helomech
Extreme Tracker
Reged: 11/14/07
Posts: 3816
Loc: Latexo, tx
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I am trying to read the entire ruling on the d.c. gun ban. It is 157 pages, but I ran across this in my reading.
We may as well consider at this point (for we will have
to consider eventually) what types of weapons Miller
permits. Read in isolation, Miller’s phrase “part of ordinary
military equipment” could mean that only those
weapons useful in warfare are protected. That would be a
startling reading of the opinion, since it would mean that
the National Firearms Act’s restrictions on machineguns
(not challenged in Miller) might be unconstitutional,
machineguns being useful in warfare in 1939. We think
that Miller’s “ordinary military equipment” language must
be read in tandem with what comes after: “[O]rdinarily
when called for [militia] service [able-bodied] men were
expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.” 307 U. S., at
179. The traditional militia was formed from a pool of
men bringing arms “in common use at the time” for lawful
purposes like self-defense. “In the colonial and revolutionary
war era, [small-arms] weapons used by militiamen
and weapons used in defense of person and home were one
and the same.” State v. Kessler, 289 Ore. 359, 368, 614
P. 2d 94, 98 (1980) (citing G. Neumann, Swords and
Blades of the American Revolution 6–15, 252–254 (1973)).
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TexasTransplant
Bird Dog
Reged: 01/23/08
Posts: 331
Loc: TX, US, Earth, Sol, Milky Way
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It's like a word problem in math. You have to pick out the parts that matter to the point you are making. I don't think the Supremes are saying that Miller or the machine gun act may be unconstitutional. Rather, it seems that they're saying that a reading of Miller that would render the machine gun act unconstitutional would be an improper reading of the decision. See emphasis below.
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)).
They appear to be saying that the proper reading of Miller is that it proscribes the use of weapons that might not have a legitimate purpose in defense of home or person. If anything, this probably does more to legitimize "sawed off" shotguns than anything else. It's hard to argue against a short shotgun down the hallway as serving a legitimate defense purpose. In fact, a shotgun probably does better than a machine gun.
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Cervidae beware
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helomech
Extreme Tracker
Reged: 11/14/07
Posts: 3816
Loc: Latexo, tx
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But miller was saying the only reason the sawed off was illegal was because it was not part of ordinary military equipment. There is another phrase, let me find in that reinforces my beleif.
It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty. It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks. But the fact that modern developments have limited
the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the
right.
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TexasTransplant
Bird Dog
Reged: 01/23/08
Posts: 331
Loc: TX, US, Earth, Sol, Milky Way
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Quote:
But miller was saying the only reason the sawed off was illegal was because it was not part of ordinary military equipment. There is another phrase, let me find in that reinforces my beleif.
...Which then turned out to be wrong because they were used widely in the trenches of WWI, which poses a problem for interpreting Miller over time.
I think this court is saying that reading Miller to mean the equipment has to be of the type standardly used in the military would bring machine guns back into standard availability (of which they don't seem to like the idea). Alternatively, saying it only applies to stuff that can be used for defense of self and home would allow for short barreled shot guns, which these Supremes may actually think is OK.
For example, they say "But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty." This clearly states that they read the second amendment to mean that militia service entailed bringing whatever lawful weapon you could supply for yourself to your milita service. What constitutes "lawful" is itself a separate matter, leaving open the doorway to some restrictions.
They go on to say that the original purpose of the militia is obviated by modern arms. That sentiment suggests either the people may not privately own tanks or it may suggest that the court acknowledges people simply cannot afford to own them (in sufficient quantity) for militias to do as intended at the time of the framing. However, they go on to say that regardless of the fact that militias outfitted with commonly legal arms (those being used for defense of self and home) can not stand up against modern armies of nations, that is irrelevent to protecting the right to keep and bear arms as they have described it.
In short, they're saying that militias of able bodied men (adults) with weapons they may lawfully posess (for the purposes of defending self and home) will probably get trounced in war versus a national army (whether you take the permission view or the economic view) but, even so, the people's right to have such arms remains in a protected right. This is my understanding of the ratio decidendi, and it suggests to me that laws about things like cheap hand guns and short barreled shot guns and other clearly nonsensical  are in danger of being declared unconstitutional but laws in place covering destructive devices will remain in force.
