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Old 01-16-2013, 03:24 PM   #41
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Default Re: NY passes new state gun laws

Quote:
Originally Posted by Atlanta Dan View Post
You may be reading a lot more into Heller than is there

Heller held that an absolute ban upon handguns by the District of Columbia violated the Second Amendment right to self-defense - if there is anything in there about the right to bear semi-automatic weapons I missed it

What Justice Scalia did say about other weapons was as follows

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. ...


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 It may be objected that if weapons that are most useful against modern day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.


http://www.scotusblog.com/wp-content.../06/07-290.pdf

Scalia at the very least leaves open the possibility that a M-16 can be banned - if you can ban the M-16 without violating the Second Amendment it certainly is not a stretch to argue the AR-15 and other semi-automatics that would be "most useful" in military service also can be banned without violating the Second Amendment. Just because a weapon might be used for sporting purposes (machine guns would certainly be an effective means of culling the deer population) is not the end of the argument.

In accordance with that line of reasoning, the DC Circuit upheld a ban on assault weapons and certain types of ammunition, after Heller, as not being in violation of the Second Amendment in a challenge to that law by the same plaintiff who previously had challenged the handgun ban successfully in the Supreme Court's Heller decision. The law that was upheld:

defines “assault weapon” to include certain brands and models of semi-automatic rifles, pistols, and shotguns, such as the Colt AR-15 series of rifles, as well as semi-automatic firearms with certain features, regardless of make and model, such as a semi-automatic rifle with a “pistol grip that protrudes conspicuously beneath the action of the weapon” or a “thumbhole stock.” 7-2501.01(3A)(A). The District also prohibits possession of “any large capacity ammunition feeding device,” which includes “a magazine ... or similar device that has a capacity of ... more than 10 rounds of ammunition.” [/B][/B]..

In upholding the DC ban on those weapons, as opposed to handguns, the DC Circuit held

The plaintiffs contend semi-automatic rifles, in particular the AR variants, are commonly possessed for self-protection in the home as well as for sport. They also argue magazines holding more than ten rounds are commonly possessed for self-defense and for other lawful purposes and that the prohibition of such magazines would impose a burden upon them. Specifically, they point out that without a large-capacity magazine it would be necessary, in a stressful situation, to pause in order to reload the firearm....

Although we cannot be confident the prohibitions impinge at all upon the core right protected by the Second Amendment, we are reasonably certain the prohibitions do not impose a substantial burden upon that right. As the District points out, the plaintiffs present hardly any evidence that semi-automatic rifles and magazines holding more than ten rounds are well-suited to or preferred for the purpose of self-defense or sport. Cf. Kleck & Gertz, supra, at 177 (finding that of 340,000 to 400,000 instances of defensive gun use in which the defenders believed the use of a gun had saved a life, 240,000 to 300,000 involved handguns).
...

Heller suggests “M-16 rifles and the like” may be banned because they are “dangerous and unusual,” see 554 U.S. at 627. The Court had previously described the “AR-15” as “the civilian version of the military’s M-16 rifle.” Staples v. United States, 511 U.S. 600, 603 (1994). Although semi-automatic firearms, unlike automatic M-16s, fire “only one shot with each pull of the trigger,” id. at 602 n.1, semi-automatics still fire almost as rapidly as automatics....

We conclude the District has carried its burden of showing a substantial relationship between the prohibition of both semi-automatic rifles and magazines holding more than ten rounds and the objectives of protecting police officers and controlling crime. Accordingly, the bans do not violate the plaintiffs’ constitutional right to keep and bear arms
.

Heller v. District Of Columbia (aka "Heller II")(D.C. Cir. October 4, 2011)

http://www.cadc.uscourts.gov/internet/opinions.nsf/DECA496973477C748525791F004D84F9/$file/10-7036-1333156.pdf

That holding by the DC Circuit has not been reversed by the Supremes



W was tagged as being a war criminal for overseeing "enhanced interrogation practices" that constituted torture, not for invading Iraq. FWIW I thought the Libya adventure was an improper exercise of executive authority, which is not the same as an international war crime


I wasn't talking about just Heller, but I will sit down and read those links at some point...I don't really have time to read 80 pages of analysis at the moment.

These two things jumped out in my initial browsing though...

The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home.


Along with the continuation of what you already began quoting...

Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not 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. 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
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