2nd Amendment, Scalia and what the Founders meant: Commas, Common Sense and Justice. The question is how to interpret the comma after 'free state.'

[2aguy]

Your argument overreads Heller. “In common use” is not a magic phrase that automatically immunizes any popular firearm from regulation. Heller recognized both that protected arms are commonly used for lawful purposes and that “dangerous and unusual weapons” may be banned, expressly noting that “M-16 rifles and the like” are outside the protected core. District of Columbia v. Heller, 554 U.S. 570, 624–27, 627 n.26 (2008)

An AR-15 may be common in the market, but market prevalence is not the same as constitutional protection. Bruen requires a historical-tradition analysis, not a purely popularity-based test. New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022)

Common ownership is relevant, but it is not dispositive. The constitutional question remains whether the weapon falls within the historical tradition of arms the Second Amendment protects, or instead within the category of dangerous and unusual weapons that Heller said may be prohibited. District of Columbia v. Heller, 554 U.S. 570 (2008)

Sorry,
Heller did not clearly and exhaustively define the category. It used broad language, preserved the “dangerous and unusual weapons” limitation, and gave “M-16 rifles and the like” as an example, but it did not provide a line-drawing rule for every modern firearm. District of Columbia v. Heller, 554 U.S. 570, 624–27, 627 n.26 (2008).

Also, citing “commonly available” from a Cargill dissent does not establish Second Amendment law. A dissent is not binding, and Cargill was not a Second Amendment case. Garland v. Cargill, 602 U.S. 406 (2024).

Popularity is relevant, but it is not dispositive. The actual constitutional question remains whether the arm fits within the protected category under Heller and Bruen. District of Columbia v. Heller, 554 U.S. 570 (2008); New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).

You lying shit head. No where in Heller did they say the M-16 could be banned. You gun grabbing asses have lied about that endlessly.

This is exactly what was said and it doesn't say anything you say....

Scalia did not say it may be banned.....he said if it could be banned it would detach the right from the prefatory clause.......you guys constantly lie about his sentence.

==================
Justice Antonin Scalia wrote:

"It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause."

===========


You assholes have lied about that sentence for decades, hoping that people wouldn't actually find it and see what Scalia actually stated.

 

[2aguy]

Your argument overreads Heller. “In common use” is not a magic phrase that automatically immunizes any popular firearm from regulation. Heller recognized both that protected arms are commonly used for lawful purposes and that “dangerous and unusual weapons” may be banned, expressly noting that “M-16 rifles and the like” are outside the protected core. District of Columbia v. Heller, 554 U.S. 570, 624–27, 627 n.26 (2008)

An AR-15 may be common in the market, but market prevalence is not the same as constitutional protection. Bruen requires a historical-tradition analysis, not a purely popularity-based test. New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022)

Common ownership is relevant, but it is not dispositive. The constitutional question remains whether the weapon falls within the historical tradition of arms the Second Amendment protects, or instead within the category of dangerous and unusual weapons that Heller said may be prohibited. District of Columbia v. Heller, 554 U.S. 570 (2008)

Sorry,
Heller did not clearly and exhaustively define the category. It used broad language, preserved the “dangerous and unusual weapons” limitation, and gave “M-16 rifles and the like” as an example, but it did not provide a line-drawing rule for every modern firearm. District of Columbia v. Heller, 554 U.S. 570, 624–27, 627 n.26 (2008).

Also, citing “commonly available” from a Cargill dissent does not establish Second Amendment law. A dissent is not binding, and Cargill was not a Second Amendment case. Garland v. Cargill, 602 U.S. 406 (2024).

Popularity is relevant, but it is not dispositive. The actual constitutional question remains whether the arm fits within the protected category under Heller and Bruen. District of Columbia v. Heller, 554 U.S. 570 (2008); New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).

You really need to read the Heller decision, and not just what some gun control activist tells you is in the decision....

Those weapons useful to a militia are not banned, you dope.....so the M-16, an actual military weapon, would not be banned.....

=====
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

DISTRICT OF COLUMBIA v. HELLER

 

[Rumpole]

in 39 the court held a weapon must be of use or in use by the military. Thus, an ar-15 is protected.

