What will be the arguments for/against Assault Weapons & High Capacity Magazines in a SCOTUS case

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Our rights are indeed not ‘unlimited,’ and subject to reasonable restrictions by government

A lot of people hold the belief bearable arms are subject to reasonable restrictions under the 2nd Amendment due to excessive pontification by government agencies and others. However, the words "reasonable restriction(s) are not found in the Heller opinion as authored by Scalia and have no legal authority. Reasonable restrictions are merely a fantasy in the minds of the gullible and the nay sayers.
 
We are all, to a large extent, just guessing what the arguments will be; none of us have a crystal ball.

From the decision
http://michellawyers.com/wp-content...an_Fourth-Circuit-Court-of-Appeal-Opinion.pdf

We conclude — contrary to the now vacated

decision of our prior panel — that the banned assault


weapons and large-capacity magazines are not protected by the

Second Amendment. That is, we are convinced that the banned

assault weapons and large-capacity magazines are among those

arms that are “like” “M-16 rifles” — “weapons that are most

useful in military service” — which the Heller Court singled out


as being beyond the Second Amendment’s reach. See 554 U.S. at

627 (rejecting the notion that the Second Amendment safeguards

“M-16 rifles and the like”). Put simply, we have no power to

extend Second Amendment protection to the weapons of war that

Appeal: 14-1945 Doc: 144 Filed: 02/21/2017 Pg: 9 of 116

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the Heller decision explicitly excluded from such coverage.

It seems that effort should be made to bring awareness that the AR15 and the M16 are very different.

The M16 is a derivative made about 5 yrs later from the AR15.

Most notably is that the M16 was made to be select fire because the AR15 wasn't lethal enough for military use. So much so that any AR15s that the military had were upgraded to have the select fire performance of the M16.


The "and the like" comments don't really apply as the AR is significantly different in performance from the M16. The AR15 is absent the most lethal performance feature of the M16 - the select fire.


The AR15 is NOT a weapon best/most suitable as a weapon of war/military and documented history is available to use as proof.

The AR15 IS a firearm in common use in the civilian population that complies with the NFA; The more lethal cousin, the M16 with select fire, is in common use in the military.
 
A lot of people hold the belief bearable arms are subject to reasonable restrictions under the 2nd Amendment due to excessive pontification by government agencies and others. However, the words "reasonable restriction(s) are not found in the Heller opinion as authored by Scalia...
Phooey!

Yet again you trip over your ignorance.

Even if the majority opinion in Heller didn't use the words "reasonable restrictions", it did say (District of Columbia v. Heller, Supreme Court, No. 07–290, 2008, slip op. at 54):
....Like most rights, the right secured by the Second Amendment is not unlimited. ....

Furthermore, it's well settled law that under certain circumstance and to some extent a constitutionally protected right may be regulated. What those circumstance might be and the nature and extent of permissible regulation will be worked out by the courts. To do so, a court will consider, among other things, the nature of the right, the nature of the regulation, and the governmental purpose intended to be served.

For the purposes of illustration, let's consider the regulation of rights protected by the First Amendment. While the First Amendment protects freedom of speech, assembly and religion against laws that abridge those rights we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:

  1. Various laws (both state and federal) prohibiting such things as false advertising, fraud or misrepresentation. There are also state and federal laws requiring certain disclosures in connection with various transactions, which are valid and routinely enforced even though such laws do impinge on the freedom of speech.

  2. If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regularly enforced.

  3. Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. See, for example:
    • Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:
      ...We are likewise persuaded that the statute is "narrowly tailored" to serve those interests and that it leaves open ample alternative channels for communication. As we have emphasized on more than one occasion, when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement...
      • Cf. McCullen v. Coakley (U. S. Supreme Court, No. 12–1168, 2014)

      • In McCullen the Court struck down a new Massachusetts "buffer zone" law. As noted in the opinion the Court had previously sustained a different sort of buffer zone law in Colorado, and nothing in McCullen casts any doubt on the continued validity of the Colorado law (McCullen, slip opinion at 2):
        ….The statute [the prior Massachusetts law] was modeled on a similar Colorado law that this Court had upheld in Hill v. Colorado, 530 U. S. 703 (2000). Relying on Hill, the United States Court of Appeals for the First Circuit sustained the Massachusetts statute against a First Amendment challenge. McGuire v. Reilly, 386 F. 3d 45 (2004) (McGuire II), cert. denied, 544 U. S. 974 (2005); McGuire v. Reilly, 260 F. 3d 36 (2001) (McGuire I).

