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Old October 12, 2009, 01:00 PM   #76
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Old October 12, 2009, 01:24 PM   #77
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Sorry, "common use" is a fiction that was invented by the SCOTUS out of thin air. If the people want to add "common use" to the COTUS, amend it, but having the court amend the constitution through a declaration is not the way it is supposed to work.
Agreed. Problem is, this is what the SCOTUS does and has traditionally done for centuries - devised tests and scrutinies and so forth based not on constitutionally valid grounds but on its own tortured, conflicted "logic". And stare decisis then conveniently keeps the body hidden from subsequent criticism and repair.
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Old October 12, 2009, 06:41 PM   #78
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Comparing FA to computers and equating the SCOTUS criteria of "in common use" to other civil rights is silly. In Common Use is a reasonable criteria to determine what type of firearms are protected by the 2A. The real truth is what Gura spoke about. FA is not in common use not because of the NFA, cost or any other tax. They have never been in common use because they are unsuitable for civilian use. Period. This other stuff is wishful thinking by gun nuts. The courts will not support you on FA so the only route you can go is thru the legislature and if 70 percent of the good 'ole boys of Alabama don't think folk should own them, well...good luck. Oh and BTW the militia argument won't work. Mr Warin tried and failed in 1976.
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Old October 12, 2009, 07:40 PM   #79
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They have never been in common use because they are unsuitable for civilian use. Period.
In your opinion. I suitably use mine frequently.
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Old October 12, 2009, 08:16 PM   #80
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Comparing FA to computers and equating the SCOTUS criteria of "in common use" to other civil rights is silly. In Common Use is a reasonable criteria to determine what type of firearms are protected by the 2A. The real truth is what Gura spoke about. FA is not in common use not because of the NFA, cost or any other tax. They have never been in common use because they are unsuitable for civilian use. Period. This other stuff is wishful thinking by gun nuts. The courts will not support you on FA so the only route you can go is thru the legislature and if 70 percent of the good 'ole boys of Alabama don't think folk should own them, well...good luck. Oh and BTW the militia argument won't work. Mr Warin tried and failed in 1976.
Using your logic, the only guns that are protected by the 2A are muskets, they being the only guns that were in common use when the 2A was ratified. Same goes today- any technological breakthroughs are not protected, since being new, they cannot be in common use. The 40 watt Plasma rifle is not protected by the 2A, as it has not been invented yet.
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Old October 12, 2009, 09:56 PM   #81
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Originally Posted by Hkmp5sd
in your opinion. I suitably use mine frequently.
Except the Congress, the Supreme Court and 70 percent of Alabama agrees with me So until you change our minds you will have to live with the NFA or go to Club Fed
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Old October 13, 2009, 01:37 AM   #82
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Boy TG, not your usual cheerful self. Forgetting FA for the moment, do you care to chime in on the circular logic trap at all?
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Old October 13, 2009, 06:59 AM   #83
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In common use or not...is pretty rediculous as a legal basis to ban something.

Ferrarris and LC Smith shotguns most likely will fall one day to the same fate if that's all it takes, kinda like because I said so.
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Old October 13, 2009, 07:44 AM   #84
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Certainly what is "in common use" changes over time. I had a manual typewriter as a freshman and by the time I was a senior wew all did our theses on macintoshes. Families who used to drive station wagons changed to minivans. Things change. A liberty that is so inelastic that only its expression at any one point in history can be protected is no real enduring liberty at all.

Quote:
Originally Posted by Tennessee Gentleman
Comparing FA to computers and equating the SCOTUS criteria of "in common use" to other civil rights is silly. In Common Use is a reasonable criteria to determine what type of firearms are protected by the 2A.
Asserting things as silly or reasonable doesn't demonstrate either. What cogent reasoning renders "in common use" a good limitation on 2d Am. rights, but not the rest of the bill of rights?
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Old October 13, 2009, 08:29 PM   #85
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Originally Posted by maestro pistolero
Boy TG, not your usual cheerful self.
Sorry, watching the Titans play this year does that to you

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Originally Posted by maestro pistolero
Forgetting FA for the moment, do you care to chime in on the circular logic trap at all?
Yeah OK. I think Gura answered it pretty well. Handguns although banned in DC are and have been for over a hundred years in common use by civilians for self defense. In fact either in the decision or one of the Amicus briefs it was validly argued that handguns were the ultimate SD weapon due to their size and compactness.

