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Old August 11, 2012, 08:43 AM   #1
jonbirdt
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9th Makes best statement to date

"The Second Amendment states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. In Heller, the Supreme Court struck down the District of Columbia's ban on handgun possession, concluding that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation." 554 U.S. at 592, 635." United States v. Henry at 9040, 9th Circuit Court of Appeals August 9, 2012, No. 11-30181
http://www.jonbirdt.com/images/Henry.pdf

They take as fact, and without exception that the 2A guarantees the right to carry in case of confrontation. This is the first such affirmation without the 'in the home limitation" in the 9th and one step closer.
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Old August 11, 2012, 09:10 AM   #2
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One positive sentence in the whole mess, I suppose.


The rest, nuts. Not the verdict, the rationale around machine guns.

The rationale that machine guns are not protected (and therefore illegal) because they're "unusual" even though they're only unusual because they're illegal, is astounding to me.

If it had been a handgun ban instead of a machine gun ban they could make the exact same argument for handguns.

How could it be that such insane logic could come forth from what are supposed to be some of the best legal minds in America, and we're not just dealing with the 9th on that concept.

Last edited by Brian Pfleuger; August 11, 2012 at 12:25 PM.
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Old August 11, 2012, 09:41 AM   #3
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Many own full auto weapons, with the proper stamps. this gentleman made his own. the court clearly distinguished that from ordinary weapons used every day, and took a great opportunity to give us a great first step towards victory after our recent crash and burn in the 9th. Machine guns are legal to possess, if you do it the right way. We now have a full plate in the 9th with this as the first statement of authority. There is a case similar to Woollard actually going to trial next month where Baca (our LA Sheriff may be compelled to testify, though their msj is pending-per the Court trial is still set to proceed and this may help) and this supplemental authority was given to the Court, and the Court is bound by it. This is just one brick, but it is the cornerstone of a great building, in the 9th at least.
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Old August 11, 2012, 09:51 AM   #4
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Post-86 machine guns aren't and none are in some states.
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Old August 11, 2012, 09:51 AM   #5
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Quote:
Originally Posted by jonbirdt
Quote:
Originally Posted by Ninth Circuit
"The Second Amendment states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. In Heller, the Supreme Court struck down the District of Columbia's ban on handgun possession, concluding that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation."
United States v. Henry at 9040, 9th Circuit Court of Appeals August 9, 2012, No. 11-30181...
But note that this is all the Ninth Circuit said in Henry in that regard -- a mere mention in passing as dicta.

On the other hand, the Ninth Circuit held expressly (Henry at 9041) that machine guns are:
Quote:
...highly “dangerous and unusual weapons” that are not “typically possessed by law abiding citizens for lawful purposes.” Heller, 554 U.S. at 625, 627. Thus, we hold that the Second Amendment does not apply to machine guns.....
And of course the Ninth Circuit in Henry also, predictably, supports an expansive reading of the Commerce Clause.

Quote:
Originally Posted by jonbirdt
...They take as fact, and without exception that the 2A guarantees the right to carry in case of confrontation...
And it's quite possible that they do so in Henry simply because it has no bearing on that case.

We'd all love to see a clear statement from a federal court of appeal to that effect. But Henry gives me no particular comfort. Our best hope for a meaningful appellate court ruling in that regard remains Woollard.
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Old August 11, 2012, 10:03 AM   #6
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What would be the rationale for making that statement in a decision that is essentially unrelated to that question?
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Old August 11, 2012, 10:08 AM   #7
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Sorry, Machine guns are like the cherry on the sundae, in Los Angeles, we have no right to carry anything but a blunt butter knife. This isolated statement is going to be the stepping stone for the 9th, and I bet gets cited in Woollard as one brick affirming that great trial Court victory. My only point was it is a great clear statement and the first from a Circuit Court that does not include the "in the home caveat". And certainly the first of any kind in the 9th that helps, and with so many cases coming up for decision here, it is a nice start- that is all.
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Old August 11, 2012, 10:17 AM   #8
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Brian,
These are the judges who got burned by counsel in Nordyke and wanted to use that case to make this statement. I suspect they just took the first chance they could. The 9th has carefully stacked a series of cases and denied requests to consolidate, stay and expedite all to preserve an order of rulings IMHO, probably designed by Kozinski, that I think will lead to a string of mixed decisions ultimately resulting in a framework that looks like Woollard. The briefing, argument and trial schedules over the next six months have each of the cases evenly parsed out, and like I said I think this is just the first brick.
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Old August 11, 2012, 11:37 AM   #9
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The rationale that machine guns are not protected (and therefore illegal) because they're "unusual" even though they're only unusual because they're illegal, is astounding to me.
And to me, also. There is an excellent thread over on THR about muskets and assault weapons, and one of my posts there seems particularly apt for this discussion.

