Heller and Machineguns

[Slappy McGee]

I read the transcript of oral arguements for Heller and found it very intersting. I'm not a legal scholar or SCOTUS follower, but it was largely eminently readable.

What surprised me was the frequent mention of machine guns, and that "our side" basically said they supported reasonable restrictions, and repeatedly said machineguns were off the table and fell under "reasonable restrictions." The gentleman making the arguement did say he was concerned about what "reasonable" meant, and either he was put in a bind by some good questioning or hedging his bets to give the SC an out from having to render an opinion that would clearly allow MGs as the lower court's opinion seems to do. I was frankly a bit underwhealmed by the arguements in support of Heller.

DC's representative was fairly weak, and a very interesting point was that he repeatedly said DC recognized an individual right to self-defense, and there was nothing illegal about using a firearm to do so. When he tried to raise the old "it's for the children" and that there were >100,000 machineguns in circulation one of the judges said something like: Out of 300M people that's basically a statistical anomoly; stop using scare tactics. The justices did recognize that the primary arms of the "militia" were pistols and automatic weapons, and this did not seem to generate the fear and loathing I thought it might engender among the justices.

A general who presented (it was unclear to me which side he was supporting) repeatedly said that the militia provision meant that the 2nd applied to the most common arm fielded by the national guard: the machinegun.

All in all a very interesting read. Don't be put off by the 100+ page PDF document. About 30 pages are the index and the transcript style makes it shorter than the pagecount would indicate.

 

[AJ Dual]

First off, don't expect scripted TV/Movie court drama quality oratory. Alan Gura did a good job of not being drawn into red herrings. As a general rule, the court is more comfortable with ruling narrowly as possible, and he showed a good deal of legal accumen by not getting drawn into side arguments and showing the court his innate understanding of their view of jurisprudence.

On the other hand, Dellinger on behalf of D.C. got chewed up and spit out.

I believe the justices did not comment much on machine guns because they also knew was outside the scope of D.C. vs. Heller as well. There is also often a classroom air to Supreme Court oral arguments, where the justices will test the mettle of the presenting attorneys above and beyond the merits of the case, which are largely contained in the briefs anyway. Often simply seeing if they can think ahead and will foolishly rise to the bait laid out by one of the Justices. The oral argument phase is in some respects is also largely a pro-forma exercise anyway.

And as far as "reasonable restrictions", I think there's many people on this board who would be very happy simpy to see the '86 machine gun freeze poison-pill amendment to the otherwise very good (for us) FOPA be ruled unconstitutional, and have the NFA machine gun registry re-opened.

One step at a time.

And I notice that Chicago/Mayor Daley is making noises about re-opening the Chicago gun registry. They state it's to "get a accurate handle on the number of guns in the city", but I suspect they're already trying to deflect a federal court challenge over what they think will be a win for Heller and the individual rights interpretation of the 2nd Amendment.

http://www.suntimes.com/news/politics/960265,CST-NWS-mell21-web.article

 

[Bartholomew Roberts]

And I notice that Chicago/Mayor Daley is making noises about re-opening the Chicago gun registry. They state it's to "get a accurate handle on the number of guns in the city", but I suspect they're already trying to deflect a federal court challenge over what they think will be a win for Heller and the individual rights interpretation of the 2nd Amendment.

Interesting. Chicago is an obvious next step fight in order to get the Second Amendment incorporated. It looks like Chicago has decided to try and dodge that bullet.

 

[leadcounsel]

I was frankly a bit underwhealmed by the arguements in support of Heller.

+1

I understand that the arguments are already contained in piles of briefs, but it would have been nice to have it eloquently argued...

On the other hand, the Justices know all the arguments and I also got the impression they were just trying to corner the attorneys.

Either way, I feel that the briefs are stronger on the side of the 2A and I also feel that the 2A scored a victory on the oral arguments.

Dellinger on behalf of D.C. got chewed up and spit out.

+1

 

[Slappy McGee]

I was impressed by the quality of the oratory, and the lack of political "spin" the judges engaged in. I get most of my political news after it's been digested by the press, so seeing the process "up close and personal" was quite refreshing.

Based on my reading and idle speculation, it looks to me like the court will find the DC ban unconstitutional. Where I am worried is the old spectre of "Commonsense/reasonable restrictions" as Mr. Gura did a good job articulating.

While many have said Heller isn't about MGs and won't do anything immediately on the issue the frequent mention and lack of hand wringing by the justices was interesting if nothing else. They seemed to be well aware of the discrepency between what a well equipped milita would have, and what the civilan populace is allowed to have.

