D.C. v. Heller - I read the case, so you don't have to! - Page 2

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[ARCHIVED THREAD] - D.C. v. Heller - I read the case, so you don't have to! (Page 2 of 14)

Posted: 6/26/2008 12:46:44 PM EDT

[#1]

Tag for Cliff Notes.

Thanks, badfish274.

Posted: 6/26/2008 12:46:50 PM EDT

[#2]

Quoted:
This should be tacked

M-16s here we come

Second the Motion!

Tack This Thread!

Posted: 6/26/2008 12:47:03 PM EDT

[#3]

thank you very much for that. And I concur that EVERY ONE of us should donate a little something to hold up these fundamental rights that we hold so dear. Even if it is only the cost of a NRA membership

Posted: 6/26/2008 12:47:04 PM EDT

[#4]

Thanks!

Posted: 6/26/2008 12:47:06 PM EDT

[#5]

Quoted:

Quoted:
He is attempting to explain the relevance of the prefatory clause in such a way as to leave the door open for a continued ban on an undefined class of military weapons. It breaks down something like this from my reading:

(1) The rights protects keeping and bearing arms "of common use."
(2) One of the original purposes of the amendment, as seen in the prefatory clause, is that the citizens would bring their own arms "of common use" and form a militia with them.
(3) The fact that military technology has changed to such a degree that arms "of common use" would potentially be of no effect in modern war does not change the right to keep arms "of common use," nor does it extend the right to "uncommon" arms, whatever those may be, even if such weapons are needed to be an effective soldier in modern war.

My take is that he was trying to hint at a response to "Does this mean the RKBA allows you to use nukes?".

Let's face it: anything that we would be interested in, from handguns right up to Ma-Deuces, are in COMMON USE, either in the military or in their civilian versions. What ISN'T in common use is things like AT rockets and such, which even in the military are generally issued only to select troops, rather than across the board.

It almost sounds as if he's saying that the NFA and the MGB are both full of shit.

I think that what we eventually get will be limited to semi-auto. I would be shocked to see the Court grant a right to a LMG.

I've said this all along.

The most notable effects of this will likely be the death of state AWBs and possibly the end of no-issue and may-issue.

Interestingly, I think this decision could lead to open carry being legal in all 50 states.

Posted: 6/26/2008 12:47:09 PM EDT

[#6]

Quoted:

Quoted:
(3) The fact that military technology has changed to such a degree that arms "of common use" would potentially be of no effect in modern war does not change the right to keep arms "of common use," nor does it extend the right to "uncommon" arms, whatever those may be, even if such weapons are needed to be an effective soldier in modern war.

Say that slower and with smaller words and sentences. I really can't grasp this.

The right extends to arms "of common use." It doesn't matter if they are effective on a modern battlefield or not.

In other words, if you have a little gun and the govts gun is bigger it doesnt matter, You cant have the bigger one because it is not commen use

Posted: 6/26/2008 12:47:13 PM EDT

[#7]

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.

Let me see if I can help on the gray area.

"our interpretation of the right" (page 16- "these purposive qualifying phrases positively establish that "to bear arms" is not limited to military use") CANNOT be modified by the (possible) fact that innovations in arms make personal weapons ineffectual against the weapons of a standing army.

Basically, you need to carefully read the entire treatment of "Keep and Bear Arms" starting on page 7 very carefully

Posted: 6/26/2008 12:47:26 PM EDT

[#8]

Quoted:

Quoted:
(3) The fact that military technology has changed to such a degree that arms "of common use" would potentially be of no effect in modern war does not change the right to keep arms "of common use," nor does it extend the right to "uncommon" arms, whatever those may be, even if such weapons are needed to be an effective soldier in modern war.

Say that slower and with smaller words and sentences. I really can't grasp this.

I think he is saying two things...

1) ATGM's, MANPADS, nukes, etc. do not fall under the protections of the 2nd. Amendment.

and...

2) The fact that "common" small arms may have become somewhat irrelevant in the grand scheme of modern warfare does not mean that they are no longer protected under the 2nd. Amendment.

Sound about right?

