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Kostas Moros

@MorosKostas

Feb 7, 2024 • 33 tweets • 12 min read • Read on X

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The Hawaii Supreme Court released a ruling that sounds like Everytown wrote it for them. They say Heller was wrongly decided, and talk about the historical tradition of the former Kingdom of Hawaii as if that is at all relevant.

A lowlights thread.

Note that this "crime" occurred pre-Bruen, when Hawaii had never issued any permit to anyone. So it's insane the State gets to argue he should have applied for a CCW permit.

Again, before Bruen, Hawaii had never issued a CCW permit to ANYONE. It's insane that the State Supreme Court says he should have done a futile act back in 2017 to have standing.

They look at the Hawaii constitution first. But it's the same thing.

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Art. I, § 17 (enacted 1959).

Hawaii's Supreme Court rehashes tired collective right arguments which the Supreme Court has expressly rejected, and overwhelming amounts of historical evidence confirm to be false (see my pinned thread, among other sources).

Nonsense. If it meant just "people in a militia", it would have said that. Like everywhere else "the People" is mentioned, we are talking about individual rights or protections.

Scalia debunked this in Heller. "Bearing arms" means military service, sure. But "to keep and bear arms" would make no sense if it was referring to just military service. Like Scalia said, it would be like interpreting "he stood up and kicked the bucket" to mean "he stood up and died."

This is hilarious because the Hawaii constitution was adopted in the 1950s. If the court is correct and it's just some militia right, why would that still be relevant by the mid-20th century, with our massive standing army? Why did Hawaii bother adding the provision?

This is not true. The individual right was implicitly confirmed in Dredd Scott and Cruikshank. Terrible rulings for other reasons, but they both confirm in passing the thinking around 2A at the time. An individual right, albeit one that only limited the federal government until after 14th amendment incorporation.

Do you think they even realize that their legislative history excerpt destroys their own argument? If the Hawaii framers were intending a collective right, they wouldn't be talking about "reasonable restrictions on the right of the people". They'd say they can pass anything they want, as this is just about the right to a state militia.

Same thing here. This literally says "the right to acquire, keep or bear firearms..."!!!! Yes, maybe the 1950s Hawaii legislature had a muscular view of what gun control was allowed, including banning certain guns, but they still presuppose some individual right.

Is the Hawaii Supreme Court's reading comprehension nonexistent.

Oh sure, "clarified" 18 years later, in a way that is completely incompatible with what the legislature of 1950 said. Here, they say it's all about the militia, whereas in the excerpts from 1950 that the court cited, there was no discussion of the militia. Just an individual right, albeit one subject to regulations.

What actually happened here is Hawaii politicians adopted the then-ascendant "militia right" lie.

Woah WHAT?!

This is an outright lie. Even if you argue stuff like Dred Scott and Cruikshank are dicta because they only mention 2A in passing, there were several 19th century state court rulings confirming to various degrees the individual right.

Jesus Christ, the arrogance here is off the charts. "This is what everyone thought."

No, it's what a cabal of hack academics and their well-to-do judicial allies gaslit the nation into believing for a few decades.

The Hawaii Supreme Court basically pretends all the 19th century rulings and commentary do not exist. Their example of "courts always ruled this way" was two rulings from the 1940s.

Saul Cornell cite, because of course.

Also, cool how they cite Federalist No. 46, but omit the sentence which reads "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation...."

Do they think Madison meant that the "advantage" spoken of there was the right to serve in a government militia? Because people in other nations definitely had that "right" too.

OK so again, if this is all true, and the 2A is just about militias, what goal was the 1950 legislature trying to accomplish by copying it into the Hawaii constitution? What was the point of doing that at a time when state militias didn't really exist anymore?

It is hilarious that they keep saying what the 1950 Hawaii legislature meant through what the legislature 18 years later said.

Because the two times they actually cited the 1950 framers, they were clearly talking about an individual right.

WARREN BURGER QUOTE!

The hackery is unprecedented. This is written by antigun twitter, basically.

As my pinned thread demonstrates, Warren Burger was a liar, ignorant, or both.