The "Assault Weapon" of the late 18th Century was the Brown Bess (or Charleville) Musket. It has most of the characteristics of the modern assault rifle -- fast-firing (compared to a patched ball in a rifle) accurate only at short to intermediate range, not well suited to hunting (although usable as such), fast to reload, designed to mow down humans as quickly as possible given the technological limits of the age. Moreover the smoothbore musket was often used with multiple projectiles (Buck and Ball Loads) to increase its effectiveness.

It is exactly the type of weapon our forefathers intended for us to "keep and bear" so that we, as a militia, would have parity with an invading army or an army raised by our own tyrannical government.

The Brown Bess to M-16 is less of a technological change than the printing press to the TV broadcast, yet those who would scream like wounded panthers at the thought of government censorship of radio and TV broadcasts would deny us the right to own true (select-fire) assault rifles under the theory that they weren't available at the time the 2nd Amendment was written.

We may well be stuck with the requirement for licensure for concealed carry (albeit shall-issue) due to early 19th Century views about concealed weapons as evil, but oft-quoted militia clause of the 2nd Amendment makes it clear that "assault weapons" are the class of weapons most protected by the core of the 2nd Amendment.
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Last edited by Brian Pfleuger; August 13, 2012 at 08:26 PM. Reason: Quote Correction
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Old August 11, 2012, 12:56 PM   #10
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On the other hand, the Ninth Circuit held expressly (Henry at 9041) that machine guns are:
Quote:
...highly “dangerous and unusual weapons” that are not “typically possessed by law abiding citizens for lawful purposes.” Heller, 554 U.S. at 625, 627. Thus, we hold that the Second Amendment does not apply to machine guns.....
It's amazing how readily and authoritatively the court will embrace something that is not necessarily obvious and that was never held by the supreme court. But when the obvious (i.e. bearing outside the home) comes accross their plate, they feign deference to SCOTUS.

The Heller court specifically did NOT include M-16s and the like in any list of weapons that may be banned, even suggested that banning them would effectively detach the the first clause from the amendment altogether:

Quote:
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be aseffective as militias in the 18th century, would require sophisticated arms that are highly unusual in society atlarge. 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 limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of theright.

Last edited by maestro pistolero; August 11, 2012 at 01:28 PM.
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Old August 11, 2012, 03:37 PM   #11
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This wording:

Quote:
In Heller, the Supreme Court struck down the District of Columbia's ban on handgun possession, concluding that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation
Is part of Henry's claim. I don't read this as an opinion issued by the 9th Cir, it's merely the defendant's claim, which is included in the document.
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Old August 11, 2012, 03:55 PM   #12
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http://czfirearms.us/ same original CZForum, new location.

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Old August 11, 2012, 03:55 PM   #13
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Henry claimed he gets a machine, the 9th Circuit said he gets a gun in case of confrontation, but that does not include a machine gun. I am not aware of any circuit opinion stating so clearly that Heller created this right. Again, though, my focus is not on machine guns, but on the right to carry, and more specifically, California, where the right to carry is limited to carry with a CCW permit. From a California perspective and from a Federal Appellate perspective, I think this is going to become the most oft quoted citation you will see in briefs and opinions over the next year. I think it is a solid victory for us, albeit in a very small way, and the first of many to come. Outside of California, I am not aware of any CCW cases at the Circuit level other than Woollard and we have several that will be resolved this year and by these judges n California, so when combined with whatever happens in Woollard, those few hold out States are going to be compelled to recognize our right to keep and bear arms very soon. I think by last count 46 States were shall issue or constitutional carry, so the battlefield is relatively small on the CCW front.
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Old August 11, 2012, 04:19 PM   #14
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The court merely quoted Heller which, being from the Supreme Court, is already citable authority. What new ground do you think this breaks?

We know that bearing isn't a home-bound right, but if the 9th actually said that, then we might have actually have something new from them.
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Old August 11, 2012, 04:31 PM   #15
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It is not monumental, but it also isn't a single quote from Heller, it is two statements put together to make a clear statement. Any other time an Appellate or trial Court has discussed these issues, they have qualified it as being limited to the home (except Woollard). This isn't a home run, but it is a base hit and will be quoted in at least 3 9th Circuit briefs by the end of the year. I am not aware of any other Circuit doing that. Being able to cite, in a 9th Circuit Appellate Brief the conclusion you want them to draw, when they have already drawn it is a very positive step forward. I suspect a few associates are working this weekend to prepare notices of supplemental authority which have already been filed in at least one case as of Friday.
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Old August 11, 2012, 08:12 PM   #16
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Now that I re-read it, this does seem to be more of a statement than previously.

