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Old January 28, 2013, 03:29 PM   #26
JimDandy
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No I'm suggesting the standard for in common use be applied to the armories of the various law enforcemet agencies.

That the general point of the 2nd amendment was that the government agencies not be better or more armed than the general citizenry- and the most common example of such would be the law enforcement.
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Old January 28, 2013, 03:41 PM   #27
natman
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I think the OP is on the right track, but it's actually simpler than that. In 2008 the Supreme Court settled many 2nd amendment issues with DC v Heller. Here are the main points:

The first quote establishes that service in a militia is NOT required to be protected by the 2nd:

Quote:
1. The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home. (page 1)
In addition, in Heller the court commented on a previous decision, US v Miller which was about the National Firearms Act, which regulated machine guns, short barreled shotguns, etc. This clearly establishes what sort of arms are covered:

Quote:
(f) None of the Court’s precedents forecloses the Court’s interpretation.

Neither United States v. Cruikshank, 92 U. S. 542, 553, nor
Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights
interpretation. United States v. Miller, 307 U. S. 174, does not
limit the right to keep and bear arms to militia purposes, but rather
limits the type of weapon to which the right applies to those used by
the militia, i.e., those in common use for lawful purposes. (page 2).
[emphasis added]

Now if there was ever a gun that is in common use for lawful purposes, it's the AR15 that some want to ban. It's exactly the sort of gun that the second amendment is all about. The proposed ban flies directly in the face of the second amendment in general and Heller in particular.
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Old January 28, 2013, 03:59 PM   #28
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Now pretend you're not preaching to the choir. Pretend you're preaching to 9 people with an aggregate 50/50 split for no opinion on the second amendment, and do not own firearms, or know anything about them.

These 9 people have conceded the 2nd is an individual right. They've also said whatever a lot of folks have is probably fine. Now how do you convince the a lt of folks have AR-15's of various brands, features, models, parts, etc.

With a DHS Request for Purchase. With the trunk contents of every county sheriff, state trooper, and most large urban police departments right?
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Old January 28, 2013, 05:52 PM   #29
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Additionally, Heller talks common use for "lawful purposes" is there a more lawful purpose than upholding the law? The more we point to law enforcement effectively, the stronger our argument gets. DHS says a 30 round AR-15 is suitable for personal defense. They're a law enforcement organization. Common use lawful purpose.

Then we point to the "miitia" Korean grocers in the LA riots. The history of posse comitatus, and its origins in hue and cry..
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Old January 28, 2013, 06:13 PM   #30
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Now I understand what you're talking about.

The recent DHS SOW for PDWs will be of some help. Police use will be of some help.

But let's be very clear -- the so-called "common use test" has never yet been applied. Therefore, we could all be misinterpreting what SCOTUS will actually do when the rubber meets the road.

For example, SCOTUS could easily decide that common use doesn't have any bearing and is not informed by the nature of police weaponry. They could find that the police have extraordinary needs, e.g. SWAT teams, and therefore no, we're not going to accept that argument.

Remember, Heller suggests the core of the 2nd Amendment might be self-defense, so the anti-tyranny defense (that citizens need to be armed on some level similar to the government) might go over like a lead balloon. You and I might believe it, but if 5 out of 9 SCOTUS judges don't believe it, we're SOL.

Alternatively, the court could find that police, while not required to do so, often engage in defense of others to a degree not common among citizens, and therefore they need exceptional firepower that citizens do not, or that police are targets of exceptional violence, or whatever.

Not saying that's how it will go, but keep in mind there is a lot of history where police can have X and citizens cannot, e.g. SWAT teams. This court will surely know that. They may decide that the contents of the average patrol car are OK for a citizen to have, or they may say citizens have no expectation of maintaining the same level of firepower. They may leave it all up to the various states.

Surely Gura will use police / DHS if he feels they can help, but for now we don't even know if he'll ever try such a case before SCOTUS. He's currently still trying to get us the right to carry a friggin' pistol.

