The Straight Dope

Go Back   Straight Dope Message Board > Main > Great Debates

Reply
 
Thread Tools Display Modes
  #1  
Old 02-17-2017, 10:12 AM
bizerta bizerta is offline
Guest
 
Join Date: Dec 1999
The right to bear arms

This was prompted by a PBS show on Ruby Ridge.

Americans have the right to bear arms, but I see nothing in the Constitution that determines what arms are allowed, restricted, or inhibited. For example (A) why is a sawed off shotgun illegal? Isn't that an "arm"? (B) automatic weapons. (C) IIRC, felons are not allowed to carry weapons. Is there something in the Constitution that forbids it? (D) 50 years ago, my father had an old shotgun that could hold five rounds. The "law" required him to put a wooden plug in it so that only three rounds could be fired without reloading. (E) If we have the right to bear arms, why can't we just go into a gun store and cash-and-carry? (F) I'm sure I'd think of more if I had the time.
Reply With Quote
Advertisements  
  #2  
Old 02-17-2017, 10:37 AM
Bones Daley Bones Daley is offline
Guest
 
Join Date: Jan 2013
The Constitution states " 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."

Presumably all types of fireams were allowed (and welcomed) back in the day when a well regulated militia was a meaningful concept.
Reply With Quote
  #3  
Old 02-17-2017, 10:48 AM
Chefguy Chefguy is offline
Charter Member
 
Join Date: Jun 2003
Location: Portlandia
Posts: 36,668
Quote:
Originally Posted by Bones Daley View Post
The Constitution states " 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."

Presumably all types of fireams were allowed (and welcomed) back in the day when a well regulated militia was a meaningful concept.
Also when all types of firearms meant muzzle loaders.

We also have the right to free speech, but there are restrictions (hate speech, inciting to riot, etc). Your rights are only such up to the point where they infringe on others' rights. Also, the role of government is to protect its citizens. Sawed off shotguns are easily concealed, and felons are more likely to be repeat offenders. Automatic weapons are not illegal, but there are special permits required, IIRC.
Reply With Quote
  #4  
Old 02-17-2017, 10:52 AM
running coach running coach is offline
Charter Member
 
Join Date: Nov 2000
Location: Riding my handcycle
Posts: 27,282
Quote:
Originally Posted by Bones Daley View Post
The Constitution states " 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."

Presumably all types of fireams were allowed (and welcomed) back in the day when a well regulated militia was a meaningful concept.
Scalia (shocker to me) said that the 2nd Amendment does not preclude regulation.
Quote:
Here is Justice Antonin Scalia, writing the majority opinion in District of Columbia v. Heller, in which the Supreme Court reversed a long-held position and ruled that the Second Amendment did give Americans an individual right to own firearms. The court said the District’s ban on handguns in private homes went too far, but that regulation of gun ownership was compatible with the Second Amendment:

“We also recognize another important limitation on the right to keep and carry arms. ‘Miller’ said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ 307 U.S., at 179, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
Reply With Quote
  #5  
Old 02-17-2017, 11:12 AM
August West August West is offline
Member
 
Join Date: May 2000
Location: The Cheese Belt
Posts: 4,572
Quote:
Originally Posted by bizerta View Post
(D) 50 years ago, my father had an old shotgun that could hold five rounds. The "law" required him to put a wooden plug in it so that only three rounds could be fired without reloading.
That "law" only applies when hunting migratory waterfowl. My shotgun holds 8 rounds and is perfectly legal.
Reply With Quote
  #6  
Old 02-17-2017, 11:22 AM
Colibri Colibri is offline
SD Curator of Critters
Moderator
 
Join Date: Oct 2000
Location: Panama
Posts: 34,937
Moved to Great Debates.

Colibri
General Questions Moderator
Reply With Quote
  #7  
Old 02-17-2017, 11:26 AM
Whack-a-Mole Whack-a-Mole is offline
Guest
 
Join Date: Apr 2000
Quote:
Originally Posted by Bones Daley View Post
Presumably all types of fireams were allowed (and welcomed) back in the day when a well regulated militia was a meaningful concept.
Any weapon was allowed. You could own a warship if you wanted to with cannons and armed men...the works. Indeed many people did own those. The War of 1812 was fought, in part, with privateers.

