Posted on 03/20/2008 9:36:38 AM PDT by kiriath_jearim
Pro-gun attorney David Hardy attended the oral argument in Heller, and he writes :
"Joe Olson and I were out drinking with Alan Gura [an attorney representing the pro-gun side] last night, and he was getting a constant stream of emails from machinegun owners on his pda, denouncing his statement that full auto arms' possession might not be protected by the 2nd Amendment.
I think EVERYONE associated with this case who knows anything about appellate argument — and I've talked to many in that class — agreed that if you cannot come up with a 2nd Amendment test that lets the government [regulate] full autos, you lose. . . . I was very relieved when the Court showed signs of taking the view that Heller is asking to own a .38, not a Thompson, so we can deal with the full auto issue if and when someone brings a case (which I hope will be about ten years down the road)."
This is a very important issue in Heller – the Bush administration’s notorious brief argued that, under the test set up by the appeals court (basically, the Second Amendment protects colonial militia arms and their lineal descendants, so bans on those weapons are unconstitutional), judges would have to start striking down machine-gun regulations. I made the case in The American Spectator that this wasn’t so; machine guns are not in the category the appeals court’s Second Amendment protects. This category comprises more "normal" guns, which I argued were lineal descendants of colonial arms. In addition, machine guns are not and have never been in "common use," another of the appeals court’s criteria.
I got a barrage of e-mails presumably similar to the one Gura got, as it seems gunnies love their full-autos and think they’re entitled to them. One good point they had, though, is that the firing mechanism of a semi-auto is more similar to that of a full-auto than to that of a colonial arm. It’s a reasonable position that if machine guns are categorically different, so are the very-common semi-automatics.
I’d still say the practical advantage of the full-auto makes it a different category (if you hold down the trigger, it lets loose a steady stream of lead), and there’s still the issue of common use. It’ll be interesting to see what the court comes up with. To keep the appeals court’s test, one has to draw a line between new guns and "lineal descendants" of old ones, with squiggles here and there to allow for "common use" – there’s no ruler to use, and the judicial system isn’t exactly well-equipped to craft one.
That's something that us FReepers caught on to fast but even Scalia didn't. The reason full auto isn't in common use today is because of restrictions.
What part of “...shall not be infringed” do they not understand?
Surprisingly, here in CT you can have a full auto. However, it can't be selective fire, both semi & full auto.
BS! The people back then were expected to have weaponry with enough power to defeat a military force. These days, that’s automatics.
On a practical note, I do hope the full-auto issue doesn’t cloud this particular case.
According to Miller, a weapon needs to have “militia use”. So, what do infantry use now? M-16s.
It is unfathomable to me that we are actually debating a phrase in the Constitution that explicitly grants us the right to bear arms while a right to kill unborn babies, not mentioned anywhere in the Constitution, goes on without debate.
The part that prevents the drunk, drug-using, Islamic militant pedophile from taking his fully automatic 40mm Boefors gun to my grandchildren’s bus stop.
You can get full auto in Idaho too...biggest hold up is actually the cost, not the process.
Actually currently it's preventing you from having your own 40mm Boefors to counter that drunk, drug-using, Islamic militant.
If a semi auto AR-15 is a “lineal descendant” of the musket, it only takes a little machining and a couple of parts to make it into a FA. Therefore the M-16 is also a “lineal descendant” of the musket. And there are machine guns far simpler than the M-16 such as the M3A1 Grease gun.
I've read elsewhere that the Justices like to throw softballs, fastballs, reel you out then set the hook, appear to be aloof, engage in deep pragmatism, consequences, and like to appear to be leading the debate in one direction while silently considering another issue entirely. A lawyer arguing before the court has to be careful, but at the same time many Justices consider oral argument to be a formal protocol and little else. They're only interested in the written briefs which aids them in addressing their pre-formed conclusion in debate with their peers. They're certainly better debaters than most anyone appearing before them.
In that light, Gura did OK in his testimony. He's arguing for his client Heller in a narrow scope of simply letting the man keep a pistol at home. Overturning Miller, striking down the 1986 Volkmer-McClure Act, etc. is beside the point.
I simply want the Justices to at least say there is an individual right to the 2nd Amendment separate from the Militia Clause, which is what was the narrowly tailored argument that SCOTUS accepted to be heard.
As gun grabbers call the wedge in the door, it's a 'first step'.
Leave it to lawyers to parse things to the knats eyelash and set up straw man examples. All one need do is read the fears and complaints of the times re: tyranny of the governors over the governed. The Second Amendment addressed the rights of the governed to throw out the governors if peaceful transition of power (an American unparrelleled triumph) could not be achieved and gave them the tools to do so....and perhaps that’s why we have always achieved peaceful transitions of power from one administration to the next.
Here’s a question: who owned the cannons that were fired on Redcoats at the Battle of Lexington and Concord? Surely cannon rank above full-auto guns - so who owned them?
That is my main concern. I don't want "Rock 'n Roll" to tube the 2nd Amendment.
The main problem is that all the gun control laws in the world are only effective on the very folks you don't need them for in the first place!
When our forefathers wrote the 1st amendment, they could not of known that somewhere in the future, we’d have an internet................
Militia? Heck, my local neighborhood milita keeps their Browning 30’s and 50’s well oiled, the moat if filled and the mortars are strategically placed. Uh, do we need to register our neighborhood militia or are uniforms good enough? LOL
Same here
You mean of the Class III transfer license?
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