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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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  #1  
Old 01-10-2019, 12:28 PM
BryMan92 BryMan92 is offline
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Default Worman v. Healey - MA AWB

Here is the District Court opinion:
https://www.courtlistener.com/recap/...86305.93.0.pdf

Here are some articles about the District Court opinion:
https://www.cato.org/publications/le...orman-v-healey
https://reason.com/blog/2018/04/06/u...chusetts-belie

Here is the audio of the appeal (presented today) in the First Circuit Court of Appeals:
https://www.dropbox.com/s/1wtvcncy2k...ments.mp3?dl=0
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  #2  
Old 01-10-2019, 12:35 PM
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Ugh that last sentence about “Justice Scalia would be proud” is disgusting.
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  #3  
Old 01-10-2019, 12:44 PM
BryMan92 BryMan92 is offline
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In the audio, the Appeals Court seems pretty unconvinced by the Plaintiff but also skeptical of the Defendant's claims which:1) appear antithetical to Heller and 2) misconstrue how a semi-rifle can be easily converted (thus,) to a machine gun.
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  #4  
Old 01-10-2019, 1:49 PM
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So much gymnastics to the 2A claim in this case:

• Miller says 2A applies to military weapons, but Heller does not because it has to account for the NFA.

• Assault weapons / LCMs (are) being military weapons because a California politician wrote an act that Congress approved saying so, despite no military using semi-auto weapons for their own use.

• Massachusetts mirrors the Federal language and when it dies they refuse to let their own law die.

• Numerous studies performed after Fed AWB dies that conclude neither that what is termed an Assault Weapon is useful for war (on the contrary it is encouraged for home protection), but that LCMs also do not contribute to reduced safety.

• Massachusetts court decides that the state law's language must survive even though all air is gone from the facts supporting their discrimination. Further that such items fall outside of Heller's protections due to their relation to NFA weapons and aforementioned California Politician's bansturbation tendencies. Ignoring that no Military uses semi-automatic weapons of this sort, bypassing Miller and Heller to conclude that there are weapons that are completely uncovered by the 2A and their accessories, and ignoring what common use means when correctly identifying it a few pages prior in quoting Heller for striking down an entire class of guns for home use.

This is so twisted, it really needs SCOTUS Cert to hammer home, once and for all, that "common" means how many are sold (even if the test is bogus on its face) and that bootstrapping conditions of sale and then claiming uncommon use is a paradox, and that intermediate scrutiny causes mental breakdown in the adjudication of 2A cases and that all merits be weighed as strict compliance with the amendment.
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  #5  
Old 01-10-2019, 1:59 PM
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Out of CA goes to National - moved.
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  #6  
Old 01-10-2019, 3:02 PM
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Quote:
Originally Posted by Robotron2k84 View Post
it really needs SCOTUS Cert to hammer home, once and for all, that "common" means how many are sold (even if the test is bogus on its face)
Careful what you wish for. If "common" becomes the established test, it will freeze protected firearms. I.e, no new action can be owned because it is not common and therefore not protected by 2A. If that was the test, we'd all be stuck with flintlocks.

As I read Scalia, "common" is clearly protected, but not exclusively protected. I.e, all common guns are protected, but uncommon ones are as well (depending on whatever mental gymnastics are required to justify the NFA).
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  #7  
Old 01-10-2019, 3:57 PM
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Without superseding Heller it's what we are stuck with. Either that, or "common" gets discarded as an unworkable measure.
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  #8  
Old 01-10-2019, 3:58 PM
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The “common use” was actually explained decently well in the nunchuck case in NY, FWIW.
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Old 01-12-2019, 2:46 PM
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Quote:
Originally Posted by BryMan92 View Post
The “common use” was actually explained decently well in the nunchuck case in NY, FWIW.
I believe you're referring to the following, which I would be much more comfortable with as a test (assuming this would, indeed, be adopted as the test)
Quote:
the Court has concluded that the “common use” factor is ultimately irrelevant and that the government must show that, at a minimum, nunchakus are not typically possessed by law-abiding citizens for lawful purposes.
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  #10  
Old 01-12-2019, 3:06 PM
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Yes, that! I think what the Plantiffs (in a typical accent) were arguing is that weapons in common use (whether by number or by virtue of being typically possessed by lawful people) is in fact the class of weapon and you cannot substitute a non-AW for AW. The Defense seemed to argue these are essentially machine guns. One judge did ask something about why they didn’t collect facts, maybe hinting they jumped the gun?
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  #11  
Old 04-29-2019, 5:33 PM
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Default Worman v. Healey - 1st Circuit Case

The First Circuit issued its decision in Worman v. Healey on Friday. It upheld a ban on so-called "assault weapons" and LCMs.