If Judge Myerscough or Judge Stiehl had interpreted Heller similarly, then both would have found for the plaintiff in Moore v Madigan and Shepard v Madigan.

I wonder if the 7th will look at this as they rule on Moore/Shepard v Madigan
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Old August 11, 2012, 10:56 PM   #17
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On October 31, 2009, Henry was arraigned in state court for discharging firearms while intoxicated.
Greeeaaaat. Stupidity like this makes for bad case law.

Back in the 1980's and 1990's (and well before), most 2nd Amendment challenges seemed to run like this:

Joe Bob led police on a high-speed chase. When stopped, he took a swing at one of the officers before being subdued. Officers found a pound of marijuana in Joe Bob's trunk and a gun under the passenger seat with a defaced serial number.

Joe Bob and the lawyer he hired off an ad in the back of the phone book would throw a smorgasbord of outlandish appeals out, one of which would be a claim that his 2nd Amendment rights were violated by the confiscation of the weapon. The court in question would be asked to rule on the matter, and they'd always rule against us.

I've lost track of how many times I've said this, but it is too soon to challenge the NFA. 2nd Amendment jurisprudence is still in its infancy, and we need to be very careful to bring strong litigation with sympathetic, law-abiding plaintiffs.
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Old August 12, 2012, 12:43 AM   #18
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The closing of the registration in 1986 is, for all practical purposes, a ban. The average person cannot afford 8, 10 or 20k for a transferable, select fire AR-15. Even if they could, the finite supply of pre-86 NFA stock will eventually run out.

That it took until 1986 to ban this ordinary military equipment from private, law-abiding individuals is prima facia evidence that it was historically understood to be protected. Even more to the point, the 1934 National Firearms Act didn't ban, but TAXED a certain class of weapon, further affirming the historical legality of such regulated arms.

Considering that the first production machine guns appeared more than 100 years prior to the ban, the 1986 Hughes amendment is relatively recent history. As a point of reference, the struck Washington DC handgun ban was 10 years older than the 1986 law.

Most of us agree that the Hughes amendment is pretty far down on the list of priorities in terms of second amendment fixes. But it is very disconcerting when a court so oversteps its bounds in an area in which the Supreme Court clearly has not spoken, or worse, has already indicated that there may be considerable doubt as to the constitutionality of a law. (See my post #10).

Justice Scalia's recent public comments regarding the what type of weapons are protected re-affirms that "It will have to be decided".

Scalia's public comment here merits judicial notice.

And finally, what, if anything, would a rifle who's purpose is to protect the security of a free state look like, if not exactly like a civilian version of the M4/M16?

Sorry, this holding is far more worrisome than reassuring to me.

Last edited by maestro pistolero; August 12, 2012 at 03:29 AM.
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Old August 13, 2012, 04:16 PM   #19
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And the District Courts still think the right is limited to the home...This makes our third CA in the home case. we also have the two alternative open carry cases.
http://www.jonbirdt.com/images/Ruling.pdf
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Old August 15, 2012, 09:56 PM   #20
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The opening Salvo was the Heller Decision but it left a lot of wriggle room for other courts. I would say that this is going to be a legal slobberknocker of a fight with some back and forth. There has been progress In D.C. NYC and Chicago and other places in four years. I wonder what the next four years will bring?
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Old August 15, 2012, 10:35 PM   #21
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OK admittedly I’m something of an idealist on gun rights.... But seriously the NFA in my opinion is far from being undefeatable... I can see the court would rule they have the right to tax but how a tax would somehow limit production seems a stretch especially in order for there to be a tax you must have viable weapons...

Further the 2A says Arms and if you want to be specific this seems to indicate all manner of weapons. I have even read that it was known that there were a very few custom muskets in the revolutionary war that apparently fired multiple rounds in a Roman candle sort of fashion. Seems like they must have had a side chamber to hold a small powder charge that acted as a fuse but thats just my guess...

In any case its clear that these arms were intended to be used as weapons of war, weapons of war would seem to include all manner of full and semi auto firearms....

Now if only the SCOTUS can make another decison that spells this all out without waiting another 100 years.... honestly shame on them for not having sorted this all out long ago...
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Old August 15, 2012, 11:19 PM   #22
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Now if only the SCOTUS can make another decison that spells this all out without waiting another 100 years.... honestly shame on them for not having sorted this all out long ago.
Actually, it's not their fault we've never been able to bring the right case to justify addressing this. Most appeals for NFA violations are brought by guys we just don't want representing us, and cases that don't ask the right questions in the right context.
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Old August 16, 2012, 06:00 AM   #23
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The Federalist and Anti-Federalist papers and the writings of Jefferson, Madison and others talks about citizen arms as a counter-balance against state and/or federal force. That tosses all the arguments about "proper weapons" right the heck out.

