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Yes, the Second Amendment Guarantees an Individual Right to Bear Arms
realclearpolitics.com ^ | March 20, 2007 | Pierre Atlas

Posted on 03/20/2007 4:04:15 PM PDT by neverdem

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To: El Gato
"They can do what they wish to protect yours, within the limits of their powers, but they can't restrict my right."

What do you mean, they "can't restrict your right"? You can be thrown in jail. I'd call that somewhat of a restriction.

701 posted on 03/23/2007 4:51:34 PM PDT by robertpaulsen
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To: dcwusmc
The short-barrelled shotguns used in WWI (the Winchester Model 1897 Trench Gun, pictured) had a 20" barrel, bayonet lug, barrel shroud, and sling swivels.

My guess is that Mr. Miller's sawed-off shotgun had none of the above military-type features and would have been virtually worthless in a combat situation. The National Firearms Act of 1934 took the position that if a shotgun had a barrel less than 18", it was probably going to be carried concealed by criminals.

702 posted on 03/23/2007 5:09:00 PM PDT by robertpaulsen
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To: robertpaulsen
"My guess is that Mr. Miller's sawed-off shotgun had none of the above military-type features and would have been virtually worthless in a combat situation."

Your guess would be quite wrong then. It would not be my primary weapon, but my preferred backup in close quarters would be a double-barreled 12 ga. about 15-17" bbl length and maybe 24" overall. Besides the actual effect of the shot on an enemy, the psychological aspects are enormous.

"The National Firearms Act of 1934 took the position that if a shotgun had a barrel less than 18", it was probably going to be carried concealed by criminals."

The NFA took the position that they could TAX ownership and possession out of existence where they could not lawfully out and out prohibit. That is what NFA '34 was about. NO ONE would pay $200.00 to transfer a $5.00 short barreled shotgun, so it was defacto banning. Same with machine guns. Except that a FEW were registered, maybe 100,000 out of well over a million in private hands at the time, most of which were war souvenirs.

Oh, and your trench gun, nice as it is, would be too hard to swing around in really crowded quarters. That's why a "sawed-off" 12 ga. is so valuable.
703 posted on 03/23/2007 6:59:33 PM PDT by dcwusmc (We need to make government so small that it can be drowned in a bathtub.)
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To: JeffAtlanta; y'all
JeffAtlanta:
Care to explain away the Twitchell case --- just cited?


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


According to one of our foremost scholars of this issue:

"--- Twitchell is in fact an embarrassing joker. --"


THE BILL OF RIGHTS AND THE FOURTEENTH AMENDMENT
Address:http://www.saf.org/LawReviews/Amar1.html


See section:

3. Early Interpretations: In search of Reasons

Post-ratification discussions of the Fourteenth Amendment cannot change its meaning, but can cast light backwards. In examining early interpretations, we must not simply count noses, but weigh reasons: do any of the early interpretations of the Amendment deepen our understanding of the evidence we have seen thus far?

Here too, silence alone will prove relatively unhelpful. Consider, for example, the 1869 case of Twitchell v. Pennsylvania, where the Supreme Court brusquely dismissed claims that the state had violated various provisions of the Fifth and Sixth Amendments. [265]

Though neither counsel nor the Court even mentioned the newly ratified Fourteenth Amendment, various critics of Justice Black have argued that the silence alone is devastating to the incorporation thesis.
Thus, Felix Frankfurter wrote in his parting memorandum in the Harvard Law Review:

[Twitchell indicates that no one] even thought of proposing that these amendments had been newly brought to bear on the States by the Fourteenth. Yet the Fourteenth's formulation and adoption had been a subject of great interest, especially to lawyers and judges, only months prior to the decision of these cases. The significance of this contemporaneous understanding need not be labored. [266]

Raoul Berger agreed: "Oversight will not account for the omission; the Amendment had been widely discussed; bench and bar are alert to every new and relevant enactment; they would not be oblivious to the revolution worked by the alleged incorporation of the Bill of Rights." [267]

Fairman too thought Twitchell quite impressive evidence:
[I]t did not occur to counsel for the petitioner to suggest that the Fourteenth Amendment, adopted less than a year before, had worked any change in the law applicable to the case.... Even though counsel for the petitioner had failed to invoke the Fourteenth Amendment, one supposes that the Court, had it been stirred by the least uncertainty, would have suggested the question and heard argument before disposing of the petition of one sentenced to death. [268]

But had Fairman, Frankfurter, or Berger paused to examine their supposed trump card before playing it with such flourish, they might have realized that Twitchell is in fact an embarrassing joker.

