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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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Old 06-30-2020, 7:03 AM
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Lightbulb The flaw of "Miller" & "Heller" - "in common use"

Great stuff, from J.W. Rawles "Survivalblog" today.


The Illogical “In Common Use” Legal Standard

James Wesley Rawles June 30, 2020

Quote:
The Supreme Court’s District of Columbia v. Heller decision in 2008 was a landmark case. While it did confirm our right to keep and bear arms, it stopped short of overturning the plethora of bad laws that it should have. In this essay, I will demonstrate that the logic that the court applied in Heller was significantly flawed. In Heller, while addressing the 1939 Miller v. United States decision, the Supreme Court applied the standard of “the sorts of weapons protected were those ‘in common use at the time.’”

Some background: Jack Miller and Frank Layton were small-time crooks that had been convicted of illegal possession of a short-barreled shotgun–which had effectively been banned by the National Firearms Act of 1934. (NFA-’34.) The case was heard with Miller in absentia — he was still in prison on a string of charges. The illogical Miller decision revolved around the fact that in 1937, militias did not issue shotguns with barrels measuring less than 18 inches, so, therefore, Mr. Miller’s constitutional rights were not infringed by the National Firearms Act of 1934. That was a specious argument. Instead of addressing the constitutional issue squarely, they deflected off into “in common use” semantics. The Miller decision was bad law, and more recently the Supreme Court has compounded the Miller decision’s error, by echoing it in the Heller ruling.

Heller’s “in common use” test has been debated by legal scholars for the past 12 years. A piece authored by Nicholas J. Johnson published in Harvard Law and Policy Review is fairly typical. But both the Supreme Court and later analysts have overlooked a key logical flaw in this standard. The flaw is this: The “In Common Use” standard ignores the potential common use by the citizenry that failed to develop because of previously-enacted unconstitutional laws or edicts. Looking retrospectively, the restraint on commerce created by gun laws is incalculable. For instance, consider how many machineguns or submachineguns would now be “in common use”, if it were not for the onerous federal tax that congress established in 1934, or the ban on new manufacture (for private sale) with the Hughes Amendment, in 1986? It is impossible to quantify, but it is safe to assume that there would now be millions of machineguns now circulating in private hands if it were not for those two laws. Simply stated: They never achieved “common use” because congress unconstitutionally taxed and banned them!

Even in 1937, when the Miller decision was handed down, there had been restrictions on the commerce in machineguns and short-barreled rifles and shotguns for about four years. Who is to say that if were not for NFA-’34 that the popularity of the famed Model 1928 Thompson Submachinegun wouldn’t have flourished by 1937? Or that competing brands (presumably with more simplified blow-back designs and lower manufacturing costs) wouldn’t have hit the market, and sold in even greater numbers? But we will never know, because congress slapped on an enormous $200 Federal transfer tax, registration, and background check requirements in 1934, and those have been in place ever since. While $200 might not seem like a huge sum of money today, but in 1934 it was a princely sum. A quick visit to The Inflation Calculator web site shows that $200 in 1934 equates to $3,826.78, today! The cumulative rate of inflation since then has been 1,813.4%.

The Heller decision affirmed that the Second Amendment — with rights later incorporated by the Fourteenth Amendment — forbade any bans on self-defense weapons. In Heller, the court rightly showed that the Second Amendment was much more than a collective right (to raise state militias), but also an individual right. In that part, they did well. But in ignoring the absurdity of “in common use” tests, the Supreme Court was in serious error. If they had discarded the flawed “in common use” legal standard, as they should have, then we’d be living in a much more free country, with our right to keep and bear arms restored. That right should trump all legislation. But our rights haven’t been restored. We are still living under the tyranny of unconstitutional laws. Having the Supreme Court repeatedly deny writs of certiorari for firearms-related cases is dangerous. It is as if they are playing Monkey Hear No Evil.

In Heller, by relying on the Miller precedent, the court also failed to point out the arbitrary and capricious nature of legislation that attempts to distinguish between “legal” and “illegal” weapons, based on design factors or metrics such as how many cartridges it can fire with the press of a trigger, or a precise barrel length. How can the courts say with a straight face that a shotgun with an 18.1″ barrel is good, but that a shotgun with a 17.9″ barrel is evil? Oh, and don’t forget that for rifles, the standard is different: 16 inches. Can’t they see the absurdity of such arbitrary legal standards? They might just as well say that we have the freedom of speech, except on Tuesdays, or when the moon is full. Or that a car with a 301 cubic inch engine is good, but one with a 302 cubic inch engine is evil.

