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Old April 27, 2009, 09:04 AM   #1
Bartholomew Roberts
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What is next after Nordyke?

OK, we have incorporation - and in a Circuit with a lot of obscenely irrational gun laws even. The question is where to now?

Jim March has outlined an interesting proposition with regard to carry laws that might bring California into the majority of U.S. states that have shall issue laws.

On the other hand, I know that a lot of people would like to go after the California AWB since it is particularly restrictive. The question to me is how do you go after the California AWB? It seems to me that having that fight in the 9th Circuit is almost a guarantee that such bans will be found as a "reasonable restriction" by either the 9th Circuit or the Supreme Court if you come after it right out of the gate without some stronger precedent to back your argument.

Much like the civil rights battles was won by putting one tiny block or clear rule of law on top of another, I think the issue of AWBs has to be handled the same way. So what are the issues that need to be established to take down an AWB?

If you were going to build an irrefutable chain of logic starting from areas of least disagreement and progress to 'so-called "assault weapons" are protected by the Second Amendment' what would that chain look like?
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Old April 27, 2009, 09:14 AM   #2
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Bart,

I posted a comment in the original Nordyke thread along these lines, but I'll reiterate it here.

If you read the historical reasoning behind Nordyke, it goes much farther than Heller in reasoning that the 2nd is more about resisting government tyranny rather than basic self defense.

I ain't no lawyer, mind you. But reading it got me thinking that the language used in Nordyke could be cited in striking down an AWB. How best to resist government tyranny than by the same (or similar) arms that would be used by the government??

Just a thought,
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Old April 27, 2009, 09:37 AM   #3
raimius
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I think the text from the Heller decision about not banning entire classes of firearms would be very pertinent to any AWB case, along with the history and incorporation finding from Nordyke.

Then again, IANAL.
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Old April 27, 2009, 11:10 AM   #4
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The argument the state would use, and probably the 9th circuit would agree, is that "assault weapons" are "dangerous or unusual" and therefore it is consitutional to severely restrict or ban them.

I know most of us really disagree with that thought but I think it is the only argument that can logically be made to support an AWB. I think it is pretty easy to refute that as "assault weapons" are not anymore dangerous than say hadnguns, which were prtoected by heller, and based upon the numbers in circulation are not particularly unusual.

I think whether or not an AWB is overturned hinges upon the definition of "dangerous and unusual".

I also think it will be easier to challenge laws that restrict possession of certain firearms because that is what Heller was about. It will be more difficult to get courts to strike down laws prohibiting carry as there is no binding precedent that carrying a firearm is a constituional right. Heller hints at it but the holding in Heller does not say it.
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Old April 27, 2009, 11:19 AM   #5
Bartholomew Roberts
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OK; but let's presume that right now the 9th is predisposed to view AW's as dangerous and unusual. How would you come at it? Would yougo right for the jugular and try to invalidate the California AWB - or do you start small and work up by first establishing the very narrow rule that semi-automatic handguns are a type of arm protected by the Second Amendment, then saying magazines for handguns are protected, then saying semi-auto shotguns, etc.?

Or is it better to go whole hog now while the makeup of the Supreme Court still favors a pro-RKBA view slightly?
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Old April 27, 2009, 11:25 AM   #6
maestro pistolero
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Since it is on it's way to becoming a national right, It should happen at the federal level, then we are not at the mercy of this circuit or that circuit's predispositions. Whatever Gura, or whoever, gets through in D.C. applies to the rest of the Country. Thus the beauty of incorporation.
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Old April 27, 2009, 12:22 PM   #7
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I wouldn't necessarily include magazine restrictions in my challenge to an AWB because I think it unnecessarily complicates the issue.

I would challenge a ban on semiautomatic rifles, handguns and shotguns. I think if handguns are protected arms then rifles and shotguns are as well. I can't see any logical argument to the contrary. Because the law is broad on restricting firearms I think you have to argue the firearm portions broadly.

While still not very compelling to me, I think an argument for magazine capcity restrictions is more compelling than an argument for banning semi auto firearms. Like I said I don't find it that compelling an argument but I think it is a different discussion.

How is the state of California going to argue for it's AWB? It's going to say that bayonet lugs , pistol grips, collapsible stocks, etc.. make the weapon more dangerous. But none of those things do anything but make the firearm look more dangerous or unusual.
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Old April 27, 2009, 12:25 PM   #8
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Quote:
The argument the state would use, and probably the 9th circuit would agree, is that "assault weapons" are "dangerous or unusual" and therefore it is consitutional to severely restrict or ban them.

