esqappellate
New member
The DC circuit sustained an AWB imposed by the D.C. Government. The decision drew a fierce dissent. Both the majority and the dissent should be required reading for everyone. Attached.
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Does Heller provide protection from another AWB?
- Thread starter dakota.potts
- Start date
bottomscratcher
New member
"Please correct me if I am wrong but as a result of Heller and McDonald the 2nd Amendment has now been incorporated into the states which prior to that it was not. NY I believe is one of the few if not the only state that does not have a RKBA statement in the state’s constitution. My impression is that the Constitution places limits on what the federal government can do and incorporation passes those restrictions down to the states. Given that there should be no reason why the NY SAFE Act shouldn’t be overturned."
California is another one of those States. It's interesting that of the 48 signers of the original California Constitution, 25 were born in New York.
California is another one of those States. It's interesting that of the 48 signers of the original California Constitution, 25 were born in New York.
Glenn E. Meyer
New member
Here is a NY Times piece asking for a new 2nd Amend version that would clarify the issues. The author seems to think that one could come up with one that would guarantee some rights to own guns but of course, would take out the EBRs. We all agree on that, it seems.
Another point, which I made elsewhere, that Scalia's prose is coming back to haunt us with reasonable restrictions, etc.
http://www.nytimes.com/2013/04/05/opinion/rewrite-the-second-amendment.html?hp
Last, the assault flintlock is funny but has a hidden meaning that we are nuts for wanting such evil guns as we do now. Note other countries don't have an RKBA and thus they are somehow better. Only some South American countries have the right also but it is limited.
The problem with a clarification, so to speak - is that it could be the Joe Biden Amendment.
All Americans have the right to a double barrel shotgun, providing they shoot it in the air or through the door.
Another point, which I made elsewhere, that Scalia's prose is coming back to haunt us with reasonable restrictions, etc.
http://www.nytimes.com/2013/04/05/opinion/rewrite-the-second-amendment.html?hp
Last, the assault flintlock is funny but has a hidden meaning that we are nuts for wanting such evil guns as we do now. Note other countries don't have an RKBA and thus they are somehow better. Only some South American countries have the right also but it is limited.
The problem with a clarification, so to speak - is that it could be the Joe Biden Amendment.
All Americans have the right to a double barrel shotgun, providing they shoot it in the air or through the door.
Spats McGee
Administrator
Somehow, I just can't say that I'm in favor of a 2A rewrite.
Clearly, the author isn't acquainted with the same "most ardent" folks that I am.NYT article said:Laws to permit the carrying of concealed weapons are on the rise, but even the most ardent gun-rights advocates would not argue that owners should be free to carry, say, AK-47’s as they walk down the street.
Glenn E. Meyer
New member
The author lives in Austin - and I doubt if he's met the most ardent of the folks in Texas. Carbine match this weekend. All those ardent types will be out there.
Evan Thomas
Inactive
Umm... no.Somehow, I just can't say that I'm in favor of a 2A rewrite.
The author of the Times piece acknowledges that any rewrite would have to go through same process as a new amendment, or for that matter, a repeal. He also pretty much admits that it ain't gonna happen: "Of course, even an uncontroversial constitutional amendment requires a minor miracle."
The editors at the Times seem to be willing to publish almost any op-ed piece supporting gun control, no matter how pointless or loony it seems. The one that sticks in my mind is this one: Please Take Away My Right to a Gun.
Spats McGee
Administrator
Yes, the author lives in Austin. That's not where he got his indoctrination education, though. From his UT Austin page:
Zachary Elkins
Associate Professor — Ph.D., University of California, Berkeley
maestro pistolero
New member
If we get anything from Miller (post Heller) it is that the military and militia purposes were considered synonymous. For the record, I believe Heller erred in its reading, because in the historical landscape from which they drew their 'reading', there was no difference between military and civilian small arms. Because there was no difference, neither was there a disparity of firepower, a critical fact which the Second Amendment intended to preserve as its primary function and purpose. Of course then, all that was needed to preserve that equanimity was make sure everyone could be armed. A musket, after all, is a musket.
The common use test is somewhat specious, because no such test would have existed at the time of founding, because, again, all the bearable arms were essentially equivalent.
The Heller court went on to say that "it may be objected" that modern developments such as bombers and tanks create a disparity of firepower that creates a disconnect of the militia clause from the right itself, but that fact cannot "change their interpretation of the right".
But in direct conflict with the stated inability to change their interpretation of the right, the court said that invalidating bans on "M16s and the like" would be "startling".