You all in California need to pay close attention to it. We all do for that matter. It puts any hope of a victory down the road in Duncan v. Becerra in jeopardy.

It is a disaster, and it's not just that the judges were anti-gun, it's that the attorneys for the gun owners didn't do the job they needed to do to win. The record in the case is absolutely abysmal.

First, it says:

"Equally as important is what the record does not show: it offers no indication that the proscribed weapons have commonly been used for home self-defense purposes. In fact, when asked directly, not one of the plaintiffs or their six experts could identify even a single example of the use of an assault weapon for home self-defense, nor could they identify even a single example of a self-defense episode in which ten or more shots were fired."

Compare this with what Michel & Associates did in Duncan v. Becerra, where they gave Judge Benitez a strong record, with examples of such cases to work with, to conduct a favorable analysis under the "intermediate scrutiny" analysis.

In addition, the record contains nonsense like this.

"The record also contains the affidavit of a seasoned trauma surgeon, who has treated victims of several mass shootings. This affidavit confirms what common sense suggests: semiautomatic assault weapons cause wounds that 'tend to be higher in complexity with higher complication rates than those injuries from non- assault weapons. They tend to cause far greater damage to the muscles, bones, soft tissue, and vital organs.'"

Really? Are they saying a .223 from an AR-15 causes more tissue damage than the same round from a bolt-action rifle? Well, yes they are, and the fact that this was the record in the case is abysmal.

I'm warning you because if Worman v. Healey makes it to the Supreme Court, and the petition for cert is accepted, the attorneys litigating it are going to need some help in a big way, or else we are all in trouble.

http://media.ca1.uscourts.gov/pdf.op...-1545P-01A.pdf
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  #12  
Old 04-29-2019, 5:52 PM
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First Circuit upholds laws related to "to a Massachusetts law proscribing the sale, transfer, and possession of certain semiautomatic assault weapons and large-capacity magazines (LCMs)....We assume, without deciding, that the proscribed weapons have some degree of protection under the Second Amendment. We further assume, again without deciding, that the Act implicates the core Second Amendment right of self-defense in the home by law-abiding, responsible individuals. We hold, however, that the Act's burden on that core right is minimal and, thus, the Act need only withstand intermediate scrutiny — which it does. "

http://media.ca1.uscourts.gov/pdf.op...-1545P-01A.pdf
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  #13  
Old 04-29-2019, 5:54 PM
BryMan92 BryMan92 is offline
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You beat me to the punch, a bit, but I revived an older thread:

https://www.calguns.net/calgunforum/....php?t=1502540

FWIW, the oral arguments were a trainwreck.
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  #14  
Old 04-29-2019, 6:29 PM
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Any other AWB cases in the SCOTUS pipeline?

If we could get Michael and Associates to help out with this case, then it would be good to get it in front of SCOTUS. "Carry" is a huge 2A issue, but I think assault weapon bans will ultimately make or break the direction of this country as it pertains to gun ownership and attitude towards gun owners.
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  #15  
Old 04-29-2019, 7:29 PM
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Quote:
Originally Posted by wireless View Post
Any other AWB cases in the SCOTUS pipeline .
I fear that Worman is next line, and yes, unless they get some help with attorneys like Michel & Associates (or perhaps Alan Gura), I'd prefer they not even appeal the decision.

Sidenote: If you follow 2A cases, this site does a nice job of tracking petitions pending, granted, and denied before the Supreme Court (you have to scroll down the page a bit).

https://californiaopencarry.com/stat...carry-lawsuit/
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  #16  
Old 04-29-2019, 7:31 PM
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I doubt SCOTUS would take a bad case. They could issue a reverse and remand order without comment if the NY case goes well.
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  #17  
Old 04-29-2019, 9:20 PM
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"The test is not the AR-15's present day popularity but whether it is a weapon "most useful in military service."

