Heller + Miller = Ban on AR-15's and Semi-Auto pistols unconstitutional?

J

JimDandy

New member
AS Heller v. District of Columbia held the militia clause was preamble and not a requisite meaning the RKBA is an individual right-

AND the weapons protected under United States v. Miller held the 2nd protects those weapons suitable for militia use

AND Heller v. District of Columbia held that the weapons suitable for militia service were those in common use at the time-

THEN couldn't one argue the organizations most similar to the Militias in operation at the time of the Framers are the civilian police forces? These forces are generally responsible to state and local oversight, but control can be taken by federal agencies. (though the how would have to be filled in by a lawyer, all I know is that Seattle and Oakland have both had the threat of such action hanging over their heads recently if not others). A state and local organization, with training, and bearing arms that can be subsumed by the federal government, and often is temporarily for such events as say... a state visit by the President of the United States?

And if that can be successfully argued the weapons used by the assorted police forces are all but immune from banning legislations?
 
I'd say: No! Unless you want to modify your statement by calling it a "Select Militia" as opposed to an "unorganized militia" and even then, police forces are police forces. They have arrest powers, something I don't believe the militia ever had, though I admit to not being certain.

However, I believe that the case can be made that any AR or AK platform firearm (and many other semi-auto models) are clearly the type of arms the Framers intended to be protected under the 2nd Amendent ... not just my Remington 700 or Kar98k
 
If he Militia were used against bandits and brigands that would imply arrest powers.

I didn't specify select, organized, or even Well-Regulated. Simply that they tend to correlate to the militia about as closely as the National Guard. In some cases the Guard more so, in some ways the police forces more so.
 
I think you make your own argument too complicated....

The militia clause is not operative. Therefore, whether or not a weapon is used by whatever the militia might be is irrelevant.

The 2A is a fundamental right.

The militia clause is not the operative clause.

"The right of the people to keep and bear arms shall not be infringed" is the operative clause.


The standard litmus test is:

1. Does the government have a compelling interest in creating the law?

2. Is the statute as "narrowly tailored" as possible to meet the compelling interest?

3. Are there less obstructive/restrictive/intrusive means of accomplishing the same objective?

Banning semi-auto anything or particular rifles of any kind is not "narrowly tailored" nor is it the least possible intrusion nor does it meet the objective in some unique way.

Therefore, it is unconstitutional.
 
The right is individual but Heller and Miller both still reference the Militia clause, even though Heller holds that the right is individual.

Miller defines the arms that are protected. Heller further defines it. Neither does so enough yet. I think that's the next major hurdle. Right now we have an individual right to weapons in the general use fulfilling a vague militia like purpose.
 
Brian said:
The standard litmus test is:

1. Does the government have a compelling interest in creating the law?

2. Is the statute as "narrowly tailored" as possible to meet the compelling interest?

3. Are there less obstructive/restrictive/intrusive means of accomplishing the same objective?
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Not quite. there is a subtle distinction in what Strict Scrutiny actually looks at:

  1. Does the government have a compelling interest in creating the law?
  2. Is the statute "narrowly tailored" to achieve the governments objective?
  3. Are there less restrictive means to accomplish the same goal?

Fact is, the definition above can actually be stated as:

  1. Does the government have a compelling interest in creating the law?
  2. Is the statute "narrowly tailored" to achieve the governments objective?
    • Are there less restrictive means to accomplish the same goal?

Strict scrutiny is often used to determine laws that restrict suspect classes or abridge fundamental rights (whether in the Constitution or not).

If the court finds that the answer to the first question is, "yes," then the court will ask the second question. If that question is also answered, "yes," the court will then take up the last question. For a statute to survive at this point, the answer must be, "no."

Remember, the court is not looking for the "least" restrictive means, only a "less" restrictive means.

JimDandy, right now the court cases are looking for an answer to the question; Is the right to keep and bear arms for self-defense a fundamental right, both in or out of the home.

The whole "assault weapons" bans is an entirely other question and has only a small relation to the answer of the question above. Fact: If the answer to that question is, "yes," then the questions of the types of arms protected becomes much more likely to be resolved in our favor.

This whole "militia" concept can be used to side-track the real issue, before the court lays down its rule. Granted, we are close to resolving that first question. Perhaps this is why the move by the anti-gun people are now pushing the bans.

Getting them (the bans) in and on the books now, will make our fight a little harder and definitely longer.
 
Right now we have an individual right to weapons in the general use fulfilling a vague militia like purpose.
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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.
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DC v Heller, page 1

No militia required.
 
Never said it was... in fact I said Heller holds it to be an individual right.... I only said Heller referenced Militia and Miller which ALSO referenced Militia..

None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.
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^^^ I agree with JimDandy. This part of Heller that he quoted immediately above is all we need, right there in front of us. All within one paragraph, Mr. Justice Scalia tells us that the RKBA is an individual right, AND that the right applies to those types of weapons in common use for lawful purposes.

Elsewhere in the very beginning of the Heller decision, Mr. Justice Scalia refers to the "core lawful purpose of self-defense." (See page 3.)

