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.
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 were not specifically designed for military use and were not employed in a military capacity.” 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.
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.
Nah. All I'm doing is defending the law and the Constitution. No tortured reasoning or anything like that.
The court was not excluding military weapons from the definition of "arms". They were saying that the definition of arms included weapons other than military weapons.
To be covered by the Second Amendment, a weapon would have to be suited to a civilian use (like say self-defense), but a military weapon would be covered if it were also suited to civilian use.
It means outright that self-defense weapons are among the weapons protected by the Second Amendment.
Expressio unius est exclusio alterius (The express mention of one thing excludes all others)
Items not on the list are assumed not to be covered by the [definition]. However, sometimes a list in a statute [or a court opinion] is illustrative, not exclusionary. This is usually indicated by a word such as "includes."
Reading this morning about your defense for using semi-automatic weapons reminds me of the Italian playwright Pirandello, who wrote “Six Characters in Search of an Author.”
I have to agree with “eleven to him” about your attempt to fit your preferred result into a current legal framework that doesn’t seem to yield the result that you wish obtain.
Since your stated thesis proclaims
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.
Its logical extension would undermine the National Firearms Act (1934), where it, and not Miller proscribed submachine guns (as I erroneously cited), and short barreled shotguns, as Miller did proscribe.
If your opinion is that the predicate for legal possession of a firearm is that they are “ideally suited for self-defense”(and I don't see Scalia using the term ideally suited for self defense in Heller), a fully automatic submachine gun or a short-barreled shotgun would be more “ideally suited for self-defense” than a semi-automatic rifle or long-barreled goose gun.
The compelling reason for a government ban on pistol grips and flash suppressors would rest upon a state interest in reducing violence.
It would have to be shown that these attached to a firearm would increase the ability to easily obtain multiple strikes on a target, which I think is the ultimate concern of the side that wants rapid fire firearms proscribed.
Please explain how the reasoning is not tortured.
I understand, and I agree, that if “arms” (as the Court uses the term) may be used for self-defense that they cannot be banned without running afoul of the Second Amendment. But please point to specific language in the opinion that supports your conclusion that “a military weapon would be covered if it were also suited to civilian use.”
"In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same." State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6"15, 252"254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface.
By the very definition of “arms,” which excludes weapons that are “specifically designed” for and “employed in a military capacity,” a military weapon cannot be “arms” as used in the Second Amendment and can, therefore, be banned.
In addition, under the legal maxim, express inclusion of one thing is the express exclusion of the thing not mentioned, your analysis fails here. The court limited its definition of arms to non-military weapons: weapons "not specifically designed for military use and . . . not employed in a military capacity.”
The National Firearms Act actually doesn't ban either submachine guns or short-barreled shotguns -- it just puts oppressive regulations on their ownership
While private possession of machine guns prior to 1986 was grandfathered, the court concluded in light of its discussion of the legislative history:
(1) that Congress intended to change the law to prospectively
preclude the private possession of machine guns, and (2) that
Congress intended to limit lawful transfer and possession of
machine guns to instances authorized by the government for the
benefit of federal, state, or local governmental entities.
Consequently, in light of the plain language of section
922(o), as well as its legislative history, we hold that
section 922(o) prohibits the private possession of machine
guns not lawfully possessed prior to May 19, 1986."
The government notes U.S.S.G. section 2K2.1(a)(5) sets the
offense level at 18 "if the offense involved a firearm listed in 26
U.S.C. section 5845(a)." One of the firearms listed in section
5845(a) is a "machine gun." 26 U.S.C. section 5845(a)(6). The
guidelines make a general exception, however, for one who possesses
a firearm "solely for lawful sporting purposes or collection."
U.S.S.G. section 2K2.1(b)(2). That section states:
If the defendant, other than a defendant subject to subsection
... (a)(5), possessed all ammunition and firearms solely for
lawful sporting purposes or collection, and did not unlawfully
discharge or otherwise unlawfully use such firearms or
ammunition, decrease the offense level determined above to
level 6.
