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Tue Feb 12, 2013, 01:06 PM

Constitutionality of Proposed Firearms Legislation

Tragic mass shootings in Newtown, Connecticut, and elsewhere have prompted renewed national interest in the federal regulation of firearms. In January 2013 President Barack Obama publicly announced support for three new legislative measures to regulate firearm ownership and sales:

  • Banning certain semiautomatic weapons with military-style features—commonly referred to as “assault weapons”—in addition to high-capacity ammunition magazines holding more than 10 rounds
  • Requiring background checks on all firearms sales, not just those purchased from federally licensed firearms dealers
  • Enhancing penalties for trafficking in firearms

Proposed legislation with similar elements has been introduced in Congress. These measures as written would not violate the Second Amendment right to bear arms as recently defined in two landmark Supreme Court decisions—District of Columbia v. Heller in 2008, and McDonald v. City of Chicago in 2010. Under Heller and McDonald the Second Amendment protects the right of law-abiding citizens to keep and bear arms for self-defense in the home. The proposed measures would not violate that right, but rather fall squarely within the scope of “presumptively lawful regulatory measures” that Heller identified as constitutionally sound. Furthermore, these proposals would effectively advance the important government objectives of preventing gun violence and protecting law enforcement officers and would not unduly burden law-abiding Americans or impose upon the core right identified in Heller.

http://www.americanprogress.org/issues/civil-liberties/report/2013/02/12/52833/constitutionality-of-proposed-firearms-legislation/

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Reply Constitutionality of Proposed Firearms Legislation (Original post)
SecularMotion Feb 2013 OP
gcomeau Feb 2013 #1
Deep13 Feb 2013 #3
SecularMotion Feb 2013 #4
gejohnston Feb 2013 #5
SecularMotion Feb 2013 #6
gejohnston Feb 2013 #8
gcomeau Feb 2013 #12
krispos42 Feb 2013 #14
SecularMotion Feb 2013 #16
iiibbb Feb 2013 #17
apocalypsehow Feb 2013 #18
krispos42 Feb 2013 #28
Ashgrey77 Feb 2013 #23
krispos42 Feb 2013 #24
SecularMotion Feb 2013 #30
gejohnston Feb 2013 #32
krispos42 Feb 2013 #35
jimmy the one Feb 2013 #36
krispos42 Feb 2013 #37
AtheistCrusader Feb 2013 #39
Kezzy604 Feb 2013 #19
jmg257 Feb 2013 #20
Kezzy604 Feb 2013 #22
jmg257 Feb 2013 #25
Kezzy604 Feb 2013 #26
jmg257 Feb 2013 #27
Kezzy604 Feb 2013 #31
Glaug-Eldare Feb 2013 #29
Kezzy604 Feb 2013 #33
jmg257 Feb 2013 #34
AtheistCrusader Feb 2013 #40
jmg257 Feb 2013 #45
Glaug-Eldare Feb 2013 #46
jmg257 Feb 2013 #48
AtheistCrusader Feb 2013 #51
jmg257 Feb 2013 #52
Glaug-Eldare Feb 2013 #53
jmg257 Feb 2013 #54
Glaug-Eldare Feb 2013 #55
jmg257 Feb 2013 #56
Glaug-Eldare Feb 2013 #57
jmg257 Feb 2013 #58
iiibbb Feb 2013 #59
jmg257 Feb 2013 #60
Glaug-Eldare Feb 2013 #61
jmg257 Feb 2013 #63
iiibbb Feb 2013 #62
jmg257 Feb 2013 #64
iiibbb Feb 2013 #65
jmg257 Feb 2013 #66
AtheistCrusader Feb 2013 #70
jmg257 Feb 2013 #71
AtheistCrusader Feb 2013 #72
jmg257 Feb 2013 #73
AtheistCrusader Feb 2013 #74
jmg257 Feb 2013 #77
AtheistCrusader Feb 2013 #80
jmg257 Feb 2013 #83
AtheistCrusader Feb 2013 #78
jmg257 Feb 2013 #81
jmg257 Feb 2013 #75
AtheistCrusader Feb 2013 #76
jmg257 Feb 2013 #79
GreenStormCloud Feb 2013 #67
jmg257 Feb 2013 #68
Deep13 Feb 2013 #2
bowens43 Feb 2013 #7
Glaug-Eldare Feb 2013 #10
Glaug-Eldare Feb 2013 #47
Clames Feb 2013 #11
Light House Feb 2013 #13
safeinOhio Feb 2013 #38
AtheistCrusader Feb 2013 #41
safeinOhio Feb 2013 #42
AtheistCrusader Feb 2013 #43
safeinOhio Feb 2013 #44
AtheistCrusader Feb 2013 #50
Glaug-Eldare Feb 2013 #49
hack89 Feb 2013 #69
hack89 Feb 2013 #21
Glaug-Eldare Feb 2013 #9
Progressive dog Feb 2013 #82
apocalypsehow Feb 2013 #15
MotherPetrie Feb 2013 #84
Eleanors38 Feb 2013 #85

Response to SecularMotion (Original post)

Tue Feb 12, 2013, 01:15 PM

1. The second two matter...

...the first is largely pointless hand waving. Sorry folks, but it's true. You can fire a semi automatic handgun just about as fast as a semi automatic "assault weapon", and you can conceal it better and use it more readily in close quarters. Like, oh, a school. Yes, there are some aspects of the "assault weapon" that give it advantages over the handgun as well but on balance it's not that big a difference in the situations we're worried about. And to top it off, the second Congress gets around to putting down in law what makes an assault weapon an "assault weapon" gun manufacturers will just design new ones that technically skirt the definition while still remaining just as deadly.

