Posted on 07/12/2018 1:13:49 PM PDT by Starman417
It’s not just the wrongly decided Roe V. Wade decision that liberals fear is in jeopardy with the nomination of Brett Kavanaugh. They also fear their crusade against “semi-automatic” weapons may be exposed as the semantic, visual, and judicial fraud that it is:
"If you care about common sense gun violence protection, Judge Kavanaugh is your worst nightmare. If you want background checks, a ban on assault weapons, or any of the other common sense measures that we have in Connecticut, or California or New York, Judge Kavanaugh will strike them down." said Sen. Richard Blumenthal, D-Connecticut, who used to clerk on the court. "That's in his record, it's indisputable."President Trump may very well have picked Brett Kavanaugh to be his second nomination to the Supreme Court based on his clear thinking opinion that there is no asterisk next the phrase “right to keep and bear arms” that says it is okay for that right to be infringed based on a “scary” appearance or advancements in technology:"Give him a seat on this court, and you can say good-bye to the common sense measures in Connecticut, California and New York that have helped save lives," he added.
Kavanaugh, who has served on the U.S. Court of Appeals for the D.C. Circuit since 2006, dissented from a 2011 decision in which a three-judge panel upheld the District of Columbia's ban on so-called assault weapons and its requirement that all guns be registered. Kavanaugh disagreed with the majority's use of "intermediate scrutiny," saying an analysis "based on text, history, and tradition" is more consistent with the Supreme Court's Second Amendment precedents.When the Constitution was written the both the government and the people had the same weapon – the musket – which could be called the semi-automatic weapon of its day. The Second Amendment did not come with an asterisk nor is any of our rights enshrined in the Constitution in any way dependent on technology. Judge Kavanaugh seems to recognize that fact.The D.C. "assault weapon" ban covers a list of specific models as well as guns that meet certain criteria. A semi-automatic rifle that accepts a detachable magazine is illegal, for instance, if it has any of six prohibited features, including an adjustable stock, a pistol grip, or a flash suppressor. "The list appears to be haphazard," Kavanaugh noted. "It bans certain semi-automatic rifles but not others—with no particular explanation or rationale for why some made the list and some did not." In any case, he concluded, the law is inconsistent with the landmark 2008 case District of Columbia v. Heller.
"In Heller," Kavanaugh noted, "the Supreme Court held that handguns—the vast majority of which today are semi-automatic—are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller's protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.'s ban on them is unconstitutional."
When the Constitution was written the musket was in common use as a personal weapon and was useful as a weapon of war. There was no such distinction when the Second Amendment was written. Supporters of “sensible restrictions” on gun ownership make the argument that the Second Amendment does not protect the right to bear an M-1 Abrams tank. That is a nonsense argument. Try to buy a functional fully-armed tank, or a nuclear weapon Who will sell you one?
Tanks are designed to be used against other tanks. Guns that fire bullets one at a time such as the AR-15 are useful both in war and peace and are in fact in “common use” by the civilian population of the United States.
Former Navy SEAL Dean Raso is quoted in The Federalist as describing the AR-15 as in fact the ideal defensive weapon against heavily armed predators:
In the wake of the Orlando terrorist attack, the deadliest strike on U.S. soil since 9/11, Democratic lawmakers and progressive activists have responded by attempting to limit access to firearms — particularly the AR-15, which was incorrectly reported as the weapon the terrorist used to kill at least 49 people and injure another 53.Indeed, why would you? As one wag put it, a gun in the hand is betters than a cop on a phone and the response time for a bullet from an AR-15 fired in self-defense is a lot quicker than calling 911. Other non-scary weapons are just as lethal and the AR-15 has been chosen by popular demanded as the defensive weapon of choice, despite a nonsensical ruling by one federal judge:In a new video, former Navy SEAL Dom Raso explains why the AR-15, the most popular rifle in the country, gives Americans the best chance of surviving in an age of terror.
Choosing to defend one’s home with an AR-15 is a commonsense choice, as it is powerful, accurate, and easy to shoot, Raso said.
Gun control legislation doesn’t stop terror attacks, he explained, citing the two terrorists who who weren’t deterred by California’s assault weapons ban when they killed 14 people in San Bernardino last year. Nor would any gun ban have stopped the Boston Bombers when they detonated a bomb at the Boston Marathon, killing three and wounding at least 260 others.
Ironically, both of those incidents of terror were brought to a stop by armed police officers responding to the scene with AR-15s–the same weapon legislators are trying to ban.