Who cares what "a majority of historians" think? Most of these are activists masquerading as unbiased historians. For example, almost none of them ever seriously discuss the overwhelming amount of nineteenth century commentary, because it obliterates their arguments. They pretend it doesn't exist.

This is another bullshit post-Bruen criticism. Nobody is saying judges have to be historians. They merely have to take historical laws the state presents and see if they are sufficiently similar to modern laws. Analyzing laws is a judge's whole job.

We get it, you guys hate the Supreme Court.

This should be the easiest cert petition ever.

Notice how they say 1791 and 1868, but then only talk about guns from 1791. Because if they talked about guns from 1868, their argument would fall apart. By 1868, revolvers had proliferated. Much of the gun crime we see today was possible with the weapons of 1868. So even if you think 1791 shouldn't count because guns were so much more primitive, a lot of that gap was erased by 1868.

Here they cite the Bevis court's error (at least I hope it wasn't intentional) that a semiatuo AR15 has a fire rate of 300 rounds per minute. Which is five rounds every second.

Sounds like the Hawaii Supreme Court doesn't even want to be a part of the United States, in this rejection of not just the Second Amendment but their culture and understanding of the Constitution.

https://twitter.com/MorosKostas/status/1631495779604140032

They are about to get into the history of Hawaii. Before going into that, I wanted to share an old post I did about when Hawaii became part of the US. Basically, they had to abandon laws that were inconsistent with the US constitution, but could keep the rest. Some of the laws that had to be abandoned? See below.

https://twitter.com/MorosKostas/status/1631495779604140032

Tough shit. You are part of the United States.

So to be clear, in its analysis of the Hawaii right to bear arms provision, which is identical to the federal one and was adopted by the Hawaii legislature in 1950, the Hawaii Supreme Court looks to the history of Hawaii when it was a foreign nation.

Cool.

Ah yes, "The Law of the Splintered Paddle".

What the hell is this court talking about right now? They complained judges are now historians, but they are now giving an irrelevant history lesson from a time when Hawaii wasn't part of the US?

Ya, that's cool. The British tried to do the same in the 1770s.

The Hawaii Supreme Court cites to the Young case, which omitted that Hawaii had to get rid of certain gun control laws to become a state. That they partially reimplemented them later is irrelevant - the draconian form of these laws was seen at the end of the 19th century as incompatible with our constitution.

OK.

What's the process by which we can turn states into territories again?

Once again, at the time this man was charged, no one had ever gotten a CCW permit in Hawaii.

It's completely abdication of the judicial role to ignore this, unless the petitioner never brought it up, which I find unlikely.

I hope the poor guy dealing with all this nonsense files a cert petition. What a preposterous ruling by a bench of antigun activists.

You can read the whole dumpster fire here.

drive.google.com/file/d/17KDCuf…

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Kostas Moros

@MorosKostas

Jun 24

At this point everyone following the NFA debate is well aware of then-Attorney General Cummings’ famous testimony in which he justified the NFA as a tax measure. When asked how the NFA “escaped” the Second Amendment, Cummings replied:

“Oh, we do not attempt to escape it. We are dealing with another power, namely, the power of taxation, and of regulation under the interstate commerce clause. You see, if we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But, when you say, “We will tax the machine gun” and when you say that “the absence of a license showing payment of the tax has been made indicates that a crime has been perpetrated,” you are easily within the law.”

In anticipation of the Parliamentarian’s imminent ruling on whether the HPA and SHORT Act provisions merged into the reconciliation bill survive the Byrd rule, below are a bunch of cases over the years from the Supreme Court and federal circuit courts also saying clearly that the NFA is a TAX. They prove that the government has long defended the NFA in court as a tax. Several plaintiffs and petitioners challenging the NFA over the years including in some of the cases listed below, even argued the NFA is not really a tax but rather a regulation, so it should be struck down. Courts rejected that argument.

The NFA can’t now conveniently be characterized as something other than a tax because it suits the powers that be of Gun Control Inc. If the Parliamentarian rules against our side on this, she should be ignored. It would be an utterly partisan ruling. Taxes can be eliminated via reconciliation, as taxes are inherently budgetary measures.

If the NFA was allowed to live for so long because it was a tax, it can be killed in reconciliation because it is a tax. No eleventh hour convenient recharacterizations should be tolerated.

