Kolbe en banc decision

[daggo66]

I did 4 1/2 years ago it was blown off. Hmm just like the democrats



Because it never made it to the ballot



Yes after the show we were at . With the Anti LT Gov Brown saying there will be a AR behind every tree and he still lost tells me the referendum would of abolished FSA 2013

Brown didn't lose because he was strong on gun control and Hogan didn't win because he was pro gun. This election was won and lost purely on the economy.

 

[FMD]

If the referendum would have won we would already have a conservative majority in the State legislature and would not need a referendum.

You just summed this issue up perfectly and succinctly.

It's mathematical at this point. We are hopelessly outnumbered in Maryland.

 

[Magnumst]

The paragraph about the "M-16 rifles and the like" is about weapons that are most useful in military service. You should note the plural of weapon, which means they are referring to more than one weapon type. I am reading the entire paragraph to determine what weapons that are most useful in military service means. The third sentence provides the context. Effective militias require sophisticated weapons that are unusual in society (consistent with previous paragraph about dangerous and unusual weapons). The fourth sentence provides examples of sophisticated weapons (tanks and bombers) and states small arms are not effective against sophisticated weapons. The fifth sentence states that this does not matter. The second sentence refers back to the NFA paragraph.

The term M-16 rifles and the like would seem to be connected to the NFA paragraph via the second sentence. It seems to clarify that the small arms referred to in both paragraphs do not apply to NFA items.

I do not agree that the meaning of the sentence changes depending on whether like refers to M-16 rifles or to useful military weapons. This is because like means things that are similar.

I expect Kolbe to point out things like this because that is the position that the state took. You can't have them because they are weapons of war.

Does this then open the door to more laws to include any "arms" used or issued by the military? IE, shot guns, 1911's, ect

 

[dblas]

First, I'm incredibly disappointed by this refusal of cert. Not really surprised, just disappointed.

MSI has been as effective as any organization could be in Maryland. FSA 2013, spent shell casings, and a dozen other infringing laws would have been worse without MSI. Remember they can oppose laws but not politicians.

Start your own group. Create your own approach. If it's effective, I'll support it.

THIS, Absolutely this, who says everyone has to do the same thing? I and most of the rest of us don't care what or how anyone does something, so long as they DO SOMETHING.

Otherwise, get on board with one of the groups that's carrying the water (or the signs).

Better yet, join one, become an active member, then become a member of leadership and change the direction if you don't like it.

None of the above is directed at HP, just piggybacking on his message.

 

[dblas]

You just summed this issue up perfectly and succinctly.

It's mathematical at this point. We are hopelessly outnumbered in Maryland.

And yet, we continue to pick up seats in the House (7 and 7) and Senate (draw at lost 2, gained 2) over the last two elections. We need 7 more in the House to hold a veto and 5 in the Senate to do the same thing. We only need 3 more in the Senate to prevent cloture.

 

[fidelity]

Brown didn't lose because he was strong on gun control and Hogan didn't win because he was pro gun. This election was won and lost purely on the economy.

Yep. People don't seem to get this essential truth. Gun control isn't an issue that is deterministic for many Democratic voters in selecting a candidate. On the hand, support of gun control is more of a negative among Republican voters. Brown's ad campaign of an AR-15 behind every tree didn't cost Hogan votes or bring votes to Brown. Hogan's anti tax and pro business growth position on the other hand was hugely popular, esp pointing out all the regulations and taxes created under the O'Malley administration. If the Democrats focus on gun control as a primary issue in campaigning against Hogan in the next election, they will be throwing away their ad dollars. Better for them if they attack him for not spending enough on Maryland schools, or something that resonates more deeply with their voter base.

Sent from my Pixel XL using Tapatalk

 

[Rack&Roll]

Hush, chile!

well, yeah, they probably know that. carry on!