Last edited by Whack-a-Mole; 02-17-2017 at 11:27 AM..
Reply With Quote
  #8  
Old 02-17-2017, 11:28 AM
Okrahoma Okrahoma is offline
Guest
 
Join Date: Oct 2015
Quote:
Originally Posted by Chefguy View Post
We also have the right to free speech, but there are restrictions (hate speech, inciting to riot, etc).
AFAIU there is no restriction on "hate speech" in the US. Can you give a cite?
Quote:
Your rights are only such up to the point where they infringe on others' rights.
Correct. There is a right not to be physically assaulted or have your property destroyed (which is where the "inciting to riot" comes in I guess). But there is no right not to be offended (which is where the "hate speech" doesn't come in).
Reply With Quote
  #9  
Old 02-17-2017, 11:28 AM
Velocity Velocity is online now
Guest
 
Join Date: Jun 2014
AIUI, the Second Amendment ought to mean "arms" on a broad spectrum, and the whole fight is about where on that spectrum the cutoff point is. So if you ban all firearms, your citizenry can still have knives, so arms are permitted - conversely, at the other extreme, if citizens want their own nuclear warheads, then banning them from having them could be called "Inhibiting the right to bear arms.".....
Reply With Quote
  #10  
Old 02-17-2017, 11:34 AM
HurricaneDitka HurricaneDitka is offline
2016 Election-from-Heck RnnrUp
 
Join Date: Aug 2012
Posts: 3,648
With regard to A), you can purchase a short-barrel shotgun, but you have to jump through the same sort of bullshit hoops with the ATF that you do for full-auto weapons. It's an especially-illogical situation with short-barrel rifles, where an AK pistol is easy to purchase, an AK rifle is easy to purchase, but the middle ground - a short-barrel AK - requires you to jump through some silly bureaucratic hoops.
Reply With Quote
  #11  
Old 02-17-2017, 11:35 AM
Exapno Mapcase Exapno Mapcase is offline
Charter Member
 
Join Date: Mar 2002
Location: NY but not NYC
Posts: 28,249
The Constitution was written at a time when the average rural American owned a rifle or shutgun for hunting and city residents might own a pistol. Militias were to be gathered out of these basics for emergency purposes. The forces in the Revolution were poorly armed and required infusions of better guns and ammunition - not to mention training - to function. They were allowed to go back to their chaotic state afterwards because their was a general feeling that a standing army - used so often in Europe for repression - was not American. Even so, a small army and navy were formed, and an officer corps trained at West Point and Annapolis, on the logical grounds that trained and disciplined troops were always superior to hastily-gathered bands of disorganized civilians.

For most of the next 150 years, the Second Amendment wasn't given much thought. Eventually, militias were phased out in favor of state National Guard units to ensure that the training and discipline was always in place. Guns meant the same rifles, shotguns, and pistols as in 1787. During Prohibition gangsters got their hands on machine guns, which changed the balance even after police forces got them as well. The National Firearms Act of 1934 tried to take legal weapons back to the basic trio. It banned machine guns, and also sawed-off shotguns, silencers, and bomb-like explosives. The Supreme Court effectively gutted the Act as unenforceable in 1968.

Today, the Second Amendment has no real definition that is established in law and recent court cases have generally ruled that sane, non-felons have the right to purchase almost any gun-style weapon. The waiting period is to ensure that the non-sane or felons are not allowed to purchase from gun stores, although they can easily do so elsewhere. Most political scientists would agree this is not inherent in any deep meaning of the Amendment but due to a combination of a highly-motivated voting bloc and conservative judges. If an equally highly-motivated antigun voting block were to emerge in a time of liberal judges, the laws would be entirely different.

The Constitution is a framework. Each generation builds the visible sheathing in its own design, however lumpy and mismatched that might be. People sometimes mistake the temporary sheathing as something permanent. Worse, people sometimes claim that the framework allows for only one single sheathing. Obviously, reality and history refute both notions.

