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Old June 4, 2021, 10:58 PM   #1
KyJim
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California "Assault Weapon" ban struck down - for now

U.S. District Judge Roger T. Benitez of the Southern District of California has struck down California's "assault weapons" ban. The decision can be found here: https://d3n8a8pro7vhmx.cloudfront.ne...pdf?1622850515.

The decision is 94 pages long and I have not had a chance to read anything but the concluding two paragraphs, which order injunctive relief. State authorities will undoubtedly try to obtain a stay of the injunction from either the District Court or the 9th Circuit Court of Appeals.
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Old June 4, 2021, 11:01 PM   #2
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CA assaults' weapons ban Miller vs Bercerra UPDATE

Quote:
JUDGMENT. Following a bench trial and the Courts Decision in this matter dated June 4, 2021, IT IS HEREBY ORDERED AND ADJUDGED that: 1. Judgment is entered in favor of Plaintiffs. 2. California Penal Code §§ 30515(a)(1) through (8) (defining an assault weapon by prohibited features), 30800 (deeming certain assault weapons a public nuisance), 30915 (regulating assault weapons obtained by bequest or inheritance), 30925 (restricting importation of assault weapons by new residents), 30945 (restricting use of registered assault weapons), and 30950 (prohibiting possession of assault weapons by minors), and the penalty provisions §§ 30600, 30605 and 30800 as applied to assault weapons defined in Code §§ 30515(a)(1) through (8) are hereby declared unconstitutional and shall be enjoined. Defendant Attorney General Rob Bonta, and his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with him, and those duly sworn state peace officers and federal law enforcement officers who gain knowledge of this injunction order or know of the existence of this injunction order, are enjoined from implementing or enforcing the California Penal Code §§ 30515(a)(1) through (8) (defining an assault weapon by prohibited features), 30800 (deeming those assault weapons a public nuisance), 30915 (regulating those assault weapons obtained by bequest or inheritance), 30925 (restricting importation of those assault weapons by new residents), 30945 (restricting use of those registered assault weapons), and 30950 (prohibiting possession of those assault weapons by minors), and the penalty provisions §§ 30600, 30605 and 30800 as applied to assault weapons defined in Code §§ 30515(a)(1) through (8). 3. Defendant Attorney General Rob Bonta shall provide forthwith, by personal service or otherwise, actual notice of this order to all law enforcement personnel who are responsible for implementing or enforcing the enjoined statute. Within 10 days, the government shall file a declaration establishing proof of such notice. Alternatively, the parties may file a stipulation. Signed by Judge Roger T. Benitez on 6/4/2021.(mme) (Entered: 06/04/2021)
https://storage.courtlistener.com/re...2089.116.0.pdf

The judge has stayed his own order for 30 days to allow Bercerra ( who is now Rob Bonta )to appeal to the 9th where it is expected to be over turned . Not sure but this might be the case the SCOTUS finally takes up . Regardless of who wins on appeal I'm sure there will be cert sought for at the SCOTUS .
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Old June 4, 2021, 11:39 PM   #3
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Duplicate threads merged.
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Old June 5, 2021, 12:10 AM   #4
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I've been reading through the ruling and all I can say is FINALLY a judge that actually knows firearms and saying what we've all known as true . Banning whole classes of guns based on there looks is absurd . I've actually sat in on one of the hearings here in San Diego and was impressed with the knowledge the judge has on firearms in general . Also love the part about accuracy and how the state thinks if a feature makes a gun more accurate it's more dangerous because a criminal can use it more accurately . The judge points out a more accurate rifle is safer in the hands of a civilian in self defense and by claiming a device that makes a firearm more accurate for criminals is more dangerous to the public is absurd because with that logic no manufacture can make there firearms better or more accurate for fear they can be banned to promote public safety .

The judge appears to go point by point destroying ALL the anti's arguments . I've not read the whole thing but the last time I saw a ruling written this well in are favor was the Paruita conceal carry case . The 9th circuit en-banc panel in that case pretty much ignored everything the 3 judge panel wrote and over turned it , just like what's going to happen here .

It is however nice to see more and more judges writing opinions like this in our favor . It gives other judges that might be on the fence some guidance . One thing all this COVID crap has shown me is there are A LOT more followers then there are leaders in this country . I've been amazed how it only takes one or two credible voices to go against the flow to allow others who other wise would sit in silence to get up and follow .

