California's standard-capacity mag ban challenged

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featureless
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Re: California's standard-capacity mag ban challenged

Post by featureless »

DSinOR wrote:
Thu Oct 03, 2019 4:46 pm
"Fighting Arms" instead of "Common Use" argument.

"We get to have this because people already have it"

is a lame argument compared to

"We get to have this because it is a fighting arm and our right to fighting arms is cemented in the Constitution."

Thoughts anyone?
Heller says "common use", not "fighting arms." Unless we want to start over, I suggest we stick with what SCOTUS has ruled.

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Re: California's standard-capacity mag ban challenged

Post by TEXGunny »

"in common use for lawful purposes" is the Heller line

"useful for the militia" is the Miller standard.

They both apply to arms. The trick is, any weapon in common use is useful for the militia, so really the two cases are saying the same thing.

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Re: California's standard-capacity mag ban challenged

Post by featureless »

TEXGunny wrote:
Thu Oct 03, 2019 4:52 pm
The trick is, any weapon in common use is useful for the militia, so really the two cases are saying the same thing.
Unless you're an anti gun attorney, judge or justice. Then there is a vast chasm between the entirety of what Heller says and what it is tortured into. It is very clear from a frank reading of Heller that "keep" and "bear" are protected, unless you're a felon or mentally ill. Yet here we are, so many years latter, attempting to tell New York that "bear" means outside the home, despite Ginsburg's clear definition in Heller.

I agree with your premise, but, like I said, we're too far down the road to change the approach.

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Re: California's standard-capacity mag ban challenged

Post by TEXGunny »

featureless wrote:
TEXGunny wrote:
Thu Oct 03, 2019 4:52 pm
The trick is, any weapon in common use is useful for the militia, so really the two cases are saying the same thing.
Unless you're an anti gun attorney, judge or justice. Then there is a vast chasm between the entirety of what Heller says and what it is tortured into. It is very clear from a frank reading of Heller that "keep" and "bear" are protected, unless you're a felon or mentally ill. Yet here we are, so many years latter, attempting to tell New York that "bear" means outside the home, despite Ginsburg's clear definition in Heller.

I agree with your premise, but, like I said, we're too far down the road to change the approach.
We'll get there eventually. Maybe even this session with the boatload of 2A cases up for cert

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Re: California's standard-capacity mag ban challenged

Post by K9s »

TEXGunny wrote:
Thu Oct 03, 2019 11:19 pm
featureless wrote:
TEXGunny wrote:
Thu Oct 03, 2019 4:52 pm
The trick is, any weapon in common use is useful for the militia, so really the two cases are saying the same thing.
Unless you're an anti gun attorney, judge or justice. Then there is a vast chasm between the entirety of what Heller says and what it is tortured into. It is very clear from a frank reading of Heller that "keep" and "bear" are protected, unless you're a felon or mentally ill. Yet here we are, so many years latter, attempting to tell New York that "bear" means outside the home, despite Ginsburg's clear definition in Heller.

I agree with your premise, but, like I said, we're too far down the road to change the approach.
We'll get there eventually. Maybe even this session with the boatload of 2A cases up for cert

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Optimistic. I don't know if they will ever directly address it.
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Re: California's standard-capacity mag ban challenged

Post by DSinOR »

featureless wrote:
Thu Oct 03, 2019 4:48 pm
Heller says "common use", not "fighting arms." Unless we want to start over, I suggest we stick with what SCOTUS has ruled.
Exactly! Thanks.

Would you support injecting the fighting arms argument into the narrative, either as a replacement for the "common use" argument, or as a new additional argument to make?

If not, what would it take to change your mind?

Not just you featureless, or you Tex, but anyone who reads this thread.

My assertions:

1 - Heller is not the end-all. It touched primarily on the individual right to arms for self-defense, and broached "not without limits", but left many elements of the 2A issue untouched. Maybe Scalia's scope was limited by his need to gain the support of 4 other justices. Maybe he intended to focus only on the complaint (home handgun in D.C.). Maybe he believed in "assault weapon" bans. Who knows?
Heller was a fortunate definition of the individual right, but the language in that decision does not have to frame the discourse moving forward. The Constitution still means what it meant 231 years ago: the right of the people to keep and bear fighting arms for defense of their own freedom shall not be infringed. The right to arms for other legit purposes was neither reserved for the gov or denied the people, therefore belongs to the people. The people remain the source of the law. Either we steer the courts when interpretation becomes questionable, or the courts steer us with questionable interpretation.

2 - The Miller "useful for militia" stance is the fighting arms argument in different clothing, IMO.
[ In the absence of evidence showing that a SBS ] "has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
Doesn't this sentence say that an SBS as a fighting arm is not essential to the efficiency of a properly equipped citizen militia, and is therefore not protected? And in so doing, the sentence represents a Supreme Court framing of the fighting arms argument?

