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November 19, 2008, 05:10 PM | #1 |
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Possible path to protection of military style arms
Can any of you legal-types check my reasoning here?
Once incorporation of 2A is established, shouldn't then go after the states which already have the AWB? If we can get a favorable 2A ruling at the state level, vis a vi so-called AWBs, mag bans, etc., won't we have tied the hands of congress in advance? IOW, Once it can no longer be argued that 2A doesn't apply to the states, then anything that the states are prohibited from enacting, will also be prohibited to the federal government, right? (since we already 'know' 2A applies to the feds). California would seem to be fertile ground on this matter. Their approved "safe" weapons list doesn't prevent police officers from carrying these off-list arms. If they are so unsafe, do we really want a cop running down the street after a criminal with one? And they are typically the arms in the most 'common use by the population for self defense.' (to paraphrase Scalia) Some other questions: Aren't executive orders by the president subject to constitutional review? In other words, let's say the skies parted and the 2A genie blinked, and suddenly, military style arms were deemed protected in all the land. Could an executive order which prevented the importation of arms and ammo for the citizenry stand? Should guns and ammo be subject to any special tax or levy beyond normal state sales tax? Aren't registration fees, CCW permit fees, gun licenses of all types (except hunting, perhaps) essentially placing a tax on what has been established as a fundamental right? I can't imagine a fee imposed on exercising any other right: a free-speech fee, freedom of religion tax, a licensing fee to guarantee that I'm secure in my house, person, effects. etc. Last edited by maestro pistolero; November 19, 2008 at 05:58 PM. |
November 19, 2008, 07:26 PM | #2 |
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2a incorporation
I think we are looking at about a two year battle for the incorporation issue to find it's way past SCOTUS. Then another 2-4 years for follow up suits. Assuming we can keep the present balance on the bench that long. a total of 6 years to get some improvement. Ya always got to remember what seems logical to us may not seem logical to a lawyer.
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November 19, 2008, 09:44 PM | #3 |
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Hello, first time poster to this forum.
I will try to answer a few of your questions: "Aren't executive orders by the president subject to constitutional review? In other words, let's say the skies parted and the 2A genie blinked, and suddenly, military style arms were deemed protected in all the land." I am not an authority on executive order, but generally a citizen directly affected by an act of government, in this case an executive order, can challenge it. The legal term for this is "standing". It cannot be challenged until an individual directly affected by it challenges it (there are exceptions to this). "Could an executive order which prevented the importation of arms and ammo for the citizenry stand?" I suspect the courts would look to why the order was issued, and if it substantially impairs the right to own guns in the home. If domestically made arms are reasonably available, I see no reason why not. "Should guns and ammo be subject to any special tax or levy beyond normal state sales tax?" I see no reason why reasonable taxes could not be placed on guns and ammo. I hope this doesn't happen, but I don't see why a state couldn't. "Aren't registration fees, CCW permit fees, gun licenses of all types (except hunting, perhaps) essentially placing a tax on what has been established as a fundamental right?" Yes, and? Unfortunately these rights are not absolute. "I can't imagine a fee imposed on exercising any other right: a free-speech fee," I remember in law school reading cases where people challenged fees imposed for holding rallies in public parks. So long as all groups are charged equally and reasonably, and all groups have access, then the government can impose a reasonable fee. To get my CCW permit in Florida, I must pay a fee. Does it cost them $65 to print it up? I doubt it. Is $65 reasonable, sure. "freedom of religion tax," The government establishes what is or is not a legitimate religion when it determines tax exempt status. So if you found your own religion, despite your heartfelt beliefs, if the IRS disagrees then your institution would not be a religious one for tax purposes. "a licensing fee to guarantee that I'm secure in my house, person, effects. etc." The town of Davie, Florida recently proposed (but rejected) the idea of charging someone in a traffic accident for the fire rescue expenses. I hear some states like Colorado want to charge hikers and mountain climbers that need extraordinary rescue. The point I am making is this: The government can always make reasonable restrictions on constitutional rights. But reasonableness is in the eye of the beholder. Therefore, in light of Heller, we must focus our efforts on convincing the public and representatives that the restrictions proposed by the anti-gun crowd are unreasonable. For example, suppose a state bans all semi-autos. Their reasoning being that they do not run afoul of Heller because revolvers are allowed. They argue that if the gun falls in the wrong hands, the slower rate of fire (by most people) and the lower ammunition capacity might save lives. How would you respond? Those are the types of questions we must now be preparing answers for. So I put the question back on you. Why would it be unreasonable to ban the AR-15. Yes, I know you may own a gun, so here's a revolver have a nice day. But why an AR-15? Or why more than 1 gun per house? In all honesty, at this very moment I'm not sure I have great convincing arguments to those questions. But the more the firearms community can develop good compelling answers to these questions, the better prepared we can be when these challenges do arise. I think they also highlight the importance of keeping the Supreme Court bench firearms friendly. Heller admits it leaves many questions unanswered. Great ideas can come from anywhere, not just lawyers. I hope this forum produces great ideas and arguments that may someday make their way into legal briefs. |
November 19, 2008, 10:22 PM | #4 | |||
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Why do I 'need' an AR-15?
