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Old February 14, 2009, 01:32 AM   #1
Konrad
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Full Auto Should Be Legal...?

Ok, I come from a family that never owned a firearm. Since I reached adulthood, I have amassed many firearms and have had conversations with my family on the subject.

My family feels the 2nd Amendment is a valid amendment and supports the right of any citizen to lawfully keep and bear arms. They have simply chosen not to.

Recently we had a conversation about full auto firearms and I am soliciting opinions on the subject.

Before I pose the question however, here is some background;

I am a law student who is nearly done with school. I am a passionate supporter of the 2nd A. and I have been recently looking at the arguments that anti-gun proponents put forth as their justifications for banning many types of firearms.

I realized, that many of the arguments put out against semi-auto ownership would be just as applicable against full auto ownership. I.e. "Why do you need 'that much' firepower"?

I am 25 yo and I have never known a time when full auto firearms ownership didn't requires extensive federal licensing.

It occurred to me however, that the 2nd A. never placed a limitation on the type of firearm ownership that the citizens had a right to keep.

Rather it merely states "Shall not be infringed". Further, when the amendment was put into place, the citizens were using rifles that were of equal effectiveness as the rifles used by the military.

It then further occurred to me that the lethality of the bullet out of a full auto gun is the same as that of a semi auto.

My family argued that law exists to protect (at times) the people from themselves. They argued that the harm that say, a child could unintentionally cause to his family could be much greater with a gun that could dump 10 rounds with one trigger pull, then 1 round.

They called this the "collateral damage" justification for the prohibition on widely available full autos.

While I feel that certainly, a full auto COULD cause more damage, I pointed out that this was the point of the full auto gun. Further, that nearly anyone could cycle a semi-auto at a ROF that would come close to some full autos. Further, bump firing can be caused by an INEXPERIENCED shooter and effect full auto.

But that argument missed the greater point which focuses on what (i perceive) the intent of the 2nd A. to be.

I.e. a deterrent.

A deterrent against corrupt government (i.e. what the colonists suffered from King George III).

If in fact that the right to keep and bear arms is to be a deterrent, then shouldn't the deterrent be as great as it can be?

Further, I argued, if the "bad guys" have the full autos, should not the law abiding citizen be able to meet force with equal defensive force?

Unfortunately, I was not able to sway my family. They felt that the potential danger to the average citizen was too great and that having full autos severely limited was a good thing.

I feel that they MIGHT have some valid points, but as I said to them and my Wife, the 2nd A. was not built around accidents or the "Crazy"s its built around individual firearms ownership, presumably as a deterrant.

It was built around the idea of keeping the public armed to prevent government oppression and corruption.

My Wife was giving me strange looks after I suggested that full auto should be legal. I told her that it only seems strange that full auto isn't widely available because we've been brought up in a world where full auto isn't widely available.

If we had it, we wouldn't think twice about it.

My question is:
Do you think that full auto differs from full auto enough to limit it as severely as it is?

Any case law or citations would be greatly appreciated along with your opinions.

Regards,

Konrad
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Old February 14, 2009, 01:54 AM   #2
ComradeBurg
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I'll chime in on this.

No I don't think there should be any difference between buying a fully automatic firearm and a semi-automatic firearm (or any other type of firearm for that matter).

I have several reasons for believing this. The first has to do with the "shall not be infringed" part of the second amendment. I take the constitution as it is written, in other words if there was suppose to be an exception to the right to bear arms it would have been written in (such as the first amendment exception to inciting riots).

The next reason is the reason the second amendment was written in there. It's there so we could overthrow the government should they turn tyrannical. This would seem to imply the founding fathers meant for the citizens to have equal firepower to the government (they also assumed a small military force, but I shall not diverge).

A third reason I have is the fact that law abiding citizens aren't going to use a fully automatic weapon for any unlawful purpose. Criminals do that. Criminals are also the ones who can get fully automatic weapons without much trouble. Making it easier for a regular citizen to get a full auto won't increase the supply of such guns to criminals since they have means of obtaining them illegally anyways.

