Heller II is filed

It looks like the adventure is on to define the upper limit of the 2A! FWIW, I can only find this upper limit of physical arms limitation in the Constitution:

(Art. 1, Sec. 10.): "No State shall, without the Consent of Congress, lay any Duty of
Tonnage, keep Troops, or _Ships of War_ in time of Peace..."

Does that mean the upper limit permissible without Congressional interference is anything under a DE-class ship? Making tanks, artillery, and almost all land/air-based conventional weapon platforms okay?

Or will they just dissemble some more and make it up as they go along...

On another more useful note, here is the Heller II complaint:

http://www.washingtoncitypaper.com/blogs/citydesk/wp-content/uploads/2008/07/0728heller.pdf

I have not seen anywhere the history behind the District's archaic machine gun definition. It is a legacy of one of the first gun control attempts in the nation, after the 1911 NYC Sullivan law.

D.C.'s commissioners (the top Congressionally-appointed politicians in the city at the time) wrote the statute into its books in the early 1920s, mostly in response to the Bolshevik threat/boogieman that was winding down its grip on the nation.

And who came up with that "odd" definition of a machine gun? Er, um...(whisper)...the NRA.

Yeah, they dropped the ball on that one. Thankfully ILA came around a half-century later to stiffen their backbones.

Going after a defiant black mayor using a civil rights law is a delicious irony.

If you would care to write about it, I would be interested to know just why Dick Heller is going back to the lowest court. Couldn't he ask the Supreme Court, or perhaps the DC Circuit, directly for a writ of mandamus, since the DC City government is evading the decisions of both those courts in Heller I? Just for instance, DC's new "safe storage" requirement is obviously just as unconsitutional as their old one, so there would be no need for fact-finding...

(1) From the complaint:

"The District considers a semiautomatic firearm which does not shoot more than 12 shots without manual reloading to be a “machine gun” under the theory that it “is designed to shoot, or can be readily converted or restored to shoot” more than 12 shots, even though the person in possession of the firearm has no ammunition feeding device that would allow it to do so."

As a point of fact, the above should be amended to end:

"...even though the person in possession of the firearm has no ammunition feeding device that would allow it to do so, and in many cases, no such feeding device has ever been manufactured for that firearm."

(2) Also, because of the wording of the complaint, you can expect DC (after losing) to keep the absurd 'machine gun' definition for rifles, thereby requiring _another_ suit.

(3) Can any lawyer out there please explain to me why Heller hasn't filed a Civil Rights lawsuit against Fenty, Lanier, and the entire DC Council?

Baby steps. The 2A originalists need to step back up a 75+ yr old slippery slope.

I'm optimistic that as long as Heller doesn't ask for too much then the lower court will give him what he wants and the higher courts will refuse to hear DC's appeals. Therefore the case should go a lot faster than the original one did. What I really liked was the idea of Congress passing a law to allow DC residents to purchase from out of state, thus bypassing DC's onerous gun store zoning approvals.

Can someone please explain to me why they don't just go after DC requiring registration of a right as an unconstitutional infringment?

They could word the registration challenge to focus on commonly available firearms thus leaving NFA for a later time. This would be great because then the later fight would only be about defining what is "commonly available".

Won't going after the fees only basically set precedent that registration of a right is constitutional?

I know many people say baby steps but it REALLY IRKS me to see licensing of a right. Licensing/registration really means its a privilege.

If they can just hold the line then some day Fenty and Daley will wind up heroes of the Gun Rights side.

If not for their obstinate idiocy none of this would be possible.

The reason baby steps are probably necessary is because a large number of Americans have accepted licensing and registration for so long. The fact is that even many pro-rights types balk when the subject turns to M-16s.

What we are dealing with is a major eductional effort. I have provided the relevant historical sources without comment so that anyone can look at them and make up their own minds. I have also recently provided a straightforward explanation of the most relevant sources that can help even gun control advocates to get back on the appropriate Bill of Rights track for the Second Amendment if they choose to look at it.

My two favorite sayings are -
You can drag a horse to water, but you cannot make it drink - and -
You will never regret studying the Founders' own views.

"You can drag a horse to water, but you cannot make it drink - and -
You will never regret studying the Founders' own views." David E.Young.

You can if you "brick" him.

Poshboy,
That applies to the States, not the PEOPLE. To the best of my knowledge there is no upper limit in the Constitution.

Ilya Somin writes in "Locked Liberties", Legal Times vol 31, no 30, July 28, 2008 that, "Heller applies only to the District of Columbia and other territories controlled by the Federal government."

Such as?: BLM land? National Parks? Guam, Puerto Rico and the U.S. Virgin Islands? U.S. Embassy's abroad? Military reservations? Enquiring minds want to know where this new-found right is legal to exercise.

Does anyone know of a list where Heller applies beyond D.C.?

Jim D.,

Explaining the Heller decision to some one is hard. I know, I've done it.

Heller recognizes the 2A as an individual right, and also recognizes self-defense as a valid reason to own a gun.

Since it was argued through only the Federal court system, it doesn't affect any state. At worst, it only affects DC. At best, it only affects federally controlled areas, like the ones you mentioned.

Heller is not a magic bullet, striking down all gun laws. It is a major strike at the keystone, though. That keystone was the "collective rights" argument.

What Heller does, is to put every legal jurisdiction on notice that their gun regulations may be unconstitutional. They will have to review their regulations and amend them, or hope that they can win in court.

I think that the biggest impact will be on those states that restrict open carry, and those states that prohibit concealed carry except for certain classes of people. Basically, the "May Issue" states.

Right now, beyond DC, Heller doesn't apply anywhere.