This judge is hearing several 2nd amendment cases right now and I look forward to hearing more of his rulings if they are anything like this .

Quote:
Originally Posted by Judge Roger T. Benitez
The Second Amendment “elevates above all other interests the right of lawabiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S., at 635. The Supreme Court clearly holds that the Second Amendment protects guns commonly owned by law-abiding citizens for lawful purposes. At the same time, “the Second Amendment confers an individual right to keep and bear arms . . . that ‘have some reasonable relationship to the preservation or efficiency of a well regulated militia.’” Id. at 622. And although the Supreme Court cautioned that the Second Amendment does not guarantee a right to keep and carry “any weapon whatsoever in any manner whatsoever and for whatever purpose,” Heller, 554 U.S., at 626, lower courts have often cited this proviso about extreme cases to justify gun laws in average contexts. There is no evidence that the Supreme Court intended that language to be a license to avoid its common sense holding in average contexts. Unfortunately, Heller’s acknowledgement of exceptions for gun laws at the extreme is in danger of swallowing Heller’s rule for the average case.

This case is not about extraordinary weapons lying at the outer limits of Second Amendment protection. The banned “assault weapons” are not bazookas, howitzers, or machineguns. Those arms are dangerous and solely useful for military purposes. Instead, the firearms deemed “assault weapons” are fairly ordinary, popular, modern rifles. This is an average case about average guns used in average ways for average purposes. One is to be forgiven if one is persuaded by news media and others that the nation
is awash with murderous AR-15 assault rifles. The facts, however, do not support this
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Old June 5, 2021, 01:02 AM   #5
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Another quote from the judge ( emphasis mine )

Quote:
In the terrible mass shooting context, which fortunately is a rare event, reducing the number of innocent victims is the State’s goal, although it is not at all clear that a less accurate rifle would reduce the number of victims. A less accurate rifle in the hands of a mass shooter may very well result in different victims, but not necessarily less victims. On the other hand, in the self-defense context, which seems to be more common, taking accurate shots at attackers is vitally important for the innocent victim. While the state ought to protect its residents against victimization by a mass shooter, it ought also to protect its residents against victimization by home-invading criminals. But little is found in the Attorney General’s court filings reflecting a goal of preventing violence perpetrated against law-abiding citizens in their homes. Instead, the State’s litigation stance is more like the view recently expressed by a police chief in Oakland, California: we do not want victims to arm themselves; we want them to be good witnesses.18 Of course, a dead victim is a lousy witness.
OH SNAP ! I feel like the judge is channeling his inner Thomas lol
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Old June 5, 2021, 10:31 AM   #6
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Originally Posted by Metal god
OH SNAP ! I feel like the judge is channeling his inner Thomas lol
Actually, at one point the judge quotes Thomas from his dissent over the SCOTUS rejecting a 2A case.

I also have not read through the entire decision, but I agree that the judge seems to have methodically dismantled all the anti-gunners' arguments.It's probably a given that the AG will appeal. What will be interesting will be to see what the Ninth Circuit will do with it. If they want to overturn this, they're going to have to work at it.
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Old June 5, 2021, 01:15 PM   #7
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I saw a thing on CNN about Gavin Newsom saying the Judge's decision is "a slap in the face".....

And the CNN report mentioned how the Judge comparted the AR-15 to a Swiss Army Knife. The CNN report contained enough context that, to me, made it obvious what the Judge meant. The AR-15, like the Swiss Army Knife has multiple uses and is common everywhere...

Of course, all the anti's could see, and comment on was how ridiculous it was to compare a gun to a swiss army knife....these folks simply don't seem to comprehend anything outside their predetermined worldview, even when its presented in plain English. They want what they want, and anything less than that is a personal insult, or at least they act as if it were...

its actually childish...
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Old June 5, 2021, 01:32 PM   #8
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I'm thinking that Heller is pretty plain on weapons in common use for lawful purposes being protected by the 2A. With Roberts outvoted maybe SCOTUS will make it unconstitutional to ban modern sporting rifles. Oh, and also, making all states "shall issue" for CCW?
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Old June 5, 2021, 02:05 PM   #9
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The shall issue problem isn’t part of this case. Hi-cap mags are discussed, not all in the positive sense for us.
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Old June 5, 2021, 02:27 PM   #10
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Same judge already ruled on high cap mags in are favor . Resulting in freedom week where Residents of California were able to buy standard capacity magazines for one week which I did for every firearm I owned a takes them . The ninth circuit quickly granted stay on that case until appeal .

