Select-fire

[maestro pistolero]

I understand that timing is everything, and that now is not the time, but I'd like to share some thoughts on the matter, perhaps plant a seed or two.

For the record, I believe Richard Hamblen's challenge is poorly timed, ill-conceived and for those reasons, will only do more harm than good at this time. I don't know the whole history of his case, and don't know whether he availed himself of any legal means to acquire or build those weapons through the state.

Heller:

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 therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. . .

This reading seems quite a bit of a stretch. Since it would mean that the National Firearms Act’s restrictions on machine guns . . . might be unconstitutional, it is a startling reading? Startling is how this passage turned the plain language on it's head.

And from the verdict against Hamblen himself:

In United States v. Fincher, 538 F.3d 868, 873-74 (8th Cir. 2008), the Eighth Circuit held that the defendant’s possession of a machine gun was not protected by the Second Amendment under Heller: “Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use.”

I find it disconcerting if any weapon not in common use may be considered dangerous and unusual.

Those weapons that are typically possessed by law-abiding citizens for lawful purposes include AR15s, and lots of them. Select-fire is only uncommon because they were recently (1986) closed to registration, not because they were banned or because they weren't typically possessed by law-abiding citizens for lawful purposes.

It's like the DC handgun ban: "You have to register your handguns, but we refuse to register them after a certain date"

The ongoing history of full-auto ownership in this country is that any law abiding citizen may have them with a background check and a tax certificate. That, in fact, is still true today. So we have a legal conundrum, where it is lawful and constitutional to own a type of weapon, but the government has passed laws which make them impossible to own or afford for the average person, and illegal to buy new. This is an infringement. Full auto is not illegal, only regulated. And now nearly regulated out of existence for just about everybody, because the closed registration has driven the market value through the roof.

Given the primary and only originally stated purpose of the Second Amendment (the first clause) it is impossible to seriously argue that the primary arm of the national guard and the four branches of the military shouldn't be the most protected weapon in the land.

From Heller:

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.

. . . which it most certainly is not.

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.

At the time of our founding, there was essentially no difference in the type of weapons found on a farm and those found in the military. The primary purpose of any weapon has always been to equalize the disparity of power between individuals and between groups. To upset that balancing effect by prohibiting arms to citizens that are freely available to the government, is to eviscerate the amendment for the exact purpose for which it was intended. Of course, more dangerous and unusual weapons emerged, such as tanks, and bombers, making that disparity unavoidable in modern times. Along the continuum of dangerous and unusual weapons, no small arm, even select-fire rifles, begins to rise to the same level of danger of tanks, missiles, bombers, and the like.

But, as we have painfully witnessed in more than one or two wars, that sophisticated weaponry only goes so far in a conflict, and each conflict inevitably digresses into primarily close combat, which is usually where the campaign is actually won or lost. And the government would be highly reluctant to unleash such WMD upon it's own infrastructure, let alone it's own citizens.

For these reasons, I submit that small arms, as an entire category of privately borne weapons should be off the table as far as any outright or effective ban.

It would seem reasonable, given the relatively indiscriminate threat risk that fully automatic weapons present, that there may be an elevated level of training, screening, and regulation required beyond that required for more common defensive weapons. (edit to say: . . . beyond that required for semiautomatic weapons, Thanks, 44AMP)

But to outright or effectively ban the exact weapon which the government has chosen defend our nation at home and abroad, and which the government freely puts into the hands of every 18 year old capable of signing his or her name, seems to me completely and monumentally antithetical to the purpose, intent, and deepest meaning of the Second Amendment, and such, should be completely taken off the table as a policy choice.

[44 AMP]

but I just have to pick....

agreed, circular logic;
machine guns are not common because the govt restricts them.
Because they are not common, the govt has a right to restrict them.

