Could this mean that a semi auto ban would be overturned?

[maestro pistolero]

Isn't Justice Scalia saying here what the court meant by dangerous and unusual weapons, and doesn't this statement clearly draw a distinction between sophisticated military arms and small arms such as the M16?

Justice scalia. writing (in dicta) for the majority in Heller Vs DC

It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty.

It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks. But the fact that modern developments have lim*
ited the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the
right.

 

[rwilson452]

I'm not a lawyer. I don't play one on TV and I didn't stay at a holiday inn last night. My read on Heller is that you can place some additional restrictions on military weapons but an out right ban is out. I think that is how the big O and Nancy see it too. I think he is hoping to get to pick a Supreme Court judge or two before they go the ban route. The problem with that is George picked young judges.

 

[maestro pistolero]

I think he is hoping to get to pick a Supreme Court judge or two before they go the ban route

It would be hard to do worse than Stevens or Ginsburg, who agreed that it was an individual right, but thought the ban was constitutional anyway.

 

[BillCA]

We could get into another argument over exactly what kind of "arms" are protected by the 2nd Amendment here. Hopefully we can limit this discussion to "portable firearms" and not crew-served weaponry or artillery/RPG type weapons.

From my reading, Scalia is saying that to ban rifles like the M-16 would require detaching the right from the prefatory clause (A well regulated militia being necessary to the secuirty of a free state, ... and that this cannot be done for reasons articulated in the decision.

I think this leaves open the question of whether or not closure of the NFA registry and the ban on transferring new Class III firearms are permissible.

In the second paragraph, Scalia addresses the argument that pitting small arms against modern armor and aircraft makes the whole militia-vs-tyranny argument silly. But he says that while technology may create such an argument, it cannot change the validity of the right (as the court interprets it).

Further court decisions will be required to make sense out of which firearms are "in common use". Certainly, the AR-10/15 series, AK/SKS series, HK-G series semi-auto rifles are in common use, as are the Barrett .50 rifles. But are M1928 Thompsons? Uzi and Ingram SMGs? How about .30 and .50 caliber Browning MGs?

I would suggest these are "in common use" but also limited use due to current restrictions and the cost of the firearms and ammo. One could argue either way with the M-14 rifle since few were ever sold as surplus. But there is no doubt they would be in common use if they were made available as surplus rifles like the M1 Garand.

 

[Tennessee Gentleman]

But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

I think he is saying that the militia as a primary protector of the state (from enemies foreign and domestic NOT the government) is no more and just the militia today is a dead letter. However, the protected right which is the right to keep and bear arms, is still protected even though the fit between it and the militia is no more. I think he is speaking against those who posted here in this thread:http://www.thefiringline.com/forums/showthread.php?t=338159 that the 2A gives ordinary citizens protected legal access to military arms.

I think it was important to decouple the militia, which is no more, from the right of all citizens to keep and bear arms. The Brady's wanted to couple them to render the individual right moot.

 

[maestro pistolero]

We could get into another argument over exactly what kind of "arms" are protected by the 2nd Amendment here. Hopefully we can limit this discussion to "portable firearms" and not crew-served weaponry or artillery/RPG type weapons.

I would tend to agree, but even the cannons of the revolution were crew-served.

I'm not sure, that under the theory that this passage illuminates what is protected, that the a SAW (as in M249) wouldn't be protected.

I. for one, would rather see some special requirements on the public owning weapons such as an M249 (such as secure storage requirement, some level of training certification, etc.) than to see them prohibited outright.

I think when we get in to the category of mortars, grenages, shoulder fired rockets, etc, these are probably dangerous and unusual.

 

[maestro pistolero]

I think it was important to decouple the militia, which is no more . . .

There are some active, state sanctioned militias who make take issue with that statement. And isn't the ability to raise a militia inherent in 2A?

I think he is speaking against those who posted here in this thread

I'm having trouble reading it that way. He's saying IF M16s that are useful for military/militia use are prohibited, IT MAY BE OBJECTED that the first clause would be entirely separated from the first. Isn't he saying that would amount to passing a law which circumvents the amendment, otherwise what would the objection be?

 

[Tennessee Gentleman]

Hopefully we can limit this discussion to "portable firearms" and not crew-served weaponry

The misunderstanding that many have about "crew-served" weapons is that the term is really a military one denoting that more than one person is assigned to the weapon.

It does not mean that it takes more than one to carry and operate it. Typically, the extra assigned body carries extra ammo and/or some other accessories.

One can operate and carry a M249 or M240 or M60 pretty much as easily as they could an M16.

That is why drawing a line there isn't really good IMO because the operation is the same and that is full auto. The same is true for other weapons systems such as the Stinger and AT-4, or LAW.

 

[Tennessee Gentleman]

There are some active, state sanctioned militias who make take issue with that statement. And isn't the ability to raise a militia inherent in 2A?

The ones I have had shown to me are nothing like the ones that were present in 1789 when the 2A was written. One I looked at wasn't even armed but simply would perform humantarian operations. That is not a ture militia. As to raising a militia, sure a state could and then after it was called up by competent authority issued all kinds of weapons. But I wouldn't hold my breath on that one. Today we are protected by a modern standing Army and professional police forces.