There's no sound, logical answer to the OP. The answer is always votes and ideology, no matter which way they swing.
Reply With Quote
  #12  
Old 02-17-2017, 11:38 AM
DSYoungEsq DSYoungEsq is offline
Member
 
Join Date: Jul 1999
Location: Indian Land, S Carolina
Posts: 11,028
The case law on the Second Amendment is thin, and the interpretation of the Amendment has undergone some changes over time. The laws regarding weaponry have mutated with those changes.

The Supreme Court of the United States did not have occasion to interpret the Second Amendment until 1939, when it issued an opinion in United States v. Miller, 307 US 174. In that case, the defendants were charged with violation of the National Firearms Act requiring registration of sawed-off shotguns. That act, passed in 1934, was an attempt to deal with the possession and use of machine guns and other weapons by the gangs that had operated during Prohibition. The lower court had dismissed the indictments on the theory that the Second Amendment barred prosecution, and not shockingly, the defendants did not stick around to reply to the appeals by the Government, so the Supreme Court's opinion is somewhat tainted by the fact that it was based only on briefing by the Government.

In Miller, the Court opined that the "prefatory clause" ("A well regulated Militia, being necessary to the security of a free State, ...") gave scope to the Amendment. Thus, the purpose of the Amendment being to make certain that militias could exist unhampered, the Court held that weapons like sawed-off shotguns could be registered and taxed, since they did not bear reasonable relationship to running a militia. A number of Court of Appeals cases in the years after that both followed this reasoning, and showed that it had some potential flaws.

There grew up a significant opposing movement among legal writers, that the Amendment was an individual right, not limited to the prefatory clause. This group of writers noted that the "operative clause" ("... the right of the people to keep and bear Arms shall not be infringed.") did not have any limiting language in it. Further, the Second Amendment is placed among a number of amendments in the "Bill of Rights" which are all personal rights. This group of writers asserted that the Amendment bars the Federal Government (and probably, by incorporation into the 14th Amendment's Due Process Clause, the states) from regulating firearms of any kind. Among the authors who wrote about this concept prior to 2008 was Antonin Scalia.

In 2008, everything changed. The Supreme Court issued it's holding in District of Columbia v. Heller, 554 US 570, striking down a law applicable to the District banning handguns entirely, and placing all other firearms under significant restrictions. In reaching its determination, the opinion extensively reviews the concepts of "keep and bear arms" and "well-regulated militia" through the centuries before and after the Revolution. The Court decided that the Second Amendment is an individual right, and that the government was not able to regulate handguns on the basis that they were not relevant to forming a well-regulated militia.

In the opinion, the Court did try to limit the extent of its decision through dicta (things said by the Court that have no precedential value, since they aren't relevant to the case in front of it, but which can be used to guide future courts in understanding what the Court wanted), saying that their opinion should not be considered to preclude keeping felons from possessing guns, or the mentally ill, or banning possession on school grounds and in government buildings, etc. Justice Scalia's comments on "dangerous and unusual weapons" has already been noted above. Since this is dicta, and since the words "shall not be infringed" are arguably a stronger injunction than "abridging" or "respecting", speculation is strong that, presented with actual cases testing those types of limits, the Court might have to retreat from them. Certainly, that is the view of the NRA.

Not long after Heller, the Court held that the Second Amendment's right also is a limit on state power (McDonald v. Chicago, 561 US 742 (2010)). There were four justices who would incorporate it to the Due Process clause of the 14th Amendment as a function of "liberty"; Justice Thomas preferred to incorporate it using the Privileges and Immunities Clause.

So as you can see, prior to the 1930s, no one knew quite what the Amendment precluded for certain. From the '30s to the turn of the Century, it was thought the Amendment allowed for reasonable restrictions on firearms by type, allowing registration, taxation, and even outright bans, as well as carving out certain individuals from the right (felons, mentally ill, those on school grounds, etc.). After 2008, the Amendment appears to have little tolerance for government limitations on firearms. Still, the Supreme Court in Heller did attempt to preserve some of the traditional limitations government has employed. It is still to be determined exactly how they will fare.
Reply With Quote
  #13  
Old 02-17-2017, 11:39 AM
HurricaneDitka HurricaneDitka is offline
2016 Election-from-Heck RnnrUp
 
Join Date: Aug 2012
Posts: 3,648
I'd never considered the possibility before, but I wonder if you could submit an application for a nuclear warhead as a "destructive device". Here is the form you'd use for it (I think I've got this right). I wonder if they'd accept it.

