What will be the arguments for/against Assault Weapons & High Capacity Magazines in a SCOTUS case

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The recent ant-gun ruling from the 4th Circuit today on so-called assault weapons made me think, what will the Supreme Court of the United States hasn't ruled which level of scrutiny applies to the 2nd Amendment. I believe that they have alluded to it, but not specifically stated it and that causes problems. If it was strict scrutiny I believe that that would quickly squash many anti-gun regulations.

Two of the biggest cases that could go before SCOTUS this year are carry outside the home and if so-called assault weapons and high capacity magazines are legal to own. If you think I'm wrong, please feel free to state what 2nd Amendment court cases could jump ahead of these 2.

I'm no lawyer, but wouldn't they argue that semi-automatic weapons and high capacity magazines are in common use, thus, they fall under the protections of the 2nd Amendment. Also, couldn't they say that the 2nd Amendment covers the right to own a weapon for self-defense and defense of the country (and to stop a tyrannical government) and a semi-automatic rifle with standard capacity magazines would be protected under the 2nd Amendment. I'm sure I'm missing other arguments.


1.) What will be the argument against Assault Weapons & High Capacity Magazines in a SCOTUS case?


2.) What will be the argument for Assault Weapons & High Capacity Magazines in a SCOTUS case?
 
I doubt SCOTUS would even take a case relating to high cap magazines, and they seem fine with "reasonable restrictions" proposed by various localities. The only time they seem to get involved is with a complete ban on firearms ownership, or laws that make it impossible to buy and own one.
 
"The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed."
- Thomas Jefferson, letter to to John Cartwright, 5 June 1824

In another quote Jefferson indicates that "all the weapons of the soldier are the birthright of an american"

The second amendment and supporting documents of the founders of this nation clearly indicate that the right to keep and bear arms includes the arms of the standing army (soldier).

What is never clear is how far a lawyer and/or Judge can get around the intent of those that drafted our bill of rights.
 
For example, you can substitute "AR15" or "semiautomatic rifle" for "handgun" in Heller, and the logic still holds perfectly. So I don't think this ruling will survive on that point.

A magazine is not an accessory. It is a necessary part of a functioning firearm. All parts of a firearm are as entitled to 2A protection as the whole firearm. If they want to ban magazines that hold more than 10 rounds, under any form of heightened scrutiny (intermediate or strict) the state has to show some compelling interest and at least some effort at narrowly tailoring the law. It has never been clear to me what awful thing happens as soon as you add that 11th round, or why the state should care. I think the ruling will fail here as well.

Anyway, that's what I would tell SCOTUS if they ever asked for my advice. You might be surprised at how seldom they call.
 
That is it entirely mnrivrat.

It was quite clear that they wanted the population to be armed with what the soldiers of nations are, so that the people were impossible to rule over against their will.

This implied a trust in the people that was greater than the trust in government. Which is why we must remain one people united under the same culture and it must be a just culture.

So we can be too dangerous to rule over in tyrannical fashion, but united enough that being that dangerous doesn't cause civil war.

When the people don't trust each other and start relying on authoritarian measures to protect them from each other you end up with authoritarian rule which tries to greatly limit who has the effective arms, a situation which they tried to avoid with the RKBA to begin with.
Which is why controlling who becomes part of your culture and society is very important. Who comes into our nation and is within our borders needs to be at a pace that they get absorbed into the culture that works with our rights and freedoms. Because if it is at a pace that they instead remain separate cultures you end up with radical challenges to all the rights and freedoms that worked great before.
When you change who make you up as a society too fast your culture gets displaced and the freedoms and liberties of that culture are at risk if they don't match the new culture.
 
The Heller case itself sets forth the parameters of the argument. To find that so-called "assault weapons" and high-capacity magazines are protected by the 2nd Amendment, the Supreme Court would have to go beyond the Heller case (and, indeed, contradict Justice Scalia's dicta in that case), something that the Court has indicated it is not willing to do.

The recent 4th Circuit decision upholding Maryland's "assault weapons" law flies directly in the face of traditional 2nd Amendment theory. It holds that weapons useful to the military -- the core of what the 2nd Amendment is thought to be all about -- are specifically not protected by the Amendment. If this decision stands, it means that handguns in the home are protected, and nothing more. But, sadly, I don't see that decision being overturned.
 
