Federal Appeals Court: assault weapons have No 2A protection

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"A federal appeals court upheld Maryland's ban on assault rifles, concluding that the powerful military-style guns outlawed by the measure are not entitled to protection under the Second Amendment.

The 10-4 ruling, issued by the entire Fourth Circuit Court of Appeals in Richmond, reverses a decision by a smaller panel of judges from the court last year that called the law's constitutionality into question."



Read more at



http://www.baltimoresun.com/news/maryla ... story.htms :


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Re: Federal Appeals Court: assault weapons have No 2A protec

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I don't remember there being a clause in the 2nd amendment that says "except for powerful, military-style rifles".

Looks like they moved your story here: http://www.baltimoresun.com/news/maryla ... story.html
"When and if fascism comes to America... it will be called, of course, ‘Americanism'." - Halford Luccock
"Liberty without socialism is privilege and injustice. Socialism without liberty is slavery and brutality."
— Mikhail Bakunin

Re: Federal Appeals Court: assault weapons have No 2A protec

3
18th century muskets were the "military-style" weapons of their day.

This ruling is the kind that occurs when outright falsehoods and agenda-driven political buzz terms are allowed to persist unchallenged for decades. In 1988 the VPC saw the benefit of promoting the "assault weapon" myth.
http://archive.is/toa4z
http://www.vpc.org/studies/awaconc.htm
Assault weapons—just like armor-piercing bullets, machine guns, and plastic firearms—are a new topic. The weapons' menacing looks, coupled with the public's confusion over fully automatic machine guns versus semi-automatic assault weapons—anything that looks like a machine gun is assumed to be a machine gun—can only increase the chance of public support for restrictions on these weapons. In addition, few people can envision a practical use for these weapons.
That is how gun prohibitionists are winning in California and the northeast ban states, and it is how they are going to continue to win--characterizing semi-automatic centerfire rifles as something more than they are and promoting fear of the myth they've created.
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Re: Federal Appeals Court: assault weapons have No 2A protec

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CDFingers wrote:This will fail because it runs afoul of the "in common use" phrase.

Extinguish burning hair.

CDFingers
The fact that each of these unconstitutional laws have to work their way to the Supreme Court for clarification, and with an unknown outcome at even that level, means they haven't "failed". They've accomplished exactly their intent. Fling poo and hope something sticks, while forcing someone else to clean it up over and over and over.

The Supreme Court needs to collect all of these federal laws and strike then down at once with a clear and concise ruling.

Maybe it's time to put the right to free speech under a constant barage to see if the public and courts start waking up to the intent of the Bill of Rights. There are a couple of other amendments that could use some bolstering too. But nobody seems to care about spying on citizens without warrants.
Brian

Re: Federal Appeals Court: assault weapons have No 2A protec

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lurker wrote:i think it can be argued that because it mentions the militia, the second specifically refers to military-style weapons. what are we supposed to bring to war, single-shot .22s? airsoft? what do they think war is, a spirited game of paintball between cold beers?
After reading the article one might conclude the judges in the majority think 2A is about hunting.

This is particularly troubling:
"We are convinced that the banned assault weapons and large-capacity magazines are among those arms that are 'like' 'M-16 rifles' — 'weapons that are most useful in military service' — which the Heller Court singled out as being beyond the Second Amendment's reach," King wrote.
Somewhat true about Heller, though. Even Scalia fell into this trap.

It is evident the judges in the majority are far removed from the subject matter and ruled to their desired outcome.

While I'm at it, regarding the article:
A federal appeals court upheld Maryland's ban on assault rifles,...
False.

And previously I failed to mention something at the core of the gun prohibition campaign--the anthropomorphism of firearms. But former Senator Frosh did not forget:
"It's a very strong opinion and we think absolutely correct," said Frosh, who called the violence wrought by the now-banned guns "senseless."
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Re: Federal Appeals Court: assault weapons have No 2A protec

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inomaha wrote:The fact that each of these unconstitutional laws have to work their way to the Supreme Court for clarification, and with an unknown outcome at even that level, means they haven't "failed". They've accomplished exactly their intent. Fling poo and hope something sticks, while forcing someone else to clean it up over and over and over.
Yep, and SCOTUS already speaks their language, so it's already a partial victory.
inomaha wrote:The Supreme Court needs to collect all of these federal laws and strike then down at once with a clear and concise ruling.
I wouldn't count on it, regardless of who is confirmed for SCOTUS.
inomaha wrote:Maybe it's time to put the right to free speech under a constant barage to see if the public and courts start waking up to the intent of the Bill of Rights.
It already is, and the BoR is something government views as a list of obstacles to be overcome.
inomaha wrote:There are a couple of other amendments that could use some bolstering too. But nobody seems to care about spying on citizens without warrants.
Government has already defeated the people on 4A. Asking 100 people about a 4A-related scenario would get you a painfully large number of ...well, if you're not doing anything wrong you have nothing to fear... responses.
sbɐɯ ʎʇıɔɐdɐɔ pɹɐpuɐʇs ɟo ןןnɟ ǝɟɐs
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Re: Federal Appeals Court: assault weapons have No 2A protec

