Assault Rifle ban part II

[Webleymkv]

Originally posted by Eghad

Some politicians just introduce this stuff to show their political base they are still aligned with them. Even when the Dem Party had the majority and The White House from 2009-2010 they didn't do anything. That's because even though a state put a Dem in Congress he was a very conservative pro 2A Dem. So even with a majority in both Houses of Congress the Dems could not manage any anti-gun legislation.

Exactly. A huge part of the Democrats' strategy when they took congress in 2006 was to run "Blue Dog" Democrats who, while Democrat in name, were politically moderate or conservative and thus able to win election in moderate and conservative districts. Because of this, senior party members such as Feinstein, Schumer, McCarthy, Rush, Kennedy and others who wanted gun control couldn't get enough votes to go anywhere with new gun control legislation because the "Blue Dogs" knew that it would be politiclal suicide. As I said before, gun control has been a poison issue for the Democratic party for nearly 20 years and they haven't forgotten it. There is a very good reason that, apart from the "usual suspects" pandering to their bases, the majority of the Democrat Party doesn't want to touch the gun issue with a ten foot pole, at least not directly anyway.

Originally posted by Odd

Theoretically, if the AWB were resurrected, could individual states choose to override it? (Something along the lines of Arizona's immigration law and medical marijuana in some of the states.)

That's very doubtful. The states have not been able to get around other Federal gun laws like the NFA, '68 GCA, or even the original '94 AWB, so I don't see how they could get around a new AWB unless that provision were specifically written in. As I recall, one of the western states tried this a few years ago by arguing that firearms made and sold entirely within their state were not subject to federal law, but I don't think it went anywhere. Were the AWB ressurected, about the only recourse I could see the states having in the matter would be to file suit and take it before the courts in hopes of having it declared unconstitutional just as they tried (and failed) recently with the Affordable Care Act (Obamacare).

[Odd]

That's very doubtful. The states have not been able to get around other Federal gun laws like the NFA, '68 GCA, or even the original '94 AWB, so I don't see how they could get around a new AWB unless that provision were specifically written in. As I recall, one of the western states tried this a few years ago by arguing that firearms made and sold entirely within their state were not subject to federal law, but I don't think it went anywhere. Were the AWB ressurected, about the only recourse I could see the states having in the matter would be to file suit and take it before the courts in hopes of having it declared unconstitutional just as they tried (and failed) recently with the Affordable Care Act (Obamacare).

What if: In an AWB being reinstated scenario, a state governor passes a law that has citizens send in an application to their local sheriff/PD for a permit that grants ownership of guns that fall under the AWB. The only requirements for a permit are basic ones required to purchase a longarm(background check, 18 years of age, etc). De jure, AWB guns are restricted to civilians(except permit holders), but de facto it's almost business as usual before the AWB.

[Glenn E. Meyer]

A new AWB, which I gravely doubt would be passed - I have a bet on this with a conservative buddy - could face constitutional challenge.

However, it would come up against the Heller view of reasonable restriction.

Are the semi auto military derivative guns so inherently dangerous that they could be reasonably restricted?

We might argue that they have utility for sport but is the risk (in rampages, organized gangs, etc.) too great? After all, most all hunting purposes can be handled by single shot Ruger Model 1s or a bolt gun. Carbine matches (which I love) aren't worth the risk.

The Second isn't about sport or deer or birdies.

The Second is about self-defense, defense of country and defense against tyranny.

The semi auto military derivative guns - do they contribute to these?

If I were a reasonable restriction sort of guy (say Scalia who hunts biridies with Cheney - duck - double entendre) - I might argue that you can reasonably defend your house with a handgun and pump shotgun.

You might argue for AW self-defense based on Katrina or LA Riot scenarios but would Scalia-oids buy that? Certainly the antis wouldn't. Low probability and not worth the countervailing use in rampages and crime.

Defense of country - despite judges from TX who think the UN is coming up I-35 to get them, after stopping to refuel the 1st Botswana Armored Divsion and Fighting Luxemoburg Special Forces with BBQ and chicken-fried steak in Waco - is hard to justify. We are not going to be invaded. The Yamamoto quote about WWII can't be reliably sourced and isn't evidence for such. Wolverines are animals, shoes and a superhero.

