something that was prevalent at the time.

[RickD427]

So, a proper showing with AWB (to see if I've got this right): Plaintiff claims AWB is unconstitutional. It bans a firearm in common use for lawful purposes. Plaintiff provides some numbers >than 200,000 stun guns SCOTUS already found to be in common use. Burden of proof met.

Now state is up and must defend AWB with THT, except there isn't any, so BS is applied and likely swallowed by judge.

Did I do that right?

This is a fascinating discussion. Obviously, IANAL.

Except for the "swallowed by the judge" part, yes.

Some judges might try to defy SCOTUS, but it usually doesn't end well. Inventing THT leaves very little room for maneuvering, certainly nothing like interest balancing did - we lost all cases under the standard we mockingly called "rational basis disguised as intermediate scrutiny." With THT, it's not enough to find a few outliers, it must be something that was prevalent at the time.

Mr. "IVC" beat me to the punch and he is quite correct.

[ritter]

Mr. "IVC" beat me to the punch and he is quite correct.

Thanks to you both.

Seems there has been some swallowing already, though. CA2 did it with NY's carry case with the stay. The Delaware case that started this discussion is another. CA9 seems to have at least started the swallow process with the Boland stay (how do you justify a stay without at least a little swallowing? Likelihood of success for the state under Bruen is 0 and damage to the state is also 0).

None of that is an argument with either of you. It just seems ridiculous that an injunction can be stayed under Breun. And without the injunctions, we're right back to chasing this stuff up to SCOTUS over 10 years. Frustrating.

[BobB35]

Bob,

You're right, I did a typo. I shoulda said that there was nothing in NYSRPA that shifted the burden to the state to prove that the statute is constitutional.

In civil cases, the general rule is that a plaintiff has the burden to prove their case to a preponderance of the evidence standard. There are some specific types of lawsuits where case law has imposed a "Burden Shifting" requirement where the defendant bears the burden of proof, but those all require the plaintiff to make a preliminary showing. My point is that there are no cases that have specifically imposed such "Burden Shifting" on Second Amendment cases.

There is no issue of the plaintiff having to prove a negative. All the plaintiff has to do is show that Second Amendment establishes a right (and in the case of state statutes, that the right has been incorporated). That's pretty easily done through Heller and McDonald. It's long been understood that no right is absolute. The question then is whether the statute being tried unreasonably imposes on that right.

Prior to NYSRPA, many government defendants have successfully demonstrated that their statutes did not unreasonably interfere with that right under various forms of "Interest Balancing" tests (Intermediate Scrutiny and Strict Scrutiny).

NYSRPA did not alter the burden of proof. It eliminated the ability of defendants to successfully argue "Interest Balancing" and instead mandated lower courts to apply the "Text as Informed by History" test to determine if the right is unreasonably interfered with.

In the Post-NYSRPA judicial world, the Plaintiff still has to show infringement of a right and that the infringement is not reasonable in order to win a case.

There is no "nothing to prove" quandary as you suggest. The plaintiff simply shows that there is no prior history of cases meeting the "Text as Informed by History" criteria. The defense is free to argue otherwise. The Appellate Court will decide who wins.

I think we may be saying the same thing and arguing over specific terms. The infringement of the right is in the applied TEXT and Heller and Bruens defined legal context. Then what I would call the burden of proof falls on the defendant to argue otherwise by showing THT analogous laws.

In the case we are referring to, did the plaintiff not show infringement on commonly used arms? I believe the judge said yes.

Then the state doesn't point to THT analogies, instead the judge does interest balancing and the in use for self defense shuffle to deny the PI. The state uses broad statements about Assault long gun lethality and then comments about Bowie knives and billy club restriction as well as the 1934 NFA to justify their ban. The judge buy all of this to deny the PI. So what is the argument to be made when the judge uses non-analogous laws and 20th century law outside the scope of the founding era. This was a judge who had a predetermined conclusion and made **** up to fit that conclusion. Is this the legal system? It wouldn't have mattered what the plaintiffs did or did not do with this judge.

Quote from the Judge

Second, the burden imposed by both sets of regulations is "comparably justified." The
modem regulations at issue, like the historical regulations discussed by Defendants, were enacted
in response to pressing public safety concerns regarding weapons determined to be dangerous. HB
450 and SS 1 for SB 6 responded to a recent rise in mass shooting incidents, the connection
between those incidents and assault weapons and LCMs, and the destructive nature of those
weapons. See HB 450. Plaintiffs argue that these concerns are improper for me to consider, as they
"implicate the sort of interest-balancing, means-end analysis" that the Supreme Court instructed
lower courts not to undertake. (D.I. 44 at 8). I disagree. Although the Bruen Court rejected means-
27
Case 1:22-cv-00951-RGA Document 58 Filed 03/27/23 Page 27 of 31 PageID #: 2718
ends scrutiny, it nevertheless advised lower courts to, in determining whether modem and
historical regulations are "relevantly similar," consider "how and why the regulations burden a
law-abiding citizen' s right to self-defense." 142 S. Ct. at 2 132-33 (emphasis added). See Oregon
Firearms Fed 'n, Inc. v. Brown, 2022 WL 1745829, at *14 (D. Or. Dec. 6, 2022) (" In considering
whether Defendants are comparatively justified in imposing Measure 114 as were this Nation' s
earlier legislatures in imposing historical regulations, this Court finds that it may consider the
public safety concerns of today."), appeal voluntarily dismissed, No. 22-36011 (9th Cir. Dec. 12 ,
2022). 16 Accordingly, I find that Defendants are comparably justified in regulating assault long
guns and LCMs "to ensure the safety of Delawareans." HB 450.

