Firing Line Article says AWB Challenge is Coming

[Shotgun Man]

I was reading in a column authored by Chuck Michel in CRPA's latest The Firing Line that a court challenge to CA's AWB is "pending filing."

Does anyone have any more info such as plaintiffs and venue? Has it been discussed here?

[bwiese]

You'll hear it when you hear it.

Let's not tilt our hand till the Range Hot light goes on...

Chuck's on the job, so you know it'll be good...

[lioneaglegriffin]

:jump:

[lomalinda]

The interesting question will be which of the guns are proposed to be in "common use." AR-15s are popular throughout the country. AKs are less so but still fairly common. Would HK-91s, FALs, etc. be common enough? What about MAC-10s, etc.?

I'd like to think that all of the banned stuff should be released, but I would not be surprised if a large # of them are considered to be too rare to justify allowing their unregistered ownership.

[hoffmang]

If you think about the timing, one little item changed between when that would have to be ready for press and now. That little thing is called the en banc call for vote in the Ninth Circuit.

Let's please not speculate any further than that at this time though.

-Gene

[hvengel]

The interesting question will be which of the guns are proposed to be in "common use." AR-15s are popular throughout the country. AKs are less so but still fairly common. Would HK-91s, FALs, etc. be common enough? What about MAC-10s, etc.?

I'd like to think that all of the banned stuff should be released, but I would not be surprised if a large # of them are considered to be too rare to justify allowing their unregistered ownership.

This assumes that "in common use" is a model by model type of thing. If the laws against these things were separate laws for each model of gun then perhaps that assumption would hold some water. I think this is still very unlikely since the other side would have to have some at least somewhat logical reason to say that an HK-91 was somehow different from an AR-15. But the other side has basically admitted that there is no distinction between an AR-15 and an HK-91 or an FAL since they have chosen to give them all the same legal classification. As a result the "in common use" language in Heller either undercuts the whole scheme or it does not.

[Manic Moran]

Heller's 'in common use' application was to a generic category (handguns). His little .22 revolver may not be a model in particularly common use for home defence, after all.

NTM

[RomanDad]

This assumes that "in common use" is a model by model type of thing. If the laws against these things were separate laws for each model of gun then perhaps that assumption would hold some water. I think this is still very unlikely since the other side would have to have some at least somewhat logical reason to say that an HK-91 was somehow different from an AR-15. But the other side has basically admitted that there is no distinction between an AR-15 and an HK-91 or an FAL since they have chosen to give them all the same legal classification. As a result the "in common use" language in Heller either undercuts the whole scheme or it does not.

Agreed. Heller didnt say "Colt 45 ACPs are in common use". Their analysis was limited to much broader terms, namely, HANDGUNS (as in ALL handguns).

Thus I think the argument could hinge around as broad a definition as "rifles" or at the most specific "Modern, Semi Automatic Rifles". Either would encompass every rifle that has been the subject of legislation EXCEPT those regulated by the NFA.

[CSDGuy]

This should get interesting! I've got my eye on this one.

[Maestro Pistolero]

I was reading in a column authored by Chuck Michel in CRPA's latest The Firing Line that a court challenge to CA's AWB is "pending filing."

Does anyone have any more info such as plaintiffs and venue? Has it been discussed here?

Was there anything more to the story than an anouncement?

[Calguns2000]

The interesting question will be which of the guns are proposed to be in "common use." AR-15s are popular throughout the country. AKs are less so but still fairly common. Would HK-91s, FALs, etc. be common enough? What about MAC-10s, etc.?

I'd like to think that all of the banned stuff should be released, but I would not be surprised if a large # of them are considered to be too rare to justify allowing their unregistered ownership.
The correct way to frame the issue is probably: "is a centerfire semiautomatic rifle with a detachable magazine and a pistol grip in common use"?

[Shotgun Man]

Was there anything more to the story than an anouncement?

This is the complete excerpt from the June '09 The Firing Line:

Pending filing is a challenge to California's "assault weapon" law based on two Second Amendment theories. First, the Second Amendment protects fierearms that are chosen by the American people for self-defense, and that would include many of the firearms prohibited from possession by California's assault weapon control act. Secondarily, although the Heller decision did not address the militia clause of the Second Amendment or what that clause might protect, that clause appears to protect firearms that are appropriate for unorganized militia use, which again would include most the guns banned by the California "assault weapon" law. Legal Front Lines, C.D. Michel.

[yellowfin]

Either would encompass every rifle that has been the subject of legislation EXCEPT those regulated by the NFA. Interesting you say that. Those regulated by the NFA are not materially different from those that aren't for the most part, in particular SBR's, the majority of which are merely AR's with the upper changed on them. How can restricting those be thought of as anything but arbitrary?

[Untamed1972]

Interesting you say that. Those regulated by the NFA are not materially different from those that aren't for the most part, in particular SBR's, the majority of which are merely AR's with the upper changed on them. How can restricting those be thought of as anything but arbitrary?

I've had a similar thought regarding say: what really is the difference between a short-barreled AR rifle and an AR pistol? A butt stock? Does having a butt-stock really make the weapon any more or less dangerous? Or any more or less concealable?

Seems rather arbitrary to me.

[1859sharps]

If you think about the timing, one little item changed between when that would have to be ready for press and now. That little thing is called the en banc call for vote in the Ninth Circuit.

Let's please not speculate any further than that at this time though.

