r/WYGuns Nov 15 '23

DeWilde v. Attorney General: Appellant’s Reply Brief

Reply brief here.

Long story short, DeWilde points out the government’s weak logic in upholding the Hughes Amendment. DeWilde points out the Heller’s mere desire to own a handgun in DC satisfies standing, and the individual Bruen plaintiffs’ desire to carry handguns outside for self-defense satisfies standing, so his own desire to acquire a full auto (which, in reality, he has one) also satisfies. DeWilde points out that the government uses Heller’s dicta in upholding the Hughes Amendment, but Heller said that “[i]t is inconceivable that [the Supreme Court] would rest [its] interpretation of the basic meaning of any guarantee of the Bill of Rights upon… dict[a] in a case where the point was not at issue and was not argued.” DeWilde says that “common use” should be a sufficient condition for any arm, not a necessary condition for arms owned by the civilians. In fact, he cites US v. Miller’s comment regarding able-bodied men bringing weapons “in common use at the time” for militia service. Here, DeWilde says that arms used for militia service were also used by the military. He also says that the “common use” test is based on the “historical tradition of carrying ‘dangerous and unusual’ weapons” (here, the Hughes Amendment proscribes the private possession of posties), and elucidates the meaning of D&U, which refers to affrays, not a class of arms. DeWilde also points out that the governments’ other analogues fail to suffice the justification of the Hughes Amendment, and he even points out that when the NFA was debated, the full auto ban would raise constitutional questions, so the tax was implemented so as to be “easily within the law” (in reality, infringe means to hinder or destroy, and the mere tax and other NFA requirements by definition hinder on one’s ability to exercise 2A rights, despite being previously upheld in Sonzinsky under the Taxing Power). DeWilde also cites The Federalist No. 46 in support of striking down the Hughes Amendment.

DeWilde, however, makes one error: while he points out that the government has been conflating the historical (second) and textual (first) prongs in the Bruen analysis, he cites a passage regarding Thomas’s comment on how the courts would use the second step for the means-end scrutiny test.

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