midtennchip

Rabbi, that's my point. Scalia did address whether there was a right to certain firearms. He didn't just leave it at whether the 2A is an individual right. Rabbi, yes the political process will be at work. But, many state legislatures have been waiting to see where the line was drawn before going after the "assault weapons" and "high cap magazines." Although they would have liked to win this case, I think they are quite happy with the rope Scalia left them. Like I said, I just don't have much confidence in our politicians. The "pro-gun momentum" could be a false hope. There are a great number of people that support this decision but also do not think we should have ARs and AKs. I was never worried about my handgun, but I am even more concerned about my AR (and all the ARs I was planning on buying -- I'm stocking up ).

Marswolf, that's exactly my point. I hopes for the decision were to expressly state that owning firearms (not just firearms "usually possessed by law-abiding citizens") is a right. But, I guess I need to clarify that a RIGHT is only subject to reasonable restrictions. Whereas, if there's no right to possess a particular type of weapon (like NFA weapons), then that type of weapon is subject to outright ban (not just reasonable restrictions). I personally (which isn't worth swat in the grand scheme of things) think citizens have a RIGHT to "keep and bear" weapons (see page 19 of the opinion). Even though Scalia states this in the opinion, and in fact states "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" (see page 8), he should have stopped right there. There was no reason to then say "usually possessed by law-abiding citizens." To me, "usually possessed" is a fairly significant percentage of citizens (not just gun owners). For example, if we used ar15.com as an indication (as Rabbi suggested), it has (by one estimate) 55,000 members. 55k out of 300+ million is not a significant percentage. Hell, it's barely a percentage at all. So, if there aren't at least a few million AR and AK owners, I think ARs and AKs could easily be considered unusual in today's judicial climate. If there are that many AR and AK owners, great. It just scares me. However, to me, "bearable arms" would include NFA weapons. While it would also likely include (in my definition) grenades, rocket launchers, etc., I think citizens have a right to those as while (obviously, with some serious restrictions similar to the current NFA restrictions). I think the RIGHT would extend to any arms that are, in fact, capable of being "beared" by a citizen. That would leave other arms (tanks, nukes, howitzers, etc.) as being outside the RIGHT and subject to a complete ban -- i.e., you just cannot have them. (I guess you'd have to get into the difference between "arms" and "explosives" to really evaluate this, so I won't do that -- aren't you glad?!?!?) I recognize, as Rabbi and others have pointed out, that it is still in the hands of politicians to actually implement these bans. But, the "scare factor" of saying all bearable arms are protected by the 2A was destroyed by Scalia's insistence in arguing with Stevens on points that were (IMHO) irrelevant to the issue. To summarize, it is the definition of a RIGHT, not the reasonable restrictions on a RIGHT, that concerns me. If you do not have a RIGHT, a complete ban can be upheld. Scalia appears to have drawn a line on the right to exclude a number of weapons I believe are protected. That's my take.

I'm not saying this decision will CAUSE more bans, I'm just saying that Scalia drew a line that he did not have to do draw (there was no need to discuss which weapons in this particular decision). Scalia got caught up in responding to every liberal argument and went beyond what was necessary. To that end, the weapon types issue is likely dicta (ie: not precedent setting). However, he laid out for any politician (as well as judges hearing new cases) that wishes to test the limits of this decision a pretty good idea of where to the bans. For example, if the California laws are tested, the Ninth Circuit judges (notorious for stretyching precedents to the breaking point) can latch onto the idea that high-cap weapons are not typically possessed and uphold the ban. Certainly most of most would disagree with that, but it would allow a ban that many of us think is unreasonable to continue for many more years. It might take another 6 to 7 years (just like this one) to get a ruling. Instead, what Scalia could have done was left enough doubt in the minds of politicians and judges to dissuade further restrictions. Again, just my opinion on the political ramifications. But, from a lawyer's point of view, I believe many of the anti-gun politicians and lawyers out there are finding many arguments from this decision to restrict gun rights. Specifically, other than for bans like DC, Chicago, and (maybe) NYC, this decision provides no real hurdles. Tennessee is not likely to pass anything like these anyway, but the federal bans already in Congress (with the right winners in November) could put us right back to the 90s. That, to me, is a terrible thought.