        By 2007, some Massachusetts legislators and law enforcement officials had come to regard the 2000 statute as inadequate.....

    • Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:
      ...A narrowly-tailored permitting regulation need not be the least restrictive means of furthering a locality's asserted interests. The regulation may not, however, burden substantially more speech than necessary to achieve a scheme's important goals. See United States v. Baugh, 187 F.3d 1037, 1043 (9th Cir.1999). "[T]he requirement of narrow tailoring is satisfied `so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985))...

  4. In the leading case on prior restraint (Near v. State of Minnesota Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.

    But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):
    ...The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.6 On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 139, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.' Schenck v. United States, supra. These limitations are not applicable here. Nor are we now concerned with questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exercise of the jurisdiction of courts of equity...

  5. In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).

So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The foregoing discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts.

We can not expect, nor will we see, perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment. First Amendment jurisprudence is quite mature at this point, but Second Amendment jurisprudence, in the wake of Heller, is in its infancy. However, we can expect some regulation of Second Amendment rights to be upheld by the courts.
 
The crux of this, as I see it, will be in how the definitions are all worked out.
The 4th circuit said that, since some regulations are allowed, and that the State had determined that the subject arms were more dangerous, then the law served the greater need of, in this case public safety, and so, upheld.

Now, I also think this is the great weakness of this decision as a "win" for the anti side. If it can be argued (as I believe it can) that the regulated arms are, in fact, not "more dangerous" than other common, non-restricted, arms, then the State's case becomes a bit thin.
 
The crux of this, as I see it, will be in how the definitions are all worked out.....
True, and it will be important to get those definitions worked out in ways that are satisfactory for us.

I think we're seeing a lot of lower courts displaying a dogged resistance to the principles that were the core of the Heller and McDonald decisions. We're going to need some favorable SCOTUS decisions (which necessarily presupposes a more congenial to our positions make up of the Court) to set things on the right (from our perspective) path.
 
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I think the primary argument for a SCOTUS reversal can be found in Traxler's footnotes 4 and 5.

4 Since the majority has not previously articulated this novel interpretation of Heller, neither side in the district court focused its evidence or legal arguments on proving or disproving that semiautomatic rifles such as the AR-15 are “most useful” as military weapons or on the question of whether qualifying as “militarily useful” would remove the weapon from Second Amendment protection. And the district court likewise did not address these questions. If this is the new standard, then basic fairness requires that the plaintiffs have an opportunity to squarely meet the issue. See United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010) (“Having established the appropriate standard of review, we think it best to remand this case to afford the government an opportunity to shoulder its burden and Chester an opportunity to respond. Both sides should have an opportunity to present their evidence and their arguments to the district court in the first instance.”).

5 In articulating and then applying its novel military usefulness test, not only has the majority failed to afford plaintiffs an opportunity to respond, but it has abandoned the summary judgment standard and reached a conclusion based on facts viewed in the light most favorable to the State, the proponent of the summary judgment motion, and not the plaintiffs as the non-movants. See Woollard v. Gallagher, 712 F.3d 865, 873 (4th Cir. 2013) (applying Fed. R. Civ. P. 56(a) in Second Amendment context and “viewing the facts and inferences reasonably drawn therefrom in the light most favorable to the nonmoving party”).​
 
We are all, to a large extent, just guessing what the arguments will be; none of us have a crystal ball.

I would hope the astute will know who to inform if a game-changing argument arises here.

The purpose of the amendment is that the people be able to defend themselves. The relevant question is "from what?"
 
we think it best to remand this case to afford the government an opportunity to shoulder its burden
That is the major problem for those pressing for firearms regulation and less than strict scrutiny. Their claims are specious and cannot be proven.
 
