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From the NRA-ILA

Honest people can disagree with the Founders’ decision to enshrine the Second Amendment within the Bill of Rights. They cannot, however, pretend that decision never happened. For much of the 20th Century, however, gun control activists tried to convince the public that “the right of the people to keep and bear Arms” had nothing to do with the right of individuals to keep and carry guns for their own self-protection.

That charade – never convincing to anyone who could read – has been debunked by the U.S. Supreme Court no less than four times in the last 15 years. But Second Amendment denialism remains an active strain of the firearm prohibition effort, as demonstrated by a federal judge in Colorado who ruled last week that whatever the provision means, it does not include the right to buy a gun.

That decision came in the case of Rocky Mountain Gun Owners v. Polis, which challenged Colorado’s three day waiting period for firearm purchases. Proponents of the law undoubtedly knew it was in trouble after the U.S. Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen, which clarified how lower courts are to analyze challenges to gun control laws under the Second Amendment.

Bruen stated: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.  The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” This test likely spells doom for Colorado’s waiting period, as laws of that type were completely unknown to the generation that adopted the Second Amendment.

Faced with this reality, Judge John L. Kane – appointed to the federal bench by Jimmy Carter in 1977 – decided to stretch reason to the breaking point by deciding the right to possess a firearm doesn’t include the right to acquire one.

The court began its analysis by acknowledging that the Second Amendment right articulated by the U.S. Supreme Court in the 2008 case of District of Columbia v. Heller meant “the individual right to possess and carry weapons in case of confrontation.” But then Judge Kane went on to insist: “[P]urchase and delivery are one means of creating the opportunity to ‘have weapons.’ The relevant question is whether the plain text covers that specific means. It does not.”

Oregon gun store counter assault rifle AR-15
(AP Photo/Andrew Selsky, File)

According to this “reasoning,” a state could completely ban the sale and delivery of firearms without implicating the Second Amendment. This would imply a right to have something, but not to obtain it through the most obvious and ordinary means.

Of course, it’s true that the Second Amendment says nothing explicitly about buying and receiving guns. But it’s also true the First Amendment says nothing explicitly about buying and receiving newspapers. Nevertheless, any judge insisting a ban on newspaper sales would not implicate the First Amendment prohibition on “abridging the freedom of speech, or of the press” would in doing so disgrace himself and ruin his professional and intellectual credibility.

Perhaps recognizing this, Judge Kane hedged his bets by offering a number of alternative theories about why Colorado’s waiting period did not infringe the Second Amendment.

First, he theorized, “Even if purchasing a firearm could be read into the terms ‘keep’ or ‘bear,’ receipt of a firearm without any delay could not be, as the Founders would not have expected instant, widespread availability of the firearm of their choice.” Judge Kane attempted to bolster this argument by pointing to “expert” testimony that indicated firearm purchases at the time of the founding were not as convenient, prompt, or accessible as they are today.

But even these “experts” acknowledged this was because technology, production, and marketing were circumstantially more primitive in those days, not because legislators made a deliberate choice to delay firearm purchases. Of course, virtually nothing that involved the delivery of a good was as efficient and accessible to the founding generation as it is in modern times. But the U.S. Supreme Court has repeatedly made clear that it will not tolerate “frivolous” arguments that 18th Century technological limitations delineate the scope of constitutional rights in the present day, including in a Second Amendment case that dealt with stun guns.

Next, Judge Kane pointed to language in Heller that he claimed rendered “presumptively lawful” any regulation on “the conditions or qualifications” of the “commercial sale of firearms.” He then argued: “Colorado’s Waiting-Period Act regulates only the sale, and specifically sellers, of firearms. … The Act does not apply to anyone who does not ‘sell a firearm.’”

Putting aside the fact that the disputed issues in Heller had nothing to do with firearm sales, much less mandatory waiting periods, Judge Kane was again resorting to frivolous formalism in attempting to stake his reasoning on the distinction between sellers and purchasers. Colorado’s waiting period imposes an arbitrary and de facto impediment on the purchase of guns, thereby implicating the rights of buyers at least as much as sellers.

Dragonmans gun store range
Dragonmans gun store and range in Colorado Springs (AP Photo/Brennan Linsley)

Returning to the First Amendment, no one would take seriously an argument that a person’s First Amendment right to access information was not implicated just because a particular restraint applied to a publisher or bookseller and not the reader himself.

Meanwhile, the language Judge Kane invoked to argue the Supreme Court allows firearm sales to be regulated cuts against his primary ruling by suggesting the Supreme Court considers such sales as the default starting point under the Second Amendment.