... what??
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  #18  
Old 04-29-2019, 9:22 PM
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Quote:
Originally Posted by BryMan92 View Post
"We hold, however, that the Act's burden on that core right is minimal and, thus, the Act need only withstand intermediate scrutiny — which it does. "
This is why I believe all of these cases will be on hold pending NYSRPA, as that case appears to be pounding down the road of dictating the appropriate level of scrutiny. If NYSRPA addresses scrutiny (favorably), all of these other cases fall. If it does not, then we worry.
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Old 04-30-2019, 3:20 AM
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Quote:
Originally Posted by fishgoh0nk View Post
"The test is not the AR-15's present day popularity but whether it is a weapon "most useful in military service."

... what??
That gem is from the District Court opinion, which in turn took it from Kolbe v. Hogan (the 4th Circuit opinion), which in turn took it from unfortunate dicta in Scalia's majority opinion in 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.").

When antis say "when they give an inch, we will take a mile", they really mean it.

Until Kolbe is overruled, the states of Maryland, Virginia, West Virginia, North Carolina, and South Carolina, can ban AR-15s without any level of scrutiny applied, since Kolbe held they are not subject to any constitutional protection.
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  #20  
Old 04-30-2019, 4:50 AM
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Quote:
Originally Posted by fishgoh0nk View Post
"The test is not the AR-15's present day popularity but whether it is a weapon "most useful in military service."

... what??
Wasn't this the test laid forth in the Miller decision? And that the only reason a sawed-off shotgun wasn't protected was because it wasn't particularly suitable for military/militia purposes? And therefore, as logic would extend, pretty much any weapon that IS useful for that purpose OR is in common use (or both) are protected???

I don't understand why this particular precedent seems to be irrelevant in present day SCOTUS litigation...
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  #21  
Old 04-30-2019, 2:44 PM
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Originally Posted by selfshrevident View Post
Wasn't this the test laid forth in the Miller decision? And that the only reason a sawed-off shotgun wasn't protected was because it wasn't particularly suitable for military/militia purposes? And therefore, as logic would extend, pretty much any weapon that IS useful for that purpose OR is in common use (or both) are protected???

I don't understand why this particular precedent seems to be irrelevant in present day SCOTUS litigation...
In my opinion, there seems to be some nonconformity:
1) Miller protects militia-suitable weapons.
2) Caetano protects stunguns (and weapons not existing at the founding...for a homeless women...maybe in or near a car in a parking lot).
3) Heller bans weapons that are "strange and unusual" but those in common-use by law-abiding citizens are protected.
4) NY Circuit protects numchucks.

So, is a sawed-off shotgun protected if I am a law-abiding citizen or by its nature is it "strange and unusual"? Can I own sawed-off numchucks?

In the orals, the Plaintiffs basically argued the AR15 is a M16 and in the opinion its clear the automatic firing is really no that crucial.
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Old 04-30-2019, 3:06 PM
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Quote:
Originally Posted by BryMan92 View Post
In my opinion, there seems to be some nonconformity:
It's worse than that. Heller is self-contradictory:
Quote:
This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individ*ual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”)
Noting it is clear that military weapons are protected by 2A (select fire)

They acknowledge this, then realize "Oh s***- this nullifies the NFA"
Quote:
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordi*nary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.
Then comes the intellectual pretzeling required to maintain the logical contradiction.
Quote:
We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolu*tionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.”
Which is in stark contrast to the previous assertion
Quote:
Some have made the argument, bordering on the frivo*lous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not in*terpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
So which is it? You could drive a tank through the holes in this olympic style mental gymnastics. Eventually, the court is going to have to resolve all of these contradictions. Stare decisis is completely out the window. Be doubly thankful Clinton didn't win and we (hopefully) have a conservative court to sort out this mess
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  #23  
Old 05-01-2019, 4:06 AM
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Yup. Agree with the above. Others have no doubt caught on to the circular logic.