Posted: 6/26/2008 12:48:37 PM EDT

[#9]

Quoted:

Quoted:
Per Scalia since ONE of the purposes for the Second was to have an effective militia, and in modern times an effective militia may require "sophisticated arms that are highly unusual in society at large." he seems to be broadly hinting that BANS on things like M16s are also out of bound. The 86 registration ban is eerily similar to the handgun ban used by DC. If one falls, the other should as well

If you're right, I hope this is challenged before anyone in the majority leaves the court.

So apply for a stamp for a new machine gun and hurry the fuck up!

If you've got a time machine to get me through school, and a couple million dollars to finance the thing... sure.

Posted: 6/26/2008 12:48:55 PM EDT

[#10]

Quoted:

Quoted:
(3) The fact that military technology has changed to such a degree that arms "of common use" would potentially be of no effect in modern war does not change the right to keep arms "of common use," nor does it extend the right to "uncommon" arms, whatever those may be, even if such weapons are needed to be an effective soldier in modern war.

Say that slower and with smaller words and sentences. I really can't grasp this.

The right extends to arms "of common use." It doesn't matter if they are effective on a modern battlefield or not.

Thank you for the translation! I couldn't figure out what the hell he was trying to say!

Posted: 6/26/2008 12:48:59 PM EDT

[#11]

Quoted:
Looks like the DC mayor doesn't care what scotus says.. He still won't allow (BANS) semi-auto handguns in DC...

Check out his butt hurt response to the ruling..

www.youtube.com/watch?v=Vj2L8OhR4ak

didnt the court say that to "bear arms" meant on your person? somebody ought to tell the mayor.

Posted: 6/26/2008 12:49:31 PM EDT

[#12]

Quoted:

Quoted:
Just to emphasize the best passage (as you pointed out), found in a footnote no less:

Obviously, the same test [rational-basis - PAEBR332] could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms.

That is HUGE.

How binding is a footnote like that?

it will probably be viewed as persuasive authority, not binding authority.

Posted: 6/26/2008 12:49:39 PM EDT

[#13]

Quoted:
It very much reads to me that the NFA is fine in terms of registration and tax stamps/administrative fees, BUT... he would be opposed to states refusing class 3 on equal protection grounds, he would oppose CLEO sign off because it is arbitrary, he would support repeal of the 86 amendments that prohibit new manufacture since it is a de facto ban - there are not enough legally owned class 3 weapons to meet demand. The shortage is a government induced shortfall, not a market failure. Thus it is a de facto ban.

I also believe he would frown harshly upon any tax stamps/administrative fees that were so expensive as to also constitute a de facto ban.

I bet the same would extend to such ideas as taxing ammo, micro-stamping, etc.

Posted: 6/26/2008 12:49:42 PM EDT

[#14]

Quoted:

Quoted:
Per Scalia since ONE of the purposes for the Second was to have an effective militia, and in modern times an effective militia may require "sophisticated arms that are highly unusual in society at large." he seems to be broadly hinting that BANS on things like M16s are also out of bound. The 86 registration ban is eerily similar to the handgun ban used by DC. If one falls, the other should as well

Bingo.

Glad I'm not the only one who thought it said that. If we're right, it's a TECTONIC SHIFT on the gun debate.

If we could get new G36's that would be a TEUTONIC SHIFT!

Posted: 6/26/2008 12:49:52 PM EDT

[#15]

Thanks for the breakdown badfish, very helpful!

Posted: 6/26/2008 12:49:59 PM EDT

[#16]

1) Badfish, I agree with you on anything above rational basis being a "win." That is about the best we realistically could have been hoping for anyway.

2) With respect to what I will henceforth refer to as the M-16 passage, here is my take, and I certainly hope that I'm wrong. (PS-I agree with you that this is an exceptionally convoluted passage, and I reserve the right to change my mind about what it means).

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 (Scalia is trying to figure out a way to justify his belief that machine guns can be prohibited or restricted, given the language of the operative 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 (I disagree here, while rifles aren't useful at shooting at tanks, that doesn't mean they are no longer useful. See, e.g. Vietnam. 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. Even if the concept of a militia is outdated, that doesn't mean that the prefatory clause gets to destroy the right granted by the operative clause.

