Feinstein, Gorsuch and Heller

[steve4102]

Here is a video of Senator Feistein questioning Judge Gorsuch.

If you move up to the 19:00 mark, the senator quotes Heller and Justice Scalia.

Did she actually "quote" Justice Scalia accurately or she she twist it all to hell?

Did Justice Scalia actually write in Heller that "an M-16 can be banned"?


https://www.youtube.com/watch?v=PrmbImXxPag

Here are Feinstein's words. Are they accurate?

In D.C. v. Heller, the majority opinion written by Justice Scalia recognized that, and I’m quoting, ‘Of course the Second Amendment was not unlimited,’ end quote. Justice Scalia wrote, for example, laws restricting access to guns by the mentally ill or laws forbidding gun possession in schools were consistent with the limited nature of the Second Amendment. Justice Scalia also wrote that, ‘Weapons that are more useful in military service, M-16 rifles and the like, may be banned without infringing on the Second Amendment.’ Do you agree with that statement that under the Second Amendment weapons that are most useful in military service … may be banned?

 

[2ndsojourn]

"Do you agree with that statement that under the Second Amendment weapons that are most useful in military service … may be banned?"

To answer the question and keep the OP on track, the answer is 'NO'.

Now, off track, IMHO, Sen. Feinstein is an idiot who doesn't belong on the Judiciary Committee. She says "I believe the Constitution is a living document..." Well, that's just fine, then change it...by the procedure outlined in the Constitution. Introduce an amendment. Her problem is 49 other states don't want to live under her view of the Constitution.

 

[44 AMP]

Did she actually "quote" Justice Scalia accurately or she she twist it all to hell?

Did Justice Scalia actually write in Heller that "an M-16 can be banned"?

Yes, and no. Like any other agenda driven politician, there is a small kernel of truth in her words, but the rest is her own twisted fabrication.

I'm not going to look it up, but is it entirely possible she is faithfully and accurately quoting the short, (out of context) phrase "the Second Amendment was not unlimited". The rest, however is bull crap.

Simply put, the Heller decision said nothing could be banned outright. However, weapons "not in common use" could be regulated without violating the 2nd Amendment.

Regulated/restricted is NOT a ban.

A complete ban is, however the only kind of "reasonable restriction" Feinstein and her fellow travelers are willing to accept.

Remember who is speaking here, the woman who, as mayor of SF, made a big deal of turning in her licensed pistol when her city passed (a later overturned) handgun ban law.

Unfortunately for her, the PR stunt of publicly turning in her pistol backfired, when a public records search revealed that she was licensed for TWO.
She turned in ONE of her pistols, she kept the other one....

 

[Shenna9220]

She is completely wrong! The text she is referring to:

"It may be objected that if weapons that are most useful in military service – M16 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."

Heller clearly says that if military weapons are banned then the 2A does not fulfill it's purpose. Someone needs to call her out on this.

I should be able to buy and own an M1 Abrams tank according to Heller (not that I could afford one)

 

[Frank Ettin]

...Did Justice Scalia actually write in Heller that "an M-16 can be banned"?....

The way to answer that question is to look at the opinion. Here's what Justice Scalia wrote (Dist. of Columbia v. Heller, 554 U.S. 570 (2008), at 626-628, emphasis added, footnotes omitted):

.... Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students' Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession[128 S.Ct. 2817] 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.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U.S., at 179, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New–York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N.C. 381, 383–384 (1824); O'Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N.C. 288, 289 (1874).

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 limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right......

 

[Al Norris]

Feinstein is actually quoting from the recent en banc 4th Circuit decision, which said:

That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” —which the Heller Court singled out as being beyond the Second Amendment’s reach.

The above is a misstatement of what Scalia actually wrote in Heller, when, in dicta, he described the prefatory clause of the second amendment:

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.

The 4th Circuits opinion relied heavily on this tortured interpretation of dicta to arrive at their decision, giving life to the anti crowd in its endeavor to ban firearms.

It should come as no surprise to anyone that has been following the courts and cases.

 

[Glenn E. Meyer]

Not being a lawyer, reading Frank's quotes (thank you, Frank), it seems to me that the language does allow a category of dangerous weapons and they can be banned without destroying the Second Amendment.

The only difference between an AR-15 and M-16 in significant function is the full auto capacity. AR-15s are very dangerous weapons even if only semiauto.

Is this not the logic that is used to support the state level AWB and mag capacity bans?

I really don't see (naive me, willing to be corrected) how Scalia's language forbids such bans and in fact, it enables them?

