Full-auto Scalia / Heller - Page 2

Full-auto Scalia / Heller

This is a discussion on Full-auto Scalia / Heller within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; This is a pretty good thread! I have seen MAC11s around 4k, AR15s in the 10-12k range, M16A2s in the 15-18k, AKs around $15k, I ...

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  1. #16
    Senior Member Array Shizzlemah's Avatar
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    This is a pretty good thread!

    I have seen MAC11s around 4k, AR15s in the 10-12k range, M16A2s in the 15-18k, AKs around $15k, I even saw a glock 17 for $40k. FORTY FREAKIN' THOUSAND DOLLARS FOR A GLOCK. Pretty impressive prices for 20+ year old firearms, eh? I think the market pricing clearly shows that there is both demand and use for such firearms.

    CCW9MM hit it right on the head saying they'd be common if they weren't forbidden.


  2. #17
    Member Array Catalina's Avatar
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    Everybody chill.

    The first amendment took almost 200 years to become what it is today. The initial interpretation was that the states could muzzle free speech, but the federales could not. We’ve come a long way.

    Our grandkids may well be buying full auto firearms at Sears someday, not us.

    It’s taken us from 1791 to 2008 just to realize that gun ownership is an individual right.

    Don’t plan on cancelling your NRA and SAF memberships anytime soon.
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  3. #18
    Senior Member Array stanislaskasava's Avatar
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    Quote Originally Posted by Bob The Great View Post
    They were in 1939 too. The Thompson M1 had a 10.5" barrel, and short barreled "trench" shotguns were used at the time too. If Miller had showed up and been able to present evidence that this was the case, who knows what would have happened. Too bad he was already dead.
    Very interesting. I will have to read Miller soon.

    To further quote Heller:

    Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
    If the Second Amendment protects all bearable arms, only on its face, what is under the surface that limits protected firearms to semi-automatic only?

    There are many reasons why the militia was thought to be “necessary to the security of a free state.” See 3 Story §1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal control over the militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961) (A. Hamilton). Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.
    This only supports the prima facie interpretation by expounding on the intent of the prefatory clause.

    We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation new and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the ablebodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.
    So, the intent is that the We the People should remain armed (with all 'bearable' arms) to defend against a tyrant's standing army or invasion.

    ...
    It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down. It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.
    Apparently, Scalia believes that we have the protected right to a citizen militia for the purpose of opposing 'military' force if constitutional order breaks down. Obviously, a citizen militia must be properly armed before such and event, to be of any use.

    Perhaps Scalia has knitted a fine new sweater for Justice Kennedy -- and gifted us with exactly the right thread to pull as he walks away.

  4. #19
    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by stanislaskasava View Post
    Please clarify it for me even more, especially that 'degree of fit' line. Keeping an m-16 seems to be a perfect fit. Equally useful for self defense and militia service. The same as a musket was in its day.
    The 'degree of fit' comment referred to the fact that no militia could ever challenge the standing military nor would they be useful in repelling an attacking foreign army. It is not what the Founders envisioned but it is most certainly a fact. Thus, the right to keep and bear arms is now virtually disconnected from the first clause, the well regulated militia. The right exists and is protected, but it is far removed from the original intent.

    If a law-abiding citizens can't commonly purchase one, how could they be common? This is about as 'impeccably' logical as saying "if the law limits us to muskets, then the Second Amendment only protects our right to keep and bear muskets" because that is all that a law-abiding citizen might commonly keep.
    Despite the beliefs of many here, automatic weapons would never be common no matter their availability. They simply don't have the multiple use attributes of handguns or long arms.

    I don't want a nuclear weapon, I just want small arms that a common soldier might use.
    And that is the crux of the issue. Most will acknowledge that providing nuclear weapons to the folks is not a good idea. Some think nuclear weapons should be 'the line.' Others think machine guns should be 'the line.' The right defined in the Second Amendment, like the First, should be subject to public scrutiny. Libel and slander are illegal yet some might argue it is 'free speech.' Similarly, nuclear weapons are not necessarily included in the right to keep and bear arms.

