Heller and M16s/ Heller vs. 922(o) (threads merged)

[Outlaws]

Machine guns ARE legal just very expensive

No, some machine guns are legal. Nobody owns anything made after '86. The are all basically antiques now anyways.

 

[ctdonath]

Clarification of a common obfuscation:
Pre-'86 machineguns are legal.
Post-'86 machineguns are illegal.
Clear?

 

[Sebastian the Ibis]

Did anyone notice how the limitation on weapons in Heller is whether or not the gun is "common." When there were NO handguns in DC.

I think this does two things:

(1) It means that "common" is a national standard not a local one. - Sayonara Chicago! -and-

(2) Scalia knows MG's are more common than handguns in DC.

 

[Caimlas]

My reading is that "common use" applies to not only common civilian use, but common military use. To that end, it would seem that full-auto, up to and including M2s and SAWs (or similar). However...

IMO, the ruling as a whole has a degree of indecisiveness and ambiguity. There's a lot of statements which can be taken to contradict various other statements within the ruling. So, yeah, I'm not particularly happy about it: it leaves the field wide-open for state and local laws to selectively interpret the ruling for the purpose of further bans.

 

[ctdonath]

You sure about that? Scalia seemed to emphasize that the protected arms were those which citizens would tend to own outside military use, yet were suitable enough to bring to the party when invited.

Please point out where military-specific arms are included in the interpretation of "common".

 

[HuntAndFish]

And there is the crux of the matter. A court would have to interpret to whom "common use" applies. A friendly court would include the military, an unfriendly one might not.

We therefore read Miller to say only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens for lawful purposes

Are members of the military and law enforcement also citizens? It does not say civilians.

 

[woof]

I read "common use" as something like the court's old phrase on porn: "prevailing community standards." In this case the community is the whole country. it won't be about how many of them exist, but whether the common gun owning citizen feels a need for one. What this does is leave the door open now for lower courts to determine what is common use with one or more of those cases eventually making it back to the supreme court. I doubt if Ruger Ranch Rifles will be banned and I doubt any MGs will be made legal that aren't already.

"Are members of the military and law enforcement also citizens? It does not say civilians."

Military and most police do not possess their weapons they just use them.

 

[HuntAndFish]

If they didn't possess their weapons they couldn't fire them. Does possessed mean owned? Or does it just mean physical use?

The lawyers are gonna make money on this.

 

[woof]

Little doubt possesses would be interpreted to mean owned, and citizen would be interpreted to exclude military and police acting in the line of duty.

 

[HuntAndFish]

Little doubt

I'm not so sure the doubt is little. The way I read it, most members of the military are citizens of the US and possessing their arms is necessary for their use.

What part of that statement do you doubt is true?

ETA: Not saying that a court will say Yes or No. Just that there is an argument.

 

[insidious_calm]

From another thread about licensing, I posed this question. Seems relevant both places...





Originally Posted by El T:

The Supreme Court has been down the licensing road before:

Murdoch v. Pennsylvania, 319 U.S. 105 (1943) (cannot be compelled to pay a tax in order to exercise a right)

Shapiro v. Thompson, 394 U.S. 618 (1969) (waiting period for welfare check is void as it touches upon fundamental right of interstate travel)

Thomas v. Collins, 323 U.S. 516, 538-40 (1945) (registration to exercise a right is unconstitutional)

United States v. Jackson, 390 U.S. 570, 581 (1968) (government cannot chill exercise of fundamental right)

Minnepolis Star v. Minnesota Commn'r of Rev., 460 U.S. 575 (1983) (taxes on fundamental are unconstitutional)

Licensing, taxes and waiting periods are not reasonable restrictions on fundamental, individual rights as licensing, taxes and waiting periods are unconstitutional when it involves one's rights.

Given these cases, and this "new" establishment that fiearms ownership is in fact a fundamental right, wasn't the NFA '34 essentially DOA the minute the decision was released? NFA '34 is a TAX law. Now it is clearly a TAX to exercise a fundamental right. It would seem that ALL of those provisions are now illegal. Thoughts?


I.C.

 

[Bartholomew Roberts]

From my answer in that other thread:

NFA is only a tax to exercise a fundamental right if the arms covered by the NFA are the type of arms protected by the Second Amendment.

In the Heller decision, Scalia suggests that this is not the case; but I think a closer read will show that Scalia is saying it is not the case right now.

From a pragmatic standpoint, we need some new members on the Court as well as victories on incorporation and strict scrutiny before we will have much chance expanding the definition of arms.

 

[Bobarino]

if its illegal to tax a right, then why do we still have a firearms excise tax? http://www.ttb.gov/firearms/faqs.shtml

Bobby

 

[HuntAndFish]

I agree Bart, they aren't right now. I think there is at least a reasonable argument to be made to a future court though.
I agree that some of the discussions in this thread are premature and that incorporation is certainly needed next.

@Bobarino: Someone else said, and I agree, that all of the implications of this decision won't be known for many years. These taxes and fees surrounding the gun industry might now all be challenged in court and some may indeed be ruled unconstitutional.

 

[USAFNoDAk]

During the time of US vs. Miller, were short barreled shotguns in common use by the citizens? The USSC, then, seemed to be arguing that the 2nd Amendment would only protect the types of firearms that were useful for militia duties, basing that upon what types of firearms were in common use by the military at that time. Otherwise, they could have just ruled that short barreled shotguns were not common among the citizens, and thus, the 2nd Amendment didn't protect the possession and use of such an implement. Instead, they stated that the court was unaware of how a short barreled shotgun could be useful in preserving the efficiency of the militia. To me, that indicates that they were unaware that a short barreled shotgun was a common military style firearm. But, I'm no judge, nor am I a lawyer. I did stay at a Holiday Inn Express a couple of weeks ago, however.

 

[everallm]

People seem to have bit of a blind spot about what the SC actually said about Miller.

The SC did NOT say that sawn off shotguns were not part of the weapons of the militia and therefore verboten.

The ruling was that on the ABSENCE of proof to the contrary they could not SAY that this weapon was part of the equipment for the militia.

They said this as no proof to the contrary was presented to them, Miller dead etc.

This was somewhat judicial sophistry as there was ample evidence and common knowledge that sawn off shotguns had been used in trench warfare in WW1.

However, just as in Heller, the SC can only/should only answer on the questions and evidence presented to them.

 

[ctdonath]

IIRC, Scalia also hammered home the point that basing any degree of prohibition on Miller was preposterous as the case was basically a farce (no defendant, no arguments, practically no ruling save remand).

 

[Henry Bowman]

Scalia knows MG's are more common than handguns in DC.

But does Kennedy (the "swing vote")?