You are completely confusing the absence of a federal ban with a constitutional guarantee. The fact that Congress has not enacted a nationwide AR-15 ban does not mean the AR-15 is categorically protected by the Second Amendment. Several states have enacted bans or severe restrictions on AR-15-style rifles, and the Supreme Court has not yet squarely resolved the constitutionality of those laws nationwide.

And that brings us right back to your misread of Miller. The Court in 1939 did not say weapons are protected because the military uses them; it held the opposite--that the short-barreled shotgun at issue was outside the Second Amendment because there was no evidence it had a reasonable relationship to the preservation or efficiency of a well regulated militia.

But by trying to use Miller to claim the AR-15 is protected, you’ve tripped over your own logic. You are now arguing that military similarity is what matters, which is not the test Heller adopted.

Heller foreclosed that reading of Miller by explaining that the Second Amendment does not turn on whether a weapon resembles a military arm, and by expressly noting that “M-16 rifles and the like” may be banned as “dangerous and unusual.”

So “the military uses it” is not a winning constitutional argument. And after Bruen, the real question is whether the regulation is consistent with the Nation’s historical tradition of firearm regulation, not what happens to be in a modern army’s inventory.

The law simply does not say what you want it to say.

 

[RetiredGySgt]

You are completely confusing the absence of a federal ban with a constitutional guarantee. The fact that Congress has not enacted a nationwide AR-15 ban does not mean the AR-15 is categorically protected by the Second Amendment. Several states have enacted bans or severe restrictions on AR-15-style rifles, and the Supreme Court has not yet squarely resolved the constitutionality of those laws nationwide.

And that brings us right back to your misread of Miller. The Court in 1939 did not say weapons are protected because the military uses them; it held the opposite--that the short-barreled shotgun at issue was outside the Second Amendment because there was no evidence it had a reasonable relationship to the preservation or efficiency of a well regulated militia.

But by trying to use Miller to claim the AR-15 is protected, you’ve tripped over your own logic. You are now arguing that military similarity is what matters, which is not the test Heller adopted.

Heller foreclosed that reading of Miller by explaining that the Second Amendment does not turn on whether a weapon resembles a military arm, and by expressly noting that “M-16 rifles and the like” may be banned as “dangerous and unusual.”

So “the military uses it” is not a winning constitutional argument. And after Bruen, the real question is whether the regulation is consistent with the Nation’s historical tradition of firearm regulation, not what happens to be in a modern army’s inventory.

The law simply does not say what you want it to say.

that is a lie the actual quote was just put in this thread, and it does not say the M-16 or the AR-15 is a dangerous weapon. in Fact, it says they aren't.

 

[M14 Shooter]

You are completely confusing the absence of a federal ban with a constitutional guarantee. The fact that Congress has not enacted a nationwide AR-15 ban does not mean the AR-15 is categorically protected by the Second Amendment.

According to the SC, If a firearm is commonly available, commonly used, and commonly chosen for use for traditionally lawful purposes, it qualifies as a "bearable arm" and falls under the protection of the 2nd Amendment.
This describes the AR15(et al)
You cannot demonstrate otherwise.

Several states have enacted bans or severe restrictions on AR-15-style rifles, and the Supreme Court has not yet squarely resolved the constitutionality of those laws nationwide.

This proves... nothing.

 

[Rumpole]

Your statement is false, and you knew it was false when you made it
"In common use for traditionally legal purposes" is the term the court uses to decide if a firearm qualifies as a "bearable arm" and thus falls under the protections of the 2nd

Your prove my claim, above. Thank you

The AR15(et al) is the most popular rifle in America, commonly available, in common use, and commonly chosen for use, for just about every legal purpose there is for a firearm - if the AR15s level of availability, use, and choice for use does not meet Heller's "in common use and thus is a bearable arm, protected by the 2nd" test, then no firearm does.

Thank you for demonstrating you do not understand Bruen
Hint: the historical-tradition analysis is the 2nd step, independent from the 1st.
We're discussing the 1st step.

Thank you for again demonstrating you do not understand Heller, Caetano or Bruen.
Hint: the historical-tradition analysis is the 2nd step, independent of the 1st.
We're discussing the 1st step.

It did, and intentionally so -- and, unquestionably, the AR15(et al) meets the requirements of that language.

I didn't say it did. I used the words of the lunatic anti-gun liberal justices to support and expand my point.
If a firearm is commonly available, commonly used, and commonly chosen for use for traditionally lawful purposes, it qualifies as a "bearable arm" and falls under the protection of the 2nd Amendment.
This describes the AR15(et al)
You cannot demonstrate otherwise.

