Archive for the ‘District of Columbia v. Heller 07-290’ Category

Nobody else believes in the collective right theory of the Second Amendment…

Yeah, if that’s true, why are you so scared of Goodwin Liu?

The obstructionists in the US Senate are fucking around with his appointment because Godwin Liu appears to agree with me that the Second Amendment applies to those well-regulated militias:

The Supreme Court has seen fit to rein in some of the most activist lower-court decisions. . . . But additional cases continue to test the limits. See, e.g., United States v. Emerson, 270 F.3d 203, 227–29 (5th Cir. 2001) (agreeing with district court that Second Amendment confers an individual right to bear arms, notwithstanding contrary indications in United States v. Miller, 307 U.S. 174, 178 (1939)).

From his article Separation Anxiety: Congress, The Courts, And The Constitution, 91 Georgetown Law Journal 439 (Jan. 2003) co-written with Hillary Clinton!

Liu is a law professor and dean at U.C. Berkeley who as a nominee has the American Bar Association’s highest rating, was nominated for a seat on the 9th Circuit Court of Appeals by President Obama over a year ago, and has since been approved by the Judiciary Committee three times. He has been hailed as one of his generation’s great legal minds by legal experts of both parties and across the ideological spectrum on the grounds that he is too qualified.

And he agrees with me and the four supreme court justices that dissented in Heller-McDonald, of course.

Guess you can’t have too many of us out there saying you people are spouting ignorant bullshit who can refute you with evidence that withstands scrutiny.

And Heller-McDonald cannot withstand legal and intellectual scrutiny.

If you saw a blind, three legged, 29 year old horse win the derby…

you’d say the race was fixed.

On the other hand, I’m rather amazed at the people who are praising the Heller-McDonald decisions. For example, The Brady Organisation which will happily point out that the decision doesn’t preclude reasonable regulations.

In fact, the Second Amendment protects a civic right, that is it is supposed to ensure that the Article I, Section 8, clause 16 militia remains armed and has fuck all to do with “”gun rights”. But, you small minded fucks need to get it through your thick skulls while that concept means the Second Amendment doesn’t preclude a gun ban: It also means that Kennesaw Georgia can force people to buy a gun (although, that sort of law could run afoul of the First Amendment).

The Civic right interpretation was the law of the land up until 26 June 2008. And, quite frankly, you can argue that it still remains the law of the land since the Second Amendment has not been properly amended, thus the Supreme Court acted ultra vires in producing this decision.

But, that’s not my point. My point is that Walter E. Dellinger argued worse than any first year law student despite his background, although one of the themes in this blog is that the US legal education system sucks. Still, you’d think that someone of Dellinger’s experience would pound in:

Stare decisis: Dellinger had the accepted interpretation of United States v. Miller, 307 U.S. 174 (1939) which he mentioned as:

The court unanimously said in Miller that the Second Amendment must be interpreted in light of its obvious purpose to ensure the continuation and render possible the effectiveness of the military forces.

Unfortunately, Dellinger appears to have been poorly studied in the history of the Second Amendment and its relationship to Standing Army question. Additionally, He was unaware of Shays’ Rebellion, which were the farmers who were on the framers’ minds: not the ones of dime novel ilk that were on Justice Kennedy’s.

There are enough quotations which show that the issue related to that of the Article I, Section 8, clause 16 militia to have sunk any suggestion that there was a private right.

The other aspect which would have strenghtened Dellinger’s argument was the rule of constutitonal interpretation that I keep hammering upon:

None of the words in the Constitution are without force and effect, except those superseded by amendments, unless such amendments are repealed. Except for the statement of purpose in the preamble, every word was intended by the Framers to be legally normative, and not just advisory, declaratory, aspirational, or exhortatory. Verba intelligi ut aliquid operantur debent. Words should be interpreted to give them some effect.

This principle of Constitutional Construction was mentioned in Marbury v. Madison, 5 U.S. 137 (1803), as It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.

And while we are at it: nowhere in the Second Amendment can one find the words which allows for “the people” to own arms for personal defence. Again this goes to the rule of construction that no phrase is without meaning. Expressio unius est exclusio alterius’ (The express mention of one thing excludes all others) : Items not on the list are assumed not to be covered by the statute.