-Gene

around here, that is like pouring gas on a fire and asking it not to ignite.... ;)

[RomanDad]

Interesting you say that. Those regulated by the NFA are not materially different from those that aren't for the most part, in particular SBR's, the majority of which are merely AR's with the upper changed on them. How can restricting those be thought of as anything but arbitrary?
+

I've had a similar thought regarding say: what really is the difference between a short-barreled AR rifle and an AR pistol? A butt stock? Does having a butt-stock really make the weapon any more or less dangerous? Or any more or less concealable?

Seems rather arbitrary to me.
Well neither reasons are really at issue.

The issue for NFA items comes down to MILLER. As the Court in Heller said, the only thing Miller continues to stand for is that SHORT BARRELED SHOTGUNS are NOT protected by the 2nd amendment.

WHY?

Because, according to the Miller Court, they have no "Military/Militia purpose." We can argue that fact until the cows come home, but THATS the rule of Miller- If a weapon has no "militia purpose" its not protected and can be regulated. (yeah, I know, SBRs and SBSs have a long history of use by the military, but nobody showed up before the Miller Court to argue that point, and thats the legacy were stuck with.) And since the NFA has been the law for 70+ years SBRs and SBSs have not been in "Common Use" for a long time.

I envision a day when the NFA goes away..... But my five year old will probably be old enough to SIT on the Supreme Court before that day comes.

[VW*Mike]

Interesting. You wonder what guns "Would be common" ........... if we could by them. I have my heart set on a MAC-10. I will be watching.

[Maestro Pistolero]

Because, according to the Miller Court, they have no "Military/Militia purpose.

By that logic the M4/M16 ought to be the most protected firearm in the country.

[RomanDad]

By that logic the M4/M16 ought to be the most protected firearm in the country.

Which the Heller Court then went on to clarify (I believe they specifically MENTION the M16 and why its NOT protected, although that may have been during oral argument) by articulating the second element to the Miller Test (the one weve been talking about): Common Usage by ordinary citizens for lawful purpose. (Heller at page 52)


So the gun has to have both: Military application (which evidently EVERYTHING EXCEPT the Miller's Short Barreled Shotgun has) AND common usage.

Clearly a semi automatic rifle or shotgun of ANY length has military usefulness. And the semi automatic longarms NOT regulated out of common usage by the NFA are VERY COMMON (tens of millions of them in the U.S.???), and in fact arguably the BEST weapons a citizen militiaman could be reasonably expected to muster with.

[popeye4]

The NFA doesn't PROHIBIT the possession of machine guns, short barreled rifles, etc. It TAXES them. Therefore, I would think it would be a different animal than a true ban. But then, I don't even play an attorney on TV..... :43:

[Maestro Pistolero]

Which the Heller Court then went on to clarify (they actually MENTION the M16 and why its NOT protected) by articulating the second element to the Miller Test (the one weve been talking about): Common Usage by ordinary citizens for lawful purpose. (Heller at page 52)

Scotus did not say M16s may be banned. He said it may be objected that IF weapons that are most useful in military service . . .

". . .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 lim-
ited the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the
right."


If anything, according to the logic here, and to the Miller rational, the massive disparity between the modern range of military weapons and commonly used weapons ought to tip the scales to the side of protecting the M-16. Miller said nothing about weapons in common use by civilians, only that weapons that had a militia or military purpose were protected, which today means the M4/M16 family of rifles.

Also, as the court pointed out, there was essentially no difference between the military weapons and the civilians weapons. To follow that paradigm faithfully, M16s and M4s would need to be protected. Still, that protection, if asserted, wouldn't begin to close the gap on the disparity of force between the civilian's and the government's military capability.

As popeye4 pointed out, M16s aren't banned by the federal government. They just closed the registration of new ones in 1986. Kind of like DC's handgun ban. "If you got 'em, keep 'em, cause they are the last ones you'll ever have." Until Heller. Most people don't realize that full auto, (pre'86), suppressors, SBRs, SBSs, AOWs (any other weapons), are only prohibited by certain state governments, and only regulated by the Federal Government. If one is not a prohibited person, he or she may have any of those items with the proper paperwork and licensing.

So we haven't lost this part of the battle yet. And perhaps NFA should just remain as it is, with the exception of re-opening registration for new FA's for those not disqualified from owning them, and, of course, striking unconstitutional state laws the ban them.

[AngelDecoys]

The interesting question will be which of the guns are proposed to be in "common use." AR-15s are popular throughout the country. AKs are less so but still fairly common. Would HK-91s, FALs, etc. be common enough? What about MAC-10s, etc.?

My guess would be to think 'type of action', not specific make/model. Semi-auto technology has been around for over a century. All semi-automatic firearms are common arms and hence an extension of handguns already protected.

[Beatone]

Simply put, glad to hear this. :mnl:

[rob]

I'm used to reading about Chuck Michel being on the defensive side of things, it would be very refreshing to see him go on the offensive.

Gura, Kilmer, and Michel all on the offensive. There has been a definite shift in the gun control world....and I like it!

[AEC1]

These days I am like a giddy school girl once a month when new stuff comes out...

[Suvorov]

If it happens I hope it happens quickly as I'm looking for just one good reason to keep me from moving lock stock and barrel to Houston.

Kalifornia is killing me :(

[Untamed1972]

+


Well neither reasons are really at issue.

The issue for NFA items comes down to MILLER. As the Court in Heller said, the only thing Miller continues to stand for is that SHORT BARRELED SHOTGUNS are NOT protected by the 2nd amendment.

WHY?

Because, according to the Miller Court, they have no "Military/Militia purpose." We can argue that fact until the cows come home, but THATS the rule of Miller- If a weapon has no "militia purpose" its not protected and can be regulated. (yeah, I know, SBRs and SBSs have a long history of use by the military, but nobody showed up before the Miller Court to argue that point, and thats the legacy were stuck with.) And since the NFA has been the law for 70+ years SBRs and SBSs have not been in "Common Use" for a long time.