Last edited by HurricaneDitka; 02-17-2017 at 11:39 AM..
Reply With Quote
  #14  
Old 02-17-2017, 11:41 AM
yearofglad yearofglad is offline
Guest
 
Join Date: Jun 2004
Quote:
Originally Posted by Okrahoma View Post
AFAIU there is no restriction on "hate speech" in the US. Can you give a cite?
There is no such restriction.
Reply With Quote
  #15  
Old 02-17-2017, 11:51 AM
HurricaneDitka HurricaneDitka is offline
2016 Election-from-Heck RnnrUp
 
Join Date: Aug 2012
Posts: 3,648
Quote:
Originally Posted by Exapno Mapcase View Post
The Supreme Court effectively gutted the Act as unenforceable in 1968.
I assure you that this is not a correct view of the current state of legality of the NFA. In the OP, he mentions Ruby Ridge. If the NFA were actually "unenforceable", what the fuck was the FBI doing on the Weaver's property in 1992 shooting people?

People go to federal PMITA prison for NFA violations with regularity.
Reply With Quote
  #16  
Old 02-17-2017, 11:52 AM
watchwolf49 watchwolf49 is offline
Guest
 
Join Date: Dec 2009
I'll try and address some of these ... my information might be a bit dated though ...

Quote:
Originally Posted by bizerta View Post
(A) why is a sawed off shotgun illegal? Isn't that an "arm"?
Sawed off shotguns were specifically address by SCOTUS in the 1930's ... they determined that these arms were neither normal nor necessary for the well-regulated militia ... even the regular military at the time didn't use them ... therefore this specific arm isn't protected under the 2nd Amendment ... by this standard we don't have a right to own a nuclear arm ...

Quote:
Originally Posted by bizerta View Post
(E) If we have the right to bear arms, why can't we just go into a gun store and cash-and-carry?
Waiting two week to take possession of your arm isn't sufficiently onerous to the exercising of one's right to bear arms ... when you're called up for militia duty is a bad time think about getting gun after all ...

Quote:
Originally Posted by bizerta View Post
(F) I'm sure I'd think of more if I had the time.
I've found most regulation to be common sense ... people should be treating their guns this way anyway ... it's sad we have to pass laws just to force people to be careful ...

ETA: massively nin'ja'ed ...

Last edited by watchwolf49; 02-17-2017 at 11:55 AM..
Reply With Quote
  #17  
Old 02-17-2017, 12:01 PM
HurricaneDitka HurricaneDitka is offline
2016 Election-from-Heck RnnrUp
 
Join Date: Aug 2012
Posts: 3,648
With respect to E) in most states there are no waiting periods to purchase a firearm (Cite). In that sense, they are cash-and-carry, although you do have to pass an instant background check first. Most states also allow private-party face-to-face transactions, which are very much "cash-and-carry", unless you're dealing with a seller that is imposing their own additional rules on top of legal requirements. I've met people in darkened parking lots late at night, handed them a wad of cash, and walked away with a gun. All perfectly legal.

Last edited by HurricaneDitka; 02-17-2017 at 12:02 PM..
Reply With Quote
  #18  
Old 02-17-2017, 12:04 PM
Whack-a-Mole Whack-a-Mole is offline
Guest
 
Join Date: Apr 2000
Quote:
Originally Posted by watchwolf49 View Post
... it's sad we have to pass laws just to force people to be careful ...
The comedian Jim Jefferies speaks to this point:

"If you're a responsible gun owner and you don't fuck around with them then you should be allowed your guns.

But that's not how society works. We have to play to the 1% that are such fuckwits that they ruin it for the rest of us. We have to walk as slow as our slowest person to keep society fucking moving.

I take drugs like a fucking champion. We should all be allowed to take drugs but we can't, can we, because Sarah took drugs and she stabbed her fucking kids. Thanks Sarah, you fucked it up for everyone!

