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

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Opinion guy:
https://www.washingtonpost.com/blogs/al ... r-the-law/
The 4th Circuit applies an unworkable reading of the 2008 landmark Supreme Court case District of Columbia v. Heller. The court reasons that Heller, which affirmed the right to keep and bear arms as an individual right rather than a right connected with service in the militia, offers a bright-line rule for discerning which firearms are not constitutionally protected: weapons that are “most useful in military service,” says the court, are not shielded by the Second Amendment. Applying this rule, the court ultimately decides there is no substantive difference between the AR-15 — or any of the other 44 types of firearms specifically banned by the FSA — and the military’s M16.

Any person with experience on the M16 or AR-15 knows the weapons are similar; they are not, however, identical. Many differences exist (especially depending on the model), but the primary difference is that the M16 has fully automatic capabilities. Yet the court dismisses this crucial difference as insignificant, treating isolated rate-of-fire comparisons between the two weapons as decisive (here, the court’s overweening intellectual conceit outpaces its wisdom; I challenge the distinguished judges to find a combat infantry unit that believes there is no operative difference between a machine gun and a semiautomatic rifle).

Despite these differences, the court charges onward, deciding such firearms fall outside the purview of the Second Amendment. This decision begs the question: What is the limit? If the court is willing to overlook differences in functionality, performance metrics, and physical characteristics, what basis exists to differentiate between firearms reserved only for military use and those protected by the Second Amendment? Indeed, if a lawmaking body sought to eviscerate the Second Amendment’s protections, under the 4th Circuit’s reasoning, it need only manufacture a connection — however ludicrous — between the proposed banned firearm and any weapon used by the military.
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Re: Federal Appeals Court: assault weapons have No 2A protec

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intra1active wrote:I just came across a blog with a post that takes the 4th Circuit decision on. Seems to be a good analysis of the flaws. It also presents some evidence from Maryland stats that show the absolute needs or an assault weapon ban. It was posted Saturday, February 25.

It's at: http://dickweisgrau.blogspot.com


Sent from my iPad using Tapatalk
He brings up the old " Assault weapon did not exist before anti gunners made it up" defense, which I think now is a moot point.
As we pointed out on this board previously, even gun manufactures advertised using this term even back into the late 80s early 90s. Its pretty well been established in the American Lexicon as a defining word for a perceived weapon type.

So to say there is no such thing as an assualt weapon because the term did not exist before someone made it up, is like saying there is no such thing as a rusty trombone. Someone made that up too, and it apparently exist.
This is just my opinion, yours may vary and is no less valid.
- Me -

"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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DispositionMatrix wrote:Opinion guy:
https://www.washingtonpost.com/blogs/al ... r-the-law/
The 4th Circuit applies an unworkable reading of the 2008 landmark Supreme Court case District of Columbia v. Heller. The court reasons that Heller, which affirmed the right to keep and bear arms as an individual right rather than a right connected with service in the militia, offers a bright-line rule for discerning which firearms are not constitutionally protected: weapons that are “most useful in military service,” says the court, are not shielded by the Second Amendment. Applying this rule, the court ultimately decides there is no substantive difference between the AR-15 — or any of the other 44 types of firearms specifically banned by the FSA — and the military’s M16.

Any person with experience on the M16 or AR-15 knows the weapons are similar; they are not, however, identical. Many differences exist (especially depending on the model), but the primary difference is that the M16 has fully automatic capabilities. Yet the court dismisses this crucial difference as insignificant, treating isolated rate-of-fire comparisons between the two weapons as decisive (here, the court’s overweening intellectual conceit outpaces its wisdom; I challenge the distinguished judges to find a combat infantry unit that believes there is no operative difference between a machine gun and a semiautomatic rifle).

Despite these differences, the court charges onward, deciding such firearms fall outside the purview of the Second Amendment. This decision begs the question: What is the limit? If the court is willing to overlook differences in functionality, performance metrics, and physical characteristics, what basis exists to differentiate between firearms reserved only for military use and those protected by the Second Amendment? Indeed, if a lawmaking body sought to eviscerate the Second Amendment’s protections, under the 4th Circuit’s reasoning, it need only manufacture a connection — however ludicrous — between the proposed banned firearm and any weapon used by the military.
The problem is even deeper, in that Heller establishes no such 'bright line rule'. Scalia did posit the possibility that weapons like the M-16 might not be covered under the 'in common use' standard (which was a rule established in Heller, and which would make the AR-15 clearly protected), and that this might create some conflict with the concept of firearms suitable for military service should be protected (the standard established in Miller), but he never said that such firearms aren't protected, only that some of them may not be given that 'in common use' was a standard they were establishing.

