Federal Judge Unlikely To Strike Down SF’s Law Banning High-Capacity Ammo Magazines

[one...two...tree 2,762]

Actually he was tying back into US vs Miller. Ironically that case basically said that only commonly used militia weapons were protected. Sawed off Shotguns were interpreted at the time as non military use weapons (despite their US in WW1). Also, I would never say as you have that something becoming 'usual' by criminals is protected. thats not what he said in Heller.

I understand that the 2nd ammendment can be regulated by the government. However, making a magazine designed for a popular firearm amoung the law abiding population illegal has not been supported at the highest judical level. IMO if a standard capacity magazine ban is brought before this court and it makes for a good precedent, they will take the case on and they will establish that standard capacity magazines - ie the magazine originally designed for the legal firearm can not be regulated.

(Also there were breach loading firearms by 1791, FYI)

My point is that first, the language of 'dangerous and unusual' is an interpretation (Justice Scalia's and perhaps other SCJ's). That language doesn't exist in the 2nd Amendment. Justice Scalia, by using that language in such a way, violates his own ideal of being an originalist. Second, he is basically saying that a weapon can be dangerous - an idea that gun advocates are adamantly opposed to (guns don't kill people), and then uses that as logic when deciding what kind of legislation restricting guns would be constitutional (which ironically is the criteria that gun control advocates argue).

We could have a whole other discussion on how to define 'unusual' but in a way, that in itself is futile. It sounds like you define 'usual' as firearms commonly used by the military, but thinking that further out you'll soon realize that also puts you in a logical predicament, since there a many commonly used personal weaponry in the military (hand grenades, for example) that I don't think you'd argue as then being 'usual' and therefore constitutional when it comes to ownership.

Here's a good example that shows how Justice Scalia backs himself in a corner when it comes to his interpretation of the 2nd Amendment:

“Referring to the recent shooting in Aurora, CO, host Chris Wallace asked the Supreme Court Justice about gun control, and whether the Second Amendment allows for any limitations to gun rights. Scalia admitted there could be, such as “frighting” (carrying a big ax just to scare people), but they would still have to be determined with an 18th-Century perspective in mind. According to his originalism, if a weapon can be hand-held, though, it probably still falls under the right to “bear arms”:

WALLACE: What about… a weapon that can fire a hundred shots in a minute?

SCALIA: We’ll see. Obviously the Amendment does not apply to arms that cannot be hand-carried — it’s to keep and “bear,” so it doesn’t apply to cannons — but I suppose here are hand-held rocket launchers that can bring down airplanes, that will have to be decided.

WALLACE: How do you decide that if you’re a textualist?

SCALIA: Very carefully.” Think Progress

So going back to the OP and my original post, most gun legislation that is short of outright bans of ownership, are completely open to interpretation as to whether they are constitutional or not, and this will always be the case because of the ambiguity of the 2nd Amendment.

Edited February 17, 2014 by Porterhouse

[Sousuke 1,214]

My point is that first, the language of 'dangerous and unusual' is an interpretation (Justice Scalia's and perhaps other SCJ's). That language doesn't exist in the 2nd Amendment. Justice Scalia, by using that language in such a way, violates his own ideal of being an originalist. Second, he is basically saying that a weapon can be dangerous - an idea that gun advocates are adamantly opposed to (guns don't kill people), and then uses that as logic when deciding what kind of legislation restricting guns would be constitutional (which ironically is the criteria that gun control advocates argue).

We could have a whole other discussion on how to define 'unusual' but in a way, that in itself is futile. It sounds like you define 'usual' as firearms commonly used by the military, but thinking that further out you'll soon realize that also puts you in a logical predicament, since there a many commonly used personal weaponry in the military (hand grenades, for example) that I don't think you'd argue as then being 'usual' and therefore constitutional when it comes to ownership.

Here's a good example that shows how Justice Scalia backs himself in a corner when it comes to his interpretation of the 2nd Amendment:

So going back to the OP and my original post, most gun legislation that is short of outright bans of ownership, are completely open to interpretation as to whether they are constitutional or not, and this will always be the case because of the ambiguity of the 2nd Amendment.