We are left with a clear justification - defense against tyranny - probably due to government gone wild. Now, tyranny can come from the left or right extremes. Spare me conspiracies based on current players. Neither current party can institute a real tyranny unless you are wearing a tin foil hat.

But, it can happen. Germany was a civilized country in 1913 but by the mid 30's become one of the greatest monsters the world has even seen.

It can happen anywhere. The social psychology is clear if the circumstances become extreme.

Thus, a reservoir of force in the general populace buffers against that. I note that genocide research indicates that minorities don't become victims if they have a reasonable chance of SD - you might get a civil war but that's horribly better than a genocide.

Would the SCOTUS buy defense against tyranny? I note one 'ahem' I debated on another forum denies that a populace could resist a government and thus saw no need to own the guns in question for that purpose. We would be shelled and bombed. However, that says a lot about the American fighting men and women - I doubt that would happen. Also, it shows an ignorance of force levels. Even our full armed forces could not occupy, so to speak, our entire country.

Some folks point to the Warsaw ghetto to say fighting against tyrants is hopeless - but the Jews didn't have preknowledge of the horror that was oncoming. Bad example.

However, if as this 'ahem' suggested - we cannot defend against tyranny, the 'ahem' has given the SCOTUS reason for an AWB. Note, it wouldn't work practically, see DOJ research.

Yes, we all could handle the vast majority of SD with SW Model 10s The rare intensive incident isn't worth the risk of the semis.

So give up using hunting, sport and even average home SD to defend the guns in question. There is a better reason.

They should be owned to protect liberty and act as an innoculation against tyranny.

[jmortimer]

"...Heller view of reasonable restriction"
Really? Kagan, Sotomayor, Ginsberg, and Breyer are all on the record to go beyond what an AWB would call for. AWB would be mild in comparison to what they would do. We know for a fact what would happen if Kennedy were replaced by POTUS in second term. But fortunately, AWB is DOA. Unfortunately D.C. and Chicago and California and ... are all passing one bad law after another so AWB is the least likely way "Constitutional" restriction will be placed on the Second Amendment. Stupid state laws would go up to "reformed" SCOTUS and bye bye. Unless a Federal law gets passed, unlikely as long as House stays as is, and makes its way up to SCOTUS, then we will have a checker board of good/bad state laws.

[Glenn E. Meyer]

I was discussing theory given the current decision. That was my point.

[Webleymkv]

Originally posted by Odd

Quote:
That's very doubtful. The states have not been able to get around other Federal gun laws like the NFA, '68 GCA, or even the original '94 AWB, so I don't see how they could get around a new AWB unless that provision were specifically written in. As I recall, one of the western states tried this a few years ago by arguing that firearms made and sold entirely within their state were not subject to federal law, but I don't think it went anywhere. Were the AWB ressurected, about the only recourse I could see the states having in the matter would be to file suit and take it before the courts in hopes of having it declared unconstitutional just as they tried (and failed) recently with the Affordable Care Act (Obamacare).

What if: In an AWB being reinstated scenario, a state governor passes a law that has citizens send in an application to their local sheriff/PD for a permit that grants ownership of guns that fall under the AWB. The only requirements for a permit are basic ones required to purchase a longarm(background check, 18 years of age, etc). De jure, AWB guns are restricted to civilians(except permit holders), but de facto it's almost business as usual before the AWB.

I still don't see it because you'd basically have state law superceding federal law. The only way that such a state-level exemption could fly would be if it were either specifically written into the new AWB (not likely) or there were a specific Judicial precedent stating that, in this particular matter, state law supercedes federal law (there isn't).

I am aware of no case in which a less lenient state or local law supercedes federal law for some sort of "reverse preemption". I do know, however, of several cases in which federal law is more restrictive than state law and thus supercedes it. For example, in my home state of Indiana, the minimum age to obtain a License to Carry a Handgun is 18 years old. That has been state law since, IIRC, the 1930's well before there were any federal minimum age requirements for handgun ownership or purchase. Federal law, however, dictates a minimum age of 21 years old to buy a handgun or handgun ammunition from an FFL, so while you may get your license to carry at 18 in Indiana, you still cannot buy the gun or ammo from an FFL for another three years.

Originally posted by Glenn E. Meyer

A new AWB, which I gravely doubt would be passed - I have a bet on this with a conservative buddy - could face constitutional challenge.

However, it would come up against the Heller view of reasonable restriction.

