Silveira v. Lockyer bashers, please read...

[jimpeel]

But there is NO evidence that such a weapon was ever a required armament of militiamen. Just because such a weapon might have been used, simply isn't enough. It is not enough to simply be a weapon. Otherwise, the Court would not have implemented their length test.

By that standard, handguns are also not a viable militia weapon as they are not mentioned in the accoutrements that every militiaman shoudlhave available at all times.

 

[Gray Peterson]

By that standard, handguns are also not a viable militia weapon as they are not mentioned in the accoutrements that every militiaman shoudlhave available at all times.

Indeed. The Aymette decision (cited in Miller was decided in the 1840's), determined that while handguns and large knives could be banning from being carried concealed, long guns could not be banned in a similar fashion.

However, that was only because of the handgun's ineffectiveness at this point. Technology has evolved the handgun to a critical weapon for it's defense, due to it's now semi-automatic nature and better accuracy.

 

[Graystar]

It says no such thing.

Yes it does.

The 2d Amendment does not protect only those weapons that are required for use in the common defense. It covers all weapons that are acceptable for use in the common defense.

Oh really? And where is that written? NOWHERE! Yet you speak it as if it is engraved in stone.

However, the truth is that you are correct. You are correct because our rights are, by nature, undefined and unbound up to the point where we might violate another's rights in the exercise of our own. And because our rights are without bounds, they cannot be described or written down. Therefore, infringments have to be dealt with one at time and on their own merits. Then, a judge steps in and decides which right gets preserved and which one gets violated.

 

[Graystar]

By that standard, handguns are also not a viable militia weapon as they are not mentioned in the accoutrements that every militiaman shoudlhave available at all times.

Yeah, you could be right. I know that if I saw 10,000 handguns going against 10,000 rifles, I'd have to put my money on the rifles...

However, even if this high level, societal right known as the right to keep and bear arms doesn't protect the possession of a handgun, the possession is still protected by the more basic fundamental right to possess a firearm for personal defense. THIS is the true individual right, and the right we should be pushing in court.

 

[44Brent]

There's absolutely NO downside in having the Supreme Court hear this case, EVEN if Silveira loses. The anti-rights forces have always sought to strangle our rights, and have done so as if there is no second amendment.

 

[Telperion]

By the way, since much of the Silveira brief is devoted to deconstructing Miller, what effect, if any, would a favorable ruling have on the NFA?

 

[Gray Peterson]

By the way, since much of the Silveira brief is devoted to deconstructing Miller, what effect, if any, would a favorable ruling have on the NFA?

Depends on the wording of the final decision, how wide ranging it is, and so on.

Most likely, it will require another case. Remember that once the SCOTUS makes a decision, all of the lower courts are obligated to follow the precedents of the SCOTUS. Even Reinhardt would have a hard time justifying NFA restrictions.

 

[Shamaya]

Do your homework.

Graystar said:

I have looked for varying specs for the Winchester in the past. It always comes up as having a 20" barrel. If you have documentation that states that the weapon was manufactured in other lengths I would certainly be interested in seeing that.

First, the word "arms" in the Second Amendment does not say "arms manufactured by Winchester"; it says "arms". Take any shotgun, saw off the barrel below 18 arbitrary inches, and it's still an arm. Do you agree with that statement? Good.

Next, while it's true that Winchester's trench guns were made with 20 inch barrels, it's also true -- as in, a fact -- that their barrels were often chopped down when the hit the front lines, as needed for various duties. (WWI, WWII, Korea and Vietnam) Twenty inches was unwieldy in many instances -- from the job of a Vietnam "tunnel rat" all the way back to clearing trenches with certain characteristics in WWI. When madmike said 13" on a trench gun, he was talking about a firearm he's seen. Seeing is still believing, even in Brooklyn where you go to jail for owning a pistol, right?

The only reason you don't know that is that you haven't done your homework, Graystar. As I told you, short barreled shotguns have been used, militarily, since the invention of the blunderbuss in the 1500's. We have pictures and descriptions of battle use from historical accounts and historical figures going way, way, way back, far before the pathetic 1939 Miller decision. And that evidence, which has been available for a very long time -- yes, it exists even though you are ignorant of its existence, if you can imagine that -- will be used to protect the Second Amendment from people who don't know what the Hell they are talking about.

 

[Jim March]

Let's not forget that according to sources as politically varied as Halbrook, Amar and others, the moment the 14th passed Aymette stopped being valid case law.

The nature of the 2AM changed; once applied to blacks who didn't yet have the vote, the "militia linkage" was seriously weakened and the "personal defense element" massively beefed up.