With all due respect, I don't think people are directly answering the OPs questions here. Rather, people are giving their own opinions on the question. Everyone here, I hope, is against these bans. Also, I doubt anyone here will actually be counsel presenting arguments before SCOTUS or even a court of appeals. So to the questions asked:

1.) What will be the argument against Assault Weapons & High Capacity Magazines in a SCOTUS case? (CAVEAT: I don't buy any of this, but as a pro-gun activist, I like to research the opposition. Also, I use "assault weapons" in quotes as a shorthand. I know it is not the correct term.)
  • They will cite Justice Stevens' minority opinion in Heller that 2A only protects state-run militias.
  • They will haul out the old argument that the original intent of the framers of the Constitution covered single shot rifles and they would never have intended to allow weapons with the destructive power of a military-style semi-auto.
  • They will cite a Mother Jones investigation that found that high-capacity magazines were used in at least 50% of the 62 mass shootings between 1982 and 2012. When high-capacity magazines were used in mass shootings, the death rate rose 63% and the injury rate rose 156%. Therefore, a ban on hi-caps and the guns that accept them is a "reasonable restriction."
  • They may claim that low-cap mags cause shooters to reload more often, allowing people to possibly rush the BG and/or gives cops a better chance to shoot him during the reload, so it is actually giving more of an ability for self-defense to potential victims and public defense to LE.
  • They will claim that hi-cap mags and the guns that use them have no legitimate civilian purpose that could not be fulfilled by other kinds of rifles.
  • They will say it's for the children, of course.
2.) What will be the argument for Assault Weapons & High Capacity Magazines in a SCOTUS case?
  • 2A says "...shall not be infringed," of course! That won't fly, but I just like to say it!
  • Per the Miller decision (which was cited in Heller), the framers intended that people be able to own weapons roughly equivalent to what an average soldier would be issued, which in this day and age, is an "assault rifle" with hi-cap mags. This allows people to participate in a true militia, which is not a government-run entity.
  • The Heller decision says 2A protects an individual's right to possess a firearm for traditionally lawful purposes, such as self-defense within the home. In a widespread emergency situation, an "assault rifle" with hi-cap mags is the best solution for home defense against armed roving mobs.
  • "Assault rifles" are used in less than 1/2% of violent crime. Banning them is legislating a non-issue and pandering to public hysteria.
  • Tactically, other kinds of weapons could do as much damage. The distinction made for "assault rifles" are cosmetic and arbitrary.
  • Low cap magazines can be switched out in a second. The Sandy Hook shooter had 30 rounders, but was doing tactical reloads at about 15 rounds. If he only had 10 round mags, he would have done just as much damage.
  • There are an estimated 5 milllion legally owned "assault rifles" in the US and who knows how many illegally owned. They are available on the black market. A ban would have no effect on criminals and terrorists and would only affect law-abiding citizens. There would be no way to get rid of them that would not violate multiple Constitutional rights. You can't "unring the bell" with "assault weapons."
 
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Can someone well versed in Miller explain or expound on the following:

1) How did Heller allegedly (in the view of the 4th Circuit at least) substantially alter the Miller decision that the Second Amendment applied to firearms that would be used in military service?

2) How will SCOTUS likely break (with and without Gorsuch) in interpreting what appears to be a conflict between Miller and Heller on this issue?

3) Is that in fact the central issue in a future SCOTUS ruling or will it be something else entirely?

Thanks very much.
 
I would not consider myself "well versed" in the sense of being an expert, but I have read up on it.

1) Some problems are that the Miller decision circumvented due process, was a very vague decision and also ignored well known facts. The appeals court ruled in favor of Miller, a bank robber tried for having an NFA prohibited sawed off shotgun, only because the anti-gun judge knew that would allow Mr. Miller to be released and being a criminal, he would disappear after the verdict. That way, when the decision was appealed to SCOTUS, only the government side would be heard, not the defense, which is what happened. The decision said sawed-off shotguns were not commonly used weapons by the military and militia would therefore not be protected by 2A. Despite what pro-gun counsel has tried to argue in later cases, however, it did not explicitly say commonly used military weapons would be protected. Also, two of the SCOTUS justices served in as officers in combat roles in WWI, where over 30,000 short-barreled shotguns were used to guard German prisoners.

Heller, on the other hand, allowed for ownership of guns in the home for self-defense. It did not explicitly allow assault weapons and it said that "reasonable restrictions" were acceptable. So I don't think it is a matter of Miller vs Heller. I think they are going to have to further clarify Heller, just like they did in the McDonald decision.

2) I don't think we can be sure how SCOTUS will go with or without Gorsuch, although obviously the pro-gun side will have a better chance with him than without him.