The problem I have with applying that to FA is that is order to do so you must show that FA was in common use or would be if the restrictions were lifted. I don't think you can do that and I think the evidence points to FA not being in common use because Joe Civilian doesn't think they are appropriate for SD. The fact that just before the FOPA registry closure there were only 118,000 on the books points that out rather clearly. I think the circular logic argument fails because FA were never in common use and that was because people did not care to own them. The current public aversion to said ownership points that out as well. Therefore referring to FA as no in common use by civilians for lawful purposes is correct and not circular.

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Originally Posted by tyme
How can you know that FA would not be in the mix if the NFA didn't exist? You're drawing conclusions based on circular reasoning.
No, I am drawing the conclusion on facts.

118,000 on the books before the registry closed out of hundreds of millions of total guns owned legally. If the demand had been that great, many many more would have been legally owned. Your argument that the NFA stopped that is thin and I see no evidence to support it. FA was available for reasonable prices before 1986 and $200 while more in 1986 than today was not overburdensome (I was around back then).

Again, common use is a criteria validly developed by the court to ascertain whether a particular type of firearm is protected by the 2A. The court is unwilling (as opposed to gun enthusiasts on TFL) to allow civilians to own whatever type weapon they can afford so they developed criteria to distinguish those types. Makes perfect sense to me but not to someone who wants no restrictions on firearm ownership. Most folk aren't in that camp. Common use criteria is fine for 2A issues but not other BoRs concerns and trying to tie that test to free speech is without merit and really a strawman.

BTW, how do you know they would be in common use if the NFA weren't around? Isn't that a very large unproveable assumption and circular?

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Originally Posted by divemedic
Using your logic, the only guns that are protected by the 2A are muskets, they being the only guns that were in common use when the 2A was ratified.
That is a false choice and you know it. No one but you have said in common use at the time of the 2A. The choice is not muskets or belt fed machine guns. Also, talking about new models of handguns is a red herring too. They all operate the same and we can honestly know the difference between FA and semi auto or shotgun or revolver. The issue is what firearms are protected by the 2A and the court is using a good criteria to determine that.

Quote:
Originally Posted by divemedic
The 40 watt Plasma rifle is not protected by the 2A,
It isn't a firearm either

Quote:
Originally Posted by csmsss
devised tests and scrutinies and so forth based not on constitutionally valid grounds but on its own tortured, conflicted "logic". And stare decisis then conveniently keeps the body hidden from subsequent criticism and repair.
What makes your "logic" any less "tortured" than theirs? Are you a judge? Have you any legal training? Since law and precedent don't work what method would you suggest? Oh I know, let every man determine for himself what is constitutional or not right? In other words anarchy.

C'mon folks I may not agree with everything the Supremes rule on but they use the best system I know of to arrive at those decisions and certainly better than any ideas I have heard on TFL.
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Old October 13, 2009, 10:30 PM   #86
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Originally Posted by Tennessee Gentleman
Quote:
Originally Posted by divemedic
The 40 watt Plasma rifle is not protected by the 2A
It isn't a firearm either
So, do you claim the 2nd ONLY protects firearms?
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Old October 13, 2009, 10:55 PM   #87
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Originally Posted by raimius
So, do you claim the 2nd ONLY protects firearms?
What do you think it protects?
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Old October 14, 2009, 08:05 AM   #88
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Forgetting FA for the moment, do you care to chime in on the circular logic trap at all?

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Yeah OK. I think Gura answered it pretty well. Handguns although banned in DC are and have been for over a hundred years in common use by civilians for self defense. In fact either in the decision or one of the Amicus briefs it was validly argued that handguns were the ultimate SD weapon due to their size and compactness.
So Gura doesn't answer the problem of the circularity the logic of the "in common use" standard at all. Gura addresses a political feature of the issue, not the logical problem. In fact, when I've spoken to Gura, he has gone out of his way not to address logical extension of his argument beyond the case immediately at hand. That is a sound litigation strategy, but it is not a substitute for a more comprehensive, integrated and reasoned constitutional doctrine.

