Heller - 'arms in common civilian use'

[gc70]

Both the briefs and oral arguments in Heller discussed 'arms in common civilian use' as a possible standard for the individual right protected by the Second Amendment. Many have expressed the belief that such a standard would be too narrow and that the Second Amendment also encompasses military weapons (machine guns ).

What do you think of an approach in which 'arms in common civilian use' would include all weapons used by civilian police?

Police Opting for More Firepower to Battle Better-Armed Criminals
Sunday, March 23, 2008

The 30-year-old mother of three jumped from her disabled SUV following a chase, holding a gun to her head to keep police back. Officers fired a stun gun but the nonlethal weapon was foiled by her heavy coat.

When she pointed her handgun at the two nearest deputies, officers switched to assault rifles, hitting Sarah Marie Stanfield of Boise eight times with bullets designed to break apart on impact to increase internal damage. She died last fall of multiple gunshot wounds.

Some jurisdictions across the U.S. have been arming rank-and-file officers with high-powered assault rifles for a decade or more. But law enforcement officials say that trend has accelerated in the last year because of greater numbers of shootouts, standoffs in which police were outgunned, rising officer deaths and mass shootings of civilians by heavily armed gunmen.

"If you get into a fire fight, you want to be the winner," said Scott Knight, police chief of Chaska, Minn., and chairman of the firearms committee for the International Association of Chiefs of Police. "Our departments are moving to those weapons out of necessity across the country."

Chaska, 25 miles southwest of Minneapolis, is a town of only about 24,000, but earlier this month Knight ordered the department's first 10 assault rifles, each with two 30-round magazines.

Only patchwork information is available on how many other law enforcement agencies are outfitting deputies and patrol officers with assault rifles, the kind of firepower once reserved for specialized SWAT teams. But from Chaska to Miami to college campuses, agencies are acquiring AR-15s or M-4s, both close relatives of the military's M-16. The rifles fire bullets with enough velocity to penetrate some types of body armor and have greater accuracy at longer range than handguns.

Last year, Miami Police Chief John Timoney authorized his patrol officers to carry AR-15s because of a rise in assault rifle use by criminals.

"This is a national problem. Police agencies all over the U.S. are going to bigger weapons," said Timoney, whose agency now has about 50 AR-15s and expects to get 150 more. He blames the 2004 expiration of the federal ban on assault weapons for the escalation of heavily armed violence.

In 2007, according to preliminary numbers compiled by the National Law Enforcement Officers Memorial Fund, 69 officers were shot to death, up from 52 in 2006 and the most in five years. Last year included six shootings where two or more officers were killed in the same event, fund spokesman Kevin Morison said.

"There just seems to be a more brazen, cold-blooded killers out there," he said.

The Brady Center to Prevent Gun Violence said it understands the moves to assault weapons. "Police officers need to be able to defend themselves and the rest of us, and they need the weapons to do so," said spokesman Peter Hamm.

Law enforcement officials say the trend toward issuing assault rifles to regular patrol officers started in Los Angeles after a 1997 shootout following a botched bank robbery. Two heavily armed men wore body armor that stopped 9 mm bullets fired by the handguns carried by police, 11 of whom were injured along with six civilians. The two robbers were eventually killed. The Los Angeles Police Department now issues AR-15s.

Two years later, police began rethinking a strategy of securing areas and waiting for negotiators and SWAT teams after two teens killing 13 people and wounded two dozen others at Columbine High School in Littleton, Colo.

Campus police at Arizona's three large public universities are being armed with assault rifles. Officials say the weapons will enable officers to shoot at targets at the ends of long hallways or atop tall buildings.

In the Idaho case, an investigation cleared the deputies earlier this month, noting they initially risked their lives by attempting to use nonlethal means before firing their assault rifles.

"Any time that we perceive great bodily harm or death may result, we may take action," said Ada County Sheriff's Lt. Scott Johnson.