    Anarchy will destroy society just as quickly as socialism.

  5. #20
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    The 'degree of fit' comment referred to the fact that no militia could ever challenge the standing military nor would they be useful in repelling an attacking foreign army
    Thats what the Kind of England told his Generals when he sent them to New England to enforce British Rule.

    When I hear of people discounting the "militia" I'm reminded of the various militias around the world that have given standing army's and invading armies absolute fits...escpecially in the last 50 years.

    So what does anarchy and machine guns have to do with each other?

    Despite the beliefs of many here, automatic weapons would never be common no matter their availability. They simply don't have the multiple use attributes of handguns or long arms
    I disagree.

    While I will be the first to admit that full auto fire can be a waste of ammo at times, there are other times where it is a benefit to have. Most full auto weapons can fire in the semi auto mode. Therefore it would stand to reason that they have more attributes, not less than standard handguns or long arms.
    I would rather stand against the cannons of the wicked than against the prayers of the righteous.


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  6. #21
    Member Array akhimark's Avatar
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    Don't forget, Scalia could only stretch as far as Kennedy would agree. I suspect Scalia wanted to be more specific and liberal (in the correct sense of the word), but Kennedy would have bolted.

  7. #22
    VIP Member Array ccw9mm's Avatar
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    Despite the beliefs of many here, automatic weapons would never be common no matter their availability. They simply don't have the multiple use attributes of handguns or long arms
    Quote Originally Posted by HotGuns View Post
    While I will be the first to admit that full auto fire can be a waste of ammo at times, there are other times where it is a benefit to have.
    Yup.

    As with a car that can carry a couple extra people on those occasions you need it to, having a gun that can fire full-auto if need be seems a tremendous feature. If I were to have a 9mm, 5.56mm or 7.62x39mm semi-auto SBR (< 16" bbl), I certainly would want to to be an SMG (full-auto) as well. One need only think of situations like the post-Rodney King riots, a violent home invasion, or needing to protect a larger property to imagine how useful that could be under the right conditions.
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  8. #23
    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by HotGuns View Post
    So what does anarchy and machine guns have to do with each other?
    My point was that an unthinking implementation of rights, such as not punishing libel and slander, is an anarchy that imperils a civilized society. I really have no opinion on whether machine guns should be something that should be free of any restrictions. I know that I would never buy one (and hopefully never need one.) I think Scalia's point was that since the technological advances have made the individual's contribution to a militia virtually meritless that some arms (such as nuclear) are not protected by the Second. This is somewhat similar to the Miller decicion in some roundabout way.

    While I will be the first to admit that full auto fire can be a waste of ammo at times, there are other times where it is a benefit to have. Most full auto weapons can fire in the semi auto mode. Therefore it would stand to reason that they have more attributes, not less than standard handguns or longarms.
    I am not arguing against automatic weapons. I can understand and respect a view that it is not a common firearm, even if were readily available and accessible.

  9. #24
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    SD, mostly agree but with one thought

    Quote Originally Posted by SelfDefense View Post
    My point was that an unthinking implementation of rights, such as not punishing libel and slander, is an anarchy that imperils a civilized society. I really have no opinion on whether machine guns should be something that should be free of any restrictions. I know that I would never buy one (and hopefully never need one.) .
    I would not likely ever buy one, though I think it would be a hoot to rent one for the fun of it.

    I agree that unfettered implementation of "rights" can lead to anarchy that imperils society. So too can restrictions on rights imperil society. There will always be an inevitable tension, and I think the founders intended that.

    With regard to this particular issue, machine guns, do we know what laws were passed early on, say when the Gatling was first invented? Never mind what Chicago or IL might have done. Did Colorado (for example only) prohibit private ownership of machine guns during the late part of the 19th century or early part of the 20th?

    I'm trying to scope out what earlier lawmakers thought of this issue.

