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The Big Heller Decision Discussion Thread - AFFIRMED 2ND AS INDIVIDUAL RIGHT

Discussion in 'Legal' started by Bartholomew Roberts, Jun 26, 2008.

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  1. Zoogster

    Zoogster Member

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    "That would be a
    startling reading of the opinion..."

    Is saying it is radical to him, essentialy not his opinion.

    "We think
    that Miller’s “ordinary military equipment” language must
    be read in tandem with what comes after"

    Is saying that what his actual opinion is now, and redefining Miller (and the beliefs at the time, keep in mind Miller actualy won in the lower court and NFA was declared unconstitutional.)

    "We therefore read Miller to say" Once again saying the old understanding of Miller and society at the time is being replaced with this current new understanding of what they feel Miller REALLY meant. :rolleyes:


    Miller was 'dangerously' pro machinegun, and the court corrected that today.


    It is correct the Miller decision was very bad, because it affirmed that some restrictions, namely the NFA as it pertains to shotguns was legal, opening the way for a tidal wave of future restrictions.

    It was however pro possession of military arms.

    He is saying that Miller had some pro machinegun aspects that were not a direct issue in the case since it was about a shotgun. That to base a decision on the Miller case in a pro machinegun way because it alluded that the decision would have been different had it been a machinegun and not a shotgun was a bad course of action for the court to take now.

    Like I said, he affirmed the negative aspects of Miller and removed the positive pro machinegun and military weapons aspect of Miller so only this decision would have a bearing on that and not Miller.
    His reasoning is it was not a central part of the case or directly ruled on, so ignoring that positive pro machinegun aspect is correct.

    He however then allows future speculation on the assault rifle issue in:
    weapons used by militiamen
    "...and weapons used in defense of person and home were one
    and the same..."

    Why would the court strike down positive old references to machinegun ownership, while inviting new thought on the issue? Be very cautious. To me that sounds like preparation for an anti machinegun ruling if one makes it to them. I certainly hope not though.
    Notice there is also little reference in that to weapons suitable for defense against tyranny, which was the primary purpose the founding fathers had in mind. Weapons suitable to that task could be very different than those only used for defense of "person and home".
     
  2. ScottG1911

    ScottG1911 Member

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    GIT R DONE:D


    DC <----:cuss:
     
  3. Matt Dillon

    Matt Dillon Member

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    In all our elation with this victory, a sobering thought is that it was a 5-4 decision. Consider if the leftists got one or two more on the court, and it wouldn't have gone this way.
     
  4. toopercentmlk

    toopercentmlk Member

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    I want to be a part of this historic thread, Happy Second Amendment day everyone! (June 26th!)
     
  5. msb45

    msb45 Member

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    Be Happy Then Vote

    I agree the 5-4 is a scary position to be for something so obvious. Get yourself and your people out to vote in November. One bad nomination could mean no guns, oh OK you can have a musket.

    You don't need a license to pray to your God. You don't need a license to speak. Let's keep it that way.

    As for the law not applying to the states(?). What part of constitution being the Supreme Law of the land is confusing?
     
  6. ctdonath

    ctdonath Member

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    No, the verdict makes it very clear it is a natural right. That does not, however, make it an unlimited right.
     
  7. Poper

    Poper Member

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    Zoogster: I am not a lawyer, but the plain english of Scalia's quote below
    appears to not say "machine guns are a no-no." Rather that Miller has NO bearing on their interpretation of the 2A. Again I reference ppg 55 where he states:
    It appears to me (a layman, to be sure!) that this is where the challenge to the '86 MG ban is valid.

    Then again, I ain't no lawyuh.

    Poper
     
  8. Poper

    Poper Member

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    Bingo!

    Poper
     
  9. Dave Workman

    Dave Workman Member

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    What on earth are you talking about? Four of them may not have read the Constitution, but Scalia and the majority seems to have it right.

    I think some people are misreading the ruling (as in look for the worst case scenario and start moaning about it!). The way I read it, Scalia left a door pretty wide open suggesting that military-type arms, the kind in common use at the time, and he even has a remark in there about one day SCOTUS will have to address machine gun ownership.

    What is wrong with that? This case had nothing to do with Class III weapons and you guys know it. It dealt with a handgun ban in DC that violated the INDIVIDUAL CIVIL RIGHT to have a gun for purposes beyond military / militia use. We won. We have a "building block" ruling upon which to build.

    15 minutes after the ruling was issued, SAF and the Illinois State Rifle Association filed a federal lawsuit against Chicago and Mayor Daley.

    FIFTEEN MINUTES. And Daley was going berserk on the air within an hour. There's a problem with this?

    Jeez Louise.
     
  10. Dave Workman

    Dave Workman Member

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    Don't know what you're talking about.

    First, when the amendment was passed, every man DIDN'T carry a gun holstered openly because they more commonly carried rifles. Not everyone owned a pistol or brace of same (they were single-shot muzzle loaders at the time, revolvers didn't come along until a bit later) and they quite often carried pistols, if they had them, simply stuck behind their belts.

