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Eris wrote:
featureless wrote:
Nov 13 2017 DISTRIBUTED for Conference of 11/21/2017.
I'm afraid that if they take the case, we won't get the outcome we're hoping for.
Why not? The court leans pretty conservatively right now.
I don't think it leans that conservatively. Heller was a squeaker and the court hasn't bothered with any other gun cases since. My opinion was Heller was a correct decision in that we have the right to keep/bear arms regardless of the militia clause. I think determination of what those arms are and, more specifically, are not, will be more difficult for the court, especially in the current state of banification (or bandimonium, if you prefer). Arguably, if it's a personal arm good enough for militia (National Guard), it's good enough for you and me. A lot of the public disagree and are gun racists. So, in essence, I think common sentiment is against us and fear the court will weight that rather than sticking to a strict interpretation of constitutionality. But I am far, far from an expert opinion on this stuff.

Editing to add, as a Californian, I have a vested interest in ARs being ruled constructional. My state says no. I was frustrated that the USSC wouldn't take the Puerta concealed carry case because my county says no. I guess I'm used to being disappointed. ;)

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

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featureless wrote:
Nov 13 2017 DISTRIBUTED for Conference of 11/21/2017.
I'm afraid that if they take the case, we won't get the outcome we're hoping for.
Yep.
sbɐɯ ʎʇıɔɐdɐɔ pɹɐpuɐʇs ɟo ןןnɟ ǝɟɐs
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13ʞ
"ǝuıqɹɐɔ 1ɐ4ɯ" dɯɐʇsןןoɹ --- ɯoɔos0269ǝן ʇןoɔ
"ǝuıqɹɐɔ ʇuǝɯǝɔɹoɟuǝ ʍɐן sʇןoɔ" dɯɐʇsןןoɹ --- 0269ǝן ʇןoɔ
(béɟ) 59-pɯɐ

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

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I'm going to try some of these again, if it pleases the court. ;)
YankeeTarheel wrote:There's no way you can look at what Scalia wrote and NOT see him discounting the first 14 words.
I've read the Heller documents now and still can't figure out how you're supporting that he's discounting the 'militia' clause. Maybe if you'd care to post in a line or three to support your position we might be able to figure this out.
YankeeTarheel wrote:I also don't believe that Madison didn't weigh with incredible care every single word he wrote, and intended them to have profound meaning. It's true in all the 10 and 27th Amendment. Clear, clean, precise, careful language, yet you and others seem willing to infer that he wrote the 2nd backwards. Sorry, but I prefer to think that Madison meant exactly what he wrote.
You'll forgive me as I'm not a historian, preferring math and science. When I wanted to try to understand how we got the 2A, I started reading the on-line collections of Federalist and Anti-Federalist papers. Some dark night, during one of those proverbial "it's 3AM why the hell am I still awake" Google fests, I found Young's collection of founding documents.

(One habit I retained from my intel analyst career is the OCD-like need to go to the source documents whenever possible - and Young's ~838 page collection of documents is recognized as the single most complete pile-o-founding-docs-on-the-2A that we have. Since it eased the desire to take a road trip and geek out in the Library of Congress, and cost much less than the VW diesel bill for the road trip, I did 'the Amazon thing' and started reading. That led to Young's shorter book (The Founders' View...) and that meshed with finding this forum's 2A reading list and that led to Halbrook's "The Founders' Second Amendment...". I have a pretty good eye for partisan rhetoric, and started with the Founders' docs, so was alert for bias in Halbrook's book and in Young's shorter book. While they're both clearly in favor of the RKBA, I didn't find any partisan commentary in either book. Yes, they've written other things that were published in Repub outlets, but that doesn't surprise me as our lefty media isn't known for it's factual 2A coverage...)

Anyway... I think that Scalia's writing is in full harmony with the writing and personal positions of the Founders and of the spirit and intent of the 2A.

Recall that British citizens (including those in the Colonies) had the right to keep and bear arms until folks like MA's military governor (Brit) Gen Gage tried to suppress rebellion by using troops that should have been protecting the colonists to confiscate arms and powder. Colonists were gathering and safeguarding arms and powder, forming their own militia units, and training, because they believed strongly that a militia of the people wouldn't oppress the people, and that a well regulated militia was the 'essential and only' check to prevent tyranny in free governments. While forming militia groups was all the rage, keeping and bearing arms was the precursor. Various laws required that able bodied freemen have arms, a bayonet, and sufficient powder and ball. A town was judged as being in a 'defenseless and deficient' state when there was only one firearm for every two men and only 1/2 pound of powder for each gun. When states started to reorganize their governments after Congress suggested in late 1775 that it was time, Vermont and Virginia were the first two to publish, and Virginia's was the first document with a declaration of rights. Article 13 of Virginia's Declaration of Rights said:
13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
It was understood that a militia depended on the arms and skills the citizenry used for self defense. Further, it was understood that an armed populace was the fundamental reason it was possible for the people to assert and defend their rights and constitution against the oppression and tyranny of the British.