Thank you for further demonstrating you do not understand Bruen
Hint: The historical-tradition analysis is the 2nd step, independent of the 1st.
We're discussing the 1st step.

Your statement is false, and you knew it was false when you made it
"In common use for traditionally legal purposes" is the term the court uses to decide if a firearm qualifies as a "bearable arm" and thus falls under the protections of the 2nd

Your prove my claim, above. Thank you

The AR15(et al) is the most popular rifle in America, commonly available, in common use, and commonly chosen for use, for just about every legal purpose there is for a firearm - if the AR15s level of availability, use, and choice for use does not meet Heller's "in common use and thus is a bearable arm, protected by the 2nd" test, then no firearm does.

Thank you for demonstrating you do not understand Bruen
Hint: the historical-tradition analysis is the 2nd step, independent from the 1st.
We're discussing the 1st step.

Thank you for again demonstrating you do not understand Heller, Caetano or Bruen.
Hint: the historical-tradition analysis is the 2nd step, independent of the 1st.
We're discussing the 1st step.

It did, and intentionally so -- and, unquestionably, the AR15(et al) meets the requirements of that language.

I didn't say it did. I used the words of the lunatic anti-gun liberal justices to support and expand my point.
If a firearm is commonly available, commonly used, and commonly chosen for use for traditionally lawful purposes, it qualifies as a "bearable arm" and falls under the protection of the 2nd Amendment.
This describes the AR15(et al)
You cannot demonstrate otherwise.

Thank you for further demonstrating you do not understand Bruen
Hint: The historical-tradition analysis is the 2nd step, independent of the 1st.
We're discussing the 1st step.

You keep insisting I “don’t understand” Heller or Bruen, but you are the one who does not understand it -- what you’re actually doing is flattening both cases into a slogan: “in common use = automatically protected.” That’s not what Heller held, and it’s not how Bruen works.

Heller’s “common use” language is inseparable from its discussion of the historical tradition of restricting dangerous and unusual weapons. It is not a magic phrase that turns any popular firearm into a constitutionally untouchable object. The Court said two things at once: that arms commonly possessed for lawful purposes fall within the Amendment’s scope, and that dangerous and unusual weapons may be prohibited, explicitly including “M‑16 rifles and the like.” You keep pretending the first clause erases the second. It doesn’t.

And your repeated chant of “we’re discussing the first step” doesn’t rescue your argument. Step one is the textual inquiry: does the conduct involve keeping and bearing arms. That’s it. Step one is not a popularity poll. It is not a headcount of how many rifles were sold last year. Even within step one, Heller’s definition of “arms” is tied to the historical tradition of excluding dangerous and unusual weapons. That’s not step two -- that’s part of defining the category in the first place. You don’t get to amputate half of Heller and call it “staying within step one.”

Bruen didn’t convert “common use” into a standalone threshold test. The “common use” concept comes from the historical tradition -- specifically from the dangerous‑and‑unusual line -- not from a raw market‑share metric. Treating it as a simple popularity contest is exactly the kind of shortcut Bruen rejected.

Here I suspect you are going to respond with Caetano .

In case you do, no, Caetano doesn’t save your argument. Caetano stands for the unremarkable proposition that a weapon doesn’t lose protection simply because it’s modern. It does not say “anything modern and popular is automatically protected.” It certainly doesn’t say “popularity ends the analysis.” Caetano reaffirmed Heller’s framework; it didn’t replace it with your one‑sentence formula.

“Bearable arms” doesn’t do the work you think it does. “Bearable arms” is a broad category, but Heller immediately narrows it with the dangerous‑and‑unusual limitation. You keep quoting the first half of the sentence and pretending the second half doesn’t exist. The Court didn’t.

And, “common use for self‑defense” is not the constitutional cheat code you want it to be. The Court has never held that any weapon someone claims to use for self‑defense automatically qualifies. The inquiry is tied to the historical tradition of what the Amendment protects, not to whatever happens to be flying off the shelves this decade.

Your “if the AR‑15 doesn’t qualify, no firearm does” line isn’t an argument; it’s a dare. The Court has already told you that there exists a category of arms -- again, “M‑16 rifles and the like” -- that can be excluded even if they are technologically related to commonly owned weapons. That alone shows your absolutist formula is not the law.