 

[kcbrown]

The paragraph about the "M-16 rifles and the like" is about weapons that are most useful in military service. You should note the plural of weapon, which means they are referring to more than one weapon type.

Correct. This is why my reading is that the phrase "most useful in military service" refers to a comparison against other uses, not against other weapons. I only brought up the other meaning just in case that meaning is what you were using. Apparently it's not, so we're not in disagreement on this, at least.

I am reading the entire paragraph to determine what weapons that are most useful in military service means. The third sentence provides the context. Effective militias require sophisticated weapons that are unusual in society (consistent with previous paragraph about dangerous and unusual weapons).

No. Effective militias may require sophisticated weapons that are unusual in society. Whether they do or not is not definitive.

The fourth sentence provides examples of sophisticated weapons (tanks and bombers) and states small arms are not effective against sophisticated weapons.

It states that they might not be.

The fifth sentence states that this does not matter. The second sentence refers back to the NFA paragraph.

Yes.

The term M-16 rifles and the like would seem to be connected to the NFA paragraph via the second sentence. It seems to clarify that the small arms referred to in both paragraphs do not apply to NFA items.

In what way are the arms that second paragraph in Heller discusses not NFA items, seeing how the entire point of the NFA paragraph was to say that the Miller test does not mean that weapons "most useful in military service" are necessarily protected by the 2nd Amendment (since that would be a "startling reading")?

The point of the two paragraphs is to say that even though NFA items are exempt from 2nd Amendment protection, and that such exemption might detach the protected right from the prefatory clause and make the right unsuitable for the purpose stated by the prefatory clause, the Court's interpretation of the right nevertheless stands. The purpose of these paragraphs is to justify upholding the NFA in the face of the 2nd Amendment's prefatory clause.

I do not agree that the meaning of the sentence changes depending on whether like refers to M-16 rifles or to useful military weapons. This is because like means things that are similar.

Yes, exactly. The meaning of the sentence is the same. It is the same whether or not you include the part in between the dashes. And that's my point: the weapons being discussed by the Supreme Court in Heller are those weapons "most useful in military service" and only those weapons. The AR-15 does not qualify as such, because if it did, it would be in use by the military.

I expect Kolbe to point out things like this because that is the position that the state took. You can't have them because they are weapons of war.

Kolbe did point that out:

Nowhere does any court imply that firearms that are similar to those used by the military are without Second Amendment protection. The Heller Court’s note regarding the M-16 does not support the State’s argument, as it is undisputed that the Prohibited Firearms are not fully automatic. JA 2739. Just as the Court in Heller provided a bright-line distinction between commonly owned arms and dangerous and unusual arms, it also has recognized a bright-line distinction between fully-automatic firearms like the M-16 and semi-automatic firearms like the AR-15, see Staples v. United States, 511 U.S. 600 (1994), which has been the basis for the longstanding regulation of automatic firearms in the National Firearms Act for 80 years. Heller, 554 U.S. at 628.

This is not the first time you seem to have presumed incompetence on the part of the plaintiffs. Clearly you aren't arguing from an informed position here, else you wouldn't have missed the above. Before you claim that the plaintiff hasn't done something, maybe you should actually go check first.

One other thing: this whole "weapon of war" thing seems to have originated with the dissenting judge (King) in the original 4CA panel decision. Which is to say, near as I can tell (and I have not looked exhaustively), it is a judge, not the state, that introduced the "weapon of war" argument. The state then makes use of that later. But as you can see, Kolbe did not ignore it.

 

[EL1227]

Lest we forgot ...

We must marginalize MD's #1 Enemy of 2A ...

 

[Not_an_outlaw]

Brown didn't lose because he was strong on gun control and Hogan didn't win because he was pro gun. This election was won and lost purely on the economy.

I disagree with that. I think is was socialism versus democracy. The democrats are out of control. That coupled with the federal socialism bleeds over to state elections well.