Diane was pushing that point. I don't see a forseeable SCOTUS knocking down such state level laws.

It is my opinion that fighting this at SCOTUS is fun but a played out strategy. It will only bring losses or refusal to take cases that let the state level bans stand as per Circuit decisions.

If the Republicans would stop spinning in circles, they would move to proactive legislation that would ban State bans as they are defending the BOR. They would move on national reciprocity. Just trying to undo things like VA rules are useful but they cannot be defensive all the time and claim credit for being great defenders of the 2nd Amend. It is not enough. They need to expand rights.

 

[Aguila Blanca]

If the Republicans would stop spinning in circles, they would move to proactive legislation that would ban State bans as they are defending the BOR. They would move on national reciprocity. Just trying to undo things like VA rules are useful but they cannot be defensive all the time and claim credit for being great defenders of the 2nd Amend. It is not enough. They need to expand rights.

Amen, brutha!

 

[5whiskey]

I really don't see (naive me, willing to be corrected) how Scalia's language forbids such bans and in fact, it enables them?

When taken out of context, the one snippet of a quote from Scalia's Opinion could read as though it leaves an opening to banning certain "military like" firearms. I'm going to re-quote the opinion from Frank's quote, and modify the emphasis that Frank added, but also break it down further...

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.

This is the statement frequently used as an out-of-context vote. Scalia is saying that if we can enact a National AWB, then basically the second amendment is two different and distinct parts that are separate from one another. It would really read more like two separate sentences.

A well regulated Militia, being necessary to the security of a free State.

The right of the people to keep and bear Arms, shall not be infringed.

They are not though. It is one sentence, one statement of both the individual right of the people to bear arms and the need of the nation to maintain a militia.

Scalia goes on to say this...

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.

Stating that when the 2nd Amendment was written, this was the intent and purpose. Hence, why it was written as one sentence and one statement in the bill of writes. Both clauses in the 2nd Amendment, the need for militia and the RKBA, are entwined. Emphasis added.

He goes on...

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.

Here Judge Scalia basically admits that things have changed, and that AR15's will be of limited use against tanks and bombers. I wish he would not have made this reference, as we still arm our infantry with M4s... the full-auto version of an AR15 rifle owned by many civilians. So I would argue that this is moot point as our military still sees to outfit our warriors with the same small arms that Judge Scalia is referencing. At least he makes up for it with this...

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......

Here he states that it doesn't matter that things have changed. Even if you can't kill a tank with an AR15, the right that we enjoy is basically the right that the founders envisioned: Most every man has a rifle at home, and if he's called to serve his country he brings that rifle with him to fight. When taken in total context, Judge Scalia is basically saying that a National AWB is unconstitutional. In a round about way.

 

[Aguila Blanca]

And, as I think I have posted before, some weapons that today are "unusual" in civilian hands are unusual only due to cost, or laws (or both). NFA items (machine guns) are one example. It wasn't all that unusual for ordinary people to own automatic firearms prior to 1934. If it had been unusual, they wouldn't have bothered to enact the NFA.

And let's not forget that in the time the Bill of Rights was written, it wasn't unusual for wealthy gentry to own their own cannon. I have commented (and I don't know if I'm joking or not) that on occasion the commander of the local militia was chosen because he was the guy with the cannon. Using that example as precedent, today we should all be allowed to own mortars, howitzers, Bradleys. tanks, and F16s.

 

[5whiskey]

Using that example as precedent, today we should all be allowed to own mortars, howitzers, Bradleys. tanks, and F16s.

Believe it or not, Aquila, there are some old T55 Russian tanks running around somewhere in the Dakotas IIRC under private ownership. I'm sure there are other places, this is just the one I know of. They were purchased from Afghanistan and shipped over. Heavily regulated, of course, and I'm convinced the group had to perform "favors" for a president to get permission to import.

 

[SHR970]

For a real mind bender look up Littlefield Collection or Jaques Littlefield Collection. Wiki is a joke here.. find the more detailed articles. You WON'T believe WHERE it was until recently and what was in it!

 

[HiBC]

(Sarcasm alert. No need to explain it to me)

I can't believe the authors of the Bill of Rights cherished duck hunting and and turkey shoots so much they wrote the 2nd Amendment about them.

According to a Universty of Hawaii study on Democide(easily found with a search) approx 260,000,000 people in the 20th Century were murdered by their own governments.

Jefferson told us the 2nd Amendment was about Tyranny of Government.