Quote:
...Scalia needs to make this point because otherwise today's pistols and revolvers, quite different from the firearms available in the 18th century, would not be covered by the Second Amendment. But why stop there? Why isn't an M-16, eminently suitable for military use but also the sort of weapon militia members could keep in their homes and bring with them when their services were necessary (as Swiss and Israeli citizen-soldiers do), included as well? Apparently because machine guns are not "in common use…for lawful purposes" in the United States today. But maybe they would be if they were legal. This seems like circular reasoning to me.
https://reason.com/2008/06/26/why-no...-machine-guns/
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Old 05-01-2019, 1:11 PM
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Quote:
Originally Posted by selfshrevident View Post
Yup. Agree with the above. Others have no doubt caught on to the circular logic.



https://reason.com/2008/06/26/why-no...-machine-guns/
I might be mistaken, but did not the Court presume that machineguns could be banned without actually stating so? At any rate, I suppose the logic could be that machineguns were regulated almost at the time of their existence (so long-standing compared to their existence) thus are not "common use". If memory serves me right, semi-autos were proposed to be part of the NFA, too, so that would be not good!

I am fearful that, as the oral arguments show, the antis are looking to basically say "Well, the only difference between AW and non-AW is the fact that the AW is more lethal and are basically readily-convertible machineguns/machineguns (aka, "the like" from Heller)." Now, if that is upheld, with AW gone you can now make the same case for any semi-auto: all semi-autos are basically machineguns since you can bumpfire them (without or without the bumpstock). I think the bumpstock ban is actually more relevant to this case than we think since if you can "readily convert" a semi- to an auto- you basically have a machine gun which can be banned.

Perhaps the best course of action is piece-wise: magazines are protected, grips are protected, etc., instead of going after a broad term of "AW".
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Old 05-01-2019, 1:28 PM
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Words have meaning. Scalia saying "The like..." means in the same classification. Semi-auto and select-fire are not in the same class and therefore are not alike. The political game to conflate the two is intended to blur that line. An AR-15 can be made full auto, but that is illegal, as are part-modifications made to convert semi to full or select-fire.

The two classes are distinct and one is in common use, and the other is not. Let's get assault weapon bans made unconstitutional before we try to take on NFA.

First things first.
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Old 05-02-2019, 2:34 AM
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Originally Posted by BryMan92 View Post
I might be mistaken, but did not the Court presume that machineguns could be banned without actually stating so? At any rate, I suppose the logic could be that machineguns were regulated almost at the time of their existence (so long-standing compared to their existence) thus are not "common use".
Yes, that's right. Scalia presumed without deciding that machineguns could be banned.

Kavanaugh, in his dissent in Heller II (the case on DC's assault weapons ban), laid out what you stated that essentially machineguns were not in common use by the time the NFA was passed in 1934.

Here's the excerpt:

"By contrast [to semiautomatic rifles], full automatics were developed for the battlefield and were never in widespread civilian use in the United States. Rifle-caliber machine guns (excluding the Gatling gun, which required hand cranking) first saw widespread use in the European colonial powers’ African conquests of the 1890s. See JOHN ELLIS, THE SOCIAL HISTORY OF THE MACHINE GUN 79-107 (1986). Automatic, pistol-caliber machine guns were fielded by European militaries toward the end of World War I. The Thompson machine gun (commonly known as the “Tommy gun”) entered commercial sale in the United States in the mid-1920s but saw very limited civilian use outside of organized crime and law enforcement. See LEE KENNETT & JAMES LAVERNE ANDERSON, THE GUN IN AMERICA 203-04 (1975). Within less than a decade, the Tommy gun and other automatic weapons had been subjected to comprehensive federal regulation. National Firearms Act, ch. 757, 48 Stat. 1236 (1934); see also 18 U.S.C. § 922(o)."
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Old 05-02-2019, 3:58 AM
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Quote:
Originally Posted by LonghornBob View Post
Yes, that's right. Scalia presumed without deciding that machineguns could be banned.

Kavanaugh, in his dissent in Heller II (the case on DC's assault weapons ban), laid out what you stated that essentially machineguns were not in common use by the time the NFA was passed in 1934.