Sorry, repeating “we’re discussing the first step” doesn’t turn your oversimplification into doctrine. And repeating “you cannot demonstrate otherwise” doesn’t make your interpretation correct. The Supreme Court’s actual language is more nuanced, more conditional, and far less convenient for the slogan you’re trying to pass off as constitutional analysis.

 

[M14 Shooter]

Heller foreclosed that reading of Miller by explaining that the Second Amendment does not turn on whether a weapon resembles a military arm, and by expressly noting that “M-16 rifles and the like” may be banned as “dangerous and unusual.”

This is an outright lie. No such text exists in Heller.

And after Bruen, the real question is whether the regulation is consistent with the Nation’s historical tradition of firearm regulation, not what happens to be in a modern army’s inventory.

Thank you for continuing to demonstrate you do not understand Bruen.

 

[RetiredGySgt]

This is an outright lie. No such text exists in Heller.

Thank you for continuing to demonstrate you do not understand Bruen.

He is LYING about what was said. The actual quote says they aren't in the dangerous catagory.

 

[2aguy]

You are completely confusing the absence of a federal ban with a constitutional guarantee. The fact that Congress has not enacted a nationwide AR-15 ban does not mean the AR-15 is categorically protected by the Second Amendment. Several states have enacted bans or severe restrictions on AR-15-style rifles, and the Supreme Court has not yet squarely resolved the constitutionality of those laws nationwide.

And that brings us right back to your misread of Miller. The Court in 1939 did not say weapons are protected because the military uses them; it held the opposite--that the short-barreled shotgun at issue was outside the Second Amendment because there was no evidence it had a reasonable relationship to the preservation or efficiency of a well regulated militia.

But by trying to use Miller to claim the AR-15 is protected, you’ve tripped over your own logic. You are now arguing that military similarity is what matters, which is not the test Heller adopted.

Heller foreclosed that reading of Miller by explaining that the Second Amendment does not turn on whether a weapon resembles a military arm, and by expressly noting that “M-16 rifles and the like” may be banned as “dangerous and unusual.”

So “the military uses it” is not a winning constitutional argument. And after Bruen, the real question is whether the regulation is consistent with the Nation’s historical tradition of firearm regulation, not what happens to be in a modern army’s inventory.

The law simply does not say what you want it to say.

And you are a dishonest hack, like all the rest of the anti-gunners. The short barreled shotgun is a military weapon. Miller was only decided the way it was because the plaintiff did not appear to make a case.

In fact, Miller says the exact opposite of what you are saying. In the opinion they said that the short barreled shotgun wasn't used by the miltary so it could be banned.....so any weapon the military can use is allowed under the 2nd Amendment.

In fact, Scalia specifically wrote this....which you want to ignore...

====
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United Statesv. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

 

[2aguy]

You keep insisting I “don’t understand” Heller or Bruen, but you are the one who does not understand it -- what you’re actually doing is flattening both cases into a slogan: “in common use = automatically protected.” That’s not what Heller held, and it’s not how Bruen works.

Heller’s “common use” language is inseparable from its discussion of the historical tradition of restricting dangerous and unusual weapons. It is not a magic phrase that turns any popular firearm into a constitutionally untouchable object. The Court said two things at once: that arms commonly possessed for lawful purposes fall within the Amendment’s scope, and that dangerous and unusual weapons may be prohibited, explicitly including “M‑16 rifles and the like.” You keep pretending the first clause erases the second. It doesn’t.

And your repeated chant of “we’re discussing the first step” doesn’t rescue your argument. Step one is the textual inquiry: does the conduct involve keeping and bearing arms. That’s it. Step one is not a popularity poll. It is not a headcount of how many rifles were sold last year. Even within step one, Heller’s definition of “arms” is tied to the historical tradition of excluding dangerous and unusual weapons. That’s not step two -- that’s part of defining the category in the first place. You don’t get to amputate half of Heller and call it “staying within step one.”

Bruen didn’t convert “common use” into a standalone threshold test. The “common use” concept comes from the historical tradition -- specifically from the dangerous‑and‑unusual line -- not from a raw market‑share metric. Treating it as a simple popularity contest is exactly the kind of shortcut Bruen rejected.

Here I suspect you are going to respond with Caetano .

