How can a few states defy Heller and ban the most protected firearm in the USA

[AlexanderA]

So the context in which "common use" was applied was in any and all WEAPONS and not just "handguns" that are protected by the second Amendment. Heller found and clearly states that prohibiting the carry of dangerous and unusual weapons was okay, but all other weapons that are in common use at the time, which encompasses AR15s and other assault rifles, are protected and can not be outright banned.

The lower federal courts do not agree with you.

 

[AlexanderA]

Isn't the definition of "keep and bear arms" still undecided? May issue jurisdictions only allow the "keeping" part, I'm allowed to have a firearm in my home (and a few other places on a list defined as being similar to one's home), but if I'm not allowed to carry a firearm on my person when walking down the street, I don't see how I have the right to "bear" arms. This exact point was weasled out of by the 9th Circuit in their en banc review of Peruta, where they refused to consider the point that since California prohibits open carry, denying concealed carry as well effectively denies the right to "bear" arms.

You're assuming that "bearing" arms is synonymous with "carrying." When the 2nd Amendment was written, "bearing" arms had a specific meaning that went beyond mere "carrying." For example, when they talked about "men capable of bearing arms," they meant people that were physically fit enough to muster, with their weapons, as part of a militia. "Bearing arms" traditionally had a military context.

 

[danez71]

Alexander. where are you getting that from? That is substantially different that what was said in Heller.


While it may not be completely settled, 'Bear' has been touched on a couple of times.

Quoted (Scalia) from Heller

In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “surely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.

 

[AlexanderA]

Quoted (Scalia) from Heller

One more example of how confused Scalia's opinion in Heller was. Whenever he strayed from the core issue in the case (whether Heller could keep a handgun in his home for self defense), Scalia's analysis left a lot to be desired. I'm not the only one saying this. The opinion has been roundly criticized in the law journals, even (or especially) from scholars supporting the RKBA.

But I do understand what Scalia was trying to do. He was trying to muddy the waters enough so that Justice Kennedy could get on board with the decision. Without this obfuscation, the case could easily have gone 5-4 the other way.

 

[Zoogster]

First I find the 2nd was quite clear early on, and only through people being allowed to erode the right did it start to be questioned and then 'require' Heller to say yes in fact it is an individual right, just like every other right in the Bill of Rights the nation was founded on. I understand a lot of the court drama, and have made much more articulated legal posts in the past, but rather than play into it completely I am expressing a more detached realistic perspective.

The truth is enough people feel the real intent behind the 2nd is outdated and too dangerous to acknowledge. So instead they have created these interpretations that feel odd because they are trying to keep a core original right without having it be too extreme while ignoring the actual purpose and intent behind the right, and the historical perspective behind it.
Miller more closely addressed that reality, and that is why Heller had to completely remove Miller from any consideration to create a new interpretation.
However that interpretation was made, and that interpretation quite clearly said in common use firearms in the United States were protected arms.
Only legal minds wanting a different outcome could weasel out of that interpretation to say it was just handguns or some other nonsense so that an issue already resolved was allowed to become once again unresolved.

Our legal system is also somewhat of a joke at this point because it consists of a lot of for profit entities, who rely and exist on disputes. A big part of why even basic things in the court system are not streamlined. Attorneys and judges do not benefit from a system that requires them less often. A busy constant jam packed court system is what creates the most career opportunities for the legal profession, and new positions to fill.
Disputes are what attorneys live on, and guns have a lot of money behind them on both sides.

In Miller they addressed the militia issue and even said the short barreled shotgun and by conclusion other restricted classes at the time would be protected arms if someone submitted proof that they were actually militia suitable weaponry. Since nobody argued on behalf of Miller or submitted anything to the court as he had died already, they could not consider evidence not submitted.
But in modern times that would have acknowledged even more dangerous modern portable weapons required to fight a modern force would be protected, and they were not quite willing to say that and instead wanted to keep the 2nd as a protecting basic guns right.
Well they did that, and yet the lower courts refuse to even follow that.

So even the watered down 2nd Amendment right to your own firearm that is already in common use is not followed.

 

[Frank Ettin]

The foregoing editorial is outside the scope of the Legal Forum. So we'll close this.