Pennsylvania's 13th clause was a bit different but communicated the same fundamental concept:
XIII. That the people have a right to bear arms for the defence of themselves and the state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
The rest of the states used one or the other set of wording (maybe Vermont did something different...don't remember)...and you already know what got into our BOR.
YankeeTarheel wrote: I believe you missed my main point:
I didn't miss your point. You communicated that you believe that Scalia downplayed the 'militia' clause and focused on the individual right, and thus left a hole for the antis to worm their way in. I do hear what you're saying, but I don't agree that it's a problem for three reasons: First, because I don't see any indication in his writings that he actually downplayed the 'militia' clause. Second, because it's clear from the founding writings that the militia and individual right were one and the same - can't have one without the other (so Scalia recalibrated with history rather than relying on twists and turns of case law). Finally, the tactic the antis are already using is to focus on the 'militia' clause in order to negate any individual right - which I think was at least part of the reason Heller got to the Supremes to begin with. When I first started thinking about the 2A, I had already accepted the 'mainstream' view that it was made up of two separate clauses and thus read them as two separate thoughts. It wasn't until I dug into the foundation writings that it clicked that they cannot be separated. There can be no militia without armed and skilled individuals, and there can be no civil rights without armed and skilled individuals willing to fight for them. The ballot box isn't enough. That's my take, FWIW.

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featureless wrote:... the current state of banification (or bandimonium, if you prefer)...
Bandimonium. :roflmao:

If by some freak of nature the Supremes uphold the lower court's ban, what's the citizenry's next step? Do we need to fund another case up the chain to the Supremes? Or do we start exercising our 'militia' units in front of the court building? (Gage/militia/Boston common anyone? ;) ) What's the next step?

(BTW...I'm starting to see early signs of another run on AR-15 parts...wheee)

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AndyH wrote: If by some freak of nature the Supremes uphold the lower court's ban, what's the citizenry's next step? Do we need to fund another case up the chain to the Supremes? Or do we start exercising our 'militia' units in front of the court building? (Gage/militia/Boston common anyone? ;) ) What's the next step?
In California and New York, the next step has been to change the appearance of the AR to delete those scary bits. We've been waiting for you all outside to save us while giving you an excuse to laugh at our neutered abominations!

But really, I think that if the USSC rules against ARs, the only three real options are 1) compliance, 2) non compliance (obviously carries a risk) or 3) disassembly. Despite armchair quarterbacking on gun forums, I don't see a general rebellion happening over firearms. The truth is, we're all too comfortable and have too much to lose. After a generation, we will have to have our rebellion with sticks and stones up against militarized police. Sounds fun. Too bad I'll be dead or too fuckin old to do much but drool.

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AndyH wrote:When I first started thinking about the 2A, I had already accepted the 'mainstream' view that it was made up of two separate clauses and thus read them as two separate thoughts. It wasn't until I dug into the foundation writings that it clicked that they cannot be separated. There can be no militia without armed and skilled individuals, and there can be no civil rights without armed and skilled individuals willing to fight for them. The ballot box isn't enough. That's my take, FWIW.
Andy,

That's my take as well. I've always looked at it as the Second backs up the First. Without the Second, you'll lose the first pretty damn quick. There is no such thing as a benevolent dictator and our founders knew that, having just revolted against the concept.

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Silas posted a relevant section from the 1792 Militia Act in that the militia member has to supply (his) own gun, ammo, knapsack, and so on. That would be impossible without guns and ammo in general being available in general to The People.

Now, of course, The People includes women and people of color whereas back then it was only white men. The class of "The People" now has more members but our rights remain the same, that is, the right to buy a gun, ammo, and a knapsack.

Cue the knapsack control group...

