Thursday, July 3, 2008

A Thought on EBR's

I think Heller might very well take the possibility of a future federal "Assault Weapons Ban" off the table. Hopefully we can win an incorporation case and AWB's at the state and city level will be overturned. I have relatives who live right outside of Denver County, so I'd love to see their AWB fall. Colorado is a great pro-gun state aside from Denver (and their idiot governor who amended the CCW laws, invalidating reciprocity with all non-resident permits for out of stater's.)

In Heller the majority wrote,

"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, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster."

Aren't "assault weapons" an entire class of "arms" under the 2nd Amendment, even if the term "assault weapon" is a legislative creation with no set definition?

More important is the following passage from the Heller majority,

"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.” We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.

The Court is clearly saying that weapons "in common use" (particularly those used for individual/home defense) constitute protected arms under the 2nd Amendment. Later in the opinion the Court says that the prohibition of "dangerous and unusual" weapons would be permissible, however this statement comes in the context of their discussion of weapons "in common use" as being protected. I've heard some say that AWB's may pass Constitutional muster because such weapons are "dangerous and unusual" but I fail to see how a weapon can be both "unusual" and "in common use" simultaneously.

So the most pertinent questions are,

1. Are the "arms" banned under a Federal AWB currently "in common use" among the civilian population?

2. Are they commonly used for self-defense and defense of the home?

Assault Weapons bans are so expansive and encompass so many different types of weapons I think it's difficult to determine whether each banned weapon listed is "in common use." The AR-15 however, is banned under every AWB I've ever seen. It's a difficult sell to say that AR's are "unusual" or not "in common use." For one, almost every police agency issues AR's to their patrol officers. They're also commonly used by civilians participating in CMP training (as is the M1 Garand which is also often considered a banned "assault weapon." CMP directly impacts the training and arming of "the militia." I would hope this point might resonate with the dissenters in Heller, although I'm not sure any logic would resonate with Stevens or Breyer given the audacity of their dissenting opinions. They seemed to have their minds made up irrespective of logic and facts and were running in logical circles in a vain attempt to justify their personal prejudices.

In addition, Joe Poyer, author of "The M16/AR-15 Rifles - A Shooter's And Collector's Guide" had this to say about the AR-15 platform.

"The AR15 rifle, has been manufactured in the hundreds of thousands by more than a dozen different companies. It is the current National Match Service Rifle and the most popular target match rifle in use today."

I think that in the event we see pro-gun advocates challenge the constitutionality of either federal or state/local level AWB's, the popularity and widespread civilian use of the AR-15 could be the key to striking down laws banning such weapons. Also, although I don't have a quotable source handy I'm fairly sure AR's are extremely popular for home-defense as well. The AR-15 has obvious self-defense and militia applications. I believe that like handgun bans, AWB's banning AR's would be unconstitutional under the reasoning set forth in Heller. I hope to be proven right in the near future.

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