Basically, this is the crappiest part of the opinion. I read it to mean that machine gun prohibition is ok, since machine guns are no longer common. Obviously, it ignores the fact that they are uncommon because of governmental restriction, a problem that the dissent yesterday recognized with respect to the enactment of death penalty laws. The fact that these are the modern day equivalent of muskets doesn't seem to matter, since they cannot be brought to bear by the average citizen. It seems to me that saving Miller meant that artificial scarcity is good enough to

Posted: 6/26/2008 12:50:15 PM EDT

[#17]

Quoted:

Quoted:
Just to emphasize the best passage (as you pointed out), found in a footnote no less:

Obviously, the same test [rational-basis - PAEBR332] could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms.

That is HUGE.

How binding is a footnote like that?

it will probably be viewed as persuasive authority, not binding authority.

AKA "Dicta"

Posted: 6/26/2008 12:50:22 PM EDT

[#18]

tagscribe....what I've read so far looks interesting.. I'll come back and finish from home

Posted: 6/26/2008 12:51:19 PM EDT

[#19]

Quoted:
The most notable effects of this will likely be the death of state AWBs and possibly the end of no-issue and may-issue.

Interestingly, I think this decision could lead to open carry being legal in all 50 states.

I'd be ecstatic just for that. While the ability to have FA would be nice, I would MUCH rather have what you describe above and no FA, if that's the choice.

Posted: 6/26/2008 12:51:41 PM EDT

[#20]

Honestly, I don’t get it. That last sentence is so ambiguous it isn’t even funny – this is highly uncharacteristic for Justice Scalia.

“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.” What the hell is he saying? Modern developments in terms of “modern-day bombers and tanks” or is it in terms of the “M-16 rifles and the like” that we’d like to possess? And what is the interpretation of the right in this instance?

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.

"Modern developments betwen small arms and bombers have reduced the effectivness of small arms compared with modern weaponry, however, that doesn't change the fact that people have the right to keep and bear those small arms.

How does that sound?

Posted: 6/26/2008 12:51:52 PM EDT

[#21]

Good read...Thanks!

Posted: 6/26/2008 12:52:02 PM EDT

[#22]

Quoted:
This needs a tack. Thanks badfish!

Posted: 6/26/2008 12:52:07 PM EDT

[#23]

So did Justice Scalia backtrack a bit at the end there or an I reading the cliff notes wrong?

Posted: 6/26/2008 12:52:18 PM EDT

[#24]

Quoted:
Basically, this is the crappiest part of the opinion. I read it to mean that machine gun prohibition is ok, since machine guns are no longer common. Obviously, it ignores the fact that they are uncommon because of governmental restriction, a problem that the dissent yesterday recognized with respect to the enactment of death penalty laws. The fact that these are the modern day equivalent of muskets doesn't seem to matter, since they cannot be brought to bear by the average citizen. It seems to me that saving Miller meant that artificial scarcity is good enough to

The more I read it, the more I think thats whats going on too. Miller is still good law, and the MG ban remains valid - no matter how bullshit the excuse for it is.

Posted: 6/26/2008 12:52:22 PM EDT

[#25]

Quoted:

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.

He is attempting to explain the relevance of the prefatory clause in such a way as to leave the door open for a continued ban on an undefined class of military weapons. It breaks down something like this from my reading:

(1) The rights protects keeping and bearing arms "of common use."
(2) One of the original purposes of the amendment, as seen in the prefatory clause, is that the citizens would bring their own arms "of common use" and form a militia with them.
(3) The fact that military technology has changed to such a degree that arms "of common use" would potentially be of no effect in modern war does not change the right to keep arms "of common use," nor does it extend the right to "uncommon" arms, whatever those may be, even if such weapons are needed to be an effective soldier in modern war.

Hes too smart to not realize that this statement directly contradicts his previous statement to the effect that the right protects "arms" that didn't exist at the time of the writing of the BOR.

Posted: 6/26/2008 12:52:30 PM EDT

[#26]

Quoted:

Quoted:
The most notable effects of this will likely be the death of state AWBs and possibly the end of no-issue and may-issue.

Interestingly, I think this decision could lead to open carry being legal in all 50 states.

I'd be ecstatic just for that. While the ability to have FA would be nice, I would MUCH rather have what you describe above and no FA, if that's the choice.

I think I'd take the FA over open carry legality.

