Heller, 2nd Amendment, Automatic Weapons etc.

[Tennessee Gentleman]

I have a question for the group out there concerning the Heller case just recently argued and whether there is a practical limit on types of "arms" that civilians should be allowed to freely own without restriction. Some folks felt that Mr. Gura erred in agreeing that automatic weapons might be banned. Today I was listening to the Past President of the NRA on Guntalk who kept referring to firearms in common use by civilians as what she felt like we wished to protect. I assumed this to mean the menu of firearms civilians are now allowed to pruchase with just the background check and not NFA items. I am assuming this, she did not say, but it is a reasonable assumption I think.

So, did Mr. Gura err in limiting the scope of firearms in common use by civilians? Should civilians be able to purchase whatever weapon or arm they can afford to buy without restriction? I look forward to your comments.

Now to a personal note. I am a liftime member of the NRA and served for 21 years as an US Army Officer. That shouldn't matter on this board but I feel I need to mention this since some other have gotten a little hot under the collar about my opinions and questions. I am sorry if the tone of some of my posts offend some however I will not apologize for my opinions or the fact that I challenge others opinions. I am not a band wagon extremist who believes there should be absolutely no restrictions of firearms. And I can take what I dish out. So lead on
PS I will publish another thread about the Gun Show LoopHole later

[Redworm]

Yeah, I listened to the whole thing yesterday while reading the transcript and I found that part a little worrying and confusing.

Doesn't the fact that we don't have easy access to these weapons inherently keep them from being in common use? I wouldn't mind having a full auto, I'm sure many here would agree. So if the only thing preventing common use is the fact that the current laws prevent most of us from acquiring them doesn't that create doesn't kind of conflict?

[Musketeer]

Gura rightly feared the court's concerns about legalizing automatic weapons and hedged in his answer to keep a ruling favorable to his client.

I understand why he did it but disagree with the logic.

1. He agreed to a total ban on a class of weapons. That opens the door to total bans on other arms.

2. He went further to indicate the language of the time did not consider pistols as firearms. He stated how a British confiscation reported the capture of X amount of firearms and X amount of pistols. What he was drinking when he followed that path I do not know but such logic could be used to argue that "arms" in the 2A does not apply to handguns because some Brit officer reported them separately.

[BoringAccountant]

there is a practical limit on types of "arms" that civilians should be allowed to freely own without restriction.

My problem is with who determines practicality of said weapon...my practical limit would be different than yours and surely different from Sarah Brady's. I don't trust the government to define practical appropriately and to keep that the same over time.

And this will surely get some of these crazies out posting...some with the far-fetched ideas that we should be allowed to have weaponized chemicals because "the army is allowed to".

[Tennessee Gentleman]

Obviously the nature of warfare has changed a bit since 1790. Should civilians be allowed to have the same weaponry legally that is possessed by our military in every sense as long as they can afford it? Where would we draw the line and why? I know we use as civilians some of the same weapons but how do we advocate gun ownership and refute the "you are extremists who want to carry grenade launchers around"

[Musketeer]

The limits can first be defined by well written legislation. As we are often lacking that in modern days they will have to be interpreted by the courts in keeping with the interpretation handed down by the SCOTUS. What we need to hope for is strict scrutiny. That will limit the legislative restrictions to similar scale as those for the first amendment. Anything beyond that would require an amendment. If the gov't steps out of line they are taken to court.

It may not be perfect but it is the system we got.

[Musketeer]

While talking about automatic weapons where would automatic knives fall? Then there are those laws in places like NY which assume criminal intent for the mere possession of a double bladed weapon. Is not a knife undoubtedly an arm in the eyes of the 2A, especially when you still had men carrying court swords from time to time?

[Tennessee Gentleman]

Agreed and I think Gura was doing that. Acknowledging that not ALL firearms are suitable for civilian use with which I agree. Weapons used by the military particularly automatic ones are not suitable for civilian personal self defense and I believe the NFA will not (and should not) be overturned. The Lautenberg Amendment is not like the DC handgun ban because the DC ban limited handguns registered in DC prior to 1976. The 86 law only pertains to manufacture. I think there were a lot of automatic weapons around before 1986. Maybe many will be gone in 100 years but we'll be using phasers then and not need them

What is an automatic knife?

[tatera]

Does it matter if he replied - "Yes! ban them all immediately and burn them!" or "No! No to any limitation on ownership no matter how small or reasonable!" Will this inform the court's finding?