Rabbi, I typically agree with you on rights issues, and you MAY be right. However, Miller in no way can be read to apply ONLY to NFA weapons. "Guns not normally possessed by law abiding people" is the operative phrase, not "such as short-barreled shotguns." But, this decision provides NO new protection for most guns. I believe the only gun type that got protection under this decision is "handguns," since that's the only type actually referenced as protected in the opinion. Hence, the reason I stated "may" on my analysis. These things are up for debate, but this decision could have simply not addressed the types of weapons protected under the 2A. Even Scalia says (page 52), "[w]e may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits." That is, he didn't have to talk about it. But, since he did (mainly by going on and on about the fact that "handguns are the most popular weapon chosen by Americans for self-defense." Page 57-58), it gives liberal judges fodder on which to uphold bans on weapons that may not be the most typical weapons in the general public. While you (and I for that matter) may think AR-15s and similar weapons are fairly common, I have zero confidence that many judges would see it that way. And I certainly doubt the number of internet forums about certain types would be much help in determining if a weapon is "normally possessed." You certainly have a better idea than I do what people are really buying, but I suspect (ie: no facts) that shotguns and hunting rifles are still much more common that ARs and AKs. Maybe I am just overly pessimistic, but judges tend to let me down (as Scalia has done to some degree today, and I'm usually a big Scalia fan). I say, again, this decision MAY open the door for new bans at the federal level. Yes, it is a political issue at this point, but I also don't have confidence in our officials. Hell, most people (some exceptions here I'm sure) don't know how far-reaching last year's proposed OSHA regulations were with respect to ammunition. Thankfully, those were withdrawn. Had they been enacted, they would have had a huge impact on production, storage, and transportation of ammo. And, that was under a Republican administration. I just hope the political process doesn't produce another ban because this decision will not stop it. I had hoped this decision would at least suggest that an "assault weapons" ban could be unconstitutional, but it comes closer to opening the door than it does to closing it. Hope that explains my view on it.

Glad to provide any insight (if any) to the issue. At this point, I am very concerned that the recently proposed ban (discussed in another post here) might be okay under this decision. As Tennesseans, I don't see the state passing any laws that would be held unconstitutional under Heller. Local laws might be a different story, but I don't see that either. However, federal bans may be a BIG problem. I have read on a few more liberal blogs that this decision eliminates the gun issue from the Presidental race. I wholeheartedly disagree. I think this decision opens us open to another federal ban.

Okay, here is the promised lawyer's analysis of the decision. NOTE: This is only a review of the majority decision. I didn't have time to read the dissents. First, as a gun owner, I will state that this decision concerns me (more later). Although this is a win for us that believe the 2A provides an individual right, the decision did not do much to dissuade restrictive (even very restrictive) laws. For those who wish to read for themselves the language that really concerns me, start reading on page 52 of the opinion (starting with first full paragraph on the page) and go through page 56. Pros 1. Individual right upheld 2. Handguns (including semi-autos) appear to be protected from unreasonable (whatever that is) restrictions Cons 1. ARs and AKs may be in jeopardy 2. High-cap mags may be in jeopardy 3. Any gun that is "unusual in society at large" 3. Opinion does NOT make clear that state and local laws are subject to this decision Here is the language that really concerns is found on page 53, "[w]e 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-barred shotguns." Now, some of you will say ARs and AKs (as well as very high capacity guns) are "typically possessed by law-abiding citizens." But, I would suggest that Scalia's language throughout the opinion indicates that firearms that he (and evidently the majority of justices) believes "typically possessed" would likely be hunting rifles, shotguns, and most (but not all) handguns. While future cases will decide where the line is drawn, the first handguns that come to mind are the 5-7 and handguns with capacities of 20+ rounds. That is only a guess and I would think 15-17 cap polymer guns (like my H&K) would be protected, but I think Scalia's language points to a line somewhere just beyond that. I have an AR-15 and I am VERY concerned that restrictions (even outright bans) on them may be upheld under the Heller decision. The other issue is that the decision does NOT address the "incorporation" of the 2A to the states. This decision was limited to D.C. (a federal enclave), so the decision does not automatically apply to the states (or municipalities). As a result, we will have to wait until someone challenges those laws. Chicago and New York City may be the first on the list. We'll see. For those really interested in legal analysis (certainly analysis that is better than mine), I would point you to Glenn Reynolds's blog (www.instapundit.com). Although Prof. Reynolds only gives brief analysis, he has great links to very respected constitutional scholars.

