Freidman v. Highland Park (AWB)

Maestro Pistolero · Jan 31, 2015

wolfwood said:
I am pretty sure that D.C. needs to address the underlying constitutionality of the rifles at hand prior to deciding whether registration them is constitutional.

Why? Even if they are not constitutionally protected they could be not only registered (regulated), but banned. If protected, they could still be regulated.

Heller is simply a expansion of the framework established in Miller.

Click to expand...

. . . as read and reinterpreted by Heller. We now know that SBSs ARE ordinary soldier's equipment as they were contemporaneously with Miller.

According the academically honest answer to the bazooka question is arms which require a crew of two or more and bearable arms which are deadlier than a the average soldier's equipment are not protected. This is partially due to their equivalent at 1791 being issued by the state and partially due to the litigate concerns that private and/or state armies should be regulated. So anti-tank stuff and other bazooka equivalents only are issued to specialty grunts in the modern military. Thus they are not part of the ordinary soldiers equipment and not protected by the Second Amendment. That's just my two cents.

Click to expand...

I take that as an explaination of the dangerous and unusual disqualifier. . . which is where plaintiff's counsel should have steered the argument. The long standing argument for why bazookas fall outside 2A protection fell on its face (as it should have).

wolfwood · Jan 31, 2015

Miller holds it is not with in the judicial notice SBS are protected. That is not the same thing as they are not protected.

Milller actually is a fairly straight forward opinion. Miller did not file anything or show up. Accordingly we can't say SBS are protected. Go back to the lower court with these instructions to see whether they are protected assuming Miller shows up prepared.

dangerous and unusual is a time place and manner restriction on carry and has nothing to do with what weapons are protected.

Heller expands the scope of the right to bearable weapons that can be used for self defense including those that do not have a military purpose.

As to the rifles in D.C. if they are not constitutionally protected then the Court does not need to see if the governments reasoning is sufficiently important to supersede their right to not register them.

That is assuming you have a right to not register a firearm.

If the rifles are not protected then the government can do whatever it wants to them without demonstrating a reason why it should be allowed to.

When Heller refers to long standing prohibition surviving it is not given a nebulous temporal test. It just is saying here are some examples of firearms laws that are constitutional so don't worry the world is not falling. E.g. bans on carry in a courthouse will survive any test this Court will apply.

Maestro Pistolero · Jan 31, 2015

I can't wait for the court to explain away or uphold how the militia purpose announced in the amendment relates to the civilian, semi-auto version of the very small arm that the government places in the hands of every 18 year old recruit.

In other words, if a semi automatic ar15 isn't the most ideal militia arm, then what is? It's true that Heller clarified that there is a self-defense purpose to the Second Amendment, but it did not refute the militia purpose announced in the first clause. Until and unless there is a constitutional convention that says otherwise, that purpose, i.e., the ability of the government to raise a militia from civilians who have their own arms, stands undiminished.

2A protection should include any weapons which share the performance characteristics of the semi-auto AR15, as well.

BeoBill · Jan 31, 2015

An update by Dean Weingarten:
http://www.ammoland.com/2015/01/7th-circuit-court-of-appeals-to-hear-assault-weapon-ban-case/

esqappellate · Feb 1, 2015

press1280 said:
Didn't Heller II basically get stripped down to registration requirements only?

nope sustaied dc awb

Maestro Pistolero · Feb 1, 2015

esqappellate said:
nope sustaied dc awb

Which is horrifying. Was it too early, not enough foundation laid, or just judicial anti-gun bias?

At some point doesn't the efficacy of common semi-automatics for the purpose of the ability to raise a citizen militia need to be recognized? (however unlikely some think that would be). The Heller court said that the advent of modern tanks and bombers cannot change the interpretation of the right. That is the only announced purpose contained in the amendment, for chrissakes.

And what, IF ANYTHING, does shall not be infringed mean? What possible stronger language could they have used? I have not seen a single case where that unequivocal command has been given the slightest effect.

