School Shooting in Knoxville

#877
#877
hndog609 said:
And this is where those trying to bemoan "weapons of war" have a problem. Magazine fed semi-auto pistols and rifles aren't just "in common use for lawful purpose" they are now (and have been for awhile now) THE most in use for lawful purpose.
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I don’t agree that that specific language would be a problem. I can think of three ways to write through that and I’m not as smart a Supreme Court Justice.

The impediment is finding a majority of the current court that would do so.

The current atmosphere is actually really good for 2A advocates, just like the last decade was for religious freedom advocates. You have a sympathetic majority on the court and public pressure on politicians to just keep feeding bad legislation into the mill.
 
#878
#878
RockyTop85 said:
I don’t agree that that specific language would be a problem. I can think of three ways to write through that and I’m not as smart a Supreme Court Justice.

The impediment is finding a majority of the current court that would do so.

The current atmosphere is actually really good for 2A advocates, just like the last decade was for religious freedom advocates. You have a sympathetic majority on the court and public pressure on politicians to just keep feeding bad legislation into the mill.
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I still very much maintain it's a "problem" as cited in my post. Whatever language one might attempt to use could only possibly be that which would openly conflict the plain parameters of "common use for lawful purpose". Indeed, as stated before, THE MOST COMMON for lawful purpose.

As to the rest I don't disagree. I just have a massive (picture Picard facepalm meme here) any time I hear the "weapons of war" description attached to long, long established civilian designs. Hell, the centerfire semi-auto detachable magazine fed rifle was available to the US public in 1905. This was decades before US servicemen carried such weapons. An AR15 is not one jot (unless you really want to get into the actual mechanics of the things) different in function (pull triger, fire one shot, repeat until new magazine is needed, replace/reload magazine) than that 1905 Winchester.
 
#879
#879
RockyTop85 said:
And Heller didn’t overturn Miller, so the right is currently recognized as the ability to possess, (1) in your own home, (2) for a traditionally lawful purpose, (3) a weapon that has some reasonable relationship to the preservation or efficiency of a well regulated militia.

“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.”

“United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206, 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. 2812 - 2816.”

So that’s it in terms of the Supreme Court.

In terms of historical precedent, the 9th circuit recently went back to the 1300’s and traced restrictions on carrying weapons outside the home all the way to present day. I suspect most cases will do this from now on to appeal to Roberts and Kavanaugh.

This idea that the second amendment doesn’t allow any restriction on gun ownership is a product of modern propaganda. I do think we will move towards defining the second amendment, and as the Roberts court has done with the first amendment, it will be a libertarian definition, but Scalia’s dicta from Heller that you quoted is good to keep in mind as that happens.
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What significance are you attaching on the phrase “a well regulated militia” with regards to government oversight and control on the citizens bearing firearms?
 
#883
#883
utvolpj said:
Except you've obviously never read the founders ideas around that. If you had your posts would be much different
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Actually based on his interpretation of “infringe” I’d guess he does have nearly similar views on “a well regulated militia” and theyre both grossly incorrect.
 
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#884
#884
utvolpj said:
Except you've obviously never read the founders ideas around that. If you had your posts would be much different
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He has he’s just conveniently ignoring it. He has to pretend they never added context outside of the constitution to make his weak argument work.
 
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#885
#885
utvolpj said:
Except you've obviously never read the founders ideas around that. If you had your posts would be much different
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lol....they are each a four word portion of the same sentence....the beginning and the end....the alpha and omega.
 
#886
#886
NorthDallas40 said:
I’m not talking to you and really don’t care to hear any of your lunacy made up bull **** in reply to the question. Run along.
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Oh no.........not the run along dismissal.

Did you wear a cowboy hat and a sheriff's badge as a ten year old at a McDonald's playground about 20 years ago?
I remember a kid who I swear grew up to be you.
 
#887
#887
luthervol said:
Oh no.........not the run along.

Did you wear a cowboy hat and a sheriff's badge as a ten year old at a McDonald's playground about 20 years ago?
I remember a kid who I swear grew up to be you.
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More stupid bull ****. How about piss off then?
 
#891
#891
NorthDallas40 said:
Especially as applied to “a well regulated milita” in the second amendment
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So the guy is happy to pull out parts of Heller he thinks he can make fit his argument somewhere and and ignores the language that expressly brings about the primary holding for the case.

Held:


1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.


(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.


(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
 
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#893
#893
hndog609 said:
So the guy is happy to pull out parts of Heller he thinks he can make fit his argument somewhere and and ignores the language that expressly brings about the primary holding for the case.

Held:


1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.


(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.


(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
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Exactly. And as far as I’m concerned bringing up Miller at all is a hot mess. In order to overturn Miller the court would have basically had to gut the teeth behind NFA 1934 and the state would no longer be able to claim “we’re right because we said we’re right.”

In his last paragraph he makes the assertion that having no limitations on firearm ownership is some modern idea. Quite the contrary is true. Prior to 1934 there was no relevant federal limitation on firearm ownership.
 
#894
#894
NorthDallas40 said:
Exactly. And as far as I’m concerned bringing up Miller at all is a hot mess. In order to overturn Miller the court would have basically had to gut the teeth behind NFA 1934 and the state would no longer be able to claim “we’re right because we said we’re right.”

In his last paragraph he makes the assertion that having no limitations on firearm ownership is some modern idea. Quite the contrary is true. Prior to 1934 there was no relevant federal limitation on firearm ownership.
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Miller was a mess. Neither the defendant or any defense appeared before the court. There was some weird ish in that one.
 
#895
#895
hndog609 said:
I still very much maintain it's a "problem" as cited in my post. Whatever language one might attempt to use could only possibly be that which would openly conflict the plain parameters of "common use for lawful purpose". Indeed, as stated before, THE MOST COMMON for lawful purpose.