All the way to CCW support, by some very plausible arguments.

 

[Bruce H]

I really don't care what case the Supremes take. I want a ruling one way or the other. We better have a ruling while we still have the means to rectify a bad ruling. The supremes have procrastinated on this issue because they know exactly what will happen if they rule it isn't an individual right. They will be trashing the entire constitution if they don't rule it is an individual right. As long as they don't rule the legislature is allowed to pass more restrictive control laws. What difference will it make if all the arms are gone when they decide it was an individulal right.

 

[Graystar]

even in Brooklyn where you go to jail for owning a pistol, right?

No. I have 4 pistols and I'm not in jail.

Next, while it's true that Winchester's trench guns were made with 20 inch barrels, it's also true -- as in, a fact -- that their barrels were often chopped down when the hit the front lines, as needed for various duties.

But the utility of the weapon is not the determining point here. The right to an effective self-defense does not mean you have a right to own any and every weapon ever devised by man. You can't walk around with a tank of mustard gas strapped to your back. You can't bury land mines in your front lawn. You can't walk around with hand grenades. The fact is that for certain types of weapons, the self-defense benefit provided is outweighed by potential harm from the weapon's abuse/misuse. A sawed-off shotgun, an obvious favorite of criminals, is such a weapon.

Personally, I think a sawed-off shotgun is totally unsuitable for personal defense.

You're in a bank and a bank robber comes in. How are you going to shoot him if grabs a hostage? Or even if he has people standing within several feet of him?

Your name is Dixon and you go into your son's bedroom on night and find a man standing over him. How do you shoot at him with your sawed-off shotgun??

You're walking down the street and you're suddenly surrounded by 6 thugs. All you have is a handgun. What do you do? Do you wish you had a sawed-off shotgun? No. You just shoot one of the thugs. Because the actual history of defensive gun use predicts that if you shoot one the others will scatter. No need for a sawed-off shotgun.

So I personally can't see how restricting this specific weapon harms our right to possess firearms for personal defense.

I feel the same way about automatic weapons. HOWEVER, I *DO* believe that the NFA does violate our 2nd Amendment rights when it comes to such military weapons like the M16.

 

[44Brent]

You're walking down the street and you're suddenly surrounded by 6 thugs. All you have is a handgun. What do you do? Do you wish you had a sawed-off shotgun? No. You just shoot one of the thugs. Because the actual history of defensive gun use predicts that if you shoot one the others will scatter. No need for a sawed-off shotgun.

So I personally can't see how restricting this specific weapon harms our right to possess firearms for personal defense.

You seem to hold a minority view among self-defense experts. For example:

The ideal home defense shotgun would consist of a short barreled model, 18- to 22-inches, chambered for 12- or 20-gauge. Recommended action would be pump or autoloader.

http://www.internetarmory.com/shotgun_defense.htm

If you would like to learn how to use a shotgun, here is one of many places you can go to receive training: http://www.firearmstraining.com/class_desc.html#4

 

[dustind]

A sawed-off shotgun, an obvious favorite of criminals, is such a weapon.
SBS are already illegal, yet bad guys use them, so why have the law?? Do you think even one crime would be stopped if bad guys obeyed that law and used another firearms? Everything you listed did not start life as an already easy to get and useful tool, so none of your analogies work.

Personally, I think a sawed-off shotgun is totally unsuitable for personal defense.
Tests have shown that all you need is twelve inches to keep velocity and pattern. Why do you want useless metal sticking out in front of you? Why does your opinion determine what others must do? Why should people be locked up for owning something too short?

You're in a bank and a bank robber comes in. How are you going to shoot him if grabs a hostage? Or even if he has people standing within several feet of him?
The same way I would or would not if I had any other weapon, if I can not with a pistol I can not with a shot gun.

Your name is Dixon and you go into your son's bedroom on night and find a man standing over him. How do you shoot at him with your sawed-off shotgun??
The same way I would with a full sized shot gun, I could still have a tight pattern with the added bonus of maneuverability.

You're walking down the street and you're suddenly surrounded by 6 thugs. All you have is a handgun. What do you do? Do you wish you had a sawed-off shotgun? No. You just shoot one of the thugs. Because the actual history of defensive gun use predicts that if you shoot one the others will scatter. No need for a sawed-off shotgun.
Need has nothing to do with it, but if they were a few feet away a SBS would be a little better than a pistol IMHO.

