Does Heller provide protection from another AWB?

[maestro pistolero]

As it stands right now, I think we can count on its dicta to overturn another ban.

I don't believe Heller's language regarding what sort of weapons are protected could be dicta, as it pertained to questions that were necessary to the outcome of the case.

If I am right, I believe that reinforces your prediction.

 

[Glenn E. Meyer]

I am not so sanguine. The views on what the 2nd Amend. covers are defined by political beliefs. Yes, we think it is crystal clear but 5 to 4 isn't Steuben glass. A change in the court would flip it the other way or would have.

I think the current abortion debate is instructive (don't discuss abortion). There seemed to be a clear decision 40 years. Several states are acting against that. It will go to the SCOTUS. Based on the political views of the justices - Roe might be overturned. Same for Heller, IMHO.

To continue after a break. Many decisions are being looked at again. Analogously to the NY, CO, CT, etcl laws - states are challenging what seemed to be a clear decision in Roe. Affirmative action is going through the same process. It all plays to the makeup of the court. So, I'm not counting a precedent. I've thought Scalia left a glaring hole that can what was seen as strong. Yep, we all might have the right to a Biden blaster and that's it.

 

[gc70]

But ... show me where the word "reasonable" (or "unreasonable") appears in the 2nd Amendment. You can't -- it isn't there.

Regardless of absolute language, one person's right tends to end when it clashes with another person's right. If the Second Amendment was really applied as an absolute, I could set up a target stand and use your house as a backstop for target practice - something that you might rightfully find objectionable.

 

[Aguila Blanca]

Regardless of absolute language, one person's right tends to end when it clashes with another person's right. If the Second Amendment was really applied as an absolute, I could set up a target stand and use your house as a backstop for target practice - something that you might rightfully find objectionable.

Oh no you couldn't, and the validity of the 2nd Amendment has little to nothing to do or say about it. The 2A guarantees us the right the Keep" and "bear" arms. The 2A in no way conveys or guarantees to anyone a RIGHT to shoot on or at the property or person of anyone else.

This actually IS analogous to the fire in a crowded theater example. It is not illegal per se to yell "FIRE!" in a crowded theater. However, it is illegal (in most places) to falsely incite panic. So, as your right to free speech is not "limited by" but is subject to ancillary regulations pertaining to the maintenance of order in society, the same is true of the 2A. And I'm absolutely certain that the Founders would never have envisioned the RKBA as in any way guaranteeing a license to do harm to another person's person or property.

Using my house for target practice quite simply has nothing to do with the 2A.

As to Tom's example of Justice Holmes and anti-draft literature, I'll play. Justice Holmes was clearly wrong, and ruling based on a political agenda rather than the Constitution. In fact, the entire purpose of the 1st Amendment guarantee of freedom of speech was to ensure that citizens would NOT be punished for speaking out with views that run counter to those of the government.

 

[gc70]

So, as your right to free speech is not "limited by" but is subject to ancillary regulations pertaining to the maintenance of order in society, the same is true of the 2A.

So the Second Amendment itself is not limited, it is just subject to ancillary regulations. That sound like a distinction without a meaningful difference.

 

[Aguila Blanca]

So the Second Amendment itself is not limited, it is just subject to ancillary regulations. That sound like a distinction without a meaningful difference.

Without meaningful difference? Not at all.

Words have meaning. The 2A guarantees a right to "keep" and "bear" arms. Do you see anything at all in the 2A about guaranteeing you a RIGHT to shoot up your neighbor's house?

That's just the base language. Then we fast forward to Heller and Justice Scalia's majority decision, in which he wrote:

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.

There are several states right now where we can carry sidearms with no permit, open or concealed. These are the so-called "Constitutional carry" states: Vermont, Alaska, Arizona, and __?__. Without doing any research at all, I am absolutely certain that in all of those states, despite your having an absolute right to pack iron, it is against the law to USE that firearm to rob a bank, to threaten someone you think cut you off in traffic, to commit murder ... or to shoot up your neighbor's house.

How are the laws prohibiting such anti-social behaviors in any way a restriction (an "infringement") on your right to bear arms? Are you seriously arguing that the 2A guarantees us a right to commit armed robbery and murder?

 

[dakota.potts]

I agree with Aguila Blanca. Right to Keep and bear arms says nothing of what you can do with them. Commit a crime with a gun? You're going to prison, not because you exercised your second amendment rights, but because you killed somebody.

 

[dakota.potts]

That said, I have a feeling this is not a direction the moderators will tolerate too much longer.

 

[Al Norris]

Dakota, you're correct, of course. Yet at the same time, a bit of veering can and should occur if we are to fully understand what is protected by the right, in its plain language and understand what is protected by the right as opined by the Supreme Court.

They are not always the same thing.

"Shall not be infringed," is perhaps the strongest verbiage that has been used by the Constitution to describe what the Federal Government may not do. In that respect, those who hold to an absolutist view, are correct. Yet they are also wrong.

Elsewhere in our Constitution, the Supreme Court has been given the Judicial Power to interpret what those words mean and how far those word stretch. That authority is contained in Article III section 1.