So according to this judge...the THT of the founding don't mean anything for "safety" reasons


Where is this going wrong?

I ask again...given what you said above, what more could the plaintiffs in the Delaware case do to argue their case that the judge says they didn't do?

[sbo80]

Seems there has been some swallowing already, though. CA2 did it with NY's carry case with the stay...

However, the mess about injunctions and stays, aren't actually rulings on the merits of the case and decisions about how it will end. It's more just procedural fussing over what to do, while the actual case works its way through. The arguments for/against stays, are not the same arguments over the law in question itself, even if there's overlap.

[TruOil]

What the judge is saying is that he may consider "public safety concerns of today" in determining the constitutionality of a restriction--and thus completely skips over the THT analysis, noticeably failing to reference and comparable restrictions from the applicable historical period. The judge finds support from the federal trail court decision in the Oregon case that denied a PI where the judge imposed the burden of proof on the plaintiffs. Basically what he is saying is that if there are prior laws where restrictions were imposed for public safety concerns (e.g., the laws banning concealed carry or banning "dangerous and unusual" weapons), he may consider modern concerns that ARs are a danger to public safety.

[Chewy65]

Bob,

You're right, I did a typo. I shoulda said that there was nothing in NYSRPA that shifted the burden to the state to prove that the statute is constitutional.

In civil cases, the general rule is that a plaintiff has the burden to prove their case to a preponderance of the evidence standard. There are some specific types of lawsuits where case law has imposed a "Burden Shifting" requirement where the defendant bears the burden of proof, but those all require the plaintiff to make a preliminary showing. My point is that there are no cases that have specifically imposed such "Burden Shifting" on Second Amendment cases.

There is no issue of the plaintiff having to prove a negative. All the plaintiff has to do is show that Second Amendment establishes a right (and in the case of state statutes, that the right has been incorporated). That's pretty easily done through Heller and McDonald. It's long been understood that no right is absolute. The question then is whether the statute being tried unreasonably imposes on that right.

Prior to NYSRPA, many government defendants have successfully demonstrated that their statutes did not unreasonably interfere with that right under various forms of "Interest Balancing" tests (Intermediate Scrutiny and Strict Scrutiny).

NYSRPA did not alter the burden of proof. It eliminated the ability of defendants to successfully argue "Interest Balancing" and instead mandated lower courts to apply the "Text as Informed by History" test to determine if the right is unreasonably interfered with.

In the Post-NYSRPA judicial world, the Plaintiff still has to show infringement of a right and that the infringement is not reasonable in order to win a case.

There is no "nothing to prove" quandary as you suggest. The plaintiff simply shows that there is no prior history of cases meeting the "Text as Informed by History" criteria. The defense is free to argue otherwise. The Appellate Court will decide who wins.

Buen definitely alters the burden of proof. Though the plaintiff begins bearing the burden, once plaintiff establishes that the regulated conduct is within the text of the 2A the regulation is presumed Unconstitutional. The presumption is not conclusive but it shifts the burden to the government to prove overcome the presumption by meeting the national historic tradition test.

The plaintiff need not show a lack of a National traditions at the relevant historic times. Should no evidence be admitted concerning the same or lack thereof, plaintiff wins due to the presumption. Of course, it doesn't hurt to prove the absence of the same.

[Chewy65]

What the judge is saying is that he may consider "public safety concerns of today" in determining the constitutionality of a restriction--and thus completely skips over the THT analysis, noticeably failing to reference and comparable restrictions from the applicable historical period. The judge finds support from the federal trail court decision in the Oregon case that denied a PI where the judge imposed the burden of proof on the plaintiffs. Basically what he is saying is that if there are prior laws where restrictions were imposed for public safety concerns (e.g., the laws banning concealed carry or banning "dangerous and unusual" weapons), he may consider modern concerns that ARs are a danger to public safety.

Those laws need not be indentical, but they must be analagous. Both a law outlawing the carrying of guns Wyatt Earp's Dodge City and a modern speed law regulating traffic in a school zone are public safety laws, but they are otherwise not much analagous.

[ritter]

However, the mess about injunctions and stays, aren't actually rulings on the merits of the case and decisions about how it will end. It's more just procedural fussing over what to do, while the actual case works its way through. The arguments for/against stays, are not the same arguments over the law in question itself, even if there's overlap.

Understood. But CA9 has precedent saying along the lines that a day of constitutional infringement is too long. So how could they square that with a stay, even if there's a possibility the district court is correct?