Possible path to protection of military style arms

[maestro pistolero]

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.

[rwilson452]

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.

[melchloboo]

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.

[maestro pistolero]

Why do I 'need' an AR-15?

From the Heller decision:

It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty. It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks. But the fact that modern developments have limited
the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the
right.

and there's this:

There are many reasons why the militia was thought to
be “necessary to the security of a free state.” See 3 Story
§1890. First, of course, it is useful in repelling invasions
and suppressing insurrections. Second, it renders large
standing armies unnecessary—an argument that Alexander
Hamilton made in favor of federal control over the
militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed.
1961) (A. Hamilton). Third, when the able-bodied men of
a nation are trained in arms and organized, they are better
able to resist tyranny.

Surely we are not expected to resist tyranny with revolvers.

And finally this:

Undoubtedly some think that the Second Amendment
is outmoded in a society where our standing army is
the pride of our Nation, where well-trained police forces
provide personal security, and where gun violence is a
serious problem. That is perhaps debatable, but what is
not debatable is that it is not the role of this Court to
pronounce the Second Amendment extinct.

Thank you, Justice Scalia

[Tennessee Gentleman]

that modern developments have limited the degree of fit between the prefatory clause and the protected right

I think this sentence shows that the SCOTUS beleives that many military weapons might be prohibited or regulated by law as to civilian use and be constitutional. I think Scalia is decoupling the well regulated militia from the right to keep and bear arms in that Militia service is not the only reason for the right to keep and bear arms.

[maestro pistolero]

I think this sentence shows that the SCOTUS beleives that many military weapons might be prohibited or regulated by law as to civilian use and be constitutional. I think Scalia is decoupling the well regulated militia from the right to keep and bear arms in that Militia service is not the only reason for the right to keep and bear arms.

It would seem so. But, quoting US vs Miller, Scalia refers to the ability to prohibit dangerous and unusual weapons in one passage, then describes the type of weapons that Miller protects in another:

2. Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, con-
cealed weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of fire-
arms in sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale of
arms. Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.

(f) None of the Court’s precedents forecloses the Court’s interpre-
tation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor
Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-
rights interpretation. United States v. Miller, 307 U. S. 174, does not
limit the right to keep and bear arms to militia purposes, but rather
limits the type of weapon to which the right applies to those used by
the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

If I'm understanding correctly, he is saying on one hand, that according to Miller, for a weapon to be protected, it needs to have some reasonable relationship to militia (US attorneys argued military) use. On the other hand, he is saying that dangerous and unusual weapons may be prohibited. Long before Miller, as early as 1918 the Military was using weapons such as the Browning Automatic Rifle and Thompson submachine guns.

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?

[Tennessee Gentleman]

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?

I am not sure the Court has articulated a "danger scale" for weapons and it appears that is the province of legislatures to decide that. Miller, which was a poorly written decision IMHO and Justice Kennedy's too, upheld the 1934 NFA that required sawed-off shotguns to be registered and taxed. The court IIRC said that the 2A did not protect Miller from the restrictions of the NFA unless he could show that the weapon had a militia relationship.

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.

[wpcexpert]

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.

From what I gathered on Exeutive Orders, is that they cannot be implied as a law. The Congress can overturn the Order by passing a law that contradicts it.

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.

[maestro pistolero]

I am not sure the Court has articulated a "danger scale" for weapons and it appears that is the province of legislatures to decide that.

Correct, they have not. That's me talking, trying to deduce what's left to be protected if dangerous and unusual weapons are not protected. They are all dangerous and of course, that's the POINT of a weapon.

Then, of course I assert that the militia that the 2A talks about exists no more but that is probably another thread.

I don't know if it has to be another thread. The question has a relationship to the questions ask here. Certainly the actual implementation of the Militia is not commonplace, but it does exist. Here's one example:
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.

[rwilson452]

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.

[Wildalaska]

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 ™

[maestro pistolero]

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.

Agreed, done and will do again and again. Just discussing strategy here.

[divemedic]

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.

[Wildalaska]

The counter attack seems to work better in the courts.

The counter attack can only occur after the damage is done.

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.

[maestro pistolero]

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.

The counter attack can only occur after the damage is done

True. And the damage HAS been done at the state level. And the painstaking road to counter attack has begun, and seems to have incorporation via the 14th as a starting point.

[Tennessee Gentleman]

Certainly the actual implementation of the Militia is not commonplace, but it does exist. Here's one example:

That was an interesting site. However, one big difference from that orgnaization and the militia that the 2A refers to was service was not optional but mandatory unless legally disqualified.

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.

[publius42]

Originally Posted by melchloboo

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?

Because it's common, and because my wife also has a trigger finger, and one gun might break or jam.

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.

[A/C Guy]

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,

Michigan, Vermont, and New Hampshire all have legitimate militias. Other states also have militias, but I don't know if they are recognized as official or legitimate.

[maestro pistolero]

Don't forget Alaska http://www.ak-prepared.com/asdf/

[gc70]

Miller, which was a poorly written decision IMHO and Justice Kennedy's too, upheld the 1934 NFA that required sawed-off shotguns to be registered and taxed. The court IIRC said that the 2A did not protect Miller from the restrictions of the NFA unless he could show that the weapon had a militia relationship.

IANAL but would appreciate input from any lawyers on this topic. I do not read Miller as reaching the above conclusions.

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

[Tennessee Gentleman]

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."

[maestro pistolero]

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."

I've never seen that! Holy Moly Batman, there it is. Ordinary military equipment. But perhaps not dangerous and unusual military equipment. I'm not saying Joe the plumber gets to have a shoulder-fired rocket launcher, but maybe it means our AR's and AK's are safe.

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.