“Why would you want to ban the gun you pray for police to show up with?” Raso asked.
(Excerpt) Read more at Floppingaces.net...
It’s way past time to level the playing field. We need to abolish the NFA entirely. We need to expose how crazily armed the police and federal agents truly are. The American people have no idea how many tens of thousands of machine guns are in the hands of non military federal agents and state and local police departments.
The latest 3d printing ruling also forced the government to acknowledge that the AR-15 is not a military weapon.
I have one just like it, only that one is mine.
“This author was so close yet missed by a mile. The musket was not the semi auto of the day. It was the FULL AUTO of the day.”
Actually, the Pennsylvania/Kentucky Long Rifle was the full auto of the day...
So Kavanaugh really does read the old ink on ancient parchment?
Thank God. And thank you, Mr. Trump!
Maybe he knows and understands the Tenth Amendment, too?
Imagine the fun we could have with THAT one!
FReepmail me if you want to be added to or deleted from the list.
More 2nd Amendment related articles on FR's Bang List.
Keeping our guns is the only reason we haven't gone the final remaining small step into absolute tyranny during the past 30-years...
“Why do the police and thousands of federal agents need machine guns yet they are prohibited from the people?”
And therein lies ANOTHER big problem (one that I’d LOVE to see litigated once Kavanaugh is confirmed or, better yet, when RBG is replaced with someone similar to Kavanaugh on this issue): The 1939 case of “US v. Miller” stated that the (unconstitutional, IMHO) 1934 National Firearms Act WAS constitutionally fine (i.e. didn’t violate the 2A’s prohibition on infringing upon Miller’s right to own arms) because it didn’t prohibit him from owning it; rather, the NFA only imposed a tax, something within the power of Congress to do. Yeah, that is VERY questionable - especially when $200 at that time was like $5,000 today - would such a tax to buy an AR-15 be OK now? I think not. BUT HERE IS THE PROBLEM: in 1986, Title 18, Section 922(o) was put into law, which PROHIBITED the BATF from issuing the NFA tax stamps for full autos made after 5/18/86...IOW, they prohibited the collection of the tax that the “Miller” Court said was necessary to make the NFA legal. Thus, IMHO, you now have a situation where the government created the condition in 1986 to make a previously-constitutional law passed in 1934, suddenly unconstitutional. All we lack right now is a ruling to that effect by 5 Justices.
I think that we have a shot at this. It is not too unlike the situation with carry laws - there were, of course, all kinds of claims that it’d be like the Wild West (which wasn’t, in actual fact, all that “wild”), that people would be gunned down in the streets by the bushel...and it turns out that carry license holders are MUCH MORE law-abiding than even the police. WRT full autos, there has been exactly ONE (1) criminal act committed with a registered full auto, and that was by an off-duty cop.
We are ready for NFA repeal.
Which is exactly what is happening in uk these days.The people have no way to throw off a tyrannical government.
Beautiful
“I want see 10 round magazine limits gone.”
I want to buy suppressors over-the-counter at Wal-Mart with just a quick swipe of my MasterCard. I’d buy three tomorrow if that were the case.
Heck, make that...order them from Amazon, free shipping.
It may just be an eventual possibility!
Repeal NFA....
there it is Folks!
Cheers
A gun that can’t easily kill people is just a really expensive club.
“When the Constitution was written the both the government and the people had the same weapon – the musket – ”
Private citizens also owned cannons and some owned their very own warships. With Congressional approval, I might add.
L
My recollection of the Miller decision differs from your description.
As I recall, the government made two arguments in their attempt to overturn the District Court decision in Miller's favor; that is, the District Court had decided that Miller's keeping and bearing of a short-barreled shotgun was protected by the Second Amendment.
First, the government argued that the protection of the Second Amendment applied only to members of an organized Militia. Second, they argued that the protection of the Second Amendment extended only to arms that are useful to a Militia.
The first argument was never addressed directly, but the Supreme Court obviously rejected it. Otherwise, since Miller was not a member of an organized Militia, the Court could simply have said so and the case would be over and Miller would have lost.
Instead, the Court accepted the second argument by the government; that is, that only weapons that are useful to a Militia are protected by the Second Amendment.
The Court was provided with no "judicial notice" regarding the usefulness of short-barreled shotguns, so they vacated the ruling by the District Court that had been favorable to Miller and remanded the case back to that lower court in order to decide about the usefulness of a short-barreled shotgun.
For various reasons, the lower court never took any future action. Despite that, other courts mistakenly and maliciously misstated the Miller Decision and invented the "collective right" nonsense that prevailed until the Heller Decision.