Even the Heller decision, for all its linguistic and historical inquiry, spent no time defining this very strong and unambiguous admonition. The word infringed appears in the opinion of the court less than a dozen times, mostly noting the appearance of the phrase in very old cases for historical reference, but draws no conclusions about its present day meaning to the right.

The phrase is given no weight whatsoever, not even when contemplating degree of scrutiny that should be applied.

Shall not be infringed SCREAMS strict scrutiny to this layman's ear.

press1280 · Feb 2, 2015

esqappellate said:
nope sustaied dc awb

Oh yea, I forgot. That was when Heller II was LAST at the DC Circuit.

Brooklyn · Feb 3, 2015

wolfwood said:
I am pretty sure that D.C. needs to address the underlying constitutionality of the rifles at hand prior to deciding whether registration them is constitutional.

Heller is simply a expansion of the framework established in Miller. According the academically honest answer to the bazooka question is arms which require a crew of two or more and bearable arms which are deadlier than a the average soldier's equipment are not protected. This is partially due to their equivalent at 1791 being issued by the state and partially due to the litigate concerns that private and/or state armies should be regulated. So anti-tank stuff and other bazooka equivalents only are issued to specialty grunts in the modern military. Thus they are not part of the ordinary soldiers equipment and not protected by the Second Amendment. That's just my two cents.

You conceede far too much, and without the need to do so.

Not protected would mean a ban would be sustainable under any level of review.. far more than required.

You can hold that restrictions on personal arms are subject to SS review while crew served weapons are subject to IS or even rational basis.. but to claim such arms are not protected is not supported by the historical record.. private armies were the norm of fedalism...and consistent with natural law.

Thus a training requirement for some arms could be sustained more easily than others...

I have no doubt many will give away too much in order to sound reasonable...

You know hand genades and man portable anti air weapons do not require a crew to service.. grenades are not issued... nor claymores.. but they are not hard to acquire in the service, but training is a very good idea...

Time will tell..

kcbrown · Feb 3, 2015

Maestro Pistolero said:
Which is horrifying. Was it too early, not enough foundation laid, or just judicial anti-gun bias?

At some point doesn't the efficacy of common semi-automatics for the purpose of the ability to raise a citizen militia need to be recognized? (however unlikely some think that would be). The Heller court said that the advent of modern tanks and bombers cannot change the interpretation of the right. That is the only announced purpose contained in the amendment, for chrissakes.

As I've already argued, Heller dispenses with the salutary effect of the militia clause, leaving only its restrictive effects (namely, that now weapons have to be "suitable" for the militia in order to be protected by the 2nd Amendment, but while such suitability is necessary for such protection, it is no longer sufficient). This is why courts can and will be able to get away with upholding restrictions on what otherwise would clearly be militia-suited weapons (such as machine guns). Indeed, it is precisely for the purpose of neutering the militia clause in that fashion that the Court insisted that the fit between the prefatory clause and the commandment can be (seemingly arbitrarily) poor.

And indeed, even the "common use" test is not strictly a test of what is protected, but is only a test of what is not protected. Arms that are not typically possessed by law abiding citizens for lawful purposes are not protected, but -- and this is the important part -- inverting the statement does not get you the "common use" test so many use here. Proper logical inversion of the statement gets you the statement that "arms that are protected by the 2nd Amendment are typically possessed by law abiding citizens for lawful purposes", which said another way is "if the arm is protected by the 2nd Amendment, then it will be typically possessed by law abiding citizens for lawful purposes". Which is to say, an arm that is protected will have that "typical possession" characteristic, but that does not mean that the "typical possession" characteristic means it's protected. To insist that it does is to engage in the logical fallacy of denying the antecedent.

Shall not be infringed SCREAMS strict scrutiny to this layman's ear.

No. Strict scrutiny is a recent invention of the courts. A necessary prerequisite to its application is the recognition by the court that the law infringes the right. "Shall not be infringed" means exactly that: if a law infringes the right, then it is impermissible, period. Scrutiny, even "strict" scrutiny, is clearly and unequivocally inapplicable in the 2nd Amendment context precisely because it has as a prerequisite to its application that the law in question infringes the right.