I'm not a legal expert but I think the court is answering the question of whether or not DC's law violates the constitutional rights of its citizens. So their response will be "yes" (affirm) or "no" (remand).

Personally, I believe we'll see the court affirm the lower court and the next 20 years will have legislators and litigants determining the limits. How much can Guru's statements impact any of this?

[zukiphile]

How much can Guru's statements impact any of this?

Potentially greatly.

If Gura argued what some of us here think, namely that an assault rifle is the type of weapon commonly in use by soldiers worldwide, and is therefore the item most protected by individual right referenced in the 2d Am., then Gura would have handed DC an in terrorem argument that anything but a victory for DC is nothing but a slippery slope to general assault rifle ownership.

Gura was arguing his client's case, not the theoretical limits of the 2d Am. Drawing attention to aspects of the argument that would push a fence sitter against deciding in Heller's favor would not be competent advocacy.

[Musketeer]

I predict they will say the 2A is an individual right.

The DC ban is unconstitutional.

And then shut up.

For the court to agree with Miller and attest to the 2A being an individual right they need to acknowledge that automatic weapons are covered since they would be suitable for militia use. They will shut up on the matter.

[Musketeer]

Gura's smartes move was when he stated something to the effect of "that is well beyond this case." In other words, I am here arguing a handgun ban, not an automatic weapons case.

Keep the court focused on where you need them to go. Concentrate on first downs, not long bombs for the touchdown that can result in turnovers.

[DENALI]

You're making a tactical error along with Mr Gura. I don't believe that for one moment the 2nd Amendment and the founding fathers, intentioned reasonable restrictions, like allowing fully automatic weapons in the hands of the government only! That flies in the face of the whole intent of the document. "We The People" are the government! The way I see it you have to ask yourself a question, think hard on it, why did the founders insert this document into the constitution? When we allow the government to pick and choose among our RIGHTS which is reasonable and which is not, then they are not RIGHTS, they are PRIVLIDGES.
I stand firmly with the founders on this issue, and frankly so should you, never trust your government, ever! Mr Gura's remarks profoundly disturb my sensibilities.

[zukiphile]

The way I see it you have to ask yourself a question, think hard on it, ...

Gura isn't asking himself a question, he is arguing a case the position of some justices on which is uncertain. To imagine that Gura just hasn't thought about this enough, or at least as much as you, isn't insightful.

[GoSlash27]

The purpose of the oral arguments is to clear up the Justices' questions about the brief.
The question (indirectly) was this: Why is a handgun ban unconstitutional. It was just posed in the form of a hypothetical full-auto ban.
By conceding the Constitutionality of an assault rifle ban he inadvertently opened the door to the Constitutionality of a handgun ban as well.
After all, there is no precedent supporting his "civillian suitability" test. Why can't they just deem handguns "unsuitable"?

Yes, I look forward to the day when full-auto is as unrestricted as anything else (although I personally don't want one) but that's not my gripe.
The reason he should have said that a full-auto ban is unconstitutional is because he can point to the law and support the assertion. That strengthens his position on handguns.

[gc70]

I have a question for the group out there concerning the Heller case just recently argued and whether there is a practical limit on types of "arms" that civilians should be allowed to freely own without restriction. ...

So, did Mr. Gura err in limiting the scope of firearms in common use by civilians? Should civilians be able to purchase whatever weapon or arm they can afford to buy without restriction? I look forward to your comments.

No, from a pragmatic perspective, I do not think that Gura erred in limiting the scope to firearms in common use by civilians.

As implicitly noted in the first sentence above, the Second Amendment address "arms" rather than "firearms." If Gura had argued an unlimited definition of arms, he would have walked into the trap of advocating machine guns, rocket launchers, nukes, or whatever. In arguing "in common use by civilians" he limited the question to firearms (pistols, rifles, and shotguns). SCOTUS (and the public) can accept common firearms, but an unlimited definition of "arms" would be too expansive to be politically acceptable to the court or the public.

What is at stake in Heller is whether the Second Amendment guarantees an individual or collective right. If the decision supports an individual right, later cases can refine (or expand) the definition of what arms that right protects. If the decision supports a collective right, the arms covered by that right are academic because we, as individuals, would not hold that right.

One step at a time...

[Tennessee Gentleman]

Yes, I look forward to the day when full-auto is as unrestricted as anything else

Can't see that happening. Can see technology making ever deadlier and more effective handheld weapons that will not be allowed for civilian ownership.

gc70. I think you are seeing where I am coming from. Goslash's reasoning of the law would extend to those weapons and that would be bad for what we hope to gain becuase the SCOTUS would rule it out.