Although I think the Heller Court attempted to make it appear as though they were not overturning the Miller Decision, I think that they were.
The Miller Decision was that ONLY weapons useful to a Militia are protected. The Heller Decision ADDED Second Amendment protection for arms that are useful for self-defense.
Perhaps we can look forward to a Kavanaugh decision that recognizes that AR-15s are THE militia weapon of the twentieth century and are therefor protected. That could be fun.
Well, not exactly.
One of the first military acts of our own American Revolution was to send a force to take Fort Ticonderoga and move the cannon through the snow-covered northeast to occupied Boston. There the cannon were placed so as to dominate Boston harbor and the British fleet that was anchored there. This action induced the British to pack up and leave Boston to its original inhabitants.
Later our Founders included the Second Amendment in our Bill of Rights so as to eliminate having to steal weapons before being able to fight tyranny. The National Firarms Act has reduced us to the position of our Founders.
If a second revolution is called for I think we will be able to figure it out. For example, I remember hearing some years ago that every sergeant's cruiser in the LAPD has an M16 or equivalent in the trunk. Isn't that a comfort?
The british people today have no way of throwing off the tyranical government since they gave up their guns.
I know that there was a lot of emphasis on the usefulness of a short-barreled shotgun for militia purposes, but the case ALSO relied upon the ability of the Feds to regulate firearms.
Check out this analysis of the Miller case:
http://migration.nyulaw.me/sites/default/files/ECM_PRO_060964.pdf
On page 26 of that .pdf, near the bottom, and going on to page 27, is the following:
“In any case, McReynolds began Miller by emphasizing the
NFA satisfies the Tenth Amendment only because it is at least
nominally a tax, rather than a regulation. 193 As the government pointed out, “even as to this class of firearms there is not a word in the National Firearms Act which expressly prohibits the obtaining, ownership, possession or transportation thereof by anyone if compliance
is had with the provisions relating to registration, the payment of taxes, and the possession of stamp-affixed orders.” 194 So, whatever it holds, Miller does not hold that Congress can regulate firearms directly. The rejection of Miller’s Tenth Amendment claim highlights the implausibility of his Second Amendment claim. Miller could not just argue that the Second Amendment guarantees the right to possess and use NFA firearms. He had to claim it prohibits taxation of NFA firearms. Unsurprisingly, McReynolds found this claim unconvincing. Whether or not the Second Amendment guarantees an individual right to keep and bear arms, it hardly prohibits Congress from taxing particular weapons.”
BTW, don’t assume that I agree with the “Miller” case - I find it an awful case which perhaps had some utility (in the pre-”Heller” world) to fight gun control, IF you could craft the right case and make certain that the firearm in question undoubtedly had “utility as a militia weapon.” Of course, now much of “Miller,” if not the entire thing, is pretty much moot. I look forward to a case after Kavanaugh is confirmed, as I believe that many of the issues that both “Miller” and “Heller” avoided will be addressed. As an Originalist/Textualist, Kavanaugh is VERY well aware of the Article 1, Section 8 power that Congress has to grant “Letters of Marque and Reprisal,” which necessarily presume the private ownership of naval cannon and warships (or commercial ships converted to warships) with which to attack enemy shipping. Such a “big view” of the 2nd Amendment will, IMHO, render the entire NFA unconstitutional...if you can own cannon, why on Earth can you be prevented from owning full autos, suppressors, sawed-off shotties, etc.?
I wish I could but I can't. I'm recovering from cataract surgery and don't yet have working glasses. I'll have to rely on you to do the heavy lifting.
I don't agree with the analysis in so far as it suggests that taxation of firearms would not be an infringement. All I am seeing is that Congress has the authority to tax and that Congress lacks the authority to involve itself in matters that are reserved to the states.
I would certainly agree that the guidance provided by the Miller quote was quite abbreviated. The bottom line remains, however, that the sparse quidance to the lower court only concerned whether the shotgun was useful to a Militia. This would indicate to me that the Miller Court had decided against any authority of Congress to tax arms.
Otherwise, the Miller Court could have disposed of the case by simply asking the lower court to decide whether the tax was permissible and not an "infringement". Or, since it would be a matter of law and not a matter of fact, the Miller Court could have simply declared that the tax was permissible and ordered the lower court to reinstate the charges against Miller.
I've always been impressed by the fact that the District Court which had original jurisdiction found it so easy to simply dismiss the charges and declare the NFA invalid.
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