 

[Tennessee Gentleman]

Isn't he saying that would amount to passing a law which circumvents the amendment, otherwise what would the objection be?

I think he is saying that times have changed and the fit between the well-regulated militia and the right to keep and bear arms isn't there anymore but that still doesn't mean we don't have a right to own firearms in common use for our personal self defense. This is in contast to the Brady's who said the right to keep and bear arms was only related to service in the militia. What I have heard Walter Dellinger say in other interviews is that if a state wanted to raise a militia and arm it, Congress couldn't stop them from doing so and that was what the 2A protected. SCOTUS disagreed.

 

[zukiphile]

A couple of small points.

While congress has the authority to call forth the militia, it does not create the militia, which already exists.

Further court decisions will be required to make sense out of which firearms are "in common use". Certainly, the AR-10/15 series, AK/SKS series, HK-G series semi-auto rifles are in common use, as are the Barrett .50 rifles. But are M1928 Thompsons? Uzi and Ingram SMGs? How about .30 and .50 caliber Browning MGs?

I would suggest these are "in common use" but also limited use due to current restrictions and the cost of the firearms and ammo. One could argue either way with the M-14 rifle since few were ever sold as surplus. But there is no doubt they would be in common use if they were made available as surplus rifles like the M1 Garand.

I wouldn't be ardent in interpreting "in common use" to instead mean "in common use amongst civilians". Various iterations of select fire rifle have been in common use for decades. Is there a rifle more commonly used than the M16 in all its forms?

 

[johnwilliamson062]

dangerous and unusual.

A "trained" man eating tiger is dangerous.

If legal mortars and RPGs would almost certainly not be unusual. If I could pick up an RPG for $500 as can be done in some parts of the world I would probably do it. Then I would buy a junker GM product and introduce the two. In a reasonably controlled environment with practical safety taken.

Yes I know it is possible to own a mortar or RPG, but restrictions have made them illegal practicaly speaking.

 

[Tennessee Gentleman]

Then I would buy a junker GM product and introduce the two.

Sounds like fun. Send me an invite!

 

[vranasaurus]

The misunderstanding that many have about "crew-served" weapons is that the term is really a military one denoting that more than one person is assigned to the weapon.

It does not mean that it takes more than one to carry and operate it. Typically, the extra assigned body carries extra ammo and/or some other accessories.

I think some people use the term "crew served" to denote weapons that take more than one person to transport or operate or are usually mounted on a vehicle. The 249, 240, and 60 are not "crew served" in this sense but the M2 would certainly be.

 

[maestro pistolero]

Today we are protected by a modern standing Army and professional police forces.

Not the police force. The SCOTUS says they have no duty to protect. And not the military, presently at least, because they are scattered around the world.

Congress couldn't stop them from doing so and that was what the 2A protected. SCOTUS disagreed.

That's interesting, which case was that?

 

[Tennessee Gentleman]

Not the police force. The SCOTUS says they have no duty to protect.

In individual situations perhaps and as protection against civil suits from individuals. They do protect society as a whole as serve in that way. They enforce the law rather than groups of vigilantes.

And not the military, presently at least, because they are scattered around the world.

Fighting our enemies and yes they are protecting us.

That's interesting, which case was that?

Heller. Walter Dellinger was the lead counsel for the District.

 

[maestro pistolero]

Fighting our enemies and yes they are protecting us.

Of course you are correct.

What I have heard Walter Dellinger say in other interviews is that if a state wanted to raise a militia and arm it, Congress couldn't stop them from doing so and that was what the 2A protected. SCOTUS disagreed.

I didn't realize you were referring to Heller. How did they disagree? I don't recall anything in the text of Heller about the rights a of states to raise militias.

Saying the right is not necessarily linked to militia service isn't the same thing as saying the right of a state to raise a militias no longer exists, or that the right of the people to keep arms suitable for militia use is no longer protected.

 

[Tennessee Gentleman]

How did they disagree? I don't recall anything in the text of Heller about the rights a of state's to raise militias.

This is what Walter Dellinger said would be todays practical application of the 2A. In other words the 2A (according to Dellinger) protected the states right to raise a militia and arm it if they saw fit. Of course, since there is no militia today it renders the right to keep and bear arms moot if you go along with Mr. Dellinger's reasoning. SCOTUS disagreed fortunately.

So, the antigun strategy was thus: The right to keep and bear arms is predicated on service in the militia. The militia isn't around anymore so there is no right for an individual to keep and bear arms and we may legislate whatever restriction or ban we wish on firearms in the interest of public safety. That is what IMO they disagreed on. Some may articulate it better than I but then I am not anti-gun

 

[44 AMP]

"the militia isn't around anymore"

The organised milita isn't......

The unorganised militia (as defined in US law) still is.

 

[Tennessee Gentleman]

The unorganised militia (as defined in US law) still is.

Which is nothing more than a pool of people that the Organized Militia draws its members from and has no rights, duties or responsibilities. The Unorganized Militia (from the Militia Act of 1903) is NOT the Well-Regulated Militia defined in the 2A.