He’s also the judge in the ammo background check lawsuit here in CA .
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Old June 5, 2021, 03:45 PM   #11
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Quote:
What will be interesting will be to see what the Ninth Circuit will do with it. If they want to overturn this, they're going to have to work at it.
What the 9th does at times is grant a stay and vacate the ruling . This stops other courts from using it as precedent and allows them to ignore it later . I fully expect the 9th to do something similar here .

Another part of the ruling I like is how the judge points out that "maybe" the AWB of 1989 and subsequent amendments up until the 2008 Heller decision and 2010 MacDonald ruling " may" have been lawful . However any new laws after 2008 need to pass the new standard of those two cases . You can't just simply keep amending a law that was past years before the Heller and McDonald cases without applying there precedent to them .

He also points out that there does not appear to be anything in those previous AWB"s that even remotely address self defense and the right there of . All those laws appear to be directed at criminals having these firearms . Now that Heller and McDonald have clearly established the right to own a firearm for ones individual defense . That now must be considered in evaluating an AWB especially if the firearms in question are in common use today .
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Old June 6, 2021, 11:27 AM   #12
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And here's the predictable pushback to the ruling:

The LA Times calling it a "Nutty Ruling"---
https://www.msn.com/en-us/news/opini...?ocid=msedgdhp

CNN reporting on the ruling---
https://www.msn.com/en-us/news/us/ca...?ocid=msedgntp

The CNN article includes the judge's quote criticizing the media:
Quote:
"One is to be forgiven if one is persuaded by news media and others that the nation is awash with murderous AR-15 assault rifles. The facts, however, do not support this hyperbole, and facts matter."
But then they go on to do exactly what the judge criticized them for by bringing emotional filled statements from families of folk killed by "assault weapons" calling the judge a liar and saying he is just parroting the language of the gun lobby in his ruling.

I find it VERY interesting that more people are killed by hands and feet then by ALL rifles, including "assault weapons".

https://www.statista.com/statistics/...y-weapon-used/

2019 Stats
hands and feet=600
rifles of all types=364
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Old June 6, 2021, 12:04 PM   #13
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Time for an AFB (Assault Foot Ban).
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Old June 6, 2021, 04:52 PM   #14
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And one more publication reporting on the ruling, "Law and Crime". I am unfamiliar with the site but the comments to the story (there's 28 now) are overwhelmingly against the ruling and don't demonstrate much knowledge about firearms and their capabilities.

https://lawandcrime.com/second-amend...#disqus_thread

The "Law and Crime" web site was one of the headline sites on MSN.COM.
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Old June 6, 2021, 05:04 PM   #15
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I've been a big supporter of all those type of statistics .

I've been posting this for years , although out of date . Yearly it appears the percentages stay about the same even if the numbers change . Plus , those of us that like picture books this is much easier to read lol



But wait there's more .

The anti's claim banning guns is about saving lives . Ok lets be generous and say assault rifles are used in 500 murders a years so banning them could save 500 lives a year . That's a statistic not to be taken lightly especially if you're a victim or a family member is .

I believe there was a study in 2017 showing there are 10k+ fatalities do to drunk driving and an untold number of injuries ( hundreds of thousands ) . Yet we never here these same people calming they want to save those lives , at least not in the numbers or as loudly as the anti gun crowd . Banning the consumption of alcohol would save thousands of lives every year and yet we here crickets from the crowd that wants to save lives . I've even heard the argument from the anti's that because of the 21st amendment you can't ban alcohol I MEAN Well I guess irony has lost all meaning lol

What about the 100k deaths a year do to malpractice or simple mistakes in the medical field . I'll add that many believe that number is more like 300k+ a year . where's the the outrage on main stream media and in congress about all these deaths ? Do these people not matter as much as people killed by someone using a semi auto rifle with a barrel shroud ? I guess it's true all lives don't matter , only the ones that fit your narrative do .

Back to the ruling , I'm hearing some rumbling about his wording through out the ruling . Using the example of the swiss army knife seems to be a big one . Some are saying the judge just used the pro gun groups talking points for his ruling .