From the Heller decision: Quote:
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And finally this: Quote:
Thank you, Justice Scalia |
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November 20, 2008, 12:13 AM | #5 | |
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November 20, 2008, 04:21 AM | #6 | |||
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On the danger scale, at the lowest possible end of that scale of military weapons that Miller says are protected, are small arms in common use. Category one today might include 9mm handguns (currently Beretta, Sig) with standard capacity, possibly .45 cal 1911 pistols (some are still in use), M16/M4 (w/30 round mags), M21 (M14 sniper rifle), Remington 700 sniper rifles (or whatever the military designation is), etc. The next category on the scale of dangerous and unusual might be SAWs (M249 squad automatic weapons), grenades, 40 mm grenade launchers, shoulder fired RPG's, Mortars, and probably one or two other things I'm not thinking of. My point is, if Miller says that it has to have a military purpose to be protected by 2A, and if there are no military arms less dangerous and unusual than the first category I devised, then how can military small arms NOT fall under 2A protection? Last edited by maestro pistolero; November 20, 2008 at 05:36 AM. |
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November 20, 2008, 11:09 AM | #7 | |
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Then, of course I assert that the militia that the 2A talks about exists no more but that is probably another thread. Heller and Gura talk about weapons in common use by civilians most military weapons are not being protected by the 2A. Heller expertly IMHO decoupled the Brady view that the right to keep and bear arms related only to militia service which we no longer have.
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November 20, 2008, 12:47 PM | #8 | |
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As far as the "taxes", there will always be cost to processing any sort of paperwork. This can be as costly as "they" deem it to be. It will be inherently a tax, but classified as a fee. There are "taxes" or"fees" associated with the other rights. To watch the news on cable TV, you pay for it. Networks pay taxes to broadcast thru the TV. It's free speech, but they have to pay to broadcast. In some states there are Township Taxes that pay for police and fire services...your security.
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When once a republic is corrupted, there is no possibility of remedying any of the growing evils but by removing the corruption and restoring its lost principles; every other correction is either useless or a new evil. - Thomas Jefferson Last edited by wpcexpert; November 20, 2008 at 05:54 PM. |
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November 20, 2008, 01:30 PM | #9 | ||
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http://www.ak-prepared.com/asdf/ But whether it is utilized or not, isn't it a defined body of citizens that, if largely theoretical in present practice, has a right to mobilize to act as either an auxiliary security force or as final bulwark against future tyranny? It's mention in the constitution seems to give it credibility as a concept. Last edited by maestro pistolero; November 20, 2008 at 01:55 PM. |
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November 20, 2008, 02:01 PM | #10 |
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It occurs to me the two hurdles that will be needed to overturn a new AWB are "reasonable" and "common usage". How to go about that is something I cannot answer. I do suspect the burden of proof will be on the appellate.