Reading these provisions together, we readily conclude the
possession of a machine gun is excluded from the category of
weapons within the rubric of sporting or collection guns. Indeed,
the Sentencing Commission originally expressly excluded machine
guns from "lawful sporting purposes or collection," and in November
1990, amended section 2K2.1(b)(1) further limiting the firearms
eligible for a sentence reduction by inserting "other than a
firearm covered in 26 U.S.C. section 5845(a)." This history
implies the Commission considered a host of exceptions for gun
enthusiasts, but intentionally and specifically excluded machine
gun hobbyists from that range.
A full weapon would require less powerful cartridges to make it controllable (and would be less controllable despite the weaker cartridges). I don't see how that makes it at all ideal for self-defense. The less powerful cartridges would be less likely to penetrate armor that an attacker might be wearing, and the lack of controllability would make you more likely to hit bystanders.
It is possible that parts of the NFA will be declared unconstitutional.
Pistol grips and flash suppressors do absolutely nothing to make it easier to obtain multiple strikes on a target.
And assault weapon bans have nothing to do with rapid-fire. Semi-autos which are not "assault weapons" fire just as rapidly as those which are.
"In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same." State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6"15, 252"254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface.
the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
“The 18th-century meaning [of the term arms] is no different from the meaning today.” District of Columbia v. Heller, 128 S. Ct. 2783, 2791 (2007). “The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.”
Is it inspired by the 11:11 phenomenon?
"oralloy" wrote:The National Firearms Act actually doesn't ban either submachine guns or short-barreled shotguns -- it just puts oppressive regulations on their ownership.
That oppression essentially became a ban on new machine guns for private ownership under the exception of 18 USC 922(o)(A)(1)
"oralloy" wrote:A full-auto weapon would require less powerful cartridges to make it controllable (and would be less controllable despite the weaker cartridges). I don't see how that makes it at all ideal for self-defense. The less powerful cartridges would be less likely to penetrate armor that an attacker might be wearing, and the lack of controllability would make you more likely to hit bystanders.
Being able to fire more bullets per second without reloading is what makes a weapon more ideal than one that does not for personal protection. That is what makes a semi-automatic rifle more effective than a bolt action rifle, viz., in your words, “more ideal for self-defense” .
Saying that the ammunition makes it less controllable, and concomitantly increasing the potential likelihood of hitting innocent bystanders, or the ability to easily obtain multiple strikes on a target is the same concern is that held by those who would allow revolvers or low shell capacity clips for semi automatic pistols, or bolt action rifles but want semi-automatic rifles proscribed or at least, high shell capacity clips for semi-automatic weapons.
"oralloy" wrote:Pistol grips and flash suppressors do absolutely nothing to make it easier to obtain multiple strikes on a target.
The former does for me. But hey, that’s just the cowboy in me.
"oralloy" wrote:And assault weapon bans have nothing to do with rapid-fire. Semi-autos which are not "assault weapons" fire just as rapidly as those which are.
I was referring to a semi or fully automatic assault weapon that can fire bullets more rapidly without reloading over a rifle that has to be reloaded per shot (or has a smaller clip shell capacity).
I think that the basic discussion on firearm bans actually will be measured by public safety, or viewed with strict scrutiny (due to the Heller decision making the right to bear arms personal right and not a group right, whereby the societal factors will play a significant part in the decision on the type of weapon that can be borne.
Btw your response to elevem to him with the scalia’s quote from heller
"oralloy" wrote:"In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same." State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6"15, 252"254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface.
has to be held in relief to his subsequent one,
That isn't desirable in a self-defense situation where stray bullets can hit bystanders. And the guns tend to use weaker ammo to counter the recoil problem, which doesn't help if you need to penetrate armor.
Your statements make me wonder where in the country there has been a sudden increase of home invasions by criminals wearing full body armor. I guess the librul media must be not reporting that in my neck of the woods.
