Kolbe en banc decision

Boxcab · Feb 28, 2017

ddestruel said:
Miller court rules that SBS have no protections because they are not in use by the military

Heller rules weapons in common use (handguns) are protected.

Mcdonald applies due process incorporation to the states

Kolbe out of the 4th circuit then says the AR15 has military purposes regardless of being in common use is not protected or given any consideration

So not for military uses = not protected when talking about SBS

Then if it is for military purposes = not protected when talking about the AR15

But a handgun for self defense protected

Thank you for attempting to re-rail this run away thread drift.

PS: Nice summary.

.

BeoBill · Feb 28, 2017

abu Haqiqa said:
It seems like your underlying point is, "things aren't going exactly the way I want them to, therefore the system is broken." But that's not how things work. We have a beautiful system of checks and balances. It usually works, though not always immediately in every instance, and never to everyone's satisfaction. The only way someone gets everything they want is to become a dictator, which is, you know, what the Constitution was explicitly designed to prevent from happening.

The limitation on the ruling class is VOTING. Roughly 92 million eligible voters sat out the 2016 elections. Off-year elections can often be won with support from around 20% of the eligible populace in that jurisdiction. For example, Hogan won the gov election with fewer than 900k votes in a state with 3.9 million registered voters (~23% of eligible). Most Americans just can't bother to put their phones down long enough to become engaged and involved...

Most eligible Americans confuse Facebook and Twitter with the voting booth, IMO.

Now back to the thread, already in progress.

teratos · Feb 28, 2017

BeoBill said:
Most eligible Americans confuse Facebook and Twitter with the voting booth, IMO.

Now back to the thread, already in progress.

Seems to be the trend....

BigSteve57 · Feb 28, 2017

ddestruel said:
Miller court rules that SBS have no protections because they are not in use by the military

Heller rules weapons in common use (handguns) are protected.

Mcdonald applies due process incorporation to the states

Kolbe out of the 4th circuit then says the AR15 has military purposes regardless of being in common use is not protected or given any consideration

So not for military uses = not protected when talking about SBS

Then if it is for military purposes = not protected when talking about the AR15

But a handgun for self defense protected

Regarding Miller. That ruling said or implied that arms NOT in use by the military were the only arms that could be regulated. In other words, 2A protects my AR style rifle, my NEW m16 BECAUSE they are military or military-like guns. So it's actually pappy's 12 gauge duck gun that can be regulated.

Am I off base here?

dogbone · Feb 28, 2017

One of the most disastrous things about Miller, at least as far as 2A Rights are concerned, was that no sort of defense was ever made. The defendant was a small time bootlegger and general thug who was on the run and his original attorney wasn't interested in footing the bill for a trip to D.C. The government had free rein that day in court. The case was decided because the judges had no evidence before them that the military had ever used short barrel shotguns. It would not have taken a competent attorney mounting a spirited defense very long to produce evidence that the Army had indeed signed a contract for several thousand such firearms during WW I.

Mark75H · Feb 28, 2017

BigSteve57 said:
Regarding Miller. That ruling said or implied that arms NOT in use by the military were the only arms that could be regulated. In other words, 2A protects my AR style rifle, my NEW m16 BECAUSE they are military or military-like guns. So it's actually pappy's 12 gauge duck gun that can be regulated.

Am I off base here?

Only his side by side and bolt gun - military uses semi shotguns :cool:

jcutonilli · Feb 28, 2017

BigSteve57 said:
Regarding Miller. That ruling said or implied that arms NOT in use by the military were the only arms that could be regulated. In other words, 2A protects my AR style rifle, my NEW m16 BECAUSE they are military or military-like guns. So it's actually pappy's 12 gauge duck gun that can be regulated.

Am I off base here?

You are off base. The military does not have to actually use it to be protected. Miller found that you need to demonstrate a "reasonable relation to the preservation or efficiency of a well regulated militia". The court could not determine if SBS was related to the militia and remanded the case to the lower court to determine if this relationship existed.

dogbone said:
One of the most disastrous things about Miller, at least as far as 2A Rights are concerned, was that no sort of defense was ever made. The defendant was a small time bootlegger and general thug who was on the run and his original attorney wasn't interested in footing the bill for a trip to D.C. The government had free rein that day in court. The case was decided because the judges had no evidence before them that the military had ever used short barrel shotguns. It would not have taken a competent attorney mounting a spirited defense very long to produce evidence that the Army had indeed signed a contract for several thousand such firearms during WW I.