 

[jcutonilli]

I don't think you understand what I am saying. Your reading it just like the en banc. If we accept your premise that the "weapons most useful in military service" is about uses and not about weapons, then the AR-15 is excluded also. The most useful mode of the M-16 is the semi-automatic mode. Additionally being useful does not imply that it needs to be in use. If not, are you trying to argue that obsolete machine guns somehow have 2A protection because they are no longer in use?

I do believe that the term is referring to weapons and not uses. It refers to a range of weapons because it is plural.

I agree that Heller was less definitive about things in the other sentences, but fail to understand how that changes anything. Explain how these other sentences help us understand what is included and what is excluded.

The point about the NFA paragraph is to emphasize that the 2A applies to the type of arm that one would keep in the home and bring to militia duty. They specifically mention small arms in that paragraph.

I agree that Kolbe made a distinction between the M-16 and the AR-15. What they did not do was address why the M-16 was excluded, but the AR-15 should have 2A protection. The state indicated that the semi-automatic mode is the more useful mode.

I have not claimed that the weapon of war originated with the state. It is simply a summary of the state's position and reflects what Frosh said in his press release yesterday.

 

[kcbrown]

I don't think you understand what I am saying.

Perhaps not. So there are at least 3 possible meanings of the phrase.

The first is that the arms in question are more useful in military service than in any other use.

The second is that the arm in question is more useful in military service than any other arm.

The third is that the arms in question are, among the arms used by the military or available to the military, the arms the military finds to be more useful to them than the others, and thus the ones the military currently uses.


Which of those do you mean?

Your reading it just like the en banc.

Not quite. The en banc panel is reading the section in question in the alternative form I described, wherein "and the like" is applied to "weapons" in the phrase "weapons most useful in military service" and not to the "M-16s" example of "weapons most useful in military service" specifically. Which is to say, they read that sentence thusly: "It may be objected that if weapons that are most useful in military service, and their like, may be banned, then the Second Amendment right is completely detached from the prefatory clause."

If we accept your premise that the "weapons most useful in military service" is about uses and not about weapons, then the AR-15 is excluded also.

That doesn't follow. The AR-15 is more heavily used by the civilian population than any other group of people, and is more heavily used for hunting and target shooting than for military duty. If it were more useful for military purposes than for those things, particularly in comparison with other weapons available to the military, then it would be used more for military purposes than for those things, but it's not. But additionally, it never has been.

The most useful mode of the M-16 is the semi-automatic mode. Additionally being useful does not imply that it needs to be in use. If not, are you trying to argue that obsolete machine guns somehow have 2A protection because they are no longer in use?

Obsolete machine guns would have 2A protection if they weren't "dangerous and unusual". Usefulness for military service isn't the only exclusion mechanism.

Consider the Mauser model 98 and its many derivatives. It was initially in heavy military use, being used as a primary battle rifle during the period of time following its introduction, but that use has declined substantially and now its descendants and rifles similar to it are used by the military primarily for sniper duty (see, e.g., the Remington 700). Are those rifles protected by the 2nd Amendment? If one insists that prior usefulness for military duty is what dictates that, then they clearly cannot be. But that would be true for essentially every firearm in existence. Essentially all firearms trace their lineage back to some model which was used primarily for military duty. This is why "and the like" cannot expand the "most useful for military service" attribute -- it applies only to the example given (M-16s), and only for the purpose of illustrating the rest of the sentence, that being arms which are "most useful in military service". Put another way, any arm that is not "most useful in military service" is automatically covered by the 2nd Amendment (unless there is some other exclusion that applies to it, e.g. "dangerous and unusual"), even if it was at one time "most useful in military service".

No valid reading of the Supreme Court's decisions can render the 2nd Amendment powerless, but that is precisely what Kolbe stands for.

I do believe that the term is referring to weapons and not uses. It refers to a range of weapons because it is plural.

It is referring to both weapons and uses. "Most useful for military service" is an attribute of the weapons in question. "Useful" obviously must imply use or at least potential use.