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Cervidae beware
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helomech
Extreme Tracker
Reged: 11/14/07
Posts: 3816
Loc: Latexo, tx
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I thought the trench guns is WWII had barrels longer than 18". Maybe that is where they got the 18" number. BTW that law only applies to smooth bore weapons, that is how derringer and taurus make shot guns with a 3" barrel. At the time of the civil war it was legal to buy a gatlin gun, just very few could afford them. It clear that the 2nd ammendment doesn't just apply to defending the home. I am dying to see how this all turns out. No matter how we look at it, it is a huge win for us. Worse case restrictions will not get any worse, best case they will get better. 
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helomech
Extreme Tracker
Reged: 11/14/07
Posts: 3816
Loc: Latexo, tx
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From what I have found the trench gun had a barrel length of 19.5 ". Here is the first link I found.
http://www.modelguns.co.uk/m1897.htm
here is a better link, it lists it as a 20" barrel.
http://en.wikipedia.org/wiki/Winchester_Model_1897
Edited by helomech (06/29/08 11:42 PM)
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TexasTransplant
Bird Dog
Reged: 01/23/08
Posts: 331
Loc: TX, US, Earth, Sol, Milky Way
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There is some reason to be concerned that restrictions will get worse. The Supremes didn't toss out restrictions wholesale. The Brady people indicated that the ruling provided them with direction to pursue their agenda while taking away the NRA's big disarmament scare tactic. They will shoot (no pun intended) for background checks on private transfers (because that doesn't interfere with the right to defend your self or your home). They will probably continue to strike out at black guns, but I'm not sure the Supremes will let the assault weapon ban stick at this point.
Anybody wanna meet up at the Garland public range sometime soon to celebrate?
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Cervidae beware
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helomech
Extreme Tracker
Reged: 11/14/07
Posts: 3816
Loc: Latexo, tx
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I think the Brady people are down, and are just trying to say anything to make their people feel better. I am against the private sale background check, but it really has no affect on me. I will never sell another gun, and I have only bought one used gun in my life.
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TexasTransplant
Bird Dog
Reged: 01/23/08
Posts: 331
Loc: TX, US, Earth, Sol, Milky Way
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Quote:
I think the Brady people are down [...]
Gimme a sec to get my boots on and I'll help kick.
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Cervidae beware
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helomech
Extreme Tracker
Reged: 11/14/07
Posts: 3816
Loc: Latexo, tx
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I don't mean down and out, but they are upset, and hurt right now.
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Jag351
Green Horn
Reged: 06/10/08
Posts: 3
Loc: Abilene, TX
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I do think that the case puts a big hole in asault rifle ban attempts. And i hope that the NRA is right when they say that this is just the opening salvo.
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TexasTransplant
Bird Dog
Reged: 01/23/08
Posts: 331
Loc: TX, US, Earth, Sol, Milky Way
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Well, the Supremes have said that it is an individual right to own firearms and to prance about with them in your house and that laws preventing you from doing that are unconstitutional. That pretty much closes the doors on laws that prevent you from buying a gun and taking it to your house, which puts limits on transportation laws. That pretty much closes the doors on all the DC-like "registration required but registering is illegal" games. However, I don't think that makes it illegal for states to bar open carry or concealed carry (provided transportation to the home is allowed). I also don't think that makes it illegal for states to bar certain types of weapons but it wont be easy to do now. If one is entitled to home defense, then how can one bar an AR-15 but permit a much more powerful .308 in some traditionally shaped weapon with a wooden stock?
There's plenty of room for fighting.
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Cervidae beware
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helomech
Extreme Tracker
Reged: 11/14/07
Posts: 3816
Loc: Latexo, tx
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Also the law in Texas that requries gun storage with kids in the home may have to go away.
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TexasTransplant
Bird Dog
Reged: 01/23/08
Posts: 331
Loc: TX, US, Earth, Sol, Milky Way
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Quote:
Also the law in Texas that requries gun storage with kids in the home may have to go away.
What is that law? 
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Cervidae beware
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Sniper John
Pro Tracker
Reged: 08/31/05
Posts: 1671
Loc: Farmers Branch
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IMO, comparing the "machine gun act" and short barreled shotguns are very different things. I, you, civilians can currently legally purchase and own a newly manufactured or converted short barreled shotgun following an extensive background check and a one time $200.00 tax. Background checks and a tax would not likely change if contested due to the new constitutional ruling. But there are some State and local laws that entirely prohibit civilian possession of short barrelled shotguns that could and should be contested due to the new ruling.
