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hoffmang
11-01-2009, 6:47 PM
There are a couple of interesting recent scholarly articles out on DC v. Heller.

My favorite of this batch is "The Hidden Second Amendment Framework within District of Columbia v. Heller." Overview here (http://www.vanderbilt.edu/lawreview/2009/10/the-hidden-second-amendment-framework-within-district-of-columbia-v-heller/) and direct link (http://www.vanderbilt.edu/lawreview/articles/2009/10/Gould-Hellers-Hidden-Framework-62-Vand.-L.-Rev.-1535-2009.pdf). I tend to agree with the Comment author about what sort of scrutiny Scalia and the Heller 5 are planning to apply.

"Guns as Smut: Defending the Home-Bound Second Amendment (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1364759)" is the new attempt to come up with a workable myth now that "militia = national guard" was shot down. To download the PDF click the download link above the title and choose your local mirror.

Eugene Volokh weighed in with this response (http://volokh.com/2009/10/28/guns-as-smut-defending-the-home-bound-second-amendment/) (PDF (http://www.columbialawreview.org/assets/sidebar/volume/109/97_Volokh.pdf)) to Guns as Smut. The author subsequently replies to Eugene here (http://www.columbialawreview.org/assets/sidebar/volume/109/105_Miller.pdf).

-Gene

hoffmang
11-01-2009, 6:49 PM
Well, the original link to "Guns as Smut" worked earlier this afternoon and as soon as I tried to redownload it, it's gone...

Edited to add - and then it's back... Emergency backup link to "Guns as Smut (http://www.hoffmang.com/temp/SSRN-id1364759.pdf)" just in case.

-Gene

bulgron
11-01-2009, 7:51 PM
Well, I read through that whole entire thing, but I'm still at a loss to understand what "deferential strict scrutiny" might mean. Which isn't the problem. The problem is that the concept might appear to be vague to the courts so that they feel free to make it mean anything they want it to mean.

Liberty1
11-01-2009, 8:25 PM
The author subsequently replies to Eugene here (http://www.columbialawreview.org/assets/sidebar/volume/109/105_Miller.pdf).



A for effort. F for logic. Back to the drawing board Anti! :p

locosway
11-01-2009, 9:31 PM
The people who believe guns have no place outside the home should be confined to a home, as it's inconceivable to think that people venture outside.

dantodd
11-01-2009, 10:18 PM
Gotta love this quote from the "Guns as Smut" author's response.

"The history of public bearing of arms for self-defense is deeply contested— especially during the Reconstruction period when public bearing of arms was so politically volatile."

Yes, it was deeply contested by the south trying to disarm the freedmen. This is largely what led to the drafting and ratification of the 14th amendment. So, while it may well have been and continue to be "deeply contested" the legislature and the states directly addressed and answered the contest by amending our constitution.


Also, when one makes a poor analogy you can't go back and say that the analogy fails to show the precedence for a particular constitutional interpretation I claimed it did but I still want that interpretation.

dantodd
11-01-2009, 11:19 PM
The Hidden Framework article was much more interesting. I haven't completely finished digesting it but I will note that there are couple of points that interest me. I would not be so quick to dismiss the undue burden test. While the authors are likely correct that Scalia and Thomas would not join an opinion setting such a test it is entirely possible that Scalia and Thomas would not be joining the majority. If a test comes out of McDonald it is possible that these two justices end up marginalized to a concurring as Kennedy moves to the left on this decision.

I am also struck by the fact that they accept the "in common use at the time" verbage and automatically apply it to "the American people" without recognizing the market distortions created by legal prohibitions. The simple fact is that, at the time the second amendment (and the 14th for that matter) there was no or very little difference between the firearms of the individual soldiers and the weapons privately held by those expected to show up for the militia. This was largely the case up to the enactment of the NFA. Since they are hanging their hat on Miller and Miller says "service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." It would seem logical to expect these men to turn out with weapons that were useful for the militia. Therefore; a more accurate interpretation of "in common use" would be "in common use by state/local militia and the military." The application of "in common use" as applied only to "the American people" seems to have been made up by the authors rather than derived from any of their sources. While Heller does suggest that Miller incorrectly applied protection to those arms useful to the Militia they did not in any way assert that militia or militarily useful weapons were not specifically included in those weapons which were intended to be protected. Clearly, if are not to divorce ourselves completely from the prefatory clause these militarily useful weapons are precisely what need to be protected.

press1280
11-02-2009, 2:58 AM
I've already heard the Bradys as well as anti-gun court decisions spinning Heller into meaning the 2A ONLY guarantees a firearm in the home. Quotes like,"The Second Amendment right is not unlimited," is used to justify any gun control legislation. They also use the quote about concealed weapons prohibitions being valid(while ignoring the constituionality of traditional open carry).

gregorylucas
11-02-2009, 6:13 AM
I tend to agree with Gene in that I think this authors standpoint will most likely be the standard of review that the supreme's put in place. As I recall reading that Justice Stephens stated that the Heller majority specifically excluded rational basis in the opinion simply by striking down the handgun ban it'self.

