Gun Control Advocate Misrepresents Massachusetts Court Decision on Common Rifles

In an interview with Mother Jones, Brady Campaign co-president Avery Gardiner, makes the following claims about the “common use” of AR-pattern rifles in the US:

AG: There’s a case in Massachusetts that raises this exact issue. Worman v. Baker was decided in April by Judge William Young. It’s a 47-page opinion that really goes into this question of “in common use at the time” and said that’s the standard. Judge Young quotes Scalia’s opinion in Heller all the way through it and then upholds the Massachusetts law banning assault weapons. That case is going to be appealed to the First Circuit Court of Appeals. The Second, Fourth, Seventh, and the DC Circuit have all upheld assault weapons ban, so I predict the First Circuit will, too, but somebody’s going to appeal that to the Supreme Court, and we will have this discussion about what does “in common use at the time” mean? I think it’s likely that Judge Kavanaugh will be Justice Kavanaugh by then. And we know what he thinks because he already told us—he wrote that dissent in the DC case.

Gardiner misstates what Judge Young wrote in his opinion. In Worman v. Baker, Judge Young does not rely on the “common use” argument in upholding the ban. He instead makes the claim that AR-15 rifles are “most useful in military service,” and therefore are not covered by the Second Amendment.

That claim turns the 1939 Miller decision on its head. He bases his claim on Justice’s Scalia’s words that the Heller decision doesn’t invalidate the federal regulation of full auto firearms such as machine guns.

Judge Young pointedly rejects the “common use” argument, stating that, because AR-15 type rifles have military purposes, they fall completely outside the scope of the Second Amendment, whether they are in common use or not. He rejects the Caetano decision in favor of other appellate rulings the Supreme Court refused to hear.

The Heller decision is clear. The weapons protected are those in common use. From U.S. v. Heller:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

The “common use” phrase used by Justice Scalia refers to the time the Miller decision was written, in 1939, not to the time the amendment was passed in 1791. Gardiner either mis-read the rather plain English in Justice Scalia’s opinion, or is willfully misrepresenting it to further her anti-gun stance.

Avery Gardiner Brady Campaign Gun Control Co-President

courtesy zimbio.com

In the 2016 Caetano decision (ruling that carrying a stun gun was covered by the Second Amendment), the Supreme Court unanimously held that the Second Amendment applies to all bearable arms, “even those that were not in existence at the time of the founding.” The Court has roundly rejected the theory that the Second Amendment only applies to those arms in use in 1791.

The theory that the Second Amendment doesn’t apply to arms that are “militarily useful” isn’t the only error in Judge Young’s decision. He starts his decision by claiming the Second Amendment was not considered an individual right until recently.

From Worman v. Baker:

For most of our history, mainstream scholarship considered the Second Amendment as nothing more than a guarantee that the several states can maintain “well regulated” militias.

The idea that the Second Amendment only applies to “well regulated” militias is known as the “collective right theory.” Judge Young’s claim is in direct contradiction to the majority opinion written by Justice Scalia in Heller.

From Heller:

It is demonstrably not true that, as Justice Stevens claims, post, at 41–42,“for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.” For most of our history the question did not present itself.

Judge Young only quotes select sources from 1966, 1978, and 1971 to support his collective right claim. But historical sources show the judge is mistaken. The collective right theory had almost no adherents until the Kansas Supreme Court adopted it in 1905. But the Kansas Supreme Court decision only applied to the Kansas State Constitution’s right to bear arms. The collective right theory, applied to the Second Amendment, started to become part of Progressive ideology after the Kansas Supreme Court decision.

It became more popular after 1939 with mis-interpretation of the Miller decision. The veracity of the theory was not supported by academic research. It was merely assumed and started being attacked in law review articles in 1983.

Critique of the collective right theory went mainstream when famed constitutional scholar Sanford Levinson penned his seminal article, “The Embarrassing Second Amendment“.

Williams’ poorly-argued decision was published in April, before Justice Kennedy announced his retirement. The Supreme Court had been unwilling to hear Second Amendment cases since 2011, outside of the Caetano stun gun ruling. Judge Williams might have presumed the Court would refuse to hear his case, too.

Caetano applied directly to Massachusetts. There is a chance the First Circuit will follow the Caetano decision and reverse Judge Young’s ruling. As the Brady Campaign’s Gardiner notes, there is an excellent chance Judge Kavanagh will be  Justice Kavanagh by that time. Judge Kavanagh has already written that semi-automatic rifles are protected by the Second Amendment.