Going back to the example of the Revolution, and the years shortly afterward, one can find privately owned cannon, and even warships.
re: Letters of Marque

you can own artillery, without restrictions. What you cannot own is the ammunition. You can own a tank, or a bomber (if you have the money). Again, what is restricted is the explosive ordnance. (and the machine guns)

Some people like to take this part of the reasoning to the ridiculous extreme adding nuclear weapons. After all, they are arms too, right?

The broadest libertarian view of that argument would have to be, yes, the government does not have the authority to prohibit you from owning them. This agreement automatically creates horror amongst even the strongest 2nd Amendment supporters, after all, your talkin NUKES!

But it ought to be the way things are, if we were a truly free society. The govt doesn't need (and shouldn't have) a law that says you are prohibited from owning a nuke. If you could build one, using "special nuclear material" that you dug up in your back yard, you should have the legal right to own it. And that's the only way you could own one, without violating dozens of other existing laws. No need for a ban, when they are all property of the govt, and have never been allowed for sale. If you got one, it is stolen, so the law covers that. No ban needed. Buy one overseas? Even legally (as if that was possible?) Law says no import. Already covered, no ban law needed. Do you see my point here? Seems like no body ever looks that far, all they see is NUKE and of course we need laws saying people can't own them. Its already covered.

Like machineguns. Don't shoot people for fun and profit, there's no problem. Do shoot people for fun and profit, well, we already have laws saying you can't do that, and have had for centuries.

It would seem reasonable, given the relatively indiscriminate threat risk that fully automatic weapons present, that there may be an elevated level of training, screening, and regulation required beyond that required for more common defensive weapons.

ok, this one bothers me a little. Not that I disagree with the idea that people ought to have some training on the things they own, or that the govt shouldn't screen/regulate ownership of firearms to some degree (we're never going to get that undone) but the phrasing....

a) "reasonable" - a word that in my half century of watching these things, always seems to precede us getting shafted. granted, its a small thing, but even small things have weight.

b) "relatively indiscriminate threat risk that fully automatic weapons present," I don't see this as an accurate statement. It is an emotional value judgement. How is the potential carnage of someone dumping 30 rnds pulling and holding the trigger be worse than them doing the same thing pulling the trigger 30 times as fast as they can? And I doubt we would see a rash of belt fed drive bys either.

c) "beyond that required for more common defensive weapons. " OK, we're back to the circular logic again. They aren't common because we regulate them tightly, so we have to regulate them tightly because they aren't common!

But to outright or effectively ban the exact weapon which the government has chosen defend our nation at home and abroad, and which the government freely puts into the hands of every 18 year old capable of signing his or her name, seems to me completely and monumentally antithetical to the purpose, intent, and deepest meaning of the Second Amendment, and such, should be completely taken off the table as a policy choice.

Agreed. Completely. An excellent summation of the kind of things I have been saying since the govt put an M16A1 in my hands, to defend truth, justice, the American way, and incidentally enforce the policy decisions of the administration. If there is any gun that should be completely unrestricted for citizens to own, it is the one the govt forces citizens to use to carry out its will, which is, under our system supposed to be, the will of the people.

note: this whole thing is meant to be constructive, but its late, and I'm in rant mode, so if it comes off as critical, I do apologize. Bite me.

[divemedic]

That, and I cannot believe that the FFs meant to apply the 2A only to weapons in use at the time the BOA was ratified. If that were the case, the only legal guns would be muzzle loaders. IMO, this argument is merely an extension of the "the 2A only applies to muzzle loaders, because that was all the FFs knew"

If that is the case, then can we say that since TV stations are not in common use (there are fewer TV stations in the US than MGs) so you do not have freedom of speech

[Latex Ducky]

I like Switzerland's model...

If Switzerland ever got invaded, the invaders are in for a helluva fight.

[maestro pistolero]

b) "relatively indiscriminate threat risk that fully automatic weapons present," I don't see this as an accurate statement. It is an emotional value judgement. How is the potential carnage of someone dumping 30 rnds pulling and holding the trigger be worse than them doing the same thing pulling the trigger 30 times as fast as they can? And I doubt we would see a rash of belt fed drive bys either.