What some people fail to understand is that this "Judicial Power" that is granted by the Constitution stems from our Common Law that was inherited from the British, at the time of our founding. Part and parcel of this judicial power was the authority to interpret what the meaning of the law was. That interpretation includes the very Constitution itself.

As the Court has held, no right is absolute.

In terms of the 2A, we are at the threshold of determining the boundaries of the right. It's going to be a long process and there will be things decided that we will not like. There will also be things decided that the (various) government(s) won't like. That's just the nature of the beast.

 

[kilimanjaro]

No, Heller does not protect us from a AWB. Heller was a 5-4 decision, and in MacDonald, later on, the same 4 dissenters in Heller said Heller should be reversed. Just one vote on SCOTUS stands between having the right to keep and bear arms and no rights at all.

 

[gc70]

Dakota, you're correct, of course. Yet at the same time, a bit of veering can and should occur if we are to fully understand what is protected by the right, in its plain language and understand what is protected by the right as opined by the Supreme Court.

They are not always the same thing.

I have no doubt that the intention at the adoption of the Second Amendment was that it would be as absolute as its plain language suggests. The Second Amendment categorically denied the federal government any power to enter the field of the RKBA. That prohibition was reasonable and workable within the framework of federalism because the power denied the federal government was retained by the states.

As Aguila Blanca previously noted, one of the core reasons for any government is to maintain order in society and protect the members of society. Even in Heller, which was strictly federal in character, the Supreme Court tempered the otherwise absolute nature of the Second Amendment to accommodate police powers in the District of Columbia. And McDonald did not create a parallel to the Second Amendment's prohibition on federal powers by denying the states any power in the area of the RKBA. The simple but powerful language originally intended to unequivocally allocate power between the federal government and the states must now admit the tension between a strongly stated right guaranteed nationally and the necessity for government -at some level- to maintain order in society.

With that backdrop, does Heller provide protection against another AWB? I believe that it would protect against some AWB provisions, but possibly not others.

Feinstein's new AWB proposal originally included a provision to make certain firearms and magazines non-transferable and effectively contraband to eventually be forfeited. Such a law would be a substantial and direct affront to the right to keep (and dispose of) arms and would be unconstitutional.

Magazine capacity limits would implicate the Second Amendment because they would impair the utility and functionality of firearms; three 10-round magazines really are not the equivalent of a 30-round magazine. While I doubt the government's ability to prove a strong enough interest to justify restrictions, who knows which way a future Supreme Court might lean.

A ban on certain firearms gives me the most pause for reflection. I wonder whether the courts might conclude that restrictions on cosmetic features, while functionally equivalent firearms were available, did not intrude on the Second Amendment and were solely a Commerce Clause question.

 

[maestro pistolero]

I wonder whether the courts might conclude that restrictions on cosmetic features . . .

I don't believe that most of what are often described by our side as cosmetic features are cosmetic in the least. Pistol grips, flash hiders, and telescoping stocks all serve important roles in the functionality of a weapon. The facts have been twisted and convoluted enough to where the ability to better control a weapon is actually argued to be a bad thing.

We shouldn't euphemize these features one bit. Such performance characteristics are intrinsic to the design of the weapon, and essential for the weapon to perform as intended. They don't make it more lethal. On the contrary, by increasing the ability to control the weapon, they make it less indiscriminate.

 

[gc70]

I don't believe that most of what are often described by our side as cosmetic features are cosmetic in the least.

There could be dangers in both directions. While banning cosmetic features might not be a 2A intrusion, banning performance-enhancing features would more likely be an intrusion, but might also add weight to the argument for the government's interest justifying a ban.

 

[LogicMan]

There have been two challenges to assault weapons bans thus far I believe, one in California and the other in Washington, D.C. In the California one, the Court upheld the ban and mentioned about how the ban does not infringe on hunters and sport shooters, which showed that they had a total lack of understanding of the Second Amendment. In the Washington, D.C. upholding, the Court agreed that so-called "assault weapons" are very much weapons in common usage, but they determined, based on a study conducted by the Brady Campaign, that semiautomatic weapons are so dangerous that they can still be outlawed. This is odd, considering the vast majority of all handguns are either semiautomatic or functionally identical.

I wonder how the press would have reacted if they had shot down the law based on going by a study that had been conducted by a gun rights group. We'd have never heard the end of it.

Even D.C. v Heller was 9-0 on whether the Second Amendment was written to protect an individual right to keep and bear arms. The 5-4 split was that the four dissenting justices said that while it was originally written to protect an individual right, that was the 18th century and what applied as a right in the 18th century has no place in the 21st century.

 

[mayosligo]

The 5-4 split was that the four dissenting justices said that while it was originally written to protect an individual right, that was the 18th century and what applied as a right in the 18th century has no place in the 21st century.[/QUOTE]

I would like I see their take on the smartphone and the first amendment then.

 

[Pilot]

The 5-4 split was that the four dissenting justices said that while it was originally written to protect an individual right, that was the 18th century and what applied as a right in the 18th century has no place in the 21st century.

That is for the Legislature, and States to decide by a Constitutional Amendment, not the Supreme Court. It is amazing these people get away with this crap. They are clueless.