Quote:
The fact that just before the FOPA registry closure there were only 118,000 on the books points that out rather clearly. I think the circular logic argument fails because FA were never in common use and that was because people did not care to own them.
There are fewer than 118,000 Mazda5 minivans in the US. This doesn't make them uncommon or mean than people do not care to own them.

Quote:
Again, common use is a criteria validly developed by the court to ascertain whether a particular type of firearm is protected by the 2A.
Quote:
The issue is what firearms are protected by the 2A and the court is using a good criteria to determine that.
So you assert, but have yet to demonstrate.

Quote:
Quote:
Using your logic, the only guns that are protected by the 2A are muskets, they being the only guns that were in common use when the 2A was ratified.
That is a false choice and you know it. No one but you have said in common use at the time of the 2A.
Did you really think he was presenting you with a choice?

Divemedic's example illustrates the problem with your position. "In common use" is necessarily tied to practice at a specific period in history. At the turn of the 19th century, repeating rifles were very uncommon. The logic of your position is that we could today be limited to single shot muzzle loading black powder rifles if only Congress had acted to outlaw any subsequent developments.

Quote:
BTW, how do you know they would be in common use if the NFA weren't around? Isn't that a very large unproveable assumption and circular?
No. It is an assumption, but it does not assume its own conclusion, as your position effectively does.

Quote:
Most folk aren't in that camp.
Whether many agree with a poorly reasoned position doesn't make it any better reasoned.

Quote:
Common use criteria is fine for 2A issues but not other BoRs concerns and trying to tie that test to free speech is without merit and really a strawman.
No. Since you are arguing that only the 2d Am. is subject to a common use limitation, he is extending your principle and asking you to explain it. That is not a strawman.

Quote:
Originally Posted by TG
What makes your "logic" any less "tortured" than theirs? Are you a judge? Have you any legal training? Since law and precedent don't work what method would you suggest? Oh I know, let every man determine for himself what is constitutional or not right? In other words anarchy.
Not that's something -- false appeal to authority, the fallacy of the excluded middle, and a strawman.

Quote:
Originally Posted by zukiphile
Asserting things as silly or reasonable doesn't demonstrate either. What cogent reasoning renders "in common use" a good limitation on 2d Am. rights, but not the rest of the bill of rights?
An inability to address this simple question may be a more powerful admission than you'd have intended.

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Old October 14, 2009, 03:22 PM   #89
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Originally Posted by Tennessee Gentleman
What do you think it protects?
"Arms"
In application, I believe it protects small arms most rigidly.

The cavalry saber, halberd, and crossbow should be protected just as much by the 2nd Amendment as the Remington 700...in my opinion.
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Old October 14, 2009, 03:56 PM   #90
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118,000 on the books before the registry closed out of hundreds of millions of total guns owned legally. If the demand had been that great, many many more would have been legally owned. Your argument that the NFA stopped that is thin and I see no evidence to support it. FA was available for reasonable prices before 1986 and $200 while more in 1986 than today was not overburdensome (I was around back then).
The NFA did in fact hinder ownership of full auto firearms. First, many locations could not get the CLEO signature needed to approve the paperwork. Very few knew of the Corporation/Trust method of bypassing the CLEO signature.


Also, many, many people were and still are under the impression that machineguns are illegal and never tried to acquire them. I grew up thinking they were illegal and didn't become aware of legal ownership until the 1986 took effect. Most Americans still believe the 1934 NFA bans the ownership of machineguns.

The same applies to sound suppressors. Something that is very common in some European countries and is considered the only polite way to shoot firearms is severely hindered here because of the NFA and the average American's belief that they are used only for assassinations. Most Americans believe there is an outright ban on suppressors because of the NFA.
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Old October 14, 2009, 05:16 PM   #91
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Originally Posted by raimius
"Arms" In application, I believe it protects small arms most rigidly.
Interesting. Hasn't the court ruled that arms means firearms? I don't think it protects "plasma rifles" but then I wouldn't what the heck those are anyway.