3) I don't think any conflict between Miller and Heller will be the main issue. Justice Thomas (currently the most conservative justice) kind of put that to rest in his concurrence on Heller. He said Miller should be read for just what it says, not inferences that people can make about it. It supported the NFA's ban on sawed off shotguns, but it did not set a precedent for future restrictions. I think the case will turn on whether the Maryland ban is a "reasonable restriction" vis a vis Heller.
 
mnrivrat said:
What is never clear is how far a lawyer and/or Judge can get around the intent of those that drafted our bill of rights
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They can run amuck in the lower courts, but when they get to The Big Time (SCOTUS), they'll have to toe close to the line. There's not so much wiggle room near the top when it comes to fundamental rights.
 
With Sandy Hook still freshly flash-burned into the psyche of all of Massachusetts, it's no wonder the EBR is being scrutinized, and all forms of mental gymnastics are being employed to outlaw them.

The article on Reason.com says "The majority's judgment that folding stocks, flare launchers, and flash suppressors make rifles "exceptionally lethal" is dubious." Dubious indeed. Add spurious, misleading, and any other words you care to pull out of a thesaurus. Those features add absolutely no additional lethality to a semi-auto rifle. I also hate the use of the term 'assault weapon' and 'high capacity magazines.' Those are made up buzzwords meant to scare the ignorant into tripping over each other on their way to the polling place to yank YES on the BAN ASSAULT WEAPONS lever. Rifle and Standard Capacity Magazines are what they are!

I can't think of an argument against AR style rifles or standard capacity magazines, because there isn't an intelligent argument to be had. Perhaps an argument for them would be to just lean on what the ATF defines as a destructive device, and alter the definition of 'unusual weapons' as stated In "Kolbe, the 10-judge majority concludes that the guns and magazines covered by Maryland's ban are "dangerous and unusual" because they are "exceptionally lethal weapons of war" that are not appropriate for civilian use." 30 round magazines in ARs is a common weapon that common civilians use. The military doesn't use semi-auto ARs.

gun_with_a_view said:
They can run amuck in the lower courts, but when they get to The Big Time (SCOTUS), they'll have to toe close to the line. There's not so much wiggle room near the top when it comes to fundamental rights.
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Especially when the SCOTUS has already ruled on this very thing. The SCOTUS doesn't re-visit past rulings.
 
What seems to me the most compelling argument has already been touched on above. I want parity, at least, with the bad guys. If I need to use deadly force to defend life or liberty, I want to be at least as well armed as those threatening me. Better armed than they are would be nicer still.

The reason why I should have all the 30-round magazines I want is that the thugs and dopers and gangs have them. Most shots fired in self-defense situations miss, and so it is good to have plenty. That is the reason for the increase in capacity in standard police and military firearms over what was used a couple generations ago.

I think all this is relatable to the language about weapons in common use.
 
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Well considering this is probably going to SCOTUS sooner rather than later, given the big news earlier today...

To allow assault weapons: The "in common use" argument, in U.S. v. Miller (1934)

But the case that can show such great support for the ownership of "assault weapons" is a double-edged sword. Miller says that "dangerous and unusual weapons" are not protected by the Second Amendment, which included Miller's sawed-off shotgun...

Problem being, the Heller case cited Miller as precedent in regards to the latter, if I remember correctly. I wrote like a 10 page paper on this last semester, but I'm kind of burned out right now... As much as us pro-gunners want to wholeheartedly believe that the court will rule in our favor, it is easy to come up with arguments to ban "assault weapons", using case law/precedent. Of course, that would require leaving out some critical facts, such as the fact that an AR-15 (of which there are 5-10 million in circulation) for example, functions in the exact same way as something like a Ruger Mini-14, which is actually probably more common. Same firepower, different aesthetics, and so on. But again, most people draw anti-gun arguments from simple ignorance of these guns and how they function, and that will likely be no different at the SCOTUS. For that reason, a conservative Justice is critical right now, if only to replace Scalia.

Quite a scary situation we're in, guys.
 
Kendal Black said:
What seems to me the most compelling argument has already been touched on above. I want parity, at least, with the bad guys. If I need to use deadly force to defend life or liberty, I want to be at least as well armed as those threatening me. Better armed than they are would be nicer still.

The reason why I should have all the 30-round magazines I want is that the thugs and dopers and gangs have them. Most shots fired in self-defense situations miss, and so it is good to have plenty. That is the reason for the increase in capacity in standard police and military firearms over what was used a couple generations ago.