So the 4th Circuit completely invented a standard that has never existed before, and is the opposite of what SCOTUS has said. It completely turns Heller on its head by using Scalia's argument about why 'in common use' is the proper standard to justify banning guns in common use, and directly contradicts Miller in saying that the very firearms SCOTUS therein ruled to be the most protected are now not at all.

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

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Evo1 wrote:So the 4th Circuit completely invented a standard that has never existed before, and is the opposite of what SCOTUS has said. It completely turns Heller on its head by using Scalia's argument about why 'in common use' is the proper standard to justify banning guns in common use, and directly contradicts Miller in saying that the very firearms SCOTUS therein ruled to be the most protected are now not at all.
Following in this ass-backwards interpretation of Miller, I have now seen multiple people argue in support of this decision by saying in the same breath that the AR-15 and firearms like it are specifically designed to kill people and are therefore unsuitable for self-defense. Try wrapping your brain around that without getting a headache.
My official title is Doctor Mister Hunter Of Skullyness. Don't ask me, ask Fukshot.

The moral certainty of the crusader is as much a comfort to them as it is a burden to those in the path of their crusade.

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

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TheHunterOfSkulls wrote:Following in this ass-backwards interpretation of Miller, I have now seen multiple people argue in support of this decision by saying in the same breath that the AR-15 and firearms like it are specifically designed to kill people and are therefore unsuitable for self-defense. Try wrapping your brain around that without getting a headache.
Well, killing is offensive, so it can't be defensive, right??? :blink:

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

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Evo1 wrote:Well, killing is offensive, so it can't be defensive, right??? :blink:
I'd say "don't give them any ideas", but I've all ready seen people seriously claim that self-defense is vigilantism.
My official title is Doctor Mister Hunter Of Skullyness. Don't ask me, ask Fukshot.

The moral certainty of the crusader is as much a comfort to them as it is a burden to those in the path of their crusade.

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

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Stiff 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
What "other law"? The constitution is the foundation of all laws, and takes precedence over all of them.
Here's another example. I'm sitting in a coffee shop and we're talking about the police shooting of an unarmed black teenager, and someone at the table says, "I say we burn the MF down!" He's not going to be prosecuted. However, if we are at a rally that evening and there is a restive crowd of protesters, and he stands on top of a car with a megaphone and yells, "I say we burn the MF down!", he's likely to be charged with inciting a riot. It's not the utterance that gets him in trouble, it's the context.
"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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Evo1 wrote:
TheHunterOfSkulls wrote:Following in this ass-backwards interpretation of Miller, I have now seen multiple people argue in support of this decision by saying in the same breath that the AR-15 and firearms like it are specifically designed to kill people and are therefore unsuitable for self-defense. Try wrapping your brain around that without getting a headache.
Well, killing is offensive, so it can't be defensive, right??? :blink:
Think about it most firearms, from the days of the Chinese bamboo and iron guns to the M1, M1 carbine, 1903 Springfield, and later military rifles along with M1911 and most other handguns were designed to kill people not for hunting animals for the table. The anti gun crowd is like the rabid Right to Life crowd, they will not be happy till they have it all. Anti guns wants no guns. Right to Lifers want no abortion and no birth control.
Facts do not cease to exist because they are ignored.-Huxley
"We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both." ~ Louis Brandeis,

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

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PiratePenguin wrote:So to sum up:

Miller says that weapons without military use are not protected by the Second Amendment

This decision says that weapons with military use are not protected by the Second Amendment

Who wrote this opinion, Joseph Heller?
Yeah. You have to be crazy to believe this juxtaposition. Murica.

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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CDFingers wrote:
This decision begs the question: What is the limit?
The rifle should not be regulated unless it has burst and/or full-auto capability. For those you need a license.

I think that can work.

