Full-auto Scalia / Heller - Page 2

stanislaskasava · July 4th, 2008, 01:34 AM

Quote:

Originally Posted by Bob The Great

I've been puzzling over the sections you quoted for a while. I think Scalia is dancing around the issue to avoid making a definitive statement on machine guns (that would be outside the scope of this case and might have cost us the narrow majority we got), but hinting that the issue does need to be resolved by a future case.

He's using "in common lawful use" as an out to avoid outright declaring machine guns protected arms, as they clearly would be under a basic reading of the 2A (he even says as much, albeit with a "may" clause in front of it), but that basically hands us the route to challenge the '86 registration closure. All that needs to happen is to show that the only reason post-86 machine guns aren't in "common lawful use" is because they are banned.

The argument cannot be logically made that the 2A ceases to protect an arm the moment it is declared illegal. As you've said, that's circular logic and is painfully obvious at that. And I don't think that's what Scalia is trying to say.

I think he's staying true to the case before the court by not writing an over-arching ruling that would invalidate laws that were not being challenged. But at the same time, he clearly lays out the logic for future cases against those laws.

I could be wrong, but I don't think this is bad news for us. We didn't lose (most of) our RKBA overnight, and we won't get it back overnight either. We'll have to build a foundation of court precendant and it's going to be a long drawn-out fight, but Heller is an excellent start.

Thanks for the insight. I agree, this particular section of the opinion does dance back and forth in speculation, inviting future litigation.

Quote:

Originally Posted by Shizzlemah

I believe that the Miller criteria was based on the suitability of a particular weapon for typical military service, and Miller's short-barreld shotgun didn't meet that criteria.

During the Heller hearing, Ginsberg asked Heller's attourney if the interpretation for 'k&b' would be for machineguns as they would be suitable for military service. I almost peed my pants at that one.

Somewhere I was reading the (a) logical progression -
Heller says it's an individual right.
a potential challenge in NY would bring out the significant expense of obtaining a permit.
A serious cash outlay for an individual right is essentially a poll tax.
Poll taxes are prohibited by the 24th ammendment.
a $200 transfer tax (NFA stamp) on a legal item can also be construed a poll tax.

That could negate the NFA stamps, and lengthy transfer process. It may not do much for the Hughes ammendment (bans post 86MGs)

I am curious as to legal precended for any items that are 100% okay before a date, then identical items made after a date are forbidden. Maybe Ivory? I'm not really certain-

I find it ironic that short-barrelled weapons are now used almost exclusively by the military. Shotguns such as Masterkey included.

I hafta listen to the oral arguments again -- I remember there was a question about machine guns.

BTW - Justice Samuel Alito is on the record as saying that a Federal ban on machine guns is unconstitutional.

paramedic70002 · July 4th, 2008, 02:07 AM

Yeah, that would be like saying that handguns aren't in common use in DC, therefore they can be banned.

But MGs are a fight for a different day...

Bob The Great · July 4th, 2008, 02:07 AM

Quote:

Originally Posted by stanislaskasava

I find it ironic that short-barrelled weapons are now used almost exclusively by the military. Shotguns such as Masterkey included.

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.

ccw9mm · July 4th, 2008, 05:53 AM

Quote:

Originally Posted by HotGuns

Machine guns dont get alot of PR because they are in a somewhat protected class.

Because of this, machine guns are under a whole different set of rules than regular non atuomatic guns.

That's the circular reasoning being suggested. They're in a protected class, thus they're under a set of rules, hence they're verboten. Yet, it's only really because of the rules imposed on them that protects them as special, which drives their rarity. They'd certainly be common, if the silly protections were left behind.

One would think murder=prison/death, violent robbery=prison/death, rape=prison/death, kidnapping=prison/death would be sufficient to guard against misuse. That, and the fact that all citizens around you would be well-prepared to terminate your violence if you couldn't/wouldn't do so yourself. Of course, the latter cannot happen in a society vehemently opposed to honorable self-defense. Which brings us to the point of circular logic justifying the existence of the rules. Silly.

rodc13 · July 4th, 2008, 08:32 AM

Quote:

Originally Posted by stanislaskasava

They are not illegal in my state. I just want the ability to buy a new Bushmaster for $1500 and not be limited to a used pre-'86 p.o.j. for $20,000.

I think Stan has the right of it here.

It's not the $200 tax that's the problem. It's the artificially inflated prices caused by the restriction of weapons manufactured after 1986. A ragged-out Vietnam-era AK for 15 grand? Ridiculous!

Shizzlemah · July 4th, 2008, 11:02 AM

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.

Catalina · July 4th, 2008, 03:13 PM

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.

stanislaskasava · July 4th, 2008, 03:46 PM

Quote:

Originally Posted by Bob The Great

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:

Quote:

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?

Quote:

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.

Quote:

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.

Quote:

...
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.

SelfDefense · July 4th, 2008, 06:00 PM

Quote:

Originally Posted by stanislaskasava

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.

Quote:

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.

Quote:

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.

HotGuns · July 4th, 2008, 06:04 PM

Quote:

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?

Quote:

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.

July 4th, 2008, 02:07 AM	#12
paramedic70002 Distinguished Member Join Date: Jun 2006 Location: Franklin, VA Posts: 1,782	Yeah, that would be like saying that handguns aren't in common use in DC, therefore they can be banned. But MGs are a fight for a different day... __________________ Guns Save Lives. Paramedics Save Lives. But... Paramedics With Guns Scare People!

July 4th, 2008, 03:13 PM	#17
Catalina Member Join Date: Feb 2007 Location: Lake Erie Shore Posts: 279	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. __________________ Go Glock - until you can afford H&K

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July 4th, 2008, 11:02 AM	#16
Shizzlemah Senior Member Join Date: May 2006 Location: Maine Posts: 724	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.