Posted: 6/26/2008 12:52:31 PM EDT

[#27]

Quoted:
Thanks for taking the time to write that up, badfish.

Definetly!!!

Posted: 6/26/2008 12:53:18 PM EDT

[#28]

Badfish, I was counting on YOU to explain that very paragraph, for I was very confused as I read it, but would like to think that it meant that certain weapons suitable for military use could be owned by the populace, while other passages suggest that other certain weapons which were not suitable for military use or "lawful" use as they put it (SBS) were not OK to have...uh...

Posted: 6/26/2008 12:54:24 PM EDT

[#29]

This is what it meant:

How could there be so much debate?

Thanks for the summary!

Posted: 6/26/2008 12:54:31 PM EDT

[#30]

Quoted:
The more I read it, the more I think thats whats going on too. Miller is still good law, and the MG ban remains valid - no matter how bullshit the excuse for it is.

That may have been the price to keep Kennedy. We can't get it all in one shot when we DIDN'T lose it that way...

Posted: 6/26/2008 12:55:06 PM EDT

[#31]

Quoted:
Badfish, I was counting on YOU to explain that very paragraph, for I was very confused as I read it, but would like to think that it meant that certain weapons suitable for military use could be owned by the populace, while other passages suggest that other certain weapons which were not suitable for military use or "lawful" use as they put it (SBS) were not OK to have...uh...

I think Miller is still valid, unfortunately. MGs aren't common, so they aren't protected.

Fortunately, however, this is all dicta (non-binding), so we can argue these points anew if the MG ban is ever challenged.

I think Gura is right though... 922(o) is going to be a political decision.

Posted: 6/26/2008 12:55:44 PM EDT

[#32]

Quoted:

Quoted:
The most notable effects of this will likely be the death of state AWBs and possibly the end of no-issue and may-issue.

Interestingly, I think this decision could lead to open carry being legal in all 50 states.

I'd be ecstatic just for that. While the ability to have FA would be nice, I would MUCH rather have what you describe above and no FA, if that's the choice.

I think I'd take the FA over open carry legality.

Ah! To have choices to make like that!

T think that only a few hours ago we were contemplating choices such as "turn them all in" or "vote from the rooftops".

Posted: 6/26/2008 12:55:51 PM EDT

[#33]

Tag for later.

Excellent job, sir.

Posted: 6/26/2008 12:56:03 PM EDT

[#34]

Quoted:

Quoted:
The more I read it, the more I think thats whats going on too. Miller is still good law, and the MG ban remains valid - no matter how bullshit the excuse for it is.

That may have been the price to keep Kennedy. We can't get it all in one shot when we DIDN'T lose it that way...

I think thats also Scalia talking. He's very Hamiltonian when it comes to the government doing things he likes the government to do.

Posted: 6/26/2008 12:56:54 PM EDT

[#35]

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.

I think all that means is that there is still an individual right to own firearms, despite changes in technology and the relevance of the militia.

Overall, I think there are good grounds to challenge the 86 amendment and similar draconian prohibitions in this opinion.

Posted: 6/26/2008 12:56:56 PM EDT

[#36]

Quoted:
I think Miller is still valid, unfortunately. MGs aren't common, so they aren't protected.

Counterpoint: They aren't common because the .gov has banned them. They would probbaly be A LOT more common if they had NOT been.

Posted: 6/26/2008 12:57:01 PM EDT

[#37]

edited to shorten.

He mentions the standard of review there, and also in a footnote:

JUSTICE BREYER correctly notes that this law, like almost all laws,
would pass rational-basis scrutiny. But rational-basis
scrutiny is a mode of analysis we have used when evaluating laws
under constitutional commands that are themselves prohibitions on
irrational laws.
In those cases, “rational basis”
is not just the standard of scrutiny, but the very substance of the
constitutional guarantee. Obviously, the same test could not be used to
evaluate the extent to which a legislature may regulate a specific,
enumerated right, be it the freedom of speech, the guarantee against
double jeopardy, the right to counsel, or the right to keep and bear
arms. If all that was required to overcome the right to
keep and bear arms was a rational basis, the Second Amendment would
be redundant with the separate constitutional prohibitions on irra-
tional laws, and would have no effect.

