Heller/Bruen Methodology per Mark Smith: do NOT say "Text, History, & Tradition"

[Silence Dogood]

This morning, Four Boxes Diner uploaded a video 2A SCOTUS "SENSITIVE PLACES" PREVIEW: ACTUAL VIDEO HERE OF POWERFUL ARGUMENTS AGAINST CARRY BANS which is in and of itself enjoyable as a highlight reel of some of the better arguments we heard in the 9CA last week.

https://www.youtube.com/watch?v=AXbeZOK05hs

Perhaps more importantly, at 13:27 Mark Smith starts an 80+ second nutnfancy-worthy rant advocating for precise language when describing the Heller/Bruen Methodology. Someone commented on this note on X and Mark followed up with this following tweet which puts the rant into words:

https://x.com/fourboxesdiner/status/1779311756977819925

#2A Correct. Going forward do NOT say "text, history and tradition." Instead describe the Heller/Bruen methodology of interpreting 2A as follows:
the Heller/Bruen interpretive methodology is "text first, and then historical tradition second." Remind all that the government bears the burden at the "historical tradition" level of the 2A analysis.
And, then note that the "historical tradition of firearms regulation" in the US is actually a "historical tradition" of NO OR MINIMAL FIREARMS REGULATION going back to before the 1791 ratification of the Second Amendment.
Note: by stating "text, history and tradition", we are creating the FALSE IMPRESSION that the anti-gunners can win by proving EITHER a history of gun control or a tradition of gun control. I know this is a fine distinction but these distinctions matter when you are fighting for civil rights.

[IronsightsRifleman]

It doesn't really matter. Everyone on the Right and Left whose actually read those SCOTUS decisions knows exactly what they say and mean. And the Left will continue to lie about it, regardless of how you care to summarize it.

[Silence Dogood]

You are probably correct though I can appreciate the benefits that precision in language can confer.

[Silence Dogood]

It continues. . .

For those CalGunners who will not click links or go on X, someone else responded to him:

I prefer "text as informed by historical tradition," since it emphasizes that the text is what matters; we're only using the historical tradition to understand what the text meant to those who adopted it.

which is verbiage Mark seems to really not approve of:

https://x.com/fourboxesdiner/status/1779332808734818614

#2A No. That phrasing is very, very, very bad for 2A. You are inadvertently (and erroneously) helping out the anti-gunners.
Remember, 2A advocates bear the burden at the initial TEXTUAL prong of the Heller/Bruen methodology to show that a modern gun control law implicates the 2A's text. SCOTUS has already defined each word in 2A's when they decided Heller... except for "infringed," which is not a big deal because it was well understood at the Founding that "to infringe" means to "hinder or destroy." Therefore, for a 2A advocate, it is very easy to establish TEXTUALLY that a modern-day gun control law "hinders" (i.e., "infringes" upon) the "right to keep and bear arms."
Next, once the 2A text has been implicated by a modern gun control law, the BURDEN SHIFTS TO THE GOVERNMENT TO DEMONSTRATE that the modern gun control law is part of a well-understood and long-standing tradition of a particular type of firearms regulation going back to our Founding 1791 (Think: you could not assert a 2A right to commit cold-blooded murder in 1791 through today; thus, a modern law banning murder with a firearm in 2024 would NOT violate 2A's right to keep and bear arms because of the longstanding historical tradition going back to 1791 that 2A is not about protecting a right to commit cold-blooded murder). If the government fails, they lose and the gun control law is declared invalid and unenforceable.
Keep in mind that it is at the second prong of the Heller/Bruen methodology (i.e., the "historical tradition of firearm regulations" prong) that the government bears the burden and, frankly, in an honest world the government should fail to satisfy this burden in almost all 2A cases.
Accordingly, it is mission critical that the BURDEN BE SHIFTED to the government BEFORE history (i.e., the search for a historical tradition of actual gun control laws on the books) is consulted.
By virtue of your language about "text as informed by historical tradition", you are strongly implying that the "text prong" is blended with the "historical tradition" prong... but to do so means that the burden never shifts to the government to justify their modern gun control laws. In other words, you are helping the anti-gunners avoid having the burden shifted to them, which is bad for 2A.
NOTE: the anti-gunners are already trying to elevate all 2A fights to the textual prong in order to AVOID having the burden shifted to them to come forward with historical analogue laws to justify their gun control laws. One example of this anti-gunner game is how they try to elevate the "in common use" constitutional test in arms ban cases to the "textual" prong in order to narrow the scope of what an "arms" means textually; by elevating the "in common use" issue to the textual prong, the anti-gunners want to force 2A advocates to bear the burden of proving that an AR-15 or magazine is "in common use" by Americans for lawful purposes. This is legally wrong and backwards.
Under Heller/Bruen, the proper interpretative approach to an arms ban case starts with the fact that a legal ban implicates the text of 2A (it does so because if government bans an arm, you can neither keep nor bear it).
Once the 2A text is implicated by the gun ban law, this immediately shifts the burden to the government to satisfy its historical burden. In an arms ban case, the "in common use" test arises at the historical tradition prong and, thus, the government must demonstrate that AR-15s and magazines holding over 10 rounds are NOT "in common use," which the government can never demonstrate given that there are 10s of millions of AR-platform rifles and 100s of millions of magazines capable of holding over 10 rounds.
There are other examples of the anti-gunners trying to elevate the "historical" work to the textual level but I think you get the point.