Regulations that simply apply universally to all firearms are the truly effective ones. So focus on those second two points.

And it takes literally a second or two to swap a magazine. I don't really care if the mass shooting psycho used three 10 round magazines or one 30 round magazine. Yes, I think it's obviously unnecessary for anyone to have a 30 round magazine for self defense, but focusing on magazine capacity in legislation like this is pretty non productive.

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Response to gcomeau (Reply #1)

Tue Feb 12, 2013, 01:17 PM

3. Agree on the "that looks scary" bans. nt

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Response to gcomeau (Reply #1)

Tue Feb 12, 2013, 01:21 PM

4. The bottom line is weapons that can cause mass carnage in a matter of seconds

Last edited Tue Feb 12, 2013, 03:55 PM - Edit history (1)

need to be restricted. Where that line is drawn can be a topic of debate, but restrictions are needed to protect public safety.

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Response to SecularMotion (Reply #4)

Tue Feb 12, 2013, 01:25 PM

5. restrictions already exist

just not to the degree of your liking nationwide. How can an inanimate object cause anything? Be used in, make mass carnage easier, but can't cause it.

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Response to gejohnston (Reply #5)

Tue Feb 12, 2013, 01:29 PM

6. Just to be clear

You agree with the current restrictions on full-automatic weapons, but you think that weapons designed to mimic full-automatic should be allowed?

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Response to SecularMotion (Reply #6)

Tue Feb 12, 2013, 01:46 PM

8. minus the Hughs Amendment CLEO sign off

I have no problem with that part of NFA. The short barreled weapons need changed because regulating a single shot with a 15 inch barrel the same as a machine gun makes no sense. France, Norway, Finland, UK, and New Zealand have common sense silencer regulations that I agree with.
semi automatics are not designed to mimic full automatics and have different functions. Semi automatic hunting rifles showed up on the civilian market in 1903. The US military continued to use bolt action rifles until the 1930s. The rest of the world militaries continued to use bolt actions until after WW2 and some into the 1950s.

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Response to gejohnston (Reply #5)

Tue Feb 12, 2013, 02:06 PM

12. Ridiculously ineffective restictions already exist.

" Be used in, make mass carnage easier..."

Yep. Justification for restriction *complete*. Not sure it needed to be spelled out, but thanks anyway.

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Response to SecularMotion (Reply #4)

Tue Feb 12, 2013, 02:34 PM

14. Your fundamental problem is that "military style features" do not contribute to

..."mass carnage in a matter of seconds".

Let's face it; you are trying to wage some kind of cultural war on the kind of people that would like to purchase those types of guns.

This HAS to be the answer, because banning semi-automatic rifles fed from a detachable magazine IF AND ONLY IF they have anything on them that "looks military" will not in any way, shape, or form reduce the ability to cause carnage in seconds.



Here's your problem from a very, very practical point of view.


The Newtown massacre was done in a situation where a deranged, psychotic person had 3-5 minutes of time to kill as many people as he wished to before law enforcement could intervene. The people, adults and children, were in a contained environment which offered limited avenues to escape, and very limited opportunities to hide. The people there were also not the kind likely to be able to physically take on Fuckwad directly.

The only way to limit the amount of casualties Fuckwad caused in the 3-5 minutes, at least in terms of gun technology, would be to lock firearms development to, say, 1850.

This of course is impossible.

So your stated reason for wanting to re-create and then ban certain kinds of popular guns with certain kinds of popular features in fact falls pretty flat. The potential for mass slaughter will not be diminished, particularly when such psychopaths deliberately pick undefended, target-rich environments.

If fuckwad had instead used a double-barreled shotgun, there would be just as many kids and teachers dead. He had 180 to 300 seconds to kill. Assuming he took 10 seconds to fire 2 rounds and then reload, he would have been able to fire betwen 36 and 60 rounds (of 9 or more pellets per shot) before he was finished.

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Response to krispos42 (Reply #14)

Tue Feb 12, 2013, 03:14 PM

16. Your fundamental problem is dishonesty

Military style features do contribute to mass carnage in a matter of seconds.

Barrel shrouds protect a shooter from extreme heat created by rapid fire.

Grips allow a shooter to stabilize and control over extreme recoil created by rapid fire.

Large-capacity magazines allow for longer duration of rapid fire.

Your attempt to dismiss these as cosmetic features is simply dishonest. They all contribute to making a weapon more suitable for use on a battlefield.

If gun owners want to feel the "thrill" of using a rapid fire weapon, they can visit a registered gun range where use is allowed.



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Response to SecularMotion (Reply #16)

Tue Feb 12, 2013, 03:24 PM

17. Don't forget sights... they help you aim them... thus making them more deadly

 

The full length military triggers are also contributing factors. Triggers that are only s quarter the length would surely result in less rapid fire and reduce gun violence.

You should also ban gloves. They protect shooters from the extreme heat created by rapid fire. You should include duct tape to the list because you could use a couple of rolls to make a hand guard.

Grips.... Extreme recoil? I thought we were talking about the AR-15. The .223 was selected because of its low recoil, light weight, and control.


You're so full of koolaid I have to imagine posts like this with a gurgling sound.

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Response to SecularMotion (Reply #16)

Tue Feb 12, 2013, 03:27 PM

18. Yep - which was proved beyond doubt in the "Ibid" thread.

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Response to apocalypsehow (Reply #18)

Tue Feb 12, 2013, 05:18 PM

28. So, the OP reinforces what I said before, and you called a lie

Banning certain semiautomatic weapons with military-style features—commonly referred to as “assault weapons”...


(That's not too long for you to read, is it?)