“Petitioner does not deny that Congress may tax his business as a dealer in firearms. He insists that the present levy is not a true tax, but a penalty imposed for the purpose of suppressing traffic in a certain noxious type of firearms, the local regulation of which is reserved to the states because not granted to the national government. . . But a tax is not any the less a tax because it has a regulatory effect. . . Here the annual tax of $200 is productive of some revenue. We are not free to speculate as to the motives which moved Congress to impose it, or as to the extent to which it may operate to restrict the activities taxed. As it is not attended by an offensive regulation, and since it operates as a tax, it is within the national taxing power.”

Sonzinsky v. United States, 300 U.S. 506, 512-514 (1937).

“Section 5851 forms part of the National Firearms Act, an interrelated statutory system for the taxation of certain classes of firearms. . . We do not doubt, as we have repeatedly indicated, that this Court must give deference to Congress' taxing powers, and to measures reasonably incidental to their exercise. . ..”

Haynes v. United States, 390 U.S. 85, 87, 98 (1968).

“As we stated above, the NFA is part of a comprehensive scheme to levy and collect taxes upon the making and transfer of certain firearms. The NFA's regulatory provisions need only bear a “reasonable relation” to the statute's taxing purpose.”

United States v. Aiken, 974 F.2d 446, 448 (4th Cir. 1992)

“To the contrary, it is well-settled that § 5861(d) is constitutional because it is ‘part of the web of regulation aiding enforcement of the transfer tax provision in § 5811. Having required payment of a transfer tax and registration as an aid in collection of that tax, Congress under the taxing power may reasonably impose a penalty on possession of unregistered weapons.’"

United States v. Gresham, 118 F.3d 258, 262 (5th Cir. 1997) (citing United States v. Ross, 458 F.2d 1144, 1145 (5th Cir.1972)).

“Grier raises, lastly, the issue of whether the NFA remains on sound constitutional basis given the FOPA's enactment. When the constitutionality of the NFA was originally challenged in the Supreme Court, the Court interpreted the NFA as a revenue raising measure passed under Congress' taxing authority. In Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772 (1937), the Court stated that the NFA “[o]n its face [was] only a taxing measure” and that any indirect regulatory effects of the taxes did not undermine Congressional authority to pass the law under its taxing power. Id. at 513, 57 S.Ct. 554. Grier argues that with the enactment of § 922(o ) the NFA's function as a revenue generating scheme was eliminated and, in the process, the constitutional legitimacy of the NFA was destroyed.

The six circuits that have rejected Dalton' s view on the FOPA's implicit repeal of the NFA have also rejected Dalton' s position that the NFA lacks a constitutional basis after the enactment of § 922(o ). The Court of Appeals for the Fifth Circuit, for example, reasoned that though the ATF “chooses not to allow tax payments or registration [of machine guns], it still has the authority to do so. Thus, the basis for ATF's authority to regulate-the taxing power-still exists; it is merely not exercised.” Ardoin, 19 F.3d at 180. More importantly, the Supreme Court has stated that “[a] statute does not cease to be a valid tax measure ... because the revenue obtained is negligible, or because the activity is otherwise illegal.” Minor v. United States, 396 U.S. 87, 98 n. 13, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969). The Court's position is particularly applicable to the NFA which, despite § 922(o ), still retains some revenue generating capacity. As the Government notes, “to the extent that it remains lawful under § 922(o ) to transfer machineguns manufactured before May 1986, those transfers require the payment of tax.”

United States v. Grier, 354 F.3d 210, 215 (3d Cir. 2003)

“The registration provision works hand-in-glove with taxes that the statute imposes on the transfer and manufacture of firearms covered by the Act.”