I agree that Heller was less definitive about things in the other sentences, but fail to understand how that changes anything. Explain how these other sentences help us understand what is included and what is excluded.

Frankly, I think Heller is a mess. Worse, I think it's an intentional mess. The Supreme Court is perfectly capable of writing decisions that are unambiguous. But as intentionally ambiguous as Heller may be, I believe the interpretation in Kolbe to be well beyond a reasonable misunderstanding, well beyond a mere mistake. It has all the flavor of a maliciously intentional misreading, one which looks for the worst possible way to misread the decision.

The point about the NFA paragraph is to emphasize that the 2A applies to the type of arm that one would keep in the home and bring to militia duty. They specifically mention small arms in that paragraph.

No, the point of the NFA paragraph is to emphasize that the prefatory clause does not expand the reach of the 2nd Amendment to cover NFA items, even if such expansion is necessary for the militia to be able to perform its duty as outlined in the prefatory clause.

If the purpose of the paragraph is what you claim, then it would render the 2nd Amendment null and void. The reason is that one can only keep in the home and bring to militia duty that which one is not forbidden to own. If the reach of the 2nd Amendment only covers those arms which one can keep in the home and bring to militia duty, then the 2nd Amendment cannot provide any protection from the government at all because the law defines what one can and cannot own (and thus bring to militia duty) in the first place.

I agree that Kolbe made a distinction between the M-16 and the AR-15. What they did not do was address why the M-16 was excluded, but the AR-15 should have 2A protection.

Did you not read the brief? Kolbe made the distinction plain: the M-16 is an automatic weapon that has a semi-automatic mode, and is covered by the NFA and beyond the reach of the 2nd Amendment because of its automatic mode. The AR-15 does not have an automatic mode, and that is why it is protected by the 2nd Amendment. But further, the brief goes on to explain that what distinguishes protected firearms from unprotected ones is whether or not they are unusual or uncommon. Firearms which are clearly in common use are clearly protected.

Honestly, you're acting as if the plaintiffs are morons here.


Now, I do not necessarily agree with the plaintiffs on that (at least with respect to the notion that an arm that is not in common use is one that is not protected), because it presents a bootstrapping problem: a given arm must be more than merely uncommon to be beyond the reach of the 2nd Amendment, else the set of firearms that are protected would be frozen in time. No, some additional attribute is necessary beyond that, and it seems that "dangerous" must have a connotation beyond merely that the weapon in question can cause harm to another -- that is a characteristic of all weapons, and thus is tautological in the 2nd Amendment arena unless given some additional meaning. I would suggest that "dangerous" must mean, at a minimum, "more dangerous than those arms commonly or typically held by the people". This seems to be what the Supreme Court meant in Heller, as evidenced by what one of its majority had to say on the subject later:

As to “dangerous,” the court below held that a weapon is “dangerous per se” if it is “ ‘designed and constructed to produce death or great bodily harm’ and ‘for the purpose of bodily assault or defense.’” 470 Mass., at 779, 26 N. E. 3d, at 692 (quoting Commonwealth v. Appleby, 380 Mass. 296, 303, 402 N. E. 2d 1051, 1056 (1980)). That test may be appropriate for applying statutes criminalizing assault with a dangerous weapon. See ibid., 402 N. E. 2d, at 1056. But it cannot be used to identify arms that fall outside the Second Amendment. First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes. See Heller, supra, at 627 (contrasting “‘dangerous and unusual weapons’” that may be banned with protected “weapons . . . ‘in common use at the time’”). Second, even in cases where dangerousness might be relevant, the Supreme Judicial Court’s test sweeps far too broadly. Heller defined the “Arms” covered by the Second Amendment to include “‘any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.’” 554 U. S., at 581. Under the decision below, however, virtually every covered arm would qualify as “dangerous.”