I really don't know if the undue burden test will be applied but I don't think Kennedy signed onto the Heller decision by accident. I personally think he knew what he was doing in regards to the eventual conculsion of the 2A as a fundamental right subject to some restrictions (not bans).

-Greg

locosway
11-02-2009, 6:20 AM
I think if we're required to signup for Selective Service, then we should be required to own a military firearm.

Could this angle be played at all?

locosway
11-02-2009, 6:43 AM
I think if we're required to signup for Selective Service, then we should be required to own a military firearm.

Could this angle be played at all?

pullnshoot25
11-02-2009, 6:44 AM
Can't wait to read when I get the chance!

putput
11-02-2009, 7:13 AM
I judge "guns as smut" to be anti-gun smut/porn and therefore is not protected outside of the authors home. :fud:

timdps
11-02-2009, 8:59 AM
I noticed that too:
Hidden framework, P30
"Additionally, the Heller Court uses similar language (and no
statistics) to explain why military weapons, such as the M-16, are not
“in common use” and thus are not protected under the Second
Amendment."

That is NOT what Heller said...
(Bold emphasis mine)

Heller
"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.” (55)

Full auto weapons are not as common as they should be ONLY because of the '68 ban. Full-auto prices in the following Century pdf tell the real story; 1919s for $250, AKs for $275. These prices are less than the cost of parts kits of the same weapons.
Century full-auto prices:
http://www.calguns.net/calgunforum/showthread.php?t=236842

tim









I am also struck by the fact that they accept the "in common use at the time" verbage and automatically apply it to "the American people" without recognizing the market distortions created by legal prohibitions. The simple fact is that, at the time the second amendment (and the 14th for that matter) there was no or very little difference between the firearms of the individual soldiers and the weapons privately held by those expected to show up for the militia. This was largely the case up to the enactment of the NFA. Since they are hanging their hat on Miller and Miller says "service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." It would seem logical to expect these men to turn out with weapons that were useful for the militia. Therefore; a more accurate interpretation of "in common use" would be "in common use by state/local militia and the military." The application of "in common use" as applied only to "the American people" seems to have been made up by the authors rather than derived from any of their sources. While Heller does suggest that Miller incorrectly applied protection to those arms useful to the Militia they did not in any way assert that militia or militarily useful weapons were not specifically included in those weapons which were intended to be protected. Clearly, if are not to divorce ourselves completely from the prefatory clause these militarily useful weapons are precisely what need to be protected.

Mulay El Raisuli
11-03-2009, 6:33 AM
I've already heard the Bradys as well as anti-gun court decisions spinning Heller into meaning the 2A ONLY guarantees a firearm in the home. Quotes like,"The Second Amendment right is not unlimited," is used to justify any gun control legislation. They also use the quote about concealed weapons prohibitions being valid(while ignoring the constituionality of traditional open carry).


Yes, "not unlimited" gets a lot of play from the Brady Bunch, while they ignore the part about certain policy choices being "off the table." I don't mind them doing so, because that will lead to their downfall, but it does show (again) their disingenuousness.

That there was comment about restrictions in regards CCW is (IMHO) a bit more important than being just about the Constitutionality of LOC (as the Minimum Standard). I see this as indicative that they're not going to limit "and bear" to just the home. Mr. Miller may be correct about the level of scrutiny, but his hopes that the 2A will apply only to the home are soon to be dashed. For if "and bear" were to mean just in the home, there wouldn't have been any dicta about restrictions about carrying.

As for what SCOTUS will do when they get McDonald before them, I think they've been playing a waiting game. IE, sitting back & seeing how the dicta has been taken by the lower courts. Now that SCOTUS does have a case that isn't as limited in scope as Heller was, & now that they see the unsupported emphasis on "in the home," they'll be a bit more expansive & instructive.

The Raisuli

Dragonaught
11-03-2009, 8:44 AM
If the thinking of SCOTUS is Guns as Smut; then if I so choose to carry my Smut concealed, which I can do legally, and enjoy it's comforts at any time and I might encounter violent Smut at any time outside the home; then it would be a forgone conclusion that concealed counteractive Smut would be the only obvious solution.