Is Heller open to allowing an AWB?

[coloradokevin]

Okay, hear me out here for a minute... I know we are all tired of this case by now, but I'm starting to think towards the next battles to be fought in this area of law!

I just read the entire majority opinion from the SCOTUS' decision on DC v Heller. This isn't exactly light reading material, and my mind is still foggy from the first 64 pages!!!

While I was encouraged by much of what the justices said, I was bothered by a few things...

Please reference pages 52 and 55 of the Supreme Court opinion, as I can't figure out how to cut/paste from a PDF file.



Page 52 essentially states, in part, that the NFA machine gun ban is not going to be overthrown by this decision (okay, never expected that anyway). This portion of the decision explains their interpretation of the Miller case, and mentions arms "in common use at the time" in the context of what the 2A intends to protect.

Page 55 concerns me more, as it mentions how it is lawful to prohibit the carrying of "dangerous and unusual weapons". The M-16 is actually mentioned near the end of this page, in a somewhat tangentially related context.



So, for those of you who have taken the time to read the decision, do you think that it is plausible that we'll be facing yet another "evil black rifle" ban in the not-too-distant future?

Lets face it, "commonly used" arms leaves a lot of room for interpretation, and I'm not so sure that Heller has insulated us to some of these unreasonable gun restrictions! Just thought I'd get some thoughts about the strength (or lack thereof) of the Heller decision!

 

[Regolith]

Given that the justices specifically stated that bans on commonly used firearms are not justifiable, then no, I can't really see another AWB passing constitutional muster. Rifles that have been inaccurately called "assault weapons" have had common civilian use for DECADES, and the ownership of them took off after the original AWB expired (actually, they sold pretty well under the AWB too, just with a few cosmetic changes), which simply reinforces the common use aspect.

 

[VPLthrneck]

Here is the text where the M16 is mentioned. When taken in context it has little to do with the earlier paragraph where Justice Scalia uses the wording "dangerous and unusual weapons." (Note all the references for this terminology in his writting)

It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause.

As I read it the Barrett would be covered under this statement.

I do like how Justice Scalia expounds on the "common use" phrase from the Miller case and it's historical perspective:

men were expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.

and

The traditional militia was formed from a pool of
men bringing arms “in common use at the time” for lawful
purposes like self-defense.

This I feel adds a layer of protection against certain types of gun-bans i.e. "the evil black gun" or semi-auto pistols (in DC)
Anything that shoots a .223 would be covered under this, after all AR-15's are in common use at this time.
The phrase "in common use at the time" can be argued sun-up to sun-down, but I feel it protects much more than it reads; there is much history to back up 6 words.
Is this ruling free from out-of-context reading? Of course not, but it did what it was mean to do and what the Miller case never did--afffirmed the rights of the people--individually!

 

[coloradokevin]

Thanks for the replies so far!

VPL, I am greatly indebted to you for that tip on how to copy text from PDF files, I've been trying to figure that out forever!!!

One thought I had parallels what Regolith was saying. That is, that the so-called assault weapons have been around in "common use" for decades. Moreover, they are more popular now than they have ever been! Years ago you'd hardly ever see them in gun stores, whereas these days they are a hot-ticket item (used by competitive shooters, varmint hunters, recreational shooters, etc).


Anyway, here is the exerprt from p 52 that I was refering to (BOLDING ADDED BY ME):

We may as well consider at this point (for we will have
to consider eventually) what types of weapons Miller
permits. Read in isolation, Miller’s phrase “part of ordinary
military equipment” could mean that only those
weapons useful in warfare are protected. That would be a
startling reading of the opinion, since it would mean that
the National Firearms Act’s restrictions on machineguns
(not challenged in Miller) might be unconstitutional,
machineguns being useful in warfare in 1939. We think
that Miller’s “ordinary military equipment” language must
be read in tandem with what comes after: “[O]rdinarily
when called for [militia] service [able-bodied] men were
expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.” 307 U. S., at
179. The traditional militia was formed from a pool of
men bringing arms “in common use at the time” for lawful
purposes like self-defense. “In the colonial and revolutionary
war era, [small-arms] weapons used by militiamen
and weapons used in defense of person and home were one
and the same.” State v. Kessler, 289 Ore. 359, 368, 614
P. 2d 94, 98 (1980) (citing G. Neumann, Swords and
Blades of the American Revolution 6–15, 252–254 (1973)).
Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced
in its preface. We therefore read Miller to say
only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens
for lawful purposes, such as short-barreled shotguns.
That accords with the historical understanding of the
scope of the right, see Part III,

I'm a bit of a cynic, I have to admit... So, I'm already attempting to examine this document from the perspective of a person, or group of people, who would look for loopholes!