Were there any doubt on this point, one need only look at the court’s first example of “dangerous per se” weapons: “firearms.” 470 Mass., at 779, 26 N. E. 3d, at 692. If Heller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous. 554 U. S., at 636. A fortiori, stun guns that the Commonwealth’s own witness described as “non-lethal force,” Tr. 27, cannot be banned on that basis.

The above doesn't come right out and say what I said, but this sentence is telling:

Under the decision below, however, virtually every covered arm would qualify as “dangerous.”

If the notion that virtually every covered arm would qualify as "dangerous" is unsettling to one who joined the majority in Heller, then the meaning of the term "dangerous" must be something beyond that which would result in virtually all arms being covered by the term. More importantly, it means that firearms of the types commonly held by the people, and other arms that present roughly the same degree of danger or less, must not be considered "dangerous" for 2nd Amendment purposes.

The state indicated that the semi-automatic mode is the more useful mode.

Useful or not, "most useful in military service" is an attribute of the weapon, not of the characteristics of the weapon. It may be that other weapons share characteristics of those chosen by the military, but that alone cannot render those weapons beyond the reach of the 2nd Amendment, even if the characteristic of the weapon in question is, of the characteristics the weapon has, the one that happens to be the most useful to the military, since virtually all weapons share such characteristics with those chosen by the military. To insist otherwise is to insist, at a minimum, that the few weapons left that might have 2nd Amendment protection are those that are not terribly effective for self defense, since the characteristics the military values most in weapons are precisely those which make those weapons effective.


To illustrate why the characteristic that is "most useful in military service" cannot be what distinguishes whether an arm is protected by the 2nd Amendment or not, there is a characteristic of the M-16 that is even more useful to the military than its semi-automatic fire mode: the fact that it fires bullets. If you doubt this, you can ask the military how interested they would be in the M-16 if it didn't fire bullets, and suffer the raucous laughter that would ensue. By the reasoning of the Kolbe court, that characteristic would be sufficient to disqualify a weapon from 2nd Amendment protection, rendering it a "weapon of war". After all, if the military usefulness of the semi-automatic mode of an AR-15 is sufficient to disqualify it from 2nd Amendment protection, then obviously any characteristic that is even more useful to the military would also be disqualifying.

I have not claimed that the weapon of war originated with the state. It is simply a summary of the state's position and reflects what Frosh said in his press release yesterday.

Fair enough.

 

[jcutonilli]

I believe it means a range of weapons that have a significant amount of military usefulness. That would be similar to your second choice.

I believe all Scalia was trying to say with the sentence is that just because an arm has a lot of military value does not mean it can't be banned. There is now a lot of advanced weaponry that does not have the same dual use like small arms. The stuff that does not have some kind of dual use is not entitled to 2A protection. This include tanks and bombers and NFA items. Scalia is pointing out the traditional infantry role the citizen played in a militia.

A bolt action (eg Mauser 98) would be protected because it is a traditional infantry arm that is not an NFA item. An obsolete machine gun is not protected because it would still be considered an NFA item.

I should clarify my statement about Kolbe's position. They justified the protection of AR-15s by saying they are commonly used. What they did not do is provide a reason why militarily useful weapons have 2A protection. It opens an extremely large hole because just about any arm can have some military usefulness. I believe the third sentence is important to demonstrate that small arms are not the militarily useful weapon the 4CA makes it out to be.

I would not insult morons by comparing them to Kolbe's lawyers. Thomas did not dissent in this case like he did in Friedman. I believe it is because it was poorly argued by Kolbe.

 

[jcutonilli]

You like to add stuff after the fact.

I believe common use and dangerous and unusual mean similar things. You need to be able to articulate a legitimate societal use. Common literally means relating to a community at large (ie society). So long as you are using the arm within the norms of society there is no danger to society nor is it unusual given that society defines what is unusual.

 

[kcbrown]

I believe it means a range of weapons that have a significant amount of military usefulness. That would be similar to your second choice.