I find no justifiable reason to restrict gun ownership period. Gun control doesn't work for the purpose of preventing crime. Why should the majority of people have their rights restricted because a few people will use a machine gun in a criminal manner?
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Old February 14, 2009, 02:19 AM   #3
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Wrong forum.

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Quote:
The first has to do with the "shall not be infringed" part of the second amendment. I take the constitution as it is written, in other words if there was suppose to be an exception to the right to bear arms it would have been written in (such as the first amendment exception to inciting riots).
The Supreme Court disagrees
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Old February 14, 2009, 02:40 AM   #4
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Already is with the right paper work. Should not need any paperwork as I see it. Any firearm used by a cop or solider should be available to anyone with a clean felony record and the money to pay for it without any other restrictions.
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Old February 14, 2009, 03:25 AM   #5
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I think that they should be legal, as they are. It isn't that hard to file the proper paperwork for these, and as long as you are a law abiding citizen you can own them with a special tax stamp. I don't think that just anybody should be able to buy these weapons because they are more dangerous that single shot guns if not used carefully. Obviously all guns are dangerous if misused, but accidentally shooting off one bullet is not as dangerous as shooting 30. I don't think that it would be too much to ask that people who want to own full auto guns take a class that trains them on how to use them safely (like the army does). The high price of these guns is enough to deter the casual shopper, so it's not like everybody on the block would have one anyway.
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Old February 14, 2009, 10:02 AM   #6
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As each person discovers the Magic Words of the Second: "... shall not be infringed ..." it seems the discoverer must share it with us all.

This one is a little different, as some logic is presented in orderly fashion, as opposed to an emotional rant.

Konrad, my compliments on a well written post and well presented arguments, from your point of view.

I am moving this to the Law & Civil Rights forum. As a new Counselor in Law, you have come to one of the best places on the internet for a discussion of the Second and the limitations thereon. You will find a pragmatically mix of the interpretation, literally, of the wording of the Second, with the legal history of it's treatment, societal views that have grown from decades, nay generations, of propaganda and common sense.

I strongly recommend you read carefully the sticky threads at the top of each forum, particularly the General Discussion and L&CR fora, before proceeding.
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Old February 14, 2009, 10:35 AM   #7
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Well, realistically there's no such thing as "reasonable restriction"; maintaining arms parity with one's government for defense of liberty is a natural human right. This is a simple fact, and no human opinion from SCOTUS on down changes that reality.

Regarding the current US legal situation with regard to MGs, the NFA-type registration is easy enough for a good citizen to pass through; what needs to be eliminated is the '86 manufacture ban that puts MG prices absurdly out of reach of the average citizen.
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Old February 14, 2009, 11:10 AM   #8
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The very question presupposes that the Constitution was and is intended to lay the foundations of the governments right to restrict the freedom of the people.
A proper understanding of the role and purpose of the Constitution negates the question, it does not need to be answered.

The COTUS is intended to limit the governments control of the people. When the contents are viewed from that perspective, it is clear that the very question is invalid. No question, from a constitutional vantage point, can begin with "How does this restrict the peoples' right to..." because that very concept undermines the intent of the document.

Article the twelfth [Amendment X]

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


There's your answer. A proper understanding of the intended role of the COTUS eliminates a large majority of modern constitutional arguments.

The question MUST BE "How is and was this provision intended to limit the power of the government to restrict the people?" Any other interpretation presupposes that the people exist for benefit of government.
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Old February 14, 2009, 11:25 AM   #9
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Konrad, This has been a frequent topic on this forum (old L&P) and I am one who agrees with the restrictions on full auto weapons and do not believe that an armed citizenry buttressed by the Second Amendment protects us from a corrupt government.

