Suggestion for compromise gun legislation

I deliberately used the nonsensical rhetoric from the anti-gun side to make my point in terms they understand.

 

I’m going to disagree slightly to make sure of a point. The Heller Court did not view “common use” as a question of whether the weapon is considered suitable for “common usages” like hunting. Rather, Heller considered it a question of whether the weapon was “in common use”—that is—commonly owned. It is a significant distinction—and one I believe was very deliberate. Here is why…

If we argue that “common use” means usefulness for a particular lawful purpose, then we have deal with the actual holding in U.S. v Miller—a case Heller did rely upon. Miller absolutely conditioned its rejection of the 2nd Amendment claim on a usefulness test:

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. U.S. v. Miller, 307 U.S. 174, 178 (1939).

The only fair reading of this holding in Miller suggests that if a person could show that a weapon he possessed “is part of the ordinary military equipment” or that “its use could contribute to the common defense” then the 2nd Amendment would protect his RKB that firearm.

And this is so even if you condition the “common use” language to mean useful for “lawful and legal purposes” as you suggest. Miller said militia service was one of those purposes, and it discussed the history of American militia service:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of the Colonies and the 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 a kind in common use at the time. U.S. v. Miller, 307 U.S. 174, 179 (1939).

And so if “common use” equals suitability for a “lawful and legal purpose” as you suggest, then we have to deal with the fact that actual militia service is one of those purposes—for Congress retains the power in Article I section 8 to order me to bring and use my private firearm for militia service.

Therefore, if suitability of the weapon to a lawful use is the test, then Miller clearly implies fully automatic firearms like the ones our militias currently issue to militia members would be protected for individual possession and use outside the militia—with the acknowledgement that if called for militia service we could be required to bring them for our militia use.

This would, of course, invalidate all prior laws either banning or severely restricting fully automatic weapons.

The Heller court clearly wanted to avoid that outcome, so rather than carving up a big helping from Miller it merely shaved off a portion it liked and made something new out of it as a way of justifying the continued effective prohibition against fully automatic weapons.

Heller did this by ignoring Miller’s actual holding and the usefulness test it adopted. Instead it focused on the history of private arms being required to support militia service, and in particular the “in common use at the time” language from Miller. Here is a short clip on it from Heller:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U.S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” District Of Columbia v. Heller, 554 U.S. 570, 627 (200

Here you see the Court also add the further caveat of “dangerous and unusual” weapons.

By doing this the Heller Court issued what is effectively an ex post facto benediction on the continued virtual ban of full auto firearms. The logic is this: Decades ago the government decided to effectively ban them—and so when Heller finally decides that guns must be in common use and not be both dangerous and unusual, the Government has already created a condition in which full auto firearms and no longer “in common use” and are both “dangerous and unusual”—because the previous ban made them so.

In any event the test is not one of suitability for a lawful use (a subjectively personal decision at best—just see how hotly contested the question can become over what is the best firearm for home defense….). As far as the handgun involved in Heller the test became, essentially, somewhat of a popularity contest:

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid. Heller, 554 U.S. at 629.

So here is a question? If we apply this standard rigidly then how do we address band new firearms that have not become “popular” yet? My guess is how they compare to ones that are already in “common use”—but I welcome everyone’s thoughts on it….

 

In Shew v Malloy, the majority opinion of the 2nd Circuit Court held "In the absence of clearer guidance from the Supreme Court or stronger evidence in the record, we follow the approach taken by the District Courts and by the D.C. Circuit in Heller II and assume for the sake of argument that these “commonly used” weapons and magazines are also “typically possessed by law‐abiding citizens for lawful purposes. In short, we proceed on the assumption that these laws ban weapons protected by the Second Amendment." They then later used the "dangerous and unusual" caveat, in some rather twisted logic, to uphold the complete ban on "assault weapons" and "high capacity magazines" in Connecticut and New York.

The phrasing in Heller stated "prohibiting the carrying of 'dangerous and unusual weapons' ", which if we compare to the Heller caveat of allowing the restriction of concealed carry, should perhaps have applied only to the open or concealed carry of these weapons rather than a total ban on ownership and use. Nearly all states have some restrictions in place for concealed carry but none prohibit the ownership of handguns, or their use in lawful manner such as defense in the home, target practice or competition.

 

Considering how the matter has been getting addressed lately, such is not likely to occur.