If Worman v. Baker is appealed to the Supreme Court, there’s an excellent chance the court will restore more Second Amendment rights.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

comments

  1. avatar No one of consequence says:

    It’s really amazing, to me anyway, how such very complex knots can be tied up and around such a simple-at-heart law, in an effort to try to get around that original meaning.

  2. avatar Chip in Florida says:

    Didn’t the DoJ recently say something about Modern Sporting Rifles, specifically the AR-15, were not military weapons?

    Isn’t that going to take some of the wind out of their proverbial sails?

    1. avatar Desert Ranger Tycho says:

      Exactly. The DOJ settlement with Defense Distrubuted (Cody Wilson) is explicit in its wording that AR-15s and similar semi- autos are not military weapons. This is a legal uclear bomb waiting to be used against guncontrol laws and rulings that use the ‘military weapon’ argument for banning the guns. The time of the Pro2a lawsuit is upon us!

      1. avatar Treedodger says:

        I believe the wording was “… are not inherently military.” Weasels always leave wiggle room.

      2. avatar bobo says:

        Significantly, the government expressly acknowledges that non-automatic firearms up to .50-caliber – including modern semi-auto sporting rifles such as the popular AR-15 and similar firearms – are not inherently military.

    2. avatar California Richard says:

      No. That’s an opinion rendered by idiotic pissants (i.e. people who aren’t lawyers). The only opinions that matter to the court are the opinions of other lawyers….. the more politically connected the lawyer, the more “valid and nuanced” their opinion is considered.

    3. avatar Chip Bennett says:

      ITAR is under DOS, not DOJ. I’m sure the statement/admission will be admissible, but I wonder how heavily it might be considered as evidence.

    4. avatar doesky2 says:

      Well that and the fact that the semi-auto AR15 has NEVER been used as the chosen front line combat weapon by ANY country in the world.

      But hey, he’s on the Left, so that means truth is not a value to him, and so he says that AR-15 rifles are “most useful in military service,”.

      F’ing rat [email protected]

  3. avatar m. says:

    i don’t care what an anti-2a d-rat d-sucker thinks

    1. avatar Green Mtn. Boy says:

      “Gardiner either mis-read the rather plain English in Justice Scalia’s opinion, or is willfully misrepresenting it to further her anti-gun stance.”

      As civilan disarmament proponents they tend to be leftist’s who are also by default anti Constitution,Freedom and Liberty proponents.
      As such truth and facts do not validate their position so they tend towards a reality best suited to Grims fairy tales,either that or outright delusion.

      1. It’s kind of Funny, considering before 1936, the Republican Party were the Pinko Commies…

        1. avatar California Richard says:

          The republican party were pinko gun grabbers up until 1994 when it became political suicide to ban guns. Ronald Regan was a California gun banner in the 70’s and a national gun banner in the 80’s. Ditto for Bush and James Brady in the 90’s. Old party line Republicans are still very much pro-gun-control, and would be more than happy to take your guns, but they are more afraid of losing power than depriving you of your guns. When given any political excuse they will cave-in in a heartbeat and throw the 2nd ammendment under the bus without hesitation (hearing protection act? National reciprocity? Rick Scott?).

        2. avatar neiowa says:

          You two have a real tag team of dumbassery going there.

          The progs that have controlled the dem party since the late 1800s have been in love for ole karl and his drivel since the immigrant euro anarchists brought the claptrap to the US. When Trotsky etc managed to take control of Russia this blossomed into a marriage that has lasted for a century. This reality is what makes the current “investigation” by that twit Muller so laughable. The dems are pretending to insulate themselves from the past and the failure of their core “valves”. “Just need to have the “RIGHT” people running Communism (in the US) to make it work.” Their recent vessel is Bernie but apparently the incumbent is that silly little rich girl running for Congress in NY14.

          Their problem is that there are still too many Americans that value freedom and representative government. Piles of Soro $ and butt load of unassimilated and incompatible immigrants has so far not worked. 2016 election pushback that elected President Trump being chief evidence. The 2018 Senate/House elections will be a watershed indicating which way we are going.

        3. And exactly how does differ from the “Koch Foundation” and “Blankenship Foundation” funding of Donald Trump…

        4. avatar anonymoose says:

          Neiowa, Progs like Theodore Roosevelt were secret Democrats? Could have fooled me.