Are the semi auto military derivative guns so inherently dangerous that they could be reasonably restricted?

We might argue that they have utility for sport but is the risk (in rampages, organized gangs, etc.) too great? After all, most all hunting purposes can be handled by single shot Ruger Model 1s or a bolt gun. Carbine matches (which I love) aren't worth the risk.

Another avenue of attack against a new AWB would be to point out that, while mass shootings like the Colorado Theater incident garner headlines and lots of attention, "assault weapons" as currently defined are actually used in an extremely small perecentage of crimes. As I recall, the majorities in both Heller and McDonald rejected the "public safety" argument as it applied in those cases, so if one could make the case that "assault weapons" do not represent a significant threat to public safety due to their low popularity for actual criminal use, the same majority of Heller and McDonald might be persuaded to rule against an AWB.

Originally posted by jmortimer

"...Heller view of reasonable restriction"
Really? Kagan, Sotomayor, Ginsberg, and Breyer are all on the record to go beyond what an AWB would call for. AWB would be mild in comparison to what they would do. We know for a fact what would happen if Kennedy were replaced by POTUS in second term.

Fortunately, Ginsburg, Breyer, and Sotomayor have been in the minority in recent 2A cases (Kagan has not ruled on any 2A cases yet), so we need only convince the justices that have already ruled in our favor. Also, the Justice most likely to be replaced next is Ginsburg due to her ill health, and she's ruled with the minority in both Heller and McDonald so replacing her with another anti-gun Justice wouldn't really change much. It is fairly common for SCOTUS Justices to wait to retire until the sitting president is likely to replace them with a Justice with similar views, so I very highly doubt that Roberts, Scalia, Kennedy, Alito, or Thomas is planning to retire while President Obama is still in office and, as far as I know, all five of them are in good health.

[maestro pistolero]

A robust 2A is essential as the final barrier and insurance against the development of a extra constitutional government. I believe that as long as we have a strong 2A, that the price of tyranny will remain too high for those who may aspire to it.

But resisting tyranny also depends on other factors and assumptions:

That the government would not be willing to decimate it's people and it's infrastructure to achieve it.

That there are patriots at all levels of government who would help obstruct and sabotage such an effort.

That enough soldiers and police would refuse to obey unlawful orders so that the congruity of the would-be tyrannical force would fall apart.

There is ample history of civilian ownership of military small arms in the US. With the exception of the now highly regulated select-fire weapons, and now the effectual ban due to the Hughes amendment, there have been no special restrictions whatsoever. Indeed, for many, many years the DCM has supplied Garands to competitors in the interest of encouraging civilian marksmanship skills. When was the last time a Garand, or an M1A was used in a robbery?

The M1 Garand, of course, is responsible in no small part for stopping perhaps the most infamous tyrant of all. And with the exception of clip vs magazine functionality, there is no performance disadvantage whatsoever of a Garand vs it successors, the M14 (M1A civilian version) and the semi-auto AR15.

Finally, although the Heller decision found historical bases for individual self-protection, hunting, recreation, etc., it was careful not to leave the impression that the only declared purpose in the Amendment was not a dead letter:

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.

Note the court did NOT say that the prefatory clause was detached.

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.

The AR15 was designed specifically and purpose-built to protect the security of this free state. The government approves it for that very purpose in ongoing service to the country. If the primary and only stated purpose of the amendment is the protection of the security of a free state, then the one rifle that the state has approved for every soldier to carry in that role ought to be the most protected weapon in the land.

[Al Norris]

Joining in on this subject, I think we need to go back to what the majority wrote in Heller about arms:

This holding [referring to United States v. Miller, 307 U. S.
174 (1939)] is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. JUSTICE STEVENS can say again and again that Miller did “not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” post, at 42–43, but the words of the opinion prove otherwise. The most JUSTICE STEVENS can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, No. 696, pp. 4–5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

Reread that final (and underlined) sentence a few times. The above begs the question of just what arms are protected and what aren't. The Court, 2 pages later, answered that question:

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.

While the question of actual military weaponry is still a question, up in the air, it is evident that the majority considered common firearms (in common use at the time) and held them as protected.

For the fed.gov to enact another "assault weapons ban," it would be necessary to prove that such banned firearms were in fact "dangerous and unusual." This, neither the Legislature nor the Executive can do. For these very same firearms are, in fact, in common use at this time.