3 - The "common use" argument is weak. It will always be susceptible to attack.
Ex.: What percentage of Americans own an AR or a 30-rd mag? 25%? "Well, that's not common, so they are not protected."
We need a better argument, and we don't have to wait 50 years for the court to bring it up for us. We can bring it up. We are the source of the law.
Furthermore, the supreme law of the land already says what we are arguing, and Miller already touched on the concept of fighting arms.

At the end of the day, I think it comes down to who is framing the narrative. Do we wait for attacks and then respond, or do we establish our own narrative and make the other side respond?

A core issue is the ongoing effort to ban "assault rifles" and mags.

You either argue against AWB's on the basis of common use, or use the NSSF's approach of "sporting arms", or take the "fighting arms" approach.
https://www.nssf.org/the-term-modern-sp ... porting%27
https://www.nssf.org/making-the-case-fo ... porting%27

I think a large percentage of Americans can recognize that 2A protects a right to fighting arms adequate for defense of liberty. Many gun owners hold that ideal, but we don't argue it.

Maybe the reason we don't use that argument is because it lays all the cards on the table, and many Americans don't want to think about the potential reality of citizens contesting oppression?

Thoughts?

The reason I'm interested in this discussion is I am writing a website for a new pro-2A org, and this is one of the issues that I need to address in a way that can appeal to a broad support base.

Thx,

Dave

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Re: California's standard-capacity mag ban challenged

Post by featureless »

Dave,

The problem with "fighting arms" is that you will lose any public support immediately. I understand the reasoning to include it--it's really what the 2A stands for. But in today's world views, we're lucky to have "common use." We'll see what CA9 does with that for the California magazine ban in the next year or so.

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Re: California's standard-capacity mag ban challenged

Post by DSinOR »

Thanks for the feedback featureless.

It is an interesting thought exercise to compare the probable outcomes of long-term pursuit of a "common use" strategy vs. the perceived shortcomings of attempting to employ a "fighting arms" strategy.

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Re: California's standard-capacity mag ban challenged

Post by Marlene »

Sweet baby jeezus
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Re: California's standard-capacity mag ban challenged

Post by DSinOR »

Hi Marlene.

I'm not sure how to respond to veiled barbs from a person who hates America but posts 4923 times on a forum that seeks to preserve 2a.

The goal of preserving 2a is to preserve America.

If you hate America, why you here?

If you have something you want to say, why don't you just say it?

Pick something I said and show me it's wrong. Use a valid argument.

Or call me an insulting name.

You choose.

But remember, name-calling is an ad hominem attack, and fallacy is the tool of the fool.

I like your Eleanor avatar. Is that a facade, or do you seek to emulate her civility and good will towards mankind? :D

Hugs,

Dave

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Re: California's standard-capacity mag ban challenged

Post by shinzen »

1) DS- Baiting/goading someone isn't going to go over well. A short response of holy shit/sweet baby jesus to a lengthy post with a lot to unpack isn't a veiled insult. Knock it off.

2) Going for the fighting arms angle is just another "SHALL NOT BE INFRINGED" and "MUH 2A". If that's going to be the direction of your website, you'll be one of 1000 out there- and it's not going to have broad appeal. It's just going to be more fodder for some of the base.
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Re: California's standard-capacity mag ban challenged

Post by Marlene »

Sorry Shin, you’re wrong. It WAS an insult. Wasn’t meant to be veiled.

Dave, my avatar isn’t Eleanor.
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Re: California's standard-capacity mag ban challenged

Post by Inquisitor »

New guys don’t get to set the tone. I think that’s enough for now.

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Re: California's standard-capacity mag ban challenged

Post by DSinOR »

shinzen wrote:
Fri Oct 11, 2019 7:39 am
1) DS- Baiting/goading someone isn't going to go over well. A short response of holy shit/sweet baby jesus to a lengthy post with a lot to unpack isn't a veiled insult. Knock it off.

2) Going for the fighting arms angle is just another "SHALL NOT BE INFRINGED" and "MUH 2A". If that's going to be the direction of your website, you'll be one of 1000 out there- and it's not going to have broad appeal. It's just going to be more fodder for some of the base.
My BIL has a favorite saying: "Don't poke a skunk." Meaning, don't go looking for trouble, stir the pot, etc. I apologize. That was unnecessary and unproductive.

I appreciate your other feedback. It's helpful.

I understand the perspectives voiced by you and featureless re fighting arms.
It's interesting that we are willing to parse, compromise, and surrender ground protected by 2A, but never an inch protected by 1A.

The "in common use" tactic is destined for failure.
State law encroachment on RKB "assault weapons" is the prevailing trend, by which no such arms will eventually be in common use. The smart way for anti-gun people to deal with a "common use" ruling handed down by the courts is to reduce the types of guns in common use.

***

Political success is predicated on pursuit of politically viable objectives.

I posted concerns about the "fighting arms" subject here because I worry that presenting the truth is a potential threat to political viability. You and featureless seem to confirm that concern.