        5. avatar Anymouse says:

          Get your facts straight, UND. The Koch brothers despise Trump and refused to donate to RNC. When your simple “facts” are so easy to disprove, it shows you’re either a simpleron, a liar, a brainless follower echoing other liars, or combination. Ignorance can be cured, but idiocy can’t. Make your choice.

        6. What that Old Saying, “Keep you’re friend close, but keep you’re enemy closer”. The Koch’s will Hedge Their Bet’s by donating to whoever can make THEM (i.e. the Koch Family) RICHER…

        7. avatar FedUp says:

          1936?

          More like 1933, when the democrat pinko commie president stole our gold by executive order and the dems tried to socialize the economy. Then the dems gave us the NFA in 1934.

          Or maybe you could say the reps were the commie pinko negro lovers and the dems were the commie pinko statists in the 1930s. There certainly wasn’t much support for a Constitutional Republic back then.

          I’m not sure when the KKK party became the alleged saviors of the blacks, but it was certainly later than WWII.

        8. avatar Erik Weisz says:

          The black vote was 70%+ Republican until the 1930’s, when over the course of two elections they switched to 70%+ democrat due to Roosevelt’s promise of “a chicken in every pot”. Many black’s felt shame over their disloyalty to the party that freed them from the shackles of slavery, but they were – like many if not most Americans at the time – hungry, and did what they felt was in the best interest of their families. They remained loyal to the dems after that, and passed this loyalty to their children, etc. The dems have paid no more than lip service to black Americans (and, well, ALL Americans really) since then, correctly assuming their vote. That will not change until better messaging and better results get out.
          As a side note, Federal (and even state) politics have barely entered the consciousness of the American people as a whole until Trump came along and made it the national pastime two years ago, and there are still an awful lot of people – perhaps the majority even – who have no real idea what’s going on, and they don’t really care. It takes a lot to really get America’s attention, and it’s usually too late – long after change has already occurred. People have to know what skin they have in the game to care at all, which is why gun owners are such a valuable voting block – politics really does directly affect us and so we always show up to vote. We are acutely aware of when, where, how, why, and especially who, and we have long memories.

  4. avatar BLAMMO says:

    Since when are rifles used by the military substantially different from those owned and used by civilians (or the militia) for lawful and legitimate purposes? In fact, during every major conflict in US history, there were rifles available to the citizenry that were in some ways better, or more advanced, than what was broadly used by the military.

    During the revolution, many colonial combatants had rifled barrel long-rifles. The British did not. During the Civil War, breach loaders and repeaters were already available but the military had not yet adopted them. During WWI, Americans already had semi automatic rifles available (e.g., Winchester 1907) while the military used bolt action M1903s.

    The AR pattern rifle is simply the state-of-the-art of the modern rifle.

    1. avatar tsbhoa.p.jr says:

      simple, yes. state of the art, rrrhhngrrnot.

      1. avatar BLAMMO says:

        State-of-the-art doesn’t mean it’s necessarily the most advanced technology with all the newest wiz bang features. Lever action was state-of-the-art in the late 19th Century. If you’re waiting for caseless rifles or rail guns, you’re still waiting and you will be for a long time.

        1. avatar tsbhoa.p.jr says:

          my brain incorrectly pairs “state of the art” with “latest technlogy/ finest available currently.”
          but you are correct. still, i’d rather “a” state of the art than “the.”

    2. avatar California Richard says:

      Smoothbore flintlocks delivered balls at a rate 4 times faster than a rifle and had bayonets. The militia armed with rifles could deliver one or two very accurate volleys but without the ability to quickly reaload their rifles or defend themselves with bayonets they would be slaughtered by cavalry and/or infantry when caught in close combat out in the open.

      The Minie ball was state of the art during the civil war.

      Repeating rifles cost about $6000 in relative terms of price. No military is going to lavish their armies like that.

      Early slef loading arms were unreliable for hard military use (look at the disaster that was the early M16 and imagine how much more unsuited arms were in the 1920’s).

      1. So was the First Flintlock Machine Gun, the 1718 “Puckle Gun”! Unfortunately the Continental Army didn’t use them, because they couldn’t afford them. Neither did the British, and they created them…

      2. avatar strych9 says:

        The inability to use a bayonet was effectively a moot point since a lot of colonials learned to use a knife in one hand and a tomahawk or hatchet in the other for hand to hand. Many also carried multiple handguns for close work. Dual wielding like this was so effective that it continued well into the 1800’s and proved effective against lever guns backed by revolvers. Properly administered it’s a devastating fighting style when things get up close and personal.