But most weapons have a "significant amount of military usefulness". If that's the litmus test of a weapon falling outside the scope of the 2nd Amendment, then most weapons, even those generally held by the citizenry, would not be protected.

I believe all Scalia was trying to say with the sentence is that just because an arm has a lot of military value does not mean it can't be banned.

That's one way of putting it, certainly, but I think it's clear that the purpose behind those paragraphs was to protect the NFA.

There is now a lot of advanced weaponry that does not have the same dual use like small arms. The stuff that does not have some kind of dual use is not entitled to 2A protection. This include tanks and bombers and NFA items.

Right. But it's worth asking: why do NFA items fall outside of 2A protection? Mere military usefulness isn't sufficient, because handguns are militarily useful (enough so that the military explicitly contracts with manufacturers for supplies of them).

Scalia is pointing out the traditional infantry role the citizen played in a militia.

I agree. But the traditional infantry role demands that the militia be effective as an infantry force. Scalia is, in the paragraphs we're discussing, effectively neutralizing the militia clause of the 2nd Amendment, something that contradicts Marbury v Madison.

A bolt action (eg Mauser 98) would be protected because it is a traditional infantry arm that is not an NFA item. An obsolete machine gun is not protected because it would still be considered an NFA item.

Right. But what is it specifically about the NFA that makes arms within it beyond 2A protection?

I should clarify my statement about Kolbe's position. They justified the protection of AR-15s by saying they are commonly used. What they did not do is provide a reason why militarily useful weapons have 2A protection. It opens an extremely large hole because just about any arm can have some military usefulness. I believe the third sentence is important to demonstrate that small arms are not the militarily useful weapon the 4CA makes it out to be.

But what if they are that militarily useful? The Remington 700 surely is the "militarily useful weapon the 4CA makes it out to be" (or would be if it were in front of the 4CA), because the Remington 700 is used widely by the military for a critical military duty: sniper use.

The military usefulness of a weapon cannot be the litmus test that determines whether or not a weapon is protected by the 2nd Amendment. To insist otherwise would be to insist on even more than what Heller insists (that the scope of the right is independent of the demands of the militia clause) -- it would mean insisting that the militia must be inferior to the military, not merely that it can be.

I would not insult morons by comparing them to Kolbe's lawyers. Thomas did not dissent in this case like he did in Friedman. I believe it is because it was poorly argued by Kolbe.

I fell out of my chair laughing when I read this.

Fair enough, though I would ask: if it was so poorly argued, how did they manage to get a win from the 3 judge panel?

It may be that Thomas didn't dissent here because of how Kolbe was argued. But given the even worse justification by the 4CA for upholding the law than the one proffered in Friedman, I suspect the quality of argument has little to do with it. Absent other considerations, it might be why the Court didn't take the case, but as we've seen, courts are perfectly capable of providing their own evidence and their own reasoning for any decisions they make -- they're not limited to what is supplied to them (see Texeira v County of Alameda).

 

[kcbrown]

You like to add stuff after the fact.

Yeah, sorry about that. I reexamine what I write over and over, even after posting (primarily for the purpose of correcting grammatical errors), and often find areas that demand clarification or come up with new ways of saying things better than before. I do my best to do that prior to posting, but always manage to find things that could use improvement after I post.

Once my message has been replied to, though, then I consider what I've written to essentially be "in stone" save perhaps for grammatical errors, since it's not fair to change something after the fact like that.

I believe common use and dangerous and unusual mean similar things.

Well, certainly "unusual" is the antithesis of "common use", but as I already outlined, "dangerous" has to mean something more in the 2nd Amendment context than what it means in other areas of criminal law.

You need to be able to articulate a legitimate societal use.

Really? Why's that? Does one need to articulate a legitimate societal use for speech? What is the legitimate societal use for hate speech?

Why must the right protected by the 2nd Amendment be treated as a second class right?