My point is just that FA's harder to control, with a greater possibility that the rounds end up in unintended targets.

c) "beyond that required for more common defensive weapons. " OK, we're back to the circular logic again. They aren't common because we regulate them tightly, so we have to regulate them tightly because they aren't common!

You're right. Bad choice of terms, How about . . . "beyond that required for semi automatic weapons. "

[csmsss]

It's long since due for that disgraceful relic of jurisprudence (U.S. v. Miller) to come crashing down. Whether the 1934 NFA is constitutional or not, I cannot say, but the 1939 SCOTUS decision affirming it is judicial legerdemain at its worst.

[Tennessee Gentleman]

Here is Mr. Hamblen's explanation of what he is trying to do: http://www.youtube.com/watch?v=VTTYyO_8N9M

Based on that, I fear Mr. Hamblen is on shaky ground. In short, Mr Hamblen, a member of the volunteer Tennessee State Guard sought to arm those in his unit with full auto weapons because he felt they were inadequately armed. The mission of the Tennessee State Guard on their website is:

The purpose of the Tennessee State Guard is to provide a professional complement of personnel to support the State mission of the Tennessee National Guard, by assisting the Tennessee Army National Guard as a force multiplier, and at the direction of the Adjutant General, to assist civil authorities with disaster relief, humanitarian causes, ceremonial service, religious and medical support for the well being and safety of the citizenry of Tennessee.

So, from reading that I see a couple of problems with his position. First, I see nothing about this state guard being an armed force as Mr. Hamblen alleges, and furthermore they operate at the direction (read authority) of the Adjutant General.

If the AG felt that the need to arm them beyond what they already had then he would do so. That decision is not up to Mr. Hamblen to make as a subordinate commander. I would liken that prohibition to the one that active duty military have about carrying personally owned weapons during deployments.

So, as a TN Guard member I believe Mr. Hamblen exceeded his authority to equip his "troops" with privately owned weapons and such authority could only rest with the Governor and AG.

Now to maestro pistolero and 44 AMP's circular logic argument. If you are saying that full auto weapons were in common use (pre-NFA) by law-abiding citizens for lawful purposes and that was indeed true then you might have a point as to the argument being circular. However, I do not believe and see no evidence that they ever were in "common use" by anybody other than the military and they were restricted in 1934 because those outside the military who did commonly use them were criminals engaged in criminal activity. Because of our more affluent society today and their limited availability they are in greater demand but IMO mostly by gun enthusiasts and hobbyists.

I believe that when FA was unrestricted prior to 1934 by the government they were never in "common use" by law-abiding citizens for lawful purposes.

Originally Posted by maestro pistolero

But to outright or effectively ban the exact weapon which the government has chosen defend our nation at home and abroad, and which the government freely puts into the hands of every 18 year old capable of signing his or her name, seems to me completely and monumentally antithetical to the purpose, intent, and deepest meaning of the Second Amendment, and such, should be completely taken off the table as a policy choice.

I disagree. I think Heller decoupled the supposed antigun relationship between private ownership of firearms from service in the militia (which no longer exists). Federal and State governments may indeed constitutionally restrict weapons that civilians may own if those restrictions pass court muster and the NFA has.

[Al Norris]

Tennessee, you may want to research a bit more, on the "common use by private citizens" mantra. In footnote 57 of Professor O'Shea's "THE RIGHT TO DEFENSIVE ARMS AFTER DISTRICT OF COLUMBIA V. HELLER" (3/2009 West Virginia Law Review; SSRN-id1287405)

18 U.S.C. § 922(o) (2000). Somewhat in excess of 100,000 legally transferable machine guns remain in circulation. See Proposed Legislation to Modify the 1968 Gun Control Act: Hearings Before the House Judiciary Committee, 99th Cong., 1165 (1987) (testimony of Stephen E. Higgins, Director, U.S. Bureau of Alcohol, Tobacco, and Firearms)(estimating around 118,000 registered machine guns in BATF’s files). This fixed pool consists of the weapons that were properly registered pursuant to the National Firearms Act of 1934, 26 U.S.C. § 5801 et seq., prior to the effective date of the ban provision, 18 U.S.C. § 922(o), on May 19, 1986.

