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Today, we have to juxtapose the Miller "common military use" definition with the Heller "common use" by civilians definition. This is why Justice Scalia was circumspect when he addressed the M16. The M16 (and SBS) are in "common military" usage, but because of the NFA, such arms are not in "common use" by civilians. It's a thoroughly circular argument and we simply won't win this argument, any time soon. If ever.
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Al, a very astute analysis as always. You are, of course, correct that the "common use" test was changed with
Heller. It seems to me that Scalia went to particularly great lengths to rule for an individual right without overturning
Miller and, by extension, the NFA.
That being said, it seems pretty obvious to me that semi-automatic firearms, in general, would pass both the
Miller and
Heller "common use" tests fairly eaisly. What is more concerning to me is whether or not a more specific ban, such as one on "assault weapons" or "high capacity" magazines would pass the
Heller test or not. To my way of thinking they certainly should, but I'd only rate the odds at about 50/50 that five justices would agree with me.
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Yet, despite the current rulings by the SCOTUS, despite the fact that the State of Rhode Island has a strong pre-emptive firearms law, we have this: Rhode Island: Providence Passes Resolution Banning Semi-Automatic Guns
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Of course a locality can pass whatever asenine law they like, but enforcing it may be problematic. I think that the city of Providence would have a very difficult time convicting anyone of violating their new ordinance when it directly conflicts with the state pre-emption law. Even if they did manage to convict someone, the city would almost certainly get its proverbial hand smacked in the appeals process.