The lack of defense did not really affect to outcome. It could have made a much worse determination if it had simply accepted the governments arguments;
The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.
The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization.

The Army bought a 20 in version of the 1897 pump shotgun (beginning in 1917). It did not buy NFA defined SBSs (<18 in in barrel length). The NFA did not exist at the time (enacted in 1934). The typical length of that shotgun at the time was in excess of 25 in. A 20 inch version would have been considered a short barreled shotgun because it had a shorter than normal barrel.

jcutonilli · Feb 28, 2017

ddestruel said:
Miller court rules that SBS have no protections because they are not in use by the military

Heller rules weapons in common use (handguns) are protected.

Mcdonald applies due process incorporation to the states

Kolbe out of the 4th circuit then says the AR15 has military purposes regardless of being in common use is not protected or given any consideration

So not for military uses = not protected when talking about SBS

Then if it is for military purposes = not protected when talking about the AR15

But a handgun for self defense protected

The problem is not in Miller, it is the way Heller narrowed Miller. It tried to weave a fine line trying to include handguns but not declare the machine gun ban unconstitutional and still allow other arms. Apparently at least 10 judges find this explanation confusing. In hind sight the explanation could have been better. It puts a statement "M-16 rifles and the like" into the middle of a conditional sentence, but does not really explain how this is to be interpreted.

Brooklyn · Mar 2, 2017

jcutonilli said:
The problem is not in Miller, it is the way Heller narrowed Miller. It tried to weave a fine line trying to include handguns but not declare the machine gun ban unconstitutional and still allow other arms. Apparently at least 10 judges find this explanation confusing. In hind sight the explanation could have been better. It puts a statement "M-16 rifles and the like" into the middle of a conditional sentence, but does not really explain how this is to be interpreted.

They are not confused. They are in opposition to it.

Period.

Southwest Chuck · Mar 14, 2017

Here is part 4 of the The Arbalest Quarrel's Post on the Kolbey Case, and is well worth the read, IMO. Links to the previous 3 posts are there as well for those who are interested.

THE U.S. DISTRICT COURT OF MARYLAND IGNORES U.S. SUPREME COURT PRECEDENT, OPENLY AND BLATANTLY DEFYING HELLER.

Justice Scalia knew full well a lower Court would foreordain the result it wanted, through any standard of review the high Court might articulate. Thus, a lower Court could cloak a wrongly decided case by simply pointing to the standard the high Court happens to tell a lower Court to use, and, in so “applying” that standard, uphold a facially unconstitutional law, finding the law to be perfectly valid and, hence, lawful, when in fact it isn’t.

But, Justice Scalia did not, apparently, realize the lengths to which a lower Court would go to defend governmental actions directed to the core of the Second Amendment even if such Courts flirt with injudicious defiance of clear U.S. Supreme Court precedent.

teratos · Mar 14, 2017

BigSteve57 said:
Regarding Miller. That ruling said or implied that arms NOT in use by the military were the only arms that could be regulated. In other words, 2A protects my AR style rifle, my NEW m16 BECAUSE they are military or military-like guns. So it's actually pappy's 12 gauge duck gun that can be regulated.

Am I off base here?

You are wrong on one point. If you look at this through the lens of Miller the 2A does not cover your AR-style rifle. It would cover your M-16/M4.

jcutonilli · Mar 14, 2017

teratos said:
You are wrong on one point. If you look at this through the lens of Miller the 2A does not cover your AR-style rifle. It would cover your M-16/M4.