My guess is that he's looking for clues, and hoping that SCOTUS will take Kachalsky, not just so that we can have carry protected under the 2nd, but so that SCOTUS may drop some other gems which will suggest the path to take for any potential future litigation. Remember, they did exactly that in the first Heller decision -- pretty much came right out in the decision and said that they would allow the 2nd to be incorporated against the States if it ever came before them. To the surprise of no one (even the Bradys were saying Gura would win that case), Gura then won McDonald, and we now have incorporation.

Last edited by speedrrracer; January 28, 2013 at 07:07 PM.
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Old January 28, 2013, 06:17 PM   #31
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That's why I was pointing to common use in the police forces themselves. Its not just SWAT teams with the AR's anymore. They're in so many patrol cars. Police in Seattle have so many they forget them on their trunk lids when they go home for the night. Which implies it's not a special issue, but something they take home with them.
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Old January 28, 2013, 09:32 PM   #32
maestro pistolero
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Quote:
So in short the court has to either overturn Miller or suffer the unintended consequences of making fully automatic "militia" weapons (& probably more) available for self defense.
Don't agree. Heller came right out and said that reading Miller to mean that civilian ownership of machine guns were protected by the 2A would be an "alarming" interpretation. Scalia immediately followed with the passage wherein he wrote "We therefore read Miller to mean . . ." that the 2A protects weapons in common use for lawful purposes of the type that folks would keep at home (paraphrased, of course).

It seems to be a quite novel interpretation for a majority which also opined:

Quote:
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 the
right.
Yet they DID change the interpretation in the first passage (because they felt that private machine gun ownership would be too alarming), further reducing the degree of fit between the 1st clause, and the right itself.
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Old January 28, 2013, 10:01 PM   #33
Aguila Blanca
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Quote:
Originally Posted by natman
Now if there was ever a gun that is in common use for lawful purposes, it's the AR15 that some want to ban. It's exactly the sort of gun that the second amendment is all about. The proposed ban flies directly in the face of the second amendment in general and Heller in particular.
The same applies to handguns. By a huge preponderance, the type of handgun carried by both police and "civilians" today is a semi-automatic pistol with a magazine capacity in excess of 10 rounds. That's what is in "common use" today, and IMHO the cited language from Heller should make any law banning such handguns (as well as AR-type rifles) void due to being unconstitutional.

Last edited by Aguila Blanca; January 30, 2013 at 05:17 PM. Reason: typo
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Old January 29, 2013, 11:57 AM   #34
JimDandy
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As a somewhat related question involved- Does anyone know of any recent uses of Posse Comitatus? When "ordinary" civilians were deputized in such a manner? I know that some Sheriffs maintain a reserve, like Sheriff Joe down in AZ and call them posses.

But the most recent mention I can find so far, (in only a few minutes of searching) is from 1922.

Last edited by JimDandy; January 29, 2013 at 12:06 PM.
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Old January 29, 2013, 03:16 PM   #35
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Quote:
Yet they DID change the interpretation in the first passage (because they felt that private machine gun ownership would be too alarming), further reducing the degree of fit between the 1st clause, and the right itself.
Yeah. The intellectual dishonesty is soul-crushing, and I don't see how it has helped us have a "better national discussion"
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Old January 29, 2013, 04:18 PM   #36
JimDandy
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Quote:
Yet they DID change the interpretation in the first passage (because they felt that private machine gun ownership would be too alarming), further reducing the degree of fit between the 1st clause, and the right itself.
I don't read it that way. From my limited research, Heller was the first one to actually address the prefatory clause directly. Miller came close, but stopped just short. Everything else has been suggestive but not definitive. They have time and time again listed the RKBA with the other individual rights for example. So they didn't change the interpretation, they established it.

Further, we don't know how they feel about NFA and private fully automatic weapons in private hands as that wasn't the issue before the court. They can't hear a case on abortion rights, and veer DIRECTLY off on recreational drug use. They can only leave bread crumbs for another lawyer to follow and put that issue before them phrased in the same way citing the case they left the bread crumbs in.
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Old January 29, 2013, 06:45 PM   #37
speedrrracer
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Quote:
Further, we don't know how they feel about NFA and private fully automatic weapons in private hands as that wasn't the issue before the court.
Don't we? "Dangerous and unusual" must have come up in your reading of Heller.