  10. #25
    Senior Member Array stanislaskasava's Avatar
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    Quote Originally Posted by SelfDefense View Post
    The 'degree of fit' comment referred to the fact that no militia could ever challenge the standing military nor would they be useful in repelling an attacking foreign army. It is not what the Founders envisioned but it is most certainly a fact. Thus, the right to keep and bear arms is now virtually disconnected from the first clause, the well regulated militia. The right exists and is protected, but it is far removed from the original intent.
    Are you interpreting Heller to say that 'because a citizen militia could never repel a real army, then the Second Amendment does not protect the keeping of fully automatic firearms'? This is inside out and upside down. It is the bans on military style arms that create the disconnect between the prefatory and operative clauses of the Second Amendment. Bans are also the sole reason that automatic weapons are not 'in common use'. Which, once again, is the mechanism Scalia mentions to imply that they are unprotected.

    Quote Originally Posted by SelfDefense View Post
    Despite the beliefs of many here, automatic weapons would never be common no matter their availability. They simply don't have the multiple use attributes of handguns or long arms.
    I guess you are not aware of the huge number of AR-15s, et al, owned across the country? And perhaps are also not aware that automatic weapons normally have the ability to fire in semi-automatic mode with the flip of a switch? Autos have more uses, not less. This is why they are the preferred weapon for military and law enforcement.

    Purposely buying a semi only version of a rifle when the automatic version is available at the same price makes about as much sense as seeking out a plugged magazine for your pistol in preference to a hi-cap. It would be more logical that semi-auto versions would be special order or DIY only because it would be cheaper to only mass produce one type. The parts do not cost more for full auto.

    They would most definitely be common, if they were not banned.

    Why would Scalia quote Nunn v. State in Heller if he did not agree with its interpretation of the operative clause?

    In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right:

    “The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!”
    Quote Originally Posted by SelfDefense View Post
    And that is the crux of the issue. Most will acknowledge that providing nuclear weapons to the folks is not a good idea. Some think nuclear weapons should be 'the line.' Others think machine guns should be 'the line.' The right defined in the Second Amendment, like the First, should be subject to public scrutiny. Libel and slander are illegal yet some might argue it is 'free speech.' Similarly, nuclear weapons are not necessarily included in the right to keep and bear arms.
    Libel and slander are descriptions of illegal speech, not illegal means of speech. A ban on machine guns is like a ban on printing presses. Both machine guns and printing presses can be used for either legal purposes or illegal purposes. Murder will always be illegal regardless of whether machine guns are banned or not.

    I am not aware of any nuclear weapons which would be considered arms in the context.
    Last edited by stanislaskasava; July 5th, 2008 at 10:00 PM.

  11. #26
    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by stanislaskasava View Post
    Are you interpreting Heller to say that 'because a citizen militia could never repel a real army, then the Second Amendment does not protect the keeping of fully automatic firearms'? This is inside out and upside down. It is the bans on military style arms that create the disconnect between the prefatory and operative clauses of the Second Amendment. Bans are also the sole reason that automatic weapons are not 'in common use'. Which, once again, is the mechanism Scalia mentions to imply that they are unprotected.
    No, that is not my opinion. I was providing my understanding of Scalia's opinion. The Court opinion is a bit tortured as it is difficult to reconcile the Miller opinion with the Heller opnion unless one is willing to accept some of the rationale Scalia wrote. Whether he wrote that so as to convince Kennedy to concur will always be up for debate.

    I guess you are not aware of the huge number of AR-15s, et al, owned across the country? And perhaps are also not aware that automatic weapons normally have the ability to fire in semi-automatic mode with the flip of a switch? Autos have more uses, not less. This is why they are the preferred weapon for military and law enforcement.

    Purposely buying a semi only version of a rifle when the automatic version is available at the same price makes about as much sense as seeking out a plugged magazine for your pistol in preference to a hi-cap. It would be more logical that semi-auto versions would be special order or DIY only because it would be cheaper to only mass produce one type. The parts do not cost more for full auto.