No wonder it was the last decision. The majority opinion (J. Scalia) is 67 pages, and a total of 157 including the disents. WOW!

The majority were in agreement on why the ban should not stand. But it appears there are two dissently opinions. Apparently, the liberal justices are not in complete agreement on why the ban should be allowed. The full opinion is available at the site below if you are interested. I'll follow up tonight. Now, back to paying clients. www.scotusblog.com/wp/wp-content/uploads/2008/06/07-290.pdf

A win (5-4)!!! I will read the opinion thoroughly today and post comments tonight (for those of you interested in a lawyer analysis). I will also provide some links to constitutional law experts' commentary for further review. Have a great day!

Maybe some of you have already seen these, but Obama's camp has been using some pretty disturbing symbolism for a while now. http://www.americanthinker.com/2008/04/the_obama_aesthetic_1.html http://americandigest.org/mt-archives/blather_spew/obama_change_an.php In particular, notice the figure in the star (see Obama's lapel in the first post and the third picture in the second post). The artist, Shepard Fairey seems to love getting his "inspiration" (some critics call in plagiarism) from the Soviet and Communist China propaganda posters.

I recommend Critical Incident Strategies. Both Todd and Dustin were very helpful with the novice shooters in the class last month. The class was about 1/2 men and 1/2 women. The comments from all were very good.

Regarding a straight trade, just a like research on the HK boards and on a few sites that sell the LWRC would seem to indicate that you would be screwing yourself. Big Sky Guns has the 16" LWRC (just like the picture) at $2000. Folks on the HK sites are selling the SL8/G36 for $2400-$2600. But, as always, the guns are only worth what you and the person selling you the LWRC think we're worth. Check

Rabbi, you are correct that there isn't an "expert license." However, someone that has testified in court in a previous case as an expert would be "qualified," by that particular court, as an expert. That's what my friend is looking for. Thanks for the PM canyn. I had thought about that, but was hoping someone on the board might have either been such a witness or knew with certainty that someone else had testified as an expert. If that fails, he may do exactly as you suggested. Thanks, again.

Sorry, the friend was not at liberty to discuss the case. I'm not sure if it is a criminal or civil case.

I don't think this post necessarily belongs in this forum, but I couldn't really find anything that fit. Please move if necessary. Nevertheless, does anyone know a person (preferably in or close to Tennessee) that has been qualified to testify in court regarding the ease (or difficulty) of converting a semi-auto to a full auto. As most know, I am a lawyer, but thankfully this is not my case. I am trying to locate an expert for a friend that has a case with this issue.

Thanks, Tungsten, for the great review. I guess after the Defensive Carbine class in September, I'll have to work this class into the schedule, as well.

I (finally!) took my HCP class with Todd and Dustin at CIS today. First, both Todd and Dustin are good guys and handle the entire class with professionalism. Obviously, I haven't taken any other HCP classes to which I could compare the CIS class, but I can tell you that I was very appreciative of the amount of personal attention (not too much, not too little, just about right) Todd and Dustin gave during the course. It was obvious several of the students had significant experience with handguns and were given just enough help/instruction. However, there were several students that obviously had not shot handguns very much. Todd and Dustin were very patient with them but were also quick to point out safety violations (also without being condescending). In fact, one student had a revolver, but evidently intended to use a semi-auto pistol after getting the permit. Todd willing loaned the student a semi-auto (and ammo) and walked the student through the operation of the semi-auto. Todd did this without slowing down the class (good job, Todd!). I'm sure there are other classes with better facilities, but the CIS facilities were perfectly acceptable. Overall, I would highly recommend CIS. I'm looking forward to the carbine class later this year.