    As for the rest of your remarks, I believe you simply want something about which to complain. Read the language again, and again. I don't think it is nearly as doomsday as you contend.
     
  11. Poper

    Poper Member

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    I agree whole heartedly. It appears to me that Scalia went much farther than the issue presented to the Court than expected. The fact that he did his level best to show that the militia is every able bodied man and that is was expected that they be equipped ready to serve Active Duty, is admirable, IMHO. It was just impossible to get a definitive ruling on all aspects of the 2nd in this one narrow case. However, the door is wide open and it appears to be open season on most gun control laws.

    BTW, I have no interest in MG's myself, but I have nothing against them either.

    Hey! Whatever blows your skirt up! ;)

    Poper
     
  12. Zoogster

    Zoogster Member

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    Exactly. He was saying Miller had no bearing in what arms were protected. Yet Miller was positive when it came to military firearms, just not for a sawn off shotgun.
    Yet we live with the negatives of Miller, but he removed any future positive bearings of Miller.

    I am sorry if you cannot read Miller and then read this and see how it applies.

    It would take a lot of typing to cite both and go over it all again.

    The negatives of Miller were retained (reasonable restrictions) and the positves discarded by this decision. He then opens the way to consider it fresh. But why discard a positive direction on ownership of military weapons by a previous court wording first?
    He didn't strike down the NFA or the negatives of Miller, he just said the positives do not apply in understanding what the people have a right to own.

    Further on he says restrictions are acceptable, and gives the impression the RKBA is primarily for defense of the home or person against criminals. At least that is how the lay person will see it.

    So reading a lot into it, his logic and reasoning combined with discarding the positives of Miller seem to imply he would say those are not suitable arms, or tons of restrictions on them are suitable.
    His opinion also does lay the foundation for addressing the machinegun issue in the future.

    It seems like a big setup and laying of the groundwork to rule against thier unrestricted possession if that comes before the court.

    In doing so though he also allowed numerous other restrictions on other types of firearms by allowing 'reasonable restrictions'.

    The speak freely I think he went into this with the mindset of not legalizing machineguns or making a decision that was similar to "shall not be infringed" because that would do exactly that. While at the same time overturning excessively restrictive complete bans on the type of ownership and use of arms most Americans practice (which is not the purpose of the 2nd). That may have been his intent, the result could be worse or better, we will have to see.
    However the issue was not about machineguns, so he did not directly address that, just layed the groundwork for doing that later (by removing the positive reference to thier ownership in the Miller case and speaking about the history of a militia outside of the context of resisting tyranny).
    That groundwork is not positive for machinegun ownership.
     
  13. Poper

    Poper Member

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    Zoogster:
    I read the whole decision today. I think I have a different take on it than you do. I saw the reference to Miller as a statement that Miller has no bearing on the case before them or the 2A because (at least partly) it was never argued, and also because it was not relevant to Heller.
    It seemes clear that Scalia repeatedly makes reference to the militia and it (the militia) needing to be equipped with arms suitable for military purpose. Also, said arms that are "in common use" being those in common use by the military so that the militia is properly regulated (trained and ready) to serve when called. I kind of saw it as though he was supplying additional support to the keeping of military servicable small arms (M-16's, etc.) by the militia.

    At least that is what I got out of it.

    I am not a lawyer, nor do I pretend to be one, nor do I play one on TV nor in the movies. Maybe that's why I do not see where Scalia removed the pro MG's aspect of Miller.

    JMTC ... And it's past my bedtime, too.!
    Nighty nite, all. Sweet (Heller) dreams! ;)

    Poper
     
  14. Zoogster

    Zoogster Member

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    Ask yourself why it would have even been mentioned then?
    And why was it not only mentioned, but at around the time of going into what arms the 2nd protects?

    This was not an NFA challenge and Miller had no purpose of being brought up, EXCEPT that in the Miller case there is references that machinegun ownership as opposed to short barreled shotgun ownership may have had a different ruling in Miller that resulted in a positive outcome.

    If it was truly as you believe then there would have been absolutely no reason to even mention Miller at all because that had no bearing on the case, and would not have needed to be redefined.
    There was only one aspect of Miller that might have been an issue, the positive slant on military weapons ownership, which could impact the decision on a future case involving machineguns in a positive way. If the court waited until then to address that it would be challenging both that, and the value of the case at hand all once.

    By changing the meaning of Miller now to a conclusion that does not have that pro military weapon result, that will not be such an issue in ruling against thier ownership in the future.
    Instead this redefined summarized interpretation of Miller can be cited in such a future case if brought up, and it can then be decided by the beliefs and merits of the case then, without dealing with the real Miller case itself and the positive military weapon slant.
    Miller has be rewritten here, in an ever so subtle way.
     
  15. arthurcw

    arthurcw Member

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    Dave,

    My comments about the '86 ban and NFA '34 were based on my initial skimming and the comments of other, much wiser, members of this board.

    After reading the decision, I'm less pessimistic. But only slightly so. I still read it as guaranteeing that any NFA challenge is DOA to this court ( and I don't see getting a friendlier court any time soon unless one of the gang of 4 and sometimes +1 "gets religion"). I doubt a future court shaped by Obama or McCain will get any better (and I easily see it as much worse).