But Judge Kane wasn’t finished, and proposed yet another reason why Colorado’s waiting period is consistent with the Second Amendment, even if he were wrong about everything else.

Again, while acknowledging – as the parties themselves agreed – that waiting periods for firearm purchases were unknown in American law until well into the 20th Century, he still found them consistent with America’s historical tradition of firearm regulation. This was because, he said, “our Nation had a historical tradition of regulating the carrying and use of firearms by intoxicated individuals,” and “the Waiting-Period Act and the intoxication laws both work to prevent individuals in a temporary impulsive state from irresponsibly using a firearm.”

Judge Kane was dismissive of plaintiffs’ attempts to point out the obvious distinction that intoxication speaks to the condition of a particular individual in a particular moment, while the waiting period broadly applies to firearm sales generally, regardless of the buyer’s condition or state of mind. His response to this fundamental difference was that the intoxication laws affected all intoxicated persons, some of whom also might not have behaved irresponsibly with a firearm.

Judge Kane’s final gambit was to suggest that the Supreme Court had indicated a general openness to shall-issue licensing schemes for carrying firearms, so long as they were not directed to “abusive ends.” This, he said, was analogous to the waiting period, because both require a “defined requirement” to be met before exercise of the right, and plaintiffs had not proven the waiting period was abusive.

Judge Kane offered no limiting principles for what sorts of laws purportedly aimed at impulsive or irresponsible behavior or that imposed “defined requirements” prior to the exercise of the right to keep and bear arms might be permissible under the Second Amendment. But it’s difficult to understand how his reasoning would be distinguishable from the “interest-balancing” the Supreme Court specifically rejected in Bruen, which likewise focused on why the government purported to be acting, not on whether such actions were well-established in American history.

There is perhaps no legal rule so clear and unequivocal that it cannot be purposely misconstrued by a judge who is more interested in his preferred outcome than in actually following the law. But if the Polis case shows anything about Bruen’s historical test, it’s that it makes spotting such judges easier than ever.

 

This article originally appeared at nraila.org and is reprinted here with permission. 

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92 COMMENTS

      • Merriam Webster says…
        a political philosophy based on belief in PROGRESS, the essential goodness of the human race, and the autonomy of the individual and standing for the protection of political and civil liberties.
        Specifically: such a philosophy that considers government as a crucial instrument for amelioration of social inequities (such as those involving race, gender, or class)

        Current “Liberals” (their terminology) have taken that last part to the extreme…

        • I’ll point out that “progress” is a good thing. The issue is, where do progressives want to take us to? I refuse to progress along the path they choose for me.

          In point of fact, we have made progress with the Supreme Court, during Trump’s days in office. 6 to 3 majority of more conservative judges, vs progressive judges. THAT is PROGRESS!

        • Does banning the sale of food infringe on the right to eat?

          Of course not. Now eat your cardboard and shut up.

        • “a political philosophy based on belief in PROGRESS,…”

          Metastatic cancer is progressive, until it kills you… 🙁

        • I’ll point out that “progress” is a good thing.

          Depends on what YOUR idea of PROGRESS is… Killing babies in the womb, encouraging perversions among children, attempting to establish non-existent “genders”, instilling Kommie/Soshullist values in public schools and Universities, normalizing “sex changes” and genital mutilation, destruction of our Capitalist economy and attempting to deny Americans their NATURAL rights to self defense is NOT my idea of PROGRESS…

      • Here are a few better words for describing this “judge”.
        Wicked and perverse
        Enemy of the free people

        • Once again the mentality of today’s sick Gun Control zealots circles back to the bigoted mindset inherent with the Gun Control that predates and postdates the Second Amendment. The so called judge scrapped the bottom of the barrel to reinvent the wheel and all he has to show for his efforts are bloody fingers.

      • They began calling themselves liberals after people got a taste of what progressives really are. Liberal sounded less threatening. They own the liberal name now.

        • A commie by any other name would oppress just as viciously. Wonder what they will call themselves next………moderates?

        • this. about every 40 years or so progs get enough power to really implement the policies they favor. of course, most people hate the results, and progressive becomes a dirty word. At some point, in Orwellean style, the collectivist authoritarian progs started calling themselves liberal. regardless of common usage, playing along is surrender in some measure. call them by their true names. leftard will gain no traction. communist has some validity, but most don’t really understand what communism is in practice, and many seem to actually be proud of the label. I favor collectist authoritarian, descriptive and might make a useful idiot or two think a bit. Leftist is OK, but plays along with a false “left right” continuum prog academics designed to distance themselves from their intellectual close cousins, Nazis and fascists.