CDFingers
I don't have a problem with that either. The problem lies in the ignorance of those unschooled on firearms conflating semi-autos with actual "Assault Weapons". This isn't helped by movies and television showing scenes of full auto mayhem with weapons that look exactly like the garden variety semi-auto AR15/AK45/Uzi. What we have is a public relations problem, a failure to educate. The sight of whack job goobers doing open carry in the aisles of Walmart doesn't help either.

All that said, let's look at the logistics of enforcing such a ban. There are already more of these weapons in private American hands than in the militaries of most countries. About the first time any government entity moved to confiscate all hell would break loose. A few LEOs I know have said they'd have a hard time following that order. I don't know the mind of today's soldier but 40 years ago I'd have refused an order to act in any way against American civilians.
"Better to die on your feet than to live on your knees" - Emiliano Zapata

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

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Dreamsinger wrote:
CDFingers wrote:
This decision begs the question: What is the limit?
The rifle should not be regulated unless it has burst and/or full-auto capability. For those you need a license.

I think that can work.

CDFingers
I don't have a problem with that either. The problem lies in the ignorance of those unschooled on firearms conflating semi-autos with actual "Assault Weapons".
Based on the context you provided, I'm guessing you meant assault rifles there. "Assault weapon" is a political term representing a bucket in which politicians can toss any firearms they deem overly scary, and that most definitely includes garden variety semi-automatic carbines.
sbɐɯ ʎʇıɔɐdɐɔ pɹɐpuɐʇs ɟo ןןnɟ ǝɟɐs
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(béɟ) 59-pɯɐ

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

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DispositionMatrix wrote:
Dreamsinger wrote:
CDFingers wrote:
This decision begs the question: What is the limit?
The rifle should not be regulated unless it has burst and/or full-auto capability. For those you need a license.

I think that can work.

CDFingers
I don't have a problem with that either. The problem lies in the ignorance of those unschooled on firearms conflating semi-autos with actual "Assault Weapons".
Based on the context you provided, I'm guessing you meant assault rifles there. "Assault weapon" is a political term representing a bucket in which politicians can toss any firearms they deem overly scary, and that most definitely includes garden variety semi-automatic carbines.
Is there a clear definition of either term?
"Better to die on your feet than to live on your knees" - Emiliano Zapata

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

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Dreamsinger wrote:
DispositionMatrix wrote:
Dreamsinger wrote:
CDFingers wrote: The rifle should not be regulated unless it has burst and/or full-auto capability. For those you need a license.

I think that can work.

CDFingers
I don't have a problem with that either. The problem lies in the ignorance of those unschooled on firearms conflating semi-autos with actual "Assault Weapons".
Based on the context you provided, I'm guessing you meant assault rifles there. "Assault weapon" is a political term representing a bucket in which politicians can toss any firearms they deem overly scary, and that most definitely includes garden variety semi-automatic carbines.
Is there a clear definition of either term?
There is a clear definition for _one_ of them. Assault rifle is a technical term referring to a select-fire carbine. An M-4 is an assault rifle; a Colt LE6920 is not.

Since it is a political term, "assault weapon" cannot have a clear definition. It is a catchall for firearms the ruling class does not want the peasants to have. The codification of "assault weapon" into law doesn't change the fact is it a nonsense term.

This handy slideshow sometimes helps: http://www.assaultweapon.info/
sbɐɯ ʎʇıɔɐdɐɔ pɹɐpuɐʇs ɟo ןןnɟ ǝɟɐs
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13ʞ
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Re: Federal Appeals Court: assault weapons have No 2A protec

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Nice write-up on Kolbe v. Hogan.
The Federalist: If The Supreme Court Takes This Gun Control Case, Its Decision Will Be Huge
Three Different Standards for Constitutionality
While the four circuit courts that have considered the constitutionality of bans on “assault” weapons and large-capacity magazines have all upheld the gun-control legislation, in doing so they have adopted three different standards for judging the constitutionality of the laws under the Second Amendment and the Supreme Court’s Heller decision.