First, I do not believe that ANY right is without restriction or limit. The only type of world where there are absolute rights is an anarchy and only then if you have the power to enforce the right. Each one of the BOR is limited and the Second Amendment is no exception and if the limitation passes constitutional muster then there is no infringment on the right.

So, where to draw the line? In Heller Alan Gura who represented Mr. Heller spoke about weapons in common use by civilians. I submit that full auto weapons are not in common use by civilians (they are legal but heavily regulated and mostly owned by hobbyists and collectors) and therefore are not protected by the 2A. Further, I submit that FA weapons are not suitable for civilian self defense. I know there is a wide spectrum within the FA auto world going from a three round burst M16 to a .50 caliber heavy machine gun but the operation of FA weapons is I believe best left in the military world for which it was designed for fire suppression and area denial.

As to the theory, known by some as The Insurrectionist Theory under which the Second Amendment not only grants the personal right to bear arms, and gives citizens the right to rebel against a government perceived as tyrannical. I do not subscribe. I believe that theory is refuted by Article One Section Eight which gives Congress the power "To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;" So, I don't think the Insurrectionist Theory (notwithstanding the numerous quotes from obscure folks like Tenche Coxe) holds any water. I believe the maturity and robustness of our democratic institutions and checks and balances contained in the COTUS protects us from tyranny and not an armed citizenry.

That is my view in a nutshell but I can expound on that too.
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Old February 14, 2009, 11:30 AM   #10
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Tell me, how do the checks and balances protect us from tyranny in a day when all three branches of the federal government are controlled by people who don't support our Constitution and are willing to do anything to bring about Euro-style Socialism in America?

If you don't understand the natural rights of man and why the threat of revolution is required to keep governments in-line, you should really study the whole of human history quite a bit more.

Edit: Let me clarify; I have no delusions of being involved in any massive revolution overtaking the federal government. It's not a winnable battle in the present time. But the bearing of military-style arms gives me the choice that if I cannot live free I can die trying. I don't have any notion of taking out government thugs and escaping into the woods like Rambo, but when they come for me, unarmed I can be manhandled and made a subject; armed they can take only my life, not my freedom. There's no grand hope in my mind of anyone ever undoing the evil that has infested modern society; but in my heart I can be certain that at least I will die a free man, can you?

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Old February 14, 2009, 11:34 AM   #11
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Konrad,i hope you remember this when the ACLU comes around and trys to hire you pro bonno?
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Old February 14, 2009, 12:07 PM   #12
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Quote:
Originally Posted by TheManHimself
Tell me, how do the checks and balances protect us from tyranny in a day when all three branches of the federal government are controlled by people who don't support our Constitution and are willing to do anything to bring about Euro-style Socialism in America?
I think the three branches of government are controlled by the COTUS. Barack Obama and every single member of our Congress was freely and legally elected under it's rules and are bound by it's constraints. I think your belief of the "Euro-socialism" is very much overstated (I lived in Europe for 8 years and we are becoming nothing like them) and even if some of Europe's ideas like health care are partially adopted by the US that is not tyranny of in opposition to the COTUS. It might not be what you like but that in itself is not tyranny.

Quote:
Originally Posted by TheManHimself
If you don't understand the natural rights of man and why the threat of revolution is required to keep governments in-line, you should really study the whole of human history quite a bit more.
I would suggest you might want to read about The Social Contract that man makes with his government to secure his freedoms and have social order. Remember my comment about absolute rights and anarchy. We don't live in the jungle anymore. What keeps our government in line is not the threat of revolution but the rule of law and our adherence to it. That is the beauty of our form of government unmatched by any other in history.

Quote:
Originally Posted by TheManHimself
It's not a winnable battle in the present time.
Nor has it ever been nor will it ever be. I agree.

Quote:
Originally Posted by TheManHimself
the bearing of military-style arms gives me the choice that if I cannot live free I can die trying.
I am afraid we part company here. This is a romantic illusion and when we gun owners say this sort of thing to non-gun owners (who outnumber us and vote) we sound like kooks. I won't sign up for that one.