So in 1986, when the NFA registry was frozen, there were 118,000 machine guns registered. But by 2000, that estimate had dropped to 100,000 machine guns.

While this may not be viewed as prolific, one also must take into account the beginnings of the 1934 NFA.

How many $10 to $20 firearms could you afford, if there was a $200 tax imposed upon them? Translated into today's monetary terms, an $800 rifle would cost you $3800 ($200 tax adjusted for inflation). How many could the average person afford? However, since the tax was never adjusted, how many people would be able to afford a $1000 - $1400 rifle? I would speculate, more than just 1 or 3.

Consider also that as of 1937, about 16,000 short-barreled rifles and shotguns, 18,000 machine guns, and 700 silencers were registered under the NFA. "Urges Firearms Act to Include All Kinds," New York Times, May 5, 1937, at 13.

So while the $200 tax was prohibitive, it was by no means a ban. With the registry now closed and the number of full-auto guns in decline, it most definitely is a ban, even though ownership is still lawful.

That is the crux of the circular argument.

No one, not you, not the Government, can say with any credibility that NFA firearms are not in common use, because the argument was foreclosed in 1934.


In footnote 188, the Professor O'Shea obtained estimates from the ATF ( http://www.atf.gov/firearms/stats/afmer/afmer2006.pdf ) that upwards of 120,000 AR-15 military pattern firearms are produced and sold in America, today. Certainly, such military pattern firearms are in common use and thus protected under Heller.

Today, a $200 tax, while still objectionable, is much more reasonable. So given the figures above, how many of those AR-15's might actually have been full-auto, assuming the NFA registry had never been closed?

I honestly have no idea. Neither does anyone else. In common use? You just can't argue one way or another.

The most that can be said is that the argument is foreclosed not by civilian action, but by government action.

[Yellowfin]

A big reason that select fire arms weren't in as common use in 1934 as they could be today was that they were rare, new, specialized, and expensive for the time. They never got the chance. The machine gun was invented by Hiram Maxim just before WWI, so at best machine guns of any form had 20 years before the NFA to exist, not good odds compared to other firearm designs which had much longer and were cheaper to manufacture: by comparison the lever action rifle had 70 years, the bolt action rifle had maybe 40, and both of those cost one sixth to one tenth as much as a Thompson and weighed half as much. A 1918 BAR weighed three times as much as many rifles of then and certainly compared to now. Also take into consideration that semiautomatic rifles were also barely in existence as well and not well thought of for reliability and robustness of design. Had more designs been in implementation that were successful and practical, many more could have been select fire and probably would have been. If they'd had AR15's back then I'd bet at least a quarter of them would have been M16's if not half. Even now we see that semiauto rifles suitable for select fire unfortunately weren't anywhere near as common prior to May 1986 as they are now, otherwise the registry of transferrable full autos would probably have ten times as many as it does.

As for the military and criminal use being predominant, the above shows that it's an unfair comparison, and there's actually more to it than that. In point of fact there was some use of full auto by civilians, and were it not for the above problems it would have certainly been done more. Thompson adds depicted and suggested use by ranchers, bank and railroad guards, and couriers, and those who either as individuals or through their employers could afford them did--again, not many, and 1929-1934's economic conditions significantly decreased the number who could. Ernest Hemingway for one kept one on his boat to defend against criminals and sharks. What we know of criminal use is because of the notoriety of the criminals, not the difference full auto made when using them versus semiauto or even simple pistols. There wasn't anything they did that couldn't have been done with other weapons, but rather the unusual nature, distinctive and recognizable appearance, and comparative rarity of what they used typecast the machinegun as a criminal's weapon of choice.