The Second Circuit and the D.C. Circuit both concluded Second Amendment protections extend to semiautomatic rifles and large-capacity magazines. But, because banning such weapons and ammunition does “not seriously impact a person’s ability to defend himself in the home,” the appellate courts held that the appropriate question for them to consider is whether the government established a substantial relationship between the prohibition and an important state interest.
Conversely, the Seventh Circuit in Friedman v. City of Highland Park crafted a different test, reasoning that, “instead of trying to decide what ‘level’ of scrutiny applies, and how it works,” it is more suitable “to ask whether a regulation bans weapons that were common at the time of ratification or those that have some reasonable relationship to the preservation or efficiency of a well-regulated militia, and whether law-abiding citizens retain adequate means of self-defense.” Applying that standard, in a split 2-1 decision, the Seventh Circuit upheld the Highland Park ban on semiautomatic weapons and large-capacity magazines.
sbɐɯ ʎʇıɔɐdɐɔ pɹɐpuɐʇs ɟo ןןnɟ ǝɟɐs
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13ʞ
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(béɟ) 59-pɯɐ

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

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Three Different Standards for Constitutionality
the appellate courts held that the appropriate question for them to consider is whether the government established a substantial relationship between the prohibition and an important state interest.
In other words, is prohibiting the death of around 200 people per year more or less important than infringing on the second amendment by prohibiting the most popular rifle in the US (roughly 20% of all guns). That's a tough question. However, approximately 32,000 die in cars every year. There is no Constitutional amendment guaranteeing the freedom to own cars, nor is there any movement to ban them. Apples and oranges? I dunno.

We'd need to ban an awful lot of shit if the goal is to reduce things that cause the death of 200 people per year. This by no means indicates I am insensitive to those who are killed.

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

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DispositionMatrix wrote:
Dreamsinger wrote:Is there a clear definition of either term?
There is a clear definition for _one_ of them. Assault rifle is a technical term referring to a select-fire carbine. An M-4 is an assault rifle; a Colt LE6920 is not.

Since it is a political term, "assault weapon" cannot have a clear definition. It is a catchall for firearms the ruling class does not want the peasants to have. The codification of "assault weapon" into law doesn't change the fact is it a nonsense term.

This handy slideshow sometimes helps: http://www.assaultweapon.info/
Unfortunately, language being squishy and English being muy squishier, both definitions are in 'civilian' dictionaries.

http://www.dictionary.com/browse/assault-rifle
1. a military rifle capable of both automatic and semiautomatic fire, utilizing an intermediate-power cartridge.

2. a nonmilitary weapon modeled on the military assault rifle, usually modified to allow only semiautomatic fire.
These are the sorts of places the non-shooting public and 'journalists' (redundant?) get their definitions...

ETA...might want to give CD's posts a read (along with the linked blogs) as it makes clear the overall process by which the anti-gunners are changing words, flinging fertilizer, and generally winning the fight.
viewtopic.php?f=65&t=45763

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

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I would base my argument that modern rifles are covered by the 2nd Amendment on the Declaration of Independence.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world."

How are a people supposed to "throw off" an "absolute Despotism" without modern weapons? Clearly, the founders thought we had an unalienable right, an actual duty, to overthrow the government if it devolves into despotism.
Last edited by SilasSoule on Sat Nov 11, 2017 8:56 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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PiratePenguin wrote:So to sum up:

Miller says that weapons without military use are not protected by the Second Amendment

This decision says that weapons with military use are not protected by the Second Amendment

Who wrote this opinion, Joseph Heller?
I just read through this thread today, and had several insights. One of which is that Scalia's Heller decision is a hideously badly "reasoned" one that contradicts itself.

First off, Scalia, for the first time in my knowledge, created a Supreme Court decision that arbitrarily nullified an active clause of the US Constitution. Again, to my knowledge, the ONLY nullifications of Constitutional clauses have been through the amendment process.

I believe these are the relevant amendments--there may be more.
11th changed the Federal Court system.
12th changed how the Electoral College works.
16th reversed the clause prohibiting income tax.
17th took election of senators out of the state legislatures.
20th changed when the inauguration took place.
21st repealed the 18th.
22nd created a Presidential term limit.
23rd gave the District of Columbia electoral votes.
26th gave 18 year olds the vote.

That's how you change the Constitution. Unless modified and nullified by the Amendment process, every word in the document must be considered as part of the ultimate law of the nation. Yet, in Heller, Scalia wrote that the first 14 words of the 2nd "A well regulated Militia, being necessary to the security of a free State," could be ignored:
Scalia on Heller v. DC wrote:The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause.
Items mentioned in this thread indicated precisely why this is both a dangerous and idiotic assertion that actually THREATENS our RKBA. I was shocked when I realized that! Because of this decision, and others in Heller, Scalia has stupidly opened the door to our more fanatical liberal brothers and sisters to ban all semi-automatic rifles and even semi-automatic handguns!

