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I thought they couldn't ban guns in common use?

Discussion in 'General Gun Discussions' started by usmarine0352_2005, Feb 10, 2013.

  1. usmarine0352_2005

    usmarine0352_2005 Well-Known Member


    I thought that the courts have said that you cannot ban a gun that is in common use. So that leads me to ask how many AR15's are in use in the US and wouldn't there be enough in use that they would fall under this?

    Plenty of cities and states are attempting to ban the AR15 and it's magazines, so I'm wondering why no one is saying anything about common use.
  2. Donut Destroyer

    Donut Destroyer Well-Known Member

    I have never heard of any rulings that list "common use" as a guideline. Do you know where that came from?
  3. Sam Cade

    Sam Cade Member

    DC v. Heller

  4. Justin

    Justin Moderator Staff Member

    It's estimated that there's somewhere north of 4 million AR15s in the US, and the number goes even higher if you talk about numbers of military-style semi-auto rifles.

    They most assuredly are in common use, especially of you look at the numbers of people who are active participants in self-defense training classes and competition.

    The thing is, that the only way to prove that they're in common usage is to try the whole thing in court, which will mean that the NRA-ILA and Second Amendment Foundation will need lots of money.
  5. JayBird

    JayBird Well-Known Member

    It actually predates heller by about 70 years. It is originally from US vs Miller, which was a challenge to NFA. Of course, there was no defense present when the case was heard in front of SCOTUS because Miller had died.

    Heller was merely referencing Miller.

    Agree. If you simply look at detachable magazine fed semi auto rifles, there are quite alot of them out there, and should most definitely be considered 'in common use at the time' Heck, how many ruger 10/22's are there? How many ruger mini's. etc etc etc 'Military style' is a meaningless term. it should be detachable magazine fed semi auto rifle for any 'common use' argument...at a minimum.

    That doesn't mean a state or the fed cant ban them(many have). The case has to be heard by SCOTUS. And they would need to be consistent. Just because a case should go our way doesnt mean it always will.
  6. jamesbeat

    jamesbeat Well-Known Member

    And I thought that they couldn't infringe our right to keep and bear arms, but they've done that quite a few times.

    There are plenty of unconstitutional laws on the books (I know, because I live in NY :() but they'll continue to break the law until someone stops them in court.

    Kinda ironic, huh.
  7. rdhood

    rdhood Well-Known Member

    It's why the NY ban is ripe for a challenge.
  8. Jim K

    Jim K Well-Known Member

    What is "common use"? A thousand guns? A million? A hundred million? Or is it based on the percentage of the general public who own that item? (Ten percent? Fifty percent?)

    Regardless, the idea is to seize and destroy as many guns as possible, imprison as many gun owners as possible, ban further manufacture and sale of guns, THEN let the courts do what they want. It would be like a 1946 German court declaring that the Holocaust was wrong. What has been done can't be undone.

  9. DeepSouth

    DeepSouth Well-Known Member

    One Supreme Court justice from none of that mattering.
  10. JohnKSa

    JohnKSa Well-Known Member

    The Heller decision stated, more or less, that it was not constitutional to ban an entire class of firearms in common use.

    You have to keep in mind what Heller was about. It was about the DC ban on handguns. Therefore, in the context of the Heller decision, that meant that it was not constitutional to ban handguns. Handguns being an entire class of firearms in common use.

    That is a HUGE class of firearms. If one breaks modern firearms into two classes, they would likely draw the dividing line between handguns and long guns.

    So, Heller, in context, basically says that it would be unconstitutional to ban all handguns or to ban all long guns--maybe one could reasonably take it further and say that a ban on all shotguns, or a ban on all rifles or a ban on all handguns would be illegal.

    The idea that one can take Heller and interpret it to mean that all subclasses and subsets of subclasses of firearms in common use are constitutionally protected would likely be a hard sell in the courts. In other words, while Heller would invalidate a ban on all handguns, it is, in my opinion, quite unlikely that it would invalidate a ban on a subset of a particular subclass of firearms (e.g. Class: Handgun, Subclass: Semi-automatic, Subset of Subclass: Accepting a magazine holding more than X rounds; or Class: Rifle, Subclass: Semi-automatic, Subset of Subclass: Accepting detachable magazines).

    This battle will be fought and won or lost in the legislatures and at the ballot boxes.
    Last edited: Feb 10, 2013
  11. M2 Carbine

    M2 Carbine Well-Known Member

    "they" can and do pretty much anything they want. The federal government ceased to be "Our government" quite a while back and is now "The government" and there's not a lot we can do about it.
  12. joeschmoe

    joeschmoe Well-Known Member

    ^^I disagree with JohnK.