That got me thinking about that in general and I found it an interesting topic between my ears . At first I was concerned and still am a little that parts of his ruling can be construed as political . However is it political to say what you believe to be true and accurate if politicians have said the same thing in the past ? I feel we ( the pro gun crowd ) have been fighting these things for so long that yes we do have points we always try to make but I don't see them as "talking points" but rather "facts" we keep trying to get across .

Does "A" judge in any ruling have an obligation to come up with a completely different explanation and wording then the group he/she is ruling in favor of to show why she/he ruled in there favor ? If a debate has been going on for 30+ years and finally ruled on by a judge how likely is it any judge's ruling in favor for whom ever is not going to say things that directly coincide with the plaintiffs arguments and what there supporters have been saying for that 30 years leading up to the decision ?

Has anyone seen any good arguments against the ruling . Meaning none political arguments based on what the judge actually wrote as his bases for the ruling . I've heard how absurd the ruling is and how the judge is just carrying the weight for the gun lobby but nothing intelligently argued as to why he is wrong . I can't wait to see the written appeal and how they come up with why he's wrong but have any of you seen any good arguments against that make you go hmm maybe he didn't get it all right ? Links ??? I'd like to read some good anti opinions because right now I know I'm in a echo chamber .
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Old June 6, 2021, 06:34 PM   #16
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Quote:
Originally Posted by Metal god
Has anyone seen any good arguments against the ruling . Meaning none political arguments based on what the judge actually wrote as his bases for the ruling . I've heard how absurd the ruling is and how the judge is just carrying the weight for the gun lobby but nothing intelligently argued as to why he is wrong .
I'm still only about halfway through the ruling, but that's because it's a thorough and well considered opinion. So far, the commenters and scribes who try to dismiss it haven't made any attempt to attack it on legal grounds, because (a) they can't -- it seems to be pretty solid; and (b) that would take work, and they aren't interested in doing the work needed to research and understand constitutional law. They are only interested in their 15 seconds of fame in the current sound bite or Twitter post.
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Old June 6, 2021, 06:58 PM   #17
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Some quotable quotes, to wit:

Quote:
... although the Supreme Court cautioned that the Second Amendment does not guarantee a right to keep and carry “any weapon whatsoever in any manner whatsoever and for whatever purpose,” Heller, 554 U.S., at 626, lower courts have often cited this proviso about extreme cases to justify gun laws in average contexts. There is no evidence that the Supreme Court intended that language to be a license to avoid its common sense holding in average contexts. Unfortunately, Heller’s acknowledgement of exceptions for gun laws at the extreme is in danger of swallowing Heller’s rule for the average case.
All too true. Too many courts are trying to argue that "assault weapons" are unusually dangerous without even trying to understand what an unusually dangerous weapon is. They want to make it so we can't have them, and then 20/30/50 years in the future they'll be able to argue that they aren't in common use.

Quote:
[b]This case is not about extraordinary weapons lying at the outer limits of Second Amendment protection.[b] The banned “assault weapons” are not bazookas, howitzers, or machineguns. Those arms are dangerous and solely useful for military purposes. Instead, the firearms deemed “assault weapons” are fairly ordinary, popular, modern rifles. This is an average case about average guns used in average ways for average purposes.
Quote:
Federal Bureau of Investigation murder statistics do not track assault rifles, but they do show that killing by knife attack is far more common than murder by any kind of rifle. In California, murder by knife occurs seven times more often than murder by rifle. For example, according to F.B.I. statistics for 2019, California saw 252 people murdered with a knife, while 34 people were killed with some type of rifle – not necessarily an AR-15. A Californian is three times more likely to be murdered by an attacker’s bare hands, fists, or feet, than by his rifle.
Quote:
AWCA was a policy choice unencumbered by constitutional considerations.
Quote:
Concerning AWCA’s prohibited-features amendment, the Attorney General has not identified any relevant legislative history or legislative findings about the societal dangers of pistol grips, flash hiders, telescoping stocks, flare launchers or barrel shrouds. The State’s legislative information website lists several committee reports leading up to the signing of Senate Bill 23 by California Governor Gray Davis on July 19, 1999. See leginfo.legislature.ca.gov. But there are no studies of criminal gun usage recounted.
Quote:
Although the Attorney General sees it differently, the Supreme Court also recognizes that the Second Amendment guarantee includes a right to keep and bear firearms that have “some reasonable relationship to the preservation or efficiency of a well-regulated militia.” Miller, 307 U.S., at 178. Miller implies that a weapon that is commonly owned and that is useful for the common defense for a militia member is also protected by the Second Amendment.
Indeed, one of the attractive factors regarding an AR-15 is that, in the unlikely event of a Red Dawn kind of situation, citizens with their AR-15s could join up with ative military units armed with M16s and M4s and share both ammunition and magazines.