Then Scalia contradicts himself by re-asserting the value of the militia clause:
Scalia on Heller v. DC wrote:None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.
What the hell does this mean? Does it mean that what arms you own can only be regulated if you use them as a militia member, which makes no sense since the current militias, ie, the National Guard, are able to use all the weapons the US military has at its disposal? Or does he mean that only "common use for lawful purposes" weapons are allowed for citizens? Are they implicitly in the militia or not? The first quote indicates the answer is "no".

Then Scalia goes on to re-iterate a well-established precedent that EVERY right enumerated in the Constitution is subject to reasonable limits (crying "FIRE!" in a crowded theater is the paradigmatic example).
Scalia on Heller v. DC wrote:Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
Scalia has simply, while writing to appease the NRA, screwed up and opened the door to all kinds of firearm limitation.

the "common use for lawful purposes" is EXACTLY the opening the ultimate gun control advocates need. As someone in an earlier post noted, muskets were the militia weapons in common use at the time.

So here's the problem as I see it: If the militia clause is valid, then there's no legal basis to ban "assault-type weapons" (whatever that means) because they would be used, or similar to those weapons used by a well-regulated militia. If the militia clause is NOT valid, as Scalia asserts, then there's no way that military and military-type weapons are protected by the 2nd because they can be defined as either or both outside "common use" or "dangerous and unusual" weapons.

Had, Scalia, as I have posited before, indicated that the "prefatory clause" implied that every able-bodied adult, was, by their gun ownership, automatically in a "well-regulated militia" even if it hadn't been mustered, most of the problems go away. As a de facto member of the militia, your semi-automatic rifles are "common use".

So it is my contention that Scalia's Heller decision is a bad decision because it's contradictory as written, and inadvertently opened doors to go beyond reasonable gun control to unreasonable gun control.

Two other tangential points raised in this thread: "Other Law" was challenged by the Constitution being the Supreme Law. It is the Supreme Law. But it's also incomplete, and has concepts that appear contradictory. For example, does the power of the Presidential Pardon supersede the Separation of Powers and Congress's power to declare someone in Contempt of Congress. Therefore, where there are holes and apparent contradictions, the precedents of other law, at both the state and federal level, fill in the blanks. Further, in Common Law, where colonial decisions and even British decisions created precedents, these, too, are viable. Furthermore, ratified treaties are, by definition, Constitutional.

Second: One poster cited the Declaration of Independence as a source of law. It's nothing of the kind. The DOI is a statement of principles, but has no legal standing whatsoever, because it was never a constitution, unlike the later Articles of Confederation, and everything was reset with the ratification of the Constitution.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

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

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Yankee - you're still missing the major point of your Heller analysis and it's still tripping you up. If you were to avail yourself to the 2A reading list part of the forum, you'd find a couple of books that go into gory detail about how the 2A (and other amendments) were constructed. The 2A is composed of two separate but related clauses that were put together in the final amendment. The founders made very clear their absolute support for our individual right to bear arms. They also made clear why they were so adamant about maintaining a militia. The 'militia' clause in the 2A is not the primary - it's a supporting clause. The RKBA is the primary clause. Hopefully you can now see why Scalia took the time to parse the 2A as he did FOR THE PURPOSES OF THAT SPECIFIC CASE. Remember - Heller was NOT about providing a full constitutional argument about the 2A - it was about whether residents of DC had an individual right to keep a pistol in their home.


ETA...
YankeeTarheel wrote:First off, Scalia, for the first time in my knowledge, created a Supreme Court decision that arbitrarily nullified an active clause of the US Constitution.
No. Scalia's opinion, and the decision of the court, simply upheld the 2A. Anti-gun forces have tried for years to redefine the 2A's dependent clause about the militia as the primary. So the anti-gun forces have been doing for years what you say you're afraid of - reinterpreting the 2A. Justice Breyer's dissent is but one example of this. The really useful(tm) point of this decision is the reminder that the 2A was from the beginning an individual right to keep and bear arms first and foremost.

YankeeTarheel wrote:Yet, in Heller, Scalia wrote that the first 14 words of the 2nd "A well regulated Militia, being necessary to the security of a free State," could be ignored:
Scalia on Heller v. DC wrote:The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause.
Scalia (and the decision of the full court) did no such thing!
Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment . Pp. 28–30.

