Calif Ct of Appeals rules semiautos are not protected
Decision here, in pdf. The court essentially seizes upon Heller language saying the right has some limits, and proclaims that semi-autos, or at least "assault rifles," are at least as "dangerous and unusual" as the short barreled shotgun involved in Miller.
The inclination of the court is obvious. The situation probably indicates how essential it is to "develop a record" at the trial level. What proportion of firearms are "assault weapons"? One of the answers is that over 20% of current rifle production is by manufacturers who make nothing but AR-platform rifles.
The question is:
Will it be appealed? If not, why not?
Posted by: rspock at October 22, 2013 12:32 PM
And again those judges reach beneath their black robes, grab their crystal balls, and pull some stuff out their behinds. Where in the 2nd is there any limitation on Arms? Of course, it ain't there. We have a society that doesn't understand natural law and the sovereignty of the individual over the family which is then sovereign over society which is sovereign over government. The concept of government now in play in the US is the same old concept that the Framers fought against. That ancient idea believed government was in control and allowed subjects their rights. But those rights were not Rights as understood by the Framers. Rights come from God and are inalienable. The "rights" allowed by government are simply renamed privileges and immunities and are not synonymous with the Rights enumerated in the Constitution.
Posted by: fwb at October 22, 2013 02:17 PM
Although this case wasn't an example of so-called strategic litigation undertaken by California's Second Amendment advocacy groups (e.g., The Calguns Foundation), the result would have been the same.
Gene Hoffman is on record as being opposed to litigating Second Amendment issues “on the facts.” So evidentiary trial records will continue to be non-existent in California.
Posted by: Glen at October 22, 2013 03:47 PM
Incredible misreading of Miller (and Heller for that matter). The court even cites the Miller text that if a weapon doesn't bear a reasonable relation to militia service, it is not protected by 2A. An AR platform weapon bears no relation to militia service? Really?
Posted by: My Name Is Earl at October 22, 2013 08:24 PM
The firearm in question was an AK style. But i agree with everything else you said. It was a complete misunderstanding of Heller and Miller. Miller said all weapons capable of military service, such as AK, AR, etc were protected. Then Heller went on to say that all arms in common use are protected. It would be hard to say that an AK is not a military arm, or not in common use.
Posted by: Joel Stoner at October 22, 2013 10:39 PM
The short-barreled shotgun in Miller wasn't deemed by that court to be dangerous and unusual. The court never applied that test. The court errantly thought that because the gun in question had no relationship to the militia, it therefore fell outside of 2A protection.
We know now, of course that "SBS's" were in wide use for trench warfare in the 1st and 2nd world war.
Also, Heller "read" Miller thusly:
"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."
"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, such as short-barreled shotguns."
Of course, as we know, the AR15, AK47 in their civilian, semi-auto-only variants, and every other semi-automatic rifle which shares identical performance characteristics with these arms, are in wide common use for every imaginable lawful purpose.
Posted by: Christopher J Hoffman at October 30, 2013 06:22 AM