          I never thought of myself as conservative, but at this point liberal values need to be conserved. So, now, true liberals are conservatives.

        • Phil I can agree with your point for immutable definitions and something to that extent is how I define commie if they bother to ask. Most of the time it’s more to put them on the defensive with a slur that is accurate and catchy enough to stick and highlight their actions and expressed thoughts. Plus it does get a rise out of the ones over 50.

      • …or liberal statists. The political spectrum is best seen as a box with four extreme corners. Liberal statists, liberal libertarians, conservative statists, and conservative libertarians. Statists insist on government enforcement of individual behavior. Libertarians want the government out of people’s private lives. Stalin and Hitler were extreme statists on the left (liberal) and right (conservative), respectively.

        • One continuum accounts for a hell of a lot of variance. totalitarian at one end, anarchist at the other. Probably not the same exactly as collectivist vs. individualist, but there is a lot of overlap. Liberals, which progs call “right wing” are closer to the anarchist end, though of course pure anarchy isn’t stable and doesn’t work. The founders were on that side of the spectrum. Progressives are on the totalitarian side, clusted with commies, nazis, and fascists. you could put theocrats and monarchists on that end too. if the great reset as they call it has many features of feudalism, that is readily accounted for by that one dimensional model.

      • It used to – a long time ago. You can count the time in decades. Today, leftist, liberal, gun controller, abortion worshiper, Marxist, socialist, Communist, Maoist – I could go on – mean pretty much the same thing.

      • You need to make a distinction between classic liberalism, and the liberal/left/progressive stuff we see today.

    • That isn’t “stupidity.”

      That is open defiance of the US Constitution, and the rule of law.

      Judges like this should be debenched and disbarred for life.

    • No Kane is evil. He knows the law, history, and the truth and ignores it all to implement his own goals. He needs to be put where evil dwells.

  2. The saddest part, and the very reason Maroons like this keep doing it, is that there are no consequences for their actions. Our judicial review must change to add accountability.

        • “Not until Marbury v. Madison (1803) did SCOTUS give themselves the role of judicial review of laws.”

          The first example of Congress abdicating its power and responsibility under the Constitution. And many of the founders were still alive and in politics and that time.

  5. I sure am glad I don’t live in this judge’s alternate reality. Sometimes you just have to wonder how they come up with sh!t like this…
    But they surely know it will be reversed AND they don’t care.

    • No , they don’t care, because even if their insane rulings are eventually over turned, they will simply pull an Obama and do whatever they want anyway, the Constitution be damned. And then dare anyone to stop them, because judges are not held responsible for anything.

  6. Oh bouyyyy… they never quit trying to deprive the citizenry of our Constitutional rights. Or trying to convert once-free-state Colorado into a blue state.

  7. It’s not in the Bill of Rights?, purchasing/owning/operating a diesel truck?, this judge is a smart one for sure. Don’t give in to these Marxist.

  8. But in the meantime honest folks will be denied the right to purchase without a delay. it’s part of the overall agenda. If the case goes higher, as it should, isn’t CO in the 9th Circus? If they are then that means it will be upheld and I still don’t trust SCOTUS to stand firm. It could be the crack in the dam.

    • Colorado is part of the 10th Circuit. I’ve lived in Colorado my entire life but all these Commifornians coming here and passing the same stupid bs that destroyed their home is really making me want to leave.

  9. a state could completely ban the sale and delivery of firearms without implicating the Second Amendment

    He is right, the Constitution only says “keep and bear” nothing about acquisition however, at the time the Constitution was written it was “normal” for individuals to either barter for their firearms OR make their own which makes the “ghost gun” bullshit moot… On the other hand, they would also have to throw out the Interstate Commerce Act, sounds like this dumbass wants to go back to ground zero and start over, fine with me… Your turn judge…

    • So, a state could completely ban the sale and delivery of food without implicating life, liberty, and the pursuit of happiness?

      Nah.

      This “judge’s” problem is not senility, it is contempt for the Bill of Rights…

  10. This is total bull. Ok, so doesn’t specifically say it in the 2A, it does say it the 10th and 14th your right to engage in commerce. Anything you buy, including firearms, is engaging in commerce to aquire property. Firearms are property as well.

  11. It’s completely beside the point of his malicious ruling, but how old is this guy? Appointed in 1977!? He must be 80+

  12. Wait and see if this goes up to a higher court or the SC to get struck down.
    The upside with these moronic laws is they set themselves up to get struck down and further enshrine the 2ndA.