(d) The Second Amendment ’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
https://www.law.cornell.edu/supct/html/07-290.ZS.html
Last edited by AndyH on Sat Nov 11, 2017 11:45 am, edited 1 time in total.

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

50
AndyH wrote:Yankee - you're still missing the major point of your Heller analysis and it's still tripping you up. If you were to avail yourself to the 2A reading list part of the forum, you'd find a couple of books that go into gory detail about how the 2A (and other amendments) were constructed. The 2A is composed of two separate but related clauses that were put together in the final amendment. The founders made very clear their absolute support for our individual right to bear arms. They also made clear why they were so adamant about maintaining a militia. The 'militia' clause in the 2A is not the primary - it's a supporting clause. The RKBA is the primary clause. Hopefully you can now see why Scalia took the time to parse the 2A as he did FOR THE PURPOSES OF THAT SPECIFIC CASE. Remember - Heller was NOT about providing a full constitutional argument about the 2A - it was about whether residents of DC had an individual right to keep a pistol in their home.


ETA...
YankeeTarheel wrote:First off, Scalia, for the first time in my knowledge, created a Supreme Court decision that arbitrarily nullified an active clause of the US Constitution.
No. Scalia's opinion, and the decision of the court, simply upheld the 2A. Anti-gun forces have tried for years to redefine the 2A's dependent clause about the militia as the primary. So the anti-gun forces have been doing for years what you say you're afraid of - reinterpreting the 2A. Justice Breyer's dissent is but one example of this. The really useful(tm) point of this decision is the reminder that the 2A was from the beginning an individual right to keep and bear arms first and foremost.

YankeeTarheel wrote:Yet, in Heller, Scalia wrote that the first 14 words of the 2nd "A well regulated Militia, being necessary to the security of a free State," could be ignored:
Scalia on Heller v. DC wrote:The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause.
Scalia (and the decision of the full court) did no such thing!
Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment . Pp. 28–30.

(d) The Second Amendment ’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
https://www.law.cornell.edu/supct/html/07-290.ZS.html
AndyH:

What I'm about to say is addressed at your argument, not you, so please don't take it personally. It's taken me several hours to put this together, which is why my response is so delayed. I was trained initially as an historian, and part of that was not to rely on "authorities" but rather my own knowledge of facts and my ability to connect the dots and then draw logical inferences, regardless of what the "authorities" say.

I'm not impressed by any argument that attempts to rationalize why the first 14 words of the 2nd are somehow less important than the rest of it, when no other clause in the Constitution, either the body or the other 26 Amendments, can likewise be discounted and, effectively ignored. Linguistic gymnastics notwithstanding, it demeans both the brilliance and intent of the author, James Madison, who wrote 11 other proposed Amendments, none of which had clauses that could be down-graded, deemed less important, or downright ignored. That it can be effectively ignored, is basically a self-justification, and a rationalization to avoid the consequences of recognizing its full meaning and intent.

The argument you make is fallacious to its core and here's why:

Remember: The Bill of Rights was conceived and written by Southerner, an owner of 60-75 slaves, representing a constituency committed and determined to protect the peculiar institution and willing to abandon unification to do so. This was clear and out in the open. This is a fully recognized history and not reasonably debatable. In order form the union the northern states were forced to accept a number of compromises, including counting slaves as 3/5ths of a person, every state having 2 senators regardless of population, state-based ratification of Constitutional amendments, rather than national plebiscites, and, of course, the weird and clunky Electoral College.

EVERYTHING in our Constitutional history, from then on, is stuck in the penumbra of slavery and its aftermath. It's a poison that infected everything about us and our laws, but especially in the early days when when hard-core abolitionists like Hamilton, Adams, Franklin were forced to work with wealthy slave-owning plantation owners who controlled EVERYTHING in their states. No analysis of what those men did, wrote and enacted is complete unless it takes that into account. It reaches far beyond the Second.

