California's standard-capacity mag ban challenged

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

#301 Post by featureless » Thu Oct 03, 2019 4:48 pm

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

#302 Post by TEXGunny » Thu Oct 03, 2019 4:52 pm

"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

#303 Post by featureless » Thu Oct 03, 2019 6:08 pm

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

#304 Post by TEXGunny » 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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Re: California's standard-capacity mag ban challenged

#305 Post by K9s » Fri Oct 04, 2019 12:43 am

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

#306 Post by DSinOR » Fri Oct 04, 2019 7:37 pm

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

#307 Post by featureless » Fri Oct 04, 2019 7:55 pm

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

#308 Post by DSinOR » Wed Oct 09, 2019 5:03 pm

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

#309 Post by Marlene » Wed Oct 09, 2019 9:27 pm

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

#310 Post by DSinOR » Fri Oct 11, 2019 4:51 am

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

#311 Post by shinzen » 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.
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Re: California's standard-capacity mag ban challenged

#312 Post by Marlene » Fri Oct 11, 2019 9:17 am

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

#313 Post by Inquisitor » Fri Oct 11, 2019 10:00 am

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

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