Here's the excerpt:

"By contrast [to semiautomatic rifles], full automatics were developed for the battlefield and were never in widespread civilian use in the United States. Rifle-caliber machine guns (excluding the Gatling gun, which required hand cranking) first saw widespread use in the European colonial powers’ African conquests of the 1890s. See JOHN ELLIS, THE SOCIAL HISTORY OF THE MACHINE GUN 79-107 (1986). Automatic, pistol-caliber machine guns were fielded by European militaries toward the end of World War I. The Thompson machine gun (commonly known as the “Tommy gun”) entered commercial sale in the United States in the mid-1920s but saw very limited civilian use outside of organized crime and law enforcement. See LEE KENNETT & JAMES LAVERNE ANDERSON, THE GUN IN AMERICA 203-04 (1975). Within less than a decade, the Tommy gun and other automatic weapons had been subjected to comprehensive federal regulation. National Firearms Act, ch. 757, 48 Stat. 1236 (1934); see also 18 U.S.C. § 922(o)."
Then under this logic, new technology, such as laser weapons or whatever the next generation of small arms may be, can be banned before it becomes common and be perfectly consistent with the constitutin. We are then frozen in time in regards to technology to 2008.

Remember, handguns were originally included in the NFA but were taken out at the last minute. If they had never been taken out and were regulated as strictly as machine guns since '34, would Scalia have ruled that they are protected? I say no, using his Heller logic. Instead, they were taken out and allowed to flourish in American society, thereby becoming common absent the severe restrictions of the NFA.

I just don't see how it mashes with the intent of the 2A. I mean, at the very least we should be able to buy new production machine guns (post '86) since, by historical standards, the hughes amendment isn't "long-standing". Let Americans pay the damn $200 tax on their right and get a current production machine gun as long as they follow the NFA.
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Old 05-02-2019, 8:55 AM
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Quote:
Originally Posted by selfshrevident View Post
I just don't see how it mashes with the intent of the 2A. I mean, at the very least we should be able to buy new production machine guns (post '86) since, by historical standards, the hughes amendment isn't "long-standing". Let Americans pay the damn $200 tax on their right and get a current production machine gun as long as they follow the NFA.
Agreed. My feeling is that there would be a lot more machine guns in circulation today if it weren't for the '86 ban driving them up to insane price levels. But you need to add "and wait for however long the government sees fit to approve said stamp" to your "pay the $200 tax" statement. There's no deadline for them to approve - I'm currently over the 1 year mark for a suppressor - and I've got a CCW, TSA Pre, Global Entry, whatever the BATF give you as an explosives handler and a C&R - so you'd figure I should be pretty much a known entity to them and it would be a no-brainer to sign off on it.
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Old 05-02-2019, 9:56 AM
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Quote:
Originally Posted by selfshrevident View Post
Then under this logic, new technology, such as laser weapons or whatever the next generation of small arms may be, can be banned before it becomes common and be perfectly consistent with the constitutin. We are then frozen in time in regards to technology to 2008.

...

I just don't see how it mashes with the intent of the 2A. I mean, at the very least we should be able to buy new production machine guns (post '86) since, by historical standards, the hughes amendment isn't "long-standing". Let Americans pay the damn $200 tax on their right and get a current production machine gun as long as they follow the NFA.
I hear what you are saying. There is a lot with the majority opinion in Heller that is of concern. Dr. Edwin Vieira (who has videos on youtube and a website with articles) has a really good critique about Heller, from a pro-gun perspective.
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Old 05-02-2019, 11:32 AM
command_liner command_liner is offline
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I might be mistaken, but did not the Court presume that machineguns could be banned without actually stating so? At any rate, I suppose the logic could be that machineguns were regulated almost at the time of their existence (so long-standing compared to their existence) thus are not "common use". If memory serves me right, semi-autos were proposed to be part of the NFA, too, so that would be not good!

*SNIP*
There is another angle to consider. If you look at the testimony in the Congressional Record that explains the scope and boundary of the NFA '34 you see that the authors specifically said that they are not banning. The propose only to tax. Today no meaningful taxation is being done.

Even the ability to tax was considered a bit of a stretch. Recall that in '34 the introduction of the income tax was still a fairly new idea. And that required an amendment to the Constitution.

The NFA is a fragile thing, especially considering the 1960s rulings and amendments regarding the taxing of a right. I had a brief, but thrilling, personal strategy session with Gura on this exact topic. A solid ruling in this domain will eventually implode the NFA, especially since the 1986 changes.

The cracks can be seen if you look carefully. The wording by Roberts in the Obamacare ruling regarding the limits of the Commerce Clause are instructive, as are the specific words in the twice-heard Raisin Board cases.