That is what I said the Feinstein bill did, and you said it did not, and that I was wrong. Well, I'm still right, you're still wrong, and I'm still waiting for you to admit it.

New-manufacture semiautomatic rifles fed from detachable magazines will still be sold if Feinstein's bill becomes law.



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Response to SecularMotion (Reply #16)

Tue Feb 12, 2013, 04:36 PM

23. What you call a barrel shroud is actually a "handguard" and it's standard on ALL rifles. n/t

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Response to SecularMotion (Reply #16)

Tue Feb 12, 2013, 04:47 PM

24. And you conveniently avoided addressing one of my key points...

...which is that is really about taking a swipe at the type of people that buy AR-15s and AK-47s. You have your standard boilerplate view of who buys them, you don't like them, their political views, or their "armed rebellion" fantasies, so you want to diminish them.

The combined homicides of people that used AR-15s and AK-47s is a couple of hundred a year. There is no real criminal threat from those guns, and you know it. But you are so terrified of "potential", or at least using other peoples fears of "potential", that you're letting that override good sense.


Barrels get hot after a few shots. "Rapid fire" is not required; there is a LOT of friction heat generated when you shove a bullet down a barrel with an interference fit of up to 0.008". At up to 3,000 feet per second, mind you.

And since a rifle by definition is a two-handed firearm, whether or not there is a barrel shroud the shooter's weak hand will be gripping a piece of wood or plastic or metal that is insulating his hand from the heat of the barrel.

Look at a Ruger Mini-14, for example. When it's being shot (and being a semi-automatic rifle fed from a detachable magazine, it can be shot rapidly for long periods of time), the shooter's weak hand is on the insulating forward grip.



I mean, really is what you're doing is forcing people to always carry their guns in the "ready to fire" position, even when they're hot.

So your argument is invalid.

And listen to yourself... you're actively advocating for a consumer product to NOT have a heat shield over a part that gets hot from normal use.



And yes, pistol grips let shooters get a more comfortable grip on the gun. I personally don't like them, but that's me. But here's a surprise for you, perhaps... the rounds that AR-15s and AK-47s fire are relatively light on the recoil. There's no effective difference in firing are between the two, at least that I can tell.

Exhibit A:



Jump ahead to 0:40, and you'll see a guy with a regular, non-pistol-gripped SKS that fires the same cartridge as the AK-47. He rapid-fires the entire 10-round magazine in not more than 3 seconds.

Exhibit B:



This guy has an SKS with the tactical treatment; adjustable buttstock and a protruding pistol grip, and a 20 round magazine. He fires 10 rounds in also not more than 3 seconds.



And again... you're advocating for shooters to have LESS GRIP on a gun while they are shooting it. Is this improving gun safety???


Here's the problem. What soldiers want on the battlefield on their rifles is also perfectly reasonable to want on a regular rifle. Good ergonomics, non-slip grips, good placement of controls, protection from burns, protection from muzzle flash, low-glare and water-resistant finish, easily adjustable buttstock for comfort...

None of these features are in any way unreasonable for ANY rifle of ANY operating mechanism to have. Who wants a rifle with hard-to-use controls, sharp edges that cut or abrade flesh, and a rust-prone, glaring finish?



Are you of the opinion that if Fuckwad's AR-15 in Newtown didn't have a protruding pistol grip or a forward handguard that completely encircled the barrel and effectively acted as a heat shield, the body count would have been lower?

Is this your contention? That if Fuckwad had used the non-assault-weapon Mini-14 I pictured above, that 25 or fewer people at the school would have been killed?


The magazine issue is separate from the other, fixed features of a gun.

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Response to krispos42 (Reply #24)

Tue Feb 12, 2013, 05:45 PM

30. Your comment about a culture war is a distraction.

The discussion is about restricting military style weapons for use by the general public.

Your refusal to acknowledge the fact that these features contribute to making a weapon more lethal is obfuscation.

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Response to SecularMotion (Reply #30)

Tue Feb 12, 2013, 05:55 PM

32. I wouldn't say that

Your refusal to acknowledge the fact that these features contribute to making a weapon more lethal is obfuscation.
I would say that you have been had by ideologues and their propagandists. If you have something from an actual firearms expert, you might be on to something.

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Response to SecularMotion (Reply #30)

Tue Feb 12, 2013, 07:37 PM

35. Answer the question, then.

That if Fuckwad had used the non-assault-weapon Mini-14 I pictured above, that 25 or fewer people at the school would have been killed?



Do you agree or disagree with that statement?




Do you support a ban on all semi-automatic rifles that are fed from a magazine?

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Response to krispos42 (Reply #24)

Tue Feb 12, 2013, 09:13 PM

36. worst case scenarios on assault rifles

krispos: The only way to limit the amount of casualties Fuckwad caused in the 3-5 minutes, at least in terms of gun technology, would be to lock firearms development to, say, 1850.

.. specious argument; to 'absolutely' limit the amount of casualty you might have a point, but only to the extent of the min/max theory; the predominance of times the modern assault rifle would indeed cause tremendous more damage in a quicker time than any post 1850 model. You only cite the extreme capability of an ancien regime firearm to make a specious point.

So your stated reason for wanting to re-create and then ban certain kinds of popular guns with certain kinds of popular features in fact falls pretty flat. The potential for mass slaughter will not be diminished, particularly when such psychopaths deliberately pick undefended, target-rich environments.

You say that by banning certain popular guns the potential for mass slaughter will not be diminished. So then, sequitur, you are concomittantly saying that by banning assault rifles there would be an 'increase in the potential for mass slaughter'? well you do get no effect as a choice, but a tenuous one.
.. the potential for mass killings & woundings will indeed be diminished.

