A huge “What If”: I might need a Constitutional Lawyer

I was giving Sen, Feinstein’s bill some thought at work last nite and got to think about worst case scenario with congress caving and the bill passing and signed into law.  I have no doubt that it would be taken to court immediately and fast-tracked to SCOTUS where it would probably die a fast death because of Heller.

But what if the court proceedings go beyond the ban itself and revisits NFA 34 and US v. Miller? Miller was a decision made with the defendant missing and only the voice of Government stating their side of the case, which it would not be the case this time around. If NFA 34 is deemed unconstitutional and Miller reversed, if the whole house of cards does not come down, it’d be pretty close. Food for thought to a Constitutional lawyer.

But I really do not want to go that way. Thankyouverymuchjustthesame. I’ll settle for a generalized slapping in Congress and send Dianne back to chew on recycled mulch.

5 Replies to “A huge “What If”: I might need a Constitutional Lawyer”

  1. Miller might be a hurdle for the antis to overcome in their desire to ban ‘assault weapons’
    In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

    Certainly it can not be said that the rifle, which most of our military is patterned after (that is right, the civilian version came first Mr./Ms Anti), could not contribute to the common defense or have a reasonable relationship to the preservation or efficiency of the militia. So that covers the AR quite nicely.

    And since bolt action rifles are used in the military as ‘sniper rifles’ another strike….and semi-automatic and pump shotguns — another strike, and semi-automatic pistols capable of holding more then 10 rounds……hmm, the Beretta M-9 holds how many — 15.

    The Miller Decision is a bad decision but it is a precedence that has to be overcame. As far as the NFA 34…..I think that court would err on the side of excessive caution and not change a scheme that has been working for decades.


  2. I’d be happy to see the NFA and everything that came from it done away with but I don’t trust the court to use a new AWB to do it. Better to make sure it never sees the light of day in the first place and let Alan Gura continue to piecemeal the anti-gun laws away.


  3. Why can’t we just get some treason charges against Einstein? Makes sense to me.

    Stripping citizens of their rights, atttping to incite rebellion…


  4. I certainly wouldn’t want to gamble on the Supreme Court on this one. They might strike it down, but I’m not comfortable enough with the Heller 5 to think that it would be a done deal.

    Regarding Miller, while I don’t like the case, it’s interesting that the decision is based on the idea that sawed off shotguns could be restricted since they were not common military arms. Following WWII and all of the subsequent wars, it would be impossible to use the Miller ruling alone and justify even the NFA, much less an Assault weapons ban.

    Of course, the problem is that the Supreme Court would probably not go back and apply Miller in this way–I would wager that at least one member of the Heller 5, if not a couple, would be horrified by the idea of unregulated machine guns, suppressors, and DD’s.

    Instead, this is where we would probably be stopped by Scalia’s reasonable restrictions language and his references to “unusually dangerous” weapons, even if Scalia himself was on our side.

    Unfortunately, I’m afraid this language might also be used to deny us any vindication against an AWB, so we really need to stop the ban before it sees the light of day. When it comes to regaining lost ground, the best thing we can do is what we have been doing of late–piecemeal legal attacks and legislative repeals while working individually to teach people and change the culture.



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