In case you do, no, Caetano doesn’t save your argument. Caetano stands for the unremarkable proposition that a weapon doesn’t lose protection simply because it’s modern. It does not say “anything modern and popular is automatically protected.” It certainly doesn’t say “popularity ends the analysis.” Caetano reaffirmed Heller’s framework; it didn’t replace it with your one‑sentence formula.

“Bearable arms” doesn’t do the work you think it does. “Bearable arms” is a broad category, but Heller immediately narrows it with the dangerous‑and‑unusual limitation. You keep quoting the first half of the sentence and pretending the second half doesn’t exist. The Court didn’t.

And, “common use for self‑defense” is not the constitutional cheat code you want it to be. The Court has never held that any weapon someone claims to use for self‑defense automatically qualifies. The inquiry is tied to the historical tradition of what the Amendment protects, not to whatever happens to be flying off the shelves this decade.

Your “if the AR‑15 doesn’t qualify, no firearm does” line isn’t an argument; it’s a dare. The Court has already told you that there exists a category of arms -- again, “M‑16 rifles and the like” -- that can be excluded even if they are technologically related to commonly owned weapons. That alone shows your absolutist formula is not the law.

Sorry, repeating “we’re discussing the first step” doesn’t turn your oversimplification into doctrine. And repeating “you cannot demonstrate otherwise” doesn’t make your interpretation correct. The Supreme Court’s actual language is more nuanced, more conditional, and far less convenient for the slogan you’re trying to pass off as constitutional analysis.

Caetano specifically states...

=====
Per Curiam.


The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008) , and that this “ Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010) . In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).


The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” 554 U. S., at 582.


The court next asked whether stun guns are “dangerous per se at common law and unusual,” 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller, 554 U. S., at 627; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ ”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” 470 Mass., at 781, 26 N. E. 3d, at 693–694. By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.


Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposition “that only those weapons useful in warfare are protected.” 554 U. S., at 624–625.

https://supreme.justia.com/cases/federal/us/577/411/

 

[2aguy]

You keep insisting I “don’t understand” Heller or Bruen, but you are the one who does not understand it -- what you’re actually doing is flattening both cases into a slogan: “in common use = automatically protected.” That’s not what Heller held, and it’s not how Bruen works.

Heller’s “common use” language is inseparable from its discussion of the historical tradition of restricting dangerous and unusual weapons. It is not a magic phrase that turns any popular firearm into a constitutionally untouchable object. The Court said two things at once: that arms commonly possessed for lawful purposes fall within the Amendment’s scope, and that dangerous and unusual weapons may be prohibited, explicitly including “M‑16 rifles and the like.” You keep pretending the first clause erases the second. It doesn’t.

And your repeated chant of “we’re discussing the first step” doesn’t rescue your argument. Step one is the textual inquiry: does the conduct involve keeping and bearing arms. That’s it. Step one is not a popularity poll. It is not a headcount of how many rifles were sold last year. Even within step one, Heller’s definition of “arms” is tied to the historical tradition of excluding dangerous and unusual weapons. That’s not step two -- that’s part of defining the category in the first place. You don’t get to amputate half of Heller and call it “staying within step one.”

Bruen didn’t convert “common use” into a standalone threshold test. The “common use” concept comes from the historical tradition -- specifically from the dangerous‑and‑unusual line -- not from a raw market‑share metric. Treating it as a simple popularity contest is exactly the kind of shortcut Bruen rejected.

Here I suspect you are going to respond with Caetano .

In case you do, no, Caetano doesn’t save your argument. Caetano stands for the unremarkable proposition that a weapon doesn’t lose protection simply because it’s modern. It does not say “anything modern and popular is automatically protected.” It certainly doesn’t say “popularity ends the analysis.” Caetano reaffirmed Heller’s framework; it didn’t replace it with your one‑sentence formula.

“Bearable arms” doesn’t do the work you think it does. “Bearable arms” is a broad category, but Heller immediately narrows it with the dangerous‑and‑unusual limitation. You keep quoting the first half of the sentence and pretending the second half doesn’t exist. The Court didn’t.

And, “common use for self‑defense” is not the constitutional cheat code you want it to be. The Court has never held that any weapon someone claims to use for self‑defense automatically qualifies. The inquiry is tied to the historical tradition of what the Amendment protects, not to whatever happens to be flying off the shelves this decade.