If fuckwad had instead used a double-barreled shotgun, there would be just as many kids and teachers dead. He had 180 to 300 seconds to kill. Assuming he took 10 seconds to fire 2 rounds and then reload, he would have been able to fire betwen 36 and 60 rounds before he was finished.

.. this is a worst case scenario, which should be disregarded as in most cases the worst case scenario does not apply. Within the margin of error & it's confidence level, the assault rifle will cause more damage than the shotguns 'worst case scenarios' which you envision, in perhaps 90% of the time. A two shot shotgun I don't believe you anyway.

krispos:... you're actively advocating for a consumer product to NOT have a heat shield over a part that gets hot from normal use.

.. utterly specious; the rapid fire of the assault rifle makes the heat shield necessary because the rapid fire makes the barrel get hotter as in 'military battlefield' use, thus the qualifier in the awb bill; the aim is not to burn gun owners little fingers, but to denote that when a heat shield is deemed necessary, rapid battlefield fire is the reason.

krispos: This guy has an SKS with the tactical treatment; adjustable buttstock and a protruding pistol grip, and a 20 round magazine. He fires 10 rounds in also not more than 3 seconds.

Proves little, that an adept shooter with his gun, can do it - not all killers are adept & things get hairy when they start the dirty deed; does not pertain to everyone & actually only a few - thus the ban would have an effect on some killers who are not expert killers. Which is all the legislation strives for.
You only take extreme examples & show that since a few guys can get by, anyone can - non sequitur.

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Response to jimmy the one (Reply #36)

Tue Feb 12, 2013, 09:54 PM

37. If it's specious, then why do the gun-control forces keep making it?

Because of Newtown and other instances of mass murder, assault weapons have to be banned. Obama will doubtless say so tonight in his speech.

Now, either you want to ban assault weapons because you think it will prevent or reduce future slaughters, or you are cynically using the blood of innocents and cries of "do something!" to generate positive publicity and the appearance of doing something, or you want to wage a culture war against people that own guns and enjoy doing so.

Of course, waging a war on pistol grips and hand guards (excuse me, barrel shrouds) will not have any effect on lethality. Sorry. Fuckwad had 3 to 5 minutes to wage uninterrupted slaughter. He could have done that with a .38 revolver and a box of ammo.


You say that by banning certain popular guns the potential for mass slaughter will not be diminished. So then, sequitur, you are concomittantly saying that by banning assault rifles there would be an 'increase in the potential for mass slaughter'? well you do get no effect as a choice, but a tenuous one.
.. the potential for mass killings & woundings will indeed be diminished.


No, if banning will not reduce the potential, then the potential will remain steady. Why? Because you can pretty much pick up any gun, walk into someplace full of people, and kill 5 of them pretty quickly. (5 or more is generally considered "mass murder"). Bolt action rifle. Lever action rifle. Revolver. Pistol. Whatever.




this is a worst case scenario, which should be disregarded as in most cases the worst case scenario does not apply. Within the margin of error & it's confidence level, the assault rifle will cause more damage than the shotguns 'worst case scenarios' which you envision, in perhaps 90% of the time. A two shot shotgun I don't believe you anyway.

The worst-case scenario (what Cheney called "The 1% Doctrine") is the oft-stated reason for things like assault-weapon bans and magazine-capacity limits. I've actually seen people say on DU that the frequent reloading gives more chances for the shooter to be tackled or something.

Now, it is true that people tend to run and hide when shots begin ringing out. So having a magazine-fed semiautomatic rifle would probably be more useful for that intended, evil purpose. But, as I've stated before elsewhere on DU, despite the profusion of semi-automatic, magazine-fed rifles the past 20 years, the ongoing 30-year trend for handguns to have larger double-stack magazines in lieu of single-stack magazines, better ammunition, and more tactical accessories, murder, attempted murder, robbery, rape, and assault rates have halved in since 1990. Potential went up, but actual usage went down.



.. utterly specious; the rapid fire of the assault rifle makes the heat shield necessary because the rapid fire makes the barrel get hotter as in 'military battlefield' use, thus the qualifier in the awb bill; the aim is not to burn gun owners little fingers, but to denote that when a heat shield is deemed necessary, rapid battlefield fire is the reason.

You mean, like shooting a 30-round magazine in one minute at the shooting range? That makes an AR quite warm, thank you very much. And again, if the part gets hot during normal use, why not put a heat shield on it? Why is this prohibition needed at all, much less FEDERAL LAW?

Because it's a war on appearance, a chance to give the appearance of doing something without actually doing anything. And trust me, the people waging war on barrel shrouds will send lots of fundraising letters expecting financial reward for banning them... or trying to, at least.




Proves little, that an adept shooter with his gun, can do it - not all killers are adept & things get hairy when they start the dirty deed; does not pertain to everyone & actually only a few - thus the ban would have an effect on some killers who are not expert killers. Which is all the legislation strives for.
You only take extreme examples & show that since a few guys can get by, anyone can - non sequitur.


If not all killers are adept, then the real issue is not whether the gun has a protruding pistol grip (or, god forbid, a quick-adjusting stock or a barrel shroud), but the ability of the shooter. An inept shooter will have problems regardless of whether the gun has a protruding pistol grip or not; likewise a competent shooter will not have problems regardless of type of pistol grip.

And again, what your side is apparently hoping for is that during a mass shooting, not having a pistol grip will somehow save lives or something. This is entirely incomprehensible to me. If you're not going to attack the core operating mechanism (semi automatic) and/or the way it feeds (from a detachable magazine), then you're not striving to do anything to lower the firing rate of the gun. And instead you're squabbling over cosmetic features in a desperate attempt to look productive and proactive and "taking on the NRA".