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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featureless wrote:
AndyH wrote: If by some freak of nature the Supremes uphold the lower court's ban, what's the citizenry's next step? Do we need to fund another case up the chain to the Supremes? Or do we start exercising our 'militia' units in front of the court building? (Gage/militia/Boston common anyone? ;) ) What's the next step?
In California and New York, the next step has been to change the appearance of the AR to delete those scary bits. We've been waiting for you all outside to save us while giving you an excuse to laugh at our neutered abominations!
Massachusetts eliminated people's ability to buy even neutered new AR-pattern rifles on July 20th, 2016 via an edict by Attorney General Maura Healey reinterpreting the state's 1998 law covering "assault weapons." By the time Comm2A finally loses in court for the last time, Healey's ban will have been in effect for years.
sbɐɯ ʎʇıɔɐdɐɔ pɹɐpuɐʇs ɟo ןןnɟ ǝɟɐs
ɯɯ6 bdd ɹǝɥʇןɐʍ
13ʞ
"ǝuıqɹɐɔ 1ɐ4ɯ" dɯɐʇsןןoɹ --- ɯoɔos0269ǝן ʇןoɔ
"ǝuıqɹɐɔ ʇuǝɯǝɔɹoɟuǝ ʍɐן sʇןoɔ" dɯɐʇsןןoɹ --- 0269ǝן ʇןoɔ
(béɟ) 59-pɯɐ

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

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AndyH wrote:
YankeeTarheel wrote: I believe you missed my main point:
I didn't miss your point. You communicated that you believe that Scalia downplayed the 'militia' clause and focused on the individual right, and thus left a hole for the antis to worm their way in. I do hear what you're saying, but I don't agree that it's a problem for three reasons: First, because I don't see any indication in his writings that he actually downplayed the 'militia' clause. Second, because it's clear from the founding writings that the militia and individual right were one and the same - can't have one without the other (so Scalia recalibrated with history rather than relying on twists and turns of case law). Finally, the tactic the antis are already using is to focus on the 'militia' clause in order to negate any individual right - which I think was at least part of the reason Heller got to the Supremes to begin with. When I first started thinking about the 2A, I had already accepted the 'mainstream' view that it was made up of two separate clauses and thus read them as two separate thoughts. It wasn't until I dug into the foundation writings that it clicked that they cannot be separated. There can be no militia without armed and skilled individuals, and there can be no civil rights without armed and skilled individuals willing to fight for them. The ballot box isn't enough. That's my take, FWIW.
Sorry for deleting the rest, but I really believe you and I are now getting really close to each other's POV, with some nuts&bolts things to work out.

Let me start at the end: I believe I have argued (or at least I intended to argue) from the very beginning that you cannot separate the first 14 words from the rest. You've come to that same point, so that's a key point of agreement.

And...there can be no militia without armed a skilled individuals. Again, agreed.

Can there be civil rights without armed and skilled individuals willing to fight for them (presumably with force)? Well, here I have to deviate, based on empirical evidence rather than emotion. Emotionally, I agree, and I know and agree that dictators disarm the citizenry, but I have to point to Canada, Australia, New Zealand, Japan, Western Europe and some of the former Soviet bloc. All of those nations have similar rights protections and respect for rights that we do, yet they mostly don't have a 2nd equivalent, yet seem to be able to protect and maintain their democracies and liberties as we know them. How do we explain them? And you do realize, of course, they think we're out of our fucking minds!?

The most similar Western nations (and I use "Western" as shorthand), are, I guess, Canada, Switzerland, and Israel. Let's ignore Israel's partial descent away from democracy to
a theocratic dominated state for the moment. All 3 have far more guns among the citizenry than the other states, but do not see mass shootings like we do. We also don't see them in the other Western nations at the frequency we do, and, there they seem to be from politically motivated.

Yet, I think that if gun ownership de facto makes one a member of the ad hoc well-regulated militia, it's possible to sweep much of the anti position away--but introduces two VERY clear and interesting inferences that I see. First, as you point out, "skilled" individuals are necessary--and that means training for both safety and efficacy (Borrowed that phrase from FDA regs on new drugs! :lol: ). Secondly, as members of the WRM, personal arms actually need to be military capable, which ACTUALLY means select-fire weapons may have to be legalized! Not sure how to get around that... or if we should. Gotta think it through.

This brings me back to Scalia and his discussion of the prefatory clause and his dismissal of it having no influence on the rest is, at a minimum, puzzling, given what we've agreed on.

I do want to come back to the argument you don't seem to recognize, which, actually buttresses with the rest: That Militias were seen in the South as ways to defend against slave insurrections, a way to preserve "our way of life". Again, it's simply a non-contestable fact that the Bill of Rights was pushed for by Southerners, written by a Southerner after much debate, and included one amendment, the 9th, as a compromise with the North. The North had resisted the BOR, but not because they were against rights. Rather, they thought they were obvious and unnecessary, and that enumerating some of them would imply that others wouldn't exist. Hence, the 9th.

