Posted on 07/22/2018 7:05:14 AM PDT by marktwain
AG: Theres a case in Massachusetts that raises this exact issue. Worman v. Baker was decided in April by Judge William Young. Its a 47-page opinion that really goes into this question of in common use at the time and said thats the standard. Judge Young quotes Scalias opinion in Heller all the way through it and then upholds the Massachusetts law banning assault weapons. That case is going to be appealed to the First Circuit Court of Appeals. The Second, Fourth, Seventh, and the DC Circuit have all upheld assault weapons ban, so I predict the First Circuit will, too, but somebodys going to appeal that to the Supreme Court, and we will have this discussion about what does in common use at the time mean? I think its likely that Judge Kavanaugh will be Justice Kavanaugh by then. And we know what he thinks because he already told ushe wrote that dissent in the DC case.Avery Gardner (AG) misstates what Judge William Young writes in his opinion. In Worman v. Baker, Judge Young does not rely on the "in common use at the time" argument. He instead makes the claim that AR15 rifles are "most useful in military service", and therefore are not covered by the second Amendment.
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 3536 (2001) , 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.The "common use at the time" phrase used by Justice Scalia refers to the time the Miller decision was written, in 1939, not to the time the amendment was passed, in 1791. Avery Gardiner either mis-read the rather plain English in Justice Scalia's opinion, or is misrepresenting it.
For most of our history, mainstream scholarship considered the Second Amendment as nothing more than a guarantee that the several states can maintain "well regulated" militias.
It is demonstrably not true that, as Justice Stevens claims, post, at 4142,for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial. For most of our history the question did not present itself.Judge Young only quotes select sources from 1966, 1978, and 1971 to support his collective right claim. But historical sources show the judge is mistaken. The collective right theory had almost no adherents until the Kansas Supreme Court adopted it in 1905. But the Kansas Supreme Court decision only applied to the Kansas State Constitution's right to bear arms.
This example is pretty clear.
“In common use” is the wrong standard when full auto is effectively banned. It uses circular logic to affirm validity of the de facto ban.
Miller has been mis-construed either, by persons with no comprehension skills, or, more likely, deliberately almost since the ruling was made.
Here is my favorite link to a highly suppressed 1982 Senate report on the RKBA. Skim down to the court cases of the 1800s and see what state courts thought of the 2nd Amendment. I personally think Nunn Vs. Ga is correct. Betcha can’t find a complete copy of this on line.
http://www.constitution.org/2ll/2ndschol/87senrpt.pdf
THE RIGHT TO KEEP AND BEAR ARMS...1982, 97TH CONGRESS..
“The conclusion is thus inescapable that the history, concept, and wording of the second
amendment to the Constitution of the United States, as well as its interpretation by every major
commentator and court in the first half-century after its ratification, indicates that what is protected
is an individual right of a private citizen to own and carry firearms in a peaceful manner.”
19. *
Nunn v. State
, 1 Ga. (1 Kel.) 243, at 251 (1846).
“’The right of the people to bear arms shall not be infringed.’ The right of the whole people,
old and young, men, women and boys, and not militia only, to keep and bear arms of every
description, and not such merely as are used by the militia, shall not be infringed, curtailed, or
broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing
up and qualifying a well-regulated militia, so vitally necessary to the security of a free State.”
Hard to believe that in the 1600s and 1700s citizens of Massachusetts were required by law to travel armed, and take their firearms to church on Sundays.
He instead makes the claim that AR15 rifles are "most useful in military service", and therefore are not covered by the second Amendment.
I'd like this hack judge to show me an army that has AR15s as their standard battle rifle. And, as you said, that statement flies in the face of Miller.
Well said.
Interesting. Sadly, the NFA itself was based on BS and fear of gangsters and shoot outs everywhere.
Yes, another gift from Chicago.
Miller was a complete set-up by the Charles Schumer of the day. Judge Ragon was an anti-gun extremist, appointed by FDR from a congressional seat to a federal court in Arkansas.
He was the judge who did everything to manipulate the case to the Supreme Court and per-determine the outcome.
http://www.thetruthaboutguns.com/2013/12/dean-weingarten/subverting-second-amendment-us-v-miller/
Thanks for that link. Crooked democRats are nothing new.
Good info. Not that it’ll change anything. LOL! At least some people will know the truth.
Crooked democRats are nothing new.
Progressives, in theory, reject God and all limitations on government. They accept no limits on behavior. Whatever gets them what they want is considered acceptable.
It’s what’s in common use by militaries.
Yessir, that is right.
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