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GUNS AND JUDGES (Reinhard)
The Oregonian ^
| July 3, 2008
| David Reinhard
Posted on 07/03/2008 9:16:22 AM PDT by jazusamo
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To: Ancesthntr
Ted Nugent is way too conservative for McAmnesty!!
41
posted on
07/03/2008 2:38:51 PM PDT
by
blackie
(Be Well~Be Armed~Be Safe~Molon Labe!)
To: willgolfforfood
They didn't do their homework, whether Miller had an attorney present or not, and they screwed up. Got it...I didn't quite understand your point. Just to flog this dead horse one more time, though, when the court said "it is not within judicial notice....", what that means is "Look, we (personally, not as judges) know guys used sawed-off shotguns as personal defense weapons in the last war, but you have to present that evidence to us. We're the court. We don't go do research on that sort of thing (in later years this would be called a form of judicial activism).)
My point is that it wasn't the court's job to go out and figure out whether a sawed-off shotgun was "...part of the military equipment...", in fact, you don't want courts doing that.
Now, this issue will be brought up again, and who knows what the results wil be. We'll find out. At least the door is open now, and we're on the offensive, which is much better than the endless rear-guard actions of the past 70 years.
42
posted on
07/03/2008 2:47:36 PM PDT
by
absalom01
(The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.)
To: Lurker
Exactly so. Scalia even points it out in one of those 57 pages...
43
posted on
07/03/2008 2:48:48 PM PDT
by
Dead Corpse
(What would a free man do?)
To: Ancesthntr
That's true, but AR-15s are common in civilian hands, and the price of a legal happy switch demonstrates that they would be common if not for the ban.
I think the ban on full autos is much more vulnerable than is commonly believed. Consider what the Appeals Court ruling, just affirmed by the Supreme Court, had to say:
Once it is determinedas we have donethat handguns are Arms referred to in the Second Amendment, it is not open to the District to ban them.
Scalia spoke directly of the issue, and wound up saying this:
It may be objected that if weapons that are most useful in military serviceM-16 rifles and the likemay be banned, then the Second Amendment right is completely detached from the prefatory clause..... But 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.
He was talking about other modern weapons, but the only "modern development" which causes gun shops to sell AR-15's to us and full auto versions of the same gun to the government is the ban on post '86 machine guns.
To: mvpel
Thanks for that info. Like I said, I’m no lawyer. But now I know why many of those who are can say, “The law is an ass.”
To: Ancesthntr
I know your heart is in the right place, but please don't claim that full autos are common because of state militias, even if they are, in fact, common there. How common is common?
If every legally available one is in private hands, with the exception of relatively small dealer inventories which sell at prices vastly above the world market, solely because of regulation, the argumant can be made that they are as common as is possible under current regulations, and that demand exceeds supply.
The very (inflated) sale price of a currently transferrable arm makes the case that they would be more common were they available, and especially if the price were lower.
As you state: "If there was no NFA and no '86 ban, there'd be at least 5 million full autos (or select fire weapons, which amounts to the same thing in a legal sense) in civilian hands, maybe more."
46
posted on
07/03/2008 2:57:30 PM PDT
by
Smokin' Joe
(How often God must weep at humans' folly.)
To: Joe Brower; Travis McGee; El Gato; Squantos; goldstategop; Eaker; wardaddy; AxelPaulsenJr; ...
47
posted on
07/03/2008 2:58:04 PM PDT
by
neverdem
(I'm praying for a Divine Intervention.)
To: willgolfforfood
Miller was alive but absent when the case was heard. He was killed before it could be heard again by the lower court. His partner, Frank Layton, copped a plea.
To: mvpel
So if you notice someone blasting away with a trench gun, and then you later become a SC Justice, it’s not within judicial notice? LOL! Good points re “common” and “unusual” weapons above, btw.
To: neverdem
?
50
posted on
07/03/2008 3:03:01 PM PDT
by
Squantos
(Be polite. Be professional. But, have a plan to kill everyone you meet)
To: neverdem
It’s too bad robertpaulsen is not around. He had dire warnings of what might happen if an individual, fundamental (as in incorporated) right were found by the SC, so he’d be arguing furiously that this whole thing only applies to the feds. It would be great entertainment, and I usually learned a few things.
To: publiusF27
That's true, but AR-15s are common in civilian hands, and the price of a legal happy switch demonstrates that they would be common if not for the ban.One such "happy switch:"
52
posted on
07/03/2008 3:18:47 PM PDT
by
mvpel
(Michael Pelletier)
To: publiusF27
So if you notice someone blasting away with a trench gun, and then you later become a SC Justice, its not within judicial notice? LOL! Good points re common and unusual weapons above, btw.Just to clarify, in case someone doesn't understand, the term "judicial notice" is a term of legal art. It means that the court accepts a given fact as true even though there's been no sworn testimony or evidence presented to prove it.
Typically it's applied to stuff like "July 4, 1984 fell on a Wednesday," and so on. Stuff that's widely known or can be determined using widely-known, universally-accepted methods.
53
posted on
07/03/2008 3:22:02 PM PDT
by
mvpel
(Michael Pelletier)
To: jazusamo
Activism by conservative judges - taking the Constitution at it’s plainly worded face value as explained by those who wrote and argued it.
54
posted on
07/03/2008 5:14:38 PM PDT
by
Blood of Tyrants
(G-d is not a Republican. But Satan is definitely a Democrat.)
To: semantic; Flycatcher; Lurker
Well, perhaps he should be reminded that the BoR doesn't "grant" anything; it merely enumerates pre-existing, natural rights FWIW, Scalia emphasized that in his decision--that it is an a priori right, not granted by anyone but God.
55
posted on
07/03/2008 5:33:03 PM PDT
by
ninenot
(Minister of Membership, Tomas Torquemada Gentlemen's Club)
To: ninenot
it is an a priori right, not granted by anyone but God Well, I tend to leave God out of it and focus on natural rights, but the end result is the same.
As a matter of course, it doesn't whether someone is lib/con, their entire thesis is immediately discredited upon any mention of 'grant', 'gives', etc in reference to the BoR.
As many of Framers well recognized, an enumeration of natural rights could give the impression that there may be some limit and/or gov't acquiescence, when neither is the case.
The ultimate manifestation of this corrupted understanding of natural rights is where we find ourselves 225 years later waiting with bated breath as we are judged by 9.
56
posted on
07/03/2008 5:41:30 PM PDT
by
semantic
To: mvpel
Stuff that's widely known or can be determined using widely-known, universally-accepted methods.
But the use of trench brooms was widely known, and asking any soldier would have to qualify as a universally accepted method of determining whether he could name a military use for a short shotgun. I guess it depends upon what the meaning of "widely" is, which is somewhat less clear than the word "is" is. ;) But doesn't it seem that the Supremes at the time of the Miller decision could easily have said that it was well known that short shotguns had military utility?
To: jazusamo
I’m not reading past the first paragraph.
What a load of BS.
58
posted on
07/03/2008 6:00:00 PM PDT
by
wastedyears
(Obama is a Texas Post Turtle.)
To: Cletus.D.Yokel
I think you’re referring to Stephen Reinhardt of the 9th circuit (and Jimmy Carter appointee).
59
posted on
07/03/2008 6:04:03 PM PDT
by
Darren McCarty
(Just when I thought I was out, they pull me back in - Michael Corleone)
To: DJ Taylor
Excellent piece by Ted, and I’m glad to call him a fellow guitar player.
60
posted on
07/03/2008 6:06:28 PM PDT
by
wastedyears
(Obama is a Texas Post Turtle.)
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