Posted: 2/2/2013 3:10:17 PM EDT
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I am no lawyer, and did not even know about this case until a few days ago. I was wondering if any of the posters here who are more familiar with the law could explain this case a little along with any precedence it may set for our situation here in NY?
I know there are lawsuits that have been filed, and some on the way, are any of them arguing on this point, or am I just a sap to think this gives us NYer's a chance. |
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Quoted:
I am no lawyer, and did not even know about this case until a few days ago. I was wondering if any of the posters here who are more familiar with the law could explain this case a little along with any precedence it may set for our situation here in NY? I know there are lawsuits that have been filed, and some on the way, are any of them arguing on this point, or am I just a sap to think this gives us NYer's a chance. In Miller, Supreme Court decision was inconclusive if 2nd Amendment is an individual right, but they ruled that 2nd Amendment protects weapons used by the militias, military type of weapons. Google it. Wikipedia is not a good source. They conveniently omit quoting the entire decision. |
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JPFO has a decent write-up on it.
http://jpfo.org/filegen-a-m/miller.htm |
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Quoted:
Quoted:
I am no lawyer, and did not even know about this case until a few days ago. I was wondering if any of the posters here who are more familiar with the law could explain this case a little along with any precedence it may set for our situation here in NY? I know there are lawsuits that have been filed, and some on the way, are any of them arguing on this point, or am I just a sap to think this gives us NYer's a chance. In Miller Supreme Court decision was inconclusive if 2nd Amendment was an individual right, but they ruled that 2nd Amendment protects weapons used by the militias, military type of weapons. Google it. Wikipedia is not a good source. They conveniently omit quoting the entire decision. Yeah, that's what I mean, they state weapons used by the militia as being protected by the second amendment...so how could that not make our new AWB unconstitutional? |
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Quoted: well...Quoted: Quoted: I am no lawyer, and did not even know about this case until a few days ago. I was wondering if any of the posters here who are more familiar with the law could explain this case a little along with any precedence it may set for our situation here in NY? I know there are lawsuits that have been filed, and some on the way, are any of them arguing on this point, or am I just a sap to think this gives us NYer's a chance. In Miller Supreme Court decision was inconclusive if 2nd Amendment was an individual right, but they ruled that 2nd Amendment protects weapons used by the militias, military type of weapons. Google it. Wikipedia is not a good source. They conveniently omit quoting the entire decision. Yeah, that's what I mean, they state weapons used by the militia as being protected by the second amendment...so how could that not make our new AWB unconstitutional? They could use the argument that since "Assault Weapons" are not military "Assault Rifles", they are not protected. We have made the same argument as well stating that the AR-15 bears only a cosmetic appearance to a military weapon and is not, in fact, a weapon used by the military. Of course that might then be an argument for overturning the ban on automatic weapons that has been in place since 1986 but I seriously doubt that would ever happen. Otherwise it would be a rather weird turn of events to be told AR-15's could be banned but M16's and M4's perfectly legal. Weird like Connecticut's ban on assault weapons which makes a select fire weapon such as an M16A1 illegal but an auto-only such as an M60 legal. |
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Quoted: I'm not arguing for an overturn of the 86 ban, I am asking why that case does not protect our beloved military style weapons from a ban, because as far as I can tell, it is as clear as day saying those weapons ARE protected under the second amendment. I am not arguing for an overturn of the 1986 ban. You asked how the new SAFE AWB could not be unconstitutional under Miller. I am saying that the government could argue, and I would not be surprised, that thay are "Military Style" weapons not "Military" weapons so are therefor not protected under Miller. The military does not use AR-15's. They use M4's and M16's which are "Military" weapons. What I think would be strange would be the lawyers for New York State arguing that AR-15's, etc. are not protected under Miller because they are not true military weapons. This is the only defense to the claim they are protected that I can think of (militia membership is off the table under Heller). That then creates a problem because New York State bans ownership of true military weapons (ie. NFA) and the ban of 1986 prohibits new weapons. You therefor would wind up having a total ban on all military weapons which flies in the face of Miller. Either the weapons are protected because they are military or they are not. Of course the courts could split the difference and keep both bans but it creates an interesting bit of logic. |
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A couple of points here, Miller was not a member of the National Guard so the fact that the Supreme Court granted cert shows that the 2nd applies to individuals, not the NG
Second, the decision was very curiously worded, since nobody showed up for the defense it should have been a slam dunk for the gov't but the decision strongly suggests the only reason for remanding was the lack of evidence submitted by the defense. |