One such caveat was the decision's actual twisting of the "common use" standard (see TDF 17 -- "Heller, phasers, and Firefly: RKBA's unfortunate built-in planned obsolescence--sorta" for more on that). Another, and one with much more immediate danger involves another four-word phrase: "M16s and the like." Heller explicitly upholds long-standing regulations of such weaponry. Thus, ANY argument for 2A individual rights that includes them is DOA with an attentive court--despite the litigants having a "Shall not be infringed!" chant in front of the courthouse.
It is imperative, then, to create an argument that creates a backstop for judges, so that they can keep RKBA from extending to such weapons--at least, extending to the same degree it does to common handguns--while holding that it does extend to most arms in "common use" among civilians. A legal argument that would make machine guns as readily purchased as a "hunting rifle" would actually be an argument AGAINST Heller by portraying it as flawed. The way would then be open for overturning Heller and creating a new jurisprudence--one a packed 13-member Supreme Court would ensure would be far less favorable to RKBA practitioners.
So, what is "the like" of the M16? Well, the AR15, the civilian analog of the M16, sure LOOKS "like" the M16:
Many of the same outward features, same round and magazines... To the common person, they are virtually indistinguishable. (FACETIOUSNESS FOLLOWS) So, laws against AR15s are just fine according to Heller. "Assault weapon" bans are constitutional. Done.
You see there, libertarians and purists, how when making an argument for a class of firearm to be included under 2A protection, it takes something more than a four-word chant.
An honest reading of Heller points much more to the phrase in the decision being a reference to full-auto--i.e., a "machine gun" (to use the legal term for all full-auto weapons). By that reading, an AR is vastly NOT "like" a M16, as the civilian arm is semi-auto only--NOT full-auto. Presenting a court an argument that makes those points and presents a constitutional schematic whereby semi-auto (ARs) is "clearly" 2A-protected, but full-auto (M16s ["and the like"]) "clearly" is not would enable a court to include ARs under 2A without M16s being included.
The libertarians and purists are often blind or denying of reality here, so allow me to explain why it would be bad for there not to be such a line:
1. The aforementioned grounds for overturning Heller. Liberals courts would then be free to create their own jurisprudence.
2. The social and political reality that to hold 2A protects full-auto would be a killer. It would drive the quite-human judge to find AGAINST "ARs and the like." Yes, 2A purists, most people support regulations on machine guns (they really do).
3. (Partly a shadow of 2) The straight-up but narrow inclusion of ARs ("assault weapons") in the "M16 and the like" category. This is the best outcome of the three, but one still drastically cutting into constitutionally-guaranteed civilian firepower.
Reality bites for libertarians and purists.
Of course, I lay out such a line in TDF 10. If you haven't already, please do read it.
The fact is, RKBA supporters need to prepare for the seemingly-inevitable 13-member SCOTUS. The American people tolerated an Election Steal in 2020, with the full concurrence of most of the 2A community, by refusing to call for a Federalist 46 State response. (I will simply say I myself DID call for such.) The result is the Democrat control in the federal government, and their plan for packing the courts. Chants won't change that.
In a future article, hopefully in the next day or so, I will deal with using RKBA arguments more conducive to passing a liberal court's muster. They have their agenda, and they see civilian disarmament as part of accomplishing it. This TDF series has presented arguments and interpretations that courts and liberals politicians--but I repeat myself--might be conducive to accepting. A packed SCOTUS need not go "collective right" if presented with a less-draconian alternative. (TDF 28 is a particularly low-powered but fun one!)
Folks, you all permitted the Election Steal. Unless you as an individual called for Federalist 46 action AS I DID, don't throw arguments of "principle" against this or against yours truly personally. You have no moral place to do so. (And if you did make such a call, you should have the sense to be practical when it comes to maintaining firepower [e.g., TDF 90]) You made your choice then, as did the American people. We have to deal with it, or we'll lose it all (TDF 72).
Yes, as I said, reality bites.
PART 2 of sorts--TDF 95.
You see there, libertarians and purists, how when making an argument for a class of firearm to be included under 2A protection, it takes something more than a four-word chant.
An honest reading of Heller points much more to the phrase in the decision being a reference to full-auto--i.e., a "machine gun" (to use the legal term for all full-auto weapons). By that reading, an AR is vastly NOT "like" a M16, as the civilian arm is semi-auto only--NOT full-auto. Presenting a court an argument that makes those points and presents a constitutional schematic whereby semi-auto (ARs) is "clearly" 2A-protected, but full-auto (M16s ["and the like"]) "clearly" is not would enable a court to include ARs under 2A without M16s being included.
The libertarians and purists are often blind or denying of reality here, so allow me to explain why it would be bad for there not to be such a line:
1. The aforementioned grounds for overturning Heller. Liberals courts would then be free to create their own jurisprudence.
2. The social and political reality that to hold 2A protects full-auto would be a killer. It would drive the quite-human judge to find AGAINST "ARs and the like." Yes, 2A purists, most people support regulations on machine guns (they really do).
3. (Partly a shadow of 2) The straight-up but narrow inclusion of ARs ("assault weapons") in the "M16 and the like" category. This is the best outcome of the three, but one still drastically cutting into constitutionally-guaranteed civilian firepower.
Reality bites for libertarians and purists.
Of course, I lay out such a line in TDF 10. If you haven't already, please do read it.
The fact is, RKBA supporters need to prepare for the seemingly-inevitable 13-member SCOTUS. The American people tolerated an Election Steal in 2020, with the full concurrence of most of the 2A community, by refusing to call for a Federalist 46 State response. (I will simply say I myself DID call for such.) The result is the Democrat control in the federal government, and their plan for packing the courts. Chants won't change that.
In a future article, hopefully in the next day or so, I will deal with using RKBA arguments more conducive to passing a liberal court's muster. They have their agenda, and they see civilian disarmament as part of accomplishing it. This TDF series has presented arguments and interpretations that courts and liberals politicians--but I repeat myself--might be conducive to accepting. A packed SCOTUS need not go "collective right" if presented with a less-draconian alternative. (TDF 28 is a particularly low-powered but fun one!)
Folks, you all permitted the Election Steal. Unless you as an individual called for Federalist 46 action AS I DID, don't throw arguments of "principle" against this or against yours truly personally. You have no moral place to do so. (And if you did make such a call, you should have the sense to be practical when it comes to maintaining firepower [e.g., TDF 90]) You made your choice then, as did the American people. We have to deal with it, or we'll lose it all (TDF 72).
Yes, as I said, reality bites.
PART 2 of sorts--TDF 95.