    The court said much more than that. In Heller they declared the 2nd was a fundamental right requiring strict scrutiny. Miller had previously ruled that weapons that had valid Militia purpose could not be banned, and in McDonald they ruled that these rights were incorporated under the 14th as applying to the states under federal protection.

    So, IMO, most of NYs new law will be struck down for several reasons, including the fact that they made no attempt to comply with the recent rullings on the 2nd.
  13. joeschmoe

    joeschmoe Well-Known Member

    False. The people who claim the system is broken are the same who don't seem to understand how it works. Learn how your government works. Get involved.
    The governments job is to protect our 2nd Amendment rights. They are, and will keep doing that. The same document that empowers our government also restricts it.

    The only faliure here is NY'ers keep voting for the same politicians who take their rights. We can fix that too.
  14. JohnKSa

    JohnKSa Well-Known Member

    What part of Heller states that every commonly used subset of subclass of class of firearms is constitutionally protected?

    Even if one were so lucky as to find a court that interpreted the ruling so generously, it still wouldn't prohibit registration. The Heller opinion, specifically does not address any issues regarding registration.
    If anyone gave Miller any weight in the courts, do you think that the Hughes amendment could have lasted for 26 years?
    That merely extends the protection afforded by Heller to state laws. If Heller doesn't apply, neither does McDonald.
  15. flyingfeathers

    flyingfeathers Well-Known Member

    Only problem with today, it may not be just today, is that we are often limited by the quality of people running for office. Why are we saddled with a mountain of debt? We didn't bother to march, like others did, on Washington and put fear into the politicians. We keeping hearing lies every election and forget the lies we were told the last election. Ron Paul tried speaking the truth and the media shoved him away, unless they lost ratings because of it. When we value our rights more than the Super Bowl we might actually finally group together and get something done.
  16. somerandomguy

    somerandomguy member

  17. joeschmoe

    joeschmoe Well-Known Member

    US v Miller stated (dicta) that weapons with valid Militia purpose cannot be banned.

    Heller/McDonald require Strict Scrutiny test;

    To determine if a statute passes the test, a court considers whether the government has a compelling interest in creating the law, whether the statute is "narrowly tailored" to meet the government's objectives, and whether there are less restrictive means of accomplishing the same thing.
    I didn't mention registration. I disagree with your point that only the legislatures/voters can change this. I think it's unlikely to survive court challenge for the reasons I've stated. Then they can throw the bums out of office for good measure.
    I don't follow you here. Hughes amendment is an extention of the Miller decision; that machine guns are not valid Militia weapons (easy to say when the defendant is dead, and the Heller court relied on Miller, so it does have wieght)
    Correct. If Heller does apply, then McDonald applies it to the states and federal rulings are used for interpretation rather than NY's loose protections. It's a very high standard.
  18. chipcom

    chipcom member

    I worked in the system for years...it's broken. As far as the system cares, the Constitution and your rights are just obstacles to cast aside. The Constitution is dead, has been for a long time.
  19. JohnKSa

    JohnKSa Well-Known Member

    I have no idea how you came up with this idea. It has absolutely nothing to do with the topic at hand. Whoever told you it did was either yanking your chain or seriously misinformed.
    I read all of Heller. It defintely protects the right to own a general class of firearms that is in common use--handguns in the particular context of the case. There is nothing in Heller that states or even implies that banning subclasses of general classes, or subsets of those subclasses would be constitutionally problematic.

    Furthermore, nothing in your reply addresses my specific question. Find and quote anything in Heller that states, or even loosely implies that every commonly used subset of subclass of class of firearms is constitutionally protected.
    That's not what I said. What I said was that we can't rely on the courts to bail us out. If we lose in the legislatures, we've lost, period. Eventually, if they go too far with the laws, we might get some of the laws overturned, or at least parts of the laws overturned, but Heller doesn't offer nearly the protection that many people seem to think it does.
    How could any person in their right mind argue the idea that machine guns have no valid militia purpose. They are, of all weapons, the most likely to be defined as having no value/purpose OTHER than to a militia or military. The point is that the actual wording of Miller has been ignored for so long that it's essentially meaningless.
    Last edited: Feb 10, 2013
  20. flyingfeathers

    flyingfeathers Well-Known Member

    Broken alright. I have abandoned both parties. There is a fragment of hope with the Republicans but they have failed too often and today seem impotent. I wonder if by serving in government for decades makes a person detached from reality. The frightening thing is the speed that this administration wants to make such drastic changes.

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