But the men who created the Republic lived in a time where radically new concepts of liberty had been expanded as part of the Enlightenment. The giants of the South, Washington, Jefferson, Henry, Fairfax, George Mason, and, of course, James Madison, were all, ALL enamored of these new concepts. Jefferson's Declaration of Independence is a soaring manifesto of that period. Yet they were ALL slaveowners till their deaths, and their fortunes were absolutely built on slavery, without which they were all financially ruined (Jefferson pretty much was, anyway, being a genius at everything but business, at which he was a total moron). Washington freed his slaves in his will, but only at Martha's death, and didn't free HER slaves! Still, they all cherished Liberty, at least for White men.

What runs throughout EVERYTHING the Southerners did in their struggles with the Northerners, was their total (justifiable?) paranoia that the North would forcibly end slavery, ruining their comfortable power pyramid, which they were at the top of. It is this thread that I've NEVER seen in 2a defenses.

But when you look at the Constitution, and the Bill of Rights, much of it is written out of fear of the crushing of slavery by the Federal government, fear the Southern states sought to offset. In addition to the Great Compromise in the Constitution's body, the BOR is a BRILLIANT defense against Federal overreach, creating an enumeration of universal rights (not the rights themselves, of course), that doesn't appear to be to defend slavery, but, in fact did. Hamilton, the epitome of Federalism, was less concerned with rights and they recognized that. Here is my personal explication, that I believe I can defend, of how each Amendment, while laudably protecting universal rights to this day, was brilliant geared to ESPECIALLY protect slave-owners

1st: It's hard to see protecting slavery in the the 1st, but there are clues, namely the protections against silencing dissent (which the Northerner, Adams, signed into law). Jefferson considered one of his greatest achievements to be getting the Church out of Virginia government, and is on his tombstone.
2nd: (I'll come back to this)
3rd: Troop quartering forbidden. This would be, again, a way to keep Federal troops out of the South.
4th: Secure in your person, home, & property, requirement of warrants. What's the Southerners' most valuable property? Their slaves! Yet the rest of the 4th fits right into the ideals of the Enlightenment and the Declaration of Independence.
5th: Again, against Federal overreach, particularly by Hamilton. --and then there's the last clauses: "nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
Again, this is a defense in general, but also against their slaves being arbitrarily (in their minds) freed by the Federal Government.
6th: Another defense against Federal overreach, less specific to slavery.
7th: This is interesting in that most people couldn't identify the 7th if their lives depended on it. It's the right to a trial by jury in Federal courts for civil suits
https://constitutioncenter.org/interact ... ndment-vii
The Anti-Federalists (Southerners) were afraid of bad laws favoring lenders over debtors, and that juries could protect debtors. Prior to Independence, local colonial juries often engaged in what we now call "Jury Nullification"--the refusal to enforce what they view as a bad law. Remembering that many slave-owners acquired extra funds by mortgaging their slaves, it's clear why they wanted the 7th, and why Northern lenders...didn't.
8th: Much of the reason for the 8th was, again, Southern fear of Federal overreach. It was first proposed by George Mason, and strongly supported by Patrick Henry.
https://constitutioncenter.org/interact ... dment-viii
9th: This is probably the one exception in that the Federalists didn't want a Bill of Rights on the theory that enumerated rights would deny there were ones that were not enumerated. Its inclusion was apparently the Anti-Federalists' concession to the Northern Federalists demand for it, in order to get the enumerated rights. Interestingly, even though it doesn't seem to come up in SCOTUS decisions, the fake "originalist", Antonin Scalia argued that the 9th could pretty much be ignored, just like he did the first 14 words of the 2nd in Heller. from https://constitutioncenter.org/interact ... endment-ix
there is this FASCINATING paragraph about Scalia on the 9th
Scalia on 9thA wrote:while conceding that the rights retained by the people include the “unalienable Rights” to which the Declaration of Independence refers, Justice Antonin Scalia has argued that “the Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.” In this way, Justice Scalia would deny the amendment any judicially-enforced legal effect.
10th: States' Rights--do I need to explain how this was used to justify and protect slavery? I didn't think so!

So, coming back to the 2nd, I've established that 8 of the other 9 amendments were to cleverly written to both be universal, while protecting slave-owners, and that the 9th was a compromise to get the other 9 (including the 2nd). So that brings me to what I see as the REAL reason and justification for the ENTIRE 2nd amendment. Much has long been made of the argument that personal firearms are the final guarantee of freedom, that if the population is armed, the government won't be so quick to oppress them. As wonderful and romantic as this image is, sadly, it's a false pipe dream. Certainly, today, no matter WHAT you have in your gun safe, if the National Guard or US military came in with tanks, shock troops, automatic weapons and artillery, all our guns would be about as effective as pop guns. But honestly, that's pretty much a more recent development. When the 2nd was written, military personal arms and privately held arms weren't much different as the first breech-loading cartridge-based weapons wouldn't appear till the 1850's, and multi-shot weapons appear in the Civil war.

