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Thread: Question about an assault weapons law (and current ones)

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    Question about an assault weapons law (and current ones)

    In the DC v. Heller decision, Scalia wrote that the 2nd Amendment was originally understood to protect the right to bear weapons that are in common usage. Also, they found that the DC blanket ban on handgun possession was a violation of the 2nd Amendment as it banned an entire class of weapons that Americans use for lawful purpose.

    Now, since semi-automatic weapons like the AR-15, for example, are in common use, and they are used for legitimate purposes (including, but not limited to: Target shooting, hunting, competition, home/self defense, and law enforcement duties), would an assault weapons ban even stand up if brought to the Supreme Court?
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    Who knows? The problem is that there is no recourse if BO uses "executive privelege" to essentially bypass legislation to "fix the problem".
    Last edited by JustAJ; 12-17-2012 at 01:43 PM.

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    Yea.... I'm sure there will be some change; unfortunately, it won't be the correct change and will no doubt be politically motivated.
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    Quote Originally Posted by JustAJ View Post
    Who knows? The problem is that there is no recourse if BO uses "exectuive privelege" to essentially bypass legislation to "fix the problem".
    That's not true. The president can't use executive orders to create new laws. Also, every executive order is still subject to judicial review if someone challenges it. He can only act in such a manner that is consistent with his duties. Writing a law is not one of them. Truman attempted to write a law that the federal government would seize control of all steel mills through executive orders, and the seizure was almost immediately (within a matter of days) ordered to halt. The order was overturned about a month later on the grounds that Truman had no power to make a law or order the seizure of private property without cause. Clinton tried to make a law as well, and it was quickly overturned.

    If Obama could create a law simply through executive order, he would have done it to avoid the hassle he faced in creating Obamacare. If he didn't use it then, I highly doubt that he would be able to use it to order an assault weapons ban. And even if he did, it would immediately be challenged and brought to the court
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    I'm not going to go digging in it to refresh my memory, but I believe some of the discussion in U.S. v. Miller (1939) was about whether a sawed-off shotgun was a "suitable militia weapon," and therefore legal under Amendment II. Maybe it was about whether the Founders would have considered it suitable for militia use, but at any rate, the guy who was transporting the shotgun was convicted. <http://supreme.justia.com/cases/fede.../174/case.html>

    Is a semi-auto rifle a suitable militia weapon? Given a choice between my Mini-14 and a Long Land Pattern "Brown Bess" for an SHTF event, I'll take the Ruger every time.
    Most male citizens of the American Colonies were required by law to own arms and ammunition for militia duty. The Long Land Pattern was a common firearm in use by both sides in the American Revolutionary War.
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    That's what my thought it. Unless they modify the Militia Act of 1903, all able-bodied men are part of the unorganized militia, meaning national defense would be considered one of the lawful uses for a firearm. It would also mean that weapons in common usage must be available to the general public. Now, I guess the argument might be made that men over the age of 45 and women (people exempt from the draft as it was in 1903) should not have access to "assault weapons", but again, that comes down to the proving that weapons like the AR-15 and other semi-auto rifles have no use outside military operations. Once again, being that the AR is the most commonly owned rifle in the United States and used for hunting, competition, and defense, it goes without saying that such an argument would easily be shot down.
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    Quote Originally Posted by GangGreen712 View Post
    That's not true. The president can't use executive orders to create new laws. Also, every executive order is still subject to judicial review if someone challenges it. He can only act in such a manner that is consistent with his duties. Writing a law is not one of them. Truman attempted to write a law that the federal government would seize control of all steel mills through executive orders, and the seizure was almost immediately (within a matter of days) ordered to halt. The order was overturned about a month later on the grounds that Truman had no power to make a law or order the seizure of private property without cause. Clinton tried to make a law as well, and it was quickly overturned.

    If Obama could create a law simply through executive order, he would have done it to avoid the hassle he faced in creating Obamacare. If he didn't use it then, I highly doubt that he would be able to use it to order an assault weapons ban. And even if he did, it would immediately be challenged and brought to the court
    That sounds all well and good, and one would hope that is the case. However, the ATF has already done exactly that by establishing required gun sales reporting for gun stores in border states, in direct contradiction to existing federal law, barring such registries and reporting.