 

[Tennessee Gentleman]

Makes sense to me GC, particularly the non-lethal stuff. I do a lot of work with our local police department here in TN. I actually was a role player for some of their active shooted training. REALLY illuminating. This department is issued AR-15s. Interestingly enough from the machine gun debate, the chief WILL not use automatic weapons as he feels they are unsuitable. He felt an AR-15 (and I agree) is as good as it gets(less some type of sniper rifle). It is accurate and has the best combo of knockdown power, ease of handling and range (please no argument about the 7.62) that they need to do their jobs. His opinion and mine is that automatic wespons are really only suited to the military for fire suppression while manevering. I think automatic weapons are overrated for a lot of uses but they look good on TV.

 

[zukiphile]

Why in common "civilian" use?

the language if Miller at 179 is,

And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Emphasis added.

For what reason and by what authority would you add the word "civilian" or "police" to this language? If you are going to invent standards not properly reflected in law, what distinguishes your effort from that of Sarah Brady?

 

[gc70]

If you are going to invent standards not properly reflected in law, what distinguishes your effort from that of Sarah Brady?

Not my invention, but the language used in Heller:

transcript of Heller oral arguments, page 63:
Because, on the one hand, there's a great deal of weaponry that might be wonderful for military duty but is not appropriate for common civilian use, which would not be protected even under the Miller test's first prong.

I would prefer a purist reading of the Second Amendment, but that appears to be an unlikely judicial result. If we end up with a 'common civilian use' standard from Heller, I am interested in exploring how we can achieve the greatest advantage from such a standard. Since the police are civilians, it seems to me that anyone could have anything the police have - including fully automatic weapons.

 

[JuanCarlos]

I would prefer a purist reading of the Second Amendment, but that appears to be an unlikely judicial result. If we end up with a 'common civilian use' standard from Heller, I am interested in exploring how we can achieve the greatest advantage from such a standard. Since the police are civilians, it seems to me that anyone could have anything the police have - including fully automatic weapons.

Well, common civilian use isn't going to include fully automatic weapons. SWAT teams might carry full-auto weaponry, but that doesn't really equate to common use. But since every police cruiser in my area seems to have an AR-15 up in the rack, I'd say those very definitely qualify...and obviously semi-automatic pistols would as well.

 

[publius42]

The quote from Miller, read in context, is clearly talking about arms in common MILITARY use at the time.

Miller

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Miller went on to make clear that the citizen-soldiers were not to show up with just any gun. They were to show up with a militarily useful gun and other needed supplies:

The musketeer should carry a "good fixed musket," not under bastard musket bore, not less than three feet, nine inches, nor more than four feet three inches in length, a priming wire, scourer, and mould, a sword, rest, bandoleers, one pound of powder, twenty bullets, and two fathoms of match. The law also required that two-thirds of each company should be musketeers.

 

[Hkmp5sd]

As I already own three machineguns, I think they fall well within the area of common civilian use.

 

[Tennessee Gentleman]

Miller went on to make clear that the citizen-soldiers were not to show up with just any gun. They were to show up with a militarily useful gun and other needed supplies:

The court is quoting something but not ruling. What are they quoting. Also, most firearms in common use then were what the military carried since the force was made up from private citizens. I don't think they had the advantage of the Springfield Armory then.

 

[publius42]

TN Gent,

What you are saying seems to boil down to "who cares what those guys thought back then, times have changed." I think that is the wrong way to look at the Constitution.

 

[Tennessee Gentleman]

What you are saying seems to boil down to "who cares what those guys thought back then, times have changed." I think that is the wrong way to look at the Constitution.

That is exactly what the Solicitor General and Mr Gura said and the Court agreed. You have to use the context of today not 200 years ago.

 

[rwilson452]

I don't think we will see a "common use" standard. It's too vague. Ever hear of constitutionally vague?

 

[Tennessee Gentleman]

I don't think we will see a "common use" standard. It's too vague. Ever hear of constitutionally vague?

That's for laws not the SCOTUS decisions.

I will take this oppertunity for some sermonizing. I see people who want unrestricted rights to all type of weapons posting here with these little sayings so I'll add one of my own. I first heard it in the Middle East when I was stationed there and I also heard it was attributed to the Bedouins.

The Dog Barks, but the Caravan Moves On

So, for all you barking dogs out there who want heavy machine guns and rocket launchers as your 2A right. You ain't gonna get 'em! You may possess them for hobby purposes but they will continue to be expensive regulated and in some cases banned. And, if these school/mall shootings keep going on and the only thing gun owners can offer is "Arm the students and everybody else!" Then get ready cause "it" as one of you has written about is coming at you again. Mark my words!