I think the first assumption here is that the SC will hear this on appeal. I don't think they will. I think the focus is too narrow, specifically is the AR-15 protected by the 2nd amendment.

The bigger question here is who can regulate the sale, purchase and ownership of firearms. Obviously the federal gov't can because they do. Who else is constitutionally empowered to do that and to what extent? I can see the SC becoming involved again with that question. They did with Heller and McDonald.

The next SC decision will probably set forth some guidelines as to how far a state can go in the regulation of firearms. I don't think this is the case to test that. I think we will see a case that focuses on shall issue and specifically a state's right to regulate before we see one that focuses on a specific type of firearm.
 
I think the first assumption here is that the SC will hear this on appeal. I don't think they will. I think the focus is too narrow, specifically is the AR-15 protected by the 2nd amendment.

A review by the Supreme Court is unlikely because there’s no disagreement between or among the appellate courts as to the constitutionality of measures regulating AR- and AK-platform rifles and magazine capacity.

Should a Federal appeals court invalidate a measure similar to the Safe Act or FSA, then the Supreme Court would be all but compelled to hear the case.

The bigger question here is who can regulate the sale, purchase and ownership of firearms. Obviously the federal gov't can because they do. Who else is constitutionally empowered to do that and to what extent?

State and local government likewise have the authority to regulate the sale and possession of firearms because they do as well.

Cities, counties, and other local lawmaking entities are of course subject to not only the Federal Constitution, but state constitutions and state laws concerning the regulation of firearms.

Heller recognized the right of individuals to possess firearms; McDonald incorporated that right to state and local governments, who many enact firearm regulatory measures provided those measures are consistent with current Second Amendment jurisprudence.
 
That is the major problem for those pressing for firearms regulation and less than strict scrutiny. Their claims are specious and cannot be proven.

Now you're making another basic error. There is substantial legal authority for the proposition that not every regulation of a fundamental right is subject to strict scrutiny.

To illustrate this we can again look at the regulation of rights protected by the First Amendment. These are generally considered fundamental rights but whether strict scrutiny or intermediate scrutiny applies will depend on the nature of the regulation. So, for example, while content based regulation would generally be subject to strict scrutiny, content neutral regulation, like regulation of time, place and manner, has been reviewed using an intermediate scrutiny analysis. See, for example, Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) and Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295 (1951).

As to the rights protected by the Second Amendment the courts have not yet made much progress sorting out when strict scrutiny should apply and when intermediate scrutiny might be applicable.

So once again you've demonstrated that you actually don't know as much about the law as you think you do.
 
1. The judges will decide on an emotional level whether they think you should have such guns. They will then quote precedents to support their opinion.

2. About self-defense and higher capacity mags - they can look on forums for everyone who said that:

a. All you need are three shots because that is the average.
b. If you carry an extra mag, you are a nut and wannabee commando.
c. The shotgun is the best gun for home defense (12 gauge, just rack it - Enuf Said!). How many shotguns carry more than 8 rounds?
d. Just carry a 45 ACP - as one shot does it! 8 round guns are typical!

I think my first point is the real variance. All the past stuff - Miller, militia, scrutiny, Heller, McD, blah, blah is just to be sorted to support your political/emotional viewpoint.

I predict they won't take a case. Even with the new guy - recall - they didn't when Scalia and Thomas were there and dissented. You will have to wait till more of the court changes and even then you can't trust the Ivy league bubble loving conservatives to support hi-capacity gun nut commandos with EBRs and 17 round handguns. Look at the history of who support bans - lots of conservatives.
 
There is substantial legal authority for the proposition that not every regulation of a fundamental right is subject to strict scrutiny.

All SCOTUS has to do is declare a second amendment right to be a property right and it's over. That reasoning is advanced in the amicus briefs for D.C. in D.C. v Heller.
 
Frank Eittn, how is an Assault rifle identified by the courts? What is the criteria for determining just what an assault rifle is? The very term Assault rifle was added to our lexicon by Josh Sugarman Anti-Gun activist. He also coined Saturday Night Special.
The U.S. Military describes an Assault Weapon very specifically. Does the term Assault weapon apply to an AR-15?

https://en.wikipedia.org/wiki/Assault_rifle
 
Frank Eittn, how is an Assault rifle identified by the courts? What is the criteria for determining just what an assault rifle is? .....

