Halbrook on Duncan and Bianchi and Bruen, oh my!

[BAJ475]

The issue is no court will find that way. If anything, they will find against AR15s.

Probably. But consider that the prefatory clause of the Second Amendment states: "A well regulated Militia, being necessary to the security of a free State," and the militia being the armed citizenry who were expected to bring their own "military grade" weapons, we should all have our own machine guns! And in states and jurisdictions that think that the Second Amendment is a collective right, the government needs to pay for those machine guns as a welfare benefit!

[AlmostHeaven]

I hate the argument that machine guns aren't protected because there are only 176,000 in private hands. Maybe if the government didn't make it impossible to own machine guns, there would be more of them. If there was no NFA and Hughes, I bet a large portion of the ARs sold today would be select fire. That opportunity was taken from us.

The gun rights movement has got to stop thinking that compromise will give us a win. Throwing MGs under the bus isn't going to make them give us ARs.

While I understand your core message and underlying sentiment, sacrificing machineguns very well may be the price of admission to a 5-4 Supreme Court majority opinion that enjoins all assault weapons bans.

After the Garland v. Cargill oral argument, during which half the Republican-appointed justices indicated agreement with general machinegun prohibitions, the chance of striking down the Hughes Amendment has reached zero. Such a case would result in a 7-2 victory for the government.

If we use gun grabber logic... Ar15 are the same as m16 which are machine guns.

Applying Heller: that makes the class of firearm, machine guns in common use for lawful purposes by tens of millions, not unusual and thus protected.

If they want to say stupidity make them eat their own words.

The Supreme Court does not contain even 3 votes to rule this way, let alone a majority.

[Bhobbs]

While I understand your core message and underlying sentiment, sacrificing machineguns very well may be the price of admission to a 5-4 Supreme Court majority opinion that enjoins all assault weapons bans.

After the Garland v. Cargill oral argument, during which half the Republican-appointed justices indicated agreement with general machinegun prohibitions, the chance of striking down the Hughes Amendment has reached zero. Such a case would result in a 7-2 victory for the government.

I?m not saying we should file a suit against Hughes or the NFA. My point is arguing that the government can ban something if they ban it early enough is a terrible concession to make. The argument should be to follow Bruen and Heller, no matter where that leads.

[SpudmanWP]

I?m not saying we should file a suit against Hughes or the NFA. My point is arguing that the government can ban something if they ban it early enough is a terrible concession to make. The argument should be to follow Bruen and Heller, no matter where that leads.

"Banning it early enough" does follow Bruen and Heller (specifically) as long as what you are banning is unique enough to be "not in common use".

[AlmostHeaven]

The District of Columbia v. Heller in common use for lawful purposes test does feature some amount of circular logic, as left-leaning lawyers and judges enjoy highlighting, but abandoning the powerful standard would put massive winds into the sails of gun control tyrants, so Second Amendment advocates mostly do not want to disturb the precedent out of practical concerns.

[SpudmanWP]

Not sure what "circular logic" you are referring to. The Common Use test makes perfect sense as if the weapon is so dangerous that it's obvious, then governments will recognize that early on and ban it (ie grenades, Full Auto, nukes, etc).

[Bhobbs]

Not sure what "circular logic" you are referring to. The Common Use test makes perfect sense as if the weapon is so dangerous that it's obvious, then governments will recognize that early on and ban it (ie grenades, Full Auto, nukes, etc).

Except the government didn?t ban grenades or full autos early enough. Full autos were available for nearly a century. There were ads for grenades at the time of the founding, so grenades were available for centuries. Even now, grenades are still legal, but have to be registered.

[Bhobbs]

"Banning it early enough" does follow Bruen and Heller (specifically) as long as what you are banning is unique enough to be "not in common use".

Banning it early fails the historical analogue test. Common use just stops the need from the historical analogue investigation.

[AlmostHeaven]

Not sure what "circular logic" you are referring to. The Common Use test makes perfect sense as if the weapon is so dangerous that it's obvious, then governments will recognize that early on and ban it (ie grenades, Full Auto, nukes, etc).

The "circular logic" comes from the other direction.

Gun rights supporters all agree that if Americans buy a particular class of weapons in sufficient quantities, such as semi-automatic firearms equipped with large-capacity magazines, the in common use test forbids the prohibition of such devices.

