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Old October 22, 2013, 01:23 PM   #1
Tom Servo
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People v. William Martin Zondorak, Jr

The California Court of Appeal has ruled that the state's Assault Weapons Control Act (AWCA) does not violate the 2nd Amendment. They find that a semiautomatic AK-47 clone is "dangerous and unusual" under the Heller dicta, and that its possession in the home is not protected.

By their logic, since the Supreme Court said the right to keep and bear arms is "not absolute," rational basis is the appropriate level of scrutiny for the AWCA.

This is a state-level court, so it remains to be seen what impact it'll really have.
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Old October 22, 2013, 02:17 PM   #2
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I was just writing about this myself.

I find it very hard to believe that, with millions of semi automatic carbines in private hands in the US, an AK 47 can be considered and "not in common use" by any kind of scrutiny the Heller court might have considered. If we're talking about an XM 25 or a 20mm Lahti, I can see the dangerous and unusual conversation coming into play. But for a semi automatic intermediate cartridge rifle? I'm just not seeing it.

I also consider the Miller decision to be flawed in that the Short Barreled Shotgun was absolutely used for military purposes -- what do they think a trench gun was? Of course, that would also have to open up discussion for automatic weapons and destructive devices, and we just can't have that
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Old October 22, 2013, 02:24 PM   #3
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FWIW, the AK-47 in question was an illegal gun in the state of CA. It was not a legal AK-47.

IOW, yes, there are CA-legal AK-47's and this was not one of them.
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Old October 22, 2013, 03:08 PM   #4
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What happens when more and more guns become illegal?

That's the direction we seem to be headed.
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Old October 22, 2013, 03:25 PM   #5
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I read a somewhat tortured interpretation of the Miller desicion that stated that since the M-1897 trench gun was nearly as long as the M-1903 Springfield, that the NFA was kosher in regards to the short barrel shotgun prohibitions.

Oddly enough, no mention was made of the use of the BAR by the AEF in regards to Miller

This is frightening to me, because a state judiciary just ruled, in effect, that something looked scary.
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Old October 22, 2013, 04:11 PM   #6
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For those who may not be familiar, the Heller court interpreted Miller to mean the types of weapons that people would normally have at home for lawful purposes (that they would bring with them for militia service), not military weapons in any strict sense.

Nevertheless, it seems this court has overreached in declaring a semiautomatic rifle to be outside of the reach of the Second Amendment. There are conservatively tens of millions of these in private hands, and they share performance characteristics that are identical to perhaps a hundred million weapons that are in common use in law-abiding hands for a variety of lawful purposes.
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Old October 22, 2013, 04:23 PM   #7
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Additionally remember that neither Miller nor counsel appeared and was able to argue the short barreled shotgun was used in the military.
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Old October 22, 2013, 04:33 PM   #8
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I must say - that I pointed out that Heller wasn't a magic bullet so to speak for the RKBA and that Scalia wasn't the omnipotent, omniscient savior of the RKBA in his decision's prose.

IIRC - someone, long gone, posted he was a wily old bird and our champion. Given what I pointed out is being used against us - now who is correct?

Will the SCOTUS take this up and FREE THE AK - don't hold your breath.

It also goes back to the gun world view (by apologists) that such guns are nice guns, sporting, semi (and not evil machine guns) and intermediate cartridge users. They cannot see that some anti folks do see them as dangerous weapons of war and are really designed primarily for killing.

Now the defense for owning such is that the 2nd Amend. should be a guarantee for SD and defense against tyranny. Thus, the guns should be available because of this primary purpose. Stop trying to make them nice!!

It was 5 to 4 - easily could have gone the other way and you would be stuck with your deer rifle and Biden special, if that.
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Old October 22, 2013, 04:44 PM   #9
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I just don't see this standing unless higher courts decides to apply the most lenient review they possibly can...or it isn't appealed.
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Old October 22, 2013, 05:59 PM   #10
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Quote:
I just don't see this standing unless higher courts decides to apply the most lenient review they possibly can
Actually, it doesn't get any more lenient than rational basis, and given Alito's opinion in McDonald, that's off the table. The 7th Circuit has implemented an "intermediate" standard.

Quote:
Will the SCOTUS take this up and FREE THE AK - don't hold your breath.
Thing is, if they take a challenge on something like this, I can't imagine how they'd say, "we didn't really mean what we said in Heller." Scalia certainly made some compromises, but the Court isn't quick to overturn its own rulings.

As such, the AK-47 clones are ubiquitous and pretty much "in common use." They're not uniquely dangerous, since they're not used in many shootings. The vast majority of shootings in this country involve handguns, and the Court rescinded a ban on those. As such, I can't really see a line of logic in which they'd uphold a ban on somebody's pet WASR/10.
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Old October 22, 2013, 06:06 PM   #11
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It'll head to the CA Supreme Court next. I wouldn't be suprised if they uphold the ruling. Oddly, 6 out of the 7 court members are GOP appointees(although RINO governors).
The opinion gave almost no explanation why an AK is dangerous or unusual other than trying to make a parallel to machine guns and sawed off shotguns. I'm hoping Wilson v. State in IL gets decided too. Would be nice to have a split right away.
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Old October 22, 2013, 07:56 PM   #12
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Exactly, Tom. I don't think SCOTUS could say the 2nd only deserves "Rational Basis." At least with a straight face.

Then again, I wouldn't have thought a farmer growing crops for personal use was "interstate commerce," or that fining people for not buying healthcare could be a tax that isn't a tax, but is OK because congress can tax!
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Old October 22, 2013, 08:00 PM   #13
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I don't think SCOTUS could say the 2nd only deserves "Rational Basis."
Actually, they specifically ruled rational basis and "interest balancing" out in Heller.
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Old October 22, 2013, 09:23 PM   #14
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Quote:
Originally Posted by Glenn E. Meyer
I must say - that I pointed out that Heller wasn't a magic bullet so to speak for the RKBA and that Scalia wasn't the omnipotent, omniscient savior of the RKBA in his decision's prose.

