Is Heller open to allowing an AWB?

[usmarine0352_2005]

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".

Haha.....good point.


"We also need to ban Assault Weapons because they are used in 90% of crimes." - Anti's.


(Which is a lot.)

.

 

[Ieyasu]

Sam Adams wrote:

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.

When in the service of the states, guardsmen are militia. They are subject to the militia clauses of the Constitution. However, once a member of a State Guard unit is ordered into active military service of the United States, that person is no longer under the command of, or serving, a State Guard unit (until they are relieved from federal service), but is now a member of the army.

 

[zxcvbob]

IMHO, Heller unlocked *all* the doors (just as Justice Stevens was afraid it would do.) I didn't actully open *any* doors except to allow licenses in D.C. The rest will come later; a little at a time.

 

[Robert Hairless]

IMHO, Heller unlocked *all* the doors (just as Justice Stevens was afraid it would do.)

Yup. The majority opinion not only unlocked them but unhinged and discarded them. It's an entirely new game now, with different rules including some that are yet to be established. Leadcounsel gave two obvious examples: "common use" and "were prevented by arbitrary action by the government from being in common use."

Through those two gaping holes one could drive several fleets of trucks.

But now, more than perhaps ever before, it's important to play smart. This game is not for amateurs who shout "No compromismo!" while rattling their sabres. If they try to play this game as if they knew what they were doing and had any sense at all, they can get the new rules and definitions stacked against us.

Robert Levy and Alan Gura were very careful to select a sympathetic and compelling panel of plaintiffs in the Parker case that became Heller. They did not include a Miller: the Miller case was about unsympathetic criminals. Although justice is supposed to be blind, judges and justices can smell a rat.

Hordes of hormonal 21-year-olds clamoring to have machineguns in their rooms in their parents' houses while waiting to qualify for Social Security benefits are unlikely to set good law or get much sympathy from anyone except Mom, and that's no help unless Mom is Hillary Clinton or Ruth Bader Ginsberg. It won't be any help then either, but at least they'll get a cookie with their milk.

 

[coloradokevin]

I'm still not entirely sold...

While Heller does have some promising parts, I don't know that it unlocked all of the doors for us yet. I still fear that the ruling was vague enough in some areas (for example, the ones I mentioned at the beginning of this thread) that a liberal judge may still pass down rulings in favor of gun control.

Let us not forget that the anti-gun crowd is also relatively happy in a lot of ways... They have even stated that they have a lot of room to work with now!

 

[H088]

The damage that they can do has been significantly reduced, it is now affirmed as an individuals right.

 

[gretske]

What Heller may have done, and we shall see, is to shift the responsibility to government to prove that laws and proposed laws DO NOT infringe the RKBA. Before Heller, they could put through any ban they wanted to, under the theory that 2A was a “collective” right. The cost and complexity of litigating this was daunting. Now, however, RKBA is a given, and anti-guns will have to show that their laws, when challenged, do not infringe this right.

This will also factor in any new attempt to implement an AWB in the future. Not a silver bullet, since SCOTUS left the door open, but a point for debate. Before Heller, this was not the case.

 

[yokel]

My concern is that Heller affords our adversaries far too much wiggle room to maintain and expand all their Mickey Mouse regulations and restrictions that smell of contempt for the Second Amendment, and are enacted with a view to deter, dissuade, and inhibit ownership of anything deemed objectionable.

 

[Sam Adams]

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.

What is interesting is that the NFA was ruled valid as a taxing measure, not as an outright ban on ownership (which would likely have been ruled unconstitutional, as it was in Heller). Since 1986, however, the BATF(E) has been prohibited from collecting a tax on full autos manufactured after 5/19/1986. How's that for unconstitutional: the law is OK because it is a tax, not a ban...Oh, and BTW, the tax is illegal to collect.

I am really beginning to get optomistic about the Hughes Amendment to the '86 FOPA going away, and possibly parts of the NFA as well. How, for instance, does it even pass rational scrutiny to have a person in legal possession of a pre-ban full auto prohibited from possessing a functionally identical firearm that happens to be post-ban???

 

[Prince Yamato]

Given that some pistols ARE "Assault Weapons", I would think that a ban would be rather difficult. AW bans are focused on features. Taking AR and AK pistols aside, you can buy a standard CZ pistol that has an accessory rail to which you can add a bayonet (so, in essence, it's a "lug" of sorts for your bayonet). You can also have a threaded barrel on CZ pistols, to which you can add a flash-suppressor or silencer. "Assault Weapons" will be proven to be a made-up category. It's basically shorthand for "military-style semi-automatic" or "neutered machinegun". Hell, even "machinegun" is a made-up term. Baby steps...