I know most of us really disagree with that thought but I think it is the only argument that can logically be made to support an AWB... I think whether or not an AWB is overturned hinges upon the definition of "dangerous and unusual".
+1, and I'll take it a little farther. The D.C. v. Heller decision goes out of its way to explain that arms are protected if they are "...in common use at the time", with precedent going back to the U.S. v. Miller decision in 1939.

First, the "dangerous" argument. So-called "assault rifles" fire cartridges that are no more dangerous than rifle cartridges in common use for well over a century; they're clearly not dangerous to the same degree that, say, an RPG or a 40mm Bofors gun is dangerous. "Assault rifles" lack full-auto capability. Furthermore, many of the features targeted by these bans are essentially cosmetic (eg. pistol grips and flash hiders), and pose no more danger to the public than "Hello Kitty" stickers on the buttstock would.

This argument is fairly obvious to anyone who follows the AWB debate. I'm rehashing stuff that has been the topic of innumerable online rants. I don't think this topic warrants further discussion.

On the other hand...

I think the stronger argument is "unusual" vs. "in common use". An RPG or a 40mm Bofors gun is not merely dangerous, it's highly unusual. OTOH semi-auto ARs and AKs have sales figures that run into the hundreds of thousands and possibly into the millions. Lots of citizens have them and legally use them. How they are used, whether for SD, target shooting, or "resisting tyranny", is largely irrelevant to this argument. What's important is that citizens own and use them legally in many states. If the 2A is incorporated, why should citizens in one state be banned from owning a class of arms that is commonplace and legally available to citizens of other states?

Think about other incorporated rights. Can you think of a type of speech that's illegal in some states, yet legal in others? What about a type of search or arrest? Such a thing would be blatantly unconstitutional. Any legal scholar would scoff at the mere suggestion.
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Old April 27, 2009, 12:25 PM   #9
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Quote:
The argument the state would use, and probably the 9th circuit would agree, is that "assault weapons" are "dangerous or unusual" and therefore it is consitutional to severely restrict or ban them.
Quote:
"It may be objected that if weapons that are most useful in military service—M16 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."

Majority decision, page 55.
Heller does address the idea of an "Assault Weapons" ban, and a decently-argued case could be a winner. All we need is for someone in California to request registration on a non-listed rifle, then sue when the registration is denied.

Good thing the Justice writing it was a machine gun collector 8-)
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Old April 27, 2009, 12:31 PM   #10
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Until the possibility of an en banc hearing is resolved, I doubt anyone really knows with any certainty what the next step is.

Hopefully the nunchuk case is not the next one, but it well could be.

Fortunately, the downside risk is probably small - that would be that somehow the SC decides nunchuks are not arms. They could very well decide nunchuks are not arms while upholding incorporation.

In fact, I bet they would love to decide that not all weapons are arms.
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Old April 27, 2009, 04:36 PM   #11
maestro pistolero
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In fact, I bet they would love to decide that not all weapons are arms.
That would be quite a stretch. For thousands of years, and to this day in some parts of the world, the most common arms are swords, daggers, bows, spears, and the like. Even firearms, being relatively new on the scene, are still old enough to be considered ancient technology.

Since all firearms are dangerous, the real question is what is considered unusual. One of the considerations when deciding what is dangerous and unusual ought to be, that for the right to be effective for it's intended purpose (self-defense, tyranny, foreign invasion, etc), the performance of a firearm must be up to the task.

NO foreign invader or tyrannical government is going to play fair in deciding what to arm themselves with. For the right to have any contemporary meaning, the arms must be sufficient to intimidate and repel the offender.

Whenever I hear the question, "What does anyone need an assault weapon for?", usually followed by "it's only intended purpose is to kill people." I don't know whether to slap myself on the forehead, laugh, or cry.

At some point, the courts are going to have to directly answer the question with another one: What primary purpose SHOULD a gun have, that was designed for self defense, resisting tyranny, or repelling a foreign invader?

And then: What capabilities must such a weapon possess?

The unpleasant reality is, of course, that all guns that are used in self-defense, repelling a foreign invader, of resisting a tyrannical government must necessarily have the primary purpose of killing. There's just no getting around the fact.

The government already being at an astronomical technological advantage, has no business broadening that chasm with magazine limitations, ammo restrictions, carry prohibitions, and one gun a month schemes.
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Old April 27, 2009, 05:10 PM   #12
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In fact, I bet they would love to decide that not all weapons are arms.
That would be quite a stretch. For thousands of years, and to this day in some parts of the world, the most common arms are swords, daggers, bows, spears, and the like. Even firearms, being relatively new on the scene, are still old enough to be considered ancient technology.
Look at it this way. they are going to have to craft some kind of decision down that road that excludes things like nuclear weapons, poison gas, etc. from private ownership. You can argue all you want that the 2A allows you to have a nuke, but no court is going to accept that argument. So coming up with the idea that not all weapons are arms is a way to handle that problem.