Semi-automatic firearms capable of accepting detachable magazines, regardless of form or configuration, have been freely available since the late nineteenth century in the united states. There is simply no way to claim that any such firearm or magazine is not in common use, due to how long they have existed, and are some of the most popular types of firearm on the market.

Both the Heller and McDonald ruling clarified that the second amendment pertains to lawful matters such as self defense. Hunting and target practice are no longer relevant to the discussion, except as a mere afterthought, and do not need to be used as justification.

The supreme court has held otherwise. In hearing oral arguments by the district of columbia pertaining to their mandate that all handguns be rendered disabled, the person making the argument claimed it was easily possible to render a firearm ready to be used for defensive purposes in as little as three seconds, even if the person was awoken in the dead of night. The supreme court rejected this argument, essentially stating that even a three second delay in one being able to freely exercise their rights is unconstitutional.

And how is one to determine just how much ammunition they may need?

 

None of which changes the fact that the state of California is still leading the nation in the number of firearm-related deaths they are experiencing annually, despite having some of the strictest firearm restrictions of any state. No attempts at diversion with per capita arguments is going to change that fact.

 

How can you not see that if State A has 1,000 people in it and has 100 gun deaths and State B has 100,000 people in it has and 2,000 gun deaths it is statistically safer to live in State B. That is as simple (sixth grade level really) as I can make it for you.

 

Statistics do not change facts.

Can you present anything that suggests the state of California has less firearms in circulation, legal as well as illegal, than any other state?

 

Statistics are facts. We can not move on until you understand what per capita means

 

Or until you understand demographics.

 

I understand them perfectly. What do you want to to do about it?

 

Once again you are incorrect. Statistics are not facts. Rather statistics are the collection, analysis, interpretation, and presentation of raw data. Statistics are only as accurate and reliable as the integrity of the one making the presentation, meaning they are changed to suit whatever message the presenter wants them to show, and support whatever position they are trying to prove.

Facts, however, are immutable, and do not change to fit the whims of the one who is trying to prove their claim as being accurate.

You are now claiming that you are completely unable to demonstrate that there are fewer firearms in circulation, legal or otherwise, in the state of California, than in any other state in the nation? And this is all due to an apparent but unprovable lack of understanding on the part of myself as to what exactly per capita means with regard to whatever argument you are attempting to make?

 

Enforce existing laws instead of making up new ones.

 

Statistics do not change. Once you complete a statistical equation that equation will always come out the exact same way every time. Only the interpretation changes. This is so very basic it is hard to go on. Until you understand these very basic concepts you will get this wrong. When did I ever claim that California firearms laws led to less guns. This is why you keep going wrong? You are making assumptions based on a lack of understanding of the baiscs.

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Or do both

 

Common sense and logic dictates that you'd enforce what you have first.

 

We can do more than one thing at a time.....why not do both.

 

Considering the track record of liberal lawmaking and lack of enforcement why would you?

 

The track record seems to be working of Chicago is 17th in per capita gun deaths.

 

Tell it to the parents and family members of those that have been murdered. Explain to them that the strict laws of their city are insuring that their suffering is not shared by ten times as many individuals. See if it provides them with any measure of comfort.

 

I think you would prefer Chicago be number one in per capita gun deaths like alaska. Interesting!

 

Really? Chicago is dead last in enforcement of Federal Gun Laws with a demographic of less than 1/3 of the general population accounting for 80% of the homicides. BTW 758 and counting as of today. LOL.

 

According to the center for disease control, and the most recent available data, the state of Alaska had a grand total of one hundred and forty two firearm-relate deaths.

 

The trouble with statistics is that they are used to intentionally mislead. Data is thrown out and criteria gets changed until they get the desired result.

 

Because you are deluding yourself if you think passing new laws will magically create enforcement of old or new laws.

 

Statistics are facts.

You want some per capita stats?
States with the least gun control has the lowest per capita gun murder rates.

Idaho 1.14
Montana 0.76
New Hampshire 0.53
Utah 0.97
Vermont 0.75
South Dakota 0.68
Wyoming 2.01

Compare that to states with strict gun laws...
California 3.25
Illinois 2.93
Pennsylvania 3.97
Maryland 3.7
New York 4.12
New Jersey 3.07

https://www.theguardian.com/news/datablog/2011/jan/10/gun-crime-us-state#data

 

From the FBI UCR for 2015, Alaska has 8.0 murders per 100,000 people, the City of Chicago has 17.5.

Chicago's firearm related homicide rate is 15.4, almost twice Alaska's homicide rate for all causes including firearms.

You totally fail. Again.