But circa 1790, a major concern was slave insurrections, and, of course, as I've pointed out before, James Madison was a slave owner and a plantation owner and slave revolts were a very real threat. Throughout North America, there were slave revolts in 1526, 1570, 1663, 1712, 1731, 1739, 1741,1791, 1794, 1795 (multiple Caribbean revolts), 1800(Gabriel Prosser), 1803, 1805, 1811, 1812, 1815, 1822(Denmark Vesey), 1831(Nat Turner), 1835-1838 (Seminole Rebellion), 1839(Amistad), 1841, and 1842.

So, for a Southern planter, with a very real fear of slave revolts, almost certainly aware of the events leading to the multiple Caribbean uprisings just 5 years down the road, the 2nd Amendment, in its totality, would apply. There would have been no discussion, indeed, no need of one to justify "A well regulated militia..." because it would be blatantly obvious to everyone concerned that you'd need local militias to put down insurrections, just like you need local volunteer fireman, right there, able to respond in minutes to a fire. Nobody had a problem with being part their local fire brigade, or, their local militia. Many of our Presidents were militia men, including both Washington and Lincoln. While, to my knowledge, neither was involved in slave insurrections, both were involved in the OTHER major reason at the time for militias: defending against attacks by Native Americans.

Given this historical context of well-regulated militias to put down slave insurrections and fight the Indians (as they were called until a few years ago), the idea of the 2nd being used to prevent government excesses seems more philosophical than empirical. The militias in the colonies were absorbed into the British Army in the French And Indian War (Ironically, a young Colonel Washington lead the "team" that fired the first shot in that war). Militias were melded into the Continental Army by Washington. In fact, the only ends achieved by anyone using their weapons against "the gov'ment" has been bloodshed. The most extreme uses of arms against Federal power were, of course, the Revolution (against British power) and the gross treason of the Southern states to protect slavery, which ironically, they self-defined as the 2nd Declaration of Independence.

Which brings us back to Heller. I agree with the fundamental decision, that the District cannot ban people of good character from owning a hand gun for self-defense. But Scalia's reasoning was highly dangerous. Chico Marx famously said to Margaret Dumont: "Who you gonna believe, me or your own eyes?" I've read Heller and I see Scalia CLEARLY endorsing what I see as the false premise that the "prefatory clause" has no meaning on the rest of the Amendment. I prefer to believe my own eyes than "authorities". Those are his words:
The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
The fact that he endorsed the false premise that the second part is the "operative clause" and the first is not, endangers the ENTIRE Constitution (something Trump does everyday). The SCOTUS was not constructed to decide which clauses of the Constitution are "operative" and which are not. Again, this is not how the Constitution works, like a cafeteria menu. We don't get to pick and choose what's "operative" and what's not.

And I stand by what I wrote in my earlier post: that by defining only the RKBA as operative, Scalia has clumsily given a major weapon to those who want to ban AR-15s, and even ALL semi-automatic rifles. That had he connected the two, and the impromptu, yet well-regulated nature of militias, it would be EASY to prove limiting AR-15s and semis was unConstitutional. Now, I believe it is less so.

I've stood on both sides of the fence. I was once fervent for gun control and I know ALL the arguments for heavy limitations on them. But I realized that, when I saw the incipient breaking down of our society highly accelerated when Donald Trump was elected, despite him being a blatant criminal, admitted sex criminal, traitor, and agitator of virulent racists, I recognized that we are no longer fighting by Marquess of Queensbury Rules, but are in a street fight, to the death, in which the only rule is winning. Self and home defense went from theoretical to reality with this klan klown at Charlottesville. I'd much rather see gun control concentrate on the individuals who shouldn't have guns, like Devin Kelley and Dylann Roof, rather than on the equipment itself. I believe that's where common ground can be reached.

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Again, I'm sorry it's taken so long to respond but, I've been putting this together most of the afternoon.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

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