It is very clear from the historical record that the term "arms" at the time of the enactment of the 2A certainly included firearms of various types and edged weapons such as swords and bayonets, so it will be hard for the courts to work out any kind of logical argument for banning them, and the courts generally like to have logic standing behind their decisions.

However, it is going to be very hard to get the same kind of traction for pipe bombs as there is for handguns that was the core holding of Heller. IMO, it is just a matter of time until a pipe bomb 2A case is filed. It would not surprise me any if one is already written just waiting for the en banc issue with Nordyke to be resolved. Courts are going to want to ban pipe bombs. They will find a way to do so.
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Old April 27, 2009, 10:28 PM   #13
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I'm okay with banning pipe bombs, personally owned artillery pieces and WMDs for the most part. I figure if I really need one we're to the point that I won't feel to bad about stealing the necessary item.
As far as the actual subject at hand goes I think going after the Roberti Roos gun ban ought to be first. It's the most heinous and has the most people affected by it in California. I also tend to think from the way the 9th ruled for incorporation and some of the language in the ruling that it should be fairly easy to get a good outcome.
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Old April 27, 2009, 11:27 PM   #14
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Originally posted by Bartholomew Roberts
Quote:
OK; but let's presume that right now the 9th is predisposed to view AW's as dangerous and unusual. How would you come at it? Would yougo right for the jugular and try to invalidate the California AWB - or do you start small and work up by first establishing the very narrow rule that semi-automatic handguns are a type of arm protected by the Second Amendment, then saying magazines for handguns are protected, then saying semi-auto shotguns, etc.?
Originally posted by vranasaurus
Quote:
I wouldn't necessarily include magazine restrictions in my challenge to an AWB because I think it unnecessarily complicates the issue.

I would challenge a ban on semiautomatic rifles, handguns and shotguns. I think if handguns are protected arms then rifles and shotguns are as well. I can't see any logical argument to the contrary. Because the law is broad on restricting firearms I think you have to argue the firearm portions broadly.

While still not very compelling to me, I think an argument for magazine capcity restrictions is more compelling than an argument for banning semi auto firearms. Like I said I don't find it that compelling an argument but I think it is a different discussion.

How is the state of California going to argue for it's AWB? It's going to say that bayonet lugs , pistol grips, collapsible stocks, etc.. make the weapon more dangerous. But none of those things do anything but make the firearm look more dangerous or unusual.
I think you could probably argue for protection of high-capacity magazines too by using part of the Miller decision as your argument. Miller stated that weapons "suitable for and in common use by the militia" were protected under the Second Amendment. The Militia Act of 1903 established the National Guard as the organized militia and high capacity magazines are certainly suitable for and in common use by the NG. Since Heller stated that one needs not necessarily belong to the militia to enjoy 2A rights, it could be argued that every citizen has a right to the types of arms that are "suitable for and in common use by" the National Guard as they are, by legal definition, the militia (or at least the organized part of it). Such arms certainly include high-capacity magazines.
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Old April 28, 2009, 09:15 AM   #15
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I'm not saying that you can't argue against magazine restrictions but I think you want to address it separately. I think if you get the courts to say that an "AWB" is unconstitutional then it becomes an even easier argument against a magazine ban because those type of magazines are certainly in common use with those types of firearms.

If the courts rule for the AWB they are likely to rule for magazine restrictions.
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Old April 29, 2009, 10:19 AM   #16
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I'm okay with banning pipe bombs, personally owned artillery pieces and WMDs for the most part.
I'm not OK with it. Lots of personally owned BP cannons out there. No evidence any of them are being used in crimes. No need to ban them from private ownership.

And WMD can mean just about anything. You really want to have to get a government license to buy bug killer?
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Old April 29, 2009, 01:06 PM   #17
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I'm not OK with it. Lots of personally owned BP cannons out there. No evidence any of them are being used in crimes. No need to ban them from private ownership.

And WMD can mean just about anything. You really want to have to get a government license to buy bug killer?
I think a better definition of artillery pieces and WMDs is necessary.

Whether or not a BP cannon should be prohibited is debateable but a prohibition on 8 inch self propelled howitzer is not.
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Old April 29, 2009, 01:16 PM   #18
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I think a better definition of artillery pieces and WMDs is necessary.
Why?

Quote:
Whether or not a BP cannon should be prohibited is debateable but a prohibition on 8 inch self propelled howitzer is not.
Why is such a thing up for debate? I cannot recall a single case of a BP cannon being used in a crime in my lifetime, so what difference does it make if an 8" BP cannon is attached to a mule team?

There is no reason to give away things we already have for no useful benefit.

Should WMD precursors also be banned?
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