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Old September 9, 2012, 04:03 PM   #33
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,546
Joining in on this subject, I think we need to go back to what the majority wrote in Heller about arms:

This holding [referring to United States v. Miller, 307 U. S.
174 (1939)] is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. JUSTICE STEVENS can say again and again that Miller did “not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” post, at 42–43, but the words of the opinion prove otherwise. The most JUSTICE STEVENS can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, No. 696, pp. 4–5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.
Reread that final (and underlined) sentence a few times. The above begs the question of just what arms are protected and what aren't. The Court, 2 pages later, answered that question:

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179.
While the question of actual military weaponry is still a question, up in the air, it is evident that the majority considered common firearms (in common use at the time) and held them as protected.

For the to enact another "assault weapons ban," it would be necessary to prove that such banned firearms were in fact "dangerous and unusual." This, neither the Legislature nor the Executive can do. For these very same firearms are, in fact, in common use at this time.

There is nothing reasonable about banning firearms that are 1) in common use and 2) are neither "dangerous and unusual." And no, some simple "finding" in a legislative act, does not make common firearms, dangerous or most especially, unusual. It is way past a time where such authority is invested in the legislature, via the Commerce Clause (see National Federation of Independent Business v. Sebelius)

Individual States authorities, are another matter. They will be harder to challenge (see Haynie et. al. v. Harris). While I admire Donald Kilmer, I believe this suit to be unwinnable at this time (i.e. before the right to carry is firmly established). Individual States are given greater latitude (the federalism concept) to manage their own spheres of influence.

FYI: Webleymkv? AK, AZ, ID, MT, SD, TN, UT and WY have all passed Firearms Freedom Acts. The Case/State you are thinking of is Montana: Montana Shooting Sports Associ, et al v. Eric Holder, Jr.. Currently on appeal to the 9th Circuit. Briefing was completed on 08-04-2011 but was stayed pending Nordyke. Case: 10-36094.

07/19/2012 65 Filed (ECF) Appellants Gary Marbut, Montana Shooting Sports Association and Second Amendment Foundation, Inc. Motion to lift stay. Date of service: 07/19/2012. [8255611] (QMR)

07/23/2012 66 Filed (ECF) notice of appearance of Matthew T. Cochenour for - Steve Bullock. Date of service: 07/23/2012. [8258456] (MTC)

07/23/2012 67 Added attorney Matthew T. Cochenour for Steve Bullock, in case 10-36094. [8258471] (MT)

07/26/2012 68 Notice of Oral Argument on OCTOBER 9th Calendar. Please return ACKNOWLEDGMENT OF HEARING NOTICE form to: SEATTLE Office. Please open attached documents to view details about your case. [8264266] (SB)

07/31/2012 69 Filed (ECF) Acknowledgment of hearing notice. Location: Seattle. Filed by Matthew T. Cochenour for - Steve Bullock and Steve Bullock for Amicus Curiae State of Montana. [8269951] (MTC)

08/01/2012 70 Filed (ECF) Acknowledgment of hearing notice. Location: Seattle. Filed by Attorney Lary Alan Rappaport for Amicus Curiae Brady Center to Prevent Gun Violence. [8271111] (LAR)

08/03/2012 71 Filed (ECF) Acknowledgment of hearing notice. Location: Seattle. Filed by Attorney Matthew T. Cochenour for - Steve Bullock. [8273880] (MTC)

08/03/2012 72 Filed (ECF) Acknowledgment of hearing notice. Location: Seattle. Filed by Attorney Mr. Nicholas Constantine Dranias, Esquire for Amici Curiae Goldwater Institute and Cato Institute. [8274158] (NCD)

08/03/2012 73 Filed (ECF) Appellants Gary Marbut, Montana Shooting Sports Association and Second Amendment Foundation, Inc. Unopposed Motion to continue hearing of case. Date of service: 08/03/2012. [8274254] (QMR)

08/09/2012 74 Filed clerk order (Deputy Clerk: KKW): The unopposed motion to reschedule oral argument is granted. The date and time will be set by separate order. [8280776] (KKW)
All the filings may be read here: Montana Lawsuit Updates
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