Third Circuit Upholds Magazine Law (Great Disent)

Occam · Dec 13, 2018

ed bernay said:
As I seem to recall, the first part of the second amendment reads "A well regulated Militia, being necessary to the security of a free State...". From what I read "well regulated" at the time the 2nd amendment was written meant in good working order. Does that not mean well trained and well supplied?

What the founders were saying was that (despite many arguments to the contrary at the time) it turned out that a standing professional quality military was going to be necessary to protect the growing new nation. But that unlike the life they’d just led under the British crown, the existence of such a well-regulated force could not be used by anyone in government as an excuse to infringe on the individual right to keep and bear their own arms. The 2A doesn’t establish a militia or set any standards for the personal possession of arms. Exactly the opposite! It says your right is protected even if there IS a local, or state, or national militia.

teratos · Dec 13, 2018

ed bernay said:
I understand the difference between the prefatory and operative clause. I understand that the prefatory clause is not a restricting part of the amendment. But it does explain that the founders viewed the organized and unorganized militia as being trained to resist an oppressive government and for self defense. My comments are meant as suggesting another strategy to undermine the anti's current success in the courts. We are not going to win going from 200+ years of anti 2nd amendment laws to zero laws with one case. Didn't Alan Gura throw full auto weapons under the bus in Heller because that fight is for another day?

Occam stated it well. There is nothing vague about "The Right of The People to keep and bears arms shall not be infringed". Nothing about training is in there. The Framer's hoped that people would be well versed in the functioning of their arms, and proficient in their use. They did not REQUIRE it.

Gura didn't throw full auto under the bus. The Heller decision did not address full auto weapons because that is not what the case was about. Gura couldn't put FA in there even if he had a burning desire to do so. Court decisions are very narrowly tailored.

ed bernay · Dec 13, 2018

Thanks I appreciate both of your perspectives. It doesn't change my mind with regards to the strategy to undermine the antis "training" arguments. We keep losing because the courts are applying rational basis dressed up as intermediate scrutiny and using "training" as the excuse. In my opinion spelling out the training that the average police officer receives and then attacking it with a plaintiff that has exceeded that minimal training actually forces the court to prove it with data and not just state that police are better trained. You may disagree but I don't see why it would be worse than losing now. If the police and citizens are made equal by the courts with regards to training and equipment, then future legislation will bound police and they maybe less likely to support it.

Occam - Do you have a source for your explanation? I would like to read up on it further.

Teratos - I know Heller was not about full auto weapons but from what I recall, maybe it was during oral argument, Gura acknowledged that full auto weapons were not protected. I remember because I was not happy about it.

Docster · Dec 18, 2018

There are laws, then there is enforcement. This one will be tricky

https://www.ammoland.com/2018/12/new-jersey-magazine-ban-goes-into-effect/#axzz5a4DKlHH0

https://www.thenewamerican.com/usne...e-refuse-to-rule-out-door-to-door-disarmament

BeoBill · Dec 18, 2018

lemmdus said:
When that was going on I didn't support it then because I knew darn well LEOs have NO interest in helping us peons get CCW Permits much less having the same ability as they do.

Doobie said:
That's what they want...for the mags to be locked away until people get too old and feeble to utilize them. By that time, ALL instead of some of the children will have been indoctrinated with the govt's liberal agenda. When they throw your old carcass in the ground, the mags you had locked away for SHTF will have no value to anyone and will be destroyed.

teratos said:
Occam stated it well. There is nothing vague about "The Right of The People to keep and bears arms shall not be infringed". Nothing about training is in there. The Framer's hoped that people would be well versed in the functioning of their arms, and proficient in their use. They did not REQUIRE it.

Gura didn't throw full auto under the bus. The Heller decision did not address full auto weapons because that is not what the case was about. Gura couldn't put FA in there even if he had a burning desire to do so. Court decisions are very narrowly tailored.

It seems that we are not protected by the police - it's been reaffirmed.

Cops and schools had no duty to shield students in Parkland shooting, says judge who tossed lawsuit
https://thisainthell.us/blog/?p=83558

So tell me again why WE cannot defend ourselves on a par with the other citizens who just happen to have a badge.

fidelity · Dec 18, 2018

BeoBill said:
It seems that we are not protected by the police - it's been reaffirmed.

Cops and schools had no duty to shield students in Parkland shooting, says judge who tossed lawsuit

https://thisainthell.us/blog/?p=83558

So tell me again why WE cannot defend ourselves on a par with the other citizens who just happen to have a badge.

Just read your link, and not arguing with your point, but raising a general question. If the judge is ruling that the law enforcement officer's job is not to protect the public but to uphold the law, isn't stopping someone committing a crime, like shooting and killing civilians, part of upholding the law? Trying to understand this legal two-step. Maybe he's saying that crime victims don't have standing.

