SCOTUS declines assault weapons ban case - how bad is this?

[Guy B. Meredith]

Judge Frank Easterbrook wrote for the court that there is a "substantial benefit" to the Highland Park ordinance if it makes the public feel less at risk from a mass shooting.

If it makes them FEEL better??? Laws are going to be based on "feelings"? :banghead:

 

[Tommygunn]

You evidently need to go back and read the Second Amendment again:

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.

All those who like to argue that the authors of the Second Amendment did not intend to protect the right of ordinary American citizens to own military weapons and equipment must contend with the fact that the same Congress which passed the Second Amendment also passed the Militia Act of 1792. This law required every free male between the ages of 18 and 44 to own the same type of rifle that was used by soldiers in the Revolutionary War and to own ammunition as well.
We can reasonably conclude that the Founders expected citizens to be able to have guns as good as, or better than, the standard military weapons of the time in order to wield an effective and credible conventional warfighting capability.

Forgive me, but IIRC the Uniform Militia Act of 1792 only defined the militia as being composed of two "groups," the organized militia (those actually mustered and being trained or practicing arms) and the unorganized militia; the body of citizens of the U.S., save for a few public servants.
You are not wrong (IMHO) about the 2A preserving the right to arms -- those self-same arms our military is equiped with. "The most dangerous implement of the soldier is the birthright of an American," wrote one of our founders .... nowadays we have some libs who concede we can own deer rifles to shoot Bambi on autumn weekends ....such is the difference between then and now.

 

[CoalTrain49]

All those who like to argue that the authors of the Second Amendment did not intend to protect the right of ordinary American citizens to own military weapons and equipment must contend with the fact that the same Congress which passed the Second Amendment also passed the Militia Act of 1792. This law required every free male between the ages of 18 and 44 to own the same type of rifle that was used by soldiers in the Revolutionary War and to own ammunition as well.

Time has a way of changing things. We aren't living in the 18th century anymore. If we were this congressional act might be relevant but congress has passed a lot of legislation sense then and they may pass some more like the 1994 AWB. That was never found unconstitutional so I would have to assume that another one wouldn't be either.

Here is what happened to the Militia Act of 1792.

The Militia Act of 1795
The Militia Act of 1862
The Militia Act of 1903 which established the Nat'l Guard

People who argue that 2A is there to support a militia is just grasping at straws. 2A is the right of every American to go about their daily lives and be armed, which the SC has upheld. 2A refers to the militia, every citizen when it was written, but things have changed. The Nat'l Guard is the militia now. They have military weapons. There is now a congressional act (NFA) that determines that you won't be armed with an automatic weapon so that right there should be enough to tell anyone that military weapons won't be in the general population. You will not ever be able to own a true military weapon so to put forth an argument that the general population has that right based on 2A just isn't going to sway very many people. It hasn't since 1934 and isn't likely to change anytime soon.

Sorry, but that's reality. Research all of the congressional legislation, not just what was written 223 years ago.

 

[yokel]

People who argue that 2A is there to support a militia (the nat'l guard is the citizens army these days) is just grasping at straws.

You mean people like U.S. Supreme Court Justice Antonin Scalia?

The Heller (2008) majority decision held in part:

(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.[emphasis added]

 

[yokel]

There is now a congressional act (NFA) that determines that you won't be armed with an automatic weapon so that right there should be enough to tell anyone that military weapons won't be in the general population.

Go do some cursory research on the NFA and you'll find that it is not an outright ban on private machine gun ownership.

 

[CoalTrain49]

Go do some cursory research on the NFA and you'll find that it is not an outright ban on private machine gun ownership.

True. There's a way to own one. They still aren't in the general population however because not everyone wants to jump through the hoops and pay the fee to get a class 3 license.

 

[Havok7416]

No need for a license. Just pay for the tax stamp.

 

[Devonai]

You will not ever be able to own a true military weapon so to put forth an argument that the general population has that right based on 2A just isn't going to sway very many people.

A Beretta 92FS is functionally identical to the M9 Pistol, and current doctrine regarding the 3-round burst feature of the M16 series makes it functionally identical to an AR-15. Same goes for many semi-auto (e.g. M82A1) and bolt action rifles (e.g. M24) currently in use.

It would be more pertinent to talk about the usefulness of belt-fed weapons, man-portable anti-tank weapons, mortars, and fire support to your average infantry platoon in an insurgency-type conflict, and it would be hard to argue that it would be practical for unorganized militiamen to train with those weapons. So there are plenty of analogs of military arms available to the average person, and this fulfills the spirit of the unorganized militia.

 

[CoalTrain49]

(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.[emphasis added]

All this tells me is that the SC made an attempt to explain the intent of 2A because it was a 2A case. The case wasn't about the civilian population's right to keep AR's though. That's the case that the SC decided not to hear. It also tells me what they believe the operative clause is in 2A.

The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.

That's as far as 2A goes. 10A picks it up from there so there is no reason for the SC to bother themselves trying to say something 2A doesn't. They don't do a real good job of reading tea leaves and crystal balls. The right for same sex couples to marry should tell you enough to stop while you're ahead.

