Third Circuit Upholds Magazine Law (Great Disent)

[whistlersmother]

The Framers planned for that. Unfortunately, it’s the 2A.

Yes, this. I'm somewhat puzzled that they didn't see that having government watch over the 2A would not lead to government restrictions on it. After all, 2A is to be used against the very government that is supposed to enforce "not infringed".

Someone allowed a strong federal government to usurp state's rights - just not sure when or who. Civil War? FDR?

The only power of the federal is enumerated in the Constitution, one of the biggest and most abused being interstate commerce.

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[Occam]

I'm somewhat puzzled that they didn't see that having government watch over the 2A would not lead to government restrictions on it.

That's not how they saw it. It's part of the Bill of Rights because that was supposed to be it, right there, period. No "watching over" at all, per se, because the entire point of the 2A was to keep government out of it. The only branch that watches over these things, really, is the judiciary: when the government violates the protections of the Bill of Rights, the injured party is supposed to be able to get relief in the courts. People were way too complacent over the last five decades, and allowed that to slip. Badly.

After all, 2A is to be used against the very government that is supposed to enforce "not infringed".

I'm not sure that's the most helpful way to describe things. The 2A isn't "used against" the government, any more than the 1A is when you type what you're typing right now. You have the natural rights to speak, to assemble, and to defend yourself - and the BoR is meant to prevent the government (at any level) from infringing on those rights. The 2A isn't there to allow you to attack the government. It's there to guarantee your right to self defense. From a thief, a rapist, a rabid fox, an invader, or from anyone else seeking to harm you - and that includes someone acting unconstitutionally with government power.

The 2A guarantees that you can keep and bear arms, and that the existence of a needed militia can't be used as an excuse to end that right. The founders knew that there were endless reasons why the individual right to self defense should be right up there with the right to speak, given what they'd recently endured under the British crown. It's not really accurate to say the founders wrote that line in the BoR to use against the government, but they understood that a rogue government is one of the things that a citizen may have to defend against.

 

[whistlersmother]

I don't view 2A as a self-defense right.

This "self-defense" grew out of the 2A. I believe that is "modern" thinking on the right whereas the original intent was to have a means of overthrowing a tyrannical government. If you want to call that "self-defense", then so be it.

I understand why "modernists" would want to twist "self-defense" into the 2A, but I personally don't view it that way.

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[Occam]

I don't view 2A as a self-defense right.

This "self-defense" grew out of the 2A. I believe that is "modern" thinking on the right whereas the original intent was to have a means of overthrowing a tyrannical government. If you want to call that "self-defense", then so be it.

I understand why "modernists" would want to twist "self-defense" into the 2A, but I personally don't view it that way.

Self defense against tyranny is just a special case of self defense generally.

Remember: the British told those colonists that they weren't allowed to own firearms, period. Not to defend against robbery on the road, not to defend against Indian raids, not to defend against bears, not for ANY reason. Their excuse was that there was a standing British military and that was all the defense anyone needed. The founders wanted their damn guns back, for ALL of the reasons having guns is useful. A run-in with some future government gone tyrannical was just one of those reasons.

 

[whistlersmother]

Self defense against tyranny is just a special case of self defense generally.

Remember: the British told those colonists that they weren't allowed to own firearms, period. Not to defend against robbery on the road, not to defend against Indian raids, not to defend against bears, not for ANY reason. Their excuse was that there was a standing British military and that was all the defense anyone needed. The founders wanted their damn guns back, for ALL of the reasons having guns is useful. A run-in with some future government gone tyrannical was just one of those reasons.

Very well. We're really arguing the same side of the coin, just from different ends and from different generalities of "self-defense". Certainly using a "self-defense against ne'er-do-wells" catches more flies than an argument from the other end.

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[Mike OTDP]

There's a third reason, one that doesn't get the attention it should. The 2A establishes a reservoir of force that the Government can call upon in times of civil unrest or invasion. And a body of men with some familiarity with arms in wartime. Yes, the current trend is away from quickly trained forces...but that was also the case circa 1750. By 1800, Europe was ablaze with quickly raised armies...not least because the United States had shown that a quickly trained force could fight long-service regulars.

 

[Occam]

The 2A establishes a reservoir of force that the Government can call upon in times of civil unrest or invasion.

Not really. Like everything in the Bill of Rights, the second amendment is there to say what the government may not do. It doesn't establish anything. But it does recognize that in the new, growing country they'd just founded, a standing, professional-grade military (at least at the militia level) was going to be necessary (something many of the founders didn't want, because they saw how it could be abused by people in power, a la Britain) ... but wanted to be SURE that the existence of such a militia could never be used as a reason to do what the British had done: deny individuals the right to keep and bear their own personal arms.

