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Old March 21, 2013, 07:48 PM   #10
Aguila Blanca
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Join Date: September 25, 2008
Location: CONUS
Posts: 6,377
Quote:
The NY and CO laws and others in the works are clearly playing Scalia to argue (if they buy Heller - which four on the SCOTUS don't), that a double barrel fired in the air is the Constitutional way to go.

If, hopefully, these new state laws get to the court in real time, will Scalia and company realize that they cannot dance around the issue this time?
In Heller, Mr. Justice Scalia wrote the following:

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2. Like most rights, the Second Amendment right is not unlimited.
...
Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
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Like most rights, the right secured by the Second Amendment is not unlimited.
...
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson,Works of the Honourable James Wilson 79 (1804); J.Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgmentof the Criminal Law of the United States 64 (1847); F.Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).
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.
Scalia was very clear that the RKBA protects those weapons "in common use at the time." And there should be no argument that the weapons in most common use at this time are semi-automatic pistols and AR-15-type semi-automatic rifles with magazines holding more than ten rounds. On this basis, any ban on either AR-15 type weapons or "high capacity feeding devices" should be found to be in conflict with Heller.
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