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Response to SecularMotion (Reply #16)

Wed Feb 13, 2013, 01:54 AM

39. My bolt-action rifle from WWI has a barrel shroud.

You have no idea whatsoever what you are talking about.

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Response to SecularMotion (Reply #4)

Tue Feb 12, 2013, 03:44 PM

19. The Second Amendment states:

"...the right of the people to keep and bear Arms, shall not be infringed."

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Response to Kezzy604 (Reply #19)

Tue Feb 12, 2013, 04:16 PM

20. So join the Guard. They are still well regulated and still take volunteers.

Then you can keep and bear all the arms you want, because the Militias are necessary, just as the 2nd says.

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Response to jmg257 (Reply #20)

Tue Feb 12, 2013, 04:21 PM

22. Really?

I didn't think the Guard let you KEEP the arms.

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Response to Kezzy604 (Reply #22)

Tue Feb 12, 2013, 04:48 PM

25. Since keeping arms, like bearing arms, referred to militia service - you'll be fine!

Congress happened to change their mandate on how the Militias would be armed.
A little late to complian now.

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Response to jmg257 (Reply #25)

Tue Feb 12, 2013, 05:02 PM

26. Congress can decide to equip the military any way they see fit.

But the militia is everyone, and they can't change that through regulation and legislation.

Definition of MILITIA
1a : a part of the organized armed forces of a country liable to call only in emergency
b : a body of citizens organized for military service
2 : the whole body of able-bodied male citizens declared by law as being subject to call to military service

via Merriam-Webster

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Response to Kezzy604 (Reply #26)

Tue Feb 12, 2013, 05:06 PM

27. You should look up USC code for Militia definitions as recognized by US law.

Organized Militia = Guard
UNorganized Militia = most others (certain ages etc.)

Only 1 of these is well regulated according to regulations prescribed by Congress, as required in the Constitution and deemed necessary in the 2nd.

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Response to jmg257 (Reply #27)

Tue Feb 12, 2013, 05:50 PM

31. You are right, that is what the USC says.

And 2nd amendment still confers the right to the people to keep and bear arms, not the militia. The Bill of Rights still trumps the law.

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Response to jmg257 (Reply #25)

Tue Feb 12, 2013, 05:28 PM

29. "A little late to complain now."

You can say that again. The collective hoax has been thoroughly put to bed.

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Response to Glaug-Eldare (Reply #29)

Tue Feb 12, 2013, 06:02 PM

33. What hoax is that exactly?

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Response to Kezzy604 (Reply #33)

Tue Feb 12, 2013, 06:08 PM

34. I think he means 'the hoax' that the 2nd only secures the right to bear arms as part

of a militia. That is often referred to as the 'collective right' interpretation.

Its demise may be greatly exaggerated! {re: "thoroughly put to bed"}

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Response to jmg257 (Reply #20)

Wed Feb 13, 2013, 01:56 AM

40. I see, so only members of the National Guard are 'people' now?

That makes enforcing the rest of the bill of rights a lot easier.

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Response to AtheistCrusader (Reply #40)

Wed Feb 13, 2013, 07:16 AM

45. Derp. Nope - only National Guard are the well regulated Militia. nt

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Response to jmg257 (Reply #45)

Wed Feb 13, 2013, 08:17 AM

46. If that were true, how would it be relevant?

2A rights are not contingent on militia service. That's been settled for a long time.

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Response to Glaug-Eldare (Reply #46)

Wed Feb 13, 2013, 09:00 AM

48. Since Heller, it really isn't relevant...for now. It is an interesting study of history, though.

Not only of the original intent, but the Militias history and evolution too.

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Response to jmg257 (Reply #45)

Wed Feb 13, 2013, 11:27 AM

51. so explain why the right of THE PEOPLE to rkba shall not be infringed then.

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Response to AtheistCrusader (Reply #51)

Wed Feb 13, 2013, 12:56 PM

52. That's quite obvious - so they can serve in the well-regulated Militia.

Ya know, best security of a free State, "being necessary" in fact.

And why not? If the people could be kept from bearing arms, or the Militia was otherwise rendered ineffective, the alternative was that bane of liberty - a standing army.

edit:
But since then, the Congress has re-created the constitutional Militias of the several States, which were originally composed of the body of the people, into more of a federally controlled select militia of volunteers, AKA the National Guard.

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Response to jmg257 (Reply #52)

Wed Feb 13, 2013, 01:22 PM

53. If that were true,

would that mean that the National Guard must accept all applicants who aren't disqualified by a court?

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Response to Glaug-Eldare (Reply #53)

Wed Feb 13, 2013, 01:27 PM

54. Don't know - haven't spent any time investigating what the Guard must/musn't do. nt

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Response to jmg257 (Reply #54)

Wed Feb 13, 2013, 01:37 PM

55. Well, if the 2nd protected the right join the militia,

Last edited Wed Feb 13, 2013, 02:16 PM - Edit history (1)

can you give me an example of a law that would violate it?

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Response to Glaug-Eldare (Reply #55)

Wed Feb 13, 2013, 01:56 PM

56. As noted, it doesn't protect the militias' right, it protects the people's right

to serve in the militia.

An example of a law that would violate this right...hmmm...how about a law saying that a felon, or some other subject of due process, could not serve in the militia? Some penalty inflicted by the laws of a State, or say a martial law, when in actual service?

On edit:

here ya go:
Dishonorable discharge is the most serious punitive discharge from military service. It is reserved for those convicted of serious military offenses or what would be considered felonies under civil law, according to the Legal Glossary of the Department of Defense's Defense Human Resource Activity. A dishonorable discharge must be approved by a general court-martial.

