Unfortunately someone would have to prove that to our illustrious Supreme Court. Your much-maligned "weenie" NRA might be the only organization with both the guts and the money to try to do that. I hope they do.
I take issue with "therefore". It implies that the other aspects of Heller are okay. For instance, that selective fire weapons and barrel length can be restricted.
In common use is NOW the lynchpin they will use - after losing the miltia argument, the collective right argument, the only applies to the federal government argument, the "in the home" argument, the trigger lock and broken down argument, the unloaded argument and and and and and.
In common use is bullshit. Take select fires as example. Their production has been banned for decades. How could they EVER qualify based on that test ? How could ANY new technology ever do so? So no, while that can be touted as the test, the test it is not.
The test is longstanding precedent. What arms are useful in military conflict?
Lexington and Concord happened over arms,for sure, among other things , CANNONS and POWDER and BALLS INCLUDED!
WE MUST NOT ALLOW the "most chosen" dogma to continue.
My natural right to ARMS ( plural) means I am immune to prosecution for having "more" than some politician thinks I " should " have. Whether another chooses the same is irrelevant. Scalia points out in heller that the interest balancing approach cannot be conducted anew - and THATS WHAT MAGAZINE LIMIT COMPROMISES ARE, another interest balancing approach. The chosen dicta is not central to or even part of the holding. Omitting it entirely doesn't change the holding. The "for whatever reason" factor proves it.
I foresee academics producing "studies " claiming that thirty rounders are more DANGEROUS to the firearm user - more likely to cause gun failures leading to injuries. Umm maybe I shouldn't give em any ideas.
I have been saying this for years, so called assault weapons were banned for being "military style" weapons the very thing Miller stated the second amendment protected. Waiting for a case to hit SCOTUS with the trifecta of citing Miller, Heller and McDonald to finally put an end to all this gun control madness with respect to "high capacity" magazines and so called "assault weapons".
Heller doesn't say select fire restrictions pass muster indeed it directly calls that into question! The notion that ALL code is presumptively constitutional until SCOTUS says otherwise is the problem.
Indeed, heller actually DISCOUNTS the class three BANS if you read it carefully! Heller declared that it is no answer to say a pistol can be banned because a shotgun is allowed - that it does NOT pass muster to ban entire CLASSES if arms. Note CLASS three! If there is authority to ban autos then there is authority to ban semi autos. That entire argument was dispelled because - as already established- advancing technology does not mean the MEANING changes. Can you say musket ?
There's no doubt that heller is self conflicting and there's no doubt McDonald and heller conflict as well. Heck, the judicial acrobatics required to keep alive selective incorporation itself is comical - however- heller upheld the useful for military conflict test and on that point autos MUST be PROTECTED. ( which is WHY Scalia is basically BEGGING for a. "Scope " case.
Know this. All the new gun control legislation is designed to keep US on DEFENSE so we are not on offense. SAFE act, magazine bans etc are ALL intended to keep US busy so we aren't pressing the select fire point! And the NRA loves it - keep those donation dollars rolling!!!!
What heller got WRONG is the forced training aspect. Well regulated is NOT about government imposed regulation - and it's own explanation really shows that. The NATURAL right exercised because it is protected PRODUCES a proficient population rather than government imposed training producing it. So why go there? Cuz SCOTUS knows the truth - it's longstanding assault upon that right ( among others ) due to Barron and the idiocy of natural rights " not applying " to state and local governments CREATED this mess! Rather than just admit it - the court again jumped through hoops trying to protect stare decisis. Hence McDonald. LOTS more jurisprudence will be needed to clear more blockages. And we see that happening. Moore in Illinois admitting that heller protects LOADED arms OUTSIDE the home is a great example.
So while heller does have problems,the notion that it protects the auto ban is off base. It did not itself omit that ban but then that question was not asked of that court in that case. It has to be asked and when it is , the court will have NO CHOICE but to admit the truth - just as it did MANY times in heller!