Your “if the AR‑15 doesn’t qualify, no firearm does” line isn’t an argument; it’s a dare. The Court has already told you that there exists a category of arms -- again, “M‑16 rifles and the like” -- that can be excluded even if they are technologically related to commonly owned weapons. That alone shows your absolutist formula is not the law.

Sorry, repeating “we’re discussing the first step” doesn’t turn your oversimplification into doctrine. And repeating “you cannot demonstrate otherwise” doesn’t make your interpretation correct. The Supreme Court’s actual language is more nuanced, more conditional, and far less convenient for the slogan you’re trying to pass off as constitutional analysis.

And, dumb shit......

=======
Instead, we held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Ibid. (emphasis added).[3] It is hard to imagine language speaking more directly to the point. Yet the Supreme Judicial Court did not so much as mention it.
-----
As to “dangerous,” the court below held that a weapon is “dangerous per se” if it is “ ‘designed and constructed to produce death or great bodily harm’ and ‘for the purpose of bodily assault or defense.’ ” 470 Mass., at 779, 26 N. E. 3d, at 692 (quoting Commonwealth v. Appleby, 380 Mass. 296, 303, 402 N. E. 2d 1051, 1056 (1980)). That test may be appropriate for applying statutes criminalizing assault with a dangerous weapon. See ibid., 402 N. E. 2d, at 1056. But it cannot be used to identify arms that fall outside the Second Amendment.

First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes. See Heller, supra, at 627 (contrasting “ ‘dangerous and unusual weapons’ ” that may be banned with protected “weapons . . . ‘in common use at the time’ ”).

Second, even in cases where dangerousness might be relevant, the Supreme Judicial Court’s test sweeps far too broadly. Heller defined the “Arms” covered by the Second Amendment to include “ ‘any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.’ ” 554 U. S., at 581. Under the decision below, however, virtually every covered arm would qualify as “dangerous.”

https://supreme.justia.com/cases/federal/us/577/411/

 

[M14 Shooter]

You keep insisting I “don’t understand” Heller or Bruen, but you are the one who does not understand it

I have had enough of your lies and deliberate misrepresentations.

 

[2aguy]

You keep insisting I “don’t understand” Heller or Bruen, but you are the one who does not understand it -- what you’re actually doing is flattening both cases into a slogan: “in common use = automatically protected.” That’s not what Heller held, and it’s not how Bruen works.

Heller’s “common use” language is inseparable from its discussion of the historical tradition of restricting dangerous and unusual weapons. It is not a magic phrase that turns any popular firearm into a constitutionally untouchable object. The Court said two things at once: that arms commonly possessed for lawful purposes fall within the Amendment’s scope, and that dangerous and unusual weapons may be prohibited, explicitly including “M‑16 rifles and the like.” You keep pretending the first clause erases the second. It doesn’t.

And your repeated chant of “we’re discussing the first step” doesn’t rescue your argument. Step one is the textual inquiry: does the conduct involve keeping and bearing arms. That’s it. Step one is not a popularity poll. It is not a headcount of how many rifles were sold last year. Even within step one, Heller’s definition of “arms” is tied to the historical tradition of excluding dangerous and unusual weapons. That’s not step two -- that’s part of defining the category in the first place. You don’t get to amputate half of Heller and call it “staying within step one.”

Bruen didn’t convert “common use” into a standalone threshold test. The “common use” concept comes from the historical tradition -- specifically from the dangerous‑and‑unusual line -- not from a raw market‑share metric. Treating it as a simple popularity contest is exactly the kind of shortcut Bruen rejected.

Here I suspect you are going to respond with Caetano .

In case you do, no, Caetano doesn’t save your argument. Caetano stands for the unremarkable proposition that a weapon doesn’t lose protection simply because it’s modern. It does not say “anything modern and popular is automatically protected.” It certainly doesn’t say “popularity ends the analysis.” Caetano reaffirmed Heller’s framework; it didn’t replace it with your one‑sentence formula.

“Bearable arms” doesn’t do the work you think it does. “Bearable arms” is a broad category, but Heller immediately narrows it with the dangerous‑and‑unusual limitation. You keep quoting the first half of the sentence and pretending the second half doesn’t exist. The Court didn’t.