Quote:
Originally Posted by Hkmp5sd
The NFA did in fact hinder ownership of full auto firearms.
I still don't see that you have produced any evidence that the NFA caused those arms to not be in common use. You are speculating and I think it just as plausible that people didn't purchase them normally (except hobbyists and collectors) because they had no suitable purpose for them.

In order for your circular argument to work you would have to show (as did Gura with the handgun argument) that FA was in common use either before the NFA or the "86 FOPA and I don't think you or anyone else have done that. In fact the evidence shows otherwise. Imagine if the NFA had banned or restricted hunting rifles or normal length shotguns? It never would have passed.

The court routinely uses criteria to ascertain whether based on facts presented a law or rule violates the COTUS. Since the issue at hand is 2A (and not free speech, press etc) the criteria of "firearms in common use" today (not in 1789) is useful and since the NFA does not ban machineguns totally for private ownership you will be unlikely to win the agrument on legal constitutional gorunds simply because they cost a lot today.
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Old October 14, 2009, 05:38 PM   #92
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I still don't see that you have produced any evidence that the NFA caused those arms to not be in common use.
I haven't attempted to produce any evidence. However, long guns and handguns were in around for hundreds of years prior to the 1934 NFA and were very much "in common use". Machineguns on the other hand, especially machineguns such as the Thompson were around only a few years before being singled out as a "restricted" firearm. I would bet that thousands of WWII and Korean war vets would have Thompsons, Grease Guns, Stg43, and MG34s in their homes if you could find them at the local Ace Hardware beside the M1 Garands 03A3s and M1 carbines. Most significant improvements to the full auto line (Uzi, MP5, M16, AK47, etc) occured decades after the NFA was enacted. It is my position that had the NFA occurred in 1994 instead of 1934, full auto firearms would be much more "common" in the country. They would have been a more common item on shelves in gun stores. More people would have seen them and bought them.

If not for the NFA, how many of the thousands of pre-86 AR-15 clones in this country would have a 3 position selector switch?
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Old October 14, 2009, 05:57 PM   #93
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Originally Posted by Hkmp5sd
It is my position that had the NFA occurred in 1994 instead of 1934, full auto firearms would be much more "common" in the country. They would have been a more common item on shelves in gun stores. More people would have seen them and bought them.
I think mostly gun enthusiasts would have them and there are more of those in 2009 than there were in 1934 but even then they would not be many more than what they were before the FOPA '86.

I think FA was around long enough for folks to afford them and buy them if they wanted them for SD but they didn't do it because they are not suitable for civilian purposes even though they are fun albeit espensive to shoot.

This is hard for some gun enthusiasts to understand but Joe Citizen does not 1) believe he is a part of a militia 2) feel that a machine gun is a good idea for his own SD and 3) But does think that those who believe in 1 and 2 above are strange.

That is why FA is not in common use today nor will it be without the NFA (which ain't gonna happen thru the courts). So we agree to disagree.
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Old October 14, 2009, 06:12 PM   #94
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This is hard for some gun enthusiasts to understand but Joe Citizen does not 1) believe he is a part of a militia 2) feel that a machine gun is a good idea for his own SD and 3) But does think that those who believe in 1 and 2 above are strange.
1) Semantic misunderstanding
2) Emotional reaction (MGs can be used semi-auto if that's more advantageous in a self-defense situation)
3) Fear of dissimilar cultures/groups (the Other)

That's a great start to a list of things NOT to base public policy on.
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Old October 14, 2009, 06:37 PM   #95
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Originally Posted by tyme
1) Semantic misunderstanding
Obsolete idea

Quote:
Originally Posted by tyme
Emotional reaction (MGs can be used semi-auto if that's more advantageous in a self-defense situation)
Not crew served ones. Also, see Joe Horn

Quote:
Originally Posted by tyme
3) Fear of dissimilar cultures/groups (the Other)
Especially those with machine guns.

You forgot to add "sheeple".

Condescending attitudes towards those who don't wish to play militia/Rambo is a great way to lose the battle over public policy as well.
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Old October 15, 2009, 02:10 AM   #96
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I don't think it protects "plasma rifles" but then I wouldn't what the heck those are anyway.
They're technobabble. In scientific terms saying "plasma rifle" makes about as much logical sense as "steam gun."