Self-defence is not mentioned in the Second Amendment (or the US Constitution).

Justice Stevens’s dissents in Both Heller and McDonald pointed out that was “a strained and unpersuasive reading” which overturned longstanding precedent, and that the court had “bestowed a dramatic upheaval in the law”. Stevens also stated that the amendment was notable for the “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense” which are present in the Declarations of Rights of Pennsylvania and Vermont. The fact that these decisions were 5-4 means that the Civic right interpretation isn’t dead, just dormant.

But the other side was just as lame as Alan Gura’s argument demonstrates:

MR. GURA: Well, my response is that the government can ban arms that are not appropriate for civilian use. There is no question of that.
JUSTICE KENNEDY: That are not appropriate to —
MR. GURA: That are not appropriate to civilian use.
JUSTICE GINSBURG: For example?
MR. GURA: For example, I think machine guns: It’s difficult to imagine a construction of Miller, or a construction of the lower court’s opinion, that would sanction machine guns or the plastic, undetectable handguns that the Solicitor General spoke of.

Now, if you are going to say that the first clause has no effect, which the Five fools do, then one is left with:

the right of the People to keep and bear arms shall not be infringed.

It is a well-established tenet of our statutory interpretation that the use of the word “shall” generally indicates the legislature’s intention to make a provision mandatory, as opposed to discretionary. Or to quote the RKBA folk:

What don’t you understand about “Shall not be infringed”.

Of course, the court’s construction and interpretation, again violates the principle about the use of the word “shall” since in this context the phrase is now discretionary.

We can get into the fix is in part of this in that the Court could have made Gura and his ilk look like idiots since they construct the phrase to be both discretionary and the first clause to be without effect. So, not only are they asking for Miller to be overturned, they are also asking that long standing rules of Constitutional interpretation be ignored.

Anyway, by ignoring the language “A well regulated militia being necessary to the security of a free State”, we should now have a right which allows for the personal ownership of weapons of mass destruction: let alone machineguns. Any Justice worth their salt should have brought this up (Sorry, that includes you, Justice Stevens).

The problem is that the gun loon crowd act like Pavlov’s dog and salivate when they hear “gun rights” and “individual right”, but don’t really understand what exactly is going on here and how they have been the ones who were fucked. That’s slightly less so from the “antis”: although I’m sure we would be hearing about it if they felt truly fucked over . The Heller-McDonald Supreme court decisions talk of “presumptively lawful regulatory measures”, specifically name some, and then declare the list “is not exhaustive”.

In case you missed it or are too fucking stupid to have figured out what happened–here is the Heller-McDonald language:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Heller at 54-5

Which has as a footnote (26):

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

Better yet:

But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Heller at 64

From McDonald:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms. McDonald at 39-40

The only thing off the table is anything that purports to be a ban. Which leads to my question: had Chicago theoretically allowed for registrations (as does New York City) since that is not an “absolute prohibition”– would the law have passed constitutional muster? After all, NYC’s law has been around for 99 years: doesn’t that count as a longstanding regulatory measure?

Likewise, Candidates cannot say that gun laws violate the Second Amendment if they do not infringe upon the rights to truly “law abiding citizens” to own firearms. As the Court said (twice) “the right to keep and bear arms is ‘not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’”

We can get into the watering down of the Second Amendment right, but that is something which comes from the territory of a judicial amendment of the document: it is whatever a judge says the right is.

True supporters of the Constitution should be appalled at the Heller-McDonald decisions for what it did to the Second Amendment. The even more amusing part is that Scalia has trashed everything that he claimed to believe in by putting his name to this piece of shit, although one can truly question what type of biased hack he is to have not recused himself from this decision. Better yet, one must question what he is doing as a Supreme Court Justice as his presence on the bench does nothing to dignify the institution.

One must decide the law based upon the law, not one’s personal biases.

Anyway, the fix is in and everybody got fucked: especially the Constitution.

Principles of Constitutional Construction

I found this here:

None of the words are without force and effect, except those superseded by amendments, unless such amendments are repealed. Except for the statement of purpose in the preamble, every word was intended by the Framers to be legally normative, and not just advisory, declaratory, aspirational, or exhortatory. Verba intelligi ut aliquid operantur debent. Words should be interpreted to give them some effect.