And, “common use for self‑defense” is not the constitutional cheat code you want it to be. The Court has never held that any weapon someone claims to use for self‑defense automatically qualifies. The inquiry is tied to the historical tradition of what the Amendment protects, not to whatever happens to be flying off the shelves this decade.

Your “if the AR‑15 doesn’t qualify, no firearm does” line isn’t an argument; it’s a dare. The Court has already told you that there exists a category of arms -- again, “M‑16 rifles and the like” -- that can be excluded even if they are technologically related to commonly owned weapons. That alone shows your absolutist formula is not the law.

Sorry, repeating “we’re discussing the first step” doesn’t turn your oversimplification into doctrine. And repeating “you cannot demonstrate otherwise” doesn’t make your interpretation correct. The Supreme Court’s actual language is more nuanced, more conditional, and far less convenient for the slogan you’re trying to pass off as constitutional analysis.

The Court has already told you that there exists a category of arms -- again, “M‑16 rifles and the like” -- that can be excluded even if they are technologically related to commonly owned weapons. That alone shows your absolutist formula is not the law.



You lie, again....Scalia never said the M-16 can be banned. That is a lie, and I showed you it was a lie.

Scalia said the exact opposite about the M-16....

He did not say the M-16 can be banned, that is a lie, he stated IF the M-16 can be banned, then

then the Second Amendment right is completely detached from the prefatory clause.

He is saying the opposite of what you posted...


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It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.

It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
=====

Justice Scalia: The M-16 (AR-15) is the textbook example of a weapon protected by the Second Amendment

by Chuck Norton

politicalarena.substack.com

 

[Rumpole]

I have had enough of your lies and deliberate misrepresentations.

You do not know the subject well enough to make such a determination.

 

[frigidweirdo]

You do not know the subject well enough to make such a determination.

That's literally the generic answer to anything he doesn't like.

 

[Hafar1014]

This argument has been around for a very long time. The question is how to interpret the comma after “free state.” It's incredible that it took a heavily stacked court to rule as they did. I support gun ownership. Have been a gun owner. I have never been in or desired to join a militia. Why would I? I'm no Timothy McVeigh.


Opinion | Commas, Common Sense and Justice - John McWhorter - You’re reading the John McWhorter newsletter. A Columbia University linguist explores how race and language shape our politics and culture.

Like language itself, punctuation is always in a state of flux.

If you are of a certain age, notice how you are likely using exclamation points more lately. It has become a mark of agreeability in a way that would mystify a time traveler from as recently as a couple decades ago. “See you in a bit!” “I looked for you yesterday but you weren’t there!” I now email like that.

This is part of a long story Florence Hazrat tells in “On the Mark: From Periods to Interrobangs, How Punctuation Remade the World,” due out in August...

It’s a roller coaster of a story. Ancient Greek had no spaces between words, Hazrat writes, and Aristophanes of Byzantium, a librarian in Alexandria, found it cumbersome...

In considering how the history of punctuation can affect history itself, Hazrat touches on the role of commas in the 2008 Supreme Court ruling that the Constitution’s Second Amendment — “a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed” — protects the rights of all people, not just militia members, to possess firearms. Hazrat finds the reasoning behind the ruling, District of Columbia v. Heller, is absurd. I agree.

The question is how to interpret the comma after “free state.” Justice Antonin Scalia, the author of the ruling, wrote that the comma set apart a mere preface to the “operative clause” of the amendment — the right of the people to keep and bear arms shall not be infringed. Hazrat writes that Scalia’s analysis followed the tradition of the most conservative pro-gun advocates to take the part of the amendment before that comma as throat-clearing, with all the intention of the amendment coming after that comma. Scalia argued that that preface in no way qualified or limited the intention of the Bill of Rights’ framers.

Essentially Scalia argued that the Founders meant, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms — something separate — shall not be infringed.”

Hazrat argues that commas should play no role in interpreting the amendment...

Rather, we should accept the most plausible interpretation of what the words mean. Until this century there was a broad understanding that the Founders meant that all clauses of the amendment, no matter how many there are, should be read together. As in, people should be able to bear arms to serve in a militia, not just for any reason they want.

I would add that the comma is less the issue than that Scalia’s interpretation is hopelessly forced. Scalia persuasively argued that in the late 18th century, “bear arms” referred to using weapons in various ways, not just in a militia. But it still leaves a crucial question: Why would the Founders bring up one type of gun ownership — when serving in a militia — if they wanted to approve all kinds of gun ownership? If they wanted to preface their proclamation, as Scalia claimed, they could have mentioned not only serving in a militia, but self-defense and hunting.