Common literally means relating to a community at large (ie society). So long as you are using the arm within the norms of society there is no danger to society nor is it unusual given that society defines what is unusual.

But if that is so, then machine guns should be protected, no? After all, it is the way the arm is used that presents the danger to society, not the arm itself, right?

And how can society define what is unusual and what isn't when it's the government (which includes the courts) that decides what arms the citizenry may possess and what arms it may not?


"Compelling interest" or not, where in the Constitution does it say that "public safety" overrides Constitutionally-protected rights? If the Constitution itself, which is the supreme law of the land, demands that a right not be infringed, then upon what authorization can the courts uphold an infringement? Make no mistake, the use of scrutiny is precisely that -- it is not used to determine the contours of the right, as the scope of the right (which includes its contours) is that which was understood at the time the protecting Amendment was ratified, and scrutiny was not even a twinkle in the courts' eyes at that time. So therefore it clearly must be used to decide whether or not a given infringement is allowable. But the 2nd Amendment directly states that no infringement is allowable.

Moreover, the right to arms is protected by an Amendment. The nature of an Amendment is that it supersedes anything that conflicts with it that was present in the Constitution at the time of its ratification. That means it supersedes even the "cases and controversies" clause of the Constitution if there is ever a conflict between the two. As such, the courts have no authorization to alter the original meaning and intent of the 2nd Amendment or the right it protects by way of "interpretation", since the 2nd Amendment supersedes that power.


If there's one thing the Kolbe court got right, it's that it attempted to justify its decision on the basis of the scope of the right. But because it did not heed the original understanding of the right, its decision is invalid -- it got the scope of the right very, very wrong.

 

[pcfixer]

kcbrown :

Compelling interest" or not, where in the Constitution does it say that "public safety" overrides Constitutionally-protected rights? If the Constitution itself, which is the supreme law of the land, demands that a right not be infringed, then upon what authorization can the courts uphold an infringement? Make no mistake, the use of scrutiny is precisely that -- it is not used to determine the contours of the right, as the scope of the right (which includes its contours) is that which was understood at the time the protecting Amendment was ratified, and scrutiny was not even a twinkle in the courts' eyes at that time. So therefore it clearly must be used to decide whether or not a given infringement is allowable. But the 2nd Amendment directly states that no infringement is allowable.

I does not. Please be clear in that regard. Congress nor state GA's have enumerated power's to override protected rights.

If there's one thing the Kolbe court got right, it's that it attempted to justify its decision on the basis of the scope of the right. But because it did not heed the original understanding of the right, its decision is invalid -- it got the scope of the right very, very wrong.

Yep, 100% so wrong. This is where the 9th and 10 Amendment of the Bill of Rights must be applied! In this supreme court will not act with judicial jurisprudence.
When will the supreme court say, "Shall Not Be Infringed"?

Here is one BS Bill in congress......https://www.washingtonpost.com/blogs/wonkblog/files/2013/04/Manchin-Toomey.pdf

 

[jcutonilli]

The Constitution typically does not define the right itself. It typically says something like it shall not be infringed. It does not specify how one goes about determining the scope of a particular right. The closest thing is through the judiciary. The use of scrutiny seems to be a generic way they use to determine the limit of a right. If you do not like it, file a lawsuit and propose something different or change the Constitution and specify how it needs to be done.

If the right is naturally limited by something then that something does not infringe on the right because it is not actually part of the right. I believe that public safety is a limiting factor of the right. An affray is one historic example where public safety plays a role in defining the scope of the right. Dangerous and unusual weapons are another example.

I think the NFA is not protected because they did not want to deal with the issue under Heller. There is some basis for them keeping the law around with respect to common use. Scalia did not definitively rule out the possibility of it being overturned. I suspect a case could be made to overturn the Hughes Amendment, but I am not sure the rest of the NFA could.

