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Old April 9, 2013, 10:46 PM   #51
gc70
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Quote:
Originally Posted by Al Norris
Dakota, you're correct, of course. Yet at the same time, a bit of veering can and should occur if we are to fully understand what is protected by the right, in its plain language and understand what is protected by the right as opined by the Supreme Court.

They are not always the same thing.
I have no doubt that the intention at the adoption of the Second Amendment was that it would be as absolute as its plain language suggests. The Second Amendment categorically denied the federal government any power to enter the field of the RKBA. That prohibition was reasonable and workable within the framework of federalism because the power denied the federal government was retained by the states.

As Aguila Blanca previously noted, one of the core reasons for any government is to maintain order in society and protect the members of society. Even in Heller, which was strictly federal in character, the Supreme Court tempered the otherwise absolute nature of the Second Amendment to accommodate police powers in the District of Columbia. And McDonald did not create a parallel to the Second Amendment's prohibition on federal powers by denying the states any power in the area of the RKBA. The simple but powerful language originally intended to unequivocally allocate power between the federal government and the states must now admit the tension between a strongly stated right guaranteed nationally and the necessity for government -at some level- to maintain order in society.

With that backdrop, does Heller provide protection against another AWB? I believe that it would protect against some AWB provisions, but possibly not others.

Feinstein's new AWB proposal originally included a provision to make certain firearms and magazines non-transferable and effectively contraband to eventually be forfeited. Such a law would be a substantial and direct affront to the right to keep (and dispose of) arms and would be unconstitutional.

Magazine capacity limits would implicate the Second Amendment because they would impair the utility and functionality of firearms; three 10-round magazines really are not the equivalent of a 30-round magazine. While I doubt the government's ability to prove a strong enough interest to justify restrictions, who knows which way a future Supreme Court might lean.

A ban on certain firearms gives me the most pause for reflection. I wonder whether the courts might conclude that restrictions on cosmetic features, while functionally equivalent firearms were available, did not intrude on the Second Amendment and were solely a Commerce Clause question.
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Old April 10, 2013, 01:05 AM   #52
maestro pistolero
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I wonder whether the courts might conclude that restrictions on cosmetic features . . .
I don't believe that most of what are often described by our side as cosmetic features are cosmetic in the least. Pistol grips, flash hiders, and telescoping stocks all serve important roles in the functionality of a weapon. The facts have been twisted and convoluted enough to where the ability to better control a weapon is actually argued to be a bad thing.

We shouldn't euphemize these features one bit. Such performance characteristics are intrinsic to the design of the weapon, and essential for the weapon to perform as intended. They don't make it more lethal. On the contrary, by increasing the ability to control the weapon, they make it less indiscriminate.

Last edited by maestro pistolero; April 10, 2013 at 01:10 AM.
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Old April 10, 2013, 02:26 AM   #53
gc70
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I don't believe that most of what are often described by our side as cosmetic features are cosmetic in the least.
There could be dangers in both directions. While banning cosmetic features might not be a 2A intrusion, banning performance-enhancing features would more likely be an intrusion, but might also add weight to the argument for the government's interest justifying a ban.
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Old April 10, 2013, 11:43 PM   #54
LogicMan
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There have been two challenges to assault weapons bans thus far I believe, one in California and the other in Washington, D.C. In the California one, the Court upheld the ban and mentioned about how the ban does not infringe on hunters and sport shooters, which showed that they had a total lack of understanding of the Second Amendment. In the Washington, D.C. upholding, the Court agreed that so-called "assault weapons" are very much weapons in common usage, but they determined, based on a study conducted by the Brady Campaign, that semiautomatic weapons are so dangerous that they can still be outlawed. This is odd, considering the vast majority of all handguns are either semiautomatic or functionally identical.

I wonder how the press would have reacted if they had shot down the law based on going by a study that had been conducted by a gun rights group. We'd have never heard the end of it.

Even D.C. v Heller was 9-0 on whether the Second Amendment was written to protect an individual right to keep and bear arms. The 5-4 split was that the four dissenting justices said that while it was originally written to protect an individual right, that was the 18th century and what applied as a right in the 18th century has no place in the 21st century.
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Old April 11, 2013, 06:24 AM   #55
mayosligo
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Does Heller provide protection from another AWB?

The 5-4 split was that the four dissenting justices said that while it was originally written to protect an individual right, that was the 18th century and what applied as a right in the 18th century has no place in the 21st century.[/QUOTE]

I would like I see their take on the smartphone and the first amendment then.
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Old April 11, 2013, 06:32 AM   #56
Pilot
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Quote:
The 5-4 split was that the four dissenting justices said that while it was originally written to protect an individual right, that was the 18th century and what applied as a right in the 18th century has no place in the 21st century.
That is for the Legislature, and States to decide by a Constitutional Amendment, not the Supreme Court. It is amazing these people get away with this crap. They are clueless.
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