I think your reasoning is flawed. The M-16/M4 is a select fire weapon. When the M-16/M4 is in semi automatic mode, it is essentially identical to the AR-style rifles. Maryland specifically said the semi automatic mode makes the firearm more effective. Therefore there is "some reasonable relationship to the preservation or efficiency of a well regulated militia" because it s essentially identical to the most effective mode of the rifle.

swinokur · Mar 14, 2017

i think it was meant to be a little bit tongue-in-cheek

teratos · Mar 14, 2017

jcutonilli said:
I think your reasoning is flawed. The M-16/M4 is a select fire weapon. When the M-16/M4 is in semi automatic mode, it is essentially identical to the AR-style rifles. Maryland specifically said the semi automatic mode makes the firearm more effective. Therefore there is "some reasonable relationship to the preservation or efficiency of a well regulated militia" because it s essentially identical to the most effective mode of the rifle.

The Maryland rationale is true. If you talk to special ops guys, they will tell you that FA has very limited utility. SA is what they usually use. Why spray all your ammo away if you can do the same job and control your weapon better with SA?

That said, if you look at the Miller decision, the litmus test was what is used by the military. The military uses a select fire rifle. A neutered copy is not the exact same thing. Miller would not cover only a neutered copy and not the real deal.

jcutonilli · Mar 14, 2017

Southwest Chuck said:
Here is part 4 of the The Arbalest Quarrel's Post on the Kolbey Case, and is well worth the read, IMO. Links to the previous 3 posts are there as well for those who are interested.

THE U.S. DISTRICT COURT OF MARYLAND IGNORES U.S. SUPREME COURT PRECEDENT, OPENLY AND BLATANTLY DEFYING HELLER.

I did not think it was worth the read. It essentially rehashed the Kolbe (DC,NY,CT,IL,CO) argument that was denied cert by SCOTUS at least three times. It also failed to mention the biggest difference in the opinions, which is that they have no second amendment protections.

jcutonilli · Mar 14, 2017

teratos said:
The Maryland rationale is true. If you talk to special ops guys, they will tell you that FA has very limited utility. SA is what they usually use. Why spray all your ammo away if you can do the same job and control your weapon better with SA?

That said, if you look at the Miller decision, the litmus test was what is used by the military. The military uses a select fire rifle. A neutered copy is not the exact same thing. Miller would not cover only a neutered copy and not the real deal.

I quoted the Miller decision. Nowhere in that decision does it state that it only applied to exact matches. The standard set by Miller was "some reasonable relationship to the preservation or efficiency of a well regulated militia". In Miller there was zero evidence of any relationship to a well regulated militia. They actually remanded the case to determine if some evidence could be produced.

teratos · Mar 14, 2017

jcutonilli said:
I quoted the Miller decision. Nowhere in that decision does it state that it only applied to exact matches. The standard set by Miller was "some reasonable relationship to the preservation or efficiency of a well regulated militia". In Miller there was zero evidence of any relationship to a well regulated militia. They actually remanded the case to determine if some evidence could be produced.

Regardless of efficacy, Miller implied that the arms covered by 2A would be those in use by the military, suitable for military service. Are there any militaries anywhere in the world that do not use a select fire rifle?

Cal68 · Mar 14, 2017

Sorry if this question has already been asked and answered, but do we know if Judge Neil Gorsuch is as big a 2A supporter as Justice Scalia was? Thanks.

Cal68

jcutonilli · Mar 14, 2017

teratos said:
Regardless of efficacy, Miller implied that the arms covered by 2A would be those in use by the military, suitable for military service. Are there any militaries anywhere in the world that do not use a select fire rifle?

If the military is actually using a particular arm, it is quite easy to prove "some reasonable relationship". What you fail to grasp is that it is not exclusively limited to the arms the military uses. "Some reasonable relationship" implies that it is not an exclusive relationship. Snipers still use bolt action rifles they are not select fire rifles. Most artillery are rifles but they are not select fire. There are lots of examples of non select fire rifles currently being used.

teratos · Mar 14, 2017

jcutonilli said:
If the military is actually using a particular arm, it is quite easy to prove "some reasonable relationship". What you fail to grasp is that it is not exclusively limited to the arms the military uses. "Some reasonable relationship" implies that it is not an exclusive relationship. Snipers still use bolt action rifles they are not select fire rifles. Most artillery are rifles but they are not select fire. There are lots of examples of non select fire rifles currently being used.

Specialty. The grunts, the bulk of the troops on the ground, carry a select fire rifle. Really minor in the grand scheme of things.

Kolbe en banc decision

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