Second Amendment Groups Urge SCOTUS to Hear Sailor's Appeal in Weapons Case

Adamiak's attorneys have argued that the weapons in question had been rendered inert and inoperable, but also raised a Second Amendment challenge to the government's case. As the amicus brief points out, though, the Fourth Circuit Court of Appeals didn't even address Admiak's 2A claims. Instead, the appellate court pointed to its decision in Bianchi v. Brown as foreclosing his argument. 

As the Petitioner argues, if the items he is charged with possessing are illegal weapons like the government insists, then his conduct implicates the plain text of the Second Amendment, and a full historical analysis should have been completed. If instead they are not weapons, then the charges make no sense, and the Petitioner should be released from prison immediately.

The amicus brief argues that taking up Adamiak's case would now only allow the Court to clarify the definition of "arm," but "to end the abuse of the Bruen test in another important way."

[R]ecently, several lower courts have turned to a fabricated “plain text analysis” that this Court never endorsed to relieve the government of its historical burden. In practice, that “analysis” has been both underinclusive and overinclusive, turning Bruen’s landmark historical test into a rarely applied obscurity.

In Bianchi, the Fourth Circuit asserted that “arms” only applies to those items “that are most appropriate and typically used for self-defense," adding that "it emphatically does not stretch to encompass excessively dangerous weapons ill-suited and disproportionate to such a purpose.”

The amici point to the Supreme Court's own language in Heller to dispute the appellate court. In that landmark case, SCOTUS held that the "18th-century meaning is no different from the meaning today."  

The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “[w]eapons of offence,or armour of defence.” Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.”

The Court has also said that any bearable arms are, prima facie, protected by the Second Amendment. That means it's up to the government to prove that a particular arm is not protected, but instead many courts like the Fourth Circuit have simply (and wrong) assumed that the burden is on the defendant to prove that an arm is covered by the text and tradition of the amendment. 

If the government continues to maintain that pieces of an old machine gun and a dummy rocket launcher fall under the purview of the National Firearms Act, then those items are being regulated as firearms, and the Petitioner is thus challenging a firearm regulation. Therefore, the government may not escape its historical burden because, again, “when a firearm regulation is challenged under the Second Amendment, the Government must show that the restriction ‘is consistent with the Nation’s historical tradition of firearm regulation.’”

The brief, authored by CRPA president Chuck Michel and SAF Director of Legal Research and Education Kostas Moros, then addresses the "Goldilocks" nature of the “plain text” scheme some courts have come up with, which means that "in all too many instances, a historical analysis never even occurs because courts decide arms-bearing conduct is not arms-bearing conduct."

In some cases, courts accomplish this by being draconian in their application of the text. To those courts, no conduct is protected by the plain text of theSecond Amendment unless it literally consists of keeping or bearing arms. For example, the First Circuit just ruled that “laws regulating the purchase or acquisition of firearms do not target conduct covered by the Second Amendment’s ‘plain text.’”

But that's not the only trick the courts are playing. The other extreme is to ignore both the plain text of the Second Amendment and the Supreme Court's statements about the scope of the right to keep and bear arms. 

A recent example of that is the Second Circuit’s summary order in Calce v. Tisch. In that case, plaintiffs challenged New York state and city laws that prohibit the possession of stun guns and tasers. The district court had ruled that “Plaintiffs ‘failed to provide any evidence that stun guns and tasers are in common use’ and therefore, on the summary judgment record before it, ‘no reasonable jury could return a verdict that stun guns and tasers are presumptively protected by the Second Amendment.’”

The Second Circuit agreed. But none of that is relevant to the plain text. Stun guns are undoubtedly “arms” under the plain text of the Second Amendment because they are “[w]eapons of offence,” as Samuel Johnson’s 1773 dictionary defined the term. Given that, a historical analysis should have been conducted. Instead, the SecondCircuit asserted that:

To determine under step one whether the Second Amendment’s plain textc overs certain conduct, this Court looks to: whether the weapons at issue are “weapons in common use today for self-defense” and whether the conduct at issue implicates the right to armed self defense. Plaintiffs bear the burden of proof on both of these inquiries.

SCOTUS has never held that the Second Amendment protects only those arms that are in common use for self-defense. Instead, the Court has stated that arms that are in common use for "lawful purposes" including self-defense fall under the umbrellas of the amendment's protections. As the amici argue, if the Second Circuit and other courts that have deployed this rationale are correct, then "hunting rifles, shotguns made for trap shooting, and even historical muskets would be unprotected and could be banned without any historical analysis."

The Supreme Court has other cases besides Adamiak that are pending cert decisions which could be used to deal a death blow to this insane analysis, but frankly, there's no reason why the justices have to be limited to just one case. 

I have to say, though, that I'm not particularly optimistic about the Court accepting Adamiak's case. The justices have scheduled Adamiak for discussion at their May 14 conference, but to date none of them have requested the DOJ reply to Adamiak's cert petition, which is not a great sign. There have also been efforts to get President Trump to issue a pardon for Adamiak, but so far we've seen no progress on that front either. 

In the last line of their brief, the amici write that the "Court’s intervention is desperately needed tos ave both the Petitioner from tremendous injustice, and to end the abuse of the Bruen test." They're right on both counts... but are there five justices who agree? We need four to accept Adamiak's cert petition, and a fifth one to comprise a majority that will free him from prison and smack down the abuses of SCOTUS precedent that put him there.