    • Got quite a few of those waiting on our circuit to shit or get off the pot………….and several more working their way up.

  14. This judge thinks there is a Constitutional right to steal a gun it seems, but not to purchase one.

    This anti-liberty bigot is the friend of things and police staters, but not ordinary citizens.

  15. Okay, cool, my States Constitution says I can, so fck off Mr. Colorado Federali.
    I believe every state should have it’s own firearmns and emu manufacturer. That would really put a bind in the BATFE’s bullsht.

  16. This judicial reasoning would also work with ‘you have the right to vote’ if we ever actually had an election but, we no longer do that.

  17. You have the right to vote. We have the right to lock the polling stations and not allow you in.

    We need a Nuremberg 2.0.

  18. It certainly seems like a “waiting period” is an impediment to acquiring a “necessary” “arm”. If the waiting period is negligible, say a minute, then it’s not much of an impediment. If it’s 3 days, it’s that much more of an impediment. If it’s 3 decades, it’s prohibitive.

    A requirement for a “manual of arms” to be provided with the sale of each gun is likewise an impediment. If it’s a page, it’s not much of an impediment. If an encyclopedia, it’s prohibitive.

    At what point do we expect a judge to weigh-in and declare that the impediment is high enough, compared to the benefit to be promoted by the impediment, that the legislature has “infringed” on the right?

    We could imagine that the founding generation would have acquiesced to a waiting period of a few minutes for a customer to prayerfully consider the safe and honorable use of an arm. Prayer would have been deemed, at that time, a good precaution, worth the effort to satisfy the impediment. Or a page of guidance for the safe and honorable use of an arm. But they would not have expected a customer to return home, wait days, and then come back to the gunsmith’s shop to retrieve his arm. Nor would they have required the gunsmith to commission printing a manual longer than his customer would be willing to read. To such lengths, the impediment would be deemed an infringement.

    If this judge’s reasoning is allowed to stand, there is no limiting principle to guide any restraint on any interpretation judges give to the Constitution.

    • It probably went down like this. ” How much you want for that rifle you made?”
      $3.
      “Would you take 5 chickens and a rooster?”
      Yep.
      “Wait, I’ll be right back.”

    • “Lord, make me fast and accurate.
      Let my aim be true and my hand faster
      than those who wish to harm me and mine.
      Let not my last thought be “If only I had my gun”.
      and Lord, if today is truly the day you are to call me home,
      Let me die in a pile of empty brass.”

    • “At what point do we expect a judge to weigh-in and declare that the impediment is high enough, compared to the benefit to be promoted by the impediment, that the legislature has “infringed” on the right?”

      I say, get the lawsuits rolling, post haste, and let Justice Thomas ‘law down the law’ as he did with ‘Heller’ and ‘Bruen’… 🙂

      • I think a waiting period is a impediment as well but hey, what do I know? What I found funny as hell, is when some liberal woman in California tried to buy a gun during the riots, only to be told she had to wait. Her protest was priceless when she complained “but I need it now”.

  19. appointed by Carter in 1977, 46 years ago?! Way too long to continue on the bench, at 86 yo he needs a blankey, warm milk, and someone to read him bedtime stories.

  20. Buy a gift card at your local gun store. Then use it to “gift it yourself “. No purchase, end of story.

  21. One thing I’ve never understood about these “waiting periods”…

    I’ve heard them described as a “cooling off period”. Someone gets mad, wants to shoot somebody NOW, so tries to go out and buy a gun, and the “waiting period” allows them time to clear their head and avoid tragedy, right?

    So – what if that person already owns a gun, of any type? Doesn’t that inherently mean the “waiting period” is a clear and obvious farce for that person? Why isn’t there an exception for existing gun owners? What possible reasonable purpose could a “waiting period” serve for someone who already owns a gun???

    Seems about as common-sense as someone can get. Someone who lives in a dem state should ask their representatives that simple question.

    • The same argument was raised as to California’s 10 day waiting period without success prior to Bruen. That was back when interest balancing was permitted, and the government’s interest outweighed any 2A right.

  22. OK, OK, then that means that you can MAKE any firearm that you want or that the government MUST provide you with firearms. Ultimately the judge has proven himself to be a dishonest buffoon.

  23. Just throwing some black friday deals out there:

    DoubleTap Ammo is having a black friday sale, including free shipping! Really reasonable prices, especially as compared to Buffalo Bore; a box of 20 BB 155-grain 10mm copper rounds is $53.19 plus tax and shipping; a box of 20 DT 155-grain 10mm copper rounds is $23.16 with NO tax and FREE shipping.