And, it's clear that Scalia would have horrified the Northerners whose price for compromise was the 9th when he wrote it basically has no legal standing (No, that's not Heller).

As I said at the start, Andy, I think you and are a lot closer than we realized.

YT.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

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AndyH wrote:
featureless wrote:... the current state of banification (or bandimonium, if you prefer)...
Bandimonium. :roflmao:

If by some freak of nature the Supremes uphold the lower court's ban, what's the citizenry's next step? Do we need to fund another case up the chain to the Supremes? Or do we start exercising our 'militia' units in front of the court building? (Gage/militia/Boston common anyone? ;) ) What's the next step?

(BTW...I'm starting to see early signs of another run on AR-15 parts...wheee)
Ironically, we actually have other steps.

ASSUMING we can still elect Senators and congress critters, we would need to elect enough to either impeach Justices, or write a clearer version of the 2nd that spells out what can and cannot be regulated, and who can and cannot be regulated and clear up the debatable dichotomies.

We do have such legal remedies. However, if Trump and his redhats succeed in fully dynamiting our checks and balances, and corrupt the courts while emasculating Congress, and make a joke of the BOR, those remedies are moot.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

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YankeeTarheel wrote: ASSUMING we can still elect Senators and congress critters, we would need to elect enough to either impeach Justices, or write a clearer version of the 2nd that spells out what can and cannot be regulated, and who can and cannot be regulated and clear up the debatable dichotomies.
On the other hand, if there were a majority that could carry out your remedies, we'd be super fucked on a social level. I'd much rather not go there. Ah the liberal gun owner's dilemma.

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the right of the people to keep and bear arms SHALL NOT be infringed.
why?
a well-regulated militia is necessary to the security of a free state.
what is the militia?
the people, within limits of age, health and competence.
well regulated? trained.

it's SPECIFICALLY about military-type weapons.
the rest is all hogwash.

don't limit guns. reinstate militia service.
i'm retired. what's your excuse?

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This is the latest as of today, 11/14. The Kolbe v. Hogan case has been rescheduled for the SCOTUS conference of 11/21. We should now that day or the next whether they are going to take the case. If you read the statement of the issues The Conference schedule it indicates that the issue is about what the language of the HELLER decision means. This is the big one. If they strike down the 4th Circuit ban it is likely to mean that any ban on civilian rifles that copy military style rifles are dead in the water. The issue in the case is simple. Are so-called assault rifles protected under 2A in light of the Heller decision precedent. If SCOTUS takes the case it should resolve the assault rifle matter for good.

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lurker wrote:the right of the people to keep and bear arms SHALL NOT be infringed.
why?
a well-regulated militia is necessary to the security of a free state.
what is the militia?
the people, within limits of age, health and competence.
well regulated? trained.

it's SPECIFICALLY about military-type weapons.
the rest is all hogwash.

don't limit guns. reinstate militia service.
Here's where we get to look at that comma that comes, or doesn't come depending on printer, after a comma: , the right of the People to keep and bear arms. You can research about the comma and discuss about whether it changes the meaning and/or the relationships among the various clauses. I went there and saw it. The comma lives! Therefore, the only mystery remains is what means "infringe?" That's for the SCOTUS. Messy business. But shooting stuff remains fun. Who knew?

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

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richardw wrote:This is the latest as of today, 11/14. The Kolbe v. Hogan case has been rescheduled for the SCOTUS conference of 11/21. We should now that day or the next whether they are going to take the case. If you read the statement of the issues The Conference schedule it indicates that the issue is about what the language of the HELLER decision means. This is the big one. If they strike down the 4th Circuit ban it is likely to mean that any ban on civilian rifles that copy military style rifles are dead in the water. The issue in the case is simple. Are so-called assault rifles protected under 2A in light of the Heller decision precedent. If SCOTUS takes the case it should resolve the assault rifle matter for good.
How are your tea reading skills, Richard?