I envision a day when the NFA goes away..... But my five year old will probably be old enough to SIT on the Supreme Court before that day comes.

Except that today one could agrue that standard issue military M4 comes with a 14.5 inch barrel. Prolly alot of those in common use over in the sandbox these days.....not to mention suppressors.

I think suppressors should even be argued on safety grounds as it protects one from hearing damage! :)

[wildhawker]

If it happens I hope it happens quickly as I'm looking for just one good reason to keep me from moving lock stock and barrel to Houston.

Kalifornia is killing me :(

http://www.lacoast.gov/WATERMARKS/2006-03/2protectMainland/Hurricane_Rita.jpg

If that isn't enough, summers would nail the coffin shut for me, but I digress...

Change will come- just how quickly, only time will tell. The fight is never over, just times of quiet to resupply and tend our wounds between the bloody battles. This is a good time to fight for the rights of our children, and theirs- here, and throughout this great nation.

Evil and oppression are not limited by the Sierra Nevada mountains or the Colorado River.

[yellowfin]

Which the Heller Court then went on to clarify (I believe they specifically MENTION the M16 and why its NOT protected, although that may have been during oral argument) by articulating the second element to the Miller Test (the one weve been talking about): Common Usage by ordinary citizens for lawful purpose. (Heller at page 52)


So the gun has to have both: Military application (which evidently EVERYTHING EXCEPT the Miller's Short Barreled Shotgun has) AND common usage.

Clearly a semi automatic rifle or shotgun of ANY length has military usefulness. And the semi automatic longarms NOT regulated out of common usage by the NFA are VERY COMMON (tens of millions of them in the U.S.???), and in fact arguably the BEST weapons a citizen militiaman could be reasonably expected to muster with.
...AND...

In the DC roster case ruling, if we get one, we very well may get something to the effect that characteristics immaterial to the functioning of the firearm aren't something that can be banned, which will strike down the roster AND by extension SBR's and SBS's, as a few inches of barrel length plus or minus doesn't affect them in a material way and in fact actually makes them more useful for the core purpose of lawful self defense.

[Untamed1972]

...AND...

In the DC roster case ruling, if we get one, we very well may get something to the effect that characteristics immaterial to the functioning of the firearm aren't something that can be banned, which will strike down the roster AND by extension SBR's and SBS's, as a few inches of barrel length plus or minus doesn't affect them in a material way and in fact actually makes them more useful for the core purpose of lawful self defense.

Not to mention "characteristics immaterial to the functioning of the firearm aren't something that can be banned" like cosmetic things like pistol grips? Or combination of cosmetic features and firearm function say.....like.....pistol grip and detachable magazine? If one semi-auto rifle is legal with detachable mag, then ALL should be regardless of cosmetic features.

[djandj]

Interesting. You wonder what guns "Would be common" ........... if we could by them. I have my heart set on a MAC-10. I will be watching.

We cannot forget the context of the Heller case. Heller mentioned classes of weapons "in common use" as home defense weapons. We can't read Heller in a vacuum. I don't know you could argue with a straight face that mac 10's (or any class of semi-auto long guns with large cap mags etc.) are in COMMON use by most/many folks for home defense.

ie. I wouldn't get my hopes up about the AW ban being overturned anytime soon. (but maybe the roster) Although the roster doesn't outright ban all handguns, merely "limits" those that can be imported and sold - so a strong argument can be made that Heller doesn't apply.

[Untamed1972]

We cannot forget the context of the Heller case. Heller mentioned classes of weapons "in common use" as home defense weapons. We can't read Heller in a vacuum. I don't know you could argue with a straight face that mac 10's (or any class of semi-auto long guns with large cap mags etc.) are in COMMON use by most/many folks for home defense.

ie. I wouldn't get my hopes up about the AW ban being overturned anytime soon. (but maybe the roster) Although the roster doesn't outright ban all handguns, merely "limits" those that can be imported and sold - so a strong argument can be made that Heller doesn't apply.

Sounds like we're gonna need a court definition on what constitutes "in common use".

[Flopper]

My guess would be to think 'type of action', not specific make/model. Semi-auto technology has been around for over a century. All semi-automatic firearms are common arms and hence an extension of handguns already protected.

so has full auto technology.

i thought the more important part of defining common arms was as a negative definition. common arm=not dangerous AND unusual.

[AngelDecoys]

so has full auto technology.

Even so, the logical strategy would be to build on what's already clarified. Pistols are already noted in Heller. Pushing the door open (a wee bit more) to include all pistols, all rifles seems like the logical approach. FA reform may come later, but its a dead issue, albeit a huge losing one to bring to the court right now.

......common arm=not dangerous AND unusual.

IMO using 'not dangerous AND unusual' would be too subjective and open to interpretation. We don't need the argument that AK's, HK's, 50BMG's, etc are dangerous and unusual. Or that magazines over 10 rounds are dangerous and unusual. We control the field moving the ball. Why would we give the other side a 'new term' that could easily put us on the defensive for years?

This is all speculation on my part of course, so I'm content to actually wait until the paperwork is filled and see how the arguments are framed.

[Luckystiff]

I have kicked this argument around for a while dealing with the AWB and high cap ban.

Over the last decade LE has been arming officers with semi-auto handguns that have large capacity magazines (over 10 rounds). This was done to improve “officer safety” when dealing with violent persons. Much of this was due to the drug trade and organized street gangs. AW’s have been adopted by many LEA’s throughout the USA. The primary reason given for their adoption is “officer safety” combined with public safety if the firearm is used. The logic goes that when an officer discharges a rifle only one well aimed and accurate projectile is in play vs. 8-12 00 buck pellets that are spreading 1 inch per yard traveled. .223 cal. projectiles tend to break up on impact reducing over penetration of persons, walls, etc. further increasing public safety from unintended harm from errant projectiles.