Quote:
The California modern rifle ban is not excused from judicial scrutiny on either ground. First, a complete ban on modern rifles is not one of the presumptively lawful measures identified in Heller. Second, a ban on modern rifles has no historical pedigree. Prior to the 1990’s, there was no national history of banning weapons because they were equipped with furniture like pistol grips, collapsible stocks, flash hiders, flare launchers, or barrel shrouds.
Quote:
In fact, the Heller opinion broadly cautioned courts deciding whether an analogous regulation is long-standing saying that, “we would not stake our interpretation of the Second Amendment upon a single law, in effect in a single city, that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense of the home.” Heller, 554 U.S., at 632.
Quote:
While the Second Amendment intermediate scrutiny fit test is an overly relaxed standard, it is not a free pass, as other courts have pointed out. When subjected to intermediate scrutiny, “the [State] is not thereby ‘insulated from meaningful judicial review.’” Heller II, 670 F.3d at 1259 (quoting Turner Broad. Sys., Inc. v. F.C.C. (Turner I), 512 U.S. 622, 666 (1994)). Even under intermediate scrutiny, a court must determine whether the legislature has based its conclusions upon substantial evidence. Turner Broad. Sys., Inc. v. F.C.C. (Turner II), 520 U.S. 180, 196 (1997). The government “must do more than just simply posit the existence of the diseases sought to be cured,” and “demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Turner I, 512 U.S., at 664.
Quote:
No case has held that intermediate scrutiny permits a state to impinge on the Second Amendment right by continuing to employ a known failed experiment.
Quote:
The Attorney General stresses the notion that modern rifles are disproportionally used in crime. Defs. Memo at 18. It seems like it could be true, but it is not supported by the evidence. More importantly, disproportionality is not a constitutional test. Heller and McDonald demonstrate the opposite is true. The Court struck down bans on handguns in the District of Columbia and Chicago at a time when handguns were disproportionately used in crime. Heller, 554 U.S., at 697-98

I could keep going, but I'd wind up quoting 2/3 of the decision. If you haven't started reading it yet -- I recommend doing so. I sent it to an acquaintance who is a gun rights attorney; her reaction was, "WOW!"
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Old June 6, 2021, 11:26 PM   #18
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Makes me curious how long they will try to counter the Judge's ruling before turning to trying to discredit the Judge as a person and thereby "taint" or discredit his rulings.
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Old June 7, 2021, 12:55 AM   #19
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Well they have to be careful on that . I believe he’s a Cuban immigrant , I hear lately it’s bad form to challenge any immigrant regardless of reasoning . They are going to need to thread a very tight needle unless some egregious allegation comes out like with Cavanagh .
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Old June 7, 2021, 02:10 AM   #20
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Quote:
Originally Posted by 44 AMP
Makes me curious how long they will try to counter the Judge's ruling before turning to trying to discredit the Judge as a person and thereby "taint" or discredit his rulings.
Quote:
Originally Posted by Metal god
Well they have to be careful on that . I believe he’s a Cuban immigrant , I hear lately it’s bad form to challenge any immigrant regardless of reasoning . They are going to need to thread a very tight needle unless some egregious allegation comes out like with Cavanagh .
It doesn't make any difference. The media can try to portray him as a kook or as a mouthpiece for the pro-gun lobby (whatever and whoever that is), but the fact remains that he IS a federal judge, and he DID issue a ruling. Whatever the media wants to say about him, the ruling can only be attacked by addressing the legal points he made in it.

I have now read pretty much all of it at least once, and my non-lawyer, layman's opinion is that he didn't just pull the decision out of thin air, he documented his process pretty thoroughly. In particularly, he stressed both Heller and McDonald, and he directly addressed precedent from the Ninth Circuit in his discussion of level of scrutiny.