This principle of Constitutional Construction was mentioned in Marbury v. Madison, 5 U.S. 137 (1803), as It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.

The Heller-McDonald decisions chose to ignore this cannon of Constitutional Construction and are, therefore, invalid.

Unless, of course, one wishes to amend the Constitution to change the meaning to that expounded by the court.

Finding gold in a pile of horseshit

You know the story about the kid who is so optimisitic that when his parents give him a pile of horseshit, he goes looking for a pony with the comment “with all that shit–there must be a pony somewhere!”.

Likewise, the Brady campaign tries to put a good spin on the Heller-McDonald decision and I have to agree with them. Doug Henigan says in his blog post on the decision:

So far, the oddest reaction to the McDonald decision is from the NRA’s Wayne LaPierre. Far from the purely celebratory statements he made after Heller, yesterday LaPierre himself conceded that the “constitutional victory” in McDonald could end up eventually as a “practical defeat”. Indeed, LaPierre has already put together his “enemies list” of those to blame for such a defeat, including “activist judges, defiant city councils, or cynical politicians.” Is he preparing his membership for the disappointments to come, as all manner of state and local gun laws are upheld and elected officials are emboldened to enact even tougher laws?

LaPierre may also be contemplating the future of the gun debate now that handgun bans are “off the table,” in the words of the Heller majority opinion. How long will the NRA’s leadership be able to argue, with anything approaching a straight face, that the Second Amendment precludes gun regulations like background checks, limits on large-volume sales, safe storage requirements, assault weapon bans, owner licensing, and registration of gun sales, when both Heller and McDonald read like legal briefs for the constitutionality of those laws? And, more importantly, how long will the NRA’s leadership be successful in using its legendary scare tactics to convince gun owners to oppose every gun regulation as a step down the “slippery slope” to a gun ban, when Heller and McDonald have taken gun bans “off the table”?

Viewing Heller and McDonald from LaPierre’s vantage point, an old expression comes to mind: Be careful what you wish for. It could come true.

The problem is that the gun loon crowd act like Pavlov’s dog and salivate when they hear “gun rights” and “individual right”, but don’t really understand what exactly is being mentioned. The Heller-McDonald Supreme  court decisions talk of “presumptively lawful regulatory measures”,  specifically name some, and then declare the list “is not exhaustive”.

Anyway, here is the Heller-McDonald language:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example,  the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).  Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Heller at 54-5

Which has as a footnote (26):

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

Better yet:

But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.  Heller at 64

From McDonald:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms. McDonald at 39-40

The only thing off the table is anything that purports to be a ban. Which leads to my question: had Chicago theoretically allowed for registrations (as does New York City) since that is not an “absolute prohibition”– would the law have passed constitutional muster? After all, NYC’s law has been around for 99 years: doesn’t that count as a longstanding regulatory measure?

Likewise, Candidates cannot say that gun laws violate the Second Amendment if they do not infringe upon the rights to truly “law abiding citizens” to own firearms. As the Court said (twice) “the right to keep and bear arms is ‘not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’”

We can get into the watering down of the Second Amendment right, but that is something which comes from the territory of a judicial amendment of the document: it is whatever a judge says the right is.

So, I have four hopes for the Heller-McDonald decisions: it results in strict gun laws being upheld as long as they are not “bans”, there is a shitload of litigation clogging the court system (after all I do this for a living), and it results in massive confusion creating a constitutional crisis of amazing proportions which goes well beyond the concept of “gun rights”. An additional hope is that it becomes clear that the US legal system runs on the golden rule: those with the gold make the rules.

And the blame lands squarely on the laps of the five stooges.

“Equal Justice Under Law” my arse.

It’s more like we have the best justice money can buy.

The difference between the US and UK regarding firearms.

In the US, the reaction to mass shootings where an insane person legally buys a firearm is that gun control doesn’t work and we need to make it easier for the insane, criminals, and terrorists to buy firearms.

Bill Mann at DC Weasels properly points out that:

“Any country with as many mentally ill people as the U.S. that allows virtually unlimited access to handguns is on a suicide mission.”