The 2A doesn't establish anything. Its authors saw history and saw the future, and knew there would be places like Maryland - and they sought to prevent exactly the direction that we, and CA and NY and the rest, are going.

Yes, the founders did understand that if the new country was invaded, it would certainly be handy if the population had a deep and familiar relationship with the means for their own defense. But the 2A doesn't create a militia or tie the right to keep and bear with participation in one. Exactly the opposite!

 

[babalou]

nice

I keep hearing the “if banning guns could save just one child then we should do it”. My response has now become “If banning immigration could save just one life of an innocent victim should we do that?” Man does it piss people off!

I will be using this. And when they say not all illegal immigrants are criminals, I will reply- there you go. same with gun owners.

 

[babalou]

me, as well

I don't view 2A as a self-defense right.

This "self-defense" grew out of the 2A. I believe that is "modern" thinking on the right whereas the original intent was to have a means of overthrowing a tyrannical government. If you want to call that "self-defense", then so be it.

I understand why "modernists" would want to twist "self-defense" into the 2A, but I personally don't view it that way.

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To me overthrowing a tyrannical government is also self defense.

 

[fidelity]

By every estimate firearms are used by civilians prevent over an orderr magnitude more rape, robbery and murder than than committed with them.

And more than 85% of all murder is committed by prior criminals (93% in Baltimore with 81% committed by persons with ten or more arrests).

On could probably easily establish that combinations of Fourth, Fifth, Sixth, Eighth Amendment rights cause more than 2/3 of murder.

Keep in mind ALL the other rights will have many more exceptions and limits if we go along the public safety path or for that matter the path of emulating other developed democracies. It is easier to get a warrant in Australia in order to enhance public safety. You can be held for questioning with no bail for 28 days in Japan to enhance public safety. You get no jury for criminal trials in Germany and this creates a very high conviction rate which helps public safety.

In pretty much every other developed democracy being remanded as dangerous mentally ill is done under much lower probative burdens and thresholds.

And in virtually every other developed democracy double jeopardy is allowed (think Oscar Pistorius Vs. OJ Simpson outcomes). Just as massive stop and frisk is also legal in most countries.

And don't forget in the US "Progressive Era" gave us "progressive "laws upheld by SCOTUS at the time supporting severe limits on speech, for example advocating resisting the draft being an extremely severe felony.

So don't imagine our other rights are safer, gun control logic actually puts them at major risk , as they can all be shredded on the idea of public safety. For that matter why would the CDC not look at the injury cost of our strict warrant policy which lets a lot of criminals escape justice, obviously a severe public health issue since prior criminals are virtually all of violent crime commission.

Did you see the recent legislation passed in Australia regarding allowing law enforcement access encryption? They are now officially the democracy with the least digital privacy protection. That country already had the worst comparative rights of any developed democracy and it is being held up by the left in the US as the example we should follow on rights v public safety.



Exactly, not to mention the bow and arrow. The entire "weapons of war" statement is a profoundly specious red herring.

Terrific, erudite post. Learned more than a few things.

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[pcfixer]

Not really. Like everything in the Bill of Rights, the second amendment is there to say what the government may not do. It doesn't establish anything. But it does recognize that in the new, growing country they'd just founded, a standing, professional-grade military (at least at the militia level) was going to be necessary (something many of the founders didn't want, because they saw how it could be abused by people in power, a la Britain) ... but wanted to be SURE that the existence of such a militia could never be used as a reason to do what the British had done: deny individuals the right to keep and bear their own personal arms.

The 2A doesn't establish anything. Its authors saw history and saw the future, and knew there would be places like Maryland - and they sought to prevent exactly the direction that we, and CA and NY and the rest, are going.

Yes, the founders did understand that if the new country was invaded, it would certainly be handy if the population had a deep and familiar relationship with the means for their own defense. But the 2A doesn't create a militia or tie the right to keep and bear with participation in one. Exactly the opposite!

Forgot this part:

Articles I, II, and III of the Constitution respectively vest the legislative, executive, and judicial powers each in a separate department of the federal government. This separation of powers, which draws upon ideas advanced by John Locke, Baron de Montesquieu, and Sir William Blackstone, reflects the Framers' intention that undue power not be combined in any one department lest, being unchecked, it become tyrannical.

Ummm… Not Bill of Rights.. But.... "enumerated powers".

Article I, Section 8..et all.