Which,IMO,certainly does protect the right of the citizen to have a combat weapon of war. (See Switzerland)

Why are short barreled shotguns NFA restricted firearms? The justification I read is they do not have practical military application providing security for the free state,so they are not protected by the 2A.

Which means,IMO,according to that logic,our AR-15's,M-14's,FN FAL's,Arctic Warrior 338 Lapuas,and 23 round 9mm Double stack hand guns are MORE PROTECTED by the 2A ,due to the "Well Regulated Militia" clause,than our 22 short Stevens Crackshots and 20 ga side by side bird guns are.

Feinstein is wrong.

 

[random guy]

Heller did not really address an AWB other than pondering the possibility in passing. The question is not whether you can fight tanks with an AR-15 but simply whether it has a lawful purpose and further whether its common ownership facilitates an effective militia in any way.

Our soldiers carry a very similar rifle. Should they abandon them because they won't stop a tank? Of course not.

Clearly the AR-15 is still a relevant tool for militia duty and individual use unrelated to militia duty.

Feinstein may have used her spurious quote as simple propaganda. Many people undoubtedly now consider her statement as gospel. And she may have hoped to drag Gorsuch into a long debate on whether "everyone should be given an M-16".

I think he is too cagey for that. He slapped her down without spelling it out by stating that what Scalia wrote is the law...and what Feinstein said is not what Scalia wrote. When she said "Fair enough" she may have been considering pushing a bit more to firm up the narrative that "Scalia said we can ban AR-15s" but decided to quit before the truth landed on her like a grand piano.

I believe Scalia said that a future Court would decide the AWB question but by the criteria he laid down in Heller, I don't see how such a ban could be justified. It would require a very twisted reading of Heller.

 

[Aguila Blanca]

I believe Scalia said that a future Court would decide the AWB question but by the criteria he laid down in Heller, I don't see how such a ban could be justified. It would require a very twisted reading of Heller.

Which is exactly what we've been seeing coming out of the lower courts and the appellate courts regularly since Heller.

 

[Frank Ettin]

...Which,IMO,certainly does protect the right of the citizen to have a combat weapon of war. (See Switzerland)...

That Swiss citizen is a reservist. He has completed his compulsory military services and now maintains his service weapon at home. He is subject to military authority and must qualify with his weapons periodically. He is not just "a regular guy" with some military rifles.

 

[natman]

Here are Feinstein's words. Are they accurate?

In D.C. v. Heller, the majority opinion written by Justice Scalia recognized that, and I’m quoting, ‘Of course the Second Amendment was not unlimited,’ end quote. Justice Scalia wrote, for example, laws restricting access to guns by the mentally ill or laws forbidding gun possession in schools were consistent with the limited nature of the Second Amendment. Justice Scalia also wrote that, ‘Weapons that are more useful in military service, M-16 rifles and the like, may be banned without infringing on the Second Amendment.’ Do you agree with that statement that under the Second Amendment weapons that are most useful in military service … may be banned?

No. The first is a distortion of what Scalia wrote but at least bears some resemblance to what he said.

The second wasn't written by Scalia in Heller and is from a recent decision from the 4th district court. It's a wild and irresponsible distortion of Heller.

From the 4th's decision:

That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” —which the Heller Court singled out as being beyond the Second Amendment’s reach. See 554 U.S. at 627 (rejecting the notion that the Second Amendment safeguards “M-16 rifles and the like”).

Here's what Heller actually says:

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.

Note that the first sentence presents a hypothetical objection and the second sentence refutes it. The 4th has seen fit to take selected words from the first sentence completely out of context and twist them 180 degrees from Heller's actual position on the definition of the meaning of the word "arms":

“Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.”

“Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.”

“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications,…and the Fourth Amendment applies to modern forms of search, …the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

DC v Heller, pages 7-8

This bears no resemblence whatsoever to the 4th's twisted interpretation and for Feinstein to claim it as part of Heller is a huge whopper, even for her.

 

[random guy]

Which is exactly what we've been seeing coming out of the lower courts and the appellate courts regularly since Heller.

You'll have that. The issue will almost certainly reach SCOTUS at some point and hopefully at a time when the makeup is more decidedly of the original intent school rather than those who want to help the Constitution evolve into something new.

 

[Aguila Blanca]

I don't think they want to "help" it evolve. They seem intent on dragging it, kicking and screaming, in a Euro-centric direction that has nothing to do with the intent of the Founding Fathers.

 

[JimPage]

Feinstein ain't no Einstein.