So I personally can't see how restricting this specific weapon harms our right to possess firearms for personal defense.
I feel the same way about automatic weapons. HOWEVER, I *DO* believe that the NFA does violate our 2nd Amendment rights when it comes to such military weapons like the M16.
The military uses/used them, they are good for home defence. True, "shall not be infringed" fits this situation very well.

The NFA(especially the length part) does not make us any safer. You can make a SBR/SBS in under a minute from a legal one. If any law does not stop bad guys at all, and stops the law abiding from doing something they want to do. Those laws should be repealed.

 

[Graystar]

You seem to hold a minority view among self-defense experts. For example:

I believe I had said "...walking down the street..." This is not a home-defense situation. And I bet Dixon's child is glad daddy didn't have a sawed-off shotgun.

 

[Geech]

A sawed-off shotgun, an obvious favorite of criminals

I wasn't aware that any shotgun was a favorite of criminals. I was under the impression that criminals prefered handguns. Unless you can link to some government statistics or something that prove me wrong...

In either case, you are again using anti arguments here, and it's really starting to make me question your motives. Here's a thought: Why would a criminal prefer this gun? Wouldn't the same qualities that make this gun popular with criminals also make it useful for others, just like with handguns?

 

[Graystar]

SBS are already illegal, yet bad guys use them, so why have the law??

The fact that people still get runned over by cars doesn't invalidate the traffic laws. We know for a fact that without the traffic laws even more people would be injured in accidents because these injuries are the very reason the traffic laws were created. So it takes a little more than "yet the bad guys use them" to invalidate a law. Mind you, I'm not saying that the NFA is valid. I think parts of it are certainly invalid. What I'm saying is that your reasoning is not sufficent to determine the validity of a law.

[various responses to senarios]

I believe that you are grabbing at stars. But, that's just my opinion. You stick to your shotgun. I'll continue to keep my trusty Glock close at hand.

 

[Geech]

So it takes a little more than "yet the bad guys use them" to invalidate a law.

You've offered no evidence other than your word that SBSs are inherently more dangerous to bystanders than other guns. It takes a little more than that to prove that a law is valid.

 

[tyme]

Graystar, so basically you have so little faith in people in general that you think a perp standing over a child would be blasted by the father without backstop considerations, and similarly you think that someone in the unenviable position of witnessing a bank robber taking a hostage would not hesitate to kill the hostage in trying to stop the robbery.

What planet are you on? Here on Earth, people are not rocks. They have brains that work somewhat well most of the time, and most people tend toward caution even when the situation suggests little risk of hitting innocents bystanders, friends, family, etc.

And if a bank robber doesn't have an unregistered SBS today, it's not because they're illegal, and it's not because they're not available. As the article (update #3) about the pizza delivery bank robber bomb said of the delivery man, some people lack ambition. This is a very good thing in the case of criminals, but suggesting that a criminal who doesn't know he can get a SBS on a street corner will suddenly buy one and carry it around if he can get it at a gun store is, IMHO, a biased and unsubstantiated claim.

 

[Graystar]

I wasn't aware that any shotgun was a favorite of criminals. I was under the impression that criminals prefered handguns. Unless you can link to some government statistics or something that prove me wrong...

I don't have stats now, but I'll take a look and see if any are available. Maybe I've just been influenced by TV...or maybe that little incident where a criminal shot me with his sawed-off shot gun...who knows.

In either case, you are again using anti arguments here, and it's really starting to make me question your motives.

I am not using "antis" arguments, nor am I arguing. I am simply stating how these issues are viewed by courts and legislators. My motives, within the confines of this discussion, is to show that the arguments presented in Silveira will not win over the Supreme Court.

Here's a thought: Why would a criminal prefer this gun? Wouldn't the same qualities that make this gun popular with criminals also make it useful for others, just like with handguns

A criminal would prefer a sawed-off shotgun because of its kill power. Shoot someone in the chest with a handgun, and you might kill them. Shoot someone in the chest with a shotgun, and they're dead. As law abiding citizens, seeking only to defend our lives, we shoot to stop the attack, not to kill. If we kill, well, too bad. He shouldn't have attacked me in the first place. But we are not looking to kill. A criminal, on the other hand, has a vested interest in taking out competition, leaving no witnesses, etc. The ability to kill if far more important, and a shotgun does that job much better than a handgun. And a sawed-off shotgun makes concealment far easier. It's no wonder the gangs of the 30s used them (which, of course, was the motivation for the NFA in the first place.)

 

[Geech]

Any gun is lethal force, Graystar. When you are using lethal force for defense, "more lethal" or "less lethal" is irrelevant unless you're talking about the fastest way to stop a determined attacker.