    I'm slightly less pessimistic about the '86 ban. I do see a slight possibility, based on the reasoning of Scalia, that the outright ban on new transfers is challengeable. Again, I'm not really hopeful, but it's possible.

    I'm still troubled by the tenor of the text which seems accept the SD aspect of the 2nd (which is merely a by product of the need to keep and bear arms for national defense and defense against a rouge government that refuses to stand for election) while seemingly weakening the true purpose of the amendment. It doesn't rule it out entirely, but the statements made in the reasoning (some circular and some contradictory) seem to me to make it hard to uphold the 2nd as a "Constitutional Reset Switch" when we will be denied arms that keep us on par with the Military, which by force, can render all the Constitution null and void at the whim of a corrupt government.

    I assume that Scalia had to muddy things up to get the High Minded Elitist Kennedy on board. But muddy up things, he did. There was little reason in this case to directly address some of the things he did.

    So here I sit. Bad day at work. My AR build probably safely still on track. A court decision that short term seems great, but long term seems to put up more road blocks then it needed to. And I can't stop thinking, "How in heavens name has it come down to this? How did our rights get so fragile that 9 people can, on a whim, decide the fate of an entire nation and EVERYONE says, 'Thank you for dolling out the scraps kind and wise Masters.'"

    Note to self; When you become Lord God Emperor of the Universe, ask all lawyers to explain the 2nd amendment. If they use more that 27 words, make them bus drivers.
     
  16. Blarelli

    Blarelli Member

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    Am I missing something here. I just heard the Mayor of DC say that the ban doesn't effect automatic and semi-automatic pistols. Is he saying that they can legally restrict people to revolvers and other actioned pistols?
     
  17. arthurcw

    arthurcw Member

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    I think he has NO CLUE what he's talking about. I saw the original speech and it seems like he was slapped silly. I think him saying that was like saying "the shoulder thingy that goes up."

    I may be wrong, but I don't think coming off a ruling that basically said you can't ban a group of arms that are commonly used by the populace, that you can then say we are banning this type of arm used by the populace. Good luck with that.
     
  18. Zoogster

    Zoogster Member

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    This ruling most certainly does effect semi autos. He has just decided to ignore the totality of the ruling.
    He knows and I am sure has been advised challenging it in this way will allow them to get away with ignoring it. They can say they believe they are following the ruling, and it will take long term litigation to change it even though they in fact know they are blatantly going against the SCOTUS.

    In the meantime the makeup of the court can change, and the end result could be a ruling they like better years down the road when a new appeal makes it to SCOTUS with Obama appointed justices.
     
  19. vikz

    vikz Member

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    have you guys watch the news about the SF mayor blaming the NRA about an apprent road rage that happen there??man that mayor is out of this planet regarding gun control..
     
  20. Solo Flyer

    Solo Flyer member

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    Thankfully,the odds are against Obama being able to pack the SC with more liberal justices even if he serves 2 full terms.
    On the affirmative, we have Scalia 72,Kennedy,71,Thomas 60,Alito 58 and Roberts ,a child of 53.
    On the negative side we have Stevens 88,Ginsberg 75,Breyer 69, and Souter 68.
    With decent health,no accidents and God willing ,the chances are Obama will simply be exchanging a liberal for another liberal.So no gain and no pain for us.
    Of course there are too many variables to make any bets on this.
    But the odds,starting,IMO,with an Obama loss in November are in our favor.
    And no matter how many people are somewhat unhappy and some totally outraged on this 5-4 decision, I'm exhilarated that we won.
    And now the walls of Jericho(read Chi-town,et alia)will start to come tumbling down.
    Be happy.This was an historic day.
     
    Last edited: Jun 27, 2008
  21. Solo Flyer

    Solo Flyer member

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    delete-duplicate
     
  22. yokel

    yokel Member

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    It's no mystery: Chalk it up to many decades of apathy, indifference, iertia and carelessness.
     
  23. Mongo the Mutterer

    Mongo the Mutterer Member

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    Solo Flyer -- one thing to think about. The number nine is not fixed.

    FDR threatened to increase the size of the SCOTUS during his term when they didn't please him on a couple of rulings.

    It is doubtful the BHO would have enough clout or cajones to do that, but it is a possiblilty.
     
  24. CannonFodder

    CannonFodder Member

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    ^^^
    Umm, yeah. FDR was way bigger than Obama ever will be, and that still blew up in his face - especially considering the precedent that FDR set in his attempt to pack the court.

    I don't see that happening. Obama's too smart to pole vault on to that landmine.
     
  25. 762 shooter

    762 shooter Member

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    I think the naysayers on here should at least enjoy the day for a victory. Days like this are few and far between.

    Our deepest fear up to yesterday was to have an out of control government breaking into our homes and taking our guns. I would seem to me that if nothing else this scenario has been squashed specifically.

    Katrina type gun grabs are now illegal beyond a shadow of a doubt.

    Enjoy the day and we can return to the fight tomorrow.

    Serenity Now.
     
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