Full-auto Scalia / Heller

stanislaskasava · July 3rd, 2008, 09:25 PM

After my initial reading of Scalia's Heller decision, I found what I consider to be a large problem -- Scalia apparently feels that the Second Amendment does not protect our right to keep weapons that operate fully automatically. I can't follow his logic (and possible double-speak).

Quote:

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “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.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)).

The first part appeared o.k. until I considered what 'in common use' might mean with regard to machine guns. The only reason that they are not 'in common use' is that they are mostly illegal. This is like saying "machine guns are not protected arms because they are banned." Circular reasoning. He goes on to say:

Quote:

Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25

How useful would a machine gun be in a riot / looting situation? I think they would be 'typical' if they were legal. Who wouldn't own a select fire weapon if they had the option? The price is the same. Increased firepower is a necessity to defend against superior numbers. A few quick triplets would be a nice tune to play. And how could I ever be part of a 'well regulated' militia if I am denied the right to keep and bear proper small arms?

Quote:

...
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.

I don't see what's wrong with the People having the right to keep whatever small arms may be used by common soldiers -- in order that the militia be well regulated and most effective. Scalia's whole line of thinking seems defective. Does the Second Amendment now protect the right to keep and bear whatever arms are not illegal? What a useless right.

What am I missing? What if in the colonial era, muskets were only legal for the King's soldiers and the people had the right to keep and bear slingshots and rocks? What use would the militia be?

HotGuns · July 3rd, 2008, 09:29 PM

Machine guns dont get alot of PR because they are in a somewhat protected class.
That $200 transfer fee that one must pay is basically a "tax".

A lot of people think that they are illegal, but in most states they are not. If they are illegal in your state, the ATF will not grant the tax stamp and your application will be denied.

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

dukalmighty · July 3rd, 2008, 09:31 PM

I'm gonna need to build a landing pad for my apache gunship

stanislaskasava · July 3rd, 2008, 09:36 PM

Quote:

Originally Posted by HotGuns

Machine guns dont get alot of PR because they are in a somewhat protected class.
That $200 transfer fee that one must pay is basically a "tax".

A lot of people think that they are illegal, but in most states they are not. If they are illegal in your state, the ATF will not grant the tax stamp and your application will be denied.

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

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.

HotGuns · July 3rd, 2008, 09:36 PM

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 hear ya.
That would be nice.

SelfDefense · July 3rd, 2008, 10:03 PM

Quote:

Originally Posted by stanislaskasava

What am I missing? What if in the colonial era, muskets were only legal for the King's soldiers and the people had the right to keep and bear slingshots and rocks? What use would the militia be?

Scalia's logic was impeccable. His argument was to clarify the original intent of the Second Amendment and defer to the Miller decision. His argument has nothing to do with what was legal, but rather what was common.

His point that the degree of fit is different today is a brilliant observation. Obviously, an ordinary citizen should not be allowed to possess a nuclear weapon even though it is now common (and necessary for our defense) in our military.

stanislaskasava · July 3rd, 2008, 10:48 PM

Quote:

Originally Posted by SelfDefense

Scalia's logic was impeccable. His argument was to clarify the original intent of the Second Amendment and defer to the Miller decision. His argument has nothing to do with what was legal, but rather what was common.

His point that the degree of fit is different today is a brilliant observation. Obviously, an ordinary citizen should not be allowed to possess a nuclear weapon even though it is now common (and necessary for our defense) in our military.

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.

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.

I don't want a nuclear weapon, I just want small arms that a common soldier might use.

Bob The Great · July 3rd, 2008, 11:43 PM

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.

Shizzlemah · July 3rd, 2008, 11:48 PM

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-

Natureboypkr · July 4th, 2008, 12:10 AM

Quote:

Originally Posted by dukalmighty

I'm gonna need to build a landing pad for my apache gunship

we should start our own P.M.C.

July 3rd, 2008, 09:29 PM	#2
HotGuns Moderator Join Date: Dec 2004 Location: Arkansas Posts: 4,926	Machine guns dont get alot of PR because they are in a somewhat protected class. That $200 transfer fee that one must pay is basically a "tax". A lot of people think that they are illegal, but in most states they are not. If they are illegal in your state, the ATF will not grant the tax stamp and your application will be denied. Because of this, machine guns are under a whole different set of rules than regular non atuomatic guns. __________________ AR. CHL Instr. To achieve world government, it is necessary to remove from the minds of men, their individualism, loyalty to family traditions, national patriotism, and religious dogmas.' Dr. G. Brock Chisolm

July 3rd, 2008, 09:31 PM	#3
dukalmighty VIP Member Join Date: Feb 2008 Location: texas Posts: 3,425	I'm gonna need to build a landing pad for my apache gunship __________________ I like Poetry,Long Walks On The Beach,And Poking Dead Things With A Stick

July 3rd, 2008, 11:43 PM	#8
Bob The Great Distinguished Member Join Date: Sep 2006 Location: Slidell, LA Posts: 1,451	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. __________________ "A well-educated electorate, being necessary to the continuance of a free state, the right of the people to keep and read books shall not be infringed." Is this hard to understand? Then why does it get unintelligible to some people when 5 little words are changed?

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July 3rd, 2008, 11:48 PM	#9
Shizzlemah Senior Member Join Date: May 2006 Location: Maine Posts: 724	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-