In 2016, the Supreme Court reversed an absurd ruling by a Massachusetts appellate court that electric stun guns could be banned because they were not in common use in 1791. Thankfully, the court slapped down that silliness. But again, it did not go far enough. If they had instead applied genuine logic, what the court should have ruled is that the “in common use” standard itself is inherently flawed, and thrown it out. They should have replaced it with a standard that recognizes that the right to keep and bear arms is an inherent, pre-existing right that was only re-affirmed by the constitution. The true standard is objective and straightforward. I’d call this The Inherent Right Standard. This test for this is quite simple, requiring only two questions:
  1. Question: Is what is at issue an “arm” (weapon) of any sort or size, or ammunition, or an accouterment to a weapon?
  2. Answer: Yes.
  3. Question: Is the party in question an adult citizen? (That is, someone who is part of “The People.”)
  4. Answer: Yes.
  5. Immediate Ruling: Both the owner and his “arm” is constitutionally protected, and any law, policy, tax, or edict that denies, restricts, licenses, or taxes the manufacture, ownership, control, purchase, import, export, carry, transport, maintenance, use, transfer, bequest, sale, or other disposition of any weapon, ammunition, magazine, related optics, or accouterments (regardless of its size, barrel or blade length, bore diameter, wattage, sound decibels, rapidity of fire, or any other specification) in any way is summarily null and void, nunc pro tunc.
“Reasonable” According to Whom?

Another flaw with District of Columbia v. Heller is that it vaguely leaves the door open to what the court called “reasonable regulation” of arms. But that would be in direct contravention of the Second Amendment’s unambiguous “…shall not be infringed” wording. Any infringement, even if some people consider it “reasonable” is unconstitutional, on its face.

Similarly, the Heller decision attempted to distinguish what it called “dangerous and unusual” weapons, such as machine guns. But that is ludicrous. By their very nature, weapons are supposed to be dangerous. If they aren’t dangerous, then they aren’t weapons. Furthermore, militias–whether private or public–require the most dangerous weapons that the technological state of the art can muster, in order for them to be effective fighting forces. And, as I’ve already pointed out, a weapon can become “unusual” because of the prior restraint of laws, enforcement policies, or court rulings that unconstitutionally restrict them.

In summary, the courts cannot arbitrarily define “reasonable regulation” based on the political winds of the day nor can they determine something to be “dangerous and unusual”. Neither of these is in their purview because “…shall not be infringed” is an absolute and definitive phrase, with no leeway for “except on Sundays” sorts of hedging, weaseling, or gradual degradation, based on a decline in popularity or media acceptance.
Take Action

Please take a few minutes to read this article: SCOTUS Rejection of 2A Cases Moves Up Likelihood of a Forced Choice for Gun Owners. After digesting that, please contact your elected representatives, and impress upon them the gravity of this situation, some legal background, and where you stand on this issue.

I’ve often written about the legal maxim: bad law is no law. (Lex mala, lex nulla.) In Common Law that essentially dates back to the Magna Carta in the year 1215. And more recently in our own nation — an inheritor of English Common Law — this maxim was confirmed in 1803, with the Marbury v. Madison decision.

We must also consider stare decisis. The term stare decisis is Latin for “to stand by things decided” — the whole concept of legal precedent. However, any precedent set by a bad legal decision that restricts our rights is not genuine, legitimate, or binding. Again: Lex mala, lex nulla. And let’s not forget that this maxim applies to all three branches of government: legislative, judicial, and executive.

If the Supreme Court continues to deny writs of certiorari for firearms ownership (i.e. “keep”) cases or carry (i.e. “bear”) cases, then they risk pushing the American citizenry into a corner. That is a lot like pushing a Grizzly Bear into a corner. It usually does not end well. If the courts dawdle too long, then the Law of Unintended Consequences may come into play. – JWR

Note: Permission to repost this article is granted, as long as it is re-posted in full, with all links intact, and credit given to the author (James Wesley, Rawles) and to SurvivalBlog.com.
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Old 06-30-2020, 7:05 AM
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It really depends on what the meaning of the word "is" is.
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Old 06-30-2020, 7:46 AM
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I recall I read on calguns someone was saying that according to Caetano the stun guns were considered to be "in common user" because there were 200,000 in circulation around the united states.