Quote:
Originally Posted by TheManHimself
but in my heart I can be certain that at least I will die a free man, can you?
Whether I die a "free" man will have nothing to do with my owning military arms. There is no connection between the two. Ask those in places like Somalia, where I saw virtually everyone armed with heavy duty military arms, if they are free. I saw no real freedom there.
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Old February 14, 2009, 12:39 PM   #13
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I am a law student who is nearly done with school.
Congrats!

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Unfortunately, I was not able to sway my family. They felt that the potential danger to the average citizen was too great and that having full autos severely limited was a good thing.
Your story illustrates a few lessons.

Discussing law with laymen
-

Most often, laymen regard law as a political matter. This is to say that they look for the law to support their politically reached conclusions. This is not a matter of malevolence or corruption. The complexity of law discourages people from developing coherent and consistent views of it. It is also a fairly normal human response to see little value in liberties we choose not to exercise. Most people will not have a visceral reaction to laws that outlaw sagging trousers because normal people don't engage in the practice.

In the face of your recitation of "shall not be infringed" to your family, they knew two things. 1) they do not agree with the language and 2) enough people involved in the legal system have disagreed with it enough at some time and places to have infringed it. Since their position isn't built on COTUS language, your recitation can't address the basis of their position.

The influence of culture on law-

I concur in your observation that we regard guns differently as a consequence of how we regulate them. The consequent strangeness of the regulated item makes it politically easier to regulate.

One of the duties you will have as an attorney is to read the law with integrity. This will often place you in a politically unpopular position. Many of your brethren will adopt a vision of the law in which the clear intent of basic law can be explained away for political ends. You will choose how you explain your own fidelity to law.

The dangers of result oriented jurisprudence-

Many courts have decided first what result they want, then tortured law, language and reason to make that result happen. This is not just a problem in constitutional law; it makes a hash of the law of many states as well.


Edited to add -

I think you are correct to question whether there is any rational basis for restricting or taxing differently a rifle depending on whether it shoots automatically or semi-automatically. I also see lots of harm in making sound suppressors more expensive and rare.

Last edited by zukiphile; February 14, 2009 at 12:54 PM.
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Old February 14, 2009, 12:44 PM   #14
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The dangers of result oriented jurisprudence-
Law itself is result oriented

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Old February 14, 2009, 12:47 PM   #15
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Already is with the right paper work.
So I can call up FN-USA and buy a new select fire P90? No, I can't. FA is banned except the ones grandfathered in before 86. There is a difference between legal and grandfathered.

I can buy/build new suppressors (Own two, getting a third), SBSs (Going to Form 1 an Ithaca 37), and SBRs (nothing planned.) I can't buy or build a new full-auto. Only pay massively inflated prices for decades old specimens.
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Old February 14, 2009, 12:48 PM   #16
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Law itself is result oriented
Thanks for sharing your understanding of jurisprudence.
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Old February 14, 2009, 12:51 PM   #17
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Your welcome. Helps the layman.

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Old February 14, 2009, 01:01 PM   #18
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Your welcome. Helps the layman.

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Ken, I am not sure that your purpose is trollish self entertainment.

Even if you've never practiced, you are unlikely to believe that the inferior reasoning employed in result oriented jurisprudence improves or clarifies the law. It is pernicious to the degree that false rationales are subsequently incorporated into the body of case law.
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Old February 14, 2009, 01:08 PM   #19
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Yes, I think they should be legal...

actually they are for folks with enough money and the right connections. I have a friend down in Florida who owns a number of full auto weapons.

The bigger problem with full auto access is not so much the fed tax permit but that the number has been limited and the way I understand it you can't buy new.
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Old February 14, 2009, 01:16 PM   #20
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Tyranny is what you aren't used to

Normal, right and proper, is what you grow up with. And, of course, its all in your point of view.