The issue arises when technology advances. As a hypothetical, what happens if in 15 years, revolutions in battery chemistry enable man-portable directed energy weapons with thousands of shots per charge, far more capable than current guns? Congress could immediately enact legislation banning civilian possession of such weapons, and the We the People would never receive an opportunity to procure enough to qualify under in common use.

A legal standard that depends on items remaining lawful long enough to thereby receive Constitutional protections has circularity.

Do not misinterpret my position. I absolutely believe Heller must remain law of the land, but the precedent has some flaws.

[TKM]

The "circular logic" comes from the other direction.

Gun rights supporters all agree that if Americans buy a particular class of weapons in sufficient quantities, such as semi-automatic firearms equipped with large-capacity magazines, the in common use test forbids the prohibition of such devices.

The issue arises when technology advances. As a hypothetical, what happens if in 15 years, revolutions in battery chemistry enable man-portable directed energy weapons with thousands of shots per charge, far more capable than current guns? Congress could immediately enact legislation banning civilian possession of such weapons, and the We the People would never receive an opportunity to procure enough to qualify under in common use.
A legal standard that depends on items remaining lawful long enough to thereby receive Constitutional protections has circularity.
Do not misinterpret my position. I absolutely believe Heller must remain law of the land, but the precedent has some flaws.

"Protected by 70 kWh Daily Powerwall" signs will become common.

[SpudmanWP]

Banning it early fails the historical analogue test. Common use just stops the need from the historical analogue investigation.

"Common Use" is the historical analog. Heller quoting Miller:

Miller?s holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

Except the government didn't ban grenades or full autos early enough. Full autos were available for nearly a century. There were ads for grenades at the time of the founding, so grenades were available for centuries. Even now, grenades are still legal, but have to be registered.

"Early" is relative to when it becomes "In Common Use". In Heller, SCOTUS talked about how there were historical laws restricting handguns, but once they were common (ie no longer "dangerous and unusual"), they could no longer be banned. The test is "Dangerous and Unusual", not "Dangerous, Unsuual, and New". Age plays no part in the test.

IMHO A better legal argument against the Huges Amendment would be a "but for" argument.
In this case, if it were not for an unconstitutional taxing of a right in the NFA, then it would have been "in common use" by the time of the Huges Amendment thereby making it invalid.

[AlmostHeaven]

"Protected by 70 kWh Daily Powerwall" signs will become common.

People would fly Gasden flags with lasers and plasma beams in the background.

[GetMeCoffee]

... The test is "Dangerous and Unusual", not "Dangerous, Unsuual, and New". Age plays no part in the test.
...

Doesn't the term "unusual" incorporate "new", at least in this context? A carryable 100KW directed energy weapon would not be considered usual by any definition, at least until it is. That captures the definition of "new". At the same time, a plaid colored 1911 with a fake mustache is also unusual but I would not expect the term to cover that. Or perhaps it should...

[Bhobbs]

"Common Use" is the historical analog. Heller quoting Miller:





"Early" is relative to when it becomes "In Common Use". In Heller, SCOTUS talked about how there were historical laws restricting handguns, but once they were common (ie no longer "dangerous and unusual"), they could no longer be banned. The test is "Dangerous and Unusual", not "Dangerous, Unsuual, and New". Age plays no part in the test.

IMHO A better legal argument against the Huges Amendment would be a "but for" argument.
In this case, if it were not for an unconstitutional taxing of a right in the NFA, then it would have been "in common use" by the time of the Huges Amendment thereby making it invalid.

Common use comes out of the historical analysis but it isn?t the only aspect. Why else would Benitez request a list of historical analogues? If common use is the only test, there would be no need for historical analogues. Either the arm is common or it?s not.

The NFA is an unconstitutional law. It restricts the ability to both keep and bear arms, with no historical analogue.

[SpudmanWP]

Doesn't the term "unusual" incorporate "new", at least in this context? A carryable 100KW directed energy weapon would not be considered usual by any definition, at least until it is. That captures the definition of "new". At the same time, a plaid colored 1911 with a fake mustache is also unusual but I would not expect the term to cover that. Or perhaps it should...

The closest that SCOTUS has come to defining "Unusual" was the concurring option in Caetano where it attributed it to having over 200k stun guns in public use. The "Common use at the time" necessarily excludes considering the age of the arm in the calculation. A pepperbox pistol is hundreds of years old but in no way can be considered "common".