In reading Raybin's article (and he is as good at this analysis as anyone in the Tennessee legal community), keep in mind that if the state does not restore ALL rights (i.e., no restrictions), then the federal law views the restrictions as something less than full restoration of the felon's civil rights. While I am not necessarily happy about the federal law (I don't agree with many gun regulations, anyway), the federal law can be overcome by state action. That is, the state can simply not place any restrictions on those felons for whom it has restored civil rights.

My post from last night was lost, but Critical Incident Strategies has them in Nashville (Smyrna, actually) on Sundays (this Sunday is the next one). See Todd's schedule on his site. www.criticalincidentstrategies.com

WOW, now I am jealous. The SIG is a great looking gun and I cannot wait to upgrade my AR for one. Congrats!

Well, I guess the lawyer in me just can't stay out of this one. The intent BEHIND the words is not important if the words THEMSELVES are unambiguous. Whether some of the legislators intended to use the clause (i.e., pass more laws) for racist agendas has no bearing on whether the clause itself is unconstitutional. Second, it IS the constitution and by definition the clause is not unconstitutional. Third, the clause (without other laws being passed) does not prevent anybody from carrying a gun. Fourth, even though the 2A of the US Constitution provides a right, that right is not absolute. It is subject (just like all other Constitutional rights) to reasonable restraints (i.e, can't yell fire in a movie theater). That clause in the TN Constitution is nothing more than a statement specifically stating what that reasonable restraint is. Whether someone thought it gave the government an opening to pass Jim Crow type laws regarding guns at a later date is irrelevant.

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Try looking at David Raybin's article (link below) on this issue. Basically, a federal law prohibits convicted felons (whether the felony is a state or federal conviction) from possessing firearms. That law presumably falls under the Commerce Clause (i.e., federal law can apply to anything that affects interstate commerce - and since almost everything affects commerce in the eyes of the federal gov't, it applies to firearms restrictions I guess). However, the state does have a say in it. If the state (following a state conviction) restores the felon's civil rights, then the federal law no longer applies. http://www.hwylaw.com/CM/Articles/Articles88.asp

The "Tennessee Plan," which is how it has been referred to in legal circles since shortly after its inception, is a modification of the Missouri Plan. The Tennessee Plan only applies to the Court of Appeals, Court of Criminal Appeals, and the State Supreme Court. It does not apply to the lower courts, such as General Sessions, Chancery, and Circuit Courts (i.e., the trial courts). Article VI, Section 3 of the Tennessee Constitution states, "The judges of the Supreme Court shall be elected by the qualified voters of the state." Article VI, Section 4 as a similar provision with respect to the lower courts. The argument that the Tennessee Plan is NOT unconstitutional lies in the wording of the up-or-down vote on these judges and justices. A sample of the ballot language is, "Shall Jon R. Smith be elected and retained as Judge, Court of Criminal Appeals, for Middle Tennessee?" A good article on the issue is available at the link below: http://www.tennesseepolicy.org/main/article.php?article_id=651 Now, I don't like the idea of our state government violating the state constitution. But, the idea of truly popular elections for judges may not be that much better. Just read John Grisham's latest novel, The Appeal. On another note, did you know (I didn't and I'm a lawyer) that the Tennessee Constitution does not allow "any department of the government of this State" to declare martial law? TN Const. Article I, Section 25. Let's hope they don't treat this the way they've treated the judicial elections.

Problem has really never been that the intent of the Founding Fathers has been hard to understand. The problem is that too many people believe they are smarter than the Founding Fathers and that the words in the Constitution shouldn't (as opposed to don't) say what the original intent was. I heard Dennis Miller say one time (when he still had a late night TV show) that the 2A was fine when all we had were muskets, but that the 2A shouldn't protect automatic rifles. Obviously, unless the gun control crowd can get the Constitution amended to negate the 2A, the only way to actually argue the point is to try to change the original intent. I think most gun control advocates believe like Dennis Miller. But rather than just say the Founding Fathers were wrong (and suffer the inevitable defeat), they argue that it really doesn't mean what it says.