        The guys from the Western side the the Appalachian Mountains excelled with such dual wielding of weapons and it scared the ever living fuck out of British regulars precisely because it was so effective against a rifle mounted bayonet (and the fighting style was so brutal/ungentlemanly). [There’s a whole Discovery Channel show on just this topic.]

        Keep in mind that a bayonet wasnt really meant to fight hand to hand. It was designed to allow riflemen to double as pikemen and defend against a cavalry charge without carrying a second weapon dedicated to that purpose.

      3. avatar Binder says:

        The early M16s had issues because some idiot decided to change the ammo for the guns without extensive testing. The BAR worked well in 1918. By the 20s everyone had good sub-machine guns. The US was playing with the .276 Pedersen in the late 20s. I would not have been surprised if the US would have had true “assault” rifles for WW2 if we stuck with .276. Much of what was used for combat small arms after the 1930s was the result of tactics and doctrine, not technological limitations.

        And the Puckle Gun was not in anyway a machine gun. Just that it was referred to as one. Better name would be big flintlock revolver. For actual military use, a canister loaded swivel or field gun is a much better choice.

        1. A well trained crew could fire off ~9- rounds/minute using the 1718 “Puckle Gun”.
          ( https://youtube.be/GPC7KiYDshw ) …

        2. avatar Binder says:

          And a field gun could fire 2-3 times a minute with grape shot. And it will not jam.

          https://www.youtube.com/watch?v=uCm-Rsvrw0s

  5. avatar Boba Fett says:

    Funny, I posted a response to that same article on Mother Jones the other day…

    “[The Second Amendment] protects the kinds of weapons that were ‘in common use at the time’—in 1791, when the Second Amendment was adopted. Those are [former Supreme Court Justice Antonin] Scalia’s words. Judge Kavanaugh just uses the first part of that phrase, ‘in common use’ and leaves out the ‘at the time’ part.”

    It seems, Avery Gardiner, that you are guilty of the very same fallacy that you assign to Kavanaugh.

    Here’s the phrase in question, straight from Scalia’s majority opinion:
    “Miller’s holding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

    You seem to be focused on the, “weapons protected are those ‘in common use at the time’ finds support” part, while leaving out the “carrying” and “unusual” parts.

    As for “unusual,” you’ll notice Scalia makes reference to “the historical tradition of prohibiting,” a phrase that clearly cannot be bound to any specific period. Rather, it can only be construed to mean that Scalia was making a general reference to the prohibition of a given weapon within its own chronological context. Semi-automatic long guns are far from “unusual.” They have seen mainstream use for almost a century, and the AR-15 platform, if I’m not mistaken, is the best-selling rifle platform in the country. In arguing its scarcity, I wish you the best of luck.

    As for the “carrying” part: In the second sentence of the very same paragraph you cited, Scalia uses the phrase, “keep and carry,” which provides a clear distinction between the those two terms. While Scalia does use the word “carrying,” in the last sentence of that paragraph, he omits the term “keep” entirely, when making reference to the language in Miller.

    Is it possible that Kavanaugh makes no mention of the phrase you use to contest his stance because he knows that there is no contest?

    1. avatar Boba Fett says:

      Correction: my quote was from the syllabus, not the actual opinion. But he makes the same point in the opinion with almost identical language, so my argument still stands: Avery Gardiner is a disingenuous goofball.

    2. avatar Moltar says:

      a better argument is that nowhere in the 2nd amendment does it mention anything about common use at the time. Someone saw fit to add that qualifier on at a much later date.
      The way I view it is one can carry anything they wish be it common or exceedingly rare and I’m sure the founders didn’t give one single f*ck what weapons were used to defend the nation or what the citizens carried to defend themselves or the new nation that they inhabited.

      “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

      That’s all that said, nothing in there about what kinds of weapons; nothing saying unless a bunch of people get gunned down; nothing about the children; nothing about minorities; nothing about how you bear said arms; and absolutely nothing about anything these gun laws have brought up.