Section 8
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;

clauses....
The Congress shall have Power To ...provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions....
Article I, Section 8, Clause 15

The Congress shall have Power To ...provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress....
Article I, Section 8, Clause 16

The obligated militia was succeeded by the "uniformed" militia, local volunteer units generally equipped and supported by their own members. In addition, the states continued to provide volunteer citizen-soldiers when the regular U.S. Army had to be expanded, as was the case during the Mexican War and the Civil War. After the Civil War, the uniformed militia reemerged as the National Guard, but, unhappy with their largely domestic constabulary role, guardsmen lobbied for the mission of a national reserve. In the Militia Act of 1903 (the Dick Act), amended and expanded in 1908, Congress divided the eligible male population into an "organized militia" (the National Guard of the several states) and a "reserve," or "unorganized," militia.

https://www.heritage.org/constitution/#!/articles/1/essays/56/organizing-the-militia

 

[pcfixer]

District of Columbia v. Heller, case in which the U.S. Supreme Court on June 26, 2008,
held (5–4) that the Second Amendment guarantees an individual right to possess firearms independent of service in a state militia
and to use firearms for traditionally lawful purposes, including self-defense within the home.

..


Does not say only military or non military style firearms--pistols and rifles (oh yea AR's too and any magazine too.


Here is the rub so to speak...

The Court also added dicta regarding the private ownership of machine guns. In doing so, it suggested the elevation of the "in common use at the time" prong of the Miller decision, which by itself protects handguns, over the first prong (protecting arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"), which may not by itself protect machine guns:

"It may be objected that if weapons that are most useful in military service – M16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home."[50]

 

[BeoBill]

Self defense against tyranny is just a special case of self defense generally.

Remember: the British told those colonists that they weren't allowed to own firearms, period. Not to defend against robbery on the road, not to defend against Indian raids, not to defend against bears, not for ANY reason. Their excuse was that there was a standing British military and that was all the defense anyone needed. The founders wanted their damn guns back, for ALL of the reasons having guns is useful. A run-in with some future government gone tyrannical was just one of those reasons.

I think our MGA needs to take the lesson in the above to heart. Tyrannical government can be overthrown just as thoroughly with knives, tar and feathers, and boxes of tea. Firearms just make the overthrow more efficient.

 

[ironpony]

Going out on a limb here but how effective would it be to insist new mag limits must apply to all human beings in the state lines! Would this get LEOs and others that they allow to be above the limit, to be against the restrictions .... I would say yes it would. Imagine telling the beat cop on the street they can only carry 7 rnd mags! Those limits would never pass. I say our side should offer that law .... > 7 rnd mags = felony possession for "ALL". Therefore this years mag law would fail!


What is it in out society that allows the politicians to create laws affecting only who they want to?? I'll wait for an answer ......
Am I crazy thinking this, going on the offensive? or stick to the same tactics ...
Sorry, venting a little.

 

[SWO Daddy]

There's a third reason, one that doesn't get the attention it should. The 2A establishes a reservoir of force that the Government can call upon in times of civil unrest or invasion. And a body of men with some familiarity with arms in wartime. Yes, the current trend is away from quickly trained forces...but that was also the case circa 1750. By 1800, Europe was ablaze with quickly raised armies...not least because the United States had shown that a quickly trained force could fight long-service regulars.

No thanks. If I recall, that's the path that Ginsburg was trying to push Heller during oral arguments. IANAL, but this IMO sets the left up for a (incorrect) argument that the National Guard fulfills the "original intent" of the 2A.

 

[ed bernay]

Going out on a limb here but how effective would it be to insist new mag limits must apply to all human beings in the state lines! Would this get LEOs and others that they allow to be above the limit, to be against the restrictions .... I would say yes it would. Imagine telling the beat cop on the street they can only carry 7 rnd mags! Those limits would never pass. I say our side should offer that law .... > 7 rnd mags = felony possession for "ALL". Therefore this years mag law would fail!


What is it in out society that allows the politicians to create laws affecting only who they want to?? I'll wait for an answer ......
Am I crazy thinking this, going on the offensive? or stick to the same tactics ...
Sorry, venting a little.

This X a thousand. This BS would never pass without the support of police organizations and police brass. The lives of retired police and off duty police are no more or less valuable then the non uniformed citizen. In my opinion, its a blatant violation of equal protection. Politicians exempt police because they know their unconstitutional laws would not pass unless the enforcers were exempt. While I see a few police officers vocal about protecting the 2nd amendment for all Americans, it seems to me the majority are silent or indifferent because the laws don't effect them.