Given that LEO’s may only use deadly force in defense of themselves or others makes the carrying and use of firearms by them “defensive” in nature. An offensive use of deadly force would be illegal. This means that the firearms they employ are truly defensive arms. Given that every jurisdiction in this country and its territories has civilian LEO’s carrying these defensive arms would show that they are indeed in common usage.

You follow my thinking? You could have a line of LE firearms instuctors lined up as witnesses. Ask them to detail their qualifications as LE firearms instructors (I’m talking guys from LAPD, SFPD, CHP – they use AR’s - and some of your mid and small agencies from all over the state or US). Then ask them if they would be supportive of their officers only being allowed to have 10 round magazines for their handguns and rifles. Then ask them why they would not support such a change and what justifications they can give to have more than 10 rounds in a magazine. Then ask them if their department employs AW’s. Then ask them if they would support replacing their AW’s with lever or bolt action guns. Then ask them why and what advantages does an AW type firearm provide the officer. Then ask them if they believe that the AW rifle they employ provides their officers with a greater likely hood of surviving a violent attack vs. lever action or bolt action firearms. It would put a punch to the point if the argument was made and at the end the attorney points to the bailiff who is there to protect the Judges and informs them that he employees high cap mags and or AW’s to protect them as well as everyone else in the court room.

The other issue that gets me is that the AWB in CA has created a class system where some people have more rights than others. Example: If you owned and registered your AW before a given date you may legally posses it. If you are a LEO and you get a letter from your boss you may legally purchase and posses it. If you leave LE you still get to keep it. So if you were under 18 at the time of the AWB you have fewer rights than someone older than you on that given day. If you chose to be a Fire Fighter vs. a Police Officer you cannot legally purchase an AW. You may not inherit an AW unless you are an LEO and have a letter from your boss. This is a class system in violation of the 14th in my mind. Certain people based on age or occupation is afforded more rights (2nd and property).

And just an FYI I am an LEO and I hate this crap! Some people just cannot get it that gun control does not = crime control.

[nick]

So we haven't lost this part of the battle yet. And perhaps NFA should just remain as it is, with the exception of re-opening registration for new FA's for those not disqualified from owning them, and, of course, striking unconstitutional state laws the ban them.

Isn't this akin to a poll tax - charging a fee (and not a small one, at that) for exercising an enumerated right?

[IGOTDIRT4U]

I have kicked this argument around for a while dealing with the AWB and high cap ban.

Over the last decade LE has been arming officers with semi-auto handguns that have large capacity magazines (over 10 rounds). This was done to improve “officer safety” when dealing with violent persons. Much of this was due to the drug trade and organized street gangs. AW’s have been adopted by many LEA’s throughout the USA. The primary reason given for their adoption is “officer safety” combined with public safety if the firearm is used. The logic goes that when an officer discharges a rifle only one well aimed and accurate projectile is in play vs. 8-12 00 buck pellets that are spreading 1 inch per yard traveled. .223 cal. projectiles tend to break up on impact reducing over penetration of persons, walls, etc. further increasing public safety from unintended harm from errant projectiles.

Given that LEO’s may only use deadly force in defense of themselves or others makes the carrying and use of firearms by them “defensive” in nature. An offensive use of deadly force would be illegal. This means that the firearms they employ are truly defensive arms. Given that every jurisdiction in this country and its territories has civilian LEO’s carrying these defensive arms would show that they are indeed in common usage.

You follow my thinking? You could have a line of LE firearms instuctors lined up as witnesses. Ask them to detail their qualifications as LE firearms instructors (I’m talking guys from LAPD, SFPD, CHP – they use AR’s - and some of your mid and small agencies from all over the state or US). Then ask them if they would be supportive of their officers only being allowed to have 10 round magazines for their handguns and rifles. Then ask them why they would not support such a change and what justifications they can give to have more than 10 rounds in a magazine. Then ask them if their department employs AW’s. Then ask them if they would support replacing their AW’s with lever or bolt action guns. Then ask them why and what advantages does an AW type firearm provide the officer. Then ask them if they believe that the AW rifle they employ provides their officers with a greater likely hood of surviving a violent attack vs. lever action or bolt action firearms. It would put a punch to the point if the argument was made and at the end the attorney points to the bailiff who is there to protect the Judges and informs them that he employees high cap mags and or AW’s to protect them as well as everyone else in the court room.

The other issue that gets me is that the AWB in CA has created a class system where some people have more rights than others. Example: If you owned and registered your AW before a given date you may legally posses it. If you are a LEO and you get a letter from your boss you may legally purchase and posses it. If you leave LE you still get to keep it. So if you were under 18 at the time of the AWB you have fewer rights than someone older than you on that given day. If you chose to be a Fire Fighter vs. a Police Officer you cannot legally purchase an AW. You may not inherit an AW unless you are an LEO and have a letter from your boss. This is a class system in violation of the 14th in my mind. Certain people based on age or occupation is afforded more rights (2nd and property).

And just an FYI I am an LEO and I hate this crap! Some people just cannot get it that gun control does not = crime control.

Welcome, and thanks for posting an interesting set of viewpoints. Good to hear it coming from an LEO. Keep posting!

[LesGrossman41510]

after the lovelle mixon shootings i dont think they will ever make AKs legal in california, but maybe there is hope they will change the AW laws pertaining to 5.56 weapons like the AR15 and Sig 556.