Brooklyn · Feb 3, 2015

If its common it must be protected becomes if its not common it must not be protected.. OK then..

Do not use boolean logic on nonboolean values.

And for gods sake stop pretenting the court is even capable of logic.

First they figure out what they are willing to do... then they invent an argument to justify that conslusion.

Then guys like kcbrown start treating their argument as if they are rational..

Our job is to make the court want to rule our way..

That means at a min not giving the opposition the room to pull the reverse slippery slope..

Just because an arm is protected does not mean it can't be regulated..

I can and do claim that an individual has a right to own an ICBM for alll lawful purposes.. but I can and do hold that no such lawful purpose exists.

Thus we can prevent the opposition from claiming all wespons must be banable or none are. Its crap.

I know this if we don't step up our game and stop conceedeing what we don't need to, while refusing to conceede what we must we will lose.

It is not the case that any regulation is an infringment.. if you hold that then you fall into the trap..
Its an infringment only if it fails SS.

That's what we can get, but not if we continue with this notion that in any protected arm must be unregulated..

I can sustain a ban on ICBM s under SS. I can not sustain a ban on AWB under SS. I can sustain Lic requirements under SS if only objective. Standards are used..

If the court accepts the false argument advanced by both op force and some of us..that if you can ban any arm you can ban them all, and if you can't ban all arms you can't ban any...they will pick ban them all.

Thank god and Scalia they are not that guilible...

All arms can be protected.
All regulations can be subject to SS.
And yet some arms can be banned under SS because of objective facts.

Under these priciples, which I bet we can get the court to accept.. Aar-15 bans do not pass SS. Nor may issue.

But crew served weapons due to objective characteristics, and the lack of lawful purposes can be more tightly regulated.

A total ban on machine guns would not survive SS...but higher controls might.

Ask for the moon you will get nothing...

kcbrown · Feb 3, 2015

Brooklyn said:
If its common it must be protected becomes if its not common it must not be protected.. OK then..

No. Heller talks about what is NOT protected, not what IS protected. I would cite it here but I'm not typing this on my computer. The "common use" test that is often referred to is an improper inference from what the Court actually said.

Do not use boolean logic on nonboolean values.

Boolean logic and set logic are the same in this regard, and the Court's statement in Heller involves both.

And for gods sake stop pretenting the court is even capable of logic.

First they figure out what they are willing to do... then they invent an argument to justify that conslusion.

Then guys like kcbrown start treating their argument as if they are rational..

No. You are mischaracterizing my actions here. I do not presume RATIONALITY on the part of the court. But court statements have logical implications.

And yes, the courts decide the issue first and then craft arguments to justify it after the fact. And while the court may engage in irrationality, that does not mean it will let illogical arguments from us pass. IF WE PUT FORTH ILLOGICAL ARGUMENTS, THE OPPOSITION WILL SHOOT THEM DOWN, and we will look like idiots in the process. Do you really believe the court will be impressed with us then?

Do not presume idiocy on the part of the enemy. You are much more likely to lose if you do.

Our job is to make the court want to rule our way..

That means at a min not giving the opposition the room to pull the reverse slippery slope..

And it also means not giving them an argument they can easily show to be incorrect.

Ask for the moon you will get nothing...

Ask for less than you can get and you will get less than you could have. How do you propose to know how much to ask for? Read minds, perhaps?

(Sent with Tapatalk, so apologies for the lackluster formatting)

Maestro Pistolero · Feb 3, 2015

KC, If Heller dispensed with the effect of the first clause, then please explain their statement at the end of that passage which concludes that the diminished degree of fit between the self-defense and militia purposes cannot change their interpretation of the right.

Brooklyn · Feb 3, 2015

Court statements are never boolean.

The predicate "is constitutional". allways has 3 states

Upheld, stuct, and not yet decided.

Not stuct does not mean upheld. Not yet decided does not mean upheld.