Read the opinion (I linked to it in post 19), and then explain to us how the question is relevant to a discussion of that opinion.

How did the Maryland law which was the subject of the court decision define the types of firearms subject to the restrictions of that law? Was that definition a matter of contention in the litigation? Was the definition material to either party's arguments in opposition to or in support of the constitutional validity of the law in question?
 
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And the theory was completely ignored in Heller. So it looks like a. Omplete non-starter.

I'm not sure I buy an argument from silence. A more specific dismissal in Heller would be more convincing. Maybe the authors of the decision wanted to save it for a rainy day?

Not mentioning a theory in a decision is in no way a binding precedent.
 
I'm not sure I buy an argument from silence. A more specific dismissal in Heller would be more convincing.......

The issue was raised in an amicus brief -- not by a party. Generally, if a court sees anything in an amicus brief which is remotely interesting or meaningful it will be mentioned. The theory was out of left field, not raised by a party, and ignored by the Court.
 
....Maybe the authors of the decision wanted to save it for a rainy day?....
Furthermore, it's unlikely that Scalia, et al, wanted to save the "property right" argument for a later day since it was advanced in support of the District of Columbia.

The amicus brief in question may be read here. The "property rights" theory was advanced to support "reasonable restrictions" on the RKBA (pg. 28)
....Any individual right to keep and bear arms unrelated to militia service would be essentially a property right and, as such, ought to trigger deferential judicial scrutiny. Property rights are among the oldest “fundamental” rights. See, e.g., Chicago, Burlington & Quincy Ry. Co. v. City of Chicago, 166 U.S. 226, 236 (1897). Nevertheless, for seventy years, this Court consistently has applied deferential forms of scrutiny to laws that enhance public welfare by regulating the ability of individuals to own or use their real or personal property....

This Court repeatedly has held that the right of individuals to own and use property is subject to reasonable restriction.....
 
A review by the Supreme Court is unlikely because there’s no disagreement between or among the appellate courts as to the constitutionality of measures regulating AR- and AK-platform rifles and magazine capacity.

Should a Federal appeals court invalidate a measure similar to the Safe Act or FSA, then the Supreme Court would be all but compelled to hear the case.

And there you have it. This entire argument of a state having a right to regulate assault rifles is a waste of everyone's time. How many decisions and in how many appellate courts will it take to establish that?

All these decisions do is embolden the states to enact more bans. We have one presently being considered in our (WA) state legislature. If it passes I'm pretty sure it will be upheld.
 
I think the focus is too narrow, specifically is the AR-15 protected by the 2nd amendment.
It was my understanding that the original case made no such assertion.
That the original assertion was that Maryland had banned certain arms by branding them as "more dangerous" but,could only define that by appearance.
Which is the part the 4th circus seems to have skipped over, instead citing the Maryland law being "to a greater public good" by "protecting" the public from "more dangerous" military weapons.

Now, in fairness, the 4th Circuit is not allowed to decide what is or is not "dangerous" to the public, so they relied upon the democratic process, that legislators in Maryland felt that they represented a sufficent majority of their consituents in deciding that the enumberated arms were, per lex, "more dangerous."

But, I still feel this is a weakness in their opinion. An M4gery is no more dangerous than a Mini-14, other than that the legislature has seen fit to make appearance the measure.

But, I fear that will require a completely different case, one argued from the very beginning that the public good is not served by whistling up bans based upon appearance.
 
Now, in fairness, the 4th Circuit is not allowed to decide what is or is not "dangerous" to the public, so they relied upon the democratic process, that legislators in Maryland felt that they represented a sufficent majority of their consituents in deciding that the enumberated arms were, per lex, "more dangerous."

But, I still feel this is a weakness in their opinion. An M4gery is no more dangerous than a Mini-14, other than that the legislature has seen fit to make appearance the measure.

But, I fear that will require a completely different case, one argued from the very beginning that the public good is not served by whistling up bans based upon appearance.

