It's not clear if the votes to void bans actually exist in Scotus given the views that Roberts and Kavanaugh are weak. Who is to know?
Justice Kavanaugh wrote his
dissent in Heller II arguing that "modern" magazine fed semi-auto rifles are protected by the Second Amendment. While he voted with the majority for Bruen ruling, he did opine that states could regulate -
https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf
I join the Court’s opinion, and I write separately to underscore two important points about the limits of the Court’s decision. First, the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court’s decision does not affect the existing licensing regimes—known as “shall-issue” regimes—that are employed in 43 States.
The Court’s decision addresses only the unusual discretionary licensing regimes, known as “may-issue” regimes, that are employed by 6 States including New York ... because it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense ... in effect deny the right to carry handguns for self-defense to many “ordinary, law-abiding citizens.”
... Second, as Heller and McDonald established and the Court today again explains, the Second Amendment “is neither a regulatory straightjacket nor a regulatory blank check.” Properly interpreted, the Second Amendment allows a “variety” of gun regulations.
Chief justice Roberts opined with the majority for Bruen ruling which eliminated the "two step" approach used for decades and now mandated "text and history" approach that requires existence of historic tradition analogue by the 1791 ratification of Bill of Rights for any regulation to be considered constitutional.
At first I too was dismayed that Supreme Court remanded various 2A cases back down for reconsideration factoring Bruen mandate of "text and history" approach only. But having followed various 2A cases like Duncan and Miller, starting to appreciate why these cases were remanded down instead of Supreme Court ruling on them.
Perhaps here's why.
When 9th Circuit also remanded Miller (AW ban) and Duncan (Magazine ban) back down to the district court, judge Benitez ordered CA to provide evidence that "identifies the best historical regulation that is a proper analogue and relevantly similar to a statewide prohibition on possession of a firearm with listed features" for the Miller case. Judge Benitez also ordered CA provide historical evidence of "statewide prohibition on possession of an ammunition device or a limit on an amount of ammunition for the Duncan case.
CA in collaboration of plaintiff's "clarification" comments, presented a spreadsheet listing all the regulations that existed before and after the 1791 signing of the BOR ratification but historical analogues to AW and magazine ban did not exist as they were relatively recent regulations -
https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-11#post-12528071
So cases having been remanded back down, if/when they return back to the Supreme Court for final ruling as highest court in the nation, would have demonstrated (Shown reconsideration work of looking for historic tradition analogues) whether such analogues to regulations being challenged existed.
Interestingly, arguments for
Harrel v Raoul (IL AW/magazine ban) consolidated with
Langley v Kelly, Accuracy Firearms v Pritzker and
Barnett v. Raoul were made recently to the 7th Circuit after securing
preliminary injunction against PICA.
During the arguments, following key points were made -
https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-13#post-12669295
- Attorney argues that popular AR15 is linear [modernized] descendant of popular firearms used in colonial days that were "in common use" and at 1:04:30, uses printing press and [modernized computer/tablet] ipad as linear descendant example.
- At 1:05:10, attorney argues progression of firearm development and points out bolt action rifles used for world wars are immensely evolved firearms compared to muskets used by the colonials and argued the court would not question whether [modern] bolt action rifles are protected by the Second Amendment.
- At 1:06:00, discussion ensues distinguishing "ban" from "regulation" and argument made that Second Amendment post Bruen does not allow legislature to "ban" linear descendants of arms used by the colonials.
- At 1:08:00, Caetano v Mass mentioned justice Alito stated 200,000 stun guns were "in common use" and semi-auto rifles and magazines state is trying to ban is well beyond that number in "tens of millions" and used for "lawful purposes including self defense along with competition and hunting".
Probably the best question asked and point made came from the judge who asked whether the Winchester lever action is protected under the Second Amendment to the silence of state's attorney -
https://www.thehighroad.org/index.p...-aw-magazine-ban.905531/page-13#post-12669936
At 1:23:00, judge asks if the Winchester lever action is protected under the Second Amendment and points out that the lever action was not the same as muzzle loading muskets colonials used but the lever action was in common use and was the AR15 of the pioneering days.
So communication devices like computers/cellphones are popular and in common use linear "modern" types of printing press used for free speech protected under the First Amendment that did not exist during colonial days and similarly, magazine fed Winchester lever action and magazine fed semi-auto AR-15 are "modern" types of muskets used for self defense/lawful purposes protected under the Second Amendment that did not exist during colonial days as Second Amendment is not a "second class right" to First Amendment.
Now I am starting to appreciate Supreme Court remanding these 2A cases back down as by the time they reach the Supreme Court again, very thorough study/review would have taken place to affirm Bruen decision of "text and history" and Heller/Caetano of "modern" types of arms.