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Sniper John
Pro Tracker
Reged: 08/31/05
Posts: 1671
Loc: Farmers Branch
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Quote:
Quote:
Also the law in Texas that requries gun storage with kids in the home may have to go away.
What is that law?
Been around since 2005. See 46.13 in the Texas Government Code.
http://www.atf.treas.gov/firearms/statelaws/22ndedition/texas.pdf
I don't see how the newest constitutional ruling could have any change on this one.
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I do not hunt to enjoy nature. I enjoy nature because, through hunting, I have become part of it
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helomech
Extreme Tracker
Reged: 11/14/07
Posts: 3816
Loc: Latexo, tx
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Quote:
Quote:
Quote:
Also the law in Texas that requries gun storage with kids in the home may have to go away.
What is that law?
Been around since 2005. See 46.13 in the Texas Government Code.
http://www.atf.treas.gov/firearms/statelaws/22ndedition/texas.pdf
I don't see how the newest constitutional ruling could have any change on this one.
Because that was part of the ruling of the supreme court. Guns in Washington DC are requried to be locked up and not loaded. They found that that was unconstitutional.
The handgun ban and the trigger-lock requirement (as applied to
self-defense) violate the Second Amendment. The District’s total ban
on handgun possession in the home amounts to a prohibition on an
entire class of “arms” that Americans overwhelmingly choose for the
lawful purpose of self-defense. Under any of the standards of scrutiny
the Court has applied to enumerated constitutional rights, thisprohibition—in the place where the importance of the lawful defense
of self, family, and property is most acute—would fail constitutional
muster. Similarly, the requirement that any lawful firearm in the
home be disassembled or bound by a trigger lock makes it impossible
for citizens to use arms for the core lawful purpose of self-defense and
is hence unconstitutional. Because Heller conceded at oral argument
that the D. C. licensing law is permissible if it is not enforced arbitrarily
and capriciously, the Court assumes that a license will satisfy
his prayer for relief and does not address the licensing requirement.
Assuming he is not disqualified from exercising Second Amendment
rights, the District must permit Heller to register his handgun and
must issue him a license to carry it in the home. Pp. 56–64.
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TexasTransplant
Bird Dog
Reged: 01/23/08
Posts: 331
Loc: TX, US, Earth, Sol, Milky Way
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Blam.
Well, I've got and use a quick-open safe anyway.
I could really give a rat's entrails about being prosecuted on the misdemeanor but I'd probably shoot myself if my kid hurt himself with a gun that I put somewhere where he could (and did) get to it.
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Cervidae beware
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helomech
Extreme Tracker
Reged: 11/14/07
Posts: 3816
Loc: Latexo, tx
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I regularly test my kids. I put them in spots, where I can tell if they are moved (empty of course) when I am outside. I do leave loaded guns around, but my kids are NEVER home alone. To young IMO, 9 and 12. They regularly use their guns in my presence, and any slip of safety and they are grounded. I have instilled gun safety in them since they were babies. They are allowed to look at them anytime they want, all they have to do is ask.
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Sniper John
Pro Tracker
Reged: 08/31/05
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Loc: Farmers Branch
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But the CAP law in texas is different. It does not "ban handgun possession in the home", does not require your handgun to be "disassembled or bound by a trigger lock", nor are they required to be "locked up and unloaded". In fact one of the Texas CAP law defenses to prosecution listed is "consisted of lawful defense by the child of people or property".
(b) A person commits an offense if a child
gains access to a readily dischargeable firearm
and the person with criminal negligence:
(1) failed to secure the firearm; or
(2) left the firearm in a place to which the person
knew or should have known the child would
gain access.
(c) It is an affirmative defense to prosecution
under this section that the child’s access to the
firearm:
(1) was supervised by a person older than 18
years of age and was for hunting, sporting, or
other lawful purposes;
(2) consisted of lawful defense by the child of
people or property;
(3) was gained by entering property in violation
of this code; or
(4) occurred during a time when the actor was
engaged in an agricultural enterprise.
Break down the wording. Notice there is an "or" between
section "b" (1) and (2). Two options.