Firm believers in personal liberty and responsibility believe unrestricted full auto ownership is our right, the same as it is our right to own any property. We have "evolved" (or possibly devolved) into a society where "need" is the criteria for ownership, and only the worst possible outcomes are considered to balance against percieved need.

Add into the mix the fact that guns, while intellectually mere pieces of personal property, are considered "dangerous". Totally ignored (in practical terms) is the human factor. NO gun ever injures or kills anything without a human being directly involved.

But instead of focusing on the user, we focus on the tool. We focus on "prevention", by prohibiting ownership (or making it so onerous that only a handful will and can afford to own them) instead of punishment of those who harm others. Some states flat outright prohibit private ownership of full auto firearms.

Hollywood has spent the majority of the last century increasing their portrayal of full auto firearms as common, and always used for evil. Every bad guy seems to have one. Interestingly enough, these horribly effective weapons, capable of mowing down masses of people with a single pull of the trigger seem incapable of being able to hit the action hero (or inflict more than a flesh wound), while single rounds fired by the hero drop bad guys like the hammer of the gods.

Consider that in the last several decades, ALL of the mass shootings, where dozens or more were killed, NONE of them was done with a full auto weapon.

Indeed since the NFA of 1934, the number of crimes (other than "conspiracy" to violate firearms laws, and record keeping errors) committed by legal full auto owners is less than the number of fingers on one hand.

There are thousands of legal full auto guns (perhaps tens of thousands?), and yet in over 75 years the number of murders and robberies done with these guns in the hands of their legal owners is virtually zero. 1, perhaps 2, in all that time. Something to think about.

As to the 2nd Amendment being our bulwark against a tryannical govt, it is not. All it does is provide a legal check on such a govt disarming the general populace. With today's technology, many make the argument that we could not win against our govt, because they have machine guns, tanks, jet fighters, etc. And on the open field of battle, they are probably right. But htat is not, and never has been the underlying issue. The simple fact that we could resist with arms is what prevents us from needing to. Sure, if it came down to it, we might lose, but it is the percieved cost of winning that keeps tyrants from making the attempt, with physical force.

I would suggest you read the novel "Unintended Consequences" by John Ross. While fiction, there are a number of very good and valid ideas expressed in it. You might just get an insight into some other viewpoints.

Isn't a movie just a fully automatic book?
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Old February 14, 2009, 01:16 PM   #21
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The dangers of result oriented jurisprudence-

Many courts have decided first what result they want, then tortured law, language and reason to make that result happen. This is not just a problem in constitutional law; it makes a hash of the law of many states as well.
I have a huge problem with this, whether the results obtained are to my liking or not.

There is a process for changing the constitution and convoluted reasoning is not it.

My view is that since the unconstitutional policies of FDR were rammed through by the leftist court, this problem has gotten progressively worse. It has also be practiced by those on the right.

They seek to implement a political agenda and then go about twisting logic and the intended meaning of the constitution to do it.

The whole notion that the court is, or is to be apolitical has become a farce.
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Old February 14, 2009, 03:07 PM   #22
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Even if you've never practiced, you are unlikely to believe that the inferior reasoning employed in result oriented jurisprudence improves or clarifies the law. It is pernicious to the degree that false rationales are subsequently incorporated into the body of case law.
I have practiced. Have you?

Result oriented jurisprudence is essential to proper interpretation of result oriented law, ie...all law. Law is written to obtain a result. Hence result oriented jurisprudence (interpretation of the law to achieve the result set forth in the law) does not necessarily entail false rationales, or inferior reasoning. Look at 4th Amendment issues for the best result of that

Perhaps you are confusing some concepts here. Would you be referring to what is commonly known as "legislation from the bench", which does entail the problems you set forth

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Old February 14, 2009, 03:52 PM   #23
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Konrad,

As you see, reasonable people can disagree on the isssue of gun rights. Of course, this being a firearms forum you will probably find more people posting here who would agree with, for lack of a better term, "Any Gun, Anyone, Anywhere." I believe strongly in individual freedom, the Second Amendment and am a gun owner but still believe that it is reasonable and at times beneficial to restrict possession and ownership of guns.