[maestro pistolero]

I disagree. I think Heller decoupled the supposed antigun relationship between private ownership of firearms from service in the militia (which no longer exists).

The court decoupled the the anti gun relationship, only in that the collective right argument was put out of it's long-suffering misery. But the stated purpose, the first clause, cannot be erased without a constitutional amendment. Whether the militia is dead or not, (I think dormant is a better word) the protected ability to raise one by means of having an armed populace is still very much alive until, and unless it is removed from the Bill of Rights by the process provided.

Federal and State governments may indeed constitutionally restrict weapons that civilians may own if those restrictions pass court muster and the NFA has.

And so did the DC handgun ban for 34 years.

[Tennessee Gentleman]

Al, I think the term "in common use" is pretty self-explanatory to the layman. There may of course be legal definitions that arise from court cases but to me 118,000 out of 200 million calculates to not in common use.

The crux of the maestro pistolero's circular argument that I see is that for it to be true then FA weapons had to be in common use pre 1934. I don't thnk they were and so civilian rejection of them as a viable firearm for their use made the NFA possible to pass without objection except for Mr. Miller who was a criminal.

Originally Posted by Antipitas

No one, not you, not the Government, can say with any credibility that NFA firearms are not in common use, because the argument was foreclosed in 1934.

And neither can you say they were. I think peripheral facts would lead us to believe they were not since records were not kept. For instance, the Auto-Ordnance Corporation (as Yellowfin notes) marketed them to ranchers for pest control.

http://www.flickr.com/photos/kingpowercinema/35177769/

The effort failed and the company was sold at Thompson's death. They were designed for military use, expensive and wasteful of ammo for civilian use. No good for hunting and overkill for civilian self defense. Auto-Ordinance's attempt to sell them on the civilian market was clearly a failure and I think that speaks to the "in common use"

But Yellowfin makes the case for me in his post above that they were never in common use because they were unsuitable (price, weight etc) for common civilian lawful use.

Now, if the registry you speak of were opened would these Full Auto weapons be owned by lots of folks? Maybe, but we don't know that anymore than we know they would buy rocket launchers if they were available.

Originally Posted by Antipitas

In common use? You just can't argue one way or another.

Well sure you can argue but if FA had been in common use in 1934 as say the double barrelled shotgun, I expect the NFA not have passed. As I have aruged in the past FA has no suitability for civilian use and restricting ownership is not unconstitutional under Heller or current law.

[Tennessee Gentleman]

Originally Posted by maestro pistolero

the protected ability [of the state]to raise one by means of having an armed populace is still very much alive until, and unless it is removed from the Bill of Rights by the process provided.

My bolding. And the state will decide how to arm them not the individual. The state controls the militia and will decide how or if it is formed and called.

The court in Heller found that the individual had the RTKBA apart from service in the militia. Meaning self defense. Scalia said

But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right

and that shows there were two reasons for the 2A. The militia and personal self defense which Dick Heller was being denied.

Heller, I think cuts both ways; the antis cannot use the militia part to limit the individual right by insisting that the RTKBA is only for militia service and the progunners cannot use the militia part to claim they cannot be restricted from possessing military weapons since they are not in common use by citizens for lawful purposes.

Originally Posted by maestro pistolero

And so did the DC handgun ban for 34 years.

Apples and oranges, handguns are in common use and FA is not, however if you think that you can get the NFA overturned in court have at it. Good luck with that

[maestro pistolero]

Quote:
Originally Posted by maestro pistolero
the protected ability [of the state]to raise one by means of having an armed populace is still very much alive until, and unless it is removed from the Bill of Rights by the process provided.
My bolding. And the state will decide how to arm them not the individual. The state controls the militia and will decide how or if it is formed and called.