[7x57]

Isn't this akin to a poll tax - charging a fee (and not a small one, at that) for exercising an enumerated right?

But it's a hard-coded fee. Once the Obama Hyperinflation kicks in, it'll be less than the gas it costs to drive to the gun store. :TFH:

7x57

[Dr Rockso]

after the lovelle mixon shootings i dont think they will ever make AKs legal in california, but maybe there is hope they will change the AW laws pertaining to 5.56 weapons like the AR15 and Sig 556.

The irony being that Mixon didn't use an AK, he had an SKS.

[LesGrossman41510]

Wow Luckystiff i really liked your points, they truely show how the AWB is a severe breach of rights.

What infuriates me about the AWB is that criminal garbage like Lovelle Mixon are still able to obtain their illegal assault weapons. I live in a city (oakland) where thugs roll around with AKs and Uzis, if they ever attempted to rob or murder me, i would be at their mercy, since i am not allowed to defend myself due to the lack of CCW laws and the ban on assault weapons. These gun laws are basically stripping of us of our basic right to defend ourselves. It is absolutely maddening, i cant believe bone head politicians actually think disarming the populace will solve anything.

[LesGrossman41510]

The irony being that Mixon didn't use an AK, he had an SKS.

really??? it was blasted all over the news that he was using an AK-47. was the media just making this up to further make AKs look bad? It didnt help the next month someone else with an AK on the east coast went nuts as well.


I heard an awesome commerical yesterday on the radio from City Arms in Pacifica. They had a criminal talking saying, "when i break into houses, im really worried if the homeowner has a gun. so please, support gun control! so that i can go out and rob people easier!"

haha such a good commercial, made me smile.

[GuyW]

negative definition. common arm=not dangerous AND unusual.

"Dangerous" is pretty much irrelevant in this context.

seems hard to avoid that common = usual = not unusual

.

[GuyW]

It is absolutely maddening, i cant believe bone head politicians actually think disarming the populace will solve anything.

They do think that. They think it will make you dependent upon them and government.
.

[nick]

I have kicked this argument around for a while dealing with the AWB and high cap ban.

Over the last decade LE has been arming officers with semi-auto handguns that have large capacity magazines (over 10 rounds). This was done to improve “officer safety” when dealing with violent persons. Much of this was due to the drug trade and organized street gangs. AW’s have been adopted by many LEA’s throughout the USA. The primary reason given for their adoption is “officer safety” combined with public safety if the firearm is used. The logic goes that when an officer discharges a rifle only one well aimed and accurate projectile is in play vs. 8-12 00 buck pellets that are spreading 1 inch per yard traveled. .223 cal. projectiles tend to break up on impact reducing over penetration of persons, walls, etc. further increasing public safety from unintended harm from errant projectiles.

Given that LEO’s may only use deadly force in defense of themselves or others makes the carrying and use of firearms by them “defensive” in nature. An offensive use of deadly force would be illegal. This means that the firearms they employ are truly defensive arms. Given that every jurisdiction in this country and its territories has civilian LEO’s carrying these defensive arms would show that they are indeed in common usage.

You follow my thinking? You could have a line of LE firearms instuctors lined up as witnesses. Ask them to detail their qualifications as LE firearms instructors (I’m talking guys from LAPD, SFPD, CHP – they use AR’s - and some of your mid and small agencies from all over the state or US). Then ask them if they would be supportive of their officers only being allowed to have 10 round magazines for their handguns and rifles. Then ask them why they would not support such a change and what justifications they can give to have more than 10 rounds in a magazine. Then ask them if their department employs AW’s. Then ask them if they would support replacing their AW’s with lever or bolt action guns. Then ask them why and what advantages does an AW type firearm provide the officer. Then ask them if they believe that the AW rifle they employ provides their officers with a greater likely hood of surviving a violent attack vs. lever action or bolt action firearms. It would put a punch to the point if the argument was made and at the end the attorney points to the bailiff who is there to protect the Judges and informs them that he employees high cap mags and or AW’s to protect them as well as everyone else in the court room.

The other issue that gets me is that the AWB in CA has created a class system where some people have more rights than others. Example: If you owned and registered your AW before a given date you may legally posses it. If you are a LEO and you get a letter from your boss you may legally purchase and posses it. If you leave LE you still get to keep it. So if you were under 18 at the time of the AWB you have fewer rights than someone older than you on that given day. If you chose to be a Fire Fighter vs. a Police Officer you cannot legally purchase an AW. You may not inherit an AW unless you are an LEO and have a letter from your boss. This is a class system in violation of the 14th in my mind. Certain people based on age or occupation is afforded more rights (2nd and property).

And just an FYI I am an LEO and I hate this crap! Some people just cannot get it that gun control does not = crime control.

Good points, thank you. The one that I believe was implied but not explicitly voiced was that we have to decide whether a non-LEO citizen has the same right to defend himself and to live as a LEO. Our elected officials generally seem to think not.

[nick]

They do think that. They think it will make you dependent upon them and government.
.

That makes the best voters.

[nick]

really??? it was blasted all over the news that he was using an AK-47. was the media just making this up to further make AKs look bad? It didnt help the next month someone else with an AK on the east coast went nuts as well.

Well, it's always an AK-47 in the news, be it an AK-47 semiauto lookalike, an actual AK-47, an SKS, or any rifle of larger than .22 caliber.

[djandj]

after the lovelle mixon shootings i dont think they will ever make AKs legal in california, but maybe there is hope they will change the AW laws pertaining to 5.56 weapons like the AR15 and Sig 556.