The "common use" thing is a bit subjective, and argueably varies greatly from region to region (for example, the now-deposed DC handgun ban would have made handguns a weapon that was not in common use in that area for many years! From the looks of things, the mayor of that town is still trying to skirt this decision by not allowing semi-automatic handuns). And, while I completely agree that AR-15 type rifles (and others) are quite common, I could still see a more liberal administration attempting to argue that they aren't commonly used for "lawful hunting or home defense purposes" (the same old tired arguments they always use). And, let us never forget that liberal administrations appoint liberal Supreme Court Justices!

 

[publius]

The greatest thing is that Scalia threw in "lawful purposes like self defense" whenever he got the chance. It was quite open to question whether self defense was a lawful purpose, and now it's not.

Another lawful purpose under the 2a would have to be when state militia units train with their machine guns (I think we've got a 9-0 Supreme Court margin on that question), and the M-16 is certainly in common use for that lawful purpose. Now, keep in mind that the whole question of who can own what is unconnected with service in a militia, per the Heller majority.

Where's my M-16? I should be able to go to Wal Mart and get it!

 

[Blackbeard]

I would think that any future AWB would be in trouble, since the Court specifically stated that the 2A protects the right to own arms suitable to military service. It would be very difficult to argue that "assault weapons" are not suitable to military service. I think the closed NFA registry may not survive, if even the NFA itself.

 

[Reddbecca]

Simply put, I see absolutely no room to negotiate an AWB in the Heller ruling.

Of course, when has a Supreme Court ruling ever stopped the government from doing what they want to anyway?

 

[ScottsGT]

Well, at least they didn't mention the M-4

 

[armoredman]

IMHO, which is worth about $.02 less than you paid for it, the Heller decision specifically DENIES any future AWB. Any attorneys here?

 

[ProficientRifleman]

IANAL...but:

The last line of the decision says that the lower court's ruling is affirmed. The lower court said that once a weapon is determined to be an "arm" under the second amendment, it is not open to the state to ban it.

Will the Socialists in our government try to ban guns again?

Yes.

At least now we know we have redress in the federal courts.

There will eventually be a case challenging the Hughes amendment. That case is winnable, based on the dicta in the Heller decision. We'll see.

Loss of hope is a mortal sin.

PR

 

[TexasRifleman]

The last line of the decision says that the lower court's ruling is affirmed. The lower court said that once a weapon is determined to be an "arm" under the second amendment, it is not open to the state to ban it.

They will do the same thing Fenty is doing in DC; allowing revolvers and ban semi's to skirt the edge of the ruling.

With the AR, it will be like before; not a total ban.

Remember that ARs were never totally banned, just some "features" like magazine capacity, flash hiders, the always evil bayonet lug, etc.

"Oh, it's not a BAN, they can have all the 5 round ARs they want as long as there's no shoulder thing that goes up....."

 

[USAFNoDAk]

I would think that any weaponry which is ordinarily issued to a national guard troop before he/she goes into a combat zone, would be protected by Miller and is relative to the descriptive clause in the Second Amendment. In addition, any weapons which are useful for self defense in the home are generally protected by the Second Amendment and it's operative clause.

Thus, select fire M16's would be covered, as would handguns, AR15's, AK's, hunting rifles, shotguns, etc. Nuclear weapons would not be included, because the national guard does not have nukes of any kind. I am personally comfortable allowing the organized part of the militia, being the National Guard, to keep the tanks, howizters, and other crew served weapons and other ordnance, such as grenades, bazookas, RPG's, anti tank missiles, etc. But the common citizen should be able to keep and bear select fire small arms, handguns, rifles, shotguns, combat knives, swords, and other weapons that are easily carried on ones person and can be used for militia duties and/or self defense.

 

[USAFNoDAk]

Here's another ironic take on the Heller decision and how it relates to rights.

How many times have we heard, "healthcare is a right and thus the government ought to pay for the healthcare of anyone who can't afford it"?