However, that being said there is a better way to remedy the full auto question. Organize politically and repeal the 1934 NFA, the Hughes Amendment from the 1986 FOPA and the 1968 GCA. Then start with other laws you don't like that regulate guns and repeal them too. The courts did not make those laws, the legislatures did. Rather than try and thwart them through the courts, vote them away!

You see, the real bulwark against tyranny is the vote. Get involved, organize and overcome. In my county here in TN, the County Commission wished to restrict our right to carry CCW in the county buildings. We organized and defeated the measure. No lawyers or courts needed! Cheaper too!
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Old February 14, 2009, 04:18 PM   #24
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I have practiced. Have you?
Yes. I still do.

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Result oriented jurisprudence is essential to proper interpretation of result oriented law, ie...all law. Law is written to obtain a result. Hence result oriented jurisprudence (interpretation of the law to achieve the result set forth in the law) does not necessarily entail false rationales, or inferior reasoning. Look at 4th Amendment issues for the best result of that
That is incorrect. Your misuse of the term suggests that you are unfamiliar with it, though I would have hoped my original explanation would have resolved any genuine confusion. I assure you that I didn't coin the term. See below.

http://bench.nationalreview.com/post...U1YzQxZDY4ZmI=

If you regard with enthusiasm jurisprudence that determines a result first and only then seeks a justification for the result, that is your right, but it shouldn't make the idea difficult to understand.

Quote:
Perhaps you are confusing some concepts here. Would you be referring to what is commonly known as "legislation from the bench", which does entail the problems you set forth[?]
No. "Legislation from the bench" is a distinguishable concept. If a google search leaves either unclear, feel free to request clarification.

I understand that you are a fixture here and may be given a wide birth. That's fine, but it doesn't make incivility more appropriate.
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Old February 14, 2009, 04:21 PM   #25
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I'm almost 100% sure that none of the people who wrote the second amendment ever had the pleasure of seeing a FA weapon. They would then have formed no opinion of them. Since the second amendment was written before these weapons existed, doesn't it seem sort of illogical to apply it to FA guns. Who can be sure that Thomas Jefferson would have wanted them included in the second amendment. If weapons like that existed at the time that the bill of rights was written, who knows what might have been different. Anybody who thinks that they can accurately get inside of some dead guys' heads and figure out what they would have wanted need to get their ego in check. The founding fathers of our nation trusted us to make changes and modifications to our rights depending on what was needed to make society function. The laws discouraging the ownership of FA weapons were passed in the 1930s to help stop violence associated with prohibition because that is what we thought was needed to make the country safe again.

I'm not trying to use my argument to justify outlawing these weapons, I'm only trying to say that sometimes it can be very complicated trying to apply modern situations to 200 year old documents. The best thing that we as present citizens can do is think for ourselves. We were given the power as a community to change laws and make the world better by adapting to new environments. I guess all I'm trying to say is that none of the laws we have are set in stone, and they sometimes need to be reworked to make sense in current times. Sir Newton's laws of physics made perfect sense 200 years ago. Now we know that they are not true (well those of us who payed attention in school know). If we had continued to apply old science to new situations we would not have been able to progress past our own legacy. We have been given the right by our forefathers to think for ourselves. We need to use modern arguments (there are plenty of good ones) to justify the ownership of FA weapons or we'll all look like ignorant kooks.

FA weapons are a tricky beast. I would be hard pressed to be able to justify my need for one. I honestly can't think of any situation in which I would need a full auto weapon, ever. One well placed bullet is better than missing 20 times. But if somebody really really wants one they should be able to have one as long as they know what they are doing with it. I do think it sucks that our government won't make something illegal outright, they just make it so inconvenient and expensive that most people don't exercise the right that they have.
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