Kolbe lost the en banc 10-4. The only reason they won with the three judge panel is because 2 of the 4 dissenting judges were on the panel. I think it was plainly evident even before they filed the case that the argument was flawed given how Heller II (DC AWB case) turned out. I don't see any appreciable differences in the arguments.

 

[kcbrown]

The Constitution typically does not define the right itself. It typically says something like it shall not be infringed. It does not specify how one goes about determining the scope of a particular right.

No, it does not.

The scope of the right is that which was understood at the time the 2nd Amendment was ratified. The Supreme Court explicitly acknowledges this:

Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.

(emphasis mine)

Since the scope of the right is that which was understood at the time of adoption of the Constitutional provision which protects it, it follows that the judiciary is not the body that defines the scope of the right, it is the body that discovers the scope, through historical research and other techniques which are widely known and understood for the purpose of historical discovery.

The closest thing is through the judiciary. The use of scrutiny seems to be a generic way they use to determine the limit of a right.

It may be considered a way to determine the limit of a right, but because it has no connection with the understanding of the right's scope on the part of those who adopted its Constitutional protection, it cannot be considered valid.

If you do not like it, file a lawsuit and propose something different or change the Constitution and specify how it needs to be done.

Yes, obviously that is what will be necessary. However, asking the judiciary to change its own methods when the judiciary claims to adhere to a doctrine of stare decisis is like asking a mosquito to not bite you. So yes, a Constitutional Amendment is likely the only real way to accomplish this.

If the right is naturally limited by something then that something does not infringe on the right because it is not actually part of the right. I believe that public safety is a limiting factor of the right.

Public safety cannot be the limiting factor of all rights. If it could, then the government could legitimately decree that everyone except government workers must live in a padded cell 24x7, in order to maximize "public safety".

If "public safety" trumped all rights, we wouldn't have any rights, because every exercise of a right carries some amount of risk of harm to the public, even if only minutely.

An affray is one historic example where public safety plays a role in defining the scope of the right. Dangerous and unusual weapons are another example.

Affray is perhaps a valid historical example. But "dangerous and unusual" weapons are not. The reason is that the founders and citizenry adopted the Constitution and the Bill of Rights almost immediately after having come out of a shooting war in which private ownership of all manner of weaponry (up to and including gunships) was instrumental in their victory. One would have to be daft to insist that the founders and those who fought alongside them were keen to leave unprotected the very weapons that enabled them to ratify the Constitution in the first place.

If "dangerous and unusual" is a valid historical example with respect to those who adopted the Constitution, then strong evidence will need to be presented for such.

I think the NFA is not protected because they did not want to deal with the issue under Heller. There is some basis for them keeping the law around with respect to common use. Scalia did not definitively rule out the possibility of it being overturned. I suspect a case could be made to overturn the Hughes Amendment, but I am not sure the rest of the NFA could.

I do think that Heller sought to keep the NFA intact. The problem is that, of course, you can't do that without either contradicting yourself with respect to things like the scope of the right, or destroying the basis for protection of the right in the first place, or both.

Kolbe lost the en banc 10-4. The only reason they won with the three judge panel is because 2 of the 4 dissenting judges were on the panel.

What kind of logic is that? Of course the original panel majority was going to be in the dissent!! It was their decision that was overturned by the en banc proceedings!

No, what you're failing to answer here is why the original 3 judge panel decided the case in favor of the plaintiffs in the first place, if the plaintiffs' arguments were in fact so bad.

I think it was plainly evident even before they filed the case that the argument was flawed given how Heller II (DC AWB case) turned out. I don't see any appreciable differences in the arguments.

Well, I'll be the first to admit that it's folly to present the same arguments that failed in other venues in the hope that repetition will eventually lead to victory. But answer this: do you believe there are any arguments that would have actually led to victory for Kolbe in the en banc proceedings? If so, what arguments would those be?

 

[foxtrapper]

"weapons of war"- well I guess I declared a war on deer.