As to the rest I don't disagree. I just have a massive (picture Picard facepalm meme here) any time I hear the "weapons of war" description attached to long, long established civilian designs. Hell, the centerfire semi-auto detachable magazine fed rifle was available to the US public in 1905. This was decades before US servicemen carried such weapons. An AR15 is not one jot (unless you really want to get into the actual mechanics of the things) different in function (pull triger, fire one shot, repeat until new magazine is needed, replace/reload magazine) than that 1905 Winchester.
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1. the language wasn’t part of the holding in Miller or Heller. It could be written off as non-controlling dicta in which Scalia added on to the holding of Miller to write what he wanted in Heller. It’s attributed to the holding in Miller, but it’s clearly not even close to what Miller says (which I think is another point in my favor).

2. it would be incredibly easy to create a dichotomy using the prefatory clause (well regulated militia) and Scalia’s traditional lawful purpose as two classes of rights with the latter being a less expansive right. Scalia himself acknowledges that military grade weapons, including mere long guns, are subject to restriction: “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.”

3. states don’t need to ban the AR-15 or all similar platforms but can limit the features of the platform that facilitate people of low or below average skill killing multiple people on a short amount of time.

4. even if it were a holding (and the language is repeated in the recognition of a right later in the decision), courts add context that changes the legal meaning of language from the commonly understood meaning all.the.time. It’s exactly what Scalia did to get around Miller; it’s the same thing they’ve done to the Miranda holding by considering equivocations when a person has made a request for counsel. A court could easily find that “traditional” in “traditional lawful purpose” limits the scope of that phrase to subsistence hunting and self defense and that a “weapon of war” is not commonly used for those purposes. Hobbyist activities such as collecting and recreational target shooting were not common practices and were not contemplated at the time of the drafting. On the other end of the phrase, a justice could say that the public understanding of common use refers back to what was common at the time of ratification and anything beyond a flintlock musket or blunderbuss is fair game for legislative control.*

This kind of parsing is what courts do and there’s nothing that makes it difficult to do it here in a relatively clean legal slate, except for the prevailing judicial philosophy of the current composition of the court. And, again, this is coming from an average, at best, lawyer with one judicial clerkship and less than a decade of total experience (which didn’t touch on this issue) while the people on the court are going to generally be well above my intelligence level and have decades of either academic or judicial experience.

*- I can’t recall seeing originalism applied this way, but Scalia was supposed to be THE originalist and Heller is anything but originalist, so who knows.
 
#897
#897
RockyTop85 said:
1. the language wasn’t part of the holding in Miller or Heller. It could be written off as non-controlling dicta in which Scalia added on to the holding of Miller to write what he wanted in Heller. It’s attributed to the holding in Miller, but it’s clearly not even close to what Miller says (which I think is another point in my favor).

2. it would be incredibly easy to create a dichotomy using the prefatory clause (well regulated militia) and Scalia’s traditional lawful purpose as two classes of rights with the latter being a less expansive right. Scalia himself acknowledges that military grade weapons, including mere long guns, are subject to restriction: “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.”

3. states don’t need to ban the AR-15 or all similar platforms but can limit the features of the platform that facilitate people of low or below average skill killing multiple people on a short amount of time.

4. even if it were a holding (and the language is repeated in the recognition of a right later in the decision), courts add context that changes the legal meaning of language from the commonly understood meaning all.the.time. It’s exactly what Scalia did to get around Miller; it’s the same thing they’ve done to the Miranda holding by considering equivocations when a person has made a request for counsel. A court could easily find that “traditional” in “traditional lawful purpose” limits the scope of that phrase to subsistence hunting and self defense and that a “weapon of war” is not commonly used for those purposes. Hobbyist activities such as collecting and recreational target shooting were not common practices and were not contemplated at the time of the drafting. On the other end of the phrase, a justice could say that the public understanding of common use refers back to what was common at the time of ratification and anything beyond a flintlock musket or blunderbuss is fair game for legislative control.*

This kind of parsing is what courts do and there’s nothing that makes it difficult to do it here in a relatively clean legal slate, except for the prevailing judicial philosophy of the current composition of the court. And, again, this is coming from an average, at best, lawyer with one judicial clerkship and less than a decade of total experience (which didn’t touch on this issue) while the people on the court are going to generally be well above my intelligence level and have decades of either academic or judicial experience.

*- I can’t recall seeing originalism applied this way, but Scalia was supposed to be THE originalist and Heller is anything but originalist, so who knows.
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From Heller Scalia basically asserts the prefatory clause of “a well regulated militia, being necessary to the security of a free state” is nothing more than eloquent speak for “If you have a firearm we want you to know how to skillfully use that firearm if you are called upon to do so.” That’s it, that’s all it means. The meat is the ownership of firearms shall not be infringed. And the government is granted no power over the people in 2a by that prefatory clause.

NFA1934 was overreach and Miller had no choice but to uphold it or it guts the legislation. And NFA1934 was our first federal limitations on ownership so yes the concept of federal limits on firearms is a rather new concept.

Amendment II. BEARING ARMS
 
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#898
#898
“Like most rights, the right secured by the Second Amendment is not unlimited. [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

JUSTICE ANTONIN SCALIA

DISTRICT OF COLUMBIA V. HELLER, 2008
 
#899
#899
luthervol said:
“Like most rights, the right secured by the Second Amendment is not unlimited. [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

JUSTICE ANTONIN SCALIA

DISTRICT OF COLUMBIA V. HELLER, 2008
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Yep. He contradicted his own finding as has so often been complained about. Now put the whole finding up. Womp womp.
 
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