The other striking point was that the judge's questioning was mainly around firearms ownership as a liberty/right and facilitating self-defense. There was none of the "The 2nd ammendment is about pa's huntin' shotgun and target shooting" banter that the political candidates frequently engage in.

 

[Bartholomew Roberts]

I think the Justices were pretty clearly rolling around in their mind how you could say that the Second Amendment was an individual right and then say it did not protect machineguns (particularly in light of Miller).

I think some of them were batting around ideas that will be relevant to MG cases (like Kennedy suggesting that Miller was just flat-out wrong and that the Second Amendment was more about individual self-defense).

 

[everallm]

I'm still of the opinion, having plowed through the transcript and having listened, that we will see a final divorcing of "The Militia" from the intent of 2A.

Good and POTENTIALLY bad in that we will have the individual right of RKBA affirmed, something akin to scrict scrutiny applied but the whole issue around "militia" weapons (fully automatic etc) will be firmly sidelined.

Then again this is free internet opinion and therefore worth what you paid for it......

 

[W.E.G.]

Don't hold your breath waiting for a favorable SCOTUS ruling on post-86 machine guns.

Heller is about the issue of DC's outright prohibition of ownership of functional arms of even the most basic sort in the home.

Heller will lift the hard prohibition, while maintaining DC's ability to "regulate" (register) them.

 

[NukemJim]

And I notice that Chicago/Mayor Daley is making noises about re-opening the Chicago gun registry. They state it's to "get a accurate handle on the number of guns in the city",

Acually if you read the whole article Daley is NOT talking about opening up the Chicago Gun Registry. He is talkin about letting people who's firearms were registered and then forgot to renew the yearly registration. (If you forget to renew even by 1 day you can never renew under the current law)

During the month-long window, gun owners who attempted to re-register their guns between May 1, 2007 and April 1, 2008 only to be rejected on grounds the registrations had lapsed would be allowed to re-register without penalty.

It has been amusing listening to Daley about this

NukemJim

 

[rugerman07]

Reasonable restrictions is a clause that bugs the heck out of me. Just what do they mean by this? Are they saying that the federal, state, & local governments can impose any restrictions they see fit, even though it may violate our second amendment rights? The way I see reasonable restrictions is, it's an open door that needs to be closed. That clause needs to be etched out in stone. Be more specific, just what are reasonable restrictions?

 

[TexasRifleman]

Are they saying that the federal, state, & local governments can impose any restrictions they see fit, even though it may violate our second amendment rights? The way I see reasonable restrictions is, it's an open door that needs to be closed. That clause needs to be etched out in stone.

That's what the next 20 court cases will do unfortunately.

The Supremes won't define it in their ruling, if they go that way.

 

[rugerman07]

The Supremes won't define it in their ruling, if they go that way.

If the supremes rule the RKBA is an individual right, but not rule on the meaning of reasonable restrictions, Then we, as law abiding gun owners will lose.

 

[H088]

We don't lose actually, if anything we win because it destroys the antis-argument of guns only being owned by goverment. It only leaves open future court cases.

 

[Mike OTDP]

If I had to bet, Justice Kennedy's idea of divorcing the 2nd Amendment from pure militia duty will prevail.

It's the only way to avoid ruling that not only does the 2nd Amendment protect an individual right, but under the Miller case, military arms are particularly protected. Which means that you can regulate Olympic Free Pistols, but not M-16s. Which is not logical.

 

[Tommygunn]

The Heller decision will NOT EFFECT MACHINEGUNS, it will only effect the right of Washington D.C. residents to possess firearms.

 

[rugerman07]

It only leaves open future court cases.

My point is, it shouldn't leave any doors open for the anti's to rob us of our constitutional rights.

 

[zxcvbob]

Machineguns is an battle for another day, and even it will be won in two or three steps not one big victory.

 

[rugerman07]

Machineguns is an battle for another day, and even it will be won in two or three steps not one big victory.

I'm not talking about or singling out machine guns, or any other weapon. I just want to know what they mean about reasonable restrictions.

 

[Joe Cool]

The question being considered...

"whether (these DC laws) violate the Second Amendment rights of individuals who are not affiliated with any state regulated militia but wish to keep handguns and other firearms for private use in their homes?"

The prediction made at NJCSD indicates as others have said they will find for an individual RKBA. It also predicts the judges will consider and likely offer something on:

1. What circumstances may lead to restrictions
2. What restrictions may be considered

In that last part of the prediction, it is possible that types of weapons may be restricted as well as who may possess (no mentally impaired violent criminals, etc...) for the common good.