I think it's going to be interesting.
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Old June 7, 2021, 07:42 AM   #21
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Originally Posted by DaleA View Post
And here's the predictable pushback to the ruling:

The LA Times calling it a "Nutty Ruling"---
https://www.msn.com/en-us/news/opini...?ocid=msedgdhp . . . . .
In case any of you missed it, this isn't really "the LA Times" calling it "Nutty." It's Erwin Chemerinsky. While I (obviously) don't agree with his position on this issue, it would be a mistake to underestimate his knowledge of US Constitutional law. He wrote the hornbook I used in law school, and is truly what I would call a scholar of Constitutional law.
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Old June 7, 2021, 09:59 AM   #22
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Spats , I'm a little surprised you jumped on board Erwin Chemerinsky's band wagon so soon using "that" article as his credentials and his understanding of the 2nd amendment .

He starts out IMHO showing his ignorance of the topic at large with this statement

Quote:
Would anyone really compare an AR-15 assault rifle, which has been used in so many recent mass killings, to a Swiss Army knife?
Um yes maybe 90% of gun owners know exactly what the judge meant in that statement and how it applies . Again IMHO it shows his complete lack of understanding of the pro gun stance . It's also like so many articles today starts out framing the argument/debate in one direction by asking a simple question that if you disagree with it , has an negative insinuation towards you ( Would anyone really compare an AR-15 assault rifle, which has been used in so many recent mass killings, to a Swiss Army knife? )

An example of my point here would be a pole taken in 2016 after the election of news reporters . ( sorry can't find it right now but will look more fore it ) . Something like 90% of reporters said they did not know anyone that would have voted for Trump . I don't even think that needs expanding on .

Quote:
This is the most extreme gun rights ruling yet from a federal court. Every other court in the country has upheld bans on assault weapons. .
I like to know more on how he comes to the word extreme in this context and the fact he keeps using the political buzz word "assault" weapon shows his bias in the analyses .

Quote:
This ruling is wrong as a matter of constitutional law and of common sense. Unfortunately, though, a majority of the current Supreme Court justices are very likely inclined to expand gun rights.
"Expand" gun rights ???? Giving something back that should have never been taken is not an expansion . Again framing the debate to fit a narrative .

Quote:
But I hope they will not go so far as to declare that the Constitution protects a right to have an assault weapon
This shows he has personal interest in the outcome rather then this this being an academic analysis .

Quote:

This is the most extreme gun rights ruling yet from a federal court. Every other court in the country has upheld bans on assault weapons. This ruling is wrong as a matter of constitutional law and of common sense. Unfortunately, though, a majority of the current Supreme Court justices are very likely inclined to expand gun rights. But I hope they will not go so far as to declare that the Constitution protects a right to have an assault weapon.

The 2nd Amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” From 1791, when it was ratified, until 2008, not one law — local, state, or federal — was struck down as violating the 2nd Amendment.

When dealing with 2nd Amendment cases, the Supreme Court has repeatedly said that the provision meant what it said: It was solely a right to have guns for the purpose of militia service.

In June 2008, the court, in a 5-4 decision in District of Columbia vs. Heller, took a very different approach and said that the 2nd Amendment protected a right of people to have guns in their homes for the sake of security.

Justice Antonin Scalia wrote the opinion for the court and declared unconstitutional a 1976 ordinance in Washington that prohibited private ownership or possession of handguns. But the court was clear that this right is not absolute and the government can regulate who has guns, where they have them and what type of weapons are allowed.

In fact, Justice Scalia’s opinion stated that the right to possess arms was limited to weapons that “were in common use at the time” the 2nd Amendment was ratified.
This IMHO is his biggest tell on how political he is and really unqualified to analyze any ruling . Can someone show me a quote where the Heller decision states " in common use at the time of the 2nd amendment's ratification" ? He is "QUOTING" the opinion , If you're going to lie , there should be no place for you in the debate .

Quote:
The 2nd Amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” From 1791, when it was ratified, until 2008, not one law — local, state, or federal — was struck down as violating the 2nd Amendment.

When dealing with 2nd Amendment cases, the Supreme Court has repeatedly said that the provision meant what it said: It was solely a right to have guns for the purpose of militia service.
OK again lets use Mr Chemerinsky's theory that we are only talking about what they meant at ratification and what a militia was at that time . Was a militia regulated by the government ? Did you need a permit or ask to even be in a militia in 1779 or when ever . It's my understanding that any group of men who practiced together could call them selves a militia .