In short, if a CZ pistol... a common pistol and a weapon protected under Heller is an assault weapon, how can you pass a categorical ban on AWs without violating Heller? AW bans are feature bans and the CZ-75 has similar "features" to an AR or AK pistol- or at least it has similar features that would come under any AW Ban.

 

[22-rimfire]

I doubt that any sane person would argue successfully that a semi-automatic pistol is not a commonly used firearm. However, EBR's are not commonly used by anyone other than law enforcement and the military (important word is "commonly"). So, I think the Heller decision has absolutely no effect on whether or not the Federal government or a state government moves to restrict firearms that have certain features such as the commonly called, assault weapons.

The battle for 2A rights does not stop with Heller. The door was left wide open for further restrictions.

 

[H088]

EBRs are used by allot of people who have nothing to do with the military or government, look at all the AR-15, AK-47 and FAL owners

 

[esq_stu]

Without reading the other comments, my gut reaction is that Congress would have a higher burden beyond showing that guns with big mags and pistol grips look mean. They would have to make some kind of showing that the ban would have a meaningful benefit in furthering Congress' purpose of writing the law. I'm not sure that would be a slam dunk now that the individual right is spelled out and the standard of review is not "rational basis."

 

[22-rimfire]

I have no problem with them. I just would not say they are in common usage.

 

[H088]

They are in common usage, every single gun store I have been in has ARs, AKs and FALs on display, thats enough to define common usage.

 

[Regolith]

I have no problem with them. I just would not say they are in common usage.

They've been in common use for decades, and they're even more popular since the 1994 AWB. As H088 says, damn near every single gunshop has a couple on their shelves, and millions of civilians possess and use them. That's pretty common use.

 

[Prince Yamato]

I just would not say they are in common usage.

Most of the gunshops I frequent carry AWs almost exclusively. Frankly, I find hunting rifles to be so infrequent, I couldn't even tell you the names of them.

Seriously though, go through the rifle posts on THR, how many are about your Remington...umm... whatever the hell their hunting rifles are called?

 

[publius]

What is interesting is that the NFA was ruled valid as a taxing measure, not as an outright ban on ownership (which would likely have been ruled unconstitutional, as it was in Heller). Since 1986, however, the BATF(E) has been prohibited from collecting a tax on full autos manufactured after 5/19/1986. How's that for unconstitutional: the law is OK because it is a tax, not a ban...Oh, and BTW, the tax is illegal to collect.

Actually, we've been through that before, with the Marihuana Tax Act of 1937. The previous Harrison Narcotics Act of 1914 and National Firearms Act of 1934 were "taxes" which actually did produce some revenue, and the court in the Sonzinsky case passed on the opportunity to distinguish between an actual tax and a regulatory power grab masquerading as a tax. The Marihuana Tax Act was a ban, not just a regulatory power grab, masquerading as a tax.

None of it matters any more. Using the power to tax to gain federal regulatory power is so old fashioned. We use the interstate commerce clause now, so the repeal of the NFA would do nothing to undermine federal regulatory power.

 

[22-rimfire]

millions of civilians possess and use them

I doubt that. But frankly I like the EBR's and would not want them restricted in any way. Most of the gunshops I frequent stock them too. Relax as far as my comments are concerned. But, just expect Obama to try to have the revised AWB passed if he is elected president.

Been thinking about the Remington.... whatever.

 

[Elza]

22-rimfire: I just would not say they are in common usage.

Perhaps it depends upon the area in which one lives. I can’t speculate about your part of the country but they are very common here. I see racks of them in the gun shops and they are an equally common sight on the range.

 

[Kentak]

Heller wasn't about unlocking all the doors. It was about a de facto total ban being in violation of an individual right interpretation of the 2A.

We got the individual right affirmation. We also got an affirmation of the government's right to "reasonably" restrict the "how, what, and where" of keep and bear. The concept of regulating "dangerous weapons" was also affirmed.

If I was a pessimist, I could say that SCOTUS could very well interpret a revolver only law as being in full compliance. I hope that isn't the case, but no one can say with any certainty that it wouldn't be until this thing shakes out a little more.

K