That's why Maryland also has a magazine ban. They aren't so stupid to not realize that there are other rifles out there that will accept a 30 rd magazine. I think at the heart of all of this is a rifle that will accept high capacity magazines. One has to realize that this is an anti-gun campaign to enlist the support of the general public. The public identifies with the AR (the military rifle) so it has become the poster child and focus to get state legislation passed to begin with.

What I find ironic is the fact that the fed doesn't regulate AR's specifically but some states do. I wonder if federal judges ever think about that when they decide to allow states to ban AR's. There has to be some common thread running through all of these appellate court decisions that support a state's right to do that. Could that possibly be the 10th amendment being exercised under the table?
 
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.....What I find ironic is the fact that the fed doesn't regulate AR's specifically but some states do. I wonder if federal judges ever think about that when they decide to allow states to ban AR's. There has to be some common thread running through all of these appellate court decisions that support a state's right to do that. Could that possibly be the 10th amendment being exercised under the table?

Remember, there was a federal AWB, and that expired (the particular law included a sunset provision).

And as far as federal courts not striking down state regulation of what are commonly called assault weapons, States do have general "police power", i. e.:
The inherent authority of a government to impose restrictions on private rights for the sake of public welfare, order, and security
which is acknowledged by the Tenth Amendment.

A fundamental curb on the a State's exercise of its police power is the enumeration of rights set out in the Bill of Rights, to the extent determined by the courts to be applicable to the States through the Due Process clause of the Fourteenth Amendment.
 
And the theory (property rights) was completely ignored in Heller. So it looks like a complete non-starter.

First it was a property right. Now it's a fundamental right. Now with the Fourth Circuit decision, will the flip floppin' ever stop?

<<<II. EVEN IF THE RIGHT TO PRIVATE OWNERSHIP OF WEAPONS IS A FUNDAMENTAL RIGHT, REASONABLE REGULATIONS OF THE RIGHT REMAIN CONSTITUTIONALLY PERMISSIBLE. Even if this Court declares the right to private ownership of weapons unrelated to militia service to be a “fundamental” right, reasonableness review remains the appropriate standard to judge weapons safety laws. The prevailing rule in the federal courts is that that the “right to possess a gun is clearly not a fundamental right,” United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984), and this Court has declared that there are rights “far more fundamental” than the right to bear arms, Lewis v. United States, 445 U.S. 55, 66 (1980). If this Court now departs from precedent and deems the Second Amendment right fundamental, this should not automatically trigger heightened review. First, despite the common expression that fundamental rights always receive strict scrutiny, this Court applies a number of different and more lenient standards of review, including reasonableness review, in fundamental rights cases. Second, guns are a form of property and even fundamental property rights trigger only lenient scrutiny under current constitutional doctrine.>>>

And it goes on seemingly non-stop:

<<<B. Guns Are a Form of Property Subject to Deferential Scrutiny. Any individual right to keep and bear arms unrelated to militia service would be essentially a property right and, as such, ought to trigger deferential judicial scrutiny. Property rights are among the oldest “fundamental” rights. See, e.g., Chicago, Burlington & Quincy Ry. Co. v. City of Chicago, 166 U.S. 226, 236 (1897). Nevertheless, for seventy years, this Court consistently has applied deferential forms of scrutiny to laws that enhance public welfare by regulating the ability of individuals to own or use their real or personal property. Weapons safety laws, which do no more than regulate the ability of individuals to own or use one particular type of personal property, should receive the same judicial scrutiny regardless of whether the right to bear arms is fundamental. This Court repeatedly has held that the right of individuals to own and use property is subject to reasonable restriction. In Nebbia v. New York, 291 U.S. 502 (1934), this Court upheld a New York law that set prices for milk, explaining that “a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose.” Id. at 537. This Court added that “neither
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property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows.” Id. at 523-24. What this Court wrote about milk is even more applicable to arms: Government cannot exist if anyone can use his or her gun at will to the detriment of others>>>

Chemerinsky & Winkler, Law Professors, Amicus Curiae in support of Petitioner Dist. of Columbia, No. 07-290 at 25
http://www.americanbar.org/content/...tionerAmCuChemerinskyWinkler.authcheckdam.pdf
 
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