      1. avatar CZJay says:

        It doesn’t say what we want? That’s totally okay because we can create a concept known as “interpretation.” Now we can add-in whatever we want. We can write an entire book about how for many years we misinterpreted the second amendment and what it was actually trying to say. Redefining English words will be very easy at that point.

        It’s not like America didn’t redefine Africans and indigenous North Americans to be less than human in order to restrict their human/civil rights. Making laws against the second amendment is totally okay if it’s only being applied to “animals” and “savages.”

        -All men are created equal…

        -Ahh, but wait. You are not human, thus not a man! Silly savage/monkey, guns are for highly civilized humans.

        1. avatar Moltar says:

          What was meant by the minorities part in that statement was specifically those laws stating minorities couldn’t own or bear arms as being unconstitutional. Problem was though “the people” meant citizens and as we all know the Indians and the blacks were not considered to be citizens for a very long time.

      2. avatar CZJay says:

        Anyone within the territory/jurisdiction of the U.S.A. is protected by the U.S. Constitution. Hence the need for secret and off-site prisons for “enemy combatants.” You cannot deny a resident of the U.S. their rights — America isn’t Japan. If someone illegally resides in the U.S., they can be deported to their homeland through due process.

        How do you deny the human/civil rights of an entire race that discovered the North American continent thousands of years before those that founded a federal government on that said continent knew it and the people on it existed?

        I know… You redefine “the people” to mean “the citizens.” Then you deny citizenship to monkeys and savages. Now Americans can scalp savages and laugh at the newly created redskin. Americans can put up signs saying, “No niggers allowed,” “Colored…” or “No Negroes.” Since they [Spanish/Mexicans] are not citizens, Americans got to throw in the “No Mexicans” too.

        See how historically America has said one thing and did the other? Why would they do anything different today? The difference from then and now is today it’s about the upper class [government] suppressing the lower class [the people]. Therefore, they must redefine words differently this time around, as they can’t use race as their springboard in the same way.

        Same strategy, different day.

        https://i.pinimg.com/564x/14/81/da/1481dabad2b6e341ff160ff98fcdb85e.jpg

        1. avatar CZJay says:

          Silly civilians, guns are for government.

          -Cops are not civilians because they work for the government; it doesn’t matter they are not part of a military branch. Also, the militia is the military not “the people.” The only people that can bear modern arms is the government worker. The government will provide the security of a free state not a bunch of civilian vigilantes.

          -But “the people” means all human-beings!

          -Yeah right! Remember when “the people” meant “only white English speaking American citizens?” Why only now does it mean every human-being?

          -Because I want to own an AR-15.

          -Join the military. Then you can bear such arms.

        2. avatar Chip Bennett says:

          “Works for the government” is not the definition of/differentiation between civilian and non-civilian. Rather, one is a civilian when and if acting under the jurisdiction of civil law, as opposed to acting under the jurisdiction of military law (i.e. the UCMJ).

          The second amendment intended to bar the government from infringing on the right of the people to own, and when necessary, to use, military-grade arms.

        3. avatar CZJay says:

          Chip Bennett, your argument is invalid because you are using incorrect modern interpretations. According to various lawmakers’, lawyers’ and judges’ opinions your concept is heavily flawed

          Blackwater wasn’t subjected to the same civilian laws as non combatants yet at the same time were not under military control. Hence the heavy usage of “private contractors” instead of military personnel and why many from the military decided to switch over.

  6. avatar pieslapper says:

    Wait, a gun grabber lied? Again? Still? I’m shocked, shocked I say!

  7. avatar John Q Public says:

    Infringements All !!! Time for a Public Reading of the Declaration of Independence! There seams to be a strong need to refresh the tree of LIBERTY 🗽!

    1. avatar Green Mtn. Boy says:

      The exit clause is contained there within to all of this extraConstitutional foolishness.

      The unanimous Declaration of the thirteen united States of America
      When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
      We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.

      1. avatar uncommon_sense says:

        I would argue that United States Constitution is absolutely fine and needs no changing at all. What needs changing? The government employees (both bureaucrats and politicians) who act outside of the U.S. Constitution, law, and justice.

  8. avatar CalGunsMD says:

    ” the claim that AR-15 rifles are “most useful in military service,” and therefore are not covered by the Second Amendment.”??????
    The purpose of the 2A IS to put military service arms in the hands of the citizenry.
    Ownership AND possession.