I would ask: In common use by whom? The same arms were in common use by the regular troops. Today, the M4 is the most commonly used American weapon, BOTH in the military and in its civilian, semi-auto only configuration. The most widely used sniper rifle is a near copy of common hunting rifles, i.e. the Remington 700. Interestingly, civilian small arms have always historically mirrored their military-issue cousins, and that continues to this day (though perhaps not beyond this day, if one lives in NY, CT, MD, or IL)
But of course, Miller said nothing of the sort. If the Miller court intended to weigh anything, it was whether there was a militia/military purpose of the weapon that placed it under the protection of the amendment. There would be no logical reason to make such an assessment if their actual intent was to decide whether it was a household item or not.
It was simply not within judicial notice that the SBSs were ordinary military equipment. The case was orphaned, and was decided without ever being fully litigated.
So this is a contorted, inverted reading by the Heller court, born, in my opinion of an unwillingness to even consider reconciling Miller's advocacy of 2A protection for military small arms in the context of modern urban society.
From my FB Wall:
The common use test is somewhat specious, because no such test would have existed at the time of founding, because, again, all the bearable arms were essentially equivalent.
The Heller court went on to say that "it may be objected" that modern developments such as bombers and tanks create a disparity of firepower that creates a disconnect of the militia clause from the right itself, but that fact cannot "change their interpretation of the right".
But in direct conflict with the stated inability to change their interpretation of the right, the court said that invalidating bans on "M16s and the like" would be "startling".
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
I would ask: In common use by whom? The same arms were in common use by the regular troops. Today, the M4 is the most commonly used American weapon, BOTH in the military and in its civilian, semi-auto only configuration. The most widely used sniper rifle is a near copy of common hunting rifles, i.e. the Remington 700. Interestingly, civilian small arms have always historically mirrored their military-issue cousins, and that continues to this day (though perhaps not beyond this day, if one lives in NY, CT, MD, or IL)
307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25
But of course, Miller said nothing of the sort. If the Miller court intended to weigh anything, it was whether there was a militia/military purpose of the weapon that placed it under the protection of the amendment. There would be no logical reason to make such an assessment if their actual intent was to decide whether it was a household item or not.
It was simply not within judicial notice that the SBSs were ordinary military equipment. The case was orphaned, and was decided without ever being fully litigated.
So this is a contorted, inverted reading by the Heller court, born, in my opinion of an unwillingness to even consider reconciling Miller's advocacy of 2A protection for military small arms in the context of modern urban society.
From my FB Wall:
If there is an anti-tyranny and self defense purpose to the 2nd amendment (and the Supreme Court and several other federal courts have clearly said that there is), then legislation reducing the capability and performance characteristics of the most common, semi-automatic small arms would eviscerate the amendment of its core purpose.
The Second Amendment's very function is to put law abiding citizens on at least equal footing with criminals, and would-be tyrants. Anything less than equal footing for the citizen guts the amendment of that function and renders it null.
The Supreme Court has made it abundantly clear that long-standing laws banning firearms ownership for felons, mentally ill, and drug addicts are not in question. Many other regulations will certainly pass constitutional muster.
But there is a cavernous difference between regulations (such as requiring training, safe storage, background checks, maintaining proficiency, etc) and banning or neutering an entire class of common, garden variety semi-automatic firearms (now disparagingly called assault weapons).
All firearms, self evidently, are lethal weapons. The performance characteristics of all semi-automatic firearms have not changed in 100 years. The idea that a semi-automatic-only, civilian AR15 is some kind of exotic, unusual weapon is completely false. AR15-pattern rifles, by a wide margin, are the most common long arm chosen by Americans, for every conceivable lawful purpose for which a firearm can be used.
The 2nd amendment specifically protects keeping and bearing lethal weapons that are in common use. (See US Supreme Court Heller vs DC, 2008, and McDonald vs Chicago 2010, Us vs Miller 1939.)
If we dare to repeal the amendment, then there is a constitutional procedure in place to accomplish that. But we simply cannot pretend the amendment doesn't mean what it says without structurally undermining the whole document. If we can turn a blind eye to one fundamental, enumerated, and incorporated civil right, then no other civil right will ever be immune to the whims of the legislature.
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HarrySchell
New member
Thanks for the summary, MP.
maestro pistolero
New member
You're welcome.
The common use test addresses present and (presumably) past arms, but what about the future? The court is clear that the 2nd Amendment will protect technology yet to be invented. For that purpose, the common use test is wholly useless. At best, the common use test is but one measure of a weapon's 2A protection.
AR15s, (and I would argue any weapon which shares its performance characteristics, regardless of the technology through which it operates) clear the common use hurdle by a mile. A weapon cannot simultaneously ubiquitous AND unusual.