Illinois State Rifle Association Executive Director Richard Pearson Issues Open Letter to Nation's Sportsmen Regarding Obama's History in the Illinois Senate
CHICAGO, Oct 15, 2008 /PRNewswire-USNewswire via COMTEX/ -- The following is the text of an open letter to the nation's hunters and sportsmen issued today by Illinois State Rifle Association Executive Director Richard Pearson:
Fellow Sportsman,
Hello, my name is Rich Pearson and I have been active in the firearm rights movement for over 40 years. For the past 15 years, I have served in the Illinois state capitol as the chief lobbyist for the Illinois State Rifle Association.
I lobbied Barack Obama extensively while he was an Illinois State Senator. As a result of that experience, I know Obama's attitudes toward guns and gun owners better than anyone. The truth be told, in all my years in the Capitol I have never met a legislator who harbors more contempt for the law-abiding firearm owner than does Barack Obama.
Although Obama claims to be an advocate for the 2nd Amendment, his voting record in the Illinois Senate paints a very different picture. While a state senator, Obama voted for a bill that would ban nearly every hunting rifle, shotgun and target rifle owned by Illinois citizens. That same bill would authorize the state police to raid homes of gun owners to forcibly confiscate banned guns. Obama supported a bill that would shut down law-abiding firearm manufacturers including Springfield Armory, Armalite, Rock River Arms and Les Baer. Obama also voted for a bill that would prohibit law-abiding citizens from purchasing more than one gun per month.
Without a doubt, Barack Obama has proven himself to be an enemy of the law abiding firearm owner. At the same time, Obama has proven himself to be a friend to the hardened criminal. While a state senator, Obama voted 4 times against legislation that would allow a homeowner to use a firearm in defense of home and family.
Does Barack Obama still sound to you like a "friend" of the law-abiding gun owner?
And speaking of friends, you can always tell a person by the company they keep. Obama counts among his friends the Rev. Michael Pfleger - a renegade Chicago priest who has openly called for the murder of gun shop owners and pro-gun legislators. Then there is his buddy Richard Daley, the mayor of Chicago who has declared that if it were up to him, nobody would be allowed to own a gun. And let's not forget Obama's pal George Soros - the guy who has pumped millions of dollars into the UN's international effort to disarm law-abiding citizens.
Obama has shown that he is more than willing to use other people's money to fund his campaign to take your guns away from you. While a board member of the leftist Joyce Foundation, Barack Obama wrote checks for tens of millions of dollars to extremist gun control organizations such as the Illinois Council Against Handgun Violence and the Violence Policy Center.
Does Barack Obama still sound to you like a "friend" of the law-abiding gun owner?
By now, I'm sure that many of you have received mailings from an organization called "American Hunters and Shooters Association(AHSA)" talking about what a swell fellow Obama is and how he honors the 2nd Amendment and how you will never have to worry about Obama coming to take your guns. Let me make it perfectly clear - everything the AHSA says about Obama is pure hogwash. The AHSA is headed by a group of left-wing elitists who subscribe to the British view of hunting and shooting. That is, a state of affairs where hunting and shooting are reserved for the wealthy upper-crust who can afford guided hunts on exclusive private reserves. The AHSA is not your friend, never will be.
In closing, I'd like to remind you that I'm a guy who has actually gone nose to nose with Obama on gun rights issues. The Obama I know cannot even begin to identify with this nation's outdoor traditions. The Obama I know sees you, the law abiding gun owner, as nothing but a low-class lummox who is easily swayed by the flash of a smile and a ration of rosy rhetoric. The Obama I know is a stony-faced liar who has honed his skill at getting what he wants - so long as people are willing to give it to him.
That's the Barack Obama I know.
The ISRA is the state's leading advocate of safe, lawful and responsible firearms ownership. Founded in 1903, the ISRA has represented the interests of millions of law-abiding Illinois firearm owners.
This press release was posted on PRnewswire.
Posted Wed Oct 15 18:44:24 CDT 2008
"Always Eleven to him" wrote:
Please explain how the reasoning is not tortured.
The reasoning simply follows the crystal clear language of the law. The fact that the law doesn't say what you want does not make the reasoning tortured.
That is incorrect. The court did not in any way limit the definition of arms so that it excluded military weapons.
Nope. But by just looking at the info on the 11:11 phenomenon, I must wonder. :-)
One of my old boyfriends used to call me Eleven.