    1. avatar Anymouse says:

      This is completely opposite of Miller, which stated only militarily useful arms were protected. Since they weren’t aware that short-barrelled shotguns were in use by the military, it would be ok to license them.

  9. avatar Moltar says:

    Sanford Levinson penned his seminal article, “The Embarrassing Second Amendment“.

    That was an awesome article! Little difficult to follow at times ( mainly because I skipped a line staring into the wall of text) but outfreakingstanding! We really do need to start a constructive conversation about gun rights and really hammer home the idea that the 2nd is just like every other amendment, it doesn’t change with the times and it doesn’t give the federal or state government any power when it mentions “the people”. Every other amendment mentioning “the people” is automatically assumed to mean the individual but somehow with the 2nd it means only certain people that the government gets to pick.

    1. avatar Ardent says:

      Levinson does yeomans work untieing the complicated knots others have attempted to bind the 2nd in…that he grants automatic credence to some of the more obvious and absurd attempts to explain it away isn’t heartening…but the larger flaw in this dense read is that it predates Heller…and is completely supplanted and nullified by Heller. That is, in a post Heller world, nothing Levinson says in “The Embarrassing Second” remains accurate or relevant.

      1. avatar Moltar says:

        I don’t think it’s a flaw being from before the Heller decision and yes I do disagree with some of what he says but more importantly it does show that we are still battling largely the exact. same. arguments that have been around since the dawn of this little culture war. Even now there are politicians, lawyers, and scholars debating, legislating, and studying the 2A and swearing that it (to the exclusion of any other amendment containing the phrase “the people”) is a collective right rather than an individual right. The language is still being scrutinized and tortured to fit the gun control mantra that only the militia should own guns and that “common use” is the rule of the day. We need to start slapping down these core arguments and force the grabbers to start back over at square one finding a new tactic rather than continually fighting on the same hills of assault weapons bans, collective right vs individual right, and “common use at the time”.

  10. avatar CalGunsMD says:

    An instance of an obscure ban on “afrighting” does not establish a “historical tradition of prohibiting the carrying of dangerous and unusual weapons”

    Scalia was a FUD and he did us a double edged sword of a favor.

    1. avatar CZJay says:

      “I am a stronger supporter of the second amendment but…”

    2. avatar uncommon_sense says:

      Scalia was a FUD and he did us a double edged sword of a favor.

      What I have heard many times is that U.S. Supreme Court Justice Scalia did NOT want to include the language that watered-down the Heller decision and only included it to get Justice Kennedy’s vote.

      Many of us have a sense of the legislative process that we liken to making sausage. Well, U.S. Supreme Court decisions have their own “sausage making” process and the Heller ruling was no exception.

  11. Unfortunately the Federalist Papers, the Declaration of Independence, the Articles of Confederation, the US Constitution and the Bill of Rights was written in “Early Modern English” (i.e. 15th to 18th Century) and NOT “Late Modern English” (i.e. 19th Century or 1813) that we speak today.

    1. avatar California Richard says:

      You have to elaborate. Why is it “unfortunate”?

      1. Early Modern English is the same as “Sheakespearean English” with all the Colorful Nuances spoken at the time, that Loses it’s translation when interpreted into Late Modern English spoken in the 21st century…

      2. avatar Moltar says:

        Unfortunate in our context can be illustrated with a single word from the Constitution.

        Regulated.

        Regulated, to them, meant in good working order and good condition. That definition has since become archaic in that no one uses that definition anymore when describing something that is functioning properly and in good repair.

        Regulated, in modern times, means to control or maintain the rate or speed of (a machine or process) so that it operates properly. control or supervise (something, especially a company or business activity) by means of rules and regulations.

        See the difference?

        1. avatar Icabod says:

          In a discussion of the Amendment “regulated” was examined. The question was “Regulated by whom?” The Amendment doesn’t say. The author pointed out that having the government “regulate” basically says “To prevent a free society from a tyranical government, the government will regulate the militia.” It follows that the “militia” referred to is also not the National Guard it’s controlled by government. The Second Amendment has its place following the major freedoms listed in the First. Clearly, our freedoms were set forth and then the means to preserve them were given.

  12. avatar GS650G says:

    The left will do anything to finally get to the point where a public announ emenf is made to being firearms to a collection station.
    Instead of utopia they would realize how those firearms in many hands held the animals at bay.

    By then it will be too late.