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CrabcakesAndFootball · Dec 18, 2018

fidelity said:
Just read your link, and not arguing with your point, but raising a general question. If the judge is ruling that the law enforcement officer's job is not to protect the public but to uphold the law, isn't stopping someone committing a crime, like shooting and killing civilians, part of upholding the law? Trying to understand this legal two-step. Maybe he's saying that crime victims don't have standing.

Sent from my Pixel XL using Tapatalk

I’ll engage in some uninformed speculation. I assume the judge held the officer owed no duty in tort to the students. When and whether a duty of care attaches is a legal issue that often comes up in the context of negligence claims. I’m sure that’s clear as mud.

fidelity · Dec 18, 2018

CrabcakesAndFootball said:
I’ll engage in some uninformed speculation. I assume the judge held the officer owed no duty in tort to the students. When and whether a duty of care attaches is a legal issue that often comes up in the context of negligence claims. I’m sure that’s clear as mud.

Thanks. I didn't know the terminology but understand the concept. Although it might not come from the Broward County Sheriff's office, hoping that executive oversight in Florida will clean up that department a bit.

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babalou · Dec 18, 2018

as stated in another thread a while ago

ed bernay said:
Thanks I appreciate both of your perspectives. It doesn't change my mind with regards to the strategy to undermine the antis "training" arguments. We keep losing because the courts are applying rational basis dressed up as intermediate scrutiny and using "training" as the excuse. In my opinion spelling out the training that the average police officer receives and then attacking it with a plaintiff that has exceeded that minimal training actually forces the court to prove it with data and not just state that police are better trained. You may disagree but I don't see why it would be worse than losing now. If the police and citizens are made equal by the courts with regards to training and equipment, then future legislation will bound police and they maybe less likely to support it.

Occam - Do you have a source for your explanation? I would like to read up on it further.

Teratos - I know Heller was not about full auto weapons but from what I recall, maybe it was during oral argument, Gura acknowledged that full auto weapons were not protected. I remember because I was not happy about it.

With respect to training..... a member here a while ago stated that probably 90% of the people on this forum continuously shoot and are probably marksman or better. Aheckuvalot more training that the average cop...... wish I could find that post to give the person his credit. Sorry

teratos · Dec 18, 2018

babalou said:
With respect to training..... a member here a while ago stated that probably 90% of the people on this forum continuously shoot and are probably marksman or better. Aheckuvalot more training that the average cop...... wish I could find that post to give the person his credit. Sorry

True. A lot of us shoot a LOT more than most LEO. A lot of people here can make 1000 + meter shots. A lot of people here have FA guns. I know more than one person who has more than on Ma Deuce. These morons are barking up the wrong tree. If WE were the problem you’d know it.

babalou · Dec 18, 2018

exactly

teratos said:
True. A lot of us shoot a LOT more than most LEO. A lot of people here can make 1000 + meter shots. A lot of people here have FA guns. I know more than one person who has more than on Ma Deuce. These morons are barking up the wrong tree. If WE were the problem you’d know it.

100% my friend.

ed bernay · Dec 18, 2018

babalou said:
With respect to training..... a member here a while ago stated that probably 90% of the people on this forum continuously shoot and are probably marksman or better. Aheckuvalot more training that the average cop...... wish I could find that post to give the person his credit. Sorry

This is my point. It seems to me that court decisions just refer to police training as the reason why they should have +10 magazines and nationwide reciprocity and citizens cannot. I have never seen a plaintiff's filing or a court's decision spell out the training/annual qualification that the average police officer receives to prove that their claim of the average police officer is much more qualified to have more rights than the rest of us. Tens of thousands of Americans take training at Gunsight, Front Site, Thunder Ranch etc. and shoot much more often at the range than the average police officer. To say that Americans are not as qualified and trained is intellectually dishonest. It is not logistically possible for cities like NYC to pay for and train their officers like thousands of Americans pay for themselves every year. I just wish our side would call them out on their BS.

babalou · Dec 18, 2018

one thing though

ed bernay said:
This is my point. It seems to me that court decisions just refer to police training as the reason why they should have +10 magazines and nationwide reciprocity and citizens cannot. I have never seen a plaintiff's filing or a court's decision spell out the training/annual qualification that the average police officer receives to prove that their claim of the average police officer is much more qualified to have more rights than the rest of us. Tens of thousands of Americans take training at Gunsight, Front Site, Thunder Ranch etc. and shoot much more often at the range than the average police officer. To say that Americans are not as qualified and trained is intellectually dishonest. It is not logistically possible for cities like NYC to pay for and train their officers like thousands of Americans pay for themselves every year. I just wish our side would call them out on their BS.

