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February 27, 2009, 02:00 AM | #1 |
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Could this mean that a semi auto ban would be overturned?
Isn't Justice Scalia saying here what the court meant by dangerous and unusual weapons, and doesn't this statement clearly draw a distinction between sophisticated military arms and small arms such as the M16?
Justice scalia. writing (in dicta) for the majority in Heller Vs DC 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 lim* ited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. |
February 27, 2009, 07:45 AM | #2 |
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I'm not a lawyer. I don't play one on TV and I didn't stay at a holiday inn last night. My read on Heller is that you can place some additional restrictions on military weapons but an out right ban is out. I think that is how the big O and Nancy see it too. I think he is hoping to get to pick a Supreme Court judge or two before they go the ban route. The problem with that is George picked young judges.
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February 27, 2009, 12:39 PM | #3 | |
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February 27, 2009, 02:07 PM | #4 |
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We could get into another argument over exactly what kind of "arms" are protected by the 2nd Amendment here. Hopefully we can limit this discussion to "portable firearms" and not crew-served weaponry or artillery/RPG type weapons.
From my reading, Scalia is saying that to ban rifles like the M-16 would require detaching the right from the prefatory clause (A well regulated militia being necessary to the secuirty of a free state, ... and that this cannot be done for reasons articulated in the decision. I think this leaves open the question of whether or not closure of the NFA registry and the ban on transferring new Class III firearms are permissible. In the second paragraph, Scalia addresses the argument that pitting small arms against modern armor and aircraft makes the whole militia-vs-tyranny argument silly. But he says that while technology may create such an argument, it cannot change the validity of the right (as the court interprets it). Further court decisions will be required to make sense out of which firearms are "in common use". Certainly, the AR-10/15 series, AK/SKS series, HK-G series semi-auto rifles are in common use, as are the Barrett .50 rifles. But are M1928 Thompsons? Uzi and Ingram SMGs? How about .30 and .50 caliber Browning MGs? I would suggest these are "in common use" but also limited use due to current restrictions and the cost of the firearms and ammo. One could argue either way with the M-14 rifle since few were ever sold as surplus. But there is no doubt they would be in common use if they were made available as surplus rifles like the M1 Garand.
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February 27, 2009, 03:04 PM | #5 | |
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I think it was important to decouple the militia, which is no more, from the right of all citizens to keep and bear arms. The Brady's wanted to couple them to render the individual right moot.
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February 27, 2009, 03:07 PM | #6 | |
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I'm not sure, that under the theory that this passage illuminates what is protected, that the a SAW (as in M249) wouldn't be protected. I. for one, would rather see some special requirements on the public owning weapons such as an M249 (such as secure storage requirement, some level of training certification, etc.) than to see them prohibited outright. I think when we get in to the category of mortars, grenages, shoulder fired rockets, etc, these are probably dangerous and unusual. |
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February 27, 2009, 03:10 PM | #7 | ||
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February 27, 2009, 03:15 PM | #8 | |
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It does not mean that it takes more than one to carry and operate it. Typically, the extra assigned body carries extra ammo and/or some other accessories. One can operate and carry a M249 or M240 or M60 pretty much as easily as they could an M16. That is why drawing a line there isn't really good IMO because the operation is the same and that is full auto. The same is true for other weapons systems such as the Stinger and AT-4, or LAW.
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February 27, 2009, 03:19 PM | #9 | |
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February 27, 2009, 03:31 PM | #10 | |
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February 27, 2009, 03:47 PM | #11 | |
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A couple of small points.
While congress has the authority to call forth the militia, it does not create the militia, which already exists. Quote:
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February 27, 2009, 04:00 PM | #12 |
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dangerous and unusual.
A "trained" man eating tiger is dangerous. If legal mortars and RPGs would almost certainly not be unusual. If I could pick up an RPG for $500 as can be done in some parts of the world I would probably do it. Then I would buy a junker GM product and introduce the two. In a reasonably controlled environment with practical safety taken. Yes I know it is possible to own a mortar or RPG, but restrictions have made them illegal practicaly speaking. |
February 27, 2009, 04:19 PM | #13 | |
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February 27, 2009, 04:28 PM | #14 | |
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February 27, 2009, 04:35 PM | #15 | ||
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February 27, 2009, 05:13 PM | #16 | |||
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February 27, 2009, 05:27 PM | #17 | ||
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Saying the right is not necessarily linked to militia service isn't the same thing as saying the right of a state to raise a militias no longer exists, or that the right of the people to keep arms suitable for militia use is no longer protected. |
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February 27, 2009, 05:38 PM | #18 | |
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So, the antigun strategy was thus: The right to keep and bear arms is predicated on service in the militia. The militia isn't around anymore so there is no right for an individual to keep and bear arms and we may legislate whatever restriction or ban we wish on firearms in the interest of public safety. That is what IMO they disagreed on. Some may articulate it better than I but then I am not anti-gun
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February 27, 2009, 09:22 PM | #19 |
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"the militia isn't around anymore"
The organised milita isn't......
The unorganised militia (as defined in US law) still is.
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February 28, 2009, 01:53 AM | #20 | |
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February 28, 2009, 02:15 AM | #21 |
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The problem I see is that as long as we have a highly politicized administration appointing politicized justices, sound logic such as Justice Scalia brings become moot. It matters not how well reasoned the argument is when a political agenda is being crammed down our throats. While we may have a leg to stand on at this time due to the current makeup of the SC, that situation eventually will deteriorate as long as leftists remain in power in the legislative and executive branches.
It is all relative. It all depends on political whims. Unfortunately, we can't rely on our government remaining true to the founding documents and founding principles, we haven't been able to do so for most of our lifetimes.
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February 28, 2009, 11:25 AM | #22 | ||||||||||||
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Neither is required to actually protect the citizens at large or any individual. Quote:
He said the "fit" between today's militia and it's obstensive mission (including retaking a tyrannical gov't) could be argued because a self-armed militia could not compete with a modern army using armor, heilos and modern c3 systems. Opinion: In the OP's first paragraph it seems that Scalia is saying "some folks might say that if you can ban M-16's, then the right could be limited to single-shot .22 short rifles." and then he adds (paraphrased) But as we have said, the concept of the militia was citizens would bring the sorts of lawful weapons that they possessed at home to militia duty. What Scalia appears to be saying is that the court recognizes the initial "parity" the original milita forces had and that's no longer the case. But still, the concept was that citizens brought their own arms of whatever type they owned that were common at that time. Quote:
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Again, I must disagree with your interpretations TG. "The Militia" is, in fact, every civilian capable of bearing arms. I'll let others speak on this subject: Quote:
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That every man be armed Composed of the body of the people They consist of now of the whole people Are they not ourselves? It doesn't get any better than that.
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February 28, 2009, 01:04 PM | #23 | |||||||
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February 28, 2009, 02:08 PM | #24 | |
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February 28, 2009, 03:27 PM | #25 | |||
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One of Scalia's virtues as a jurist is clarity. If he wanted to write that the militia doesn't exist, it would be within his ability to write that.
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