BUT, I don't view this as all that important. Reason being, I believe that in an insurgency situation, a good scoped bolt-gun in a real rifle caliber will be of much more use than an M4 with "da switch". A really good AR-10 variant in 308NATO/Win with a heavy barrel and a good scope might be even better, if it can reach out to 800yds or so - and the very best can. But a big mag won't mean a whole lot when the goal is "hit and run".

This is nothing new. We hurt the British the worst when we did hit-and-run with Kentucky Longrifles against their shorter-range, faster reloading Brown Bess smoothbores. We didn't hang around for them to reload in most cases - we got off one aimed shot at 200 yards they couldn't answer, they charged, we ran away. History could easily repeat itself.

Anybody who thinks a pitched battle with US forces on American soil would be a good idea is nuts. Long range rifles are the last practical gasp of the real 2nd Amendment. Fortunately the people who own and actually master such critters are serious martial artists and don't tend to go off half cocked mentally. That's a good thing. If things get bad enough to bring that crowd out to play, or even a small subset of that crowd, America would be a really ugly place to try and be a dictator to.

Remember: Saddam Hussein allowed a surprisingly large number of people personal ownership of full-auto AK-47s in Iraq. But he flat banned *anybody* having scoped bolt-guns - very few if any of his military had access to those and zero legally in private channels.

He wasn't *totally* nuts.
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Old August 16, 2012, 03:23 PM   #24
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The Federalist and Anti-Federalist papers and the writings of Jefferson, Madison and others talks about citizen arms as a counter-balance against state and/or federal force. That tosses all the arguments about "proper weapons" right the heck out.

BUT, I don't view this as all that important. Reason being, I believe that in an insurgency situation, a good scoped bolt-gun in a real rifle caliber will be of much more use than an M4 with "da switch". A really good AR-10 variant in 308NATO/Win with a heavy barrel and a good scope might be even better, if it can reach out to 800yds or so - and the very best can. But a big mag won't mean a whole lot when the goal is "hit and run".
My Armalite AR10-T 20" shoots under 1 MOA. It will ding a 30-inch steel plate all day at 960 yards (the furthest distance available on our silhouette range). Of course, I'm 'bagged in' and shooting Federal Gold Match Sierra Match King 175 gr.

Quote:
This is nothing new. We hurt the British the worst when we did hit-and-run with Kentucky Longrifles against their shorter-range, faster reloading Brown Bess smoothbores. We didn't hang around for them to reload in most cases - we got off one aimed shot at 200 yards they couldn't answer, they charged, we ran away. History could easily repeat itself.

Anybody who thinks a pitched battle with US forces on American soil would be a good idea is nuts. Long range rifles are the last practical gasp of the real 2nd Amendment. Fortunately the people who own and actually master such critters are serious martial artists and don't tend to go off half cocked mentally. That's a good thing. If things get bad enough to bring that crowd out to play, or even a small subset of that crowd, America would be a really ugly place to try and be a dictator to.
Agreed, I have the same confidence, Jim. Confidence that there are plenty of patriots at all levels of government that won't let things ever get that far.

And confidence that, somewhat ironically, as long as we have a robust second amendment, we will never need it for it's most important role of suppressing tyranny.
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Old August 16, 2012, 11:21 PM   #25
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Perhaps it's just my Libertarian streak, but the whole notion of machine guns not being protected because they are "unusual" and "not typically possessed or used for law-abiding purposes" just rubs me the wrong way. The reason that machine guns are "unusual" and "not typically possessed or used for law-abiding purposes" is because the gov't made sure that civilian ownership of full-auto weapons was "killed in the crib". When the NFA was passed, full-auto was really in its infancy and there were only a few hand-held full auto weapons available with the most common probably being the BAR and Thompson. By imposing a $200 tax on what were already very expensive weapons, the gov't created a de-facto ban since only the very wealthy could afford to legally own a full-auto weapon, particularly at the height of the Great Depression.

Similarly, the Hughes Amendment created a de-facto ban. Because the Hughes Amendment limits the supply of legal machine guns to those already registered before 1986, it drives the prices of that limited supply much higher than what they would otherwise be. While many people could, in theory, own a legal machine gun, the $10K+ prices that most of them have reached due to the Hughes Amendment places them beyond most people's financial reach.

It is ironic almost to the point of comedy that one branch of the government can tell us that we have no right to an "unusual" weapon when the other two branches of the same government conspired to ensure that the weapon was "unusual" to begin with.
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