Bad News From the 4th Circuit

[Vorpalis]

I think everyone is reading this wrong. @whitney quoted the important part, but might not have noticed:

"...the plaintiffs' problem is that, despite full notice of the issue, they have not and apparently cannot forecast evidence adequately helpful to their cause... causing us to [use] the summary judgment standard to rule as we do."​

"Summary judgment" is a legal term that means the plaintiffs did such a terrible job making their case – or didn't even try – that the court was required to rule against them, per the rules of civil litigation. It's like if you don't show up in court for a speeding ticket, or if you do but plead "no contest" to the charges.

There's some other curious bits in there, and I wonder if part of this ruling is also that the court is, effectively, just punting this to the next higher court.

 

[CountryGent]

Let's just say I had a little time off...
View attachment 344798

Got my vote.

 

[Skier]

In fact as pointed out many times before , the 2A does not make a distinction , a exception , a class of or name a type of gun.
It simply says "Arms"
Not Arms of this type or another , not sporting guns , or just civilian type of guns , not military guns ...
Not anything but Arms.
Andy

... and even if it did, [and it doesn't], the AR-15 is often refered to as (the civilian version of the M16), so there ya go...

 

[Skier]

There is also case law concerning a conviction of possessing a Short Barreled Shotgun based on what arms were used by the military, and since SBS's were not (nor ever) in use by the military it was ruled the defense had no case and lost, resulting in a conviction.


This was decades ago, and I don't recall the name of the case... I'm off to work, no time to dig it up!

That would be "United States v. Miller"

United States v. Miller

Here's a couple related paragraphs of interest:

Here's the part you were likely referring to...

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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

Further related reading...

The Constitution, as originally adopted, granted to the Congress power --

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they [p179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.

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.

Blackstone's Commentaries, Vol. 2, Ch. 13, p. 409 points out "that king Alfred first settled a national militia in this kingdom," and traces the subsequent development and use of such forces.

Adam Smith's Wealth of Nations, Book V, Ch. 1, contains an extended account of the Militia. It is there said: "Men of republican principles have been jealous of a standing army as dangerous to liberty."

In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character, and in this distinction seems to consist the essential difference between those two different species of military force.

"The American Colonies In The 17th Century," Osgood, Vol. 1, ch. XIII, affirms in reference to the early system of defense in New England --

In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to [p180] cooperate in the work of defence.

The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.

In general, as I understood it, the firearm related charges against Miller (and Layton?) might have been dropped, if he had carrying/transporting a weapon that WAS similar to a military style weapon or one that was actually used by the military, but because his sawed-off shotgun wasn't (and never had been) commonly employed by military forces, it was not protected as a 2A right like more common military weapons were.

 

[nammac]

That would be "United States v. Miller"

United States v. Miller

Here's a couple related paragraphs of interest:

Here's the part you were likely referring to...


Further related reading...


In general, as I understood it, the firearm related charges against Miller (and Layton?) might have been dropped, if he had carrying/transporting a weapon that WAS similar to a military style weapon or one that was actually used by the military, but because his sawed-off shotgun wasn't (and never had been) commonly employed by military forces, it was not protected as a 2A right like more common military weapons were.

Interesting... So military type weapons are protected.... I want an M16 then... Perhaps every household should be issued one with a case of ammo and mandatory range practice...

 

[Skier]

They say the Heller case only stated you can have a hand gun so get your AR pistols now because the are covered by the Heller case right because they are pistols.

Heller didn't only say you can have a handgun, it said you can only have weapons that are "in common use at the time" [presumably by the military], but not "dangerous and unusual weapons." (e.g. like the sawed-off shotgun in U.S. v. Miller.

Here's some of the relevant text:

(f) None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank, 92 U. S. 542, nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not 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. 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. Pp. 54–56.

It later goes on to say that because of the above, "the handgun ban and the trigger-lock requirement violate the Second Amendment." It's NOT saying those are the only protected items, rather it's saying that for that specific case, those items are protected because they in common use and therefore not prohibited.

Reference:
DISTRICT OF COLUMBIA v. HELLER

 

[Skier]

In our analysis, we simply de-emphasize the term "dangerous and unusual," more directly concluding under Heller that, because the banned assault weapons and large-capacity magazines are "like" "M-16 rifles" and "most useful in military service," they are beyond the reach of the Second Amendment.

That's just completely off-base. The fact that they ARE like those "most useful in military service" is exactly why they ARE protected under the 2nd Amendment, unlike the sawed-off shot in the U.S. v. Miller case.

How can the even come up with such an illogical conclusion with the sources their citing is beyond me.

 

[Skier]

You've hit on the real question here. It seems nobody involved is aware of the reasons for the design features of an AR-15 rifle.

[... cut for brevity ...]

It will take several pages and a couple days of writing to lay it out formally, but I think once it's done I'll send it off to the NRA-ILA. Maybe somebody will read it.

All, very well said.

 

[Skier]

As of Heller the 2nd was there to allow you to protect yourself and your family.

From...? I don't believe it specifies what you can protect your family from, and should reasonably and historically be assumed to be just about anything illegal, from a burglar, to a car jacker, to a rapist, to a corrupt government, to foreign invaders.

 

[Diamondback]

Interesting... So military type weapons are protected.... I want an M16 then... Perhaps every household should be issued one with a case of ammo and mandatory range practice...

Nammac for President!

 

[Skier]

Let's just say I had a little time off...
View attachment 344798

I'm not sure how you guys would fare against Trump, but if you were running against Clinton, I'd certainly have voted for you. LOL

 

[Skier]

Interesting... So military type weapons are protected.... I want an M16 then... Perhaps every household should be issued one with a case of ammo and mandatory range practice...

There were states that have, in the past, had laws stating that every able-bodied male between 18-45 years of age was required to have a firearm similar to military issue, and ammo for it, and if they didn't they could be fined, except in the case where there was undue financial hardship, in which case they would provide one.

I probably didn't have the wording perfect (from memory), but that was the gist of it. Some of that reference can be found in U.S. v. Miller:

United States v. Miller

 

[Stomper]

You see? SPIDER MONKEY!!

 

[Stomper]

Nammac for President!

Nammac.... look at his hands, he has tiny hands!

 

[11Charlie]

Nammac for President!

NO NO NO Stomper / President Etrain / Vice President and Nammac secretary of state

I promise @Stomper we won't run out of bombs



MURICA

 

[nammac]

Nammac.... look at his hands, he has tiny hands!

Next thing I know, you'll be referring to me as Little Nammac!!!!

 

[Stomper]

 

[Diamondback]

Given the rumblings about Kennedy possibly retiring, and Ginsburg's age... I'd like to see Kozinski be next after Gorsuch.

Kozinski is the guy who in a 9th Circus dissent referred to 2A as a "Doomsday Clause," citing the Founders' original insurrectionist language and that it was meant from Day One to ensure armed revolt was available as the ultimate Reset Button in the event of the unthinkable...

 

[Caveman Jim]

Okay, let's get Gorsuch on the bench then push this craptacular decision up to SCOTUS for a proper pro-2A ruling.

Robert's better get reeled in, that boy is sleepin with the enemy as of late!!!!

 

[wired]

Robert's better get reeled in, that boy is sleepin with the enemy as of late!!!!

He has been almost from day one. One of GW's bigger blunders if you ask me.