 

[MeekAndMild]

Also, most firearms in common use then were what the military carried since the force was made up from private citizens.

I don't know about that. Common civilian use in those times was the flintlock fowling piece or small bore long rifled musket weren't they? Common military assault weapon OTOH was a heavy caliber smoothbore musket wasn't it? (So the civilian rifles were actually more effective individual weapons than military muskets.) And what about cannons? From my reading a lot of folks owned privateer ships bristling with military style cannons. In seaports these would have been considered "common" wouldn't they?

 

[LAK Supply]

Most FA weapons are not in "common use" because they are banned. If they were not banned causing the grandfathered pieces to be completely out of line on price, they would not be an endangered species. They would be a common weapon.

 

[publius42]

And, if these school/mall shootings keep going on and the only thing gun owners can offer is "Arm the students and everybody else!"

OK, so what should we offer? Background checks on private sales? An expensive but relatively inconsequential pile of papers which will do little or nothing to curb the black market in guns or the availability of guns to prohibited people. But OK. What else?

I really don't see the problem with machine guns. As you have pointed out, they have few civilian self defense uses, but isn't creating a nice brass rainbow a legitimate use? We already have almost identical firepower for almost any purpose in the AR-15 and many others as we would have with an M-16. Full auto is a bit harder to control, but anyone who can't figure it out shouldn't have an AR-15 either, IMHO. As noted in the Heller case, there are 160,000 of them in circulation, and only one or two homicides with legal ones, depending on what you read. What purpose is served by keeping the full auto versions of various rifles illegal? What dire consequences would ensue if all of the black gun crowd suddenly could get full auto versions brand new at reasonable prices?

As for me, I don't care for evil black guns, don't own one now, and most likely would not buy a machine gun if the '86 ban went away tomorrow. I just happen to think that the second amendment intended that we carry what soldiers carry, and we should abide by it or amend it. I also happen to think that it doesn't make a heck of a lot of difference that I can't buy an M-16, considering I can buy an AR-15. Our soldiers rarely use full auto, so for the most part, we're carrying the same thing! I don't see what major problems would occur if civilian ones had a happy switch.

 

[IZinterrogator]

I still have to wonder, as I have several times in here, when the arbitrary 16" SBR rule will be changed, since an M4 with a 14.5" barrel seems to be pretty militarily useful.

 

[publius42]

I think the reasoning is, just before guns start killing people, they start foaming at the barrel. A longer barrel means a longer delay before they go on a rampage.

 

[blhseawa]

Opposed to the proposition!

I'm still struggling with the concept of "... in common use.", since I don't see those words in the SA anywhere.

I see these and other terms as attempts to infringe our rights under the SA.

If the civilian police (a form of standing army to my way of thinking) or any of the branches of US law enforcement or the US military use a weapon, then it meets my definition of common use!

 

[Tennessee Gentleman]

I'm still struggling with the concept of "... in common use.", since I don't see those words in the SA anywhere.

There are literally thousands of concepts like "common use" "right to privacy" "separate but equal" "right to privacy" etc. See the deal is this. The SCOTUS tells you what is in the Constitution and what they decide IS the law of the land. Remember about the barking dog!

OK, so what should we offer? Background checks on private sales? An expensive but relatively inconsequential pile of papers which will do little or nothing to curb the black market in guns or the availability of guns to prohibited people. But OK. What else?

Well, since many of you are so fond of the car ananlogy lets try this. The Feds mandated that all cars have airbags. It makes cars more expensive and people still die in car crashes but it saves a few. Is that just "feel good" law. I think not. I have never argued that bad folks won't get guns and that is why I believe in the RKBA (learning this lingo) and CCW. However, I don't believe you do nothing and allow crazies and felons to obtain firearms through legal channels. Yeah, they'll still get 'em but maybe not as many. Is it worth the cost? Were airbags?

PS Publius I have an AR-15 and I love it!

 

[publius42]

Is it worth the cost? Were airbags?

To those people killed by their airbags in relatively minor accidents, probably not. But I was really asking what ELSE, besides bg checks on private sales, we should offer up.