    Springfield Armory’s store has a 20% sale sitewide, and free shipping for orders over $50.

    Hopefully TTAG will post an article with a roundup of good black friday deals.

  24. What a bonehead. The 2A is the individual’s right to self defense with ARMS. Self defense cannot be effective if impeded, especially when self defense is required during an imminent or immediate threat. This would prevent any individual’s ability to defend themself, therefore infringing on their liberty to live and or survive without injury. “KEEP AND BEAR” means possessing and carrying, and it too, refers to immediate ability to defend one’s self. ARMS are useless if not immediately available on one’s person, when lethal threats have no bounds and time is of the essence.

    It’s automatically implied that ARMS must be obtained in order to be possessed and therefore carried. And therefore obtained immediately in order to protect against immediate threat to life. So the term “PURCHASE” and the boneheaded logic behind this moron’s argument, is a direct violation of the 2A’s “SHALL NOT BE INFRINGED”. The blood of people who have died or survived, but nonetheless spilled, because of continuing government or bureaucratic infringement, on their ability to effectively defend themselves with arms, against immediate threat to life, is a violation of life in itself. These actors/actions make them complicit in the illegal spilling of said blood.

  25. gunstores now sell $600 candy bars, every purchase come with a free gun. No waiting period required for candy bars.

  26. A senile judge significantly older than even Joe Biden writes an opinion that will have him mocked into permanent retirement.

  27. With that retarded ass thinking, by the same token, Article 21 of the Constitution states that: No person shall be deprived of his life or personal liberty…. But it doesn’t say a person can BREATH.

  28. BREAKING: GOA Wins a Permanent Injunction Against Gun Grabbers in Oregon!

    Great News! On Tuesday, GOA and its foundation—Gun Owners Foundation—received a permanent injunction in our case against Oregon’s Ballot Measure 114 (BM114). The new law bans certain firearms, bans standard-capacity magazines, and requires gun owners to get a permit-to-purchase a firearm.

    With this injunction, gun owners can breathe easy as this case continues to be challenged by anti-gun progressives like Gov. Kate Brown.

    Previously, after GOA and GOF had secured a preliminary injunction, Gov. Brown had tried twice to get the Oregon Supreme Court to set aside the circuit court judge’s favorable decision. But the state Supreme Court rebuffed her efforts each time.

    Just recently, GOA’s attorney spent several days in court challenging BM114 during a lengthy trial. And even though the attorney ratio was 8-1 in favor of the government, the GOA position prevailed, as of yesterday!

    Stay tuned for further updates, as Gov. Brown will no doubt continue to challenge our victory.

    • Governor Brown will undoubtedly appeal, especially as the Oregon Supreme Court’s members were all appointed by democratic party governors, and has signaled an anti-gun animus. And by the same token, the local federal district court judge just denied an injunction as to the same law, requiring an appeal to, you guessed it, the infamous Ninth Circuit. Further, the Oregon Supreme Court

      The battle’s just begun.

    • “BREAKING: GOA Wins a Permanent Injunction Against Gun Grabbers in Oregon!”

      Over a day old… 🙂

    • Stop making excuses for Liberal/Progressive Democrats. He absolutely knows what the 2nd amendment is all about. His tyrannical ideology is more important, than the Constitution. Just another example of Coloradans getting the tyrants and tyranny…They allow.

  31. This handy guide is provided for those jurists and others who don’t understand English:

    “Shall” – an imperative command, usually indicating that certain actions are mandatory, and not permissive.
    “Not” – in no way; to no degree.
    “Be” – To exist; have existence or being; possess reality; be the case; be true or real.
    “Infringed” – transgress or exceed the limits of; violate.
    – to defeat; invalidate.
    – to encroach on someone or something; engage in trespassing.

  35. Such FOOLS should not even be able to take the BAR exam much less get a BAR card afterwards. The liberals/leftists are most likely cheating on the exams the same way they do in our elections.

  36. NJ announced they will ban the “sale” of gas-powered vehicles by 2035… Guess residents are not smart enough to travel to NY, PA or DE to purchase their cars and trucks (No sales tax in DE)… Dumb shits…32 auto based businesses in NJ not all can convert to EV crap…

  38. Since the grabbers deem waiting periods to be constitutional on the basis that technology at the time didn’t facilitate being able to quickly manufacture firearms and sell them at retail shops, I’m going to become a state legislator and introduce a bill banning all forms of communication more technologically advanced than the hand operated Gutenberg-style printing press

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