(only stats I can find)
https://rocketffl.com/nfa-firearms-f...ue-statistics/

per that page in 2017 2.7million destructive devices, 600k machines guns, 1.3million suppressors. The only one under 100k was AOW's.

So even with the commom use test as applied in Caetano, most NFA items are "in common use".
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Old 06-30-2020, 8:24 AM
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Been saying this for a while.

The way I see it, we’ve got 2, MAYBE 3 justices willing to touch NFA (Thomas, Alito, and maybe Gorsuch?). Roberts is busy knitting a new pink pus*y hat and Kavanaugh unequivocally threw MGs under the bus, almost gleefully, during his senate hearings.
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Old 06-30-2020, 10:08 AM
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Glad that Rawles finally caught up to where CalGuns was 9 years ago.
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Old 07-02-2020, 5:06 AM
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How can one reconcile "in common use" and the progress and development of new and improved - even novel - technology? Is SCOTUS a bunch of Luddites? By definition that which is new is not in common use.
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Old 07-02-2020, 7:17 AM
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Quote:
Originally Posted by Epaphroditus View Post
Is SCOTUS a bunch of Luddites? By definition that which is new is not in common use.

I JUST posted something Star Trek related, and then came to this. And your Luddite comment, made me think of the Pakleds!

I'd made this, to illustrate how slow the PA Dept. of Transportation (PennDOT) is at fixing highways, but the same applies to the Supreme Court - at correcting bad past judgments.


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Old 07-02-2020, 9:17 AM
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Problem is, as I stated many times before, you can't explain DC v. Heller on particulars only NOR can you explain from an overview only.

To do either is to NOT understand DC v. Heller.

Author is picking ONE particular as the basis for arguing DC v. Heller is flawed in it's entirety.

Now if that author and you guys are Justice Steven's fans, well then you're just another reminder of how gun owners in California are their own worst enemy.


So here's a rundown:

The People are preexisting
V
They bring commonly held arms suitable for self-defense for the purpose of confrontation
V
The Militia are preexisting - not created - as they are the able bodied males of the people
V
The Militia bring the same exact arms suitable for self-defense as the people for the purpose of confrontation
V
The Militia provides the security of a free state (polity) to suppress domestic insurrection and to repell foreign invaders
V
The federalized militia and the military are created by Congress under Article I, Section 8, Cls 12-13
V
And of course, Congress is free to fund, train and equip as necessary including military arms as it sees fit including unusual and unusually dangerous weapons



Now if you are incapable of seeing the very fine distinction that was made, well Scalia laid it out in DC v. Heller on page 55-56.

https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

The "common use" logic is most problematic when as ONE particular you try to isolate and determine the integrity of the discussion of DC v. Heller on that particular alone.

Pages 54-56 wrap up all the particulars as ONE concluding summary of the discussion - reading that makes it more clear.

If you guys really want to bash a troublesome particular - simply examine the boot-strapping they did on the GCA of 1968.

=8-|
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Last edited by mrrabbit; 07-02-2020 at 9:56 AM..
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Old 07-02-2020, 5:16 PM
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I've often wondered how Heller's "in common use" and "long standing prohibitions" would have gone over in the 1956 Brown decision if used rather than "separate but equal is inherently unequal" and that correction done "with all deliberate speed".
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Old 07-03-2020, 1:00 AM
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I apologize but I'm commenting without reading the thread.
Because what the Constitution says, and what case law says, is irrelevant.
The "law" is whatever a majority of justices on SCOTUS say it is.
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I am not your lawyer. I am not giving you or anyone else who reads my posts legal advice. I am making off-the-cuff comments that may or may not be accurate and are personal, not professional, opinion. If you think you need a lawyer please retain a qualified attorney in your jurisdiction. Your local bar association may be able to help if you need a referral.

Two Weeks!: http://www.calguns.net/calgunforum/a...p/t-59936.html
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Old 07-03-2020, 7:18 AM
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Originally Posted by faterikcartman View Post
The "law" is whatever a majority of justices on SCOTUS say it is.

