AWB II - My prediction

This is a discussion on AWB II - My prediction within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Originally Posted by relentless ... The reason I believe that an AWB will be held as unconstitutional is because in the Heller decision it is ...

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  1. #16
    RT
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    Quote Originally Posted by relentless View Post
    ...

    The reason I believe that an AWB will be held as unconstitutional is because in the Heller decision it is made clear that the government cannot ban a "class of arms in common use by the American people for defense." The legislators and people who want an assault weapon ban the ones that are classifying assault weapons as their own "class of arms" instead of just a type of rifle. Therefore using their definition of an assault weapon and applying the Heller precedent an outright ban would have to get overturned.

    ...
    I see a potential issue with that argument. Note that I'm just playing devil's advocate here and in no way support an AWB. Referring to the bolded portion of the post above, the SC could possibly rule that Heller has no precedent with regard to an AWB given the legislators' definition of an assault weapon. I could be wrong, but I don't know that there are very many documented instances of individuals using ARs, AKs, etc. for defensive purposes. The argument works with regard to handguns, but the SC might see that it doesn't jive as far as "assault weapons" are concerned. Hopefully, I am wrong and this will not be an issue.

    Anyway, I may be completely off the mark here, but I can see President Obama pushing the Democrats in Congress to not draw up and pass another AWB (at least not for the time being). Given his initial response to the Sandy Hook shooting, this may seem counterintuitive, but hear me out for a second. His second term in office is going to be all about building his legacy. He pretty much uttered those exact words during his victory speech on election day. Building that legacy would be extremely tough without a Democratic majority in at least one of the houses of Congress to do his bidding, and I can see them losing that majority in the Senate and becoming an even smaller minority in the House after the midterm elections if an AWB is passed. The Democrats losing the majority in '96 is believed to be due (at least partly) to the AWB in '94, and voters could express their displeasure with another ban in much the same way.
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  3. #17
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    Quote Originally Posted by RT View Post
    I see a potential issue with that argument. Note that I'm just playing devil's advocate here and in no way support an AWB. Referring to the bolded portion of the post above, the SC could possibly rule that Heller has no precedent with regard to an AWB given the legislators' definition of an assault weapon. I could be wrong, but I don't know that there are very many documented instances of individuals using ARs, AKs, etc. for defensive purposes. The argument works with regard to handguns, but the SC might see that it doesn't jive as far as "assault weapons" are concerned. Hopefully, I am wrong and this will not be an issue.
    Certainly. A well thought out response to my post. I obviously cannot say for certain how it would be ruled, as I said in my original post, Heller only declared that the Second Amendment is an individual right and not a collective right. It didn't overturn any gun control laws other than the specific DC handgun ban, and the Court made it clear that it did not overturn other laws. In McDonald they applied the Amendment to the states, but still made no mention of invalidating other gun laws. So you are correct, Heller DID NOT set any precedent on the Second Amendment other than it is an individual right. It will be up to future cases to expand on that precedent and decide how far the government can go with legislation.

    You could be right, what the argument would be over is whether or not assault weapons are their own "class of arms" and if so what is the definition of an "assault weapon" in legal terms.

    To the others, such as Dean, who are concerned about the composition of the Court. Like I said the Court is balanced in our favor on this issue right now, and if Obama replaces the older liberals on the Court like Ginsburg or Breyer then we have no problem because it maintains the status quo. The only conservative justice I'm slightly worried about is Scalia and the swing justice Kennedy. If either of those guys passes, then we have a problem.

    And lets say that happens, the Court swings to the left by a vote. I GUARANTEE you that they will not all of the sudden interpret the Second Amendment as a collective right. Say what you want about the Court, but they actually do respect precedent. Only very rarely do they overturn their own precedent. It has been interpreted as an individual right and it will remain so, the only problem if the Court swings to the left is they will give more latitude to the government to create legislation to regulate guns but they won't allow a ban. For instance, regardless of your views on abortion, the Court had conservative eras after Roe and could have overturned, but they did not. When they overturn major court cases like Heller it is usually decades into the future and it almost always expands the right of the people. Think Brown overturning Plessy to expand Equal Protection. Or Brandenburg overturning Schenck to expand freedom of speech.

    As far as your opinion on Obama, you could be right. The Democrats did lose because of the 1994 Federal Assault Weapon Ban. Which is why they haven't addressed the issue since then. We all know the leadership of that party is pro gun control, but they are not dummies, they knew it was a losing electoral issue. But have they decided the calculus is different now in 2012 than in 1994? Maybe.

    I'm not the smartest guy in the room, but I'm smart enough to know I don't have all the answers to these questions. We have to wait and see. My opinion on the AWB was just that my opinion. As an attorney, and I don't know how many of those are on these forums I just wanted to weigh in on another angle of it for everyone to read and give a legal analysis. I am biased, I am pro gun, maybe I'm interpreting it incorrectly because of that bias.
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    VIP Member Array Crowman's Avatar
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    keep in mind that we at the fork in the road... If any type ban is enacted it is going to be permanent and will not expire as the last. I hope I am wrong but it smells like this is going to the beginning of slowly implementing a ban on all firearms. Granted its not going to come over night but it appears its on "their" agenda.........
    "One of the greatest delusions in the world is the hope that the evils in this world are to be cured by legislation."
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    Relentless:

    For the most part I agree with your assessments.

    The one thing that concerns me most is the fact that we have 5 Supreme Court justices that are over or approaching 75 years old.

    It is entirely possibly that 5 could be appointed by the President before his next term is up. Since it is a natural thing to appoint people in office that mimic your political thoughts, it is entirely possibly that the next 5 will be pro U.N. one world government loving rabid anti-gun fanatics....among other things.