But as new technology is introduced, there will be the inevitable period of time where it is initially rare in the population at large. It will be interesting to see what tests are concocted for that eventuality.
The common use test addresses present and (presumably) past arms, but what about the future? The court is clear that the 2nd Amendment will protect technology yet to be invented. For that purpose, the common use test is wholly useless. At best, the common use test is but one measure of a weapon's 2A protection.
AR15s, (and I would argue any weapon which shares its performance characteristics, regardless of the technology through which it operates) clear the common use hurdle by a mile. A weapon cannot simultaneously ubiquitous AND unusual.
But as new technology is introduced, there will be the inevitable period of time where it is initially rare in the population at large. It will be interesting to see what tests are concocted for that eventuality.
Aguila Blanca
Staff
Miller is further flawed because the decision ignored the fact that sawed-off (or short-barreled) shotguns were, in fact, used by the military -- for close-quarters engagements.maestro p said:But of course, Miller said nothing of the sort. If the Miller court intended to weigh anything, it was whether there was a militia/military purpose of the weapon that placed it under the protection of the amendment. There would be no logical reason to make such an assessment if their actual intent was to decide whether it was a household item or not.
Aguila said:Miller is further flawed because the decision ignored the fact that sawed-off (or short-barreled) shotguns were, in fact, used by the military -- for close-quarters engagements.
The only side heard by the Court was the Governments side. Do you really expect them to tell the Court that the SBS was a standard military arm? Of course, they didn't say a word, which was why the Court said that it was not within judicial notice. The Court did remand the case to the district court for fact-finding on this very subject.
We know that Miller was dead at this time, so no further litigation occurred.
jrtraderny
Inactive
Quote:
Originally Posted by patriotic
NY I believe is one of the few if not the only state that does not have a RKBA statement in the state’s constitution.
I'm almost certain that New York is far from the only state that doesn't have a RKBA provision in the state's constitution. I'm pretty sure I researched that several years ago.
Interestingly, Massachusetts (the seat of the American Revolution) does have a RKBA provision -- but it is limited to defense of the State.
Connecticut has a RKBA provision, which specifically mentions "in defense of the self and of the state," yet NO carry is allowed in Connecticut without a permit. You have to wonder how that system has survived. I suspect the courts in Connecticut are so liberal that nobody dares bring a case.
Looks like this may be a good read on the subject: http://www.guncite.com/journals/dowrkba.html
Umm NYS Bill of rights article 2 subsection 4: § 4. Right to keep and bear arms. A well regulated militia being
necessary to the security of a free state, the right of the people to
keep and bear arms cannot be infringed.
Originally Posted by patriotic
NY I believe is one of the few if not the only state that does not have a RKBA statement in the state’s constitution.
I'm almost certain that New York is far from the only state that doesn't have a RKBA provision in the state's constitution. I'm pretty sure I researched that several years ago.
Interestingly, Massachusetts (the seat of the American Revolution) does have a RKBA provision -- but it is limited to defense of the State.
Connecticut has a RKBA provision, which specifically mentions "in defense of the self and of the state," yet NO carry is allowed in Connecticut without a permit. You have to wonder how that system has survived. I suspect the courts in Connecticut are so liberal that nobody dares bring a case.
Looks like this may be a good read on the subject: http://www.guncite.com/journals/dowrkba.html
Umm NYS Bill of rights article 2 subsection 4: § 4. Right to keep and bear arms. A well regulated militia being
necessary to the security of a free state, the right of the people to
keep and bear arms cannot be infringed.
Bartholomew Roberts
Moderator
Yes, the author lives in Austin. That's not where he got his indoctrination education, though. From his UT Austin page:
Quote:
Zachary Elkins
Associate Professor — Ph.D., University of California, Berkeley
I thought it was disappointing that an associate professor of government at Texas didn't understand the context of "well-regulated" (or basic grammar for that matter) even though it should be evident from its use; but now I see he comes by his confusion honestly.
The problem is that the Supremes are loaded with progressive liberals who are activist judges.
Even Scalia is NOT our friend. He believes the 2nd Amendment has limits and can prohibit full auto guns. Where in the 2nd Amendment does it say that?
A well regulated militia requires the same tools that are used by the military and that includes machine guns, rockets, smart bombs, tanks, drones, etc.
Even Scalia is NOT our friend. He believes the 2nd Amendment has limits and can prohibit full auto guns. Where in the 2nd Amendment does it say that?
A well regulated militia requires the same tools that are used by the military and that includes machine guns, rockets, smart bombs, tanks, drones, etc.
Glenn E. Meyer
New member
That claim will get us nowhere, so let's pass on that discussion here. Thanks.
