1. What if we make a small comparison about how anti-gun people would like gun owners treated.

   First and foremost, whatever they’re saying, what they actually WANT is for us to sit down, shut up, and accept any restrictions they push on us, no matter how benign or extreme.

   Imagine a bunch of frat boys commenting that women should sit down and shut up on the topic of rape?

   Imagine a bunch of KKK members saying that blacks should sit down and shut up on the topic of race lynchings?

   1. With a nod to LawDog:

      “Let’s compromise: we’ll only rape/lynch half of you. We’ll even let you pick which half.”

      “What do we get out of this ‘compromise’?”

      “You get to keep half of you from being raped/lynched. That half will be safer because of this compromise.”

      Sound about right?

      That’s the mentality we’re dealing with, and why we can’t afford to accept their version of “compromise.”

2. Left this comment, and we’ll see if he responds:

   I’d like your thoughts on a particular “common use” question that’s been eating at the back of my mind.

   When it comes to fully-automatic rifles – “machine guns” – the Hughes Amendment to the FOPA of ’86 banned all importation and manufacture, artificially creating an extremely limited supply, therefore guaranteeing such firearms would never be “in common use.” How does that square with the Heller decision?

   Asked another way, suppose a manufacturer designs an effective firearm with a mechanical action the like of which is unseen on the current market. Being a brand new product/design, by definition it cannot be “in common use.” Does that automatically mean a ban on the new product/design is constitutional?

   I’m looking forward to your response(s).

   It’s something I’ve been wondering. When the supply is artificially limited, the “in common use” test shouldn’t apply, since the current construct of laws would prevent it from ever reaching that threshold. It’d be like saying, “Sure, you have the right to a trial before a jury of your peers. However, we happen to be fresh out of your peers, so it’s a bench trial for you.”

   Or, “You have the right against unreasonable search and seizure of your home and effects, but you didn’t build that – it isn’t yours – so the right doesn’t apply.”

   1. Common use is a crock. If I create a phaser tomorrow, it would be highly uncommon as you noted above. The point of the Second Amendment is for citizens to have arms comparable to the military to encourage the government to behave itself. Select fire weapons are reasonable. I would go so far as to say some military hardware should be available to us. It would help the police and government officials be a lot more polite to the citizens. Ultimately, we are the government and it is supposed to be subservient to us.

      Would it lead to total carnage? We have 300 million firearms in America and nearly all of the misuse is attributable to a small group of criminals. So, it should not change our situation dramatically.

      1. I’m of the opinion that if you can afford it and afford to keep and store it, you should be able to own an artillery piece, fightercraft, or battleship. The price of admission will keep out most of the people who shouldn’t have them.

         And as someone commented about flamethrowers once, “They’re not illegal, but there’s plenty of stuff you can DO with them that’s illegal. So don’t do that stuff!”

         1. Precisely! I don’t particularly WANT a fighter jet or artillery piece, for a variety of reasons, but it grates me that I CAN’T. I DO want a suppressor or two, but again, it grates that I CAN’T if my CLEO doesn’t approve.

            The comment about flamethrowers could be said of anything. Cars, knives, baseball bats, computers, etc.

            Hell, even having someone else’s banking information or mailing address isn’t illegal, but there’s plenty you can do with it that is. We’re not limited to physical objects here!

      2. Exactly my point. “Common use” is a good starter, but it’s an incomplete measure of the applicability of 2nd Amendment protections to a particular brand/type/appearance of firearm. I’ll accept it for now, because it’s a better standard than what we had before, but in the long run it will need to be expanded upon.

         I agree, select-fire weapons are reasonable. Go beyond the “300 million firearms in America and nearly all of the misuse is attributable to a small group of criminals.” I don’t know exactly how many fully-auto guns there are in America – thousands or tens of thousands – but it doesn’t really matter for this question: How many fully-auto guns have been used in crimes?

         Answer: Zero.

         Ergo, it’s not a “compelling interest” or “public safety” measure at all. It’s simply an arbitrary restriction of a class of firearm someone thinks is “scary.”

         1. Actually, the bank robbers in LA a few years back used full-auto AKs and double body armor. They failed in the end because the cops obtained high powered rifles from local gun stores. Other than that little fact, I agree with your conclusions.

            1. I’d forgotten about that one. Thanks for the reminder!

               As I recall, that incident is also the justification for officers to have access to high(er)-powered rifles at all times while on duty. Prior to that, the standard sidearm was considered plenty of firepower.

               I count it fortunate that CA hadn’t completely banned the sale of “assault weapons” by then, or there would not have been any “patrol rifles” available for the responding officers to stop the shooters.

   2. To expand on the ‘common use’ question RE Miller: *WHEN* is the question of ‘common use’ applied, and *WHAT* constitutes ‘common use’?

      16 Am Jur 2d, Sec 177 late 2d, Sec 256:

      “The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it’s enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.”

      Prior to NFA ’39, sawed off shotguns were fairly common, as were silencers/suppressors, and (to a lesser degree admittedly) full auto firearms, ergo, the provisions of NFA restricting them (And FOPA ’86 closing the MG registry) would qualify as unconstitutional, and are void from inception.

      1. Great point! That was my thought, too; a law declared unconstitutional has always been unconstitutional, regardless of how long it’s been on the books. Hopefully the courts will see it that way if the whole mess ever gets challenged.

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4. Archer —

   There are, as best as I can tell, TWO incidents invloving legally-possessed “private” fully automatic weapons used to commit a crime of violence (and there is some question as to whether the possession in teh second case was actually legal).

   1. (Unquestionably legal possessiojn) An off duty police officer blew away a druggie informant during a robbery with a personally owned (and NFA registered) MAC (I cannot recall if it was a model 10 or 11).

   2. (Presumeably, but not verifiably, legal possession) a crazy neurologist went off with a MAC (again, cannot recall if a 10 or 11), but it may not have been legally possessed.

   BOTH of these incidents occurred, IIRC, AFTER the 1986 Machine Gun Freeze. . .

   The North Hollywood shooters used illegally converted rifles.

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