There is no functional difference between an AR and a AK - so no way to ban one and not the other.

[djandj]

Sounds like we're gonna need a court definition on what constitutes "in common use".

Maybe so, but I personally don't think too many people actually use a .223 long rifle with a large cap mag to defend their 1500 square foot tract home (or the equivalent)

[thatrogue]

I have kicked this argument around for a while dealing with the AWB and high cap ban.

Over the last decade LE has been arming officers with semi-auto handguns that have large capacity magazines (over 10 rounds). This was done to improve “officer safety” when dealing with violent persons. Much of this was due to the drug trade and organized street gangs. AW’s have been adopted by many LEA’s throughout the USA. The primary reason given for their adoption is “officer safety” combined with public safety if the firearm is used. The logic goes that when an officer discharges a rifle only one well aimed and accurate projectile is in play vs. 8-12 00 buck pellets that are spreading 1 inch per yard traveled. .223 cal. projectiles tend to break up on impact reducing over penetration of persons, walls, etc. further increasing public safety from unintended harm from errant projectiles.

Given that LEO’s may only use deadly force in defense of themselves or others makes the carrying and use of firearms by them “defensive” in nature. An offensive use of deadly force would be illegal. This means that the firearms they employ are truly defensive arms. Given that every jurisdiction in this country and its territories has civilian LEO’s carrying these defensive arms would show that they are indeed in common usage.

You follow my thinking? You could have a line of LE firearms instuctors lined up as witnesses. Ask them to detail their qualifications as LE firearms instructors (I’m talking guys from LAPD, SFPD, CHP – they use AR’s - and some of your mid and small agencies from all over the state or US). Then ask them if they would be supportive of their officers only being allowed to have 10 round magazines for their handguns and rifles. Then ask them why they would not support such a change and what justifications they can give to have more than 10 rounds in a magazine. Then ask them if their department employs AW’s. Then ask them if they would support replacing their AW’s with lever or bolt action guns. Then ask them why and what advantages does an AW type firearm provide the officer. Then ask them if they believe that the AW rifle they employ provides their officers with a greater likely hood of surviving a violent attack vs. lever action or bolt action firearms. It would put a punch to the point if the argument was made and at the end the attorney points to the bailiff who is there to protect the Judges and informs them that he employees high cap mags and or AW’s to protect them as well as everyone else in the court room.

The other issue that gets me is that the AWB in CA has created a class system where some people have more rights than others. Example: If you owned and registered your AW before a given date you may legally posses it. If you are a LEO and you get a letter from your boss you may legally purchase and posses it. If you leave LE you still get to keep it. So if you were under 18 at the time of the AWB you have fewer rights than someone older than you on that given day. If you chose to be a Fire Fighter vs. a Police Officer you cannot legally purchase an AW. You may not inherit an AW unless you are an LEO and have a letter from your boss. This is a class system in violation of the 14th in my mind. Certain people based on age or occupation is afforded more rights (2nd and property).

And just an FYI I am an LEO and I hate this crap! Some people just cannot get it that gun control does not = crime control.

Wow...I'm impressed that is probably the best, most valuable first post I've witnessed. Welcome to cal guns friend.:chris:

[luvtolean]

We cannot forget the context of the Heller case. Heller mentioned classes of weapons "in common use" as home defense weapons. We can't read Heller in a vacuum. I don't know you could argue with a straight face that mac 10's (or any class of semi-auto long guns with large cap mags etc.) are in COMMON use by most/many folks for home defense.

!!!?

When our guys enter houses in Iraq, what type of arm are they typically carrying?

When police, especially SWAT, enter a building, what is a typical weapon?

When security contractors are hired to secure property and lives in disaster areas, what are they carrying?

Pistol gripped, semi-auto, 30 round mag fed, long guns.

[Manic Moran]

You missed an operative part of that sentence, "for home defence"

US soldiers conducting raids of homes in Iraq cannot realistically be considered an example of a weapon in common use to defend the home, which was the extent of the ruling. You can make the argument that rifles such as the M-4 are covered under 2A, but as it stands, there is no such settled law.

NTM

[luvtolean]

You missed an operative part of that sentence, "for home defence"

US soldiers conducting raids of homes in Iraq cannot realistically be considered an example of a weapon in common use to defend the home, which was the extent of the ruling.

They are gun fighting in a house. What is the difference?

What about my other examples? For example, the contractors in disaster areas such as Katrina who use M4's for HD? LEOs fighting the same criminals a civilian might, in a house?

I agree we're not settled, but I know that at least some people, myself included, have received civilian training with a carbine for home defense. Based on the fact there was more than a few people in the class, and the frequency of its teaching, I don't think carbines as HD weapons are uncommon...

[yellowfin]

Maybe so, but I personally don't think too many people actually use a .223 long rifle with a large cap mag to defend their 1500 square foot tract home (or the equivalent) Considering they've only been available for about 40 years at all and only popular for about 10-15 versus shotguns and pistols as we know them for over 100 years, people haven't really had time to get in the habit of it. We use lever guns a fair bit for HD and they've been around for over 120 years. 10 years from now it might be a lot more common to see the AR platform as the home defense tool of choice as people will have had them for a while.