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I realize that they need desk time, but they do have law clerks. Seems to be a lot of vacant space on their calendar, surely they could fit in a few gun cases.

https://www.supremecourt.gov/oral_argum ... lendar.pdf


Since the Orange Troll is trying to stack the federal courts, I'm becoming more and more a believer that federal judgeships should not be lifetime appointments. Of course Rep, business and the 1% wouldn't like that, they'd probably lose their majority on SCOTUS.
"Everyone is entitled to their own opinion, but not their own facts." - Daniel Patrick Moynihan

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AndyH wrote:How would we know if the Supremes accepted Kolbe v. Hogan for considering in their upcoming session?
This is the list of cases granted cert for 2017-2018. It's updated after court conferences.
https://www.supremecourt.gov/grantednot ... dnotedlist

And of course SCOTUS blog:
http://www.scotusblog.com/case-files/ca ... e-v-hogan/

I was watching Wrenn vs DC which argued against DCs restrictive concealed carry requirements. After losing in the lower courts, DC decided against appealing to the Supremes. Wonder if the lawyers are thinking about resurrecting Peruta vs California after it was denied cert last term.
https://www.nraila.org/articles/2017110 ... in-october
"Everyone is entitled to their own opinion, but not their own facts." - Daniel Patrick Moynihan

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featureless wrote:
richardw wrote:This is the latest as of today, 11/14. The Kolbe v. Hogan case has been rescheduled for the SCOTUS conference of 11/21. We should now that day or the next whether they are going to take the case. If you read the statement of the issues The Conference schedule it indicates that the issue is about what the language of the HELLER decision means. This is the big one. If they strike down the 4th Circuit ban it is likely to mean that any ban on civilian rifles that copy military style rifles are dead in the water. The issue in the case is simple. Are so-called assault rifles protected under 2A in light of the Heller decision precedent. If SCOTUS takes the case it should resolve the assault rifle matter for good.
How are your tea reading skills, Richard?

Lousy. Also cannot find online repor of 11/21 scotus conference, ugh,

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YankeeTarheel wrote:
AndyH wrote:
YankeeTarheel wrote: I believe you missed my main point:
I didn't miss your point. You communicated that you believe that Scalia downplayed the 'militia' clause and focused on the individual right, and thus left a hole for the antis to worm their way in. I do hear what you're saying, but I don't agree that it's a problem for three reasons: First, because I don't see any indication in his writings that he actually downplayed the 'militia' clause. Second, because it's clear from the founding writings that the militia and individual right were one and the same - can't have one without the other (so Scalia recalibrated with history rather than relying on twists and turns of case law). Finally, the tactic the antis are already using is to focus on the 'militia' clause in order to negate any individual right - which I think was at least part of the reason Heller got to the Supremes to begin with. When I first started thinking about the 2A, I had already accepted the 'mainstream' view that it was made up of two separate clauses and thus read them as two separate thoughts. It wasn't until I dug into the foundation writings that it clicked that they cannot be separated. There can be no militia without armed and skilled individuals, and there can be no civil rights without armed and skilled individuals willing to fight for them. The ballot box isn't enough. That's my take, FWIW.
Sorry for deleting the rest, but I really believe you and I are now getting really close to each other's POV, with some nuts&bolts things to work out.

Let me start at the end: I believe I have argued (or at least I intended to argue) from the very beginning that you cannot separate the first 14 words from the rest. You've come to that same point, so that's a key point of agreement.
I NEVER took a position that words in the 2A were separated. What I DID say is that I understand the technique Scalia used in his writing - which was to examine the two clauses separately. I think he was forced to do so because the antis continue to focus on the 'militia' clause while using it to marginalize the right of the individual (and have created case law that reinforces that defective meme). I think we agree on the 2A, but still disagree on the rhetorical device Scalia used and why.
YankeeTarheel wrote:Can there be civil rights without armed and skilled individuals willing to fight for them (presumably with force)? Well, here I have to deviate, based on empirical evidence rather than emotion. Emotionally, I agree, and I know and agree that dictators disarm the citizenry, but I have to point to Canada, Australia, New Zealand, Japan, Western Europe and some of the former Soviet bloc. All of those nations have similar rights protections and respect for rights that we do, yet they mostly don't have a 2nd equivalent, yet seem to be able to protect and maintain their democracies and liberties as we know them. How do we explain them? And you do realize, of course, they think we're out of our fucking minds!?
It shouldn't matter to us what folks in other countries think of our mental health. I would also take issue with the suggestion that governments in some other countries respect rights as we do, especially former Soviet republics. While the pendulum might be swinging a bit more towards 'freedom' as a result of the fall of the USSR, I think history should remind us how quickly things can change when a .gov in complete control is hacked by authoritarians.

As for slavery... It was a thing. Yet our founding docs didn't codify it. The docs are aspirational - we didn't 'have' a more perfect union - we were carving out space to try to create one. It was and still is messy and incomplete. The big picture is pretty useful, I think.

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