There is nothing reasonable about banning firearms that are 1) in common use and 2) are neither "dangerous and unusual." And no, some simple "finding" in a legislative act, does not make common firearms, dangerous or most especially, unusual. It is way past a time where such authority is invested in the legislature, via the Commerce Clause (see National Federation of Independent Business v. Sebelius)

Individual States authorities, are another matter. They will be harder to challenge (see Haynie et. al. v. Harris). While I admire Donald Kilmer, I believe this suit to be unwinnable at this time (i.e. before the right to carry is firmly established). Individual States are given greater latitude (the federalism concept) to manage their own spheres of influence.

FYI: Webleymkv? AK, AZ, ID, MT, SD, TN, UT and WY have all passed Firearms Freedom Acts. The Case/State you are thinking of is Montana: Montana Shooting Sports Associ, et al v. Eric Holder, Jr.. Currently on appeal to the 9th Circuit. Briefing was completed on 08-04-2011 but was stayed pending Nordyke. Case: 10-36094.

07/19/2012 65 Filed (ECF) Appellants Gary Marbut, Montana Shooting Sports Association and Second Amendment Foundation, Inc. Motion to lift stay. Date of service: 07/19/2012. [8255611] (QMR)

07/23/2012 66 Filed (ECF) notice of appearance of Matthew T. Cochenour for - Steve Bullock. Date of service: 07/23/2012. [8258456] (MTC)

07/23/2012 67 Added attorney Matthew T. Cochenour for Steve Bullock, in case 10-36094. [8258471] (MT)

07/26/2012 68 Notice of Oral Argument on OCTOBER 9th Calendar. Please return ACKNOWLEDGMENT OF HEARING NOTICE form to: SEATTLE Office. Please open attached documents to view details about your case. [8264266] (SB)

07/31/2012 69 Filed (ECF) Acknowledgment of hearing notice. Location: Seattle. Filed by Matthew T. Cochenour for - Steve Bullock and Steve Bullock for Amicus Curiae State of Montana. [8269951] (MTC)

08/01/2012 70 Filed (ECF) Acknowledgment of hearing notice. Location: Seattle. Filed by Attorney Lary Alan Rappaport for Amicus Curiae Brady Center to Prevent Gun Violence. [8271111] (LAR)

08/03/2012 71 Filed (ECF) Acknowledgment of hearing notice. Location: Seattle. Filed by Attorney Matthew T. Cochenour for - Steve Bullock. [8273880] (MTC)

08/03/2012 72 Filed (ECF) Acknowledgment of hearing notice. Location: Seattle. Filed by Attorney Mr. Nicholas Constantine Dranias, Esquire for Amici Curiae Goldwater Institute and Cato Institute. [8274158] (NCD)

08/03/2012 73 Filed (ECF) Appellants Gary Marbut, Montana Shooting Sports Association and Second Amendment Foundation, Inc. Unopposed Motion to continue hearing of case. Date of service: 08/03/2012. [8274254] (QMR)

08/09/2012 74 Filed clerk order (Deputy Clerk: KKW): The unopposed motion to reschedule oral argument is granted. The date and time will be set by separate order. [8280776] (KKW)

All the filings may be read here: Montana Lawsuit Updates

[Tom Servo]

Actually, I read Heller as coming out pretty strongly against blanket bans of weapons by category or type. Another AWB would fall under that criteria.

I really doubt the Court could find such a thing constitutional without contradicting a decision that's not even five years old.

[Glenn E. Meyer]

So it is pretty clear that a new AWB would have to have significant changes in the court's current makeover to just overturn precedent. That could happen but so unlikely.

A specific attack on the semi military type guns would have to reinterpret that weapon as being some extraordinary risk as to overcome the cited passages.

I don't think we will see it - even if one presidential candidate regards them as weapons only useful for killing.

[Technosavant]

Actually, I read Heller as coming out pretty strongly against blanket bans of weapons by category or type. Another AWB would fall under that criteria.

I'm no lawyer, but an AWB fashioned after the 1994 one may not. Prohibition of certain features might well be allowed- you can have an AR-15, but you can't buy new 11+ round magazines, have a flash hider, etc. The gun itself isn't banned, what you can put on it might be.

Either way, any AWB, if it actually becomes law, would definitely be buying a bunch of lawyers a bunch of nice homes.