I don't disagree with that. What I am saying the state cannot do is infringe on the ability of the citizenry to be armed, so that an effective militia may be raised at point when, and if it is needed. And, since the militia, whether dead or dormant, is still a stated purpose contained within the amendment, the type of weapons protected should obviously serve that purpose, first and foremost.

The court in Heller found that the individual had the RTKBA apart from service in the militia. Meaning self defense. Scalia said
Quote:
But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right
and that shows there were two reasons for the 2A. The militia and personal self defense which Dick Heller was being denied.
(Unquote)

Heller, I think cuts both ways; the antis cannot use the militia part to limit the individual right by insisting that the RTKBA is only for militia service and the progunners cannot use the militia part to claim they cannot be restricted from possessing military weapons.

That remains to be seen. The high court has not taken such a case since Miller, where they sort of backed in to the opposite conclusion, that SBS's weren't protected because they lacked a military purpose. There is a canyon of a difference between the court saying that the first clause isn't the only purpose for 2A, and the court saying that it is no longer a valid part of the amendment. In my opinion, they said no such thing.

Quote:
Originally Posted by maestro pistolero
And so did the DC handgun ban for 34 years.

TG:
Apples and oranges, handguns are in common use and FA is not, however if you think that you can get the NFA overturned in court have at it. Good luck with that

There is a time for everything, and now is not the time.
__________________

[Tennessee Gentleman]

Originally Posted by maestro pistolero

What I am saying the state cannot do is infringe on the ability of the citizenry to be armed, so that an effective militia may be raised at point when, and if it is needed.

Minor point but the 2A is not incorporated and so does not apply to the states yet.

Nowhere in the COTUS or the 2A in particular does it say the the militia must be armed by privately owned weapons brought by the members. That was the way they did it then but that is not a "right" today. See: U.S. v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948 (1976).

Therefore, you cannot argue as Mr. Hamblen has that he can supply his own FA weapons for militia use. The state may restrict what civilians are armed with if they are not in common use or are dangerous and unusual.

Originally Posted by maestro pistolero

court saying that it is no longer a valid part of the amendment. In my opinion, they said no such thing.

Never said they did. However, there is a canyon of difference between the RTKBA for personal self defense and the collective defense provided by a duly called up militia. There is where you lose your FA argument.

[maestro pistolero]

Therefore, you cannot argue as Mr. Hamblen has that he can supply his own FA weapons for militia use. The state may restrict what civilians are armed with if they are not in common use or are dangerous and unusual.

I wouldn't make that argument. The state would need to authorize it. That's where Hamblen shot off his manhood. If Montana, or some such state wished to authorize select fire weapons for their citizens under the authority of 2A, who would stop them, and under what authority?

Brings me to another question about incorporation. If militias are the purview of the states, and the 2nd protects the right to arm the people for state militias, how does the 2nd not apply to the states? (It may already apply in CA because the AG acknowledges it does)

Quote:
Originally Posted by maestro pistolero
court saying that it is no longer a valid part of the amendment. In my opinion, they said no such thing.

Never said they did. However, there is a canyon of difference between the RTKBA for personal self defense and the collective defense provided by a duly called up militia. There is where you lose your FA argument.

Yes, one was enumerated in a 2A court ruling (Heller), and the other in the amendment itself, 200 plus years ago. As to how that distinction pinpoints a loss of the FA argument, you're going to have to connect the dots for me there.

[Crosshair]

Of course the whole "Private citizens owning nukes" thing is a red herring.

How much does a nuke cost to build? $2 Million? $5 Million? 10 million?

Maintenance alone averages about $850,000 per warhead per year in the US arsenal, though I'm not sure if that includes the launch vehicle or not. Probably does.