Read that again. And again. That is the best part of this entire opinion, in my opinion

I agree. The rational basis scrutiny would be a great (if applied) argument to overturn existing NFA laws.

If machineguns are already legal and the only reason (post '86) mg's aren't is because of an arbitrary decision on dates, then that's nuts.

Am I on the right track? Does this make sense?

Posted: 6/26/2008 12:57:15 PM EDT

[#38]

Quoted:

Quoted:
The more I read it, the more I think thats whats going on too. Miller is still good law, and the MG ban remains valid - no matter how bullshit the excuse for it is.

That may have been the price to keep Kennedy. We can't get it all in one shot when we DIDN'T lose it that way...

But there is no ban on machine guns (at the federal level, at least) the BATF is not approving applications, eerily similar to the law struck down by this ruling.

The up arming of police may work to our favor as that is increasing the common usage for non-militia purposes.

A standing for a future case may be, if police are using them, they are common usage.

Posted: 6/26/2008 12:58:27 PM EDT

[#39]

Quoted:

I agree. The rational basis scrutiny would be a great (if applied) argument to overturn existing NFA laws.

If machineguns are already legal and the only reason (post '86) mg's aren't is because of an arbitrary decision on dates, then that's nuts.

Am I on the right track? Does this make sense?

Did you really need to quote that whole thing?

Posted: 6/26/2008 12:58:31 PM EDT

[#40]

Quoted:

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.

He is attempting to explain the relevance of the prefatory clause in such a way as to leave the door open for a continued ban on an undefined class of military weapons. It breaks down something like this from my reading:

(1) The rights protects keeping and bearing arms "of common use."
(2) One of the original purposes of the amendment, as seen in the prefatory clause, is that the citizens would bring their own arms "of common use" and form a militia with them.
(3) The fact that military technology has changed to such a degree that arms "of common use" would potentially be of no effect in modern war does not change the right to keep arms "of common use," nor does it extend the right to "uncommon" arms, whatever those may be, even if such weapons are needed to be an effective soldier in modern war.

Hes too smart to not realize that this statement directly contradicts his previous statement to the effect that the right protects "arms" that didn't exist at the time of the writing of the BOR.

IMHO he's creating a legal fiction to get 5 votes. There was going to be no majority for a ruling that said "militia clause means you get what a modern U.S. rifleman gets." So he avoids the whole thing by saying the right is for the arms "of common use." Now, of course, the reason why some arms are not "of common use" is because they are banned, but this is ignored. If an arm is not "of common use" in the civilian population, then it is a no-go. This de facto cuts off the argument from the left that you cannot recognize an individual right because then everything gets struck down.

What will be interesting is to see if someone argues that cops are civilians, and that select-fire rifles are "in common use" by police agencies, ergo they are "in common use" by the citzenry.

Posted: 6/26/2008 12:58:53 PM EDT

[#41]

tac this

Posted: 6/26/2008 12:59:08 PM EDT

[#42]

Quoted:
But there is no ban on machine guns (at the federal level, at least)

Correct me if I'm wrong, but the 86 ban prevents any more from being introduced to civilians. That's a ban in my book.

...the BATF is not approving applications, eerily similar to the law struck down by this ruling.

The up arming of police may work to our favor as that is increasing the common usage for non-militia purposes.

A standing for a future case may be, if police are using them, they are common usage.

Bingo.

Posted: 6/26/2008 12:59:19 PM EDT

[#43]

tag

Posted: 6/26/2008 12:59:52 PM EDT

[#44]

Quoted:
Did you really need to quote that whole thing?

Ditto. Some people have no quote discipline.

Posted: 6/26/2008 12:59:55 PM EDT

[#45]

but, but... there will be an eleventy-billion percent increase in gun violence TOMORROW as a result of this!!!

Posted: 6/26/2008 1:01:07 PM EDT

[#46]

This may have been answered by now, as I'm still reading your first post, and haven't read the rest of the thread. I'm replying as I go through.

Honestly, I don’t get it. That last sentence is so ambiguous it isn’t even funny – this is highly uncharacteristic for Justice Scalia.

“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.” What the hell is he saying? Modern developments in terms of “modern-day bombers and tanks” or is it in terms of the “M-16 rifles and the like” that we’d like to possess? And what is the interpretation of the right in this instance?