Under Scalia’s analysis, the following sentence would pass muster: “Basketball, aiding in health, sports, shall be encouraged.” Such a sentence is beyond clumsy.

It insults the Founders to suppose that this sort of convolution was the best they could do when adjudicating something of such gravity.

It comes down to this: “Officials, being prone to partisan bias, Supreme Court justices, should interpret language according to what is most intuitive.”

ITs defines the militia as the people. Very easy to understand

 

[Dante]

ITs defines the militia as the people. Very easy to understand

If only life and that document were as simple as your mind.

 

[2aguy]

If only life and that document were as simple as your mind.

That document is incredibly easy to read. The only ones who can't understand it are the ones lying about what it says, because they don't want to go through the process of changing it. You just want to mandate what you want, and throw away the Constitution to get it donw.

 

[Rumpole]

ITs defines the militia as the people. Very easy to understand

Looking at this in a pre-Heller landscape, based on court rulings up to Heller, the Second Amendment does not read like an independent personal-right provision. It begins with a prefatory clause explaining its object: “A well regulated Militia, being necessary to the security of a free State.” The operative language then protects “the right of the people to keep and bear Arms” in service of that object, not in isolation. On the pre-Heller understanding, “the people” is a collective political body capable of militia service, and the right is therefore linked to the militia’s preservation, not detached from it.

The Second Amendment’s prefatory clause is not ornamental. It identifies the Amendment’s object: preserving a well regulated militia. Pre-Heller precedent, especially United States v. Miller, treated that militia purpose as the measure of the right. “The people” therefore does not create an untethered private right to possess firearms for personal use; it refers to the citizen body in its militia capacity, and the right protects arms possession only insofar as it bears a reasonable relationship to the militia’s effectiveness.

Heller materially changed the pre-Heller doctrinal landscape. If the pre-Heller understanding had already recognized an individual Second Amendment right to keep and bear arms, Washington, D.C.’s handgun ban would have been treated as unconstitutional long before Heller. Instead, Heller emerged only after a significant shift in constitutional thinking, aided by sustained advocacy from gun-rights organizations and conservative legal institutions.

 

[2aguy]

Looking at this in a pre-Heller landscape, based on court rulings up to Heller, the Second Amendment does not read like an independent personal-right provision. It begins with a prefatory clause explaining its object: “A well regulated Militia, being necessary to the security of a free State.” The operative language then protects “the right of the people to keep and bear Arms” in service of that object, not in isolation. On the pre-Heller understanding, “the people” is a collective political body capable of militia service, and the right is therefore linked to the militia’s preservation, not detached from it.

The Second Amendment’s prefatory clause is not ornamental. It identifies the Amendment’s object: preserving a well regulated militia. Pre-Heller precedent, especially United States v. Miller, treated that militia purpose as the measure of the right. “The people” therefore does not create an untethered private right to possess firearms for personal use; it refers to the citizen body in its militia capacity, and the right protects arms possession only insofar as it bears a reasonable relationship to the militia’s effectiveness.

Heller materially changed the pre-Heller doctrinal landscape. If the pre-Heller understanding had already recognized an individual Second Amendment right to keep and bear arms, Washington, D.C.’s handgun ban would have been treated as unconstitutional long before Heller. Instead, Heller emerged only after a significant shift in constitutional thinking, aided by sustained advocacy from gun-rights organizations and conservative legal institutions.

In American law there is a latin phrase that explains your argument....I believe it means "crock of shit."

Here is what the brilliant Justice Scalia actually said......you dope...

=====
But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.

See F. Dwarris, A General Treatise on Statutes 268–269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874).[Footnote 3] “ ‘It is nothing unusual in acts … for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ”
-------
1. Operative Clause.


a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.[Footnote 5]


Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights.

Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.[Footnote 6]


What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):


“ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”


This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”


We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.
------
c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment.

We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.”

As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”[Footnote 16]
=======

District of Columbia v. Heller, 554 U.S. 570 (2008)

District of Columbia v. Heller: Private citizens have the right under the Second Amendment to possess an ordinary type of weapon and use it for lawful, historically established situations such as self-defense in a home, even when there is no relationship to a local militia.

supreme.justia.com