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    Quote Originally Posted by JustAJ View Post
    That sounds all well and good, and one would hope that is the case. However, the ATF has already done exactly that by establishing required gun sales reporting for gun stores in border states, in direct contradiction to existing federal law, barring such registries and reporting.
    But it's within their power to do that. While we can talk about the slippery slope and all, requiring reports of certain weapon sales in border states in no way prohibits or in any way impedes a person from owning such weapons, nor does it restrict the sale of such weapons. While it violates federal restrictions, it easily passes constitutional muster, whether one agrees with it or not. Unfortunately, there's nothing in the 2nd Amendment that prohibits the registration or tracking of firearms. If the registration doesn't prohibit the ownership, it will stand up. What the ATF cannot do, and neither can the president, thank God, is declare certain weapons illegal on a whim. They would have already done it long ago if they could actually do it.
    Last edited by GangGreen712; 12-17-2012 at 03:44 PM.
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    I truly and sincerely hope you're right.

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    Quote Originally Posted by GangGreen712 View Post
    That's not true. The president can't use executive orders to create new laws. Also, every executive order is still subject to judicial review if someone challenges it. He can only act in such a manner that is consistent with his duties. Writing a law is not one of them. Truman attempted to write a law that the federal government would seize control of all steel mills through executive orders, and the seizure was almost immediately (within a matter of days) ordered to halt. The order was overturned about a month later on the grounds that Truman had no power to make a law or order the seizure of private property without cause. Clinton tried to make a law as well, and it was quickly overturned.

    If Obama could create a law simply through executive order, he would have done it to avoid the hassle he faced in creating Obamacare. If he didn't use it then, I highly doubt that he would be able to use it to order an assault weapons ban. And even if he did, it would immediately be challenged and brought to the court
    Thank you!!! In light of the recent TRAGEDIES, people are scared, hurt, and looking fro something to blame( and some one!) There are those on the left and right, throwing mud right now, and I DOUBT the "bogey man" of rightwingers- Barry O, is going to press for martial law, or have fed cops kick down doors for your long gun.(despite what Fox "news" tells you)

    america doesn't have a "gun problem", we have a VIOLENCE problem- we are a culture bred on violence from the start, and we have yet to reconcile that with civilized living. In California, where the gun laws are strict, we still have violent crime( although violent crime is down by 8% on avg since 2008) and most citizens are unarmed, whereas a state like Florida( with concealed carry and "stand your ground") also shows signficant crime rates dropping- whats working?

    Public sentiment against crime and violence, in addition to functional law enforcement. People could have M-60 machine guns mounted at their front doors, or walk around with only a whistle for help- IF we are all on the SAME page. There will be no "gun round ups, circa 1938 Germany........
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    Here's my take- it isn't a legality pronouncement since I'm not a lawyer.

    Worst case- obama could issue a EO saying just about anything. I'm sure he'd get some DOJ hack to say it's legit, probably their merry leader.

    It would be challenged. However, finding a judge at a lower level fed court to say no could be problematic. It could be stalled at the lower level courts for a while before it goes to the SCOTUS. It is entirely possible.

    It's unlikely though. I don't think even obama is stupid enough to do something like that even though he's a lame duck potus and it would probably not have a big effect on him.

    The problem would be that if something like that happened, a lot of people could be adversely impacted by some rather overzealous fed agents (Gee that never happens) and even some state and local LE folks.

    It'd be highly unlikely to see something like that though.
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    Quote Originally Posted by FNA209 View Post
    Here's my take- it isn't a legality pronouncement since I'm not a lawyer.

    Worst case- obama could issue a EO saying just about anything. I'm sure he'd get some DOJ hack to say it's legit, probably their merry leader.

    It would be challenged. However, finding a judge at a lower level fed court to say no could be problematic. It could be stalled at the lower level courts for a while before it goes to the SCOTUS. It is entirely possible.

    It's unlikely though. I don't think even obama is stupid enough to do something like that even though he's a lame duck potus and it would probably not have a big effect on him.

    The problem would be that if something like that happened, a lot of people could be adversely impacted by some rather overzealous fed agents (Gee that never happens) and even some state and local LE folks.

    It'd be highly unlikely to see something like that though.
    Adversly impacted would be when the first 30 rounds hit your police cruiser. Are we given to believe we wouldn't be on the recieving end ?
    Last edited by ten08; 12-18-2012 at 09:14 PM.
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    "wow"- obama the bogety monsta gonna git' youse!!! funny that the NRA, rant a holics for guns uber all else , is strangely "silent" while th erest of so many here are a-scared of "gun control" .

    NEWS FLASH- WE already have GUN CONTROL!!! what we don't have is "enforcement", and most likely we won't have UNLESS some SLAPs decide to parade around and start some B.S. with locals cops( oops ! forgot we already had "mah' rightz" types going' well heeled in public parks and at the local starbucks here in CA, and all it did was make the state pass "no in public " laws.