Counsel explicitly argued, among other things, that Pennsylvania had violated "due process of law," but invoked only the Fifth Amendment-a (literally) fatal mistake, for the Court simply rejected the claim with a quick citation to Barron. [269]
But again, what does this prove? If Twitchell's silence is evidence that the Fourteenth Amendment does not incorporate earlier amendments, it is equally strong evidence that the Fourteenth does not require state due process.
But in light of the plain words of the Fourteenth Amendment, this latter claim is absurd.

Twitchell's silence thus proves too much-and therefore nothing at all. Or more precisely, it proves that, contrary to Berger and Fairman's glib assumptions, only "oversight will account for the omission;" "bench and bar are not alert to every new and relevant enactment;" and the Court did not pay careful attention "before disposing of the petition of one sentenced to death." [270]

Frankfurter notwithstanding, Twitchell's embarrassing silence shows no "contemporaneous understanding" and has no "significance" to the incorporation debate.
704 posted on 03/23/2007 8:03:59 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: robertpaulsen
Did you see something that said Congress cannot prohibit the interstate commerce of machine guns? They've been doing that for over 70 years

No they have not, they've been taxing commerce in machine guns for over 70 years, and the Supreme Court has never ruled on the practice, Miller being the only National Firearms Act case to reach the Supreme Court.

Actually they've been prohibiting the commerce for 21 years, but only for newly made weapons.

705 posted on 03/23/2007 9:20:08 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: robertpaulsen
I believe I said the U.S. Constitution. And my question was "why"

Not in the part I quoted, but you did earlier. However even that's not quite true. There is such a clause, although it doesn't have exactly the same format, in Art I, Section 8. I leave it as an exercise for the reader to find it.

706 posted on 03/23/2007 9:25:41 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: robertpaulsen
Does the average soldier carry a handgun issued to him by the military as part of his weaponry? No.

Depends on your definition of "average soldier" many Vehicle crews are issued handguns, virtually all officers are, as are aircrew. But the court ruling in Miller did not say "average" it said "ordinary military equipment", which the M-9 certainly is, and the 1911 certainly was before it. Calvary and other mounted troops were routinely issued handguns. In fact that was where the term "horse pistol" comes from, the early examples were so large that the "holster" was on the saddle not on the trooper. So yes indeed handguns were, are and are likely to continue to be "ordinary military equipment".

707 posted on 03/23/2007 9:31:32 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: American_Centurion
I don't know the designation of the current issue, in my time it was called a "grease gun".

There is no current issue pistol caliber machine gun, the M-4 carbine pretty much fills that role. alt hough other armies issue the P-90 Personal Defense Weapon, and it's likely the US military may someday issue it or something similar, but it will mostly replace the handguns of support troops, some vehicle crews and so forth, not the M-4 carbine.

708 posted on 03/23/2007 9:37:41 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: Eaker; humblegunner
America is not afraid

But I bet a whole bunch of young American men with less than honorable intentions are. Or at least they should be afraid, very, very afraid.

If not of her, of her father, mother and brother, (plus "Uncle" Humblegunner, who is of the shoot and shovel and shutup about it, school of thought).

709 posted on 03/23/2007 9:51:14 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: neverdem

i appreciate that people around me own guns, altho' i do not.

my concern is how tv subtly erodes american values and the u.s. constitution.

women that i know that sit around watching tv all day, especially the women's shows, are anti-2nd amendment. in fact, hostile to the 2nd amendment.


710 posted on 03/23/2007 9:54:43 PM PDT by ken21 (it takes a village to brainwash your child + to steal your property! /s)
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To: JeffAtlanta
The SCOTUS has ruled and the federal and state governments have governed for over 200 years that the constitution does not apply bill of rights protections to the States.

Except when it does via the 14th amendment. They only use the "due process clause" to maintain the legal fiction that they are not over ruling earlier Courts, but of course they are.

711 posted on 03/23/2007 9:59:01 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: JeffAtlanta
Barron v Baltimore 1833.