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DispositionMatrix wrote: It already is, and the BoR is something government views as a list of obstacles to be overcome.
This is mostly it, because the owners don't want their slaves to be armed, in the final analysis.

However, I ask for no burning hair because I'm in California. Our so called AW ban has features. The one here under discussion has more harsh features. So far, CA's has withstood. I'm not happy about it, but those are the facts.

This one is more harsh and would fall, I believe, to the "in common use" clause from Heller then retweeted in McDonald. (can't believe I typed 'retweeted')

CDFingers
Crazy cat peekin' through a lace bandana
like a one-eyed Cheshire, like a diamond-eyed Jack

Re: Federal Appeals Court: assault weapons have No 2A protec

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DispositionMatrix wrote:18th century muskets were the "military-style" weapons of their day.

This ruling is the kind that occurs when outright falsehoods and agenda-driven political buzz terms are allowed to persist unchallenged for decades. In 1988 the VPC saw the benefit of promoting the "assault weapon" myth.
http://archive.is/toa4z
http://www.vpc.org/studies/awaconc.htm
Assault weapons—just like armor-piercing bullets, machine guns, and plastic firearms—are a new topic. The weapons' menacing looks, coupled with the public's confusion over fully automatic machine guns versus semi-automatic assault weapons—anything that looks like a machine gun is assumed to be a machine gun—can only increase the chance of public support for restrictions on these weapons. In addition, few people can envision a practical use for these weapons.
That is how gun prohibitionists are winning in California and the northeast ban states, and it is how they are going to continue to win--characterizing semi-automatic centerfire rifles as something more than they are and promoting fear of the myth they've created.
You covered my thoughts on this.

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This is just my opinion, yours may vary and is no less valid.
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"I will never claim to be an expert, and it has been my experience that self proclaimed experts are usually self proclaimed."
-Me-

I must proof read more

Re: Federal Appeals Court: assault weapons have No 2A protec

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SilasSoule wrote:I don't remember there being a clause in the 2nd amendment that says "except for powerful, military-style rifles".

Looks like they moved your story here: http://www.baltimoresun.com/news/maryla ... story.html
I don't remember the 1st amendment having clauses that say "except for incitement of imminent lawless action, fighting words, true threats, obscenity, child pornography, libel, slander, invasion of privacy, intentional infliction of emotional distress, campaign contributions, government speech, public employee speech, student speech, military secrets, inventions, nuclear information, and weapons."

My point is that it's always tempting to say "the constitution doesn't say X", but you gotta remember that the constitution was never intended by the framers to be justification for anarchy, to be completely divorced from practicality.

While I disagree with the assault weapon ban, fighting it with the absolutist view of the constitution doesn't help, as it's never the position of the court. There are always exceptions, and the debate is whether the exception sufficiently serves public interest without too much abridgment / infringement of constitutionally protected rights.
Glad that federal government is boring again.

Re: Federal Appeals Court: assault weapons have No 2A protec

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inomaha wrote:Maybe it's time to put the right to free speech under a constant barage to see if the public and courts start waking up to the intent of the Bill of Rights.
Yes, this 2A ruling is like saying that you have a right to free speech, as long as it doesn't involve "conspiracy theories" that implicate government agencies, political extremism, offensive speech, hate speech, flag burning, blasphemy, etc. As long as you don't say anything controversial, your right to speak freely is protected.
"When and if fascism comes to America... it will be called, of course, ‘Americanism'." - Halford Luccock
"Liberty without socialism is privilege and injustice. Socialism without liberty is slavery and brutality."
— Mikhail Bakunin

Re: Federal Appeals Court: assault weapons have No 2A protec

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Stiff wrote:
SilasSoule wrote:I don't remember there being a clause in the 2nd amendment that says "except for powerful, military-style rifles".

Looks like they moved your story here: http://www.baltimoresun.com/news/maryla ... story.html
I don't remember the 1st amendment having clauses that say "except for incitement of imminent lawless action, fighting words, true threats, obscenity, child pornography, libel, slander, invasion of privacy, intentional infliction of emotional distress, campaign contributions, government speech, public employee speech, student speech, military secrets, inventions, nuclear information, and weapons."