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Response to jmg257 (Reply #56)

Wed Feb 13, 2013, 02:29 PM

57. Good point, so I edited #55

All branches of the military, including the National Guard, currently have numerous subjective and non-judicial disqualifiers, including minimum education standards, moral standards, fitness standards, age standards, financial standards, and family standards. Do you believe these violate a civil right to join the organized militia?

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Response to Glaug-Eldare (Reply #57)

Wed Feb 13, 2013, 02:50 PM

58. Based on your info, I would say such disqualifiers would infringe on the right to serve

in the militias. I would also say that the National Guard itself is an infringement on the intent of the 2nd amendment, its securities, and the Constitution. However since it is the people, through their representatives in Congress, that create/recreate/enact such entities & laws, such 'violations' are acceptable.

Atleast until noted otherwise by the SCOTUS.

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Response to jmg257 (Reply #58)

Wed Feb 13, 2013, 02:53 PM

59. It may be an infringement on the intent of the 2nd, or the intent of the founding fathers to avoid

 

a standing army.

But just because we created a military and a national guard, does not mean that we gave up our rights as civilians under the 2nd.

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Response to iiibbb (Reply #59)

Wed Feb 13, 2013, 03:29 PM

60. "We" allow such infringements, so we sort of do...since THE well regulated

Militias as identified in the Constitution were determined, by the people, to no longer be necessary to the security of a free state, then the civil right of bearing arms {re: serve in a milita} is also pretty much obsolete. IF it wasn't, then we the people would continue to have full unrestricted access to common military arms, and in fact be mandated to supply our own. (And BTW be required to muster, train, etc.)

We agreed to infringements on our right to bear arms when we decided we didn't want or need to enjoy the duty/right to serve.

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Response to jmg257 (Reply #60)

Wed Feb 13, 2013, 03:34 PM

61. Hm. Doesn't that kind of defeat the purpose of having a bill of rights?

If civil rights can be nullified by a simple majority, they're just recommendations. Freedom of speech, privacy, and jury trials are not "best practices" -- they're civil rights.

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Response to Glaug-Eldare (Reply #61)

Wed Feb 13, 2013, 03:54 PM

63. Yes - it does! Madison knew they would "never be regarded when opposed to the

decided sense of the public".

But it wasn't even extraordinary cases that caused it in this case, only the desire of the people to have more effective & stronger militia then the Constitution (edit - make that Congress& the people) provided for, and the desire to reduce their own responsibilities.

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Response to jmg257 (Reply #60)

Wed Feb 13, 2013, 03:44 PM

62. You're reaching

 

"We" decided that an additional level was needed.

The Formation of the National Guard doesn't erase the second amendment.

The US code even says as much

http://www.law.cornell.edu/uscode/text/10/311

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Response to iiibbb (Reply #62)

Wed Feb 13, 2013, 04:03 PM

64. Not a reach at all. There is a BIG difference

between the organized (well regulated) militias and the unorganized militias.

One of then is more in keeping with Hamilton's notion of how the militias should be organized (likely with more federal control), in strong contrast with the intent of the early congresses; the other is a bone thrown to the people in case...what... I don't know....they ever need to be called forth for some unknown reason yet to be identified.

There wasn't another level added, it is a re-creation of the original level...re-creation through a usurpation by Congress done with the support of the people.


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Response to jmg257 (Reply #64)

Wed Feb 13, 2013, 04:04 PM

65. I won't repeat our conversation concerning the militias.

 

I think we were close to an understanding in that regard.

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Response to iiibbb (Reply #65)

Wed Feb 13, 2013, 04:07 PM

66. Yes - likely. I think the Militias is a pretty clear concept, what

they were and what they are.

I think the point to argue, if any, the only point not clear - is what was meant by "the right to keep and bear arms".

And we both know those arguments too!

Heller has decided of course, but it doesn't make yapping about it all any less interesting. In fact, I would love to clearly with a 100% certainty be able to make up my own mind!

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Response to jmg257 (Reply #52)

Thu Feb 14, 2013, 11:11 AM

70. You're right, and we can.

The militia is formed of the people in times of need.

It doesn't even need to be about guns, a Governor can activate the militia to sandbag flooding, or do evac ahead of a wild fire.

But you make one mistake, citing the National Guard as a militia. It is not. States have militias (Called the Washington State Guard in my state, which is NOT the Washington State National Guard, cannot be federalized, does not draw pay from the DoD, etc)

US code specifies the nature of the militia, and while it is ageist and sexist, it is clearly not the National Guard.

"The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard."

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Response to AtheistCrusader (Reply #70)

Thu Feb 14, 2013, 11:18 AM

71. What??? Need to read just a bit further...


(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section
313 of title 32, under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States
and of female citizens of the United States who are members of the
National Guard.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard and the Naval Militia;
and

(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard
or the
Naval Militia.


One of these classes is Organized - i.e. well regulated...THAT is the National Guard or (Naval Militia).

And one isn't....that is everyone else.

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Response to jmg257 (Reply #71)

Thu Feb 14, 2013, 11:22 AM

72. I don't think you understand the distinction between 'well regulated' and 'unorganized'.

'unorganized' is without a pre-set command structure. 'well regulated' has been held to mean equipped.

'Organized/unorganized' is not in any way related to the 'well regulated' prefatory clause.

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Response to AtheistCrusader (Reply #72)

Thu Feb 14, 2013, 11:27 AM

73. Of course they are related. The constitution defines exactly

how the Militias were to be well regulated...


"Congress shall have the power...