    They would most definitely be common, if they were not banned.
    OK, OK, I get it. I will concede that automatic weapons would be common if they were readily available.

    Libel and slander are descriptions of illegal speech, not illegal means of speech. A ban on machine guns is like a ban on printing presses. Both machine guns and printing presses can be used for either legal purposes or illegal purposes. Murder will always be illegal regardless of whether machine guns are banned or not.
    I'm still not impressed with this argument. Either a right is unfettered or it is subject to reasonable restrictions. Libel and slander restrict the right to free speech. Limiting certain weapons restrict the right of keeping arms.

    I am not aware of any nuclear weapons which would be considered arms in the context.
    No, but it is certainly not out of the realm of possibility that hand held devices that deliver nuclear weapons will be created. Nuclear weapons don't kill people, people kill people. Still, I don't think it is a good idea to allow unrestricted access to nuclear weapons.

    The nuclear weapons argument is good to demonstrate that a line should be drawn. Drawing that line is a matter of politics.

    To respond to one of your first points, the fact that a citizen militia could never repel a 'real army' is a negative argument. That is, the first and second clause of the Second no longer fits as it did at the time of the Founding. Whatever conclusion that is developed from that must stand on its own merit.

  12. #27
    Senior Member Array stanislaskasava's Avatar
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    Quote Originally Posted by SelfDefense View Post
    OK, OK, I get it. I will concede that automatic weapons would be common if they were readily available.
    It is worth mentioning that the ubiquitous AR-15 can be easily converted to select-fire with a drop in parts kit at a ballpark price of $200.

    Quote Originally Posted by SelfDefense View Post
    I'm still not impressed with this argument. Either a right is unfettered or it is subject to reasonable restrictions. Libel and slander restrict the right to free speech. Limiting certain weapons restrict the right of keeping arms.
    While libel and slander may be crimes, the possesion of printing presses is not banned. Do you think banning printing presses is a reasonable restriction of free speech? The right to keep arms is restricted to those arms which are 'in common use at the time' and 'for lawful purposes such as self defense.'

    Quote Originally Posted by SelfDefense View Post
    No, but it is certainly not out of the realm of possibility that hand held devices that deliver nuclear weapons will be created. Nuclear weapons don't kill people, people kill people. Still, I don't think it is a good idea to allow unrestricted access to nuclear weapons.
    Nuclear weapons are not 'small arms' regardless of whether they may in the future be 'hand held devices'. Nor would they conceivably be used in 'defense of person and home'.

    “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.”
    I think this may be what the 'degree of fit' comment was referring to. Scalia was saying that "arms that are useful for defending 'person and home' " (these are the arms that the Second Amendment protects) are not useful to militiamen. I had quite a bit of trouble understanding the comment because he is wrong. A machine gun or short barreled shotgun is not only 'useful' but advantageous. Their advantages make them the preferred weapons that police or military might use to clear a house or building. So there is still a substantial degree of fit between militia small arms and the arms that the Second Amendment protects.

    Quote Originally Posted by SelfDefense View Post
    The nuclear weapons argument is good to demonstrate that a line should be drawn. Drawing that line is a matter of politics.
    I think the line will draw itself. With the way things are, we're having to 'work our way up the chain' one step at a time and I don't see personal nukes ever even being on the table.

    Quote Originally Posted by SelfDefense View Post
    To respond to one of your first points, the fact that a citizen militia could never repel a 'real army' is a negative argument. That is, the first and second clause of the Second no longer fits as it did at the time of the Founding. Whatever conclusion that is developed from that must stand on its own merit.
    My conclusion is that it is totally irrelevant whether a citizen militia could theoretically repel a modern army. The operative clause is not dependent on the prefatory clause -- in Scalia's words:

    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 conflicts sometimes boil down to small arms by necessity.

    Quote Originally Posted by HotGuns View Post
    When I hear of people discounting the "militia" I'm reminded of the various militias around the world that have given standing army's and invading armies absolute fits...escpecially in the last 50 years.

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