[AlmostHeaven]

It continues. . .

For those CalGunners who will not click links or go on X, someone else responded to him:

which is verbiage Mark seems to really not approve of:
https://x.com/fourboxesdiner/status/1779332808734818614

The die has already been cast. None of the liberal-controlled lower courts will reevaluate their preconceived notions based on the precision of the wording used by Second Amendment advocates. Only the Supreme Court can end the alternative interpretations of the Bruen methodology used to uphold gun control laws.

[Silence Dogood]

We've seen leftist judges consistently abuse precedent since Heller if not further back so yes, there needs to be a reckoning and yes, another SCOTUS decision will hopefully bring it. Precise, unified understanding across the community of 2A advocates of the best way to interpret SCOTUS precedent is important in the court of public opinion nonetheless and it is important should one of our cases happen to find a democrat appointed judge who is not a leftist shill.

After I set this down last night, Mark Smith continued in response to a comment incorrectly stating where and by whom the "in common use test" ought to be applied:

https://x.com/fourboxesdiner/status/1779343633642062210

#2A. Sleep soundly. You are wrong. The “in common use” test is derived from the historical analogue prong and thus the government bears the burden of showing an AR or mag is NOT in common use by Americans for lawful purposes. The “ in common use” test arises from Heller’s analysis of historical analogue laws. Heller look at the founding era militia laws re the colonists had to bring arms in common use at the time to militia musters. And SCOTUS also looked at historical laws re the banning of the carrying of weapons that were “dangerous and unusual” at the time; thus an arm “in common use” cannot be “dangerous and unusual” since it is not unusual.

[Rickybillegas]

There is a strong presumption in the Lower courts (both district and appellate) that the burden is on appellants to prove their case against government interests. Or in other words, government interests are given the benefit of the doubt, not the text of the 2nd amendment.

THIS is what we are up against.

[AlmostHeaven]

There is a strong presumption in the Lower courts (both district and appellate) that the burden is on appellants to prove their case against government interests. Or in other words, government interests are given the benefit of the doubt, not the text of the 2nd amendment.

THIS is what we are up against.

Civilian disarmament proponents absolutely do not want to recognize the presumptive unconstitutionality of gun control laws and shift the burden to governments to prove their adherence to Supreme Court Second Amendment jurisprudence.

[guntrust]

This morning, Four Boxes Diner uploaded a video 2A SCOTUS "SENSITIVE PLACES" PREVIEW: ACTUAL VIDEO HERE OF POWERFUL ARGUMENTS AGAINST CARRY BANS which is in and of itself enjoyable as a highlight reel of some of the better arguments we heard in the 9CA last week.

https://www.youtube.com/watch?v=AXbeZOK05hs

Perhaps more importantly, at 13:27 Mark Smith starts an 80+ second nutnfancy-worthy rant advocating for precise language when describing the Heller/Bruen Methodology. Someone commented on this note on X and Mark followed up with this following tweet which puts the rant into words:

https://x.com/fourboxesdiner/status/1779311756977819925

national historical tradition

[AlmostHeaven]

Anti-gun scholars have produced a massive quantity of academic material over the past 1.5 years advancing the idea that "legislative silence" does not rebut the United States having a robust tradition of firearm regulations. Left-leaning judges have dutifully integrated this thinking. The Supreme Court needs to vastly strengthen Bruen with a new landmark majority opinion.