Link to the decision: http://www.supremecourt.gov/opinions/07pdf/07-290.pdf
 
The Supreme Court has ruled on the meaning of the 2nd Amendment. In their words: “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, weapons used by militiamen and weapons used in defense of person and home were one and the same.”

“The purpose of the Second Amendment is to secure a well-armed militia. But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons.”

Note that citizens were expected to keep and bear the same types of weapons as a professional army they would be called upon to fight. That principle was integral to the 2nd Amendment. It hasn’t changed.

These days, guns “in common use” are overwhelmingly rifles and handguns that accept magazines holding 15 to 30 rounds of ammunition. Not only would banning such firearms be a flagrant violation of the Constitution, but such a law would be unenforceable. There are tens of millions of legally owned high-capacity weapons in this country and hundreds of millions of magazines. Even if people were willing to register their guns (good luck with that!), magazines have no serial numbers. How could you find them all? Could the cops get warrants for door-to-door searches?
 
I have some reservations about pinning hopes on the "common use" concept. It would not be beyond the pale for the Feds to ban a sweeping category of weapons(1986 Machine Gun Ban), fight the law through the system for God-knows how many years and then claim it's constitutional because the firearms in question are not in common use, yet the only reason they're not in common use is because they're banned.

What's to stop them setting up an updated NFA system that charges $3,500 instead of $200 and adding different firearms and components to it over time until they're no longer in common use and then banning them entirely?

Vertical foregrip? NFA item.

15 round (or larger) magazines? NFA item.

Slow and steady, loses the rights.
 
Gazing into my crystal ball, I see many lawsuits being filed in New York and any other states that pass laws like this; I suspect a lot of them will be based on "common use," and I hope that concept will be clarified sooner rather than later. I don't see how states (or the feds, for that matter) can support a claim that ARs etc. aren't in common use for lawful purposes.

And might it not be possible to challenge magazine bans where semi-auto pistols are concerned, on the grounds that many semi-autos in common use are designed to take magazines holding >10 rounds (and certainly >7 :rolleyes:)? Perhaps it would be harder to make that claim for rifles, but for pistols where that's a factor in the design of the grip...?

I'm not sure about this, but I wonder...
 
Catch22

The problem is that the court reaffirmed Miller in both Heller & McDonald. Miller states that weapons MUST have suitability in a militia. Militia weapons in common use at the time. The court refused to overturn Miller as a mistake or as being inconsistent with it's new (or maybe antique) holding of the 2nd Amendment as an individual right to self defense. Militia weapons are NOT essential for self defense. Nor are they essential for hunting (not mentioned in Miller but still part of the right). So in short the court has to either overturn Miller or suffer the unintended consequences of making fully automatic "militia" weapons (& probably more) available for self defense.
 
That's why I think it's important to tie common use to police and law enforcement forces Brian. When there's an immunity for current and retired LEO's it already rankles. And it strikes me as almost exactly one of the designed purposes of the second amendment to keep an apparatus of the government (the police forces) from having more and better arms than the general citizenry.
 
I believe the common use language will be used to overturn bans on semi-auto rifles, and pistols, and standard capacity magazines above ten rounds in which these firearms were designed to use.

The AR-15, and many semi-auto pistols sold with standard 15 round or higher round count magazines are some of the most prevalent and popular firearms in the U.S. I believe the AR is THE most popular rifle in the U.S. When something is that common, how can it not be viewed as common use? Yes, the courts do not have to make sense, especially common sense (pun intended) but I think that is a very cogent argument to make.
 
To try and answer the OP's convoluted question, yes, a blanket ban would be unconstitutional imo.

For Al Norris, are you assuming we'll get strict scrutiny? I hope we do but believe we won't. Doesn't it seem to you as though we'll end up with some intermediate form?

For Brian Pfleuger, Gura thinks the common use test is the primary contribution (outside of the ruling itself) from the Heller case, and further, that "in common use" actually means, "in common use, or would be in common use".

He was addressing a question along exactly the lines of your "concern", where, if a weapon is banned and vanished from the earth, wouldn't it then automatically fail the common use test? He said no, and then explained it with the "would be" verbiage, adding that "would be" is how a newly-invented weapon could also pass the common use test.

I'll try to find the video, it's about 90 mins, but well worth it.

Here it is:
http://www.youtube.com/watch?v=pNN7_TOvaUo
 
For Brian Pfleuger, Gura thinks the common use test is the primary contribution (outside of the ruling itself) from the Heller case, and further, that "in common use" actually means, "in common use, or would be in common use".

He was addressing a question along exactly the lines of your "concern", where, if a weapon is banned and vanished from the earth, wouldn't it then automatically fail the common use test? He said no, and then explained it with the "would be" verbiage, adding that "would be" is how a newly-invented weapon could also pass the common use test.
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I don't know what Gura says has much bearing, the real question is WWSD?


What would Scalia do? His explanations on NFA items run counter to the above arguements and he's continually shown a desire to reserve some rights on restrictions for the court.
 
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