[yellowfin]

You missed an operative part of that sentence, "for home defence"

US soldiers conducting raids of homes in Iraq cannot realistically be considered an example of a weapon in common use to defend the home, which was the extent of the ruling. Perhaps not, but on the other hand yes it might. It gives you a clear idea of what could be attacking you. Government oppression and state sanctioned crime against the people was in fact enumerated in that decision and in the other case which touched on AR's as being in common use, so it paints a very clear picture of what one might have to launch a counteroffensive against and thus need to keep up with effectively. It is also a known fact that also crime in the US has very heavy influx and influences from south of the border these days which has documented foreign military training so it becomes increasingly likely that one may need to deal with more than just a random uncoordinated junkie stumbling in trying to steal stuff and attacking you with your own kitchen knives but rather assailants using at very least some of the same as army and/or police units. If the first case is perhaps dismissable as unlikely the second is most definitely not--if I were living in parts of SoCal, Arizona, and south Texas I'd be HIGHLY concerned of such, in fact.

[putput]

Let's not forget that if a foreign power were to invade, it might be nice if the civilian resistance and the military had interchangeable parts and ammo...

[Bugei]

Maybe so, but I personally don't think too many people actually use a .223 long rifle with a large cap mag to defend their 1500 square foot tract home (or the equivalent)

If I hadn't moved my AR out of California, I damn sure would. And what does the square footage have to do with it? I don't get this. Would an AR be better in homes of 1500-sf or smaller, or more justifiable in a larger place? Or an AK?

Optimally, I'd use a shotgun or pistol, sure. But the one that's at hand when I need it would be the one I'd select.

By allowing others to select which weapons are "suitable" or "covered by the Second Amendment", all we've done is insure that the line of what's acceptable and what's not is going to move. About every five minutes. And will eventually end up as "none is acceptable".

Any gun. Any time. Any place. No exceptions in the Second Amendment.

[bwiese]

Maybe so, but I personally don't think too many people actually use a .223 long rifle with a large cap mag to defend their 1500 square foot tract home (or the equivalent)

Well, 1200 sq ft townhouse.

Hornady TAP ammo.

My relatives with a ranch(ette) do also - near a state rest stop (= problem people), plus assorted coyote/mtn lion threats. Thrown on the ATV rack or horse when toodling around, or on the rack by kitchen door.

[Mute]

If they're going to go with the "common usage" argument, I'd be a strong case can be made that "assault weapons" in the home for SD is not as "uncommon" as many might believe. Hopefully, the antis will be on the slippery slope towards less restriction.

[wash]

I'll be happy if the NFA stays but the registration is opened, manufacturing and importing is allowed and the BATF treats applicants in a shall issue fashion.

Crooks won't be able to legally get NFA arms because they are crooks, the small tax is a reasonable trade-off and I like the idea that you would get a lot of jail time if you sold an NFA arm illegally.

It would still be an infringement of our rights but it would be good enough for me and about as good as it could get without causing other problems.

[lioneaglegriffin]

!!!?

When our guys enter houses in Iraq, what type of arm are they typically carrying?

When police, especially SWAT, enter a building, what is a typical weapon?

When security contractors are hired to secure property and lives in disaster areas, what are they carrying?

Pistol gripped, semi-auto select-fire, 30 round mag fed, long guns.

fixed

[Digital_Boy]

Tally ho Chuck Michel, CRPA, 2AF, NRA, et al! Good hunting!

[Flopper]

Even so, the logical strategy would be to build on what's already clarified. Pistols are already noted in Heller. Pushing the door open (a wee bit more) to include all pistols, all rifles seems like the logical approach. FA reform may come later, but its a dead issue, albeit a huge losing one to bring to the court right now.



IMO using 'not dangerous AND unusual' would be too subjective and open to interpretation. We don't need the argument that AK's, HK's, 50BMG's, etc are dangerous and unusual. Or that magazines over 10 rounds are dangerous and unusual. We control the field moving the ball. Why would we give the other side a 'new term' that could easily put us on the defensive for years?

This is all speculation on my part of course, so I'm content to actually wait until the paperwork is filled and see how the arguments are framed.

wasn't the "not dangerous and unusual" phrasing the litmus test to be used to define "common" as written in the Heller decision???

[FABIO GETS GOOSED!!!]

wasn't the "not dangerous and unusual" phrasing the litmus test to be used to define "common" as written in the Heller decision???

The phrasing in Heller is ambiguous, it could be "dangerous and unusual" or it could be "dangerous or unusual." 3 of the 4 cases cited in this passage in Heller use "or" which supports the argument that "dangerous" weapons may be prohibited even if they are not unusual. The courts will flesh this out eventually.

[AngelDecoys]

wasn't the "not dangerous and unusual" phrasing the litmus test to be used to define "common" as written in the Heller decision???

You could very well be right. Honestly, its been a year since I read the Heller decision. If the argument is to be framed in those terms, the other side will surely try and frame dangerous and unusual as just about anything. Anything not typically used in hunting could end up unusual. Anything that has the capacity to hold more than 5 rounds could be dangerous. Grim thoughts just considering that rationale... :(

Its not a line of thinking I'd wish to haggle over. Arguing a type of action already protected (pistol), but expanding upon it, seems wiser/safer for long arms if I were trying to persuade a judge (who may not even be a gun owner). Easier to argue this arm (or that arm) functions the same, but is just cosmetically different. It might be an easier leap to make.

Anyway, just my thoughts on it. My rationale could be totally off base as well. I'm sure it will be posted once its filed.

[Pont]

Maybe so, but I personally don't think too many people actually use a .223 long rifle with a large cap mag to defend their 1500 square foot tract home (or the equivalent)
I'm sure there are plenty of people in this country who use .223 long rifles with large cap mags to defend their property (livestock) and persons (small children) from 4-legged dangers (coyotes, mountain lions).

Self-defense is not limited to 2-legged aggressors.

[djandj]

I'm sure there are plenty of people in this country who use .223 long rifles with large cap mags to defend their property (livestock) and persons (small children) from 4-legged dangers (coyotes, mountain lions).