To provide for organizing, arming, and disciplining, the Militia, and for
governing such Part of them as may be employed in the Service of the United
States, reserving to the States respectively, the Appointment of the Officers,
and the Authority of training the Militia according to the discipline
prescribed by Congress
;


Which Congress did:

"The Militia Act of 1792, Passed May 8, 1792, providing federal standards for the organization of the Militia.An ACT more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States.
...
VII. And be it further enacted, That the rules of discipline, approved and established by Congress, in their resolution of the twenty-ninth of March, 1779, shall be the rules of discipline so be observed by the militia throughout the United States, ...It shall be the duty of the Commanding Officer as every muster, whether by battalion, regiment, or single company, to cause the militia to be exercised and trained, agreeably to the said rules of said discipline."



"UNorganized" is certainly NOT "well regulated".



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Response to jmg257 (Reply #73)

Thu Feb 14, 2013, 11:33 AM

74. You're free to believe that all you want. The Supreme Court disagrees with you.

The SC brought this up in Heller, but it had previously ruled in other Constitutional cases, i.e. a prefatory clause in the Constitution does not in any way limit the operative clause. In the case of the Second Amendment the operative clause is "The right of the people to keep and bear arms shall not be infringed.". The prefatory clause, which does not limit the operative clause, is "a well regulated militia being necessary to the security of a free state.". The court has repeatedly said over decades that the operative clause should be consistent with the purpose of the operative clause but that it is not a limit on the operative clause. The court had ruled similarly on another Constitutional case which involved a prefatory clause, so this interpretation was not a new one applied only to the Second Amendment.

The operative clause specifies THE PEOPLE. Not THE MILITIA.

For a good reason. There is no link between 'unorganized/organized', and 'well-regulated'. Even if you were right that there is, it would be no limit upon THE PEOPLE from possessing arms.

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Response to AtheistCrusader (Reply #74)

Thu Feb 14, 2013, 11:41 AM

77. Well - of course I agree with your summary due to Heller. But that is

entirely different then what we are discussing here - that unorganized <> well regulated.
That is rather obvious, and silly to think otherwise (no offense).

The people aren't trained, they are not organized, they do not muster, they are not disciplined; they are simply citizens with guns. NO WAY should that be considered 'well regulated' - in anybody's book.

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Response to jmg257 (Reply #77)

Thu Feb 14, 2013, 11:46 AM

80. Fair point.

Actually, I was just criticizing that one follow-up post upthread, as you posted that. On this we agree.

But I do maintain, that does not inherently limit the people, per the wording of the 2nd amendment. If the people have given up this role, in order to constrain the right, we need a constitutional amendment.

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Response to AtheistCrusader (Reply #80)

Thu Feb 14, 2013, 12:04 PM

83. Cheers. I mentioned somewhere in here about the important issue

with the 2nd, and that is how to define "the right to keep and bear arms".

For a long time I was strictly an 'individual right/ no relation to a militia' guy. Just read it and it is (seems) obvious. But then one can see there is nothing in the debates about the article which became the 2nd to show ANY interest in securing THAT right, only about as it relates to the Militias. Stevens dissent also brought up a good point, the whole notion of having a preamble in the amendment was/is to clarify the restrictive clause if there is any confusion about the purpose.

Yet it is also hard to have "keep" as not referring to an 'individual only' purpose, but then once again even in the debates that too {"keeping arms"} was associated with the militia.

So I am still left wondering...

Do the people have a right to own arms? Of course. Did that right exist before the Constitution? Of course. Is there security for that right in the 2nd? Yes. And the SCOTUS declared the scope of that security, so...

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Response to jmg257 (Reply #73)

Thu Feb 14, 2013, 11:45 AM

78. You also might dig into Federalist Paper #29, Hamilton spoke on this at length.

'organized' is one sub-attribute of a well-regulated militia. The meanings are not equivalent. And I would trust Hamilton, as he served in and commanded a militia detachment during the revolutionary war.

Well-regulated means equipped and trained (of dubious quality these days in the United States)
Organized is reference to command structure for ability to call forth said militia. The unorganized militia may be truly without leadership structure, but it is still a militia, and still may be well-regulated, at least to some degree.

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Response to AtheistCrusader (Reply #78)

Thu Feb 14, 2013, 11:51 AM

81. Have read Hamilton many times. He described a select Militia much closer to the Guard then

to what the 2nd congress went with when organizing the Militias of the several States.

His description of "well regulated" and being under arms and going through exercises & evolutions is wonderful to use, and it certainly does NOT describe an unorganized militia.

Important to also note that Fed #29 is not law. The constitution is and the Militia Acts of 1792 were. They define 'organized' quite specifically and in great detail...."providing federal standards for the organization of the Militia."

As well as the training/disciplining and arming that Hamilton refers to..all according to federal regulations.

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Response to AtheistCrusader (Reply #70)

Thu Feb 14, 2013, 11:36 AM

75. The issue with these State Defense forces then, is as you noted - they CANNOT be federalized.

Which of course means they are NOT the Militias as called out in the Constitution, which have specific roles to fill when called forth in federal service.

NOW, it is also interesting that the USC defines

S311
(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided...


YET, when poroviding for calling them forth, says this:

S332
Whenever the President considers that unlawful obstructions,
combinations, or assemblages, or rebellion against the authority of
the United States, make it impracticable to enforce the laws of the
United States in any State by the ordinary course of judicial
proceedings, he may call into Federal service such of the militia
of any State,
and use such of the armed forces, as he considers
necessary to enforce those laws or to suppress the rebellion.


Either these laws are at odds, or "militia of the United States" in Section 311 actually means "militia of the several states".

Hmmm...

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Response to jmg257 (Reply #75)

Thu Feb 14, 2013, 11:40 AM

76. No, a militia still needs to be subordinate to a civilian authority.

In the case of a State Guard, that top-level authority is the state Governor. The Dick Act 'cleaned up' this badly written legislation. The President has no authority to activate the State Guard.