It helps to think about the dynamics of the landscape without the NFA in place. Do your neighbors become more deadly if there is no NFA? Will crime increase if there is no NFA? Will the average shooting become more violent if there is an NFA?

NFA is vulnerable on other fronts. It provides no meaningful tax revenue, is expensive, and has no real meaning WRT crime. Compared to '34 there is a billion-fold increase in tracking data about arms, so there is no real value to the central registry and control. Similarly if we want to talk about wound lethality, trauma care is 100x more efficient at wound treatment.
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Old 05-02-2019, 1:20 PM
sarabellum sarabellum is offline
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It is a disaster, and it's not just that the judges were anti-gun, it's that the attorneys for the gun owners didn't do the job they needed to do to win. The record in the case is absolutely abysmal.

First, it says:

"Equally as important is what the record does not show: it offers no indication that the proscribed weapons have commonly been used for home self-defense purposes. In fact, when asked directly, not one of the plaintiffs or their six experts could identify even a single example of the use of an assault weapon for home self-defense, nor could they identify even a single example of a self-defense episode in which ten or more shots were fired."
↑ This insight cannot be ignored. With regard to number of shots fired, the average number needed to incapacitate an assailant is 16.8, as shown by the grossly inaccurate shooting of law enforcement against questionable threats: http://webcache.googleusercontent.co...&ct=clnk&gl=us

https://www.policeone.com/officer-sh...ved-shootings/

For Massachussetts, given that attorneys in Fyock v. Sunnyvale demonstrated "Although the extent of the prohibited magazines’ relationship to self-defense is questionable, Plaintiffs’ evidence indicates that such magazines are chosen for self-defense...Plaintiffs also submit evidence that firearms with magazines having a capacity to accept more than ten rounds are “highly effective for in-home self-defense,” Plaintiffs should be able to overcome the evidentiary deficiencies with regard to 10+ magazines, in latter cases.

The use of the term "assault weapon" is problematic (rev'd ad nauseum in Calguns), because the 1998 Massachusetts statute provided, "No person shall sell, offer for sale, transfer or possess an assault weapon or a large capacity feeding device that was not otherwise lawfully possessed on September 13, 1994." The probative data of the number of persons, who used an "assault weapon" (presumably only the weapon enumerated on the list by model and/or magazine size) could not come from Massachusetts alone as the number of persons owning an "assault weapon" and a "high capacity" magazine in Massachusetts after the 1994 ban cut off date is narrow.

Given Heller's analysis regarding types of weapons subject to regulation, the former assault weapon gun ban challenge will likely fail:
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” ...Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.[Footnote 25]
District of Columbia v. Heller, 554 U.S. 570 (2008)
https://supreme.justia.com/cases/fed...s/554/570/#T25

The reference to "typically possessed" and "lawful purposes," means that "typically possessed" includes only those weapons not currently banned, as this rule is parallel to the Heller's other rules, "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose....nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms..." District of Columbia v. Heller, 554 U.S. 570 (2008).

The presumption is that the NFA does not violate the 2nd Amendment, because it is unassailable under the 2nd Amendment. Therefore, Heller limits the scope of the analysis to both a determination of what is meant by "typical" (a vague statement of opinion) and the potential for statistical showing of "assault weapon" ownership, at least in a challenge to Massachusetts Penal Code §131M. The sign post ahead is featureless, unless some Plaintiff can present a persuasive argument that "assault weapons" bans are cosmetic, failing intermediate review. The sole likely result is a future future S.Crt. rule that while States may broadly regulate firearms, including semi-automatic rifles, the regulations may not entirely prohibit all semi-automatic rifles capable of receiving a magazine with a capacity of more than 10 rounds (or 7 in New York). Thereafter, the people will be forced to litigate endlessly, what types of cosmetic features crossed the line.
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Old 05-02-2019, 1:39 PM
BryMan92 BryMan92 is offline
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Words have meaning. Scalia saying "The like..." means in the same classification. Semi-auto and select-fire are not in the same class and therefore are not alike. The political game to conflate the two is intended to blur that line. An AR-15 can be made full auto, but that is illegal, as are part-modifications made to convert semi to full or select-fire.