On the other hand, the reaction to Derrick Bird’s Cumbrian shooting spree in the UK is surprising. The reaction is surprising by US standards considering the fact that the UK’s gun laws are amongst the strictest in the world, and described by Sir Ian Blair as “draconian”.

Of course, the US there would be a clamour to make sure that the insane could have easier access to firearms.

What is the UK reaction?

David Cameron, the Conservative Prime Minister is quoted as saying:

“We need to be clear first about the full facts of the case. We also need, I think, to determine the type and the scope of reviews that will take place after this tragedy…
Of course the Home Office will look again at the gun laws in the light of that.”
Cameron said people needed to steer away from “leaping to conclusions” but appropriate action was needed.
“We do have some of the tightest gun laws in this country, but of course we should look again…
In the end what we must do is make sure we do the right thing by the people of west Cumbria and make sure that they are properly served in the things that we decide as a government.
If we’re looking for what the problem is, the problem is clearly we have a huge number of guns in our society we need to get rid of, and clearly there was an appalling problem in this case, whereas I’ve said a switch flicked in someone’s head.
You cannot legislate against that, but yes, let’s look at every aspect and make sure we have the robust laws that we need.”

This is a sane response, which takes Cameron out of the US definition of “Conservative” which means to be a complete moron.

There are issues surrounding Bird’s firearms licenses. In particular, Bird obtained his shotgun licence in 1995: five years after serving a 12-month prison sentence for theft from ­Sellafield nuclear power station. Bird may also have come to police ­attention for another minor offence during the mid-1990s. Anyone who has been jailed for three years is ineligible but having a less serious conviction, as Bird had, is not a bar.

A candidate for a UK gun licence must be a “fit and proper person” and be able to prove they do not suffer from mental instability. They must also demonstrate a “good reason” to have firearms licence. Bird listed “killing vermin” as his for having a .22 rifle. Many people in rural areas own shotguns for dealing with rats and other pests and it is usually accepted as a valid reason.

Self-defence is not considered a valid reason for a UK firearms certificate and has not been since 1946. Firearms certificates are usually given to sportsmen and farmers who can prove they have good reason. Sportsmen usually need to belong to two gun clubs (A national gun club such as NRA or BASC and usually a local gun club). Question 19 on the UK Firearms certificate application requires the applicant to “give details of each firearm, reason for requiring it (specifically “shooting disciplines”), and location where you intend on using the firearm.

Copies of the UK firearms certificate applications may be found here.

Candidates for firearms licences must prove they are not a threat to public safety and provide two referees. Bird didn’t give the police any reason beyond his prior arrests to consider him a threat to public safety. Although, the police inquiry will look into his conduct prior to the shootings to see if there were any warning signs.

Of course, we hear a lot about “gun rights” from the US, but I have to point out that DC v. Heller (pp 54-55) allows for gun regulations:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

The court notes that “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”

The problem with DC v. Heller is that it doesn’t say what regulatory measures are “lawful” or how to tell if they are “lawful”. This means that the “gun rights” which were created by DC v. Heller are weak. I am sure that whatever the outcome of McDonald v. Chicago, it will further making a hash of the Second Amendment that was begun with Heller, but that is another point.

The point is that US gun rights do not extend to “felons and the mentally ill” and there is no reason for there to be weak laws which allow for these people to have access to firearms.

For SouthernFemaleLawyer

I am sure you would understand what I mean when I say I worked in USAO-DC’s Operation Ceasefire in the mid-1990s, which is a major reason for my interest in this case–along with having lived in Washington, DC during that period.

Anyway, I find your use of the term “penumbral” in regard to the right enunciated in Heller to be quite novel. This is because the term “penumbral” usually means coming from the shadow in an eclipse. The right enunciated in DC v. Heller comes from out of nowhere as Justice Stevens’ dissenting opinion points out.

In fact, DC. V. Heller can be used for great mischief in the hands of crafty lawyers since it stands for pretty much a trashing of most legal principles. Even those held by Scalia himself!

For example stare decisis. Prior to Heller it was held that the Second Amendment right was to paraphrase US. v. Miller, 307 U.S. 174 (1939):

The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose. Without evidence that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ is reasonably related to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment of the body organised under Article 1, Section 8, Clause 16 of the Constitution or that its use and possession would contribute to the common defense.