I think we're getting too hung up on the whole "common use" definition. That was, after all, a product of the Miller ruling. The original NFA rules didn't single out "uncommon" weapons, they singled out "dangerous or unusual" weapons, unusual referring to stuff like cane guns, disguised weapons, etcetera.
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Old October 15, 2009, 09:30 AM   #97
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And look how few people legally owned them. More proof they were never in common use.

But you still have to consider all the roadblocks, i.e. the $200.00 tax which, at one time, was prohibitve and is still a nuisance factor, the arbitrary behavior of many law enforcement officials who refuse to sign off on applications, and the social stigma attached to FA by the misinformed American Public, as reasons why "few people legally owned them."
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Old October 15, 2009, 10:07 AM   #98
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Originally Posted by gyvel
But you still have to consider all the roadblocks, i.e. the $200.00 tax which, at one time, was prohibitve and is still a nuisance factor, the arbitrary behavior of many law enforcement officials who refuse to sign off on applications, and the social stigma attached to FA by the misinformed American Public, as reasons why "few people legally owned them."
Speculation and no evidence to show reliably that the NFA "caused" FA to not be in common use. I don't think a court would buy it. I don't either. As stated before I thik the evidence points to the idea that most citizens don't view FA as a suitable SD weapon. That idea gets skewed on a gun forum with rabidly progun folk but being popular in gun circles does not make a type of firearm common to most of society.
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Old October 15, 2009, 10:18 AM   #99
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They're technobabble. In scientific terms saying "plasma rifle" makes about as much logical sense as "steam gun."
Of course they are. I am using them as an example of weapons that cannot possibly be in common use, because they have not yet been invented. The term is just as much technobabble as "machine gun" would have been in 1810.

If the American people had been using the "common use" argument in 1810, we would never have been allowed to own military weapons like:

the revolver (Which was not in common use in 1810, the patent being issued to Mr Colt in 1836)

lever action rifles (not invented until 1860)

pump action firearms- invented in 1882 (the Spencer shotgun)

Semi auto weapons? forget it.

The 2A states "keep and bear ARMS" not FIREARMS not "arms in common use" it says ARMS. That means guns, knives, pointy sticks, and even artillery. See, in those days people even owned WARSHIPS, with CANNONS. (Called privateers) after all, if private citizens could not own cannon owned warships, Congress would have no one to issue letters of marque to.

Quote:
Speculation and no evidence to show reliably that the NFA "caused" FA to not be in common use. I don't think a court would buy it. I don't either.
You would be wrong. From the link:

As the legislative history of the law discloses, its underlying purpose was to curtail, if not prohibit, transactions in NFA firearms. Congress found these firearms to pose a significant crime problem because of their frequent use in crime, particularly the gangland crimes of that era such as the St. Valentine’s Day Massacre. The $200 making and transfer taxes on most NFA firearms were considered quite severe and adequate to carry out Congress’ purpose to discourage or eliminate transactions in these firearms.

According to the legislative history of the NFA, the legal framework of the 1914 Act was chosen because the tax structure it embodied (supposedly as a revenue-producing measure) had been found constitutional by the U.S. Supreme Court, and would avoid a direct confrontation with the 2nd Amendment.
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Old October 15, 2009, 11:12 AM   #100
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I don't think in common use means that technological advancements in firearms cannot be part of protected arms. Machine guns are a different class of firearm altogether from say a pistol or shotgun whether revolver, pump or semi-auto. Also, not all firearm advances were for military usage either. I think in common use refers to classes of weapons like handgun, long gun, shotgun etc. FA is yet another class and one that was never in common use even when it was not that expensive to procure. As to ownership, FA is not banned just regulated more than other weapons so you may own them if you wish to buy one and are not otherwise disqualified but the fact that they are expensive because of FOPA '86 won't get a court to overturn either the Hughes Amendment or the NFA. As I have said before go through your representative and have them repealed if you can but they are not unconstitutional.

Quote:
Originally Posted by divemedic
That means guns, knives, pointy sticks, and even artillery.
I think the courts have ruled otherwise and the definition for arms is firearms not all arms. And I believe Heller shows in around pages 52-3. You may also be getting the militia the individual rights mixed up that Heller decoupled.
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