Which had absolutely nothing to do with the 2nd amendment. It was "takings" case. It covered the 5th amendment. And in regards to "takings" it has indeed been overturned, gotten around or however you want to phrase it.

712 posted on 03/23/2007 10:07:12 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: Chuck Dent
My own take is that SCOTUS will ultimately rule in favor of the 2A, which then would launch an amendment process that would grant some level of regulation to the states.

Such amendments would set off the same sort of firestorm as a judical ruling that nullified the Second Amendment.

I don't believe any such amendments can be so narrowly cast as to allow some truly reasonable regulation but not infringement. Heck we have a rule now that says "shall not be infringed" which all agree applies to Congress, but that hasn't stopped them from infringing up storm, especially from '68 onwards, but also in '34.

713 posted on 03/23/2007 10:24:04 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: El Gato
Such amendments would set off the same sort of firestorm as a judicial ruling that nullified the Second Amendment.

You are absolutely correct, of course. And that's the point; this debate belongs in the civic square, not the courts.

714 posted on 03/24/2007 3:34:43 AM PDT by Chuck Dent
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To: dcwusmc
"but my preferred backup in close quarters would be a double-barreled 12 ga."

Use whatever you want. But if you want the second amendment to protect your right to use it, then, according to the Miller court, it must have "some reasonable relationship to the preservation or efficiency of a well regulated militia".

The argument is not, and has never been, about what type of weapon can be used in combat. The argument is what "arms" the second amendment protects. If you're going to reference Miller in your arguments, then you'll have to accept their criteria, whether you agree with it or not.

715 posted on 03/24/2007 6:25:27 AM PDT by robertpaulsen
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To: El Gato
So, by your definition, the second amendment would also protect the individual right to keep and bear flame throwers, shoulder-fired anti-tank weapons, hand grenades, and any other "ordinary" equipment.

"So yes indeed handguns were, are and are likely to continue to be "ordinary military equipment".

"Alternatively, they argue that handguns are military weapons. Our reading of Miller convinces us that it does not support either of these theories. Under the controlling authority of Miller we conclude that the right to keep and bear handguns is not guaranteed by the second amendment."
-- Quillici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982)

716 posted on 03/24/2007 6:43:07 AM PDT by robertpaulsen
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To: Chuck Dent
Yes. Things could be a bit "exciting" while the Law Abiding take out the trash. Consider it a "market correction" that is long over due.

Some times a tree is much healthier after a bit of "pruning".

717 posted on 03/24/2007 7:16:05 AM PDT by Dead Corpse (What would a free man do?)
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To: robertpaulsen

You STILL have not read the decision, have you? Otherwise you would have to stop this inane babbling. Oh, and since sawed-off shotguns HAVE BEEN used in combat, I guess that does, in fact, make them militia weapons.


718 posted on 03/24/2007 7:30:44 AM PDT by dcwusmc (We need to make government so small that it can be drowned in a bathtub.)
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To: Dead Corpse
Some times a tree is much healthier after a bit of "pruning".

In this case, the hedge is wildly overgrown.

As a strong 2A supporter, I can honestly see where Rudy is (was?) coming from. Cities like NYC have dramatically different demographics (density, income disparity, ethnic enclaves) than the rest of the country. As such, they were/are really penned in by a federally provided constitutional right (ie one that supersedes both state & regional laws).

However, the proper way to have gone about addressing the 2A was the way provided from in the Constitution itself: the amendment process. By using the courts as a surrogate for rapid legislative action, gun regulators have both retarded the debate & allowed potentially unsustainable trends (ie gov't growth, high density cities, welfare corrupting families, etc) to continue.

When the 2A is snapped back into place, all hell is gonna break loose. Then we'll have a real national debate on whether to amend/keep the 2A, which is where it ultimately belongs: with the people.

719 posted on 03/24/2007 7:32:42 AM PDT by Chuck Dent
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To: dcwusmc
"You STILL have not read the decision, have you?"

Why do you ask? Is the decision the Holy Grail of court decisions? Is it the final word? Is this the way it will now be forever and ever? Game over? Put it in the bank?

I'm saying -- you either put this decision in perspective or we're gonna lose, big time.

"Oh, and since sawed-off shotguns HAVE BEEN used in combat, I guess that does, in fact, make them militia weapons."