The fallback argument for liberal politicians, liberal judges and police brass is that police are highly trained. What amount of range hours does the average police officer receive in firearms training in the academy and then annual training after the academy? I'm not talking about the annual or semi annual requalification which typically is shooting at stationary targets for a total of 100-120 rounds a year. What AR15 or tactical training in addition to that target practice? Heck I try to shoot 200-250 rounds a month at the range. Since I moved to PA, I also try to take at least one class each year. From what I read the average police officer doesn't receive much, if any training, on an AR15 or tactical training yet the average police officer is exempt from the NY SAFE Act for example. This is complete BS. I wish our side would outline police training and LEOSA standards for the average police officer in court filings. This NJ case the judges mention police training as to why they are exempt from the mag bans but there isn't an actual evaluation of the training. Police departments own third party evaluations admit their training is lacking yet they still get exempt from these laws. Please see for yourself. These are the latest publicly available examples I could find.

https://www.phila.gov/pac/PDF/iao2004.pdf

http://www.nyc.gov/html/nypd/downloads/pdf/public_information/RAND_FirearmEvaluation.pdf

 

[ed bernay]

not to derail the thread but national reciprocity could easily pass if our side required citizens to meet the LEOSA standards for carry a firearm across stateliness but only needed to meet their own states standard for carrying within their own state. How could the politicians possibly argue that citizens need to meet a standard higher than the police/retired police. Ok rant over.

 

[IX-3]

This X a thousand. This BS would never pass without the support of police organizations and police brass. The lives of retired police and off duty police are no more or less valuable then the non uniformed citizen. In my opinion, its a blatant violation of equal protection. Politicians exempt police because they know their unconstitutional laws would not pass unless the enforcers were exempt. While I see a few police officers vocal about protecting the 2nd amendment for all Americans, it seems to me the majority are silent or indifferent because the laws don't effect them.


The fallback argument for liberal politicians, liberal judges and police brass is that police are highly trained. What amount of range hours does the average police officer receive in firearms training in the academy and then annual training after the academy? I'm not talking about the annual or semi annual requalification which typically is shooting at stationary targets for a total of 100-120 rounds a year. What AR15 or tactical training in addition to that target practice? Heck I try to shoot 200-250 rounds a month at the range. Since I moved to PA, I also try to take at least one class each year. From what I read the average police officer doesn't receive much, if any training, on an AR15 or tactical training yet the average police officer is exempt from the NY SAFE Act for example. This is complete BS. I wish our side would outline police training and LEOSA standards for the average police officer in court filings. This NJ case the judges mention police training as to why they are exempt from the mag bans but there isn't an actual evaluation of the training. Police departments own third party evaluations admit their training is lacking yet they still get exempt from these laws. Please see for yourself. These are the latest publicly available examples I could find.

https://www.phila.gov/pac/PDF/iao2004.pdf

http://www.nyc.gov/html/nypd/downloads/pdf/public_information/RAND_FirearmEvaluation.pdf

Wow...I can’t believe how few rounds are required for recertification. The Philly one isn’t too bad but NY only requiring 50 rounds is ridiculous. I’ve had my handgun for just about 3 months and have put over 3x the amount of rounds Philly requires and 8x what NY requires in just 3 range trips. That’s scary to think that I have more rounds through my gun in three months than the person the politicians want me to call for help instead of owning guns has in a year.

I’m sure there are police out there that do shoot more and go to the range often but how many just do their yearly recertification and don’t fire their gun again until the next recertification?

Maybe I missed it but I didn’t see anything in either link regarding shotguns or patrol rifle recertification.

 

[ed bernay]

"Maybe I missed it but I didn’t see anything in either link regarding shotguns or patrol rifle recertification."

Neither did I. From what I read online (don't know how true it is), NYC police recruits shoot 5 rounds though an AR15 in the academy. That's it and they never receive anymore training on the AR15 yet they are exempt from the NY SAFE Act.

"Wow...I can’t believe how few rounds are required for recertification. The Philly one isn’t too bad but NY only requiring 50 rounds is ridiculous."


I believe NYC is 50 rounds, twice a year, hitting the target 39 out of 50 times. So hitting the target 78 out of 100 rounds annually. This doesn't seem to qualify anyone as a gunfighter yet we are told we are not qualified to carry a gun, own magazines over 10 rounds and own semi auto rifles.

 

[ironpony]

Is there any other state have laws which exempt their LEOs? Need to see the frame work for a firearm law that applies to everyone!
Laws should apply to all. How can we vote a person into an office who has never been held to the same standards?