    READ MY LIPS- not enough cops or them pesky "evil federales" to go doo to door, and too MANy americans that ain't givin' up JACK........
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    Quote Originally Posted by GangGreen712 View Post
    In the DC v. Heller decision, Scalia wrote that the 2nd Amendment was originally understood to protect the right to bear weapons that are in common usage. Also, they found that the DC blanket ban on handgun possession was a violation of the 2nd Amendment as it banned an entire class of weapons that Americans use for lawful purpose.

    Now, since semi-automatic weapons like the AR-15, for example, are in common use, and they are used for legitimate purposes (including, but not limited to: Target shooting, hunting, competition, home/self defense, and law enforcement duties), would an assault weapons ban even stand up if brought to the Supreme Court?
    now back to your original post- Green, I doubt they'll do more than hemm, and hawww about what an "assualt weapon" is, and you'll end up getting some compromise( ala , "bullet buttons" in red
    pro gun" states) or some furniture taken off the gun- do you really need a bayonet lug on a civie gun??? funny that- I have two Mi-carbines that STILL have there original lugs still on, but thern again, those" assault weapons" are over 60 yrs old and techically "curio" weapons...( still shoot pretty damn good, and even though I use only 10 rd mags, i'm sure if SHTF no copper left standing in the ruins will whine when I show up with a hand made 30 rd mag. to help fight off the "moon men" or zombies...)

    As it stands, follow your states current laws, and you'll be okay...
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    Don't really need a bayonet lug, and I can probably live without the collapsible stock even though it's a nice feature, but I don't think the bullet button is going to fly in most places.

    My thought is that if any AWB gets to the floor for a vote, it will simply be a mirror of the 94-04 ban, and might even have a sunset clause like the last one. The thing is, a lot of the people who passed the first law were no satisfied with it; hell, from what I've read, not many California politicians are even happy with their even more restrictive gun laws. If the authors of such a ban refuse to compromise (as may be the case), it will go nowhere.

    Here's hoping...
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    Any bill proposed now will not be a clean AWB bill. Loads of killer amendments will be caked on it to the point it will generate a lot of heat but in the end it will be hard for it to pass both houses and think about who will get hurt in a real AWB ban, tax paying gun companies from the NE with good union jobs being lost in a bad economy.

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    Quote Originally Posted by slc View Post
    Any bill proposed now will not be a clean AWB bill. Loads of killer amendments will be caked on it to the point it will generate a lot of heat but in the end it will be hard for it to pass both houses and think about who will get hurt in a real AWB ban, tax paying gun companies from the NE with good union jobs being lost in a bad economy.
    Present Law requires a Federal Permit for Full Automatic Weapons, modifying that law to include assault rifles and raising the licensing cost to $1,000 per weapon annually could screww the market without any Constitutional challenge.

    As a Police Officer I would be more concerned with those weapons being pointed at me than putting them into the hands of every third moron out there
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    Quote Originally Posted by GangGreen712 View Post
    Don't really need a bayonet lug, and I can probably live without the collapsible stock even though it's a nice feature, but I don't think the bullet button is going to fly in most places.
    Don't let them trap you in the "Why do you NEED it" loop. It's not about need, it's about rights.

    I've read some of the BS that WiFi is proposing, and it's worrisome to say the least. No grandfathering, no sunset, etc. Although I am hopeful it will not pass, one should never underestimate the political need to be seen as having "done something" even when it's done with the full awareness that it does nothing to address the actual problem.

    Random side note: Can anyone here cite any time (they've seen or heard of) a person who failed the NICS background check was prosecuted for falsifying the 4473?

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    Quote Originally Posted by JustAJ View Post
    Don't let them trap you in the "Why do you NEED it" loop. It's not about need, it's about rights.

    I've read some of the BS that WiFi is proposing, and it's worrisome to say the least. No grandfathering, no sunset, etc. Although I am hopeful it will not pass, one should never underestimate the political need to be seen as having "done something" even when it's done with the full awareness that it does nothing to address the actual problem.
    Feinstein, who is leading the charge on this, has said that there will be a grandfather clause, but it will be restricted to owning, not buying, guns made before the ban. Obviously, in a bill like this, it's like haggling: You start by offering a price that's WAY more than you're willing to accept for it. At the same time, the buy goes way under. So you both work your way up until you trap the buyer into paying exactly what you wanted to sell it for. But obviously every politician does this, so they know what's up. She wants laws that are as or more restrictive than those in CA, but I can't see that happening. If there's any chance of a bill passing the House, it will be a simple reissue of the last ban, and will probably have a sunset as well.