I heard that some politicians are saying that because the Internet is a "right" under the 1st amendment protection for speech, that the government ought to provide it for those who cannot afford it. They already do this to some extent at public libraries.

Well, now that the USSC has ruled that the right to keep and bear arms is indeed a right, then the government should also pay for those who cannot afford the costs to keep and bear arms, so long as you are not a prohibited person, that is.

I can't afford an M16 or an M4. I can hardly afford my gun club annual dues. Ammunition is getting pretty expensive if you ask me. I'm having a hard time making ends meet and buying ammunition on top of it. Where are the politicians demanding that the government provide the right to keep and bear arms for the poor? Why don't we have government run shooting ranges, like we do libraries? You could check out a gun and some ammo and do a little shooting on the public's dime. They let you view movies for free from the public library.

 

[yokel]

But the common citizen should be able to keep and bear select fire small arms, handguns, rifles, shotguns, combat knives, swords, and other weapons that are easily carried on ones person and can be used for militia duties and/or self defense.

The principal intent of Second Amendment was that people be able to defend themselves from invasion and the possibility of a government gone horribly wrong.

It'd be nearly impossible to do so if we were restricted such relatively meager firepower as mentioned above and the judges, politicians, and beauracrats see fit to allow us. No, you fight force with force, and to do so, you need the proper tools, e.g. heavy machine guns, grenade launchers, man-portable anti-tank and anti-aircraft guns and missile launchers, recoilless rifles, and mortars.

 

[Sam Adams]

Another lawful purpose under the 2a would have to be when state militia units train with their machine guns (I think we've got a 9-0 Supreme Court margin on that question), and the M-16 is certainly in common use for that lawful purpose. Now, keep in mind that the whole question of who can own what is unconnected with service in a militia, per the Heller majority.

The state militia - i.e. the National Guard - is NOT the Constitutional militia. That old collective right canard was buried in the 1990 Perpich decision. It was decapitated, with multiple stakes through the heart and a generous dose of silver bullets...it was a 9-0 decision. The NG is federal.

Regardless of whether a state's militia is or isn't the NG, those full autos are government property, and cannot be sold to the militia members (if post-'86 manufactured, that is) under current US law - WHICH I REGARD AS UNCONSTITUTIONAL. Nonetheless, such weapons won't help us - "common use" for those of us civilians that want to buy a new m16 or m4, or buy "da switch" for an existing semi-auto AR clone. The state militia/NG units are part of the government, and do not have any restriction or loss of rights under the '86 ban (first, because they can buy whatever our tax dollars can purchase, and second because a government has no rights, only powers).

"Common use" applies to guns in the hands of the unorganized militia, i.e. the mass of the people. There are roughly 150,000 or 200,000 full autos in civilian hands, period. That's because of federal law since 1934, and I think that we'd win in the USSC on a case trying to overturn the Hughes Amendment - the Court will see right through that Catch-22.

 

[maestro pistolero]

Please reference pages 52 and 55 of the Supreme Court opinion, as I can't figure out how to cut/paste from a PDF file.

try opening it in your browser

 

[Defensory]

The FBI Uniform Crime Reports prove the AWB was absolutely worthless. Please recall that the AWB was signed into law in September of 1994, and expired in September of 2004.

Below are the LEO deaths attributed to ALL rifles over the ten year period 1997 through 2006. Please note that in the two years AFTER the AWB expired, the number of deaths DROPPED substantially.

Which proves to anyone possessing common sense and intellectual honesty, that the legal availability of "evil black rifles" has virtually NOTHING to do with police being killed by rifles in the line of duty.

If gun grabbing liberals were truly interested in saving the lives of LEO's, they'd be scrutinizing their own policy of paroling violent felons after they've served only a small fraction of their sentences.

A substantial number of LEO's are killed by parolees with prior convictions and violent criminal histories.

1997--12
1998--17
1999--11
2000--10
2001--11
2002--10
2003--10
2004--13
2005---3
2006---8

http://www.fbi.gov/ucr/killed/2006/table27.html

 

[TexasRifleman]

The FBI Uniform Crime Reports prove the AWB was absolutely worthless. Please recall that the AWB was signed into law in September of 1994, and expired in September of 2004.

Don't kid yourself, those bans are never about reducing crime. You can show proof all day that crime wasn't reduced and the same bunch will still want to implement the bans.