Quote:
They can't hear a case on abortion rights, and veer DIRECTLY off on recreational drug use. They can only leave bread crumbs for another lawyer to follow and put that issue before them phrased in the same way citing the case they left the bread crumbs in.
Let's be honest -- Heller did veer off a little bit, although not to the level of exaggeration you mention. For example, the dicta creating the presumptively lawful restrictions on bans on felons, mentally ill, etc. There is no constitutional basis for those, they were not the issue before the court, and poof! SCOTUS created them out of thin air.

Now the antis are citing them as clear support for laws mandating single-shot firearms locked in the basement of a state armory.
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Old January 29, 2013, 07:13 PM   #38
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Obiter dictum does not "create" law or "presumptively lawful restrictions" on people or things.
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Old January 29, 2013, 07:30 PM   #39
speedrrracer
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Quote:
Obiter dictum does not "create" law or "presumptively lawful restrictions" on people or things.
Didn't say it did, but to imply they don't have legal weight is disingenuous.

Heck, footnotes created the entire concept of standard of review. Imagine what a little dicta might do.
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Old January 29, 2013, 08:22 PM   #40
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I happen to believe that eventually, after the questions of "bear outside the home", arbitrary magazine restrictions, and so-called AWs are protected, that there must be, in the law, SOME legal path to purchase and possess new NFA weapons.

Such ownership may come with heightened regulations, background checks, training, secure storage, etc. But I find it doubtful that, once the next several strategic battles are won in our favor, that a complete ban on new NFA items could survive.

I concede a certain optimistic view on that point.
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Old January 29, 2013, 08:24 PM   #41
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Perhaps I misunderstood these statements in your post:

"For example, the dicta creating the presumptively lawful restrictions on bans on felons, mentally ill, etc. There is no constitutional basis for those, they were not the issue before the court, and poof! SCOTUS created them out of thin air."

I read your statements to mean the referenced dicta created law despite the fact that it was dicta.

Dicta does not have and should not have legal weight.

I did not suggest that all judges/justices have either the ability or the intelligence and knowledge to ignore dicta referenced in written or oral argument. Such a statement might fairly be characterized as ignorant or "disingenuous."
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Last edited by lefteye; January 29, 2013 at 08:52 PM.
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Old January 29, 2013, 09:53 PM   #42
JimDandy
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Nobody knows the most recent official use of Posse Comitatus?

How about states that have it as statute law instead of common-law?
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Old January 30, 2013, 01:01 PM   #43
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Quote:
"For example, the dicta creating the presumptively lawful restrictions on bans on felons, mentally ill, etc. There is no constitutional basis for those, they were not the issue before the court, and poof! SCOTUS created them out of thin air."
The SCOTUS didn't "create" anything by that statement. The restrictions referred to already existed. ALL the SCOTUS statement said and meant was, "These other firearms laws are to be presumed lawful until such time as they are reviewed by a court. We're not here to discuss those other laws today, so we will not do so."
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Old January 30, 2013, 01:12 PM   #44
speedrrracer
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Quote:
I did not suggest that all judges/justices have either the ability or the intelligence and knowledge to ignore dicta referenced in written or oral argument. Such a statement might fairly be characterized as ignorant or "disingenuous."
You're right -- I was unclear. Did not mean to imply stare decisis vanished, and reading my post, I really botched the verbiage. I think we're in agreement on this.

Last edited by speedrrracer; January 30, 2013 at 01:24 PM.
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Old January 31, 2013, 09:34 AM   #45
JimDandy
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In another discussion someone pointed me to: http://images.military.com/pdf/second_ammendment.pdf

Which points to an event called "The Battle of Athens".

My Google-fu also leads to:
http://constitution.org/mil/tn/batathen_press.htm

which purports to have (though I haven't yet searched for independant confirmation of) a collection of newspaper pieces of the time- inlcuding one from an Eleanor Roosevelt. It does not specify whether this is the Eleanor Roosevelt however.
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