 

[Graystar]

You've offered no evidence other than your word that SBSs are inherently more dangerous to bystanders than other guns. It takes a little more than that to prove that a law is valid.

You're right. One would hope that our legislative body did their homework, debated the issues, and made a rational determination that was in the best interest of the people of our country.

(...waiting for laughter to end...)

Mind you...I have never made any claim that the law is valid. I only claim to understand it, and to understand how it came about. But understanding something doesn't mean you agree with it. It *does* mean, however, that you are better equiped to debate it and argue against it.

 

[Correia]

BWAHAHAHAHAHA!!!

I stay out of the legal discusions because frankly, most of the legal wrangling is above my level of understanding.

However Graystar, you are so absurdly misinformed about shotguns and how they work that it throws your entire argument in the toilet. I may not be a lawyer, but I am a fanatical competitive shotgunner.

1. Shotgun barrel length does not control the amount the shot spreads. The choke of the barrel determines that. A 12 inch barrel with a full choke with throw a tighter pattern than a 24 inch barrel with an open choke.

2. Shotguns do not spread several feet in normal house hold distances. All defensive shotguns must be patterned. My home defense shotguns pattern is six-eight inches across at the farthest distance I could possibly fire it in my home, with my standard buckshot load. So I would shoot a bad guy standing over my child in a heartbeat. No problem.

3. A shotgun is a superb home defense weapon. Yes it has greater stopping power than a pistol, because it throws multiple pistol power projectiles at the same time. Simple math. If the bad guy dies, so what. Puncturing his aorta with a .38 special lead semi wadcutter will kill him just as dead. The shotgun is just likely to stop him faster, and thereby safer to you and the people you are trying to protect. Dead is dead, arguing the morality of they type of weapon that caused the death is just stupid.

4. Shorter shotguns are eaiser to weild in a home defense situation. If you need to traverse a corner or move through a doorway, you will know what I'm talking about real fast. Shorter shotguns may also point and swing better for smaller statured people. Weaker people may also be able to keep the muzzle up covering an area longer than they would have been able to with a longer/heavier weapon.

I'm frankly surprised to see this level of basic misunderstanding about a weapon type here on THR of all places. Maybe you should head over to the shotgun forum and do a bit of reading before you spout off about how the short barreled shotgun is a room killing criminal super weapon.

 

[Bruce H]

Number one reason, Lawyers don't want any sort of ruling making a definitive statement. They will loose work because there is nothing to argue and no one to bill. If SCOTUS rules an individual right the NRA will crow and say how important they are and keep sending contributions so they can stay vigilant. If SCOTUS rules against individual right the NRA will say we need more contributions to keep fighting. Look at the players, not at the individual firearms owners. We do not matter at all in the chase for dollars to support people who need real jobs.

 

[Graystar]

I may not be a lawyer, but I am a fanatical competitive shotgunner.

So if a BG is holding your wife in front of him, you feel comfortable going for a headshot with a shotgun?

I'm sorry we even got into this vein. The issue has nothing to do with suitability. A handgun is less effective that a shotgun, which is less effective than a grenade, which is less effective than a blockbuster dropped from a B17. But we can't have people tossing grenades around, so the line has to be drawn someplace. The legislature of this country decided to put sawed-off shotguns on the regulated side of that line. They did that, not because a shotgun was of no use to personal defense, or of no use to the militia, but because it seemed too good a fit for criminal activity. After all, Miller *was* a bank robber.

Whether or not you believe you have the right to falsely yell "Fire!" in a theater, you can certainly understand the idea behind the restriction...that the exercise of one right violates another, and the legislature has decided to defend the other. This is the same issue. A sawed-off shotgun is restricted because it is seen (by the legislature) as a major contributor to rights violations.

If Silveira is to be successful, the lawyer have to show the errors in that process. He has to show that view taken by the legislature, of sawed-off shotguns and other weapons, is wrong.

But the cert doesn't do that. All it does is say "We have the right, so there!" That's not gonna get us anywhere.

 

[Correia]

Graystar, depends on situation, range, and available size of target. But at 3 feet the buckshot will be in a pattern roughly smaller than my fist. And your argument is still nonsense because 99.9% of the shooting public wouldn't take that mythical hostage shot at somebody holding their wife with an accurized Remington PSS and a 10X Leopold.

None of that changes the fact that you are going off on a subject that you obviously don't know anything about. A short barreled shotgun has about as much to do with crime as any other weapon.

And if I recall correctly, Miller was a moonshiner.