5 comments:
Unfortunately someone would have to prove that to our illustrious Supreme Court. Your much-maligned "weenie" NRA might be the only organization with both the guts and the money to try to do that. I hope they do.
- Old Greybeard
I take issue with "therefore". It implies that the other aspects of Heller are okay. For instance, that selective fire weapons and barrel length can be restricted.
In common use is NOW the lynchpin they will use - after losing the miltia argument, the collective right argument, the only applies to the federal government argument, the "in the home" argument, the trigger lock and broken down argument, the unloaded argument and and and and and.
In common use is bullshit. Take select fires as example. Their production has been banned for decades. How could they EVER qualify based on that test ? How could ANY new technology ever do so? So no, while that can be touted as the test, the test it is not.
The test is longstanding precedent.
What arms are useful in military conflict?
Lexington and Concord happened over arms,for sure, among other things , CANNONS and POWDER and BALLS INCLUDED!
WE MUST NOT ALLOW the "most chosen" dogma to continue.
My natural right to ARMS ( plural) means I am immune to prosecution for having "more" than some politician thinks I " should " have. Whether another chooses the same is irrelevant. Scalia points out in heller that the interest balancing approach cannot be conducted anew - and THATS WHAT MAGAZINE LIMIT COMPROMISES ARE, another interest balancing approach. The chosen dicta is not central to or even part of the holding. Omitting it entirely doesn't change the holding. The "for whatever reason" factor proves it.
I foresee academics producing "studies " claiming that thirty rounders are more DANGEROUS to the firearm user - more likely to cause gun failures leading to injuries. Umm maybe I shouldn't give em any ideas.
I have been saying this for years, so called assault weapons were banned for being "military style" weapons the very thing Miller stated the second amendment protected. Waiting for a case to hit SCOTUS with the trifecta of citing Miller, Heller and McDonald to finally put an end to all this gun control madness with respect to "high capacity" magazines and so called "assault weapons".
Heller doesn't say select fire restrictions pass muster indeed it directly calls that into question! The notion that ALL code is presumptively constitutional until SCOTUS says otherwise is the problem.
Indeed, heller actually DISCOUNTS the class three BANS if you read it carefully! Heller declared that it is no answer to say a pistol can be banned because a shotgun is allowed - that it does NOT pass muster to ban entire CLASSES if arms. Note CLASS three! If there is authority to ban autos then there is authority to ban semi autos. That entire argument was dispelled because - as already established- advancing technology does not mean the MEANING changes. Can you say musket ?
There's no doubt that heller is self conflicting and there's no doubt McDonald and heller conflict as well. Heck, the judicial acrobatics required to keep alive selective incorporation itself is comical - however- heller upheld the useful for military conflict test and on that point autos MUST be PROTECTED. ( which is WHY Scalia is basically BEGGING for a. "Scope " case.
Know this. All the new gun control legislation is designed to keep US on DEFENSE so we are not on offense. SAFE act, magazine bans etc are ALL intended to keep US busy so we aren't pressing the select fire point! And the NRA loves it - keep those donation dollars rolling!!!!
What heller got WRONG is the forced training aspect. Well regulated is NOT about government imposed regulation - and it's own explanation really shows that. The NATURAL right exercised because it is protected PRODUCES a proficient population rather than government imposed training producing it. So why go there? Cuz SCOTUS knows the truth - it's longstanding assault upon that right ( among others ) due to Barron and the idiocy of natural rights " not applying " to state and local governments CREATED this mess! Rather than just admit it - the court again jumped through hoops trying to protect stare decisis. Hence McDonald. LOTS more jurisprudence will be needed to clear more blockages. And we see that happening. Moore in Illinois admitting that heller protects LOADED arms OUTSIDE the home is a great example.
So while heller does have problems,the notion that it protects the auto ban is off base. It did not itself omit that ban but then that question was not asked of that court in that case. It has to be asked and when it is , the court will have NO CHOICE but to admit the truth - just as it did MANY times in heller!
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