This is not debatable.

You claims are at best overbroad once you realise this.

And if you don't you may as well argue,as the oposition has, that Heller upheld licencing.

There are some to this day that insist that the 2a is a collective right..a fiction invented by Markists to justify tyranny..
It continues to this day because no one will call it what it is crap.

I intend to yield nothing.. to date not one opposition argument has been upheld.. they have simply reversed the burden of proof.

And if it stands the 2a will be only the first fundamental right to call prey to this tactic.... it is Markisist and I am not playing.

Our job is to win public support which we can not do by yeilding..

Self defense you see to the Markisist is a collective right...but couninty college and internet access ate fundamental Hunan rights..

No no and f..k no.

Feel free to belive otherwise..

I am going up the middle.

Shall not infringe does not mean shall not regulate..

If it does then we loose and op force knows it.

Now if you think shall not infiringe means shall not regulate then fight on...but not with me.. such a claim is fatal to out cause and will result in a blow back of epic proportions.

It is the single mischaracterisation at the source of our losses.

And they will continue to mount.

Until we get SS. And we can't get that unless we convince the court that any regulation that fails SS will have zero impact on public safety.. and to do that we must prove it in the court of public opinion.

And we can't do that by backing up.

kcbrown · Feb 3, 2015

Maestro Pistolero said:
KC, If Heller dispensed with the effect of the first clause, then please explain their statement at the end of that passage which concludes that the diminished degree of fit between the self-defense and militia purposes cannot change their interpretation of the right.

That statement is their justification for ignoring the militia clause for the purpose of upholding a machine gun ban. Which is to say, that statement says that they read the right as being fully independent of the militia clause, thus justifying an arbitrarily poor fit between their interpretation of the right (and thus what is protected) and the militia purpose.

It is an example of the Court doing precisely what Brooklyn said courts do: arrive at their desired conclusions first and justify them after the fact. Here, the Court wishes to preemptively uphold machine gun bans, and is justifying that by wholly divorcing the protective effect of the right from the militia purpose.

I believe the Court to be completely wrong in doing that. The militia clause should be read as stating a MINIMUM purpose, one which cannot be conflicted with no matter what. Self defense is an important justification for the right, but IMO the Court has overstepped its authority by SUBSTITUTING self defense in place of the militia purpose rather than augmenting the militia purpose with self defense.

But like it or not, that is what the Court has done in Heller.

(Sent with Tapatalk, so apologies for the lackluster formatting)

Maestro Pistolero · Feb 3, 2015

I don't agree. There is a vast difference between divorcing the first clause from the right and acknowledging that technology has created a limited degree of fit. I read the court has being very clear on that.

kcbrown · Feb 3, 2015

Brooklyn said:
Court statements are never boolean.

The predicate "is constitutional". allways has 3 states

Upheld, stuct, and not yet decided.

That's nice and all, but the practical effect is boolean, because that which is not held to be Unconstitutional is "fair game" for laws. Courts operate on the principle of "presumption of Constitutionality", and so do legislatures.

Therefore, that which is not explicitly ruled Unconstitutional is, for all practical purposes, Constitutional, and that is boolean.

And if you don't you may as well argue,as the oposition has, that Heller upheld licencing.

Heller has not upheld licensing, but it has not struck it down either, and therefore laws which involve licensing stand unscathed until they are explicitly struck down. So the practical effect is that licensing is "upheld". The only difference is with respect to future litigation.

Shall not infringe does not mean shall not regulate..

Nor am I claiming it does.

I'm saying if a law infringes then the command is that it must not stand. Scrutiny is not used to decide upon infringement, it is used to decide on whether or not the infringement is acceptable. This is why courts invoke a "two step" approach, and is precisely why scrutiny is not appropriate for 2nd Amendment analysis if you are intellectually honest about it.