Self-defense is not limited to 2-legged aggressors.

Plenty? Not the same as COMMON. MOST of the US population live in CITIES (i.e. no long range .223 rifles to defend your apartment or small home)

The entire state of Montana (i.e. less than 1 million people) could ALL use AR's to defend their "ranches" and it would still be one person in 350 when compared to the population of the US MOST of which live in the cities. Hardly common.

[yellowfin]

^ That is a societal ailment that needs remedy.

[wildhawker]

Plenty? Not the same as COMMON. MOST of the US population live in CITIES (i.e. no long range .223 rifles to defend your apartment or small home)

The entire state of Montana (i.e. less than 1 million people) could ALL use AR's to defend their "ranches" and it would still be one person in 350 when compared to the population of the US MOST of which live in the cities. Hardly common.

Your arguments keep cycling back to a production volumes and current use analysis but are missing the point. Think globally with regards to the type and nature of firearms in question. Are we discussing a specific Mall-Ninja AR-15 or are we discussing semi-automatic centerfire (non-NFA at this time) rifles?

[HondaMasterTech]

A gun is defined by its actual use. And I mean individually and by the hands of the immediate operator. The assault weapon classification/ban is ridiculous.

[Spabs]

Plenty? Not the same as COMMON. MOST of the US population live in CITIES (i.e. no long range .223 rifles to defend your apartment or small home)

The entire state of Montana (i.e. less than 1 million people) could ALL use AR's to defend their "ranches" and it would still be one person in 350 when compared to the population of the US MOST of which live in the cities. Hardly common.

Though, what sample should you really take? Of the 350 million people in the US, only about what, 80-90M are gun owners? The total population of this country includes people not eligible to buy firearms. Felons, minors, the mentally ill, and so forth are wrapped up in the (not-so) tidy package that is the census.

Should the question then be, "what's common amongst the people who can/do actually use the firearms in question?" If so, "plenty" of people using ARs just might show it's a firearm "common" use amongst gun owners. Let's not even dwell on places like CA where ARs (except off-list, of course) aren't even permitted. How many gun owners in CA would have ARs if they were legal (or at least if you didn't have jump through an entire circus worth of hoops to make one legal)?

[Sunwolf]

Maybe so, but I personally don't think too many people actually use a .223 long rifle with a large cap mag to defend their 1500 square foot tract home (or the equivalent)

But I and my 3 sons do and they have their own homes.

[Manic Moran]

Personally, I use a pistol. My home's 1,600ft^2

NTM

[yellowfin]

Given that so many people in the population are obstructed or precluded from firearms ownership, the 80-90 million gun owners is a lot higher percentage than simply left by itself, so perhaps a more appropriate frame should be insisted upon when citing it. Obviously discard youth and felons, but also toss out the populations of Chicago and NYC and most of New Jersey as it is unreasonable to count them the same as people living in freer areas who simply choose not to own firearms when they have the option much more open to them.

[7x57]

I've been hearing quite a bit about defensive long gun thinking moving from shotguns to carbines with frangible bullets, which supposedly actually penetrate less than either buckshot or handguns.

Of course, in California there is still the psychological problem of the jury being taught to be terrified of carbines and think of them as aggressive gun-nut choices, while even anti-gunners tend to recognize handguns and shotguns (especially with wood furniture instead of tacticool gadgets) as "normal" defensive choices. There is greater cultural acceptance of handguns and shotguns I think.

7x57

[7x57]

Maybe so, but I personally don't think too many people actually use a .223 long rifle with a large cap mag to defend their 1500 square foot tract home (or the equivalent)


What precisely is a ".223 long rifle"? I don't think there are many rimfire HD rifles out there, let alone .22 caliber Pennsylvania rifles.


Sorry, couldn't resist.

7x57

[radioman]

If you think about the timing, one little item changed between when that would have to be ready for press and now. That little thing is called the en banc call for vote in the Ninth Circuit.

Let's please not speculate any further than that at this time though.

-Gene

Gene is right, let it be for now. after all we are playing poker and until someone call it is best to keep your cards off the table, unless you want to fold..

[nick]

What precisely is a ".223 long rifle"? I don't think there are many rimfire HD rifles out there, let alone .22 caliber Pennsylvania rifles.


Sorry, couldn't resist.

7x57

My niece has a rimfire HD rifle :D

[7x57]

My niece has a rimfire HD rifle :D

.44 Henry Flat or .56 Spencer, I hope? :D

7x57

[nick]

.44 Henry Flat or .56 Spencer, I hope? :D

7x57

Throwing that book at me again? It's a .22lr Ruger 10/22 Youth, a.k.a The Paratrooper :)

[7x57]

Throwing that book at me again? It's a .22lr Ruger 10/22 Youth, a.k.a The Paratrooper :)

Not exactly, just trying to come up with an appropriate self-defense rimfire round. :D

OTOH, if I roughly recall your niece's age, the 10/22 is sort of appropriate. You can't miss fast enough to win and all that.

7x57

[Gavin Twosome]

AR in 17hmr ?

[qbertquartz2]

That's cool and about time. :cool:

[nick]

Not exactly, just trying to come up with an appropriate self-defense rimfire round. :D

OTOH, if I roughly recall your niece's age, the 10/22 is sort of appropriate. You can't miss fast enough to win and all that.

7x57

She didn't like .40 (and I was holding her hands, just in case, when she shot it), so we decided that we'll stick with .22lr for a couple of years before we try something bigger again. She was curious about my Glock 35, and I figured that the best way to convince her to wait would be to have her try it. Not sure what I'd do if she liked it. Tried that with my girlfriend, and she liked it :)