So have spears. Doesn't mean they have some reasonable relationship to the preservation or efficiency of a well regulated militia.

I told you before, the argument is not, and has never been, about what type of weapon can or has been used in combat. The argument is what "arms" the second amendment protects.

720 posted on 03/24/2007 7:49:26 AM PDT by robertpaulsen
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To: Chuck Dent
Cities like NYC have dramatically different demographics (density, income disparity, ethnic enclaves) than the rest of the country.

Humans are humans. Whether in the country, or in a City. The false sense of security in being around so many other people is what created an atmosphere of personal protection complacency. Decades worth of incremental gun control didn't help either.

Instead of making more helpless victims, places like NYC should set up public shooting ranges and encourage the law abiding to carry arms for personal protection.

721 posted on 03/24/2007 7:53:23 AM PDT by Dead Corpse (What would a free man do?)
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To: robertpaulsen
So have spears. Doesn't mean they have some reasonable relationship to the preservation or efficiency of a well regulated militia.

Spears? Of course they do. They are a weapon aren't they? They even showed us how to make an improvised spear in boot camp. Not just affixing the bayonet to the M-16, but how to use a spare boot lace to tie a knife to a stick for a bona fide spear.

A bit early to be drinking isn't it?

722 posted on 03/24/2007 7:58:07 AM PDT by Dead Corpse (What would a free man do?)
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To: dcwusmc
"Oh, and since sawed-off shotguns HAVE BEEN used in combat, I guess that does, in fact, make them militia weapons."

Try to understand how communities 'rule' in the USA. Morton Grove can decide what "arms" they will protect.

Handguns are out, spears are OK.

723 posted on 03/24/2007 8:05:23 AM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: Chuck Dent
When the 2A is snapped back into place, all hell is gonna break loose. Then we'll have a real national debate on whether to amend/keep the 2A, which is where it ultimately belongs: with the people.

It's barely debatable whether the RKBA's ~could~ be 'amended away'.

The Bill of Rights and the 14th Amendment make it clear that the peoples rights to life, liberty, or property are not to be infringed, abridged or denied, -- by any level of government in the USA.

Marshall made much the same point in Marbury, back in 1803:

"-- The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but happily, not of an intricacy proportioned to its interest.
It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish, for their future govern-ment, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected.
The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated.
The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. --"


Thus, - as we see, the fundamental principles of personal liberty in our Constitution are permanent.
Any amendments that violated those principles would be null, void, and repugnant.

724 posted on 03/24/2007 8:25:07 AM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: tpaine
Any amendments that violated those principles would be null, void, and repugnant.

Of course, which is why it would be such an important debate. Imagine an actual nation-wide initiative to repeal/amend one of the BoR! Perhaps then Americans would have to finally come to grips with the fact that this is the country we live in, not some liberal fantasy concocted to assuage metros & women.

725 posted on 03/24/2007 9:23:06 AM PDT by Chuck Dent
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To: robertpaulsen

"I'm saying -- you either put this decision in perspective or we're gonna lose, big time."

Why don't you say what you mean: You gun-grabbers will lose big time. You are anything BUT a 2A supporter. In fact you are anything but a supporter of the Constitutional Republic the Founding Dads handed off to us. So please stop trying to insinuate that YOU are some sort of Conservative, limited government advocate when your own words blow that notion out of the water every time you post. Your disdain for things Constitutional drips out of every character you post here.


726 posted on 03/24/2007 6:36:50 PM PDT by dcwusmc (We need to make government so small that it can be drowned in a bathtub.)
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To: neverdem

It is easy to explain. If the people of DC are able to own weapons they will make it difficult to buy them and state if someone is found carrying a weapon from another state will be considered a criminal.


727 posted on 03/24/2007 8:11:33 PM PDT by lndrvr1972
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To: robertpaulsen
some reasonable relationship to the preservation or efficiency of a well regulated militia".

Nice selective quote. And it is from the Syllabus, not the actual decision, it has no force of law whatsoever. (That's the clerk's summary of the decision

What the clerk actually wrote was:

The Court can not take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia; and therefore can not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon

Note : any reasonable relationship" is not the same as "must be issued to state militia units". But as I said, that language was not the court's and has no legal force.