Now, the courts will, of course, be intellectually dishonest about that and many other things, so it's not like my arguments here are going to change anything in the courts. Nothing will, really. Courts make up their own minds on these things and pick and choose how they want to justify it after the fact. On that we are in complete agreement, but the logical consequence of that is that how we argue will prove to be largely irrelevant, save for one thing: if we make errors, that will reduce the chance of winning, because there's always the possibility that we'll wind up in front of a court that actually listens to reason. Hence, logical errors are intolerable.

Until we get SS. And we can't get that unless we convince the court that any regulation that fails SS will have zero impact on public safety.. and to do that we must prove it in the court of public opinion.

If we manage to prove it in the court of public opinion, then it follows that we can get the law repealed through the legislature, right? Unless you believe, as I do, that the legislature no longer actually heeds the public's opinion.

We go to the courts precisely because we do not have the bulk of public opinion on our side.

kcbrown · Feb 3, 2015

Maestro Pistolero said:
I don't agree. There is a vast difference between divorcing the first clause from the right and acknowledging that technology has created a limited degree of fit. I read the court has being very clear on that.

If that were the case, then the Court would not have couched that discussion in the context of a ban on machine guns. But it did.

It should have said that if a bearable arm has a militia purpose, then it is generally off limits as regards bans. It didn't. It instead went in the opposite direction, and decided that a ban on machine guns is preemptively Constitutional and came up with a defensive argument (the fit between the right and the prefatory clause can be poor -- I read it as allowing the fit to be arbitrarily poor) to justify their decision. And that's with respect to a class of arms that isn't particularly dangerous compared with other bearable arms. If the Court were talking about regulations upon those arms, that would be one thing (as Brooklyn says, regulation and infringement aren't the same thing, though they can be, depending on how the regulation is done). But it was talking about flat-out bans.

If machine guns have a militia purpose (and are not "unusually dangerous") but nevertheless can be legitimately banned outright, then it follows that the militia clause has been stripped of its protective power as regards arms, which is precisely my argument as regards Heller. I see no logical way to argue otherwise.

Brooklyn · Feb 3, 2015

kcbrown said:
That's nice and all, but the practical effect is boolean, because that which is not held to be Unconstitutional is "fair game" for laws. Courts operate on the principle of "presumption of Constitutionality", and so do legislatures.

Therefore, that which is not explicitly ruled Unconstitutional is, for all practical purposes, Constitutional, and that is boolean.

Heller has not upheld licensing, but it has not struck it down either, and therefore laws which involve licensing stand unscathed until they are explicitly struck down. So the practical effect is that licensing is "upheld". The only difference is with respect to future litigation.

Nor am I claiming it does.

I'm saying if a law infringes then the command is that it must not stand. Scrutiny is not used to decide upon infringement, it is used to decide on whether or not the infringement is acceptable. This is why courts invoke a "two step" approach, and is precisely why scrutiny is not appropriate for 2nd Amendment analysis if you are intellectually honest about it.

Now, the courts will, of course, be intellectually dishonest about that and many other things, so it's not like my arguments here are going to change anything in the courts. Nothing will, really. Courts make up their own minds on these things and pick and choose how they want to justify it after the fact. On that we are in complete agreement, but the logical consequence of that is that how we argue will prove to be largely irrelevant, save for one thing: if we make errors, that will reduce the chance of winning, because there's always the possibility that we'll wind up in front of a court that actually listens to reason. Hence, logical errors are intolerable.

If we manage to prove it in the court of public opinion, then it follows that we can get the law repealed through the legislature, right? Unless you believe, as I do, that the legislature no longer actually heeds the public's opinion.

We go to the courts precisely because we do not have the bulk of public opinion on our side.

Enjoy.. I have work to do.

Some folks would rather explain why we will lose than fix the issue.

So be it.

You confuse infringe with implicates. Burdens with undue burden and much more.

If your guide is the current crop of idiocy from the court that's not surprising.

By definition no infringment is acceptable. If its acceptable its not an infringment period.

Any regulation is a burden. But if the burden is not an undue burden then its not an infirigment. That what scrutiny does.

Just like under 1a. Free speech exactly like.