The two classes are distinct and one is in common use, and the other is not. Let's get assault weapon bans made unconstitutional before we try to take on NFA.

First things first.
I agree with you that the conflagration is intentional, but on the legal side it is incredibly murky about what the classes actually are because of this intermediate BS and the "who knows!" about common use/lawful. This ruling was like "semi-auto, auto, who cares an AR is a M16" which is clearly not correct, but in Pena, one judge asked "Can you ban a Luger for a 1911?" which was countered with something like "Can you ban Catholicism for Protestantism?" Clearly, AWB need to go, but the question is how. I read a piece by Volokh (http://www2.law.ucla.edu/volokh/2am.pdf starting on page 14) which made a case for how AWB could be banned.


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Originally Posted by command_liner View Post
There is another angle to consider. If you look at the testimony in the Congressional Record that explains the scope and boundary of the NFA '34 you see that the authors specifically said that they are not banning. The propose only to tax. Today no meaningful taxation is being done.

....

NFA is vulnerable on other fronts. It provides no meaningful tax revenue, is expensive, and has no real meaning WRT crime. Compared to '34 there is a billion-fold increase in tracking data about arms, so there is no real value to the central registry and control. Similarly if we want to talk about wound lethality, trauma care is 100x more efficient at wound treatment.
I respect Gura a lot (and follow him on Twitter) so jealous you got to work with him a bit. This is an interesting point and I was wondering, is there not a case in progress on this already? Something about suppressors in Utah?

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Originally Posted by sarabellum View Post

...

The use of the term "assault weapon" is problematic (rev'd ad nauseum in Calguns), because the 1998 Massachusetts statute provided, "No person shall sell, offer for sale, transfer or possess an assault weapon or a large capacity feeding device that was not otherwise lawfully possessed on September 13, 1994." The probative data of the number of persons, who used an "assault weapon" (presumably only the weapon enumerated on the list by model and/or magazine size) could not come from Massachusetts alone as the number of persons owning an "assault weapon" and a "high capacity" magazine in Massachusetts after the 1994 ban cut off date is narrow.

...
It's a bit more complex which also makes this a kind of bad case. MA had the AWB in 1994 and you can buy pre-bans with all the fun goodies as if the ban never happened. Up until 2016, you could but ARs without bayonet lug and a pinned sock so not entirely featureless but less god-awful than a CA featureless. Then, in an OP ED, the AG decided to reinterpret the rules and expand the ban and to expand the copy-cat provision. Why? The AG (and the Gov.) can create and regulate lists of approved firearms because the legislature gave them the power. Her new changes are largely not enforced and may stores have ignored (or complied?) by them.

Last edited by BryMan92; 05-02-2019 at 1:43 PM..
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Old 05-02-2019, 6:52 PM
sarabellum sarabellum is offline
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It's a bit more complex which also makes this a kind of bad case. MA had the AWB in 1994 and you can buy pre-bans with all the fun goodies as if the ban never happened. Up until 2016, you could but ARs without bayonet lug and a pinned sock so not entirely featureless but less god-awful than a CA featureless. Then, in an OP ED, the AG decided to reinterpret the rules and expand the ban and to expand the copy-cat provision. Why? The AG (and the Gov.) can create and regulate lists of approved firearms because the legislature gave them the power. Her new changes are largely not enforced and may stores have ignored (or complied?) by them.
It does not appear that Massachusetts permits persons in possession on or before 1994 to sell or transfer to someone else post 1994. This conclusion is supported by the Mass. AG's interpretation of its own guidance letters (Mass. does not appear to require published regulations for firearms enforcement) identifying a list of approved firearms that are not clones of the prohibited "assault weapons." The list is composed entirely of featureless rifles.

The AG created an arbitrary date of 2016 to amnesty all unlawful sales that occured on or after 1994 but before 2016, since the Massachusetts statute GL PartI, Title XX, Chapter140, Section 131M (they do not believe named statutes or decimal points, but do believe in duplicate section numbers) provides, "No person shall sell, offer for sale, transfer or possess an assault weapon or a large capacity feeding device that was not otherwise lawfully possessed on September 13, 1994." That means the owner of the AW in possession on or before 09/13/94 cannot transfer to any person in MA. Any sales or transfers after 2016 are unlawful and subject to prosecution.