  13. avatar Bierce Ambrose says:

    “Gun Control Advocate Misrepresents …” pretty much everything they talk about. I’ve heard they sometimes report the weather outside correctly, but who knows?

  14. avatar Steve says:

    In 1956, ArmaLite designed a lightweight full automatic rifle for military use and designated it the ArmaLite Rifle-15, or AR-15. Due to financial problems, and limitations in terms of manpower and production capacity, it was never used by the military. ArmaLite sold the design and the AR-15 trademark along with the ArmaLite AR-10 to Colt’s Manufacturing Company in 1959. In 1964, Colt began selling its own version with an improved semi-automatic design for civilian use, known as the Colt AR-15 . After Colt’s patents expired in 1977, an active marketplace emerged for other manufacturers to produce and sell their own AR-15 style rifles.
    In 2009, the term “modern sporting rifle” was coined by the National Shooting Sports Foundation for its survey that year as a marketing term used by the firearms industry to describe modular semi-automatic rifles including AR-15s.
    So after 54 years on the market one would think that it is a, “common used rifle” in this day in age and differentially not a assault weapon ( Semi-automatic-only rifles like the AR-15 are not assault weapons; they do not have select-fire capabilities.)
    A Bureau of Alcohol Tobacco Firearms and Explosives (ATF) “white paper” correctly identifies “assault weapons/rifles” as a politically contrived term with no real meaning.

    1. avatar Binder says:

      You wrote all that and you still got the “Assault Rifle” vs “Assault Rifle” wrong.

      A “assault weapon” is a legal term which a “typical” AR-15 falls under. You can look in the the Public Safety and Recreational Firearms Use Protection Act, a subsection of the Violent Crime Control and Law Enforcement Act of 1994 for clarification.

      “Assault rifle” was the updated designation for the MP 43, the Sturmgewehr 44 or “assault rifle 44”. By definition an assault rifle is a selective-fire rifle that uses an intermediate cartridge and a detachable magazine.

  15. avatar CZJay says:

    Kavanagh likes to follow past decisions/opinions. That’s not the type of guy you would want on the supreme court.

    I don’t like how the justice system is setup to allow one man the ability to make his own “law.”

    Court opinions are like ass…

  16. avatar barnbwt says:

    Never do judges “hear but not listen” so badly as when it comes to Heller and guns. The high court dismissed not some, but ALL these arguments as frivolous, yet we see them again, and again, and again. In this one area, lower judges see fit to disagree with their superiors.

    Kavanaugh and the other four need to start punishing lower courts for their defiance. Them, or congress, or both.

    1. avatar Binder says:

      “Kavanaugh and the other four need to start punishing lower courts for their defiance. Them, or congress, or both.”

      About that. The reason the Court hates these second amendment issues, if they make a decision that lower states courts and governments ignore, now what. This is NOT about school segregation. The Feds are NOT going to try and force the decision.

      I know that Roe v. Wade is a hot button issue here, but for all purposes it is ignored in 7 states. Same issue with a court decision.

      1. avatar jwm says:

        The feds don’t have to force a decision. All a scotus judge has to do is hold a lower court judge, federal or state, in contempt. He issues a warrant and the US Marshals arrest said judge and present them to the issuing justice.

        I was in a federal court when the US Marshals brought in a city .gov employee on a contempt warrant. Fed judges have more power than god. Scotus justices have all the power.

        It would take very little effort to bring lower courts and local jurisdictions to heal.

        1. avatar Binder says:

          The US Marshals belong to the DOJ. The DOJ is executive, try again. SCOTUS has NO power without the other branches.

          If the Court has so much power for 2nd amendment cases, why did they let the other two branches piss on the Gun-Free School Zones Act decision?

          “It held that while Congress had broad lawmaking authority under the Commerce Clause, the power was limited, and did not extend so far from “commerce” as to authorize the regulation of the carrying of handguns, especially when there was no evidence that carrying them affected the economy on a massive scale.”

          Well Congress said, and I’m paraphrasing, “The Commerce Clause does apply. We say it does. What are you going to do about it?”

        2. avatar jwm says:

          Interesting, binder. I must have imagined that federal judge sending US Marshals out to arrest the city guys for contempt of court.

          I love when I’ve actually seen an event with my own eyes and then a dude from the net tries to tell me I’ve got it wrong.

