[ReelinRod]

Originally Posted by Jim in CT

The 2nd amendment says the right to bear arms shall not be infringed.

The right to keep and bar arms does not in any manner depend on the 2nd Amendment for its existence. The reason why the citizen possesses the right to arms is because no power was ever granted to government to have any interest whatsoever in the personal arms of the private citizen. It is a pre-existing, fully retained, fundamental right and as such, any law challenged as being a violation of the right is presumed unconstitutional.

Originally Posted by Jim in CT

We have collectively decided that banning machine guns and mortars is not a violation of that clause.

You shouldn't be so cock-sure . . . Many, many, many laws stand now as "presumptively lawful" as they have not yet been challenged under Heller (2008). For 70 years laws were upheld using the lower federal court "militia right" or "state's right" or generic "collective right" inventions / mutations / perversions that were invalidated by the Supreme Court in Heller.

Also, many also were upheld pre-McDonald (2010) because it was held that the federal 2nd Amendment did not impede state legislatures (also a legal doctrine now invalidated).

Originally Posted by Jim in CT

I feel one could make a compelling case that banning things like high-capacity magazines (or anything else designed for military capacity, not civilian use) is similar.

Governments can only claim power to restrict "dangerous or unusual' arms. But . . . government does not get to begin its action presuming the arm is "dangerous and unusual" because it doesn't think the citizens have any good reason to own it, or it isn't used in hunting (i.e., the present idiotic "Assault Weapons" ban hoopla).

The Supreme Court in 1939 established the criteria for courts (and presumably legislatures ) to determine if an arm is afforded 2nd Amendment protection.

If the type of arm meets any one of them then it cannot be deemed 'dangerous and unusual' and the right to keep and bear that weapon must be preserved and any authority claimed by government to restrict its possession and use is repelled.

Those criteria state that to be protected by the 2nd Amendment the arm must be:

• A type in common use at the present time and/or
• A type usually employed in civilized warfare / that constitute the ordinary military equipment and/or
• A type that can be employed advantageously in the common defense of the citizens.

Failing ALL those tests, the arm could then and only then be argued to be "dangerous and unusual" and the government would be permitted to argue that a legitimate power to restrict that type of arm should be afforded .

"Dangerous and Unusual" is what's left after the protection criteria are all applied and all fail . . . Think of it as legal Scrapple . . .

Originally Posted by Jim in CT

I agree that banning rifles that look scary, but in fact operate exactly like a small-game hunting rifle, is not accomplishing much.

That seems to be much more than Feinstein and Biden are willing to stipulate. Thanks a lot . . .

Originally Posted by Jim in CT

I'm talking about banning things that are significantly more lethal, yet which serve no significant need except to make guys with small wee-wees feel macho enough.

Well, if anything really speaks to a mature and reasoned discussion it is ^that^.

Originally Posted by Jim in CT

The type of ban I'm talking about might not have had any impact to the Newtown tragedy. But it might help mitigate the next one.

You "might" want to learn about fundamental rights and strict scrutiny. You "might" learn that "might" isn't part of the mix. . . .