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View Diary: Scalia’s 2nd, Nullification, and National Suicide (30 comments)

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  •  Definition of Assault Weapon (1+ / 0-)
    Recommended by:
    Sharon Wraight

    I think most Americans would be surprised at the Federal definition of and specifications for assault weapons. In fact the gun industry and other interested parties note that the differences between the AK-15 and the M-16 are mostly cosmetic.  Those who have had extensive experience with the M-16 see the AK-15, the so-called "civilian" version of the M-16, as being almost as deadly.  Former Gen. Stanley McChrystal, who led the war in Afghanistan, endorsed strong gun control laws recently, including military assault weapons and civilian assault-like weapons:

    I  spent a career carrying typically either an M16 or an M4 Carbine. An M4 Carbine fires a .223 caliber round which is 5.56 mm at about 3000 feet per second. When it hits a human body, the effects are devastating. It’s designed to do that.  That’s what our soldiers ought to carry. I personally don’t think there’s any need for that kind of weaponry on the streets and particularly around the schools in America.

    We’ve got to take a serious look—I understand everyone’s desire to have whatever they want—but we’ve got to protect our children, we’ve got to protect our police, we’ve got to protect our population. Serious action is necessary. Sometimes we talk about very limited actions on the edges and I just don’t think that’s enough.

    I'd appreciate links to federal court decisions that find "a ban on a 'class of arms' would fail to meet constitutionality." I'm fairly certain SCOTUS hasn't spoken to the "class of arms" issue.  Thanks.
     
    •  Here is the statement from DC v. Miller (1+ / 0-)
      Recommended by:
      annecros

      that says banning a class of arms fails legitimacy:

      (3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster.
      In that particular case, the ban on the class of handguns was overruled.  Could a ban on the class of "assault weapons" be viewed the same way?  

      With respect to the General's statements, just about any self defense round, when it hits the body is devastating.  I also found it interesting how he phrased ".223 caliber round which is 5.56 mm" as the .223 / 556 are one of the most popular rounds used in that gun (models also take the 7.62x56 and .308 which are MORE powerful).  This is interesting for two reasons: one the .223 isn't considered a very powerful round and it is commonly used for small varmint and target practice.  The military has access to 556 Nato (Nato green tip) which I am pretty certain has a solid core, much like armor piercing.  From a technical standpoint, I have to wonder if his statement was carefully worded to convey a precise meaning.   However, I also understand the .223 soft point to be considered a decent self defense round.  I don't believe that the military isn't allowed to use soft point per the Geneva Convention.

      •  It's which class has been overwhelmingly chosen (1+ / 0-)
        Recommended by:
        Sharon Wraight

        Majority opinion, D.C. v Heller, pp. 56-57

        As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right.  The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose.  The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400
        would fail constitutional muster.
        Here's how I read this section of Heller.

        1.The inherent right of self-defense has been central to the Second Amendment right.

        2. Handguns have been overwhelmingly chosen by American society for self-defense.

        3. Home is where the need for defense of self, family, and property is most acute.

        Hence handguns cannot be banned from one's home.  Assault-style weapons differ: they have not been overwhelmingly chosen by American society for self-defense. Seems to me the entire class of assault-style weapons is not yet protected.  But once again the Scalia Five have given us a fluid criterion.  Given a huge spike in sales of assault-style weapons—perhaps advertised as the ultimate development in home self-defense—a future SCOTUS (using this criterion) would also throw assault-style weapons bans out with the handguns.

        At least that's my reading.  Thanks for the question.

        •  In many ways it is unfortunate that SCOTUS has (0+ / 0-)

          continued to remain vague, issue only narrow rulings, and add a lot of weasel words.  The whole question gets more interesting than just Heller.  For example, from Printz v. United States

          In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense."
          In other words, weapons that DON'T serve a military purpose are not protected under the 2nd.  Does this mean that "military style" weapons would be protected?
          Also from Lewis v. United States
          (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia")
          Again, it is inverted logic, but does the inverse hold?  Remember that militia also includes able bodied civilians, not the national guard.

          As I said, I am not certain about federal rulings in regard to carry outside of the home, though I think that this may be forthcoming thanks in part to Chicago which was the last state to prohibit public carry.  This may be an area that falls to the states, which would make sense in light of the may issue, shall issue, and reciprocity conundrum.  

          My best guess is that should a ruling on a ban take place that it could very well point to a previous ruling instead of addressing the problem head on.

          One thing is for certain, we are guaranteed continued debate and controversy regardless of any court rulings.

          •  Patience or a need to act (0+ / 0-)

            "In many ways it is unfortunate that SCOTUS has continued to remain vague, issue only narrow rulings, and add a lot of weasel words."

            Couldn't agree more.  The issue of assault-style weapons needs to be addressed clearly and as broadly as possible.  Scalia says he doesn't address issues not tied to cases and that the rest of us need to be patient with this process.  Well, patience is one thing, but blowing off (literally) the faces of 20 grade-schoolers in 5 to 10 minutes demands a process less snail-like.  Scalia was perfectly happy to snap up Bush v. Gore because "national circumstances required it."  And current national circumstances, more than those in 2000, clearly require a much faster process of judicial review.  With all the killing, it's beyond belief the Scalia Five have chosen to take the slow, incremental road.

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