So you have to have someone who has several million just to buy it and then a couple more million to just maintain it. Then we get to the question of who is going to sell you a Nuke? France or North Korea are the only places that come to mind and you might have trouble with North Korea. The US military certainly wouldn't sell you one. Sure you have a right to own one, but that doesn't mean they have to sell you one.

Then you have the aspect of safe use. If I want to own an RPG-7 and blast boulders at the abandoned quarry I can do that safely. Buy a TOW launcher and reduce junked cars to little pieces, that can be done safely too. Get a recoilless rifle and knock over pine trees, fine. Buy a crate of Claymores and take care of the gopher problem, PETA might have a problem with that. But how can you use a nuke safely and not harm anyone? Above ground is out for obvious reasons and there is no point for below ground since you don't get the pretty mushroom cloud. If you do dirrectly harm someone get ready to be sued to the poorhouse.

People either couldn't afford it, wouldn't want one, or would realize there are weapons that make a big boom that are far less hassle to own.

[Tennessee Gentleman]

Originally Posted by maestro pistolero

That's where Hamblen shot off his manhood.

YOW! 'ala Plaxico!

Originally Posted by maestro pistolero

If Montana, or some such state wished to authorize select fire weapons for their citizens under the authority of 2A, who would stop them, and under what authority?

The state COULD do that! In fact here is a clip:

http://www.youtube.com/watch?v=uJCwIUZ2SAY

with Walter Dellinger who argued against Gura and Heller saying just that. Listen to what he says at 6:50 to 7:38. He and I would agree that if a state decided to create and arm a militia with M16s and issue them the US Government could not stop them from doing such. Heck they might be able to issue many other types of weapons too. And they might say we could keep them in our homes as well.

Originally Posted by maestro pistolero

If militias are the purview of the states, and the 2nd protects the right to arm the people for state militias, how does the 2nd not apply to the states?

Because the SCOTUS has not yet recognized it as a fundamental individual right. Legal distinction.

Originally Posted by maestro pistolero

As to how that distinction pinpoints a loss of the FA argument, you're going to have to connect the dots for me there.

Well, you have said it yourself. The right of a state to have a well-regulated militia and the right of an individual to keep and bear arms are uncoupled.

Just because a state has a right to arm, train and call up a militia does not give you the right to personally own any weapon you choose without restriction or authorization as a militia member by the state.

Heck the state can regulate what weapons you carry in or out of the militia for that matter. The state may arm it's militia with M-1 Garands and require the members to carry those and NOT M-16s. But my point is that a militia and it use and purpose does not dictate what the individual person owns viz-a-viz firearm type.

[raimius]

I wonder about this scenario:
1. The federal government loses the ability to defacto ban MGs due to state/individual rights (or some combination thereof).
2. Incorporation denies the ability of the state to do the same.

...just a thought.

[maestro pistolero]

TG, that may be the closest we have ever come to a consensus, not 100% but it'll do.

Well, you have said it yourself. The right of a state to have a well-regulated militia and the right of an individual to keep and bear arms are uncoupled.

That's not what I am saying. I don't think they were ever actually coupled. Are you referring to this?

Yes, one was enumerated in a 2A court ruling (Heller), and the other in the amendment itself, 200 plus years ago.

Scalia drew his reasons for articulating the self-defense protection from the actual practice since common law. It's not uncoupled because it was never coupled, and it is all part of the same protected right. Self-protection, defense of hearth and home, and security of the free state. Me, my family and home, and my country. Three levels of the same thing.

The first clause stated the purpose, and the second described the right. They were never two rights or two purposes. It could be read as: "We all need security, therefore the people cannot be disarmed."

If the stated purpose is for the militia, then the arms protected must be up to the task to meet the standard of the purpose. Those arms will so happen to be sufficient for security at the level of the self, and the hearth and home. And we're not that far from the standard now, except in some states that have AWBs. Three-round burst rifles are marginally more effective than what we can have right now. All I'm really saying is that the standard issued weapon of our citizen army is a very good place to draw the line in the sand.