    Don't get me wrong, I'm fully against any further assault weapons ban, because it's been proven to not work; two major school shootings and the N. Hollywood shootout took place during the ban and in at least two of those shootings the suspects used weapons that were supposedly inaccessible due to the ban. Any new ban will still see another shooting and will be the end of any grandfathered guns. The next shooting will be the end of semi-automatic weapons, period. Then I'm sure pump action shotguns and rifles will be next, followed by semi-auto pistols...it never ends. Each time, there's going to be talk about "reasonable" gun control, and what's "reasonable" gets more and more restrictive.

    Once again, the media is portraying the country to be a lot more anti-gun than it really is. Only four people I know are really for more gun control, and I'm in the Northeast! My own mother, who doesn't know anything about guns and personally doesn't like them, thinks that more gun laws are a bad idea.
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    Quote Originally Posted by GangGreen712 View Post
    In the DC v. Heller decision, Scalia wrote that the 2nd Amendment was originally understood to protect the right to bear weapons that are in common usage. Also, they found that the DC blanket ban on handgun possession was a violation of the 2nd Amendment as it banned an entire class of weapons that Americans use for lawful purpose.

    Now, since semi-automatic weapons like the AR-15, for example, are in common use, and they are used for legitimate purposes (including, but not limited to: Target shooting, hunting, competition, home/self defense, and law enforcement duties), would an assault weapons ban even stand up if brought to the Supreme Court?
    First off, what the media and liberal democrats are calling an assault weapon are very wrong. An assault weapon is a military grade weapon that has a selector for safe, semi-auto and full automatic fire, the amount of ammo the magazine holds has little to no bearing on the label of assault since some are belt fed and can fire 100 rounds from 1 belt. No rifle sold to the public have such capabilities. For the legal sale of such weapons requires the purchaser to pay for special licensing, FFL class III, and pay extra taxes on such a weapon. California, and a couple other states like New Jersey, are notorious for banning weapons that merely look like a military grade rifle under the auspice of it being an assault rifle. Don't feed into the paranoia that liberals like to spew about assault rifles. There will be challenges to any laws that the white house may try to implement. The last thing people need to do is listen to liberal hot air bags like Diane Feinstein, Michael Bloomberg and the rest of those ilk who would rather trample your constitutional rights than enforce them.
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    Quote Originally Posted by ten08 View Post
    Adversly impacted would be when the first 30 rounds hit your police cruiser. Are we given to believe we wouldn't be on the recieving end ?
    No. If some sweeping gun control measure was put in place, it'd likely result in some violence, particularly if it was done in a way many viewed to be illegal.

    It'd be a bad time to be a cop. It would probably result in a major number of sick call-out for the flu.
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    Quote Originally Posted by GIOSTORMUSNRET View Post
    First off, what the media and liberal democrats are calling an assault weapon are very wrong. An assault weapon is a military grade weapon that has a selector for safe, semi-auto and full automatic fire, the amount of ammo the magazine holds has little to no bearing on the label of assault since some are belt fed and can fire 100 rounds from 1 belt. No rifle sold to the public have such capabilities. For the legal sale of such weapons requires the purchaser to pay for special licensing, FFL class III, and pay extra taxes on such a weapon. California, and a couple other states like New Jersey, are notorious for banning weapons that merely look like a military grade rifle under the auspice of it being an assault rifle. Don't feed into the paranoia that liberals like to spew about assault rifles. There will be challenges to any laws that the white house may try to implement. The last thing people need to do is listen to liberal hot air bags like Diane Feinstein, Michael Bloomberg and the rest of those ilk who would rather trample your constitutional rights than enforce them.
    You're preaching to the choir. I own an AR-style rifle (Legally purchased and following all the laws of Connecticut, of course). Unfortunately, the Feinsteins and Bloombergs define assault weapon as "whatever we think looks like an assault weapon" the same way they define "reasonable gun control" as "Whatever WE say is reasonable". You know and I know there's a difference between a military assault rifle and a civilian self-loading rifle that looks like an assault weapon. The problem is there's a lot of misinformation out there and people are under the impression that the same exact weapons used in these shootings are used by our soldiers, and nothing is going to convince any anti-gunner otherwise.