My point is that it's always tempting to say "the constitution doesn't say X", but you gotta remember that the constitution was never intended by the framers to be justification for anarchy, to be completely divorced from practicality.

While I disagree with the assault weapon ban, fighting it with the absolutist view of the constitution doesn't help, as it's never the position of the court. There are always exceptions, and the debate is whether the exception sufficiently serves public interest without too much abridgment / infringement of constitutionally protected rights.
You have a right to SAY many of the things you mention, but you may run afoul of other laws if you do. As far as I know, no one has been prosecuted for simply uttering speech, it is always for the bad side effects. If I stand up in a crowded theater and yell "Fire!" and no one gets up, I think it would be unlikely that I could be found guilty of committing a crime. If I am alone with someone and I knowingly falsely accuse him of being a wife-beating child molester and no one hears it but the two of us, I won't be charged with slander. As far as I know, Milo Yiannopoulos is not going to be charged for defending sexual relationships between adults and minors.

Life of Brian: Man about to be stoned for saying "Jehovah"
https://www.youtube.com/watch?v=SYkbqzWVHZI
Last edited by SilasSoule on Wed Feb 22, 2017 9:32 pm, edited 1 time in total.
"When and if fascism comes to America... it will be called, of course, ‘Americanism'." - Halford Luccock
"Liberty without socialism is privilege and injustice. Socialism without liberty is slavery and brutality."
— Mikhail Bakunin

Re: Federal Appeals Court: assault weapons have No 2A protec

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So buy these judges opinions, most things considered covered under the constitution , should not be. If 2A does not apply to tech that was not forseen by the founding fathers, then a lot of things are about to change ..

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This is just my opinion, yours may vary and is no less valid.
- Me -

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-Me-

I must proof read more

Re: Federal Appeals Court: assault weapons have No 2A protec

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lurker wrote:i think it can be argued that because it mentions the militia, the second specifically refers to military-style weapons. what are we supposed to bring to war, single-shot .22s? airsoft? what do they think war is, a spirited game of paintball between cold beers?
Which is precisely what SCOTUS ruled in US v. Miller.
Last edited by Evo1 on Wed Feb 22, 2017 10:43 pm, edited 1 time in total.

Re: Federal Appeals Court: assault weapons have No 2A protec

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DispositionMatrix wrote:This is particularly troubling:
"We are convinced that the banned assault weapons and large-capacity magazines are among those arms that are 'like' 'M-16 rifles' — 'weapons that are most useful in military service' — which the Heller Court singled out as being beyond the Second Amendment's reach," King wrote.
Somewhat true about Heller, though. Even Scalia fell into this trap.
Except that this is a mis-reading of Heller. First, the Heller decision does not say that M-16s are not protected, though it does imply that they may not be. But more importantly, the reference to them is part of a larger argument about 'in common use'. The M-16 is used as an example of a firearm that is not in 'common use' among the public, not as a boundary of the Second Amendment. Scalia's point is that the 'in common use' standard might not include the M-16, and that this could potentially cause a conflict between Heller and the historical meaning of the militia clause, but he concludes that this argument doesn't invalidate the 'in common use' standard for what is protected. Since the AR-15, no matter how similar the 4th Circuit thinks it might be functionally to the M-16, is completely in a different class than the M-16 regarding its 'common use' status, they completely mis-cited Heller, totally turning Scalia's point on its head, in claiming that it justified their classing the two firearms similarly.

Re: Federal Appeals Court: assault weapons have No 2A protec

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SilasSoule wrote:
Stiff wrote:
SilasSoule wrote:I don't remember there being a clause in the 2nd amendment that says "except for powerful, military-style rifles".

Looks like they moved your story here: http://www.baltimoresun.com/news/maryla ... story.html
I don't remember the 1st amendment having clauses that say "except for incitement of imminent lawless action, fighting words, true threats, obscenity, child pornography, libel, slander, invasion of privacy, intentional infliction of emotional distress, campaign contributions, government speech, public employee speech, student speech, military secrets, inventions, nuclear information, and weapons."

My point is that it's always tempting to say "the constitution doesn't say X", but you gotta remember that the constitution was never intended by the framers to be justification for anarchy, to be completely divorced from practicality.