United States v. Thompson, 361 F.3d 918, 920 (6th Cir. 2004)

“The National Firearms Act is facially constitutional. The Act, 26 U.S.C. §§ 5801 et seq. , regulates firearms, including “destructive device [s],” id. § 5845(a)(8), and requires the taxation and registration of firearms by manufacturers, possessors, transferors, dealers, importers, and sellers. See United States v. Aiken, 974 F.2d 446, 447 (4th Cir.1992). The Supreme Court has upheld the Act based on the taxation power of Congress, Sonzinsky v. United States, 300 U.S. 506, 514, 57 S.Ct. 554, 556, 81 L.Ed. 772 (1937), and we have upheld the Act in a decision involving a “destructive device.” United States v. Ross, 458 F.2d 1144, 1145 (5th Cir.1972). “Congress under the taxing power may reasonably impose a penalty on possession of unregistered weapons.” Id.; see also United States v. Gresham, 118 F.3d 258, 262 (5th Cir.1997) (“[I]t is well-settled that [the Firearms Act] is constitutional because it is ‘part of the web of regulation aiding enforcement of the transfer tax provision in [the Act].’ ” (quoting Ross, 458 F.2d at 1145)).

Spoerke's argument that the Act is unconstitutional as applied to him because pipe bombs are unlawful and cannot be taxed fails. “[T]he unlawfulness of an activity does not prevent its taxation.” Dep't of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 778, 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767 (1994). “A statute does not cease to be a valid tax measure because it deters the activity taxed, because the revenue obtained is negligible, or because the activity is otherwise illegal.” Minor v. United States, 396 U.S. 87, 98 n. 13, 90 S.Ct. 284, 289 n. 13, 24 L.Ed.2d 283 (1969). The constitutionality of the Act as applied to Spoerke does not depend on whether he is legally permitted to possess the pipe bombs. Gresham, 118 F.3d at 263.”

United States v. Spoerke, 568 F.3d 1236, 1245–46 (11th Cir. 2009)

“Cox and Kettler argue that the NFA exceeds Congress's power. We agree with the government, though: the NFA is a valid exercise of Congress's taxing power, as well as its authority to enact any laws “necessary and proper” to carry out that power.”

United States v. Cox, 906 F.3d 1170, 1179 (10th Cir. 2018)

“And, § 5861 is merely a taxing statute, so just as the “why” regulates firearms with characteristics uniquely suitable for criminal purposes, the “how” of the regulation has little impact on lawful possession for armed self-defense. Section 5861 does nothing to offend the Constitution that has stood as a bulwark between the people and governmental overreach for centuries. It simply makes those who desire a weapon likely to breach the peace register that weapon and pay a tax.”

United States v. Rush, 130 F.4th 633, 643–44 (7th Cir. 2025)

Read 4 tweets

Kostas Moros

@MorosKostas

Jun 14

Being in a depo all day with a brain a bit fried afterwards, I didn't get a chance to read the amicus brief filed by the United States in the four consolidated cases challenging the Illinois AWB and magazine ban, one of which I have worked on.

It's a very big deal for the Trump Administration to be backing us in this way, and not even waiting for it to get to the Supreme Court to do so. We are very grateful. Let's take a look at the brief!

The federal govt explains it is filing the brief pursuant to Trump's Second Amendment executive order, and so "lawabiding Americans in this Circuit are not deprived of the full opportunity to enjoy the exercise of their Second Amendment rights."

That's a big one. Right now, there are two Second Amendments in this country; the full version intended by the Founders, and the hollowed-out version the antigun states have implemented. That must not continue.

The federal govt openly embraces the common use test of protected arms.

Read 15 tweets

Kostas Moros

@MorosKostas

Jun 5

A quick thread on the ruling. Mexico's basic argument (well, really it is the argument of the American gun grabbers who aligned themselves with Mexico) was that S&W is liable for crimes in Mexico because their conduct falls within the "predicate exception" of the PLCAA. "That exception applies to lawsuits in which the defendant manufacturer or seller “knowingly violated a State or Federal statute applicable to the sale or marketing” of firearms, and the “violation was a proximate cause of the harm for which relief is sought.”"

Specifically, Mexico alleged "that the manufacturers were “willful accessories” in unlawful gun sales by retail gun dealers, which in turn enabled Mexican criminals to acquire guns. And it sets out three kinds of allegations relating to how the manufacturers aided and abetted retailers’ unlawful sales: The manufacturers allegedly (1) supply firearms to retail dealers whom they know illegally sell to Mexican gun traffickers; (2) have failed to impose the kind of controls on their distribution networks that would prevent illegal sales to Mexican traffickers; and (3) make “design and marketing decisions” intended to stimulate cartel members’ demand for their products. The District Court dismissed the complaint, but the First Circuit reversed, finding Mexico had plausibly alleged that defendants aided and abetted illegal firearms sales."