    That could tip the odds in the favor of the socialists and forever screw up the United States of America as we know it.
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    Perhaps. But only 1 of those is in the conservative wing of the Court. Scalia at age 76. The other conservatives are relatively spry by Supreme Court standards. Roberts is 57. Alito is 62. Thomas is 64.

    The liberal wing has two young justices in Sotomayor 58, Kagan 52, and then Breyer 74 and Ginsburg 78.

    Anthony Kennedy the moderate is 76.

    I mean you're right the worst could happen, but I think we will be OK for now. The real problems will be if the Court doesn't address any more gun control legislation in the next couple years and we still do not take back the Senate in 2014 and the Democrats retain the White House in 2016. Then the Court will for sure swing in their favor. The next two elections are absolutely critical as far as the composition of the Court goes.
    Last edited by relentless; December 24th, 2012 at 03:58 AM. Reason: typo changed "spry to" to "spry by"

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    Quote Originally Posted by Crowman View Post
    keep in mind that we at the fork in the road... If any type ban is enacted it is going to be permanent and will not expire as the last. I hope I am wrong but it smells like this is going to the beginning of slowly implementing a ban on all firearms. Granted its not going to come over night but it appears its on "their" agenda.........
    It's not that "it appears it's on on 'their' agenda". It is, in fact, on their agenda. But your prediction is quite dire.
    The only way there is any ban is if it has an expiration or if cooler heads prevail in the future and overturn (legislatively or judicially) it or make it irrelevant because, in spite of the many to the contrary, those true to their oath to the Constitution are not so few as to allow it to happen otherwise (to 2A on the federal level).
    relentless likes this.
    Americans understood the right of self-preservation as permitting a citizen to repel force by force
    when the intervention of society... may be too late to prevent an injury.
    -Blackstone’s Commentaries 145–146, n. 42 (1803) in District of Columbia v. Heller, 554 U.S. 570 (2008)

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    Quote Originally Posted by Pistology View Post
    It's not that "it appears it's on on 'their' agenda". It is, in fact, on their agenda. But your prediction is quite dire.
    The only way there is any ban is if it has an expiration or if cooler heads prevail in the future and overturn (legislatively or judicially) it or make it irrelevant because, in spite of the many to the contrary, those true to their oath to the Constitution are not so few as to allow it to happen otherwise (to 2A on the federal level).
    I agree. I don't think we need to completely freak out about a total ban. That just isn't going to happen as long as people like us are fighting against it. What we need to do is put out an effective message for our fellow citizens on the fence on this issue, people who agree that we should be allowed to own weapons but are not sure what kind of weapons. We need to educate them on what assault rifles are and how they are useful, we need to explain that a .223 isn't a super bullet and the Semi-Auto ARs are not some super rifle.

    We're never going to get the lefty libs that are anti-gun on our side, so we shouldn't bother with extreme rhetoric against them. Nothing we say to them is going to resonate, we need logical, level headed arguments for the moderates.

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    Rid the country of the fallacy of the GFZ and secure government schools to best protect the students mandated to attend. Denude the government's blaming "society" and nebulous firearms "classes" and nuanced function like capacity. Protect the children as opposed to reassuring bleeding hearts and appeasing the enemies of 2A.
    Not statistically significant, but notably, "In the past 45 years, of the dozens of school shootings across the country, almost all of them have taken place at a public institution." Just saying that there are real considerations in the way of another or a permanent AWB.
    We have the principle of the human right of self defense and the tradition of 2A and AR's and the distinct advantage of being right on the facts. If that's not enough, then, some day, cooler heads must prevail.
    Americans understood the right of self-preservation as permitting a citizen to repel force by force
    when the intervention of society... may be too late to prevent an injury.
    -Blackstone’s Commentaries 145–146, n. 42 (1803) in District of Columbia v. Heller, 554 U.S. 570 (2008)

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    Quote Originally Posted by Crowman View Post
    keep in mind that we at the fork in the road... If any type ban is enacted it is going to be permanent and will not expire as the last. I hope I am wrong but it smells like this is going to the beginning of slowly implementing a ban on all firearms. Granted its not going to come over night but it appears its on "their" agenda.........
    Quote Originally Posted by HotGuns View Post
    Relentless:

    For the most part I agree with your assessments.

    The one thing that concerns me most is the fact that we have 5 Supreme Court justices that are over or approaching 75 years old.

    It is entirely possibly that 5 could be appointed by the President before his next term is up. Since it is a natural thing to appoint people in office that mimic your political thoughts, it is entirely possibly that the next 5 will be pro U.N. one world government loving rabid anti-gun fanatics....among other things.

    That could tip the odds in the favor of the socialists and forever screw up the United States of America as we know it.
    ^^YEP and YEP^^^^^^^^^^^^^

    Quote Originally Posted by RT View Post
    I see a potential issue with that argument. His second term in office is going to be all about building his legacy. He pretty much uttered those exact words during his victory speech on election day. Building that legacy would be extremely tough without a Democratic majority in at least one of the houses of Congress to do his bidding, and I can see them losing that majority in the Senate and becoming an even smaller minority in the House after the midterm elections if an AWB is passed. The Democrats losing the majority in '96 is believed to be due (at least partly) to the AWB in '94, and voters could express their displeasure with another ban in much the same way.
    ^Hotguns post^^^^^^^

    is a clear example of Obama defining his legacy.
    That is why I believe they will go for broke(push for as much anti gun BS as they can), and to hell with the consequences.
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