I think all this is relatable to the language about weapons in common use.
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Agreed. But is "those guys have them", to a biased Supreme Court Justice, an argument based on precedent/case law?

Unfortunately, it probably isn't. :(

I'm being really pessimistic here, but I think we shouldn't get our hopes up. Then at the very least, we'll be pleasantly surprised. Oh, and remind me to buy a few AR-15's when I move to Florida in three months... :p
 
XtremeConditions said:
Agreed. But is "those guys have them", to a biased Supreme Court Justice, an argument based on precedent/case law?

Unfortunately, it probably isn't. :(

I'm being really pessimistic here, but I think we shouldn't get our hopes up. Then at the very least, we'll be pleasantly surprised. Oh, and remind me to buy a few AR-15's when I move to Florida in three months... :p
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I would hope that whoever argued such a case would phrase it better than I did. (IANAL.) Still, the purpose in view of the amendment is pretty well settled as something or other concerning the people's ability to defend ourselves at need.

Our defense is best mounted with weapons not far out of date, not with weapons outclassed by weapons brought against us. That is the problem with the argument that the 2nd really only covers flintlocks. Any decision of where to draw the line between a weapon of personal defense and something that is better reserved to the battlefield should follow the practical purpose of the amendment.
Semi-autos with long magazines are weapons in common use: or my eyes deceive me.
 
Aim1 said:
...1.) What will be the argument against Assault Weapons & High Capacity Magazines in a SCOTUS case?


2.) What will be the argument for Assault Weapons & High Capacity Magazines in a SCOTUS case?
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I've let this run for a while to see where it would go, but in general folks really been taking a shot at actually answering the questions asked by the OP. Folks have generally been positing a range of "seat-of-the-pants" arguments based on personal perspectives and values. Those aren't the sorts of arguments which will be made if the case gets to SCOTUS, and that's what the OP asked: "What will be the argument ...in a SCOTUS case?"

If the case, Kolbe v. Hogan (4th Circuit, No. 14-1945, 2017), gets to SCOTUS the arguments made on each side to the question will be based on the facts of the case, precedent, and established legal principles; and those arguments will be supported by citation to applicable legal authority. A starting point would be reading the en banc opinion (linked to, above), the prior panel opinion, and the various briefs (of the parties and of amici).

Let's see if anyone wants to try a more disciplined, technically rigorous approach.
 
Kendal Black said:
I would hope that whoever argued such a case would phrase it better than I did. (IANAL.) Still, the purpose in view of the amendment is pretty well settled as something or other concerning the people's ability to defend ourselves at need.

Our defense is best mounted with weapons not far out of date, not with weapons outclassed by weapons brought against us. That is the problem with the argument that the 2nd really only covers flintlocks. Any decision of where to draw the line between a weapon of personal defense and something that is better reserved to the battlefield should follow the practical purpose of the amendment.
Semi-autos with long magazines are weapons in common use: or my eyes deceive me.
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But could "in common use" be outweighed by the ability to limit "dangerous" weapons.

All guns are dangerous, just like any other freedom. But would the court find that "AW's", or all semi's for that matter, are "too dangerous" and outweigh the public's need for such weapons. Again, if the court was objective on the subject, the answer would overwhelmingly lean towards "no".

As far as people saying the 2A is limited to Flintlocks, it goes to show how they haven't even read the first of three SCOTUS cases on the Second Amendment, which is embarrassing, considering how much these people complain. Miller at the very least, ruled that at the very least, something like a double barrel shotgun was fine, and only that Miller's sawed-off shotgun was illegal in regards to a militia. Of course, the requirement of being in a militia was changed completely by Heller, but that itself doesn't change the potential ability to ban "dangerous" weapons.

I guess I'm playing devil's advocate here, but like I said, I'm kind of pessimistic on the issue with all the reading and writing I've done on it. In the end, my primary arguments that could have been used either for or against, were "in common use", and "dangerous", noting that "dangerous" is subjective and hasn't been defined, whereas to some extent, I feel "in common use" is more measurable... I think? So 5-10 million AR-15's alone. Maybe match that (or a little less) in AK's. Match that, and probably more, in guns like Ruger Mini-14's, Saiga's and other "compliant" AK's, SU-16's, maybe even things like SKS's with mag conversions, and the list goes on. Not to mention 10/22's. I mean based on that, 50 million semi-autos with detachable mags might be conservative... But none of that makes them not "dangerous", and that's what scares me. :(
 
Rifles, all rifles combined, constitute a fraction of firearms homicides each year. Despite being in common use, the use of semi auto rifles, of any description, in homicides is uncommon. Therefore, the case that they are particularly "dangerous" lies only in their high rate of fire combined with large capacity magazines.