The same place the 1st Amendment discusses shouting fire in a crowded theater, and in which the 4th Amendment discusses wiretaps.Even Scalia is NOT our friend. He believes the 2nd Amendment has limits and can prohibit full auto guns. Where in the 2nd Amendment does it say that?
Like it or not, there have always been limits on our rights. Most noteworthy are the time/place/manner restrictions on 1st Amendment activity. We can't expect an unfettered 2A at all. Even in the best possible world, its exercise will be subject to some restrictions.
The important thing is to make sure those restrictions are subject to strict scrutiny, as are restrictions on the 1A and 4A.
Aguila Blanca
Staff
Not a perfect, or even good, analogy.Tom Servo said:The same place the 1st Amendment discusses shouting fire in a crowded theater, and in which the 4th Amendment discusses wiretaps.Even Scalia is NOT our friend. He believes the 2nd Amendment has limits and can prohibit full auto guns. Where in the 2nd Amendment does it say that?
The 1st says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Even after we accept incorporation and read "Congress" to include the state legislatures, the 1st still says only that the gummint shall not enact a law abridging the freedom of speech. Your example of yelling "FIRE!" in a crowded theater is NOT illegal. In fact, if I were a theater patron and I discovered a smouldering fire in a corner and yelled "FIRE!" in time to empty the place before it burned to the ground, not only would I not have broken any laws, I would perhaps be hailed as a hero.
But freedom carries responsibility. While it is not against the law to yell "FIRE!" in a crowded theater, if one does so when there is no fire, for the purpose of inciting panic, THAT is illegal and the yeller simply is asked under the law to accept the responsibility and consequences of his/her action.
4th Amendment. Wiretaps? Wiretaps are searches. They require warrants. What's the issue?
So now we come to the 2nd Amendment. Your argument that our rights have always been subject to limits sounds eerily like what Frank Ettin has told me in the past. (I guess you moderators do talk to one another.) My response is that judges are human, and the fact some rights may have been limited in the past doesn't mean the limits were/are constitutional, it just means they haven't yet been declared UNconsitutional.Tom Servo said:Like it or not, there have always been limits on our rights.
I like to compare the 2nd and the 4th Amendments. The 4th Amendment specifically says we are to be secure against "unreasonable" searches and seizures. This opens the door -- if we are secure only against UN reasonable searches, then some searches must be reasonable, and it then falls to the courts to determine where to draw the line between reasonable and unreasonable. Fine. I get that.
But ... show me where the word "reasonable" (or "unreasonable") appears in the 2nd Amendment. You can't -- it isn't there. The 2nd Amendment is an absolute prohibition on infringement of the RKBA. And "regulation" equals "infringement."And this is why I agree with rajbcpa. Justice Scalia wrote what he wrote and we're stuck with it, at least for now, but I have the temerity to propose that he was flat-out wrong. A true strict constructionist would have to acknowledge that there is simply no room under the language of the 2nd Amendment to argue that the RKBA can be subject to any degree of regulation, of any degree of reasonableness.
An indirect one, perhaps. The actual quote is from Justice Holmes, who held in Schenk that distributing fliers in opposition to the draft wasn't protected by the 1A because such speech was "dangerous" and had no "useful" purpose. Compare that to Scalia's stance on "dangerous and unusual" weapons.Not a perfect, or even good, analogy.
If I put a wiretap on your house or office, I'm getting all sorts of information that would never have been part of a warrant for specific papers and possessions. I really doubt the founders would have approved of the practice.4th Amendment. Wiretaps? Wiretaps are searches. They require warrants. What's the issue?
I don't like it, but it's true. We've always had restrictions on the 2A. I fear we always will. The trick now is to limit them as much as possible.Your argument that our rights have always been subject to limits sounds eerily like what Frank Ettin has told me in the past.
You're factually correct, but getting back to the 1A analogy, there are laws restricting freedom of speech, the press, and public gatherings that have passed constitutional muster. Consider free speech zones, campaign finance reform, and nebulous definitions of indecency.But ... show me where the word "reasonable" (or "unreasonable") appears in the 2nd Amendment. You can't -- it isn't there.
It's not temerity; you're right. But the alternative was heinous enough that we're fortunate to have gotten that much.Justice Scalia wrote what he wrote and we're stuck with it, at least for now, but I have the temerity to propose that he was flat-out wrong.
A ban on military-style weapons violates the intent and text of the 2A as much as nearly anything can, and the founders would have found it reprehensible. But we went astray as a nation on the matter for a long time, and Heller was our foot in the door to start fixing that. As it stands right now, I think we can count on its dicta to overturn another ban. I understand your frustration, but that's just where we are at the moment.