While I disagree with the assault weapon ban, fighting it with the absolutist view of the constitution doesn't help, as it's never the position of the court. There are always exceptions, and the debate is whether the exception sufficiently serves public interest without too much abridgment / infringement of constitutionally protected rights.
You have a right to SAY many of the things you mention, but you may run afoul of other laws if you do. As far as I know, no one has been prosecuted for simply uttering speech, it is always for the bad side effects. If I stand up in a crowded theater and yell "Fire!" and no one gets up, I think it would be unlikely that I could be found guilty of committing a crime. If I am alone with someone and I knowingly falsely accuse him of being a wife-beating child molester and no one hears it but the two of us, I won't be charged with slander. As far as I know, Milo Yiannopoulos is not going to be charged for defending sexual relationships between adults and minors.

Life of Brian: Man about to be stoned for saying "Jehovah"
https://www.youtube.com/watch?v=SYkbqzWVHZI
What "other law"? The constitution is the foundation of all laws, and takes precedence over all of them.
Glad that federal government is boring again.

Re: Federal Appeals Court: assault weapons have No 2A protec

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SilasSoule wrote:
Stiff wrote:
SilasSoule wrote:I don't remember there being a clause in the 2nd amendment that says "except for powerful, military-style rifles".

Looks like they moved your story here: http://www.baltimoresun.com/news/maryla ... story.html
I don't remember the 1st amendment having clauses that say "except for incitement of imminent lawless action, fighting words, true threats, obscenity, child pornography, libel, slander, invasion of privacy, intentional infliction of emotional distress, campaign contributions, government speech, public employee speech, student speech, military secrets, inventions, nuclear information, and weapons."

My point is that it's always tempting to say "the constitution doesn't say X", but you gotta remember that the constitution was never intended by the framers to be justification for anarchy, to be completely divorced from practicality.

While I disagree with the assault weapon ban, fighting it with the absolutist view of the constitution doesn't help, as it's never the position of the court. There are always exceptions, and the debate is whether the exception sufficiently serves public interest without too much abridgment / infringement of constitutionally protected rights.
You have a right to SAY many of the things you mention, but you may run afoul of other laws if you do. As far as I know, no one has been prosecuted for simply uttering speech, it is always for the bad side effects. If I stand up in a crowded theater and yell "Fire!" and no one gets up, I think it would be unlikely that I could be found guilty of committing a crime. If I am alone with someone and I knowingly falsely accuse him of being a wife-beating child molester and no one hears it but the two of us, I won't be charged with slander. As far as I know, Milo Yiannopoulos is not going to be charged for defending sexual relationships between adults and minors.

Life of Brian: Man about to be stoned for saying "Jehovah"
https://www.youtube.com/watch?v=SYkbqzWVHZI
There is a difference here. If you can be prosecuted for saying something, then your right to say it isn't protected under the Constitution. Saying you have a right to say them, but may run afoul of other laws is like saying you still have a right to own an AR in Maryland, but you may run afoul of their ban.

But the real difference is those things for which you can be prosecuted for uttering all involve causing actual harm or imminent threat to someone else, not merely potentially leading to it. AWBs are based on a different standard, and that's the problem. Yes, the 2nd Amendment is subject to the same kinds of limitations as the Freedom of Speech. Just as you cannot falsely accuse someone of something without being subject to prosecution for slander, you cannot shoot someone without justification without being subject to prosecution for manslaughter or murder. Just as you cannot verbally threaten someone in a convincing manner without being subject to prosecution for issuing threats, you cannot point a gun at someone without justification without being subject prosecution for assault. However, there is no equivalent of a gun ban in relation to speech. It is considered unconstitutional to preemptively ban a whole mode of speech just because it very occasionally might be used in a harmful way. That's the distinction we need to play on.

Re: Federal Appeals Court: assault weapons have No 2A protec

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Evo1 wrote:
SilasSoule wrote:
Stiff wrote:
SilasSoule wrote:I don't remember there being a clause in the 2nd amendment that says "except for powerful, military-style rifles".

Looks like they moved your story here: http://www.baltimoresun.com/news/maryla ... story.html
I don't remember the 1st amendment having clauses that say "except for incitement of imminent lawless action, fighting words, true threats, obscenity, child pornography, libel, slander, invasion of privacy, intentional infliction of emotional distress, campaign contributions, government speech, public employee speech, student speech, military secrets, inventions, nuclear information, and weapons."

My point is that it's always tempting to say "the constitution doesn't say X", but you gotta remember that the constitution was never intended by the framers to be justification for anarchy, to be completely divorced from practicality.