Banning firearms because of "features" that in no way make them "more lethal", i.e. a bayonet lug or flash suppressor, must be presented as a problem for consideration by the Court. I can understand, if not agree, with upholding restrictions on magazine capacity. While the logic may be faulty, there is a logic. Banning a pistol grip is however a blatant attempt to de facto ban the most popular configurations of the AR and AK platforms. How the Court could uphold a ban on an entire class of firearms, auto-loading rifles, that has been in common use for over 100 years is difficult to understand.
 
Careful, chums. Moderator says technically rigorous. He means such as would be persuasive to a judge. To keep the thread open, I suggest only specialists reply. I am not a specialist. So one last remark and I'm outa here.

I am going out on a fragile limb. British colonial law unresponsive to the right to self-defense is, in large measure, why we have the 2nd amendment. It is to repeat past error to pull down that palladium of liberty.
 
Aim1 said:
The recent ant-gun ruling from the 4th Circuit today on so-called assault weapons made me think, what will the Supreme Court of the United States hasn't ruled which level of scrutiny applies to the 2nd Amendment. I believe that they have alluded to it, but not specifically stated it and that causes problems. If it was strict scrutiny I believe that that would quickly squash many anti-gun regulations.

Two of the biggest cases that could go before SCOTUS this year are carry outside the home and if so-called assault weapons and high capacity magazines are legal to own. If you think I'm wrong, please feel free to state what 2nd Amendment court cases could jump ahead of these 2.

I'm no lawyer, but wouldn't they argue that semi-automatic weapons and high capacity magazines are in common use, thus, they fall under the protections of the 2nd Amendment. Also, couldn't they say that the 2nd Amendment covers the right to own a weapon for self-defense and defense of the country (and to stop a tyrannical government) and a semi-automatic rifle with standard capacity magazines would be protected under the 2nd Amendment. I'm sure I'm missing other arguments.


1.) What will be the argument against Assault Weapons & High Capacity Magazines in a SCOTUS case?


2.) What will be the argument for Assault Weapons & High Capacity Magazines in a SCOTUS case?
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The argument that the FSA is un-Constitutional can be found in Judge Traxler’s dissent:

In terms of absolute numbers, these statistics lead to the unavoidable conclusion that popular semiautomatic rifles such as the AR-15 are commonly possessed by American citizens for lawful purposes within the meaning of Heller.

https://assets.documentcloud.org/documents/3469330/Decision-upholding-Maryland-s-weapons-ban.pdf
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And that would be the ‘in common use’ argument, as opposed to ‘dangerous and unusual,’ where laws prohibiting possessing the latter classification of firearms are Constitutional.

The ‘in common use’ argument can be bolstered with data indicating that prohibiting the possession of AR and AK platform rifles has no rational basis, as less than 2 percent of gun crimes are committed with long guns – even fewer with AR or AK platform rifles.

Our rights are indeed not ‘unlimited,’ and subject to reasonable restrictions by government, where measures which prohibit possessing AR and AK platform rifles are clearly not reasonable.
 
Interesting. Excert from Judge Traxler's dissent.



Read more at: http://www.nationalreview.com/artic...d-assault-weapons-ban-constitutional-travesty


Indeed. And a further question must present itself. Since 1934, automatic weapons have been treated differently under the law in the United States. Why? If semi-automatics that are protected by Heller are practically identical to automatics — and if the “common use” standard is to be ignored as it has been here — shouldn’t the court be striking down the National Firearms Act? Words matter, especially in the law. “Common” can’t mean “unusual.” “And” can’t mean “or.” And parlor games can be played both ways: If we are to subject the plain terms of our precedents to the amateurish deliberations of motive-riven judges, there will be nothing to stop a different court from inverting the trick and striking down the NFA on the grounds that fully automatic weapons are so similar to semi-autos as to enjoy all the protections of “normal” civilian weapons.
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But it nevertheless wants us to know that it would have applied intermediate scrutiny, and that the law in question would have passed without difficulty. This is extraordinary. For a start, if the majority had decided that the Second Amendment applied, it would have been duty bound to apply strict scrutiny. As Judge Traxler notes, “once it is determined that a given weapon is covered by the Second Amendment, then obviously the in-home possession of that weapon for self-defense is core Second Amendment conduct and strict scrutiny must apply to a law that prohibits it.”
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