@oralloy,
Oralloy:
It still seems as if you’re trying to justify a result through tortured legal reasoning, which, by the way, conservatives consistently accuse “activist” judges of doing. Result-oriented “logic” is not sound legal reasoning. It does not follow the law to its law-driven outcome. Rather, result-oriented “reasoning” is merely an outcome in search of a tortured path to justification.
For example, in your response to kuvasz you said your thesis was this:
Quote:a) since semi-auto weapons (a class of weapons that includes assault weapons) are ideally suited for self-defense, they are covered by the Second Amendment.
b) since the government has no compelling reason to ban things like pistol grips and flash suppressors, things like pistol grips and flash suppressors fall under the Second Amendment.
Rather than look at the
Heller decision as a whole, you are picking and choosing a word or a phrase here and there to try to “support” your thesis. You specifically rely on
Heller’s mention of self defense as the sole criteria for protection under the Second Amendment. But that’s not what the Court in
Heller said.
What the court
did say, and this was to refute the dissent’s claim that the Second Amendment did not protect an individual right to bear arms, was that “[t]he traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense.” The self-defense reference here does not suggest that if a weapon is “ideally suited for self-defense,” the weapon is of the type of weapon that the Second Amendment applies to. Self-defense is used merely as an example of the type of weapon the Second Amendment might include within its ambit.
But the analysis cannot begin and end there. In fact, the analysis must begin with the Court’s definition of “arms”: “weapons that <b>were not specifically designed for military use and were not employed in a military capacity.<\b>” And, consistent with good legal writing, whenever the Court uses the term “arms” from there on in its Opinion, that term is shorthand for its definition. Simply stated, the Court avoids repeating the phrase “not specifically designed for military use and . . . not employed in a military capacity” by using the word “arms.”
And the Court stated that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Thus the reason for Justice Scalia’s comment about M-16 rifles, as kuvasz has recognized.
So the Second Amendment means that weapons that one does not have a “right” to “keep and bear” are military weapons, but one does have a “right” to “keep and bear” a weapon that isn’t a military weapon.
Just looking at military weapons shows why they would not fit within the Second Amendment’s protection of anything not military. See, for example,
http://usmilitary.about.com/od/weapons/a/m16rifles.htm. That weapon satisfies perfectly kuvasz’s definition of an assault rifle " a semi-automatic weapon capable of being readily converted to a fully automatic weapon. And when one recognizes that potential, one can see how the Court would (and should) hold that the semi-automatic weapon is not protected under the Second Amendment.
As an aside, I’m presently watching “Godfather III” on television, and I just saw why the government should be able to ban those military-type weapons.
That brings me to my second point about your thesis: I agree that by themselves (i.e., when not attached to a firearm), a flash suppressor or a pistol grip are harmless. They can be banned, however, when they’re attached to an assault rifle or other firearm. So, you’re right: the government probably can’t ban a flash suppressor or a pistol grip. But if that accessory is
attached to a firearm, the entire “package” may be banned.
Just my not-so-humble interpretation.