In PRACTICE, yes. If we EVER got 6 Constitutionalists on the bench, it would go BACK to being what the Founding Fathers WROTE & INTENDED.
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Old 07-03-2020, 8:12 AM
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It won't. Previous case law will be used as a bases for further case law.
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Old 07-03-2020, 9:30 AM
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Quote:
Originally Posted by The War Wagon View Post
In PRACTICE, yes. If we EVER got 6 Constitutionalists on the bench, it would go BACK to being what the Founding Fathers WROTE & INTENDED.
If that did happen:

Any and all CCW cases are dead on arrival, just as they are already.
Goodbye qualified immunity.
Goodbye Roe v. Wade.
Goodbye standing Air Force and Army during peace time.
Goodbye standing National Guard during peace time.
Goodbye to the imposition of the commerce clause on intrastate commerce.
Goodbye to the separation of church and state nonsense.
Goodbye to the GCA of 1968.
Goodbye to any form of national regulation of non-commercial activity such as driving a car.

=8-)
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Old 07-03-2020, 5:14 PM
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Quote:
Originally Posted by mrrabbit View Post
If that did happen:

Any and all CCW cases are dead on arrival, just as they are already.
Goodbye qualified immunity.
Goodbye Roe v. Wade.
Goodbye standing Air Force and Army during peace time.
Goodbye standing National Guard during peace time.
Goodbye to the imposition of the commerce clause on intrastate commerce.
Goodbye to the separation of church and state nonsense.
Goodbye to the GCA of 1968.
Goodbye to any form of national regulation of non-commercial activity such as driving a car.

=8-)
what do you base any of this on?
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Old 07-03-2020, 5:45 PM
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Quote:
Originally Posted by speedrrracer View Post
Glad that Rawles finally caught up to where CalGuns was 9 years ago.
That seems to happen, quite a bit, for many on a number of issues.
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Old 07-03-2020, 7:08 PM
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Quote:
Originally Posted by johncage View Post
what do you base any of this on?
1. DC v. Heller 2008

https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

2. Things like qualified immunity, abortion rights, imposition of the commerce clause on intra-state commerce, separation of church and state were all made up or invented by SCOTUS in the past 8 decades.

3. GCA of 1968 basically makes felons felons for life, despite having served their time and declared free to go.

Catholics disembarking at the ports of the east coast on their way to Maryland weren't told they had no right to bear arms in Maryland.

Ex-cons from England upon disembarking at the colonies weren't told they had to right to bear arms in their respective colonies.

10s of thousands of ex-cons started life all over in the colonies...with many of them volunteering for the Continental armies to PROTECT their very newly established lives AND natural rights from King George.

Everyone not in a jail serving time or adjudicated as dangerously mentally ill were free to keep and bear arms pretty much all the way up to 1968.

History is your friend, so is the linked Supreme Court decision posted above.

=8-)
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Old 07-04-2020, 8:42 AM
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If Heller came up today, do you think it would be upheld?
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Old 07-04-2020, 9:34 AM
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Quote:
Originally Posted by mrrabbit View Post
If that did happen:

Any and all CCW cases are dead on arrival, just as they are already.
Goodbye qualified immunity.
Goodbye Roe v. Wade.
Goodbye standing Air Force and Army during peace time.
Goodbye standing National Guard during peace time.
Goodbye to the imposition of the commerce clause on intrastate commerce.
Goodbye to the separation of church and state nonsense.
Goodbye to the GCA of 1968.
Goodbye to any form of national regulation of non-commercial activity such as driving a car.

=8-)
Sounds fantastic! Let's 'git er dun'
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In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931) -Scalia majority opinion in Heller
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Old 07-04-2020, 9:37 AM
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Quote:
Originally Posted by faterikcartman View Post
I apologize but I'm commenting without reading the thread.
Because what the Constitution says, and what case law says, is irrelevant.
The "law" is whatever a majority of justices on SCOTUS say it is.
Speaking of logic. When the constitution was ratified what did any of it mean before SCOTUD ever ruled on anything?

FYI even SCOTUS makes mistakes or operates on an agenda.
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In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931) -Scalia majority opinion in Heller
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Old 07-07-2020, 5:22 PM
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Quote:
Originally Posted by Jimi Jah View Post
If Heller came up today, do you think it would be upheld?
No, of course not. John Roberts has done everything he can to stifle conservatives from having meaningful wins in the courts. He has shifted his politics to boost his image among those he views as having the rising stock. He has no principles. He makes the Supreme Court a joke
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