Dellinger
Interesting commentary. Funny to watch him disparage the very collective rights argument that he made in Heller. I always suspected he didn't actually believe it. His extrapolation that, because the federal government may arm the Militia, that they may well also disarm it seems more than a bit stretchy. Certainly they could take back issued firearms. But in the context of the discussion, disarm could mean prohibit ownership. Perhaps that not what he meant.

Regards, TG

-MP

[greensteelforge]

The assumption that this is a politically bad time to broach the second amendment issue of controlled weapons is pretty telling. This issue will never be seriously addressed until we remove political affiliation from the equation. By assigning an issue to a single party, we make an election year tool of it. Politicians are generally very responsive to constituents who contact them directly, respectfully, and are able to articulate their argument. It is when we go into what should be a discussion with a combative attitude that we perpetuate the problems we are trying to solve. We will never, and I mean NEVER resolve this issue as a single party issue. These are American rights, and a constitution that belongs to us all. If we were to subdue one side of a two party system, democracy would be dead. Talk directly to your leaders, regardless of party, or voting record, and you will be surprised. Remind them that government should not be a mechanism for "nerfing" the society, but instead, should be a mechanism for promoting a society that allows us to live in accordance with our own ethical guide while preventing the legislation of one school of thought or another into national policy, or law.

[Tennessee Gentleman]

Originally Posted by maestro pistolero

that may be the closest we have ever come to a consensus, not 100% but it'll do.

I'll take it!

Originally Posted by maestro pistolero

That's not what I am saying. I don't think they were ever actually coupled. Are you referring to this?

Anti-gun types used to argue (stupidly) that the COTUS did not protect the RTKBA for personal self defense but rather only for "collective" or common defense. So, the government could restrict or even ban weapons for personal use as opposed to using arms as part of a militia service for the common defense. The point was stupid so it confuses things. In other words I could claim a RTKBA only as a member of the militia (which wasn't around how convienent!).

I personally believed as you do that self defense is defense whether I am fighting off a bunch of thugs or the Soviet Army. I have a right to personal self defense. Scalia upheld the militia part and then elaborated that we have this individual right apart from militia service and killed that old anti canard about the 2A applied only to militias.

Read Caroline Kennedy's insipid and probably ghost written like her Dad's Pulitzer book In Our Defense: The Bill of Rights in Action when she discusses the 2A she uses the Morton Grove decision to explain the 2A. Of course Morton grove doesn't ban handguns anymore do they?

[Tennessee Gentleman]

Originally Posted by greensteelforge

We will never, and I mean NEVER resolve this issue as a single party issue.

Give that man a seegar! Not just one party but not a liberal/conservative issue either. Like Tom Gresham, I don't care one hoot what anyone on this board thinks about Gay Rights, Abortion, Prayer in Schools or Area 51. When it comes to gun rights all I care about is what you carry

[Tennessee Gentleman]

Originally Posted by maestro pistolero

If the stated purpose is for the militia, then the arms protected must be up to the task to meet the standard of the purpose.

But the state could give you those weapons when they called you up. That would not mean you could have them otherwise necessarily for personal use. Me personally I think the bright line is the AR-15 in semi or other types. Plenty of firepower for personal use.

[maestro pistolero]

But the state could give you those weapons when they called you up.

Then what would be the point of stating a militia purpose and then protecting keeping and bearing for that purpose? It wouldn't be necessary if that's what they intended.

[Tennessee Gentleman]

Originally Posted by maestro pistolero

Then what would be the point of stating a militia purpose and then protecting keeping and bearing for that purpose?

To keep Congress from disarming it which the anti-Federalists feared. The COTUS put unprecedented control over the state militias and the states feared the Fed could disarm them.

At that time the militia was primarily armed by its members because of economic reasons. However, today the state would arm the militia if they called it forth.