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Response to AtheistCrusader (Reply #76)

Thu Feb 14, 2013, 11:45 AM

79. Agreed, and agreed, And is as I said, why the State Forces aren't

the substitute for the Militias of the Several States as identified in the Constitution.

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Response to jmg257 (Reply #20)

Wed Feb 13, 2013, 09:34 PM

67. That horse is very dead. You can quit beating it. N/T

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Response to GreenStormCloud (Reply #67)

Wed Feb 13, 2013, 09:41 PM

68. Now what fun would that be? Nt

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Response to SecularMotion (Original post)

Tue Feb 12, 2013, 01:16 PM

2. I don't think it would run afoul of the Constitution...

...unless it were retroactive or the magazine restriction was so low that it effectively banned handguns.

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Response to SecularMotion (Original post)

Tue Feb 12, 2013, 01:44 PM

7. there is no constitutionally protected right for any individual to own firearms.

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Response to bowens43 (Reply #7)

Tue Feb 12, 2013, 01:49 PM

10. Can you give me an example of a law

that would violate the letter and spirit of the 2nd Amendment?

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Response to Glaug-Eldare (Reply #10)

Wed Feb 13, 2013, 08:19 AM

47. As usual, no reply.

Because the anti-rights position asserts that the 2nd Amendment literally has no meaning whatsoever!

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Response to bowens43 (Reply #7)

Tue Feb 12, 2013, 02:04 PM

11. Wrong and the President says it is Constitutionally protected.

 

Deal with it...

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Response to bowens43 (Reply #7)

Tue Feb 12, 2013, 02:27 PM

13. Supreme Court says different.

 

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Response to Light House (Reply #13)

Wed Feb 13, 2013, 12:55 AM

38. The SC has stated in

the majority decisions that the Constitution protects the individual right to have a gun in the home, but there can be restriction on who, where, other than the home and type. That is from Scalia, the most radical defender of a literal meaning of the Constitution. Other than the SC, all other opinions are irrelevant to current law and any new laws passed.

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Response to safeinOhio (Reply #38)

Wed Feb 13, 2013, 01:57 AM

41. He also spoke about the inability to ban weapons 'in common use'.

There is no more commonly used center-fire rifle than the AR-15

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Response to AtheistCrusader (Reply #41)

Wed Feb 13, 2013, 02:16 AM

42. The full quote was

"in common use in defense of the home"

I don't think the AR-15 is commonly used in defense of the home. Not compared to the 12 gauge or 38 special.

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Response to safeinOhio (Reply #42)

Wed Feb 13, 2013, 02:19 AM

43. You'd be wrong.

Well, maybe compared to a straight up shotgun, of any type perhaps. Among non-shotgun long guns, it's one of the more popular (but there are others in .223 like the mini-14, which are functionally identical) for home-defense use, because it's short, and good for going around corners, and the rounds won't over-penetrate as many walls as anything in .30 cal will. In fact, the round often fails to kill people through thin sheet metal, like car doors.

Compared to pistols, meh. Having many of all three types of weapons you listed, I'd probably grab the AR over anything else. Out of respect for my neighbors, if nothing else.

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Response to AtheistCrusader (Reply #43)

Wed Feb 13, 2013, 06:17 AM

44. Many times on this forum in the past, the question was asked

"what type of gun should I get for home defense". Of all the experts on this forum, I can't remember anyone suggesting an AR 15.

But, I was correct about the quote.

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Response to safeinOhio (Reply #44)

Wed Feb 13, 2013, 11:25 AM

50. i agree the quite is correct.

Interesting that no one mentioned a .223 platform, if true. Typically, it'll go through fewer walls than even buckshot.

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Response to safeinOhio (Reply #42)

Wed Feb 13, 2013, 10:43 AM

49. Where is that quote from?

I can't find it anywhere in the Heller or McDonald opinions. Every mention I've found in Heller and McDonald refers to "common use" for "lawful purposes." Defense of the home is mentioned only as a single specific example of lawful use.

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Response to safeinOhio (Reply #42)

Wed Feb 13, 2013, 09:53 PM

69. You made that quote up

the actual quote comes from Miller and has no connection to self defense of the home.

“rdinarily when called for service men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”


Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179.


http://www.law.cornell.edu/supct/html/07-290.ZO.html

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Response to bowens43 (Reply #7)

Tue Feb 12, 2013, 04:18 PM

21. You disagree with the president and the party platform? nt

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Response to SecularMotion (Original post)

Tue Feb 12, 2013, 01:49 PM

9. I would challenge the constitutionality of AWBs and mag bans

on the basis of the "common use" test. After all, the Heller opinion ruled that handguns are protected because they are in common use for lawful purposes, so this must extend to other types of firearms besides handguns. So-called "assault weapons" are extremely popular arms, definitely in "common use" for lawful purposes. Magazines over ten round capacity are also extremely popular, with sizes between 10-20 being almost universal for protected handguns.

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Response to Glaug-Eldare (Reply #9)

Thu Feb 14, 2013, 12:01 PM

82. Ban first, then test the law

Can't know what the scotus will say until they have a reason to say it.

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Response to SecularMotion (Original post)

Tue Feb 12, 2013, 02:49 PM

15. Yep. Rec. n/t.

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Response to SecularMotion (Original post)

Thu Feb 14, 2013, 12:25 PM

84. You can feeeeeeeeeeeeeeeeeeeeeeeeel the gun love here

 

And it's positively sickening.

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Response to MotherPetrie (Reply #84)

Fri Feb 15, 2013, 02:07 AM

85. Well, if it is "sickening," try getting to the facility quickly (or out of here).

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