    When I was selling guns, we had a Savage BA 110. It's all black, has a pistol grip, collapsing stock, protruding detachable magazine, and a muzzle break. But, it's bolt action; it's a sniper rifle. If I were to put one of those in front of Diane Feinstein, then put a Mini-14 with a wooden stock in front of her and ask which one is (by her definition) an assault weapon, I'm sure she'd pick the BA 110. They are ignorant and the worst kind of ignorant: They don't WANT to know the truth. They don't care if they are wrong; they want what they want, right or wrong.

    The most telling thing that Feinstein has said so far is that security must always trump rights...very scary.

    The the things that I have confidence in is:

    -The GOP won't let an AWB through the house...at least not with what Feinstein wants.
    -DC v. Heller and McDonald v. Chicago both confirmed the right to bear arms "in common usage." The AR-15 is the most commonly owned rifle in the United States and would easily fall under that definition.
    -Banning a whole class of weapons that can be used for lawful purposes is unconstitutional per Heller. The weapons that are in the crosshairs (no pun intended) would fulfill a "class" of weapons which I think could not be banned per DC v. Heller as they do not fall under the definition of dangerous or unusual weapons (which is reserved for such things as grenade launchers, grenades, flamethrowers, etc.).
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    Quote Originally Posted by GangGreen712 View Post
    You're preaching to the choir. I own an AR-style rifle (Legally purchased and following all the laws of Connecticut, of course). Unfortunately, the Feinsteins and Bloombergs define assault weapon as "whatever we think looks like an assault weapon" the same way they define "reasonable gun control" as "Whatever WE say is reasonable". You know and I know there's a difference between a military assault rifle and a civilian self-loading rifle that looks like an assault weapon. The problem is there's a lot of misinformation out there and people are under the impression that the same exact weapons used in these shootings are used by our soldiers, and nothing is going to convince any anti-gunner otherwise.

    When I was selling guns, we had a Savage BA 110. It's all black, has a pistol grip, collapsing stock, protruding detachable magazine, and a muzzle break. But, it's bolt action; it's a sniper rifle. If I were to put one of those in front of Diane Feinstein, then put a Mini-14 with a wooden stock in front of her and ask which one is (by her definition) an assault weapon, I'm sure she'd pick the BA 110. They are ignorant and the worst kind of ignorant: They don't WANT to know the truth. They don't care if they are wrong; they want what they want, right or wrong.

    The most telling thing that Feinstein has said so far is that security must always trump rights...very scary.

    The the things that I have confidence in is:

    -The GOP won't let an AWB through the house...at least not with what Feinstein wants.
    -DC v. Heller and McDonald v. Chicago both confirmed the right to bear arms "in common usage." The AR-15 is the most commonly owned rifle in the United States and would easily fall under that definition.
    -Banning a whole class of weapons that can be used for lawful purposes is unconstitutional per Heller. The weapons that are in the crosshairs (no pun intended) would fulfill a "class" of weapons which I think could not be banned per DC v. Heller as they do not fall under the definition of dangerous or unusual weapons (which is reserved for such things as grenade launchers, grenades, flamethrowers, etc.).
    How many people have you shot with it?
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    Now before we write off any bans being passed in the House lets remember this about Republicans: They cave in at the drop of a hat and have no strong leadership at this time. Seriously Bill Clinton admitted that Al Gore lost the 2000 election because the AWB cost him 5 states and yet Republicans with control of the House, the Senate AND White House never repealed the AWB. Lets not fool ourselves thinking Republicans got our backs on this because I'm not sure of that. The question is on magazine capacity. Will it be another useless 10 or they may be "generous" allow 15 or 20.

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    Quote Originally Posted by Rifleguy View Post
    Now before we write off any bans being passed in the House lets remember this about Republicans: They cave in at the drop of a hat and have no strong leadership at this time.
    I disagree, they don't cave at the drop of a hat. They've been debating this fiscal cliff thing for two years and haven't given an inch. I highly doubt they are going to cave on a gun control issue, at least very quickly. Assuming anything is passed, it probably won't be before this time next year. Look how long it took the Dems with a near supermajority to pass Obamacare.

    Seriously Bill Clinton admitted that Al Gore lost the 2000 election because the AWB cost him 5 states and yet Republicans with control of the House, the Senate AND White House never repealed the AWB.
    They actually did repeal it. The AWB originally was permanent. The GOP took control of Congress and immediately went to work on it. They wanted it repealed immediately, but they needed to get enough votes from the Dems so they compromised on changing the permanency to a sunset law.

    I can't see the GOP agreeing to any laws that will restrict individual rights. The NRA is about to start up soon, so I think we'll see opinions start to sway in Congress.
    "If the police have to come get you, they're bringing an @$$ kicking with them!"
    -Chris Rock

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