In further thinking about who said what during the proceedings, I would not be surprised if the aspect 'what may be needed by an individual for self or family defense' may not be restricted, which may make it into a reasonableness test. The thinking being yes it's an individual right, but that individual right is for individual protection and thus shotguns, pistols and semi-automatic rifles do just fine for individual protection, while machine guns are better for militia use. Thus shotguns, pistols and semi-automatic rifles,etc., may not be restricted for individuals who wish to keep them for self defense of their home, persons or properties...

Before y'all go flaming me or this post, I see and agree with the other side of the argument. I am just indicating what the SCOTUS might say. IMHO, the 2A preserves the right of the people to 'throw off such government' that has otherwise become ineffective, oppressive, etc.

 

[DKSuddeth]

unless people completely ignored scalias comments about MGs not being militia weapons because they didn't exist at that time, the excitement of getting the hughes amendment ruled unconstitutional is a dream.

There are only two justices sitting on that court that actually believe in the constitution as written, and for all of scalias hype about strict constructionism, he is a pro government justice who does not believe that the PEOPLE are the soveriegn power of the USA.

 

[Huddog]

Ok, when machine guns were taxed to the point that it is not simple to purchase them and the gvt requires special tax stamps in order to do so it was done with the understanding that if the Government tried to make machine guns or short barrelled shotguns "illegal" the Supreme Court would probably rule that a violation of the Second Amendment. Thus the "Tax" rather than an outright ban. I do not believe the SC will address machine guns in Heller and I believe from my reading that it may be a very narrow decision. I also think that much like it has occured to the 4th ammendment reasonable restrictions will be permitted with some test of what is a reasonable restriction and case upon case to follow to get rulings as to what constitutes a reasonable restriction. I will be extremely shocked if Heller is broader than that.

 

[PLRinmypocket]

"whether (these DC laws) violate the Second Amendment rights of individuals who are not affiliated with any state regulated militia but wish to keep handguns and other firearms for private use in their homes?"

Doesn't the fact that "handguns and other firearms" is part of the SC's question mean they will have to define what is meant by "other firearms" in order to render their decision? or do they go by the ATF's definition of a firearm as being anything that uses an explosion to propel a projectile. (which would include all NFA weapons).

 

[yokel]

In further thinking about who said what during the proceedings, I would not be surprised if the aspect 'what may be needed by an individual for self or family defense' may not be restricted, which may make it into a reasonableness test. The thinking being yes it's an individual right, but that individual right is for individual protection and thus shotguns, pistols and semi-automatic rifles do just fine for individual protection, while machine guns are better for militia use. Thus shotguns, pistols and semi-automatic rifles,etc., may not be restricted for individuals who wish to keep them for self defense of their home, persons or properties...

This claim is intellectual dishonesty in the very least.

The security of a free state depends upon armed individual citizens defending their sovereignty, their territorial integrity and independence in concert with others, rather than everyone operating alone or remote from society in the event of crisis or catastrophe.

 

[Sebastian the Ibis]

Alan Gura did a good job of not being drawn into red herrings. As a general rule, the court is more comfortable with ruling narrowly as possible, and he showed a good deal of legal accumen by not getting drawn into side arguments and showing the court his innate understanding of their view of jurisprudence.

+1, The justices know all the answers ahead of time, they just try to trip up the attorney so that they can mock their position later on in conference. Gura wisely avoided all the stuff they were throwing out for him, if it wouldn't help him in this case he didn't touch it. Someone else can argue it in detail later.

On the other hand, Dellinger on behalf of D.C. got chewed up and spit out.

+1

I believe the justices did not comment much on machine guns because they also knew was outside the scope of D.C. vs. Heller as well.

+1, Machine guns are another case for another time.

The arguments went as well as we could ask for. Kennedy is definitely on our side and Souter may be too. And beyond that No justice really seemed to support the collective rights argument- Breyer and the others were going for "reasonable regulation" instead.

This case was brought specifically to get the supreme court to reverse the prevailing jurisprudence and say "the 2nd amendment is an individual right...." When it was first brought nobody gave them a shot, the NRA tried to scuttle the whole case. Gura and the Institute for Justice have done amazingly well and they deserve our support.

 

[gbran]

"whether (these DC laws) violate the Second Amendment rights of individuals who are not affiliated with any state regulated militia but wish to keep handguns and other firearms for private use in their homes?"

The next big issue will be that the RKBA is not confined solely to the home and our forefathers didn't intend that we lose our RKBA when we left our homes and mounted our horses or buggies.