Has Gun Innovation Been ‘Frozen’ by the Heller and Bruen Rulings?

Heller imposed a “common use” test, saying that a gun law is unconstitutional when it affects guns that are in common use for lawful purposes. Bruen enshrined a similar test, saying that gun laws must be grounded in the “text, history, and tradition” of the country — i.e. the law stands if it has an analog in the nation’s text, history, or tradition.

What both of those do is freeze in amber the technology at time time the standard is set. It then becomes very hard to make fundamentally new technology (e.g. to explore fire-by-wire to its fullest promise) or to strike down bad laws that fell into the amber before it hardened.

Something to think about in future court cases. Bruen was a big win. But it puts into perspective how much gun regulation is already on the books — the legal standard that gun rights advocates were overjoyed to see imposed is the very same legal standard that tech folks realize would be catastrophic for innovation if applied to AI.

— Open Source Defense in Frozen in Amber

11 Responses

  1. The gun in the pic, that’s innovation in torture. Imagine being a troop having to lug that huge thing around with all the other gear and stuff they wear.

    1. Hey, .40 cal,

      I figured you’d come over here (glad to see you). I thought I’d check it out, too.

      As for your comment, true, but (and isn’t there always “a big BUT”?), most designs are pretty crappy in the beginning. Engineering is the art of compromise, and some compromises can only be tested by use. The original M-16 was a pretty crappy item when it first was put into service, but the current M-4 is a decent firearm (if still a little “dirt sensitive”). There is no question that the “in common use” standard (to the extent it isn’t superseded by Bruen), could have that effect. Still, for the time being, having the Bruen and Heller precedents is better than nothing. If it DOES seem to be impeding progress, that can be addressed later, but – I’d sure as heck rather have them than not!

    1. LifeSavor,

      Same. I’ve noticed a few others of the “old gang” around. Hopefully, our ‘dear friends’ MajorLiar and dacian the demented won’t join us, and we can have a decent forum. I’d would be nice to talk about guns for a change, instead of always politics and Leftist talking points!

  2. Common use….hmmmm…..pistols are in common use…the make, model, caliber, color, or material does not matter. The same for shotguns and semi-automatic rifles. Guns send projectiles by focusing the power of explosions. How would engineering improvements make a gun “uncommonly used”. May be ray gun that makes you giggle to death, or a gun that emits killer sonic waves, but I do not see how any innovation in “firearms” moves a gun into “uncommon”,

    1. LifeSavor,

      Yeah, but you KNOW the anti-gun crowd is going to claim that ANY new development is a “new gun”. I only hope that they pursue this argument with their usual lack of knowledge and monomaniacal fervor, and up up discrediting the whole argument (*fingers crossed*).

      And new materials science developments, and new machining techniques, and new developments in cybernetics/computers, mean it’s just a matter of time until we start to see commercially available developments such as high-pressure air guns (permitting .22lr level or better velocities – with little or no sound), or even man-portable lower velocity rail guns (you don’t need much in the way of electromagnets and chip-based sequencing) that would, for example, equal the MV of a .30-06. When that happens, you can be certain the anti-gunners will go even more insane.

  3. “What both of those do is freeze in amber the technology at time time the standard is set. It then becomes very hard to make fundamentally new technology (e.g. to explore fire-by-wire to its fullest promise) or to strike down bad laws that fell into the amber before it hardened.”

    Wrong, the author of either ‘Heller’ or ‘Bruen’ noted that the 2A advances with technology for all civil rights, such as the 1st and 4th amendments.

    Your protection against search and seizure of your papers applies to electronic data and communications on your personal cell phone or home computer, as well.

    I also believe that issue was also raised in the 2015 SCotUS stun gun case ‘Caetano v. Massachusetts’, where it was ruled civil rights follow advances in technology…

    1. Geoff,

      Correct on both references, BUT . . . this is about lawfare, and this is an opening the Mini-Mike crowd can use to pass new laws, and force us to take them to the courts (and probably eventually up to SCOTUS). God knows, they’ve done it enough, so far, just with Bruen and Heller!

      1. Here are now plenty of cases before SCOTUS right now where the high court either has to slap this crap down hard, or else it’s sending a clear message that the delay-as-long-as-possible lawfare strategy is viable. (The Hawaii Supreme Court’s recent decision needs to be summarily reversed on the cert petition — no merits briefing or oral argument needed.) The fact that SCOTUS has not taken numerous opportunities to have done so already (e.g., motions to vacate various stays pending appeals, such as the Ninth’s Circuit’s game of staying Judge Benitez’s permanent injunctions indefinitely) has me concerned.

        Thomas, Alito, Gorsuch, and Kavanaugh have all voted to lift such stays. While she might just be being careful, I fear ACB has now joined Roberts in wimping out.

        We’ll soon see if Bruen was an anomaly.

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