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

[speedrrracer]

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.

Well, it's hard to say what one particular judge will do, but as far as what the court will do, Gura is 2-0, so it could be argued he knows better than anyone else.

NFA isn't being challenged anytime soon, so even if Scalia has weird beliefs in that area, I'm not sure it's relevant.

Clearly the strained rulings over the years make any kind of robust predictive model of SCOTUS decisions impossible. However, there are some trends, and I think Gura sees those clearly, and orients his actions, and chooses his arguments, so as to align with them.

One trend we can all agree on is that SCOTUS doesn't like to reverse itself. OK, if you read the Kachalsky petition for cert, you'll see each level of Gura's arguments are built on SCOTUS decisions or dicta directly, many from Heller. He's using their own determinations to herd them, if you will.

Just an example. So, when Gura says the common use test is huge, it's hard for little people like me to disagree. Perhaps we'll know more the next time Gura is before SCOTUS.

 

[speedrrracer]

Question: Does anyone think there could be a constitutional provision to limit magazine capacity to 30 or 40? Or rather make drums illegal etc?

Some 2A scholarship suggests that when the issue is fought before SCOTUS, we'll end up with 15-20 rounds for pistols and 20-30 rounds for rifles, mostly hinging on the common use premise.

Here's the CATO Institute's David Kopel on that topic (and others, starting with EOs) start at 2:45 for the magazine stuff

http://www.youtube.com/watch?v=6swSM_nqCnk

And here's Bob Levy on the topic (and others)

http://www.washingtonpost.com/lifes...ff62f0-5b6b-11e2-beee-6e38f5215402_story.html

 

[Dr Big Bird PhD]

Makes sense. I don't agree with the limit perse. If every crazy person who went on a spree with an AR used a 100 round drum, there would be a lot more FTFs.

Personally I like 20 rd mags for my AR. Never liked the feel of 30, but that is personal preference only.

 

[JimDandy]

There's a part of my original idea/question that's been glossed over I'd like to get back to.

What are the benefits/drawbacks/ease/difficulty in lining up the law enforcement organizations as a likely stand in for the militia the framers were pointing to?

It's not a direct comparison, but it also seems most likely to get us where most of us want, if they can't ban anything the local and federal police agencies are using.

 

[speedrrracer]

There's a part of my original idea/question that's been glossed over I'd like to get back to.

What are the benefits/drawbacks/ease/difficulty in lining up the law enforcement organizations as a likely stand in for the militia the framers were pointing to?

It's not a direct comparison, but it also seems most likely to get us where most of us want, if they can't ban anything the local and federal police agencies are using.

Correct me if I'm wrong, but it sounds as though you're suggesting some kind of ruse, where we all become LEOs-in-name-only and therefore can have any weapons the local police can have.

I find it difficult to believe anyone finds that credible, but there is an organization in Montana that is trying to effect legislation? I don't know -- some kind of change whereby anyone, from any state, could pay a fee and become some kind of auxiliary LEO for the state of Montana, and then expect their local PDs to respect their RKBA as a full-fledged LEO.

http://www.ccwforall.com/pages/updates.php

 

[JimDandy]

No I'm suggesting the standard for in common use be applied to the armories of the various law enforcemet agencies.

That the general point of the 2nd amendment was that the government agencies not be better or more armed than the general citizenry- and the most common example of such would be the law enforcement.

 

[natman]

I think the OP is on the right track, but it's actually simpler than that. In 2008 the Supreme Court settled many 2nd amendment issues with DC v Heller. Here are the main points:

The first quote establishes that service in a militia is NOT required to be protected by the 2nd:

1. 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. (page 1)

In addition, in Heller the court commented on a previous decision, US v Miller which was about the National Firearms Act, which regulated machine guns, short barreled shotguns, etc. This clearly establishes what sort of arms are covered:

(f) None of the Court’s precedents forecloses the Court’s interpretation.