What the court wrote was:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

BTW, that cite is to a *state* court case. Unlike the second amendment, that state Constitution had an RKBA provision that included the words "for the common defense" and still does. That the citizens of this State have a right to keep and to bear arms for their common defense". Article 1, Section 26.

728 posted on 03/24/2007 8:46:27 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: El Gato
"And it is from the Syllabus, not the actual decision, it has no force of law whatsoever."

The quote was contained in the opinion of Mr. Justice McReynolds in US v Miller.

"BTW, that cite is to a *state* court case."

Yes. And the Tennessee constitution at the time read, "that the free white men of this state have a right to keep and bear arms for their common defence."

Interesting that the Miller court would only cite one case, Aymette v Tennessee, and that case concerned a collective right. The state court concluded:

"If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them is not, therefore, secured by the constitution."

"The legislature, therefore, have a right to prohibit the wearing or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defence."

729 posted on 03/25/2007 6:51:10 AM PDT by robertpaulsen
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To: robertpaulsen
Interesting that the Miller court would only cite one case, Aymette v Tennessee, and that case concerned a collective right.

It's not surprising, since only the government was represented, and the court relied on the government's brief (well a tiny part of it), and even they could find no support for the notion that the Second Amendment itself protects only a collective right. However Aymette does not concern a "collective right" either. It concerns the scope of the right protected by the Tennessee constitution, that is to keeping and bearing arms "for the common defense", not "in the common defense".

As your quote indicates the Tennessee Constitution protects a right to keep and bear arms "for the common defense", No such limitation is stated in the Second Amendment.

The weapon in Ayemette was a Bowie Knife, which was considered not to be appropriate for use "in the common defense". (wrongly IMHO, in view of use of one or more at the Alamo by Bowie himself)

Applying the test of a state constitution, which as you've pointed out many times may be different than that of the federal Constitution, to the federal Constitutional provision is hardly appropriate, given that the "common defense" is not only not present in the Second Amendment, but the same "for the common defense" language was explicitly rejected, by the Senate, during the proceedings in Congress when the Bill of Rights was drafted. So to interpret the second amendment as implying a phrase or meaning that was explicitly rejected seems quite a feat of "interpretation".

730 posted on 03/25/2007 4:41:54 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: robertpaulsen
The quote was contained in the opinion of Mr. Justice McReynolds in US v Miller.

My bad, it was, but it was still out of context. There was Many people read the syllabus to say that a short barreled shotgun has no relationship, while the Court said "In the absence of any evidence". Big difference, especially when one considers that Miller was not represented, and was killed before the "further proceedings" could be held. (His co-defendant (in the original indictment) pleaded guilty and got probation. What do you suppose a violation of the NFA will get you today?

731 posted on 03/25/2007 8:32:37 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: robertpaulsen
The argument is not, and has never been, about what type of weapon can be used in combat.

Which is absurd, as we would not get any advancement in arms then. Only by developing new weapons and trying them out, typically well outside any explicit military setting, do we discover what works well enough to become formally adopted. Perfect example is the .50BMG rifle: initially developed as a coarse machinegun, a precision long-range rifle was developed around the ammo for sporting purposes, then the result was adopted by military snipers.

Gotta wonder why you're so he11-bent on keeping anything out of civilian hands.

732 posted on 03/27/2007 5:42:46 PM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
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To: robertpaulsen
you either put this decision in perspective or we're gonna lose, big time.

Kinda hard to put it in perspective if you haven't read it - which, by all you've posted, it seems you haven't.

And by the looks of your reasoning, you're doing everything you can to ensure we lose, big time. Heck, your reasoning on SBSs won't come out of WWII.

733 posted on 03/27/2007 5:46:23 PM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
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To: Chuck Dent

Chuck, I am wondering myself, if and when SCOTUS agrees to hear this case, if we will see the States attempt to pass lefislation that would see laws in place upon a ruling by SCOTUS the @A is indeed an individual right.

Laws in the works concerning the confiscation of firearms in a ‘disaster’ may be a precursor to a rush of new laws.

I may be wrong but I have a very good feeling that SCOTUS is going to do the right thing here. I think that might be why the NRA is a bit nervous about this. They just might be seeing the bread and butter slipping away.


734 posted on 04/05/2007 11:57:49 AM PDT by Just sayin (Is is what it is, for if it was anything else, it would be isn't.)
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