57Coastie wrote:Herb invites our attention to:
All bearable arms.
Has not Justice Scalia skipped over the word "keep," as in "...
keep and bear arms....? Do you see any legal significance to this, Herb? Does this dispose of the issue of whether, for example, artillery is included in the 2d, a (frivolous??) hypothetical we have seen raised several times on this forum? I.e., is it your expectation that our right to keep and bear arms will ultimately be held to include only arms that can be carried?
(I decided that now that we do not have any more serious issues to deal with we can spend some time on hypotheticals.)
With tongue in cheek (perhaps),
Jim
[Most of the following are thoughts that are still crystallizing for me so I am going to just write without concern about organization or presentation, which includes my usual typos and misspellings, etc.]
Tongue in cheek or not, I am quite serious...but it will take 5, 10, or many more years to work these details through....
I am pretty sure the Majority opinion forestalls artillery (by default at least without a further successful case) as not being a) bearable and b) in common use, despite those being in private hands at the time of the Constitution and Bill of Rights. If it is bearable it says you may keep it.
Also, such are not commonly issued by the military to individuals.
I have long claimed however, that automatic rifles are OK, and short barrel shotguns would be protected except for the ambiguity introduced by the
defective (mentioned by Kennedy in oral arguments) Miller decision. The "militia phrase" sets the context that requires
AT LEAST the protection of those arms normally issued to the individual infrantryman or the (paramilitary) police officer. (This is MY claim which is self-evident taking Miller and Heller together.)
Majority Opinion DC v Heller, page 8:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret 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.
Scalia's majority opinion (page 55) seems to hint that an M-16 is not protected due to not being "in common use" but that is NOT what he actually writes (common civilian use is also mentioned but never stated declared a requirement for protection):
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.
Note, he says that the Right might require M-16s, and also
require even sophisticated arms...highly unusual in society at large.
The combination of the prima facie case for all bearable arms and those in common use must include those commonly issued to the individual soldier or paramilitary* police officer and cannot eliminate those not kept at home merely because those are effectively banned.
AR-15s and similar firearms are in common civilian use, as M-16s and varients of essentially the SAME FIREARM design are standard issue (therefore common use) in the military and paramilitary police. A similar but slightly more difficult (less common and confused again by the defective Miller decision) case can be made for short barrel shotguns.
*Note that I make a point of including "paramilitary" police in these discussions not as a criticism of police but for several reasons, including:
- Police didn't exist as we now know them at the time of the Constitution
- As a paramilitary organization, e.g., ranks, military discipline, issued arms similar to the military they set up either/both an organized militia and/or a government entity having rights PROTECTED beyond those of the ordinary citizen which is unconstitutional in light of Heller
- Government agents, especially military ones, cannot have a right protected while it is ignored or prosecuted for citizens
There is NOTHING particularly dangerous about M-16's in the hands of either the military infantryman or the civilian/paramilitary police officer (or law-abiding citizens in the few cases where that is legal), and there is nothing particularly distinctive about it except for it being automatic -- the government cannot in light of Miller and Heller disallow, either directly or through egregious licensing and taxation forbid these common, even essential firearms.
Nor can they claim these must be in common civilian use -- when similar weapons are anyway -- when any such lack of commonality is merely due to the very prohibitions or excessive taxation schemes that would be challenged.
They are common and they are bearable, even issued to individuals in civilian and military employ of the government.
I am seriously considering applying for a short barrel shotgun manufacturing license and tax stamp for personal use (for home and vehicle defensive use), without the tax being submitted, under a cover letter that explains my claim vis a vis Heller. I would include TOE (Table of Equipment) from the military that shows this is an issued weapon at times and examples of such which are manufactured legally.
They can only deny or approve my request.....
I have claimed Heller will be as transforming as Miranda and still hold out that hope. Oddly enough Heller and Miranda have common issues of public safety and crime control being weighed against protection of individual rights.
Using the 1st Amendment as a guide might be a poor analogy (though Heller does do this) in many case as the only regulations and proscriptions which would survive would be a) noise regulations b) actual harm/violence, which is more behavior than exercise of a right and c) and time/location rules.
Noise regulations would be similar to prohibitions on free speech in front of your neighbors house at 3:00 AM being restricted or firing a gun during the night. Actual harm would be like libel, slander, and even perjury being analogous to unsafe shooting (residential neighborhoods) or actual assault. And time and location might be used to prevent you from carrying within a government building or school (but this is more difficult.)
The majority in Heller says or at least implies that sensitive locations can be regulated -- it does not say that all such regulations will survive though.
Assembly under the 1st Amendment and 4th and 5th amendment protections seem much better analogies for 2nd amendment protections however.
Fire marshal regulations can prevent an assembly beyond a certain size in a particular room but the Fraternal Order of the Police or the Police Academy Graduation ceremony or City Council meetings would be subject to the same or precisely similar restrictions. The police and government may not do what the citizens are forbidden from doing without compelling state interest (e.g., making war would generally be restricted to the government but again this is behavior not the exercise of the right itself.)
Similarly for parade permits and other legitimate, but VERY NARROWLY TAILORED, restrictions on assembly.
Defense attorney's are going to have a field day with Heller -- although I would prefer law abiding citizens do so first -- as our legal system is set up to discourage the law-abiding from challenging illegal government behavior a priori an offence, and to encourage criminals found guilty to do so after conviction.
Contrary to others, I don't believe that even "sensitive places" are immune from challenge, just that no lower court would need to necessarily allow those challenges, i.e., such challenges would require new information and probably a new decision from the Supreme Court.
Miranda is curious in that it not only guarantees rights, but requires the government to INFORM the suspect and perhaps to even PROVIDE material assistance for the right to be exercised. Were Heller enforced the same way they would have to issue me my M-16.
And another thing, many of us have PREVIOUSLY QUALIFIED with the M-16 or other military issue firearms so no claim of incompetence or training requirement can be automatically (
) correct. This previous qualifications also testifies to the simple fact that we civilians have a long history of NOT misusing such arms, especially those of us with military experience.
This would not forestall non-veterans, just make it trivial to show that a large body of citizens are pre-qualified and have demonstrated responsible use personally.
and other minorities have the SAME RIGHTS as white Americans 