The DC court of appeals reiterated that the Second Amendment was to ensure militia efficacy in Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987).

As Justice Stevens pointed out, one does not lightly overturn precedent. I will add especially when that precedent was unanimously decided as was US. v. Miller, 307 U.S. 174 (1939).

Likewise, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)offers the guidance in US Constitutional interpretation that:

Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.

It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.

and

The subsequent part of the section is mere surplusage — is entirely without meaning — if such is to be the construction.

The above quotes are not in order as they appear in the decision, but placed in such a way as to educate modern minds. The DC v. Heller decision stands for the principle that inconvenient language may be ignored.

To say that the right Scalia enunciated in DC v. Heller is penumbral would be akin to saying that if he suddenly decided that the Catholic Church was the State religion based upon the First Amendment would be penumbral. Not too far out a thought since his Heller decision has no historical or legal basis. What is to stop us from a mad judge doing the same with other rights? Or to quote the man himself:

If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. Antonin Scalia, Vigilante Justices: The Dying Constitution

Another aspect which should be frightening to lawyers is that DC v. Heller does not stand for the principle of equal justice before the law, but follows the “Golden Rule”. That is, those with the gold make the rules. It is an open secret that the Heller litigation was bankrolled by the Cato Institute, a libertarian think tank with connections to big business: in particular Rupert Murdoch and Koch Industries; the largest privately owned company in the United States. Likewise, the Cato Institute is bankrolling the McDonald case as well.

If we consider that the cry of “no taxation without representation” did not refer to the taxation, but the lack of representation in the decision making process that led to the taxation, DC v. Heller engages in exactly what the founders considered tyranny. That is the interference in the local legislative process by unelected persons. In particular, those who are not local, such as the Cato Institute or the Supreme Court. Again, this proves that Scalia’s decision is without merit.

Next we come to Judicial Certainty: Some of my original posts deal with the US v. Rybar decision, which was the decision that earned Justice Alito the monicker “Machinegun Sammy”. Amazingly enough, the Rybar court followed the Civic right interpretation of the Second Amendment, yet Alito signed on to Heller.

Likewise, Justice Scalia claims to follow an “originalist” interpretation, which he claimed followed the exact intent of the founders. Scalia proved that his judicial style is more “original” than “orignalist”. This means that the law is whatever the judge cares to make it without any real bother with historic, legal, or other constraints. In fact, it will be amusing to see how he rules on McDonald since I believe he has said before that the Second Amendment only applies to the Federal Government. Scalia has said that the doctrine of “incorporation,” which holds that the Bill of Rights applies to state governments via the Fourteenth Amendment, is a “mistake” and is “probably false” in a speech he made at the Hoover Institution.

So, I am not sure how one determines what and how Scalia will rule: which side of the bed he gets up on, whether the sun is shining, etcetera. We may see Justice Scalia contradict himself yet again. How does one appeal from an insane judge, or at least a seriously inconsistent one?

Does that sound penumbral to you?

Read and Comprehend

I have to admit annoyance with the ignorentia at MikeB‘s blog (I just changed that from ignorentia ad mikeB’s reluctantly since that sounded very Latin).

In particular Fatheaded White Moron who did point out something I missed in the DC’s list of guns which cannot be registered: a bayonet lug. They missed that one since I wasn’t there cribbing them on what to put in.

Anyway, since I like the idea of regulating assault weapons as machineguns, his example of an M1 Carbine would be an assault rifle in my opinion because:

In selective fire versions capable of fully-automatic fire, the carbine is designated the M2 carbine.

which places it in the 26 USC 5845 definition of a Machine gun:
Machine guns, defined as any firearm which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.

The M2 variant is designed to be capable of fully automatic fire, therefore, the M1 is a machinegun using that defintion.

Tough shit, you cretinous asshole.

