ANTI-GUNNERS TRYING TO DUPE COURTS (but they have the burden of proof...)

Published on April 11, 2023
Duration: 10:45

This expert analysis by Mark W. Smith, a constitutional attorney, dissects the legal strategy employed by anti-gun advocates in cases like Duncan v. Bonta. It highlights their attempt to shift the 'in common use' test to the textual stage of Second Amendment analysis to avoid the government's burden of proof, which is rooted in historical analysis. The video clarifies that 'arms' protected under the Second Amendment include modern instruments facilitating self-defense, and weapons in common use, like the AR-15 and standard magazines, are protected.

Quick Summary

The 'in common use' test, rooted in historical analysis, requires the government to prove a weapon is not commonly used for lawful purposes to justify a ban. Anti-gun advocates seek to reclassify this as a textual inquiry to avoid this burden.

Chapters

  1. 00:00Introduction to the In Common Use Test
  2. 00:33California's Legal Strategy in Duncan v. Bonta
  3. 01:19Burden of Proof in Second Amendment Cases
  4. 02:59California's Argument on Textual Stage Inquiry
  5. 03:57Defining Arms and Facilitating Self-Defense
  6. 05:20Historical Basis for the In Common Use Test
  7. 07:40Summary: Why the Burden Lies with the State

Frequently Asked Questions

What is the 'in common use' test in Second Amendment law?

The 'in common use' test, originating from the Heller decision, protects arms that are in common use by Americans for lawful purposes. The government must prove a weapon is not in common use to justify a ban.

How are anti-gun advocates trying to manipulate the 'in common use' test?

They are attempting to reclassify the 'in common use' test as a textual inquiry rather than a historical one. This strategy aims to shift the burden of proof away from the government and onto plaintiffs.

What is the significance of the burden of proof in Second Amendment cases?

Once the plain text of the Second Amendment is implicated, the burden shifts to the government to provide historical analogues for gun control laws. This is a critical hurdle for gun control proponents.

How does the Supreme Court define 'arms' under the Second Amendment?

The Supreme Court defines 'arms' broadly to include anything used offensively or defensively. This encompasses modern instruments that facilitate armed self-defense, such as magazines and suppressors.

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