I have seen those shows on TV where police departments do send their specialized forces, like swat and snipers to training. they even have competitions. Now for the regular cops, not so much, unless they pay for it themselves. I am sure a lot do, perhaps.

rbird7282 · Dec 18, 2018

ed bernay said:
I'd say we have been incrementally losing our rights since the founding. Not that I agree with it but the concept of reciprocity itself recognizes that in most states, we currently beg permission to bear arms and that if we want to cross state lines the states have to recognize our permission slip. Realistically, do you think we will get reciprocity without some sort of training requirement? I don't. I didn't say this was the end of the fight. Its just the beginning. The only way in my view to address the arguments we seem to be losing in the courts is to mitigate the antis argument that citizens are not qualified because they are not as "well trained" as the average police officer. As I seem to recall, the first part of the second amendment reads "A well regulated Militia, being necessary to the security of a free State...". From what I read "well regulated" at the time the 2nd amendment was written meant in good working order. Does that not mean well trained and well supplied?

Realistically we’re not going to get national reciprocity period. Antis won’t vote for it regardless of the training level. The mere idea of national reciprocity scares the crap out of them. It’s about control, nothing else. Besides, there are too many Republicans who don’t have the balls to pass it anyway. Establishment Republicans aren’t any better than the Democrats.
Well regulated does mean well trained and supplied, but NOT by under the force of law by the government

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jcutonilli · Dec 19, 2018

BeoBill said:
It seems that we are not protected by the police - it's been reaffirmed.

Cops and schools had no duty to shield students in Parkland shooting, says judge who tossed lawsuit
https://thisainthell.us/blog/?p=83558

So tell me again why WE cannot defend ourselves on a par with the other citizens who just happen to have a badge.

fidelity said:
Just read your link, and not arguing with your point, but raising a general question. If the judge is ruling that the law enforcement officer's job is not to protect the public but to uphold the law, isn't stopping someone committing a crime, like shooting and killing civilians, part of upholding the law? Trying to understand this legal two-step. Maybe he's saying that crime victims don't have standing.

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We as a society are protected by the police. You or I or any specific individual are not. The judge's ruling addresses this fact. To my knowledge this fact has not been argued in any of the 2A cases discussed on this forum.

It seems pretty common sense. The police cannot be everywhere nor can they actually prevent anything from happening.

Bob A · Dec 19, 2018

jcutonilli said:
We as a society are protected by the police. You or I or any specific individual are not. The judge's ruling addresses this fact. To my knowledge this fact has not been argued in any of the 2A cases discussed on this forum.

It seems pretty common sense. The police cannot be everywhere nor can they actually prevent anything from happening.

The situation becomes a lot more cloudy when the police are, in fact, at hand, but refrain from performing their duty, to the fatal detriment of specific individuals. I would surmise there are some tortious grounds underfoot in a situation like that.

pcfixer · Dec 19, 2018

jcutonilli said:
We as a society are protected by the police. You or I or any specific individual are not. The judge's ruling addresses this fact. To my knowledge this fact has not been argued in any of the 2A cases discussed on this forum.

It seems pretty common sense. The police cannot be everywhere nor can they actually prevent anything from happening.

All the more interest in the argument "States interest in public safety" is NOT really true and never has been.
WE are responsible for our own safety and yes in public too.

https://legal-dictionary.thefreedictionary.com/State+Interest

ed bernay · Dec 19, 2018

Bob A said:
The situation becomes a lot more cloudy when the police are, in fact, at hand, but refrain from performing their duty, to the fatal detriment of specific individuals. I would surmise there are some tortious grounds underfoot in a situation like that.

The NYPD, NY Courts and NY Politicians argue that citizens have no right to carry guns for self defense because of the police but when they are attacked, even in the presence of NYPD officers who don't act, they argue that citizens have no right to police protection in the following lawsuit.

https://bklyner.com/judge-rules-tha...-being-stabbed-in-plain-sight-sheepshead-bay/

http://gothamist.com/2013/07/28/subway_stabbing_victim_im_devastate.php

jcutonilli · Dec 19, 2018

Bob A said:
The situation becomes a lot more cloudy when the police are, in fact, at hand, but refrain from performing their duty, to the fatal detriment of specific individuals. I would surmise there are some tortious grounds underfoot in a situation like that.

No. see https://en.wikipedia.org/wiki/Maksim_Gelman_stabbing_spree
Same thing happens when they are present. No duty to protect individuals means no duty to protect individuals.

jcutonilli · Dec 19, 2018

pcfixer said:
All the more interest in the argument "States interest in public safety" is NOT really true and never has been.
WE are responsible for our own safety and yes in public too.

https://legal-dictionary.thefreedictionary.com/State+Interest

I depends on what you mean by public safety. They certainly have a duty to protect the general public's safety. This is why they win most 2A cases. What is not really true is that this means they protect everyone in all situations. They do not have a duty protect individuals. What is unclear is where the line between an individual and the public in general.

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