Which leaves a precarious position: avoid truth because it may offend some people you hope to attract, but by avoiding truth you are left with only one other alternative, which is to embrace a strategy that is doomed to fail.

I think the clear solution is to stick with the truth, and to structure things such that viable objectives are prioritized, and volatile issues are only introduced.

Thanks. Not sure how many people here are interested in discussion of these ideas, but I appreciate the intelligent feedback received so far.

Dave

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Re: California's standard-capacity mag ban challenged

Post by K9s »

I just know enough to know that my state would fight any federal law, and that I have zero influence on how the courts rule. Sittin' here with popcorn hoping no mag cap bans.

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Re: California's standard-capacity mag ban challenged

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Last edited by lurker on Tue Oct 29, 2019 6:12 pm, edited 1 time in total.

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Re: California's standard-capacity mag ban challenged

Post by tonguengroover »

The second amendment is there in case the first amendment ceases to exist.
Buy the ticket; take the ride

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Re: California's standard-capacity mag ban challenged

Post by max129 »

I think all this is a big question of "Where is the tipping point where [I/you/we/anyone-Bueller?Bueller] will cease to cooperate" and accommodate some new erosion of a fundamental right.

First they came for the Communists
And I did not speak out
Because I was not a Communist

Then they came for the Socialists
And I did not speak out
Because I was not a Socialist

Then they came for the trade unionists
And I did not speak out
Because I was not a trade unionist

Then they came for the Jews
And I did not speak out
Because I was not a Jew

Then they came for me
And there was no one left
To speak out for me

--- Martin Niemöller
I do not today know where the line is for me. I believe the erosions of rights are currently strongest in:

Amendment IV - unreasonable search (surveillance)

Amendment VI - speedy trial

Amendment VIII - excessive bail -and- immoral sentences for non-violent crimes

I do believe Amendment II is under threat, and has been regulated into near oblivion in California and Massachusetts, but is not under the same level of erosion as Amendment IV.

When Apple Computer took a principled stand on the 4th Amendment, the popular support for their position was very weak. I was proud as hell about what they did. My sentiments were not widely shared.

I have read many times Thoreau's essay on "Resistance to Civil Government" (Civil Disobedience). It is my observation that the US is more resistant today to many forms of civil disobedience than during the civil rights marches of the 1960s. They cloak the modern argument in anti-terrorism and use the flag to gag many protesters. Edward Snowden is an example.

If we held a public poll, how many people in the US would label him as a "traitor", a "patriot", a "confused young man", or something else?

Edward Snowden many be a flawed human (as are we all), but I do believe that his actions were basically a principled stand on the 4th Amendment. One can argue with his methods and degree of information released - I have met no one who has argued well that he was in it for personal gain or for any purpose other than principled civil disobedience.

We are all frogs slowly being cooked to death, largely because most of us cannot quite identify a "better" place to go. Especially if one's primary goal is to preserve the 2nd Amendment, it is very hard to find a place one would be willing to live that has freedom to keep and bear arms.

I am unhappy with all of the above. I have no remedy. The tide of history is against the 2nd Amendment. I see no Country rediscovering the need and right for its citizens to be individually armed. Our current robust rights WRT arms are soley the result of actions at a State level, not a National movement.
Last edited by max129 on Tue Oct 29, 2019 6:44 pm, edited 2 times in total.
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Re: California's standard-capacity mag ban challenged

Post by max129 »

Also, boating accident ...
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Re: California's standard-capacity mag ban challenged

Post by CDFingers »

I have had nine letters to the editor published since June 1. None was flattering to the golfing orange spirochete.

No, sir. I will not sit down.

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Re: California's standard-capacity mag ban challenged

Post by lurker »

i've used that "lexington and concord were recent memory" argument numerous times.

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Re: California's standard-capacity mag ban challenged

Post by max129 »

CDFingers said:

I have had nine letters to the editor published since June 1 ...

No, sir. I will not sit down.
I agree with this. Being silent is a mistake.

I have focused most of my recent political writing sending input to political candidates.

My comments above are not that speaking out is futile; I am more responding to the point at which discourse ceases and underground action starts.
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Re: California's standard-capacity mag ban challenged

Post by TEXGunny »

As Dave Chappelle has eloquently said: "The First Amendment is first for a reason. Second Amendment is just in case the first one doesn’t work out."

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Re: California's standard-capacity mag ban challenged

Post by sikacz »

TEXGunny wrote:
Wed Oct 30, 2019 10:37 am
As Dave Chappelle has eloquently said: "The First Amendment is first for a reason. Second Amendment is just in case the first one doesn’t work out."
Sounds catchy, but they are all equal.
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Re: California's standard-capacity mag ban challenged

Post by lurker »

as i understand it, because they were suspicious of overweening government, the founders said "no BOR, no union". so my take is, if one amendment (doesn't matter which) is gone, the national entity is dissolved.

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