Neither United States v. Cruikshank, 92 U. S. 542, 553, nor
Presser v. Illinois, 116 U. S. 252, 264–265, 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. (page 2).

[emphasis added]

Now if there was ever a gun that is in common use for lawful purposes, it's the AR15 that some want to ban. It's exactly the sort of gun that the second amendment is all about. The proposed ban flies directly in the face of the second amendment in general and Heller in particular.

 

[JimDandy]

Now pretend you're not preaching to the choir. Pretend you're preaching to 9 people with an aggregate 50/50 split for no opinion on the second amendment, and do not own firearms, or know anything about them.

These 9 people have conceded the 2nd is an individual right. They've also said whatever a lot of folks have is probably fine. Now how do you convince the a lt of folks have AR-15's of various brands, features, models, parts, etc.

With a DHS Request for Purchase. With the trunk contents of every county sheriff, state trooper, and most large urban police departments right?

 

[JimDandy]

Additionally, Heller talks common use for "lawful purposes" is there a more lawful purpose than upholding the law? The more we point to law enforcement effectively, the stronger our argument gets. DHS says a 30 round AR-15 is suitable for personal defense. They're a law enforcement organization. Common use lawful purpose.

Then we point to the "miitia" Korean grocers in the LA riots. The history of posse comitatus, and its origins in hue and cry..

 

[speedrrracer]

Now I understand what you're talking about.

The recent DHS SOW for PDWs will be of some help. Police use will be of some help.

But let's be very clear -- the so-called "common use test" has never yet been applied. Therefore, we could all be misinterpreting what SCOTUS will actually do when the rubber meets the road.

For example, SCOTUS could easily decide that common use doesn't have any bearing and is not informed by the nature of police weaponry. They could find that the police have extraordinary needs, e.g. SWAT teams, and therefore no, we're not going to accept that argument.

Remember, Heller suggests the core of the 2nd Amendment might be self-defense, so the anti-tyranny defense (that citizens need to be armed on some level similar to the government) might go over like a lead balloon. You and I might believe it, but if 5 out of 9 SCOTUS judges don't believe it, we're SOL.

Alternatively, the court could find that police, while not required to do so, often engage in defense of others to a degree not common among citizens, and therefore they need exceptional firepower that citizens do not, or that police are targets of exceptional violence, or whatever.

Not saying that's how it will go, but keep in mind there is a lot of history where police can have X and citizens cannot, e.g. SWAT teams. This court will surely know that. They may decide that the contents of the average patrol car are OK for a citizen to have, or they may say citizens have no expectation of maintaining the same level of firepower. They may leave it all up to the various states.

Surely Gura will use police / DHS if he feels they can help, but for now we don't even know if he'll ever try such a case before SCOTUS. He's currently still trying to get us the right to carry a friggin' pistol.

My guess is that he's looking for clues, and hoping that SCOTUS will take Kachalsky, not just so that we can have carry protected under the 2nd, but so that SCOTUS may drop some other gems which will suggest the path to take for any potential future litigation. Remember, they did exactly that in the first Heller decision -- pretty much came right out in the decision and said that they would allow the 2nd to be incorporated against the States if it ever came before them. To the surprise of no one (even the Bradys were saying Gura would win that case), Gura then won McDonald, and we now have incorporation.

 

[JimDandy]

That's why I was pointing to common use in the police forces themselves. Its not just SWAT teams with the AR's anymore. They're in so many patrol cars. Police in Seattle have so many they forget them on their trunk lids when they go home for the night. Which implies it's not a special issue, but something they take home with them.

 

[maestro pistolero]

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.

Don't agree. Heller came right out and said that reading Miller to mean that civilian ownership of machine guns were protected by the 2A would be an "alarming" interpretation. Scalia immediately followed with the passage wherein he wrote "We therefore read Miller to mean . . ." that the 2A protects weapons in common use for lawful purposes of the type that folks would keep at home (paraphrased, of course).