If anyone can explain this slowly and with small words, I’d love to hear it.

I'm probably way off base, as I'm strictly a keyboard commando

.

It seems to me that he's saying, "Look, we hold that the 2nd amendment protects the use of something like an M16, since it's used in today's warfare.
We recognize that today's military has weapons that are FAR more capable and deadly and just plain bigger than what the militiaman might be able to 'bring to the fight'.
Nonetheless, the 'militiaman' still has a need for the M16 and should STILL have the right to own/possess it."

I'm probably wrong, but that's what I get from it.

Posted: 6/26/2008 1:01:24 PM EDT

[#47]

Quoted:

Quoted:
But there is no ban on machine guns (at the federal level, at least)

Correct me if I'm wrong, but the 86 ban prevents any more from being introduced to civilians. That's a ban in my book.

...the BATF is not approving applications, eerily similar to the law struck down by this ruling.

The up arming of police may work to our favor as that is increasing the common usage for non-militia purposes.

A standing for a future case may be, if police are using them, they are common usage.

Bingo.

Don't want to burst your bubble, but that's not how I read the Court. '86 bans things not "in common use." Handguns are "in common use" at least outside DC and Shitcago. The 2nd protects weapons "in common use."

Posted: 6/26/2008 1:01:31 PM EDT

[#48]

Quoted:

Quoted:
I think Miller is still valid, unfortunately. MGs aren't common, so they aren't protected.

Counterpoint: They aren't common because the .gov has banned them. They would probbaly be A LOT more common if they had NOT been.

Consider the choir preached to, my friend.

Posted: 6/26/2008 1:01:40 PM EDT

[#49]

Quoted:
Badfish, I was counting on YOU to explain that very paragraph, for I was very confused as I read it, but would like to think that it meant that certain weapons suitable for military use could be owned by the populace, while other passages suggest that other certain weapons which were not suitable for military use or "lawful" use as they put it (SBS) were not OK to have...uh...

What Scalia is saying, imho, is that the test is not just whether an arm is an ancestor of the musket (i.e. M16), but also whether that arm is common to the average person today. Machine guns seem to fail that test in Scalia's view, and therefore, are not the type of arms, as a factual matter, that get 2nd amendment protection.

For whatever reason, and Gura correctly anticipated this, machine guns are something that people are scared of, including some of the justices in the majority today. If Scalia tried to say that machine guns are protected, I suspect he wouldn't have had the votes.

From the OA transcript:

JUSTICE SCALIA: Mr. Dellinger, let's come
back to your description of the opinion below as
allowing armor-piercing bullets and machine guns. I didn't read it that way. I thought the opinion below said it had to be the kind of weapon that was common for 4 the people

MR.DELLINGER: That is -

JUSTICE SCALIA: -- that is common for the people to have. And I don't know -- I don't know that a 8 lot of people have machine guns or armor-piercing bullets. I think that's quite unusual. But having a
pistol is not unusual.

MR. DELLINGER: The number of machine guns, I believe, is in excess of a hundred thousand that are out there now, that are -

JUSTICE SCALIA: How many people in the
country?

MR. DELLINGER: Well, there are 300 million, but whether that's common or not, but the -18

JUSTICE SCALIA: I don't think it's common.

MR. DELLINGER: But it's the -- the court
protects weapons suitable for military use that are lineal descendants. I don't know why an improved bullet wouldn't be covered, unless you adopt the kind of reasonableness standard that we suggest, where you look to the fact that -- and I don't -- some people think
machine guns are more dangerous than handguns --

Posted: 6/26/2008 1:01:54 PM EDT

[#50]

Quoted:
What will be interesting is to see if someone argues that cops are civilians, and that select-fire rifles are "in common use" by police agencies, ergo they are "in common use" by the citzenry.

Not only that, but (as mentioned above) the militarization of these civilian forces, which directly interact with the people on a regular basis (as opposed to the military, which prohibited from doing so on a law-enforcement basis) tends to make the defense-against-tyranny argument even STRONGER.

[ARCHIVED THREAD] - D.C. v. Heller - I read the case, so you don't have to! (Page 2 of 14)

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