The Court held, 9-0:

Note that Mexico has a constitutional right to arms in its constitution just like we do.

This is our ghost of Christmas future. Words on a page don't mean anything if we allow our rights to be eroded. And Mexico didn't even buy themselves any safety with all their gun control.

Sure, they blame American guns, but their homicide rate is 6x our own, so that doesn't hold water.

This is a bullshit statistic. If I recall correctly, it's 90% of guns they ask the ATF to trace. But the majority of crime guns they make no such request for, because they know the guns aren't from the US.

Read 17 tweets

Kostas Moros

@MorosKostas

Jun 2

https://twitter.com/MorosKostas/status/1929531775791108196

May as well do a proper thread on this. Read for my analysis/cope.

https://twitter.com/MorosKostas/status/1929531775791108196

First up is Kavanaugh, in a statement respecting the denial of cert. (Basically a concurrence in denying it)

Not that it will matter until SCOTUS actually polices the antigun circuits, but Kavanaugh confirms we are right that:

a. there is a "common use" test. Antigun states have denied this, arguing there is no such test, or if there is, it's only "commonly used for self-defense."

b. it is historically-based (i.e., not part of the phony "plain text" analysis). Antigun states have argued it's at the plain text step.

Not strong enough to get granted cert now though, I guess?

Read 17 tweets

Kostas Moros

@MorosKostas

May 10

I've generally stopped doing threads on hardware rulings, because they are basically the same trash bad-faith analysis over and over again:

1. Declare that the guns or magazines at issue are not "arms."

2. Even if they are arms, banning them is analogous to pre-1900 restrictions on the concealed carry of certain weapons like bowie knives.

But since it's been a while since I've done such a thread, and the Washington v. Gator's Custom Guns ruling is short, I'll do a thread on it to shake off the rust.

This is a Washington State Supreme Court case about the state's magazine capacity law banning magazines of over ten rounds. It is not a federal case. However, the analytical flaws are the same.

Right from the start, they are unjustifiably limiting the scope of the right. The Second Amendment is NOT just about personal self-defense, and the language from the Supreme Court is that arms commonly used for lawful purposes are protected.

While magazines over ten rounds are commonly used for self-defense as millions of people carry such magazines daily, they are also used for target shooting, competitions, and in an extreme scenario, they would be used to resist foreign invaders or tyrant's armies.

Another tactic: get antigun academics to lend their credentials to utter bullshit, which antigun judges eat right up because a "Professor" said it.

In this case, Baron is smart enough to know that cartridge boxes are not the historical analog to magazines. Cartridge boxes still exist today. The analog to magazines today is....fixed magazines and cylinders in repeating rifles and revolvers. The fact that they are removable today does not make them not an "arm," nor does it make them just a mere cartridge box.

They are arms because they are undoubtedly part of the “weapon of offence” that a person “takes into his
hands, or useth in wrath to cast at or strike another.” District of Columbia v. Heller, 554 U.S. 570, 581 (2008) (citing founding-era dictionaries).

Read 12 tweets

Kostas Moros

@MorosKostas

May 1

Time for a thread on the amicus brief submitted by the United States (!!!) in Wolford v. Lopez.

To my knowledge, it is the first-ever Supreme Court brief filed by the United States in full support of petitioners challenging a gun law as unconstitutional under the Second Amendment, but someone correct me if I am wrong on that assertion. The amicus brief in Heller that the Bush administration did was more wishy-washy (i.e., yes 2A is an individual right but please remand because the analysis was wrong).

Great introduction that goes into the ramifications of the vampire rule. And as our amicus brief will cover, this was intentional. The vampire rule was created by antigun academics who openly stated the aim was to discourage carry.

This is why we insist on calling it the "Vampire Rule" in our briefing, a term invented by @2Aupdates.

It is NOT actually a "default" rule, because it is not default for anyone but those carrying with a CCW permit. A whole bunch of other categories of people carrying are exempt. The sudden concern with "private property rights," from people who have never met regulations affecting private property they didn't love, is totally phony.

Read 14 tweets

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