Remember we are using what things meant at ratification . If you're going to use that argument IMHO you must stick with it . You don't get to use it in one part of your argument then use 21 century language in the next argument to suite you narrative . As far as I can see as long as I start up MG ( metal god ) militia "I" not only can have all the modern weapons of war so can all the members of my/our militia ? to be clear I DO mean ANY weapon produced today . Reason being is at ratification the militias were using the most modern weapons the world had ever seen to that point . So keeping with only what was OK at ratification theory the most modern weapons today should be allowed to the militias of today ???

I like it when smart people don't think through there own arguments like the the drivers Lic argument . The government can force you to have a drivers Lic to drive why can't they require a Lic to own a gun I absolutely love it when someone brings this theory up .

I like to say , Ok what would you say if every pro gun person in the US agreed to treat gun ownership "exactly" like driving a car , would you be OK with that . 99.9% of the time they say yes because they can't see past there own arrogance . I then go on to point out there are no federal laws prohibiting car ownership to include any car or type . So right off the bat I establish they are OK with any type of small arm being owned like cars are not planes or tanks like small arms are not RPG's , missiles etc .

Then I move onto you don't need a Lic if you never go on public roads so we now have established that you can own any of those small arms with out restrictions as long as you don't carry them in public with out a lic. Then the last but not least even convicted criminals can have a drivers Lic . So yeah lets make owning firearms exactly like driving a car lol .

Quote:
I fear the conservative majority on the Supreme Court will soon go much further in expanding gun rights.
I think he means give back which was never yours to take .
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Old June 7, 2021, 11:59 AM   #23
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Originally Posted by Metal god
Spats , I'm a little surprised you jumped on board Erwin Chemerinsky's band wagon so soon using "that" article as his credentials and his understanding of the 2nd amendment .

He starts out IMHO showing his ignorance of the topic at large with this statement
I don't think Mr. McGee "jumped on board Erwin Chemerinsky's band wagon" at all. Spats didn't defend the guy's opinion, all he did was point out that Chemerinsky is not a hack journalist, he is a bona fide constitutional scholar. And Spats didn't cite the article as Chererinsky's credentials -- he cited the fact that Chemerinsky is the author of at leat one book that is used in law schools.

So Chemerinsky has creds. That doesn't prevent him from also having biases and prejudices, and the fact that he's knowledgeable about constitutional law doesn't make him knowledgeable about firearms.

Chemerinsky still supports the militia connection as essential to the 2A right. He is not alone in that. Hilary Clinton (who is or was a lawyer) said the Supreme Court was wrong with the Heller decision. More importantly, the decision was 5-4, it was not unanimous.
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Old June 7, 2021, 12:11 PM   #24
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While I (obviously) don't agree with his position on this issue, it would be a mistake to underestimate his knowledge of US Constitutional law. He wrote the hornbook I used in law school, and is truly what I would call a scholar of Constitutional law.
So, how does a scholar of Constitutional law get things so barking WRONG right from the get go??

First point, neither the 2nd Amendment, nor any other in the Bill of Rights grants any citizen ANY rights. None. Nada. Nichts. Zip. Zero. ALL the articles are the same in that they are a list of things the Government SHALL NOT DO concerning certain enumerated rights that we naturally possess.

The Second is very clear, we have the right to possess arms for militia service, and the Govt shall not infringe on that.

It does NOT say that is the ONLY right we have when it comes to possessing arms. Take a look, its not in there.

Why would I consider him a constitutional scholar when all his statement is, is nothing more than a rehashing and restatement of the already discredited anti-gun talking points???

Quote:
But the court was clear that this right is not absolute and the government can regulate who has guns, where they have them and what type of weapons are allowed.
the "scholar" needs to reread Heller. Perhaps have it explained to him, using small words so he understands....

The Court did NOT say the govt may regulate guns. It also did not say that the govt cannot. What they said was that they are not looking at that issue in this ruling, and until we do look at that specific issue, we will presume the regulation to be legal.

This is NOT the same as the court affirming govt lawful authority. This is a non ruling, literally ducking the issue, and properly so, since it was not the issue in the Heller case.

I would think any constitutional scholar worthy of the name would understand that.
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Old June 7, 2021, 01:05 PM   #25
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Thank you 44 that was my point not that spats agreed . It’s that he said anything at all about this guy being somebody to consider there opinion on this subject . Especially if based on reading that article , that was what I consider a hack hit piece .

As far as supporting the militia aspect of the second . I have never heard one anti-gun politician support the militia part of the 2nd and not conclude that that is the national guard . So although on paper it sounds like they support it they really do not as intended by our founders “ at ratification “ lol
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