(1) failed to secure the firearm; or
(2) left the firearm in a place to which the person
knew or should have known the child would
gain access.
By looking at the definition of "secure" I can understand the confustion and concern.
"Secure" means to take steps that a reasonable
person would take to prevent the access
to a readily dischargeable firearm by a
child, including but not limited to placing a firearm
in a locked container or temporarily rendering
the firearm inoperable by a trigger lock or
other means."
But realize there is a (1) or (2) option.
So you can comply by option (1) with a trigger lock, making the gun inoperable, or by locking it up, etc.
*OR*
you can comply with option (2) by simply not leaving in a place to which you know or should have known the child would
gain access to it.
Intent of the law is to prevent unsupervised access of a loaded firearm by a child. It does not prevent you from owning, or having a redily dischargable firearm in your home for defense. You can reasonably find a way to have a gun ready for self protection, yet at the same time keep your children safe from an accident.
So again, IMO, I don't believe the current wording of at least the Texas CAP law could be challenged on consitutional grounds.
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helomech
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But with kids in the house, it is impossible to put it somewhere that is inaccesable. There fore you are breaking the law if it is not secured. And by doing so you no longer have quick access to the gun for self defense. Which was just found unconstitutional.   Which means the law is invalid.
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Sniper John
Pro Tracker
Reged: 08/31/05
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helomech,
I disagree, I believe it possible to keep a loaded firearm in the home readily accessible to the adult, yet the same firearm could then be made "reasonably" inaccesable to an unsupervised child when the adult is not present. From what you have stated about your home, you in fact could not fall under this law. You already comply with the context of the Texas CAP law and or meet requirements for one or more "affirmative defense to prosecution" aspects of this law same as me. My home is much like yours in regard to kids and guns.
Even the NRA Eddie Eagle program states to parents:
"Store guns so that they are inaccessible to children and other unauthorized users. Gun shops sell a wide variety of safes, cases, and other security devices. While specific security measures may vary, a parent must, in every case, assess the exposure of the firearm and absolutely ensure that it is inaccessible to a child."
Note I do think the Texas CAP law is unnecessary, The negligence is already covered under child endangerment law. If risk of losing a child can not deter a person from this kind of negligence, a misdemeaner charge after the fact is certainly not going to change them. Anyway, I just feel this law is worded in a way that it would be very difficult to challenge using the unconstitutional contexts of the "DC Gun Ban".
Reading your responses and taking them in, most I could see "b" (1) being unconstitutional placed as it is within the law. Having the weapon properly "secured" would have been better placed in "c" as another affirmative defense to prosecution. Because of "b" (2) that is how it would be applied anyway.
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helomech
Extreme Tracker
Reged: 11/14/07
Posts: 3816
Loc: Latexo, tx
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Quote:
helomech,
I disagree, I believe it possible to keep a loaded firearm in the home readily accessible to the adult, yet the same firearm could then be made "reasonably" inaccesable to an unsupervised child when the adult is not present. From what you have stated about your home, you in fact could not fall under this law. You already comply with the context of the Texas CAP law and or meet requirements for one or more "affirmative defense to prosecution" aspects of this law same as me. My home is much like yours in regard to kids and guns.
Even the NRA Eddie Eagle program states to parents:
"Store guns so that they are inaccessible to children and other unauthorized users. Gun shops sell a wide variety of safes, cases, and other security devices. While specific security measures may vary, a parent must, in every case, assess the exposure of the firearm and absolutely ensure that it is inaccessible to a child."
Note I do think the Texas CAP law is unnecessary, The negligence is already covered under child endangerment law. If risk of losing a child can not deter a person from this kind of negligence, a misdemeaner charge after the fact is certainly not going to change them. Anyway, I just feel this law is worded in a way that it would be very difficult to challenge using the unconstitutional contexts of the "DC Gun Ban".
Reading your responses and taking them in, most I could see "b" (1) being unconstitutional placed as it is within the law. Having the weapon properly "secured" would have been better placed in "c" as another affirmative defense to prosecution. Because of "b" (2) that is how it would be applied anyway.
I just don't like the word resonable. It is to open for interpretation. My views on resonable are probably very different than most peoples. Besides the law gives many outs for anyone keeping guns lying around. Such as a child using the gun in self defense.
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