I strongly suggest that people read the case law 26 USC 5845 in particular the law relating to “designed to shoot” and “readily restored to shoot”:

“There were two welds in the gun which obviously was, when manufactured, ‘designed to shoot.’ The barrel of the gun was welded closed at the breech and was also welded to the receiver on the outside under the handguard. Scroggie testified that there are two possible ways by which the firearm could be made to function as such. The most feasible method would be to cut the barrel off, drill a hole in the forward end of the receiver and then rethread the hole so that the same or another barrel could be inserted. To do so would take about an 8-hour working day in a properly equipped machine shop. Another method which would be more difficult because of the possibility of bending or breaking the barrel would be to drill the weld out of the breech of the barrel. United States v. Smith, 477 F.2d 399(8th Cir.1973)

In the context of the NFA and its use as a modifier describing the manner of firearm restoration, “readily” has been read to encompass several elements of restoration: (1) time, i.e., how long it takes to restore the weapon; (2) ease, i.e., how difficult it is to restore the weapon; (3) expertise, i.e., what knowledge and skills are required to restore the weapon; (4) necessary equipment, i.e., what tools are required to restore the weapon; (5) availability, i.e., where additional parts are required, how easily they can be obtained; (6) expense, i.e., how much it costs to restore the weapon; (7) scope, i.e., the extent to which the weapon has to be changed to allow it to shoot automatically; (8) feasability, i.e., whether the restoration would damage or destroy the weapon or cause it to malfunction. See S.W. Daniel, Inc. v. United States, 831 F.2d 253, 254-55 (11th Cir. 1987) (ease and scope); United States v. Alverson, 666 F.2d 341, 345 (9th Cir.1982) (expertise, ease, and scope); United States v. Smith, 477 F.2d 399, 400 (8th Cir.1973) (time and equipment); United States v. Aguilar-Espinosa, 57 F.Supp.2d 1359, 1362 (M.D.Fla.1999) (time, ease, expertise, and equipment); United States v. Seven Misc. Firearms, 503 F.Supp. 565, 573-75 (D.D.C.1980) (time, ease, expertise, equipment, availability, expense, and feasibility); United States v. Cook, No. 92-1467, 1993 WL 243823, at *3-4 (6th Cir. July 6, 1993) (availability)…

The decisions of several other courts make clear that the Defendant weapon, which would require, according to Alverson’s own expert, a maximum of six hours to convert to fire automatically, “can be readily restored” under the NFA. The Eighth Circuit held that a semiautomatic rifle that would take an eight-hour working day in a properly equipped machine shop to convert to shoot automatically qualified as a “machinegun” under the NFA.10 Smith, 477 F.2d at 400; cf. United States v. Shilling, 826 F.2d 1365, 1367 (4th Cir.1987) (holding that disassembled guns that could be made to shoot automatically were “readily restor[able]”); S.W. Daniel, Inc., 831 F.2d at 254-55 (upholding the use of a jury instruction defining a machinegun as “those weapons which have not previously functioned as machine guns but possess design features which facilitate full automatic fire by simple modification or elimination of existing component parts”); Alverson, 666 F.2d at 345 (concluding that an automatic weapon that was converted to fire semiautomatically prior to its sale to defendant could be “readily restored” where it could be modified to shoot automatically by filing down one of its parts); United States v. Lauchli, 371 F.2d 303, 312-13 (7th Cir.1966) (in a case prior to the addition of the “can be readily restored” language to the NFA, deciding that weapons requiring assembly to shoot automatically were machineguns under the NFA). U.S. v. One TRW, Model M14, 7.62 Caliber Rifle, 441 F.3d 416(2006)

There’s readily restorable for you!

And why I have a job.

Additionally, some people obviously haven’t read the DC v. Heller decision, in particular page 54. They could also do with reading footnotes 23 and 26. Heller did not get rid of firearms regulations. In fact, I have pointed out that Dick Heller was denied a permit for one of his guns. The DC Metropolitan Police notes on its website that: “about 50 applications to register handguns have been denied since the Heller decision”.

Of course, these people don’t read things or footnotes, unless of course, they are Michael Bellesiles footnotes! Then they rip them apart.

Another point, the “civic right” interpretation of the Second Amendment is not dead as Justice Steven’s dissent provides hope for its revival. The Heller decision is “a strained and unpersuasive reading” which overturned longstanding precedent, and that the court had “bestowed a dramatic upheaval in the law”. Stevens also stated that the amendment was notable for the “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense” which was present in such documents as the Declarations of Rights of Pennsylvania and Vermont.

So, there is still hope.