All regulations of speech implicates the 1st amendment. Not all reglulations are an excessive burden.

The problem is that the court is not even willing to hold that all regulations on weapons implicates the 2a. And this is because they are not willing to risk not being able to regulate in the name of public Saftey. But this is crap,because both SS and IS explicitly allow such regulation provided the Gov has a real offer of proof of efficacy..

Frankly if we can't even convince our own side to use the 1a model how can we convince the court?

I am not even going to discuss the role of public opinion in the courts vs the legislature, because its a waste of time.. either you see that the courts track the ziegiest with a/lag of about 30-75 years ( recent) or about 100 - 150 ( early period) or you do not.

Frankly many would actually prefer war to compromise, and will do what they can to bring that about..

So be it.

There is a narrow window, and only a few ways to get SS. The recent decisions are still malleable.. we should be educating the courts and the public not getting sucked into the courts piss poor reasoning..

kcbrown · Feb 3, 2015

Brooklyn said:
There is a narrow window, and only a few ways to get SS. The recent decisions are still malleable.. we should be educating the courts and the public not getting sucked into the courts piss poor reasoning..

So you want "strict scrutiny", do you?

Sure about that?

A law passes "strict scrutiny" when:

The law implements a compelling government interest
The law is "narrowly tailored" to achieve that interest
The law uses the "least restrictive means"

So let's suppose the law in question is one that forbids all citizens from owning firearms, and that the claimed reason for doing so is to ensure that the citizenry cannot overthrow the government through force of arms.

The first condition is clearly met: prevention of overthrow of the government through force of arms is clearly a "compelling" government interest, as such overthrow is most likely to occur through armed means. This is why tyrants always disarm their subjects.

The second condition is met because the purpose of the interest is to prevent anyone and everyone who might at some point in the future think of participating in an armed rebellion from being able to access the arms necessary for it. Failure to do so means you'll have at least some citizens who are capable of mounting an armed insurrection, which is precisely what you're trying to prevent.

The third condition is met because there is no less restrictive means of ensuring that the citizenry does not have the arms necessary to successfully overthrow the government.

And just like that, your vaunted "strict scrutiny" proves insufficient to protect ownership of arms, much less carry in public or any other such thing.

No, for a right in which the central instrument is inherently dangerous, scrutiny is simply the wrong tool for the job if your goal is preservation of the right. You can attempt to shoehorn 1st Amendment jurisprudence into the 2nd Amendment context, but that will be our undoing in the end precisely because the subject matter is different, and those differences are critically important.

kcbrown · Feb 3, 2015

Brooklyn said:
Any regulation is a burden. But if the burden is not an undue burden then its not an infirigment. That what scrutiny does.

Perhaps. That's actually a good point. I like how you're thinking with respect to that, but I'm afraid it's not enough. Not for a right such as the one under discussion. It works fine for rights such as free speech, but not for arms.

ETA: However, it does not follow that deciding whether or not infringement has taken place is in fact what scrutiny does. This is so because to infringe a right means to compromise it in some substantial way. Another way of saying that is that an infringement occurs when the right is substantially burdened. Whether or not a law substantially compromises a right is independent of whether or not the law satisfies some form of scrutiny, as scrutiny automatically places government interest above the right in question and asks only if the law adheres to certain rules (where the rules in question are determined by the method of scrutiny). That is true even for "strict" scrutiny, wherein the law automatically wins if it is the "least restrictive means" of achieving the "compelling" government "interest", no matter what the right in question is. Hence, scrutiny is, especially in the 2nd Amendment context, more suitable for deciding issues where the law in question "plays in the sandbox" of the right, and perhaps even burdens it some, but not when it burdens the right substantially. Proper regulation generally "plays in the sandbox" of the right, and may even burden it, but it cannot substantially burden it without infringing upon it in the general sense.

If we fail to ask for something that will protect the right sufficiently, then the protection we get will be insufficient and the right will ultimately be extinguished. Beware that what you ask for is not sufficient.

Freidman v. Highland Park (AWB)

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