At 1/17/13 01:21 PM, TheMason wrote:
At 1/17/13 09:59 AM, Camarohusky wrote:
How is an AWB not an infringement? An infringement is defined as being a violation, breach, or encroachment on a right. A ban on 'military style' guns encroaches my right to go to the store and buy one. So while I can have some firearms...my ability to own some is taken away.
I will say the US Supreme Court has yet to decide the constitutionality of a federal assault weapons ban, but state supreme courts, federal district courts and the US Supreme Court have historically acted in a manner that would be consistent with upholding an assault weapons ban. Indeed, state assault weapons bans have been challenged on a number of federal questions, but no challenges based on the second amendment have made it to the supreme court. However, arguments have been raised by pro-gun advocates that AWB violates the following provisions of the US Constitution:
The Commerce Clause (Olympic Arms v. Magaw, Navegar v. US). In Olympic Arms, the trial court ruled that an AWB does not exceed Congress's power under the commerce clause. On appeal, this judgment was affirmed. In Navegar, the Supreme Court declined to hear the case, effectively killing it at the appellate level, where the judgment also affirmed the constitutionality of the AWB.
Bill of Attainder - through several court cases, an AWB has not been found to constitute a bill of attainder.
Supremacy Clause - all court challenges to AWB's have been rejected by the court under the Supremacy clause.
First Amendment - court challenges to AWB's under the first amendment have not been successful.
Now, the important one here, the second Amendment. Interestingly, in Silviera v. Lockyer, a federal district court found that no right to bear arms constitutionally exists. This case died at the district court level, meaning state courts in the 9th circuit are bound to follow this interpretation. It is important to note that Silviera was overruled by Heller, but the school of thought behind Silveira is still present in judicial circles.
In two other cases, the courts have flatly rejected to hear constitutional challenges to bans on "assault weapons."
Fifth/14th Amendment challenges both on due process and equal protection have been largely unsuccessful except in cases where the law was written vaguely.
Now, I can agree that there are reasonable limits to this right. I do not need a tank or machine gun. There is a degree of martial power that is too much for a civilian to own.
So at least we agree on this question, the question then becomes where is that brightline to be drawn?
But the question is: does banning them serve the public good? Is there a compelling reason to ban them? Is there something unusual and uncommon about them that makes them fall into the category of being too much for civilians to own?
From Miller v. United States:
"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship 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 or that its use could contribute to the common defense... The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."'
Miller was the case that led to the development of the unusual or uncommon test that we have been discussing. Based on my reading of the opinion, it would seem that the burden of proof is not on supporters of an AWB to prove that these weapons are "unusual and uncommon," rather, the burden is on advocates of these weapons to show that they are in common use. Now, as I have stated before, I am purposefully ignorant of the technical knowledge, so I don't personally know what weapons could fall into this category. However, since I am not the one that would argue this case in court, I don't really need it. I am sure, however, that the people defending such laws would be able to produce expert witnesses that would separate guns into two categories: "usual and common" and "unusual and uncommon." How those categories would be defined and what guns would fall into them, I do not know, but I think it is safe to say that there are many "assault-style" weapons that would not fall into the usual and common category. And, again, it ultimately becomes your burden to show that they are common and usual, not ours.
At this point, no one from the President of the United States, to gun control advocates, to people on this BBS...has been able to establish this justification.
Show me the ballistics and the crime trends that show that these are the extraordinary 'killing machines' they are made out to be by yellow journalists and politicians.
The children who died at Sandy Hook were shot anywhere from two to 11 times, with some of the victims being completely unrecognizable. 20% of officers who died in the line of duty during the federal AWB were killed by weapons either banned by the law or weapons modified to skirt the edges of the AWB.
Show me the science...not 'common sense' rhetoric based on ignorance.
Don't you love the NRA? As a result of NRA lobbying, these has been a federal moratorium on research into gun violence. So, because your gun lobby doesn't want the rest of us to know how deadly these weapons can be in the hands of some people, science on this subject has to be done with private research, which not only makes it hard to find, it also brings the objectivity of the researchers into question. At least with the executive orders issued by the President yesterday, we now have the CDC researching the triggers and effects of gun violence.
