Quote of the day—NRA-ILA

the attempted commercial introduction of the Armatix has floundered so badly that it remains the sole example that Brady can cite as even approximating a “smart gun.”  Thus, were it to trigger the New Jersey law, the result would surely collide with the Supreme Court’s decision in District of Columbia v. Heller.  There, the Court ruled that the Second Amendment protects the individual right to possess arms “in common use at the time” for lawful purposes.  Even the Brady Campaign cannot seriously argue that all handguns other than the iP1, an $1800, 10- shot pistol chambered in .22LR, are not commonly used for lawful purposes.

December 4, 2014
N.J. Attorney General Rejects Brady Campaign Bid to Trigger Handgun Ban
[Elaborating even further, it seems likely the entire NJ law will declared unconstitutional simply because it makes illegal those guns which are in common use.—Joe]


9 thoughts on “Quote of the day—NRA-ILA

  1. Before you conclude that the NJ AG displayed good sense, note that all he/she did is observe that an RFID device doesn’t authenticate the user, it only tests whether the user holds the unlock device. By the decisions’s reasoning, the same gun equipped with a fingerprint sensor would be accepted and would put their insane law into effect.

    As for the Brady Campaign “seriously arguing” — they never have done any such thing and never will.

    • I wasn’t saying anything about the correctness of the NJ AG rationale. And they were not addressing the constitutional issues. They came to a decision that is congruent with our agenda so we should accept it as long as there is no precedent that this particular rationale is the only thing blocking the implementation of this law.

  2. “In common use” is not a very strong hook upon which to hang one’s rights.

    I’d go more with “keep and bear arms” and leave it at that, working to limit each and every limitation on gun ownership on the basis of the individual right to self defense, working to expand gun rights rather than just slow the rate of limitations on them.

    If I develop a weapon tomorrow that uses simple lithium batteries to power a focusing sonic resonator that knocks people out, when aimed at them from at up to 50 yards away, that novel device (NOT in common use) should be accessible to the citizenry under the 2nd Amendment for lawful self defense. And who knows, it might even make handguns firing lead bullets obsolete curiosities instead of commonly owned weapons. (Not that my prototypes are anywhere near that capable, yet, of course, but I have some open time before Christmas so who knows how far I’ll get!)

    • Of course, the “phaser set to stun” is the ultimate in criminal enhancement tools. Want to rob someone “safely?” just stun them, walk up and take his stuff with none of that argument and CPL risk. Want to rape someone? Stun them and do what you want with no inconvenient fighting back.
      A reliable “stun gun” would be really, REALLY bad for the crime rate.

  3. The second amendment says nothing about “common use”. The very concept of “common use” was designed to limit or kill innovation and improvement in weapon design, or more to the point it’s designed to weaken and eventually nullify the weaponry of the unorganized militia by prohibiting private possession of the latest technology, which will of course be reserved for the state. Criminals, not being hampered by laws, will of course have the latest tech as well, so the tyrants and the criminals will be armed with the best, and the law-abiding, as is always by design, will be stuck in the dark ages of weaponry.

    “Common use”, “sporting purposes”, crime and safety stats, “prohibited persons” and so on, are all traps. Leave the bait alone. Once we embrace them we’re actually working for the wrong side. All we ever need, or have ever needed, is the basic principle of human liberty, against which no one can argue, no matter what.

  4. I agree that the “in common use” test is far from optimal and the true intent of the Second Amendment. But it is what we have from SCOTUS at this time. Had Scalia insisted upon “shall not be infringed” he probably would have written the minority instead of the majority opinion.

    We don’t live in a world where most lower courts will adhere to the true meaning of the Second Amendment any more than we live in a world the anti-gun people apparently believe exists where the Second Amendment protects the “right” of the police and military to posses guns. We live in a world where SCOTUS said that guns in common use are a protected right of individuals.

    The “common use” card is a much stronger first card to play in the courts and probably in public opinion when doing battle with these people. Playing only the “shall not be infringed” card will result in many of the courts driving truck loads of guns to the smelters with a significant portion of the general public shrugging or cheering.

    I agree that we should never accept that the “in common use” test is a necessary condition for repealing a gun law. But it is a sufficient condition. Courts like to rule as narrowly as possible on the facts and conditions of the case before them. If we can clearly demonstrate the law violates just one test the law falls. The “in common use” test is easily understood, easy to do, and can strike down a multitude of gun laws all over the country. It is a tool of great power because of the simplicity. That doesn’t mean that we shouldn’t be preparing and using other tools in conjunction with it for the time when it is of limited utility.

    I’m reminded of stories about engineers and shipping the product. One of which is, “There comes a time in the life of every product development that it is time to fire the engineers and ship the product.” Engineers seek perfection but “perfect” is the enemy of “good enough”. The “in common use” test is good enough–for now.

    • I think the phrase “in common use” is analogous to the “separate but equal” phrase in Plessy v Ferguson. I predict a whole line of cases out of Heller picking away at that requirement until the right to keep and bear arms is not infringed.

    • I haven’t studied the issue to the gnat’s intestinal tract level of detail so of course I know I have a rock solid analogy …

      Some prudent district has determined that the term “booty” is profane and subject to criminal prosecution of any who would utter such an obscene abomination. Lawfare is made to SCOTUS.

      Natch, the anti-booty forces give no consideration to any concept of enumerated rights as they see ‘booty’ beyond the pale.While it may be tempting for SCOTUS to hammer down on the obvious arbitrary and capricious nature of the anti-booty speech codes, the conduct of the prudes is far more egregious – all this time while the term ‘booty’ has been in the common dialect, suddenly it is obscene – NO, none cannot make obscene what has always been – the court does not get as far even considering whether the law is arbitrary (to prohibit something just because it is unfamiliar), or unconstitutional,BUT you cannot suddenly discover what is familiar and free to be unlawful.

      I take “In common use”to be a polite way of not even getting to dismissed with prejudice.

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