        3. avatar uncommon_sense says:

          Binder and jwm,

          I would say that there is a significant element of truth to both or your statements.

          jwm: you indeed saw U.S. Marshals haul a government employee into custody for contempt of court

          Binder: you are correct that U.S. Marshals are NOT members of the judicial branch and only cooperate with the judicial branch if they feel like it

          The risk is whether or not the executive branch cooperates when the judicial branch issues bench warrants (for contempt of court or similar). That could obviously go either way.

          Personally, I think the best way to stop lower courts from issuing decisions which blatantly contradict the U.S. Supreme Court is to prosecute all of the offending prosecutors, bailiffs, court recorders, and judges for criminal conspiracy to deprive the public of their rights, as well as Deprivation of Rights under Color of Law. Of course that will never happen because it requires one set of prosecutors and judges to prosecute another set of prosecutors and judges.

    2. avatar California Richard says:

      SCOTUS doesn’t fire or hire judges. A political judge who renders political decisions, is simply writing his resume for future political appointments like Keagan and Sotomayor. Having a decision overturned by a conservative SCOTUS is nothing more than a golden star for liberal judges. Look for even greater infringments from lower courts when Kavanaugh is confirmed. The black robed mafia will be crawling all over each other to prove they are the best little liberal judge in the land.

      1. Always assuming that the latter two Ladies have any intention in Retiring anytime soon…

  17. avatar Warlocc says:

    Here’s hoping we can see it go to the supreme court so we can do away with Healey’s arbitrary bans.

  18. avatar Timothy Toroian says:

    Brady people are like that. Sarah herself once said the FBI was lying when their crime stats didn’t support her contention that more guns more crime. Nor are they very good at interpreting judicial decisions, like this where they will freely misquote a judge.

  19. avatar GunnyGene says:

    I suggest that the author & TTAG take a look at the following upcoming regulatory change. It is very enlightening.

    https://www.regulations.gov/document?D=DOS-2017-0046-0001 .

    “This proposed rule revises USML Category I, covering firearms and related articles, to control only defense articles that are inherently military or that are not otherwise widely available for commercial sale. In particular, the revised category will not include non-automatic and semi-automatic firearms to caliber .50 (12.7mm) inclusive, currently controlled under paragraph (a), and all of the parts, components, accessories, and attachments specially designed for those articles. Such items will be subject to the new controls in Export Control Classification Numbers 0A501, 0A502, 0A503, 0A504, 0A505, 0B501, 0B505, 0D501, 0D505, 0E501, and 0E502. Such controls in Category 0 of the CCL will be published in a separate rule by the Department of Commerce.”

    Besides the regulatory relief this change gives to exporters, the other major effect is that the gun grabbers will no longer be able to point to the USML as the basis for their argument that AR’s and similar weapons and ammo are “military weapons of war”. It yanks that rug right out from under them. I don’t think that part of this has sunk in yet, but it will, when State legislatures around the country take note of it. To me this is really the most important aspect of this change. We’ve been hollering for years that AR’s, etc. are not military arms regardless of the cosmetic similarities, and now we will have official backing for that stand. You’ll note that the comment period is closed and the change has entered the Final Rule stage.

  20. avatar I shot lucifer says:

    Good idea. Ban any firearm and ammunition used by the military. That doesn’t mean some wildcat inventor won’t come up with something way better.

  21. avatar CZJay says:

    By the way, this whole military use versus civilian use argument is what Mexico uses to limit their citizens rights. It worked very well there.

    A lot of Mexicans now live in the U.S. What could possibly go wrong? Oh, right! California…

  22. avatar Wally1 says:

    Facts matter, so why can’t the courts adhere to facts? I served in the Army and never saw a AR-15 used in military service, they were M-16’s and M4’s. The AR-15 is a civilian use rifle and not a military weapon. WHY is this so hard to understand? Because facts don’t matter to liberals!

  23. avatar SoBePhoto says:

    From Printz, permitted firearms are to be “ordinary military equipment” that could “contribute to the common defense.” Huh!? Seems like today’s gun control fanatics are reading the law backwards!

    1. avatar CZJay says:

      I reject your reality and substitute my own.

      It works far better than many think. Fact, truth, logic and reality can easily be replaced. You bear witness to it at this very moment in history.

      Never assume people are good and/or smart. So called “common sense” is an oxymoron.

  24. avatar luigi says:

    her neck is kinda freakin me out

    1. avatar CZJay says:

      She stretches the meaning of the 2nd Amendment like her neck.

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