[zukiphile]

By conceding the Constitutionality of an assault rifle ban he inadvertently opened the door to the Constitutionality of a handgun ban as well.

GoSlash, what is your basis for asserting that Gura's statements result from inadvertance rather than plan?

[DENALI]

I fail to see the comment as well crafted and thought out, as I'd prefer it to be. There's far to much innuendo attached to such a statement, to much wiggle room offered to the opposition. I don't know about you but I'm not up for anymore compromising on the issue of these liberty's.
They clearly intended us to have the countermeasure's to deal with a rogue government, not just hunt and protect ourselves from random crime. Clearly we should be allowed the weapons of the average infantryman.
This case is more then DC and it's ban on firearms, it's really about any government intrusion on the 2nd at all. So no, I don't like to see Mr Gura compromise his position so quickly. Is that insightful enough?

[zukiphile]

Would you prefer to argue what you think and lose, or argue what most of the justices would plausibly conclude and win?

My guess is that Gura was there to win.

[Tennessee Gentleman]

Clearly we should be allowed the weapons of the average infantryman.

Denali, no offense but are you aware of the arms available to the average infantryman in the US Army? Do you think the 2nd Amendment allows us to carry those weapons?

[GoSlash27]

GoSlash, what is your basis for asserting that Gura's statements result from inadvertance rather than plan?

The statement was clearly calculated. The undermining of his own position was clearly not unless you're arguing that he was intentionally trying to torpedo his own case.

Do you think the 2nd Amendment allows us to carry those weapons?

Yes, absolutely positively no doubt about it. Look at the wording, the intent, and the precedent. The whole point of placing the second in the BoR in the first place was as a hedge against tyranny from the Federal government. The whole point of having a militia is so that it can conduct infantry operations. For that you need infantry weapons.

Yes. The 2nd clearly anticipates the general population keeping and bearing infantry weapons.
I think that your position isn't so much one of interpretation as one of practicality. *Should* we allow civillians to own infantry weapons?
If you feel that we shouldn't then the correct recourse is to look at amendment, not crossing your eyes and reading out what is clearly there.

[publius42]

Weapons used by the military particularly automatic ones are not suitable for civilian personal self defense

Not suitable for civilian personal defense, perhaps, but VERY suitable for a militia composed of citizen soldiers.

We don't have one, and don't seem to need one, at this point in history, but our 2nd amendment was written to guarantee that IF the need ever arises, we have a civilian population which is armed. We don't know that the Chinese will never invade. There are 5 of them for every one of us, you know. We don't know that the real primary danger forseen by the founders, tyranny from our own government, will never require a revolution. Unless we can know those things for certain, we should not discard the original intent of the 2nd amendment: a country where freedom rests in, and is defended by, the hands of the citizens themselves.

If you're going to say that these are not militia-appropriate weapons, why did we give heat seeking shoulder fired missiles to the glorious mujahudeen Afghan freedom fighters militia (before they became reviled Taliban terrorists)? If you're going to say that no militia can hold off a modern army, please explain why we are still in Iraq years after they got a constitution and a new government. Our government claims a few foreign interlopers are responsible, and it's not a civil war. They're using crude bombs. And yet, they're keeping the world's only superpower pretty busy, are they not?

[gc70]

They clearly intended us to have the countermeasure's to deal with a rogue government, not just hunt and protect ourselves from random crime. Clearly we should be allowed the weapons of the average infantryman.

I agree regarding the original intent of the Second Amendment. While I would like the whole enchilada, the Second Amendment has effectively been a dead letter for decades and I would welcome it being revived, even if only to Constitutionally guarantee firearms for self defense. At least that would give us something to build upon.

Denali, no offense but are you aware of the arms available to the average infantryman in the US Army? Do you think the 2nd Amendment allows us to carry those weapons?

Based on a strict-constructionist reading of the Second Amendment, YES, and not just the weapons the average infantryman can carry, but much more.

[Tennessee Gentleman]

Yes, absolutely positively no doubt about it. Look at the wording, the intent, and the precedent. The whole point of placing the second in the BoR in the first place was as a hedge against tyranny from the Federal government. The whole point of having a militia is so that it can conduct infantry operations. For that you need infantry weapons.

So you really believe that civilians right now should be able to buy stingers, AT-4s, M203 grenade launchers, Mortars, and land mines with no restriction and that is what the second amendment says? All of these are infantry weapons and there is more!