While I disagree with the assault weapon ban, fighting it with the absolutist view of the constitution doesn't help, as it's never the position of the court. There are always exceptions, and the debate is whether the exception sufficiently serves public interest without too much abridgment / infringement of constitutionally protected rights.
You have a right to SAY many of the things you mention, but you may run afoul of other laws if you do. As far as I know, no one has been prosecuted for simply uttering speech, it is always for the bad side effects. If I stand up in a crowded theater and yell "Fire!" and no one gets up, I think it would be unlikely that I could be found guilty of committing a crime. If I am alone with someone and I knowingly falsely accuse him of being a wife-beating child molester and no one hears it but the two of us, I won't be charged with slander. As far as I know, Milo Yiannopoulos is not going to be charged for defending sexual relationships between adults and minors.

Life of Brian: Man about to be stoned for saying "Jehovah"
https://www.youtube.com/watch?v=SYkbqzWVHZI
There is a difference here. If you can be prosecuted for saying something, then your right to say it isn't protected under the Constitution. Saying you have a right to say them, but may run afoul of other laws is like saying you still have a right to own an AR in Maryland, but you may run afoul of their ban.

But the real difference is those things for which you can be prosecuted for uttering all involve causing actual harm or imminent threat to someone else, not merely potentially leading to it. AWBs are based on a different standard, and that's the problem. Yes, the 2nd Amendment is subject to the same kinds of limitations as the Freedom of Speech. Just as you cannot falsely accuse someone of something without being subject to prosecution for slander, you cannot shoot someone without justification without being subject to prosecution for manslaughter or murder. Just as you cannot verbally threaten someone in a convincing manner without being subject to prosecution for issuing threats, you cannot point a gun at someone without justification without being subject prosecution for assault. However, there is no equivalent of a gun ban in relation to speech. It is considered unconstitutional to preemptively ban a whole mode of speech just because it very occasionally might be used in a harmful way. That's the distinction we need to play on.
This is another common misconception, that all abridgment to free speech allowed by the court are inherently harmful or threatening to someone else. The exceptions that I mentioned are nearly exhaustive; they include obscenity, campaign contribution, government speech, public employee speech, student speech, military secrets, inventions, nuclear information, and weapons. These are not considered protected speech not because they are inherently an attack on someone, but because they are against the best interest of the public.

A law against obscenity that penalizes you for purposely having naked sex in public is not unconstitutional, because the court holds that obscenity is not protected speech, even though you're harming nobody (you're actually pleasuring somebody).
Glad that federal government is boring again.

Re: Federal Appeals Court: assault weapons have No 2A protec

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Stiff wrote:This is another common misconception, that all abridgment to free speech allowed by the court are inherently harmful or threatening to someone else. The exceptions that I mentioned are nearly exhaustive; they include obscenity, campaign contribution, government speech, public employee speech, student speech, military secrets, inventions, nuclear information, and weapons. These are not considered protected speech not because they are inherently an attack on someone, but because they are against the best interest of the public.

A law against obscenity that penalizes you for purposely having naked sex in public is not unconstitutional, because the court holds that obscenity is not protected speech, even though you're harming nobody (you're actually pleasuring somebody).
But these are also considered inherently damaging to the public good, not merely occasionally or potentially so. So there is 'harm' (I didn't say or mean 'attack'), though not necessarily to a specific person. And while many of us may not consider exposure to public nudity to a be 'harmful', those who pass laws against it do, and it is by that logic that such laws are upheld. The same for restrictions on all these other forms of speech. That's still different from the prophylactic ban on guns simply because of the potential for a very small minority of owners to misuse them. The equivalent would be the forced removal of everyone's external genitalia just because a very few who possess them expose them in public.

Re: Federal Appeals Court: assault weapons have No 2A protec

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Kolbe v. Hogan
http://michellawyers.com/wp-content/upl ... pinion.pdf

Traxler's dissent:
Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens. In South Carolina, North Carolina, Virginia, West Virginia and Maryland [the districts of the 4th Circuit], the Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home. In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.

In addition, the majority holds that even if it is wrong when it says that the Second Amendment does not cover these commonplace rifles, Maryland can still lawfully forbid their purchase, even for self-defense in one’s home-the core Second Amendment right. My friends do not believe this ruling impairs the rights citizens have under the Constitution to any significant degree. In my view, the burden imposed by the Maryland law is considerable and requires the application of strict scrutiny, as is customary when core values guaranteed by the Constitution are substantially affected. I recognize that after such a judicial review, the result could be that the Maryland law is constitutional. I make no predictions on that issue. I simply say that we are obligated by Supreme Court precedent and our own to treat incursions into our Second Amendment rights the same as we would restrictions on any other right guaranteed us by our Constitution.

Therefore I respectfully dissent.
I. The Second Amendment Protects Semiautomatic Rifles and Large Capacity Magazines
A. Semiautomatic rifles are commonly possessed by law-abiding citizens.
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