It seems to be a quite novel interpretation for a majority which also opined:

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.

Yet they DID change the interpretation in the first passage (because they felt that private machine gun ownership would be too alarming), further reducing the degree of fit between the 1st clause, and the right itself.

 

[Aguila Blanca]

Now if there was ever a gun that is in common use for lawful purposes, it's the AR15 that some want to ban. It's exactly the sort of gun that the second amendment is all about. The proposed ban flies directly in the face of the second amendment in general and Heller in particular.

The same applies to handguns. By a huge preponderance, the type of handgun carried by both police and "civilians" today is a semi-automatic pistol with a magazine capacity in excess of 10 rounds. That's what is in "common use" today, and IMHO the cited language from Heller should make any law banning such handguns (as well as AR-type rifles) void due to being unconstitutional.

 

[JimDandy]

As a somewhat related question involved- Does anyone know of any recent uses of Posse Comitatus? When "ordinary" civilians were deputized in such a manner? I know that some Sheriffs maintain a reserve, like Sheriff Joe down in AZ and call them posses.

But the most recent mention I can find so far, (in only a few minutes of searching) is from 1922.

 

[speedrrracer]

Yet they DID change the interpretation in the first passage (because they felt that private machine gun ownership would be too alarming), further reducing the degree of fit between the 1st clause, and the right itself.

Yeah. The intellectual dishonesty is soul-crushing, and I don't see how it has helped us have a "better national discussion"

 

[JimDandy]

Yet they DID change the interpretation in the first passage (because they felt that private machine gun ownership would be too alarming), further reducing the degree of fit between the 1st clause, and the right itself.

I don't read it that way. From my limited research, Heller was the first one to actually address the prefatory clause directly. Miller came close, but stopped just short. Everything else has been suggestive but not definitive. They have time and time again listed the RKBA with the other individual rights for example. So they didn't change the interpretation, they established it.

Further, we don't know how they feel about NFA and private fully automatic weapons in private hands as that wasn't the issue before the court. They can't hear a case on abortion rights, and veer DIRECTLY off on recreational drug use. They can only leave bread crumbs for another lawyer to follow and put that issue before them phrased in the same way citing the case they left the bread crumbs in.

 

[speedrrracer]

Further, we don't know how they feel about NFA and private fully automatic weapons in private hands as that wasn't the issue before the court.

Don't we? "Dangerous and unusual" must have come up in your reading of Heller.

They can't hear a case on abortion rights, and veer DIRECTLY off on recreational drug use. They can only leave bread crumbs for another lawyer to follow and put that issue before them phrased in the same way citing the case they left the bread crumbs in.

Let's be honest -- Heller did veer off a little bit, although not to the level of exaggeration you mention. For example, the dicta creating the presumptively lawful restrictions on bans on felons, mentally ill, etc. There is no constitutional basis for those, they were not the issue before the court, and poof! SCOTUS created them out of thin air.

Now the antis are citing them as clear support for laws mandating single-shot firearms locked in the basement of a state armory.

 

[lefteye]

Obiter dictum does not "create" law or "presumptively lawful restrictions" on people or things.

 

[speedrrracer]

Obiter dictum does not "create" law or "presumptively lawful restrictions" on people or things.

Didn't say it did, but to imply they don't have legal weight is disingenuous.

Heck, footnotes created the entire concept of standard of review. Imagine what a little dicta might do.

 

[maestro pistolero]

I happen to believe that eventually, after the questions of "bear outside the home", arbitrary magazine restrictions, and so-called AWs are protected, that there must be, in the law, SOME legal path to purchase and possess new NFA weapons.

Such ownership may come with heightened regulations, background checks, training, secure storage, etc. But I find it doubtful that, once the next several strategic battles are won in our favor, that a complete ban on new NFA items could survive.

I concede a certain optimistic view on that point.