Remember, California is a state composed of arrivals from the East Coast and the Midwest, who are rabid authoritarian land speculators and shape its gun laws. Davis Mike, City of Quartz (Vintage Books, 1990), pp. 159, (The defense of property values becomes of such paramount political interest that, the home-owner associations in California become bastions of political reaction, if not of fragmented neighborhood fascism). That's who pays for the campaigns, votes your legislators into office, and to whom the legislators are beholden.
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Old 05-02-2019, 7:11 PM
BryMan92 BryMan92 is offline
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It does not appear that Massachusetts permits persons in possession on or before 1994 to sell or transfer to someone else post 1994. This conclusion is supported by the Mass. AG's interpretation of its own guidance letters (Mass. does not appear to require published regulations for firearms enforcement) identifying a list of approved firearms that are not clones of the prohibited "assault weapons." The list is composed entirely of featureless rifles.

...

Remember, California is a state composed of arrivals from the East Coast and the Midwest, who are rabid authoritarian land speculators and shape its gun laws. Davis Mike, City of Quartz (Vintage Books, 1990), pp. 159, (The defense of property values becomes of such paramount political interest that, the home-owner associations in California become bastions of political reaction, if not of fragmented neighborhood fascism). That's who pays for the campaigns, votes your legislators into office, and to whom the legislators are beholden.
I left MA right when this happened so I forgot she did say it was retroactive but was being oh-so-kind not to prosecute. Thanks for reminding me. I swear they were still selling the pre-bans at stores when I was home not too long ago. But, I think I am right though, that if you pinned the stock and removed the lug it was legal to still buy (before Maura posted her BS on copies) but in CA you would then have to also put a fin on. The point I am making is that featureless are sort of different and that the term AW is made up. I will riddle you this (as I have no idea who wins), if AW are banned, how come they are still explicitly ok on this Roster:

https://www.mass.gov/files/documents...%2002-2015.pdf

(Pulled from here: https://www.mass.gov/lists/approved-...rearms-roster-)

That document is put out by the Governor's office and is relevant as of 2017.
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Old 05-02-2019, 8:18 PM
sarabellum sarabellum is offline
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I will riddle you this (as I have no idea who wins), if AW are banned, how come they are still explicitly ok on this Roster:

https://www.mass.gov/files/documents...%2002-2015.pdf

(Pulled from here: https://www.mass.gov/lists/approved-...rearms-roster-)
The list you provided is for the "Large Capacity Firearms or Feeding Devices" separately prohibited under General Laws Chapter 269, § 10(m). Every double stack handgun and every rifle with the capacity to accept a detachable double stack magazine is on the banned roster you provided.

Last edited by sarabellum; 05-02-2019 at 8:22 PM..
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Old 05-02-2019, 10:47 PM
BryMan92 BryMan92 is offline
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The list you provided is for the "Large Capacity Firearms or Feeding Devices" separately prohibited under General Laws Chapter 269, § 10(m). Every double stack handgun and every rifle with the capacity to accept a detachable double stack magazine is on the banned roster you provided.
Ah, gotcha, basically a poor summary of the weapons. Thanks kindly!
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Old 05-02-2019, 11:15 PM
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It's like the second amendment is this giant eagle, that the democrats are trying to push off a cliff.
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Old 05-07-2019, 8:30 PM
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• Assault weapons / LCMs (are) being military weapons because a California politician wrote an act that Congress approved saying so, despite no military using semi-auto weapons for their own use.
Not true. Various semi auto rifles are used by many military forces around the world. Practically every country issues a semi auto only DMR/precision rifle. One example is the M110. Some countries even issue or used to issue semi auto rifles as standard issue for riflemen. The British did this up until the 90s with the L1A1.

Fairly irrelevant to the point though; military weapons are protected under the 2nd. But worth pointing out.
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Old 05-07-2019, 9:04 PM
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Should have specified intermediate cartridge platforms like ar/ak as not issued as semi. Thanks for the clarification.
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Old 05-08-2019, 6:21 AM
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Should have specified intermediate cartridge platforms like ar/ak as not issued as semi. Thanks for the clarification.
Don't forget the Mk12 SPR:

https://en.wikipedia.org/wiki/Mk_12_..._Purpose_Rifle
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