That's a dead end argument I'm afraid.

Which proves to anyone possessing common sense and intellectual honesty,

And of course none of the Congresscritters that would pass such a ban have these 2 things anyway.

I mean, you're absolutely right of course but they simply don't care about that. They want control.

 

[Defensory]

Posted by TexasRifleman:
Don't kid yourself, those bans are never about reducing crime. You can show proof all day that crime wasn't reduced and the same bunch will still want to implement the bans. That's a dead end argument I'm afraid.

I wasn't suggesting that we try to use that argument when debating with committed liberals and gun grabbers, TR.

That's the argument we need to use on the MANY gun owners out there who mumble things like "Aw shucks, I agree those things should be banned." I talked to a young man a while back who owned a Remington 870, and he told me flat out that he believed "assault" rifles should be illegal.

It's also useful for soccer moms and joe sixpack dads who've never given it a lot of though either way, and see nothing wrong with the AWB. We can't reach and convince all of them, but if we want to preserve our rights, we better make an honest attempt to reach as many of them as we can.

 

[outerlimit]

I hope that one day we will at least be able to purchase new select fire rifles again. I feel funny already paying $2,000-$3,000 for a quality semi-auto that isn't select fire.

 

[Kentak]

It's entirely possible that Heller won't prevent another AWB. To believe it will you have to see an awfully broad application that has yet to be tested. My belief is that, as before, it's political action only that will prevent another AWB. There is probably more than one Zumbo among the majority on the court.

K

 

[RP88]

as posted, look at all of what Scalia said. He has essentially laid basic footwork for 'common use' weapons. To pass an AWB would seemingly require an overturn of the Heller decision. Or, since the case didnt exactly set a HUGE precedent, maybe it won't. But there is precedent. That and the fact that the last AWB was an utter failure and career-killer for a dozen or so forerunners for it make me think that one would not seriously be passed. We would need more overturnings to push the line too far back for them to go after EBRs, though, so I won't say that it cannot happen.

 

[publius]

"Common use" applies to guns in the hands of the unorganized militia, i.e. the mass of the people. There are roughly 150,000 or 200,000 full autos in civilian hands, period. That's because of federal law since 1934, and I think that we'd win in the USSC on a case trying to overturn the Hughes Amendment

I think the Hughes post-86 ban is in danger of being overturned.

The opinion of the court:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Putting a happy switch on an AR-15 doesn't make it "sophisticated" does it? The ban is the only "modern development" which has made the AR-15 common in civilian hands and the M-16 scarce.

The antis and the solicitor general were worried that the SC ruling in Heller might endanger the post-86 ban. I think they may have been right.

And what about the NFA? The opinion of the court:

Obviously, the same (edit: rational basis) test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. (footnote 27)

If that's how the Court views the second amendment, the next question would be, can you have a regulatory tax like the NFA on a right which stands alongside freedom of speech? The Miller decision held that the NFA was OK, citing Sonzinsky v. United States and various narcotics cases. In Sonzinsky, the court held that the NFA was within the power of Congress to tax, but they didn't mention the second amendment at all. I think the NFA could now be attacked on the same grounds as poll taxes.

 

[leadcounsel]

I don't see an AWB having legs in congress for the following:

1: "Common Use" langauge of Heller - let's face it, the first AWB made "Assault Weapons" VERY popular. Now they have flooded the market and ARE very common. It was political suicide in '94 to sign onto the AWB, the anti gun position was suicide for Gore in 2000 and Kerry in '04. It would be political suicide, especially now that Heller is PRO 2A Individual Rights, to sign onto an AWB. This is where I think McCain will CRUSH Obama.

2. The simplies argument for Class III is that BUT FOR THE RESTRICTIONS BY THE GOVERNMENT, CLASS III WOULD BE COMMON. Stated differently, how can a government effectively restrict something to nearly the point of extinction and then argue that it's illegal because it's not common?

 

[makanut]

I've read some commentary on this board about falling into the "common use" trap. "Common use" is no doubt open to interpretation and can be interpreted however a judge sees fit. I do know that "assault weapons" are more prevalent in Georgia than say for instance California or Mass. Nontheless, by the antis own admission, assault weapons have "flooded the streets" after the expiration of the AWB and are now easily available on "the street".