 

[CoalTrain49]

A Beretta 92FS is functionally identical to the M9 Pistol, and current doctrine regarding the 3-round burst feature of the M16 series makes it functionally identical to an AR-15. Same goes for many semi-auto (e.g. M82A1) and bolt action rifles (e.g. M24) currently in use.

Where can I buy an AR-15 with a 3 rd burst feature? I see your point however. Some would like us to believe that a semi-auto is a military weapon. I don't think it is in the general concept of battle rifles, which infantry train with and is standard issue. I pretty much draw the line there but the AG crowd has a way of twisting things to seem like something which they are not.

 

[Devonai]

I meant that your average ground-pounder is told to leave the boogie switch alone.

 

[CoalTrain49]

No need for a license. Just pay for the tax stamp.

And the cost of the tax stamp and a machine gun would be _________?

Here is a receiver for one so you can build your own out of legal parts.

http://www.gunbroker.com/Auction/ViewItem.aspx?Item=528659620

 

[yokel]

CoalTrain49,
The reason I cited the Heller case was due to the fact that the Court duly noted the militia component of the Second Amendment, which refutes your assertion that it is just the figment of someone's imagination or a just a relic from centuries ago.

A Beretta 92FS is functionally identical to the M9 Pistol, and current doctrine regarding the 3-round burst feature of the M16 series makes it functionally identical to an AR-15. Same goes for many semi-auto (e.g. M82A1) and bolt action rifles (e.g. M24) currently in use.

It would be more pertinent to talk about the usefulness of belt-fed weapons, man-portable anti-tank weapons, mortars, and fire support to your average infantry platoon in an insurgency-type conflict, and it would be hard to argue that it would be practical for unorganized militiamen to train with those weapons. So there are plenty of analogs of military arms available to the average person, and this fulfills the spirit of the unorganized militia.

Modern day militia in foreign nations are typically armed with belt-fed machine guns, RPGs, and hand granades.

Rifles, shotguns, handguns, and carbines would obviously be useful implements, however, it is realtively meager firepower in a low-level conflict.

 

[Havok7416]

And the cost of the tax stamp and a machine gun would be _________?

$200 per item. You seem to be making NFA items out to be impossible to come across.

 

[Devonai]

Modern day militia in foreign nations are typically armed with belt-fed machine guns, RPGs, and hand granades.

Rifles, shotguns, handguns, and carbines would obviously be useful implements, however, it is realtively meager firepower in a low-level conflict.

I was responding to CoalTrain49's comment about there being no true military arms available to civilians. My reply was to point out that it depends on your definition thereof, while at the same time agreeing that modern wars are not won with rifles and pistols alone.

 

[Aim1]

Pretty interesting historical article.







http://www.theatlantic.com/politics/archive/2015/12/supreme-court-gun-rights/419160/

Have the Justices Gone Gun-Shy?

Five years after its landmark gun-rights decisions, the U.S. Supreme Court is avoiding any cases about the Second Amendment.

MATT FORD DEC 7, 2015

The U.S. Supreme Court declines to hear thousands of cases each year, so in one sense, Monday’s announcement that it wouldn’t take up Friedman v. Highland Park wasn’t much of a surprise. But among the 130 cases the Court declined to grant certiorari on Monday morning, only one elicited a dissent from two justices.

Arie Friedman challenged Highland Park’s assault-weapons ban, which prohibits residents from buying, selling, or owning some types of semiautomatic firearms. The Seventh Circuit Court of Appeals upheld the Chicago surburb’s ban by narrowly interpreting the Court’s recent Second Amendment rulings, which focused on handguns.

That ruling, Justice Clarence Thomas wrote in his dissent from the denial of certiorari, “eviscerated many of the protections recognized” by the Supreme Court. More importantly, he argued, the Court’s refusal to summarily reverse the Seventh Circuit or even hear the case at all risked “relegating the Second Amendment to a second-class right.” Justice Scalia joined his opinion without comment.

 

[yokel]

In D.C. v. Heller Justice Antonin Scalia writes that “when able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.” Maj. Op. at 25

Justice Scalia’s majority opinion in Heller revisits that "ideal of a citizens' militia" theme in reviewing efforts by George III's government to disarm American colonists (pg. 21). Discussing the ancient origins of the right, Scalia notes that "the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents" (pg. 19).

As someone who is well aware of the fundamental purpose and principal intent of the Second Amendment, Justice Scalia is understandably dismayed by the current state of affairs!

 

[alsaqr]

IMO: Justice Scalia has sent mixed signals.

No complaint from Justice Scalia when SCOTUS declined to grant cert in the NY concealed carry case:

Without a comment or dissent, the justices turned down a gun-rights challenge to a New York law that strictly limits who can legally carry a weapon when they are on the streets. To obtain a "concealed carry" permit, New Yorkers must convince a county official that they have a "special need for protection" that goes beyond living or working in a high-crime area.

http://articles.latimes.com/2013/apr/15/nation/la-na-court-guns-20130416

No complaint from Justice Scalia when SCOTUS declined to grant cert in the NJ gun concealed carry case:

The justices without comment turned down a request to review whether New Jersey’s law requiring “justifiable need” to get a handgun permit infringes on Second Amendment rights.

https://www.washingtonpost.com/poli...f0fcd6-d457-11e3-95d3-3bcd77cd4e11_story.html

 

[CoalTrain49]

The reason I cited the Heller case was due to the fact that the Court duly noted the militia component of the Second Amendment, which refutes your assertion that it is just the figment of someone's imagination or a just a relic from centuries ago.