Heller didn't solve anything. It opened a can of worms that could take 20 years to unravel.

Not all pro-rights supporters even agree on exactly what arms are the "arms" intended in the Second Amendment. Neither do they agree on other points such as what the original intent was regarding obviously not intended protections, such as for violent individuals who do not fit the "peaceable citizens" mentioned by Sam Adams, or the Pennsylvania Minority's mention of "crimes committed or real danger of public injury from individuals" exception in their proposal. It seems to me that the pro-rights people have to get a better grasp of exactly what the Founders intended before they can go to court and get back what has been taken away over two-hundred+ by government in the U.S. You sort of have to know what you're missing to have some idea of what to get back.

This is an educational challenge even for pro-rights types. I have provided the entire record from the Ratification Era in The Origin of the Second Amendment and a concise and straightforward explanation of every relevant fact in my very new and largely unknown book, The Founders' View of the Right to Bear Arms. These two books were cited a total of 61 times in the Heller briefs, including Origin six times in Justice Scalia's majority opinion.

If those who constantly suggest going to court in the aftermath of Heller do not make full use of the actual complete historical record so they thoroughly comprehend what the Founders' intended, it will be a major screwup on pro-rights supporters part. There is actually a lot more historical information contained in my document collection and history than was presented to or in the Heller case.

Let us hope that Heller does not end up like Miller - routinely misunderstood by those favoring gun control with those in opposition to them not making effective use of all the facts of our history to promptly correct those in error.

As one small example of what I refer to here, how many who read this can state with certainty who actually wrote the Bill of Rights that was clearly the foundation for the U.S. Bill of Rights?

If you immediately thought of James Madison, you DO NOT understand U.S. Bill of Rights history well enough to effectuate the type of win in court that is needed to restore American's violated rights, IMHO. I strongly suggest you consider reading all of the relevant information that is available.

That was George Mason, at least according to Amar. Too easy.

I find it interesting that Justice Scalia used the words “presumption” and “presumptively” in two separate areas of his written Heller opinion.

On page #7 of the majority opinion Justice Scalia states, “We start therefore with a strong presumption that the 2nd Amendment right is exercised individually and belongs to ALL AMERICANS.” [my emphasis]

He goes on to write for the majority that the right to keep and bear arms IS an individual right. [my emphasis] It follows now that Heller has been decided, the individual right to keep and bear arms is now no longer a “presumption”.

On page 54 of the majority’s opinion Justice Scalia recognized what he refers to in footnote #26 on page 55 as “presumptively lawful regulatory measures” the fact that presently felons are prohibited from possessing firearms. And, that the court’s opinion should not be taken to cast doubt on that particular regulation or other similar regulatory legislation or agency rules.

It appears that Justice Scalia was attempting to target only the DC ordinances in question and that the court intends that challenges to;

1] felons and mental incompetents with firearms,
2] the carrying of weapons in “sensitive places”, and
3] regulations aimed at “commercial sales of arms”

along with other “presumptively lawful regulatory measures” will need to be decided, if necessary, at later dates by future courts.

Just for information: “Presume” [verb] (the root for “presumptively”) is defined in the Cambridge Dictionary as: “to believe something to be true because it is very likely, although you are not certain.”

Also: “Presumptive” [adjective] as defined in the Merriam Webster on-line dictionary 1 : based on probability or presumption 2 : giving grounds for reasonable opinion or belief

It would follow that the “presumptively lawful regulatory measures” referred to by Justice Scalia just might not actually be “lawful regulatory measures”. He has apparently left the door open for interpretation in future court cases.

I do not believe that Justice Scalia used the word “presumptively” without reason.

Give me a break!!!! This is the liberals shot at semi-autos for a new AWB, duh.
Bolt actions v semi-autos.
Am I the only one with a clue or am I lacking seeing liberal agenda in turing the tables?

For Borid Karpa, a further question:

George Mason sent a Bill of Rights including the first two-clause predecessor of the Second Amendment to New York Antifederalists who used it as the basis of the New York Ratifying Convention Declaration of Rights. Along with this completed Bill of Rights was a partial list of amendments to particular powers under the Constitution that Mason and the Virginia Antifederalist committee he chaired were still working on. Mason indicated that the amendments were not complete as no amendments were included relating to three specific powers under the Constitution. What were those three specified powers?

As per 18 US Code 921 the term “machine gun” is defined in the Internal Revenue Code 26USC5845(b) as follows

"(b) Machinegun

The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.

The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person."

The Texas Penal Code:

Chapter 46. Weapons
§ 46.01. Definitions. In this chapter:
(9) "Machine gun" means any firearm that is capable of shooting more than two shots automatically, without manual reloading, by a single function of the trigger.

To anyone’s knowledge does any other state or municipality other than D.C. define “machine gun” in any other way than does the US Code or the Texas penal code?

Is there any other entity in the united States other than D.C. that has decided a semiautomatic pistol or long gun is a machine gun? Are these people so arrogant that they believe they are the only governmental agency in the entire country possessing the true concept of a “machine gun”?

Regarding the question on machine guns:

Ohio Revised Code §2923.11 (E) states:

“Automatic firearm” means any firearm designed or specially adapted to fire a succession of cartridges with a single function of the trigger. “Automatic firearm” also means any semi-automatic firearm designed or specially adapted to fire more than thirty-one cartridges without reloading, other than a firearm chambering only .22 caliber short, long, or long-rifle cartridges.

I think the DC and Ohio laws are both incredibly dumb and need to be struck down.

Reading the Texas definition you cite it looks like a gun designed to fire 2-round bursts would be legal, or am I mistaken? It would still be an NFA weapon, though.

God bless!

Wayne