IIRC - someone, long gone, posted he was a wily old bird and our champion. Given what I pointed out is being used against us - now who is correct?
I don't recall whether or not I was in lock step with you over Heller, but I certainly wasn't pleased. I still have to console myself by telling myself that Scalia had to write what he did to keep Kennedy in the majority. Nonetheless, Scalia sold us down the river. All that garbage about the RKBA being subject to "reasonable" regulation is, in fact, garbage. The language of the Second Amendment is crystal clear: "Shall not be infringed." It doesn't get much simpler than that.

How you get from that to "reasonable regulations [i.e. infringements] are okay, but we don't want to say right now what's reasonable" is a mystery to me.
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Old October 23, 2013, 11:15 AM   #15
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No lawyer but the SCOTUS is well known for giving decisions which both sides think is a victory and then turns out to be mush.

I read the current debate on affirmative action in colleges (don't discuss it, please) but it is almost the same. The standards and the rationale from the courts have left schools puzzling what it meant.

I've read a recent interview of Scalia -and let's say ...

Most of the justices are out of touch with the general populace of the country. They live a sheltered life and went to the same schools. So they shoot a birdie or hate guns - all out of touch.
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Old October 24, 2013, 03:02 AM   #16
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It should be a major case if it is granted cert. On the one hand, there is no way a semi-automatic detachable magazine intermediate caliber rifle isn't in common use. On the other 3 members of SCOTUS (probably 4) are of the opinion that guns can be banned completely from civilian ownership.

So the right is unlikely to be expanded beyond whatever the 5th Justice feels most comfortable with. My guess is that SCOTUS ignores the case for some time. If they wouldn't hear Woolard, I can't imagine they'll want to hear this.
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Old October 24, 2013, 12:45 PM   #17
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Additionally remember that neither Miller nor counsel appeared and was able to argue the short barreled shotgun was used in the military.
Can't say if its true, but I have heard the High Court used the phrase "since no evidence has been presented to this court"...(or something similar) to justify their decision in Miller.

In effect, they didn't say short barrel shotguns had no militia use (and therefore not protected by 2nd Amendment arguments), what whey said was "we haven't been shown any evidence" and so let the 1934 NFA stand.

Solid, legal thinking, but very poor ethics. IMHO.
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Old October 24, 2013, 12:55 PM   #18
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Solid, legal thinking, but very poor ethics. IMHO.
The Heller court thought it necessary to interpret Miller . . . "We therefore read Miller to say . . ." in their decision about what sort of arms are protected. Common use for lawful purposes was about the only thing that came of it. That's unclear enough, but as we see, and shall continue to see, the dangerous and unusual exception is also lacking definition and opening the door for abuse.
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Old October 24, 2013, 01:16 PM   #19
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Can't say if its true, but I have heard the High Court used the phrase "since no evidence has been presented to this court"...(or something similar) to justify their decision in Miller.
It is. The exact wording was:

Quote:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.
Quote:
Solid, legal thinking, but very poor ethics.
There were a lot of things wrong with Miller, not the least of which was the well-known apathy and sloppiness of Justice McReynolds. Had another Justice have been drafted to write the opinion, history might have been very different for us.
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Old October 24, 2013, 01:17 PM   #20
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I've always read that the Justice who wrote the Miller decision was a lazy judge who was behind and just wrote something down and called it good.

If "Unintended Consequences" is to believe, Miller was dead before the case it to the Supreme Court and his lawyer was unable to afford the travel costs to D.C. nor the appropriate parchment and printing to file before the Court.

Wikipedia supports Miller being dead.
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Old October 24, 2013, 02:13 PM   #21
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I've always read that the Justice who wrote the Miller decision was a lazy judge who was behind and just wrote something down and called it good.
Pretty much. He was also an inveterate racist who wouldn't have considered that label an insult.

Miller was in fact deceased before arguments were made. There's a good history of the whole shebang here. Bear in mind that Ross got a bit...creative with his history in Unintended Consequences.
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Old October 24, 2013, 03:41 PM   #22
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In effect, they didn't say short barrel shotguns had no militia use (and therefore not protected by 2nd Amendment arguments), what whey said was "we haven't been shown any evidence" and so let the 1934 NFA stand.
The SCOTUS really didn't even quite do that. They remanded the issue back to the lower court.

IMHO a more thorough summary would read like this:

"The militia is within the purview of the federal government. A short-barreled shotgun might or might not be suitable for militia use; we're not sure, since we haven't seen any evidence either way. Since the militia is discussed in the 2A, perhaps the right to possess this gun has something to do with that, or maybe not. At any rate, the militia argument cannot be summarily dismissed. Discuss."

That discussion never occurred, because Jack Miller was killed and Frank Layton plead out.

IMHO the sole thing that's fairly certain about the decision is that it doesn't invalidate the NFA outright. According to what I've read about the case, McReynolds was under political pressure not to do so, and he didn't. The trouble is that, other than the fact that it doesn't throw out the NFA, it's just about impossible to discern anything conclusive about the decision. (It's also interesting to note that almost half of the decision consists of quotes from earlier literature about the militia, some of which seemingly has little relation to the topic at hand.)
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Old October 24, 2013, 04:24 PM   #23
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One of the SSRN papers that has a comprehensive history of miller, would be: The Peculiar Story of United States vs. Miller by Brian L. Frye :: SSRN

A good read of that particular story.
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