If the court has such a strong interest in the militia component of 2A why didn't they hear Friedman v. Highland Park? That's exactly what that case was about, a person's 2A right to arm themselves with a semi-automatic rifle with a high capacity magazine. Without hearing the case they are sending a message. For me anyway, that message is, we don't feel strongly enough about the issue to hear the case. So regardless what they said in Heller about the militia they aren't willing to review the lower court's ruling. That tells me they agree with it.

But more importantly, what does it tell you?

 

[Aim1]

If the court has such a strong interest in the militia component of 2A why didn't they hear Friedman v. Highland Park? That's exactly what that case was about, a person's 2A right to arm themselves with a semi-automatic rifle with a high capacity magazine. Without hearing the case they are sending a message. For me anyway, that message is, we don't feel strongly enough about the issue to hear the case. So regardless what they said in Heller about the militia they aren't willing to review the lower court's ruling. That tells me they agree with it.

But more importantly, what does it tell you?

I think some of the SCOTUS judges wanted to take Friedman while the rest didn't.

 

[yokel]

But more importantly, what does it tell you?

It tells me that we have a serious issue with respect to the makeup of the current Supreme Court. Indeed, a significant number of the "justices" have already indicated by their votes that the Second Amendment doesn't even apply to handguns in their estimation!

 

[CoalTrain49]

It tells me that we have a serious issue with respect to the makeup of the current Supreme Court. Indeed, a significant number of the "justices" have already indicated by their votes that the Second Amendment doesn't even apply to handguns in their estimation!

There's the problem and the reality of the situation.

There is no consensus within the SC about 2A and likely never will be.

14A and 10A is about all we have. 2A has been neutered by congress and the states until it has little meaning anymore and we have traveled a very long way down that road.

 

[yokel]

It certainly has little (if any) meaning to "Justice" Stephen Breyer, who dissented from the District of Columbia v. Heller decision. Even if the Second Amendment protects a right to armed self-defense, Breyer said, that right has to be weighed against "other important governmental interests." And since a gun law such as the AWB might reduce violent crime (never mind the lack of evidence that it actually would), the courts should yield to legislators' judgments about how best to strike the balance.

 

[Tommygunn]

...... the AWB might reduce violent crime (never mind the lack of evidence that it actually would), the courts should yield to legislators' judgments about how best to strike the balance.

During the 1994 debate over the AWB, the FBI released a study that indicated that so called "assault weapons" were used in one half of one percent of firearms crimes.
That is a very very TINY amount.
I don't know what that stat is today (I don't even know if anyone is keeping that up to date) but I doubt it's much different.

I should think on that basis, the justices ought to rule against a AWB .... but who knows that they'll do these days, what with justices "assuming" a law is Constitutional and then twisting the legalese however necessary to support the assumption .......

 

[txblackout]

Time has a way of changing things. We aren't living in the 18th century anymore. If we were this congressional act might be relevant but congress has passed a lot of legislation sense then and they may pass some more like the 1994 AWB. That was never found unconstitutional so I would have to assume that another one wouldn't be either.

Here is what happened to the Militia Act of 1792.

The Militia Act of 1795
The Militia Act of 1862
The Militia Act of 1903 which established the Nat'l Guard

People who argue that 2A is there to support a militia is just grasping at straws. 2A is the right of every American to go about their daily lives and be armed, which the SC has upheld. 2A refers to the militia, every citizen when it was written, but things have changed. The Nat'l Guard is the militia now. They have military weapons. There is now a congressional act (NFA) that determines that you won't be armed with an automatic weapon so that right there should be enough to tell anyone that military weapons won't be in the general population. You will not ever be able to own a true military weapon so to put forth an argument that the general population has that right based on 2A just isn't going to sway very many people. It hasn't since 1934 and isn't likely to change anytime soon.

Sorry, but that's reality. Research all of the congressional legislation, not just what was written 223 years ago.

Really interesting stuff. This thread got me to looking at the definition of militia. The dick act still maintained "all men 17-45" as reserve militia. Your interpretation is that 2a applies to everyone, but it seems pretty clear that it could apply to militia, which is all able bodied men 17-45. This is also the definition in current US code. Many libs say the national guard supercedes all unorganized militia.

It would be better if the 2a read to protect the freedom of the people from tyranny foreign or domestic, the right of the people to keep and bear arms shall not be infringed.

Dick championed the Militia Act of 1903, which became known as the Dick Act. This law repealed the Militia Acts of 1792 and organized the militia into two groups: the Reserve Militia, which included all able-bodied men between ages 17 and 45, and the Organized Militia, which included state militia (National Guard) units receiving federal support.[17][18][19][20]