I would say that after each ruling the ambiguity of the 2nd amendment is becoming less and less. Handguns are protected now, firearms in the home are protected now. Looking ahead I see firearms in public will be protected, though I believe the court will say that permit schemes are not infringements so long as they do not descriminate.

On the subject of magazines, SF and California will probably not be the case heard, as NY goes much further. Beyond this, I have no clue as SCOTUS will likely shift left.

I doubt an AWB will be heard in time for instance and may even become the law of the land. Of course the AWB have no teeth as they focus on cosmetics which are easily circumnavigated. The only way to take the AWB further is to ban all semi-autos and not even California was able to do that.

Edited February 18, 2014 by Brown Dwarf

[one...two...tree 2,762]

I would say that after each ruling the ambiguity of the 2nd amendment is becoming less and less. Handguns are protected now, firearms in the home are protected now. Looking ahead I see firearms in public will be protected, though I believe the court will say that permit schemes are not infringements so long as they do not descriminate.

On the subject of magazines, SF and California will probably not be the case heard, as NY goes much further. Beyond this, I have no clue as SCOTUS will likely shift left.

I doubt an AWB will be heard in time for instance and may even become the law of the land. Of course the AWB have no teeth as they focus on cosmetics which are easily circumnavigated. The only way to take the AWB further is to ban all semi-autos and not even California was able to do that.

Handguns are not protected in all scenarios and circumstances. Lets not get ahead of ourselves. We know what the 2nd Amendment says and doesn't, and that's why these debates continue. Whatever rulings SCOTUS has made or will make will not end the debate. And just like these gun threads which meander all over the place, future SCOTUS rulings will do so as well, until there's a constitutional amendment that would define more clearly the parameters of what types of weapons are covered and which are not. What I find peculiar is the gun lobby's talking point that 'guns don't kill people, people kill,' yet probably the most ardent voice on the Supreme Court in support of gun ownership draws the constitutional line with the qualifiers "dangerous and unusual." Scalia legally not only left the barn door open, he tore it off. Logically, if one weapon can be dangerous, then all of them are potentially dangerous, which invalidates one of the gun lobby's central talking points.

Edited February 18, 2014 by Porterhouse

[Sousuke 1,214]

Handguns are not protected in all scenarios and circumstances. Lets not get ahead of ourselves. We know what the 2nd Amendment says and doesn't, and that's why these debates continue. Whatever rulings SCOTUS has made or will make will not end the debate. And just like these gun threads which meander all over the place, future SCOTUS rulings will do so as well, until there's a constitutional amendment that would define more clearly the parameters of what types of weapons are covered and which are not. What I find peculiar is the gun lobby's talking point that 'guns don't kill people, people kill,' yet probably the most ardent voice on the Supreme Court in support of gun ownership draws the constitutional line with the qualifiers "dangerous and unusual." Scalia legally not only left the barn door open, he tore it off. Logically, if one weapon can be dangerous, then all of them are potentially dangerous, which invalidates one of the gun lobby's central talking points.

Well you can't have an out right ban of handguns is what I'm getting at. You and I both know that our state is attempting a de facto ban using the gun roster - which leads me to the next point. Scalia could have been indicating that dangerous firearms are those which might cause harm to the user through defects. We don't know for sure yet until the next case.

[slim 1,525]

Aren't we forgetting rights are unlimited until specifically prohibited?

It seems a huge part of the issue around the 2nd Amendment is folks assume everything is prohibited until Congress or SCOTUS or someone comes along and says, "No, it's okay. You can have that." Americans are viewing their rights bassackwards. We have the right to anything we darn well please (provided it doesn't infringe upon anyone else's rights) though most folks want it limited.

[one...two...tree 2,762]

Well you can't have an out right ban of handguns is what I'm getting at. You and I both know that our state is attempting a de facto ban using the gun roster - which leads me to the next point. Scalia could have been indicating that dangerous firearms are those which might cause harm to the user through defects. We don't know for sure yet until the next case.

Reading the court's deciding opinion in Heller, it seems pretty clear that Scalia was referring to "dangerous and unusual" in the context of the safety of the general public. (See below)

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues....

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”

We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are

highly unusual in society at large

. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks.

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.

http://www.dailykos.com/story/2012/12/18/1171509/-What-gun-control-does-the-Second-Amendment-allow

Edited February 19, 2014 by Porterhouse