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November 20, 2008, 02:27 PM | #11 |
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The way to stop any AWB is not to speculate on the net with likeminded folks, but spend the time writing your congresscritter..or at least...do both.
WildshallipostmysuggestedletteragainAlaska ™ |
November 20, 2008, 03:00 PM | #12 | |
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November 20, 2008, 05:25 PM | #13 |
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Actually, as much as I hate to say it, writing congress critters appears to only work as a holding action. The counter attack seems to work better in the courts.
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November 20, 2008, 05:54 PM | #14 | |
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WildstandingAlaska ™ You want strategy? Then if there is an AWB, EVERY, I repeat EVERY owner of one should commence an action in Federal Court. That will keep em busy just with the consolidation of several hundred thousand lawsuits. |
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November 20, 2008, 05:54 PM | #15 | |
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If at least one state had a legitimate militia, and insisted that it's weapons be up to the task, i.e. equal to military small arms, wouldn't that be all the standing we should need? If it's already an individual right, the biggest question remaining would seem to be: a right to keep and bear what, where, and when.
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Last edited by maestro pistolero; November 20, 2008 at 06:00 PM. |
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November 20, 2008, 06:06 PM | #16 | |
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But beyond that it appears from what I read that the ASDF is a legit militia and I suspect that if they are using military weapons then those weapons are not in private hands but belong to the militia organization. I have been in other debates before on the military weapons in civilian hands issue and would agree that once a militia is called up by competent government authority and the members are under proper authority and control then sure, issue whatever weapon that would be needed. However, prior to that point there is no militia to speak of like what was in force in 1789. Now, the unorganized militia mentioned in statute is NOT what the ASDF appears to be. So, in summation, I do not think military small arms (which encompass a lot of deadly stuff) would fall under the 2A protection in private hands and separate from a true legal militia.
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November 30, 2008, 06:29 PM | #17 | |
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I'm afraid the "it's common" argument is the best one we've got for mean-looking semi-autos. I mean "common" as opposed to "dangerous and unusual" as mentioned in Heller. I think therefore that it's our Patriotic Duty to buy as many of the most politically incorrect guns as all of us can afford. |
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November 30, 2008, 09:00 PM | #18 | |
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November 30, 2008, 09:44 PM | #19 |
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Don't forget Alaska http://www.ak-prepared.com/asdf/
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November 30, 2008, 10:21 PM | #20 | |
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Miller came to the Supreme Court as a government appeal of the dismissal of NFA charges against Miller. In that dismissal, the District Court had declared the NFA unconstitional without any discussion or statement of rationale - just a conclusion. The Supreme Court decision in Miller was to reverse and remand. In essence the Supreme Court said no evidence was presented (since there was no District Court trial and no defense brief before the Supreme Court) to support the District Court's conclusion, so reinstate the charges against Miller and have a trial. Did the Supreme Court uphold the NFA? I think the Supreme Court reversed an unsupported conclusion that the NFA was unconstitutional and sent the case back to the District Court "for further proceedings." Did the Supreme Court say that the 2A did not protect Miller? I think that the Supreme Court said that such an argument had not been made ("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."). In my opinion, there was not much to Miller, but much was made out of it over the years because it was the only 2A case before the Supreme Court for the better part of a century |
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December 1, 2008, 12:25 AM | #21 |
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GC70 and anyone else;
Do you know of any other court cases that directly challenged the 1934 NFA and what the disposition was? I wonder if they were ruled out by the Miller decision? I will look as well. Here are some related cases to Miller that I found: Adams v. Williams (1972); (opinion by Rehnquist) The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id., at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia." Printz v. United States (1997) (opinion by Scalia) (Thomas, concurring) Our most recent treatment of the Second Amendment occurred in United States v. Miller, 307 U.S. 174 (1939), in which we reversed the District Court's invalidation of the National Firearms Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense."
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December 1, 2008, 03:10 AM | #22 | |
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I have a feeling that one reason post Heller that we may not see an AWB is because those who want it may know that it could blow up in their face. Kinda like the flip-side of the NRA failing to support Heller at first because of a plausible fear that it could be a disaster. |
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