Everyone should be able to drive their car as fast as they can do it. But we can't because Jonathan got drunk and ran over a family. Thanks Jonathan! Now I have to drive at 30 you fucking idiot!"
SOURCE
Reply With Quote
  #19  
Old 02-17-2017, 12:29 PM
Bone Bone is online now
Newbie
Moderator
 
Join Date: Jul 2003
Posts: 6,237
Quote:
Originally Posted by DSYoungEsq View Post
In Miller, the Court opined that the "prefatory clause" ("A well regulated Militia, being necessary to the security of a free State, ...") gave scope to the Amendment. Thus, the purpose of the Amendment being to make certain that militias could exist unhampered, the Court held that weapons like sawed-off shotguns could be registered and taxed, since they did not bear reasonable relationship to running a militia.
This isn't quite right. Because the defense didn't present argument in Miller as you note, the court did not conclude that short barreled shotguns did not bear a reasonable relationship to running a militia. What they actually said:
Quote:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.
They basically said there was no evidence presented that short barreled shotguns had a militia purpose. However, if the defense did make an argument, hopefully they would have noted the utilization of short barreled shotguns for military and militia purposes at the time. The blunderbuss is one such weapon. Now, it's impossible to say whether presentation of evidence such as this would have persuaded the Miller court, but certainly it would have changed the analysis in the above quoted section. Here is one example of its use:
Quote:
The Lewis and Clark expedition was in many ways an infantry company on the move, fully equipped with rifles of various kinds, muskets, and pistols. Among the firearms were two blunderbusses. Named after the Dutch words for “thunder gun,” the blunderbuss was unmistakable for its heavy stock, short barrel, and wide-mouthed muzzle. Other expedition guns might be graceful in design and craftsmanship but the stout blunderbuss simply signified brute force and power. Lewis and Clark fired their blunderbusses as signs of arrival when entering Indian camps or villages.

Quote:
Originally Posted by bizerta View Post
For example (A) why is a sawed off shotgun illegal? Isn't that an "arm"? (B) automatic weapons. (C) IIRC, felons are not allowed to carry weapons. Is there something in the Constitution that forbids it? (D) 50 years ago, my father had an old shotgun that could hold five rounds. The "law" required him to put a wooden plug in it so that only three rounds could be fired without reloading. (E) If we have the right to bear arms, why can't we just go into a gun store and cash-and-carry? (F) I'm sure I'd think of more if I had the time.
(A) - Because of the NFA and the Miller ruling in 1939. Not illegal but controlled by the NFA and subsequent revisions.
(B) - Same as A
(C) - Because fed and states passed laws that have been upheld by courts.
(D) - this is a hunting specific rule at a specific location.
(E) - State level restrictions have been passed and either upheld or not yet litigated. This is on a state by state basis as there are many states where this is allowed under certain circumstances.
(F) - ask away.
Reply With Quote
  #20  
Old 02-17-2017, 12:39 PM
Bone Bone is online now
Newbie
Moderator
 
Join Date: Jul 2003
Posts: 6,237
Quote:
Originally Posted by Chefguy View Post
Also when all types of firearms meant muzzle loaders.
Also not quite right. Early repeating rifles existed at the time, though they were very expensive and not super common.
Reply With Quote
  #21  
Old 02-17-2017, 12:40 PM
Exapno Mapcase Exapno Mapcase is offline
Charter Member
 
Join Date: Mar 2002
Location: NY but not NYC
Posts: 28,249
Quote:
Originally Posted by HurricaneDitka View Post
I assure you that this is not a correct view of the current state of legality of the NFA. In the OP, he mentions Ruby Ridge. If the NFA were actually "unenforceable", what the fuck was the FBI doing on the Weaver's property in 1992 shooting people?

People go to federal PMITA prison for NFA violations with regularity.
Sorry. Haynes v. United States took away the registration requirements because of Fifth Amendment rights, but not the illegality of certain weapons.
Reply With Quote
  #22  
Old 02-17-2017, 01:32 PM
HurricaneDitka HurricaneDitka is offline
2016 Election-from-Heck RnnrUp
 
Join Date: Aug 2012
Posts: 3,648
Quote:
Originally Posted by Exapno Mapcase View Post
Sorry. Haynes v. United States took away the registration requirements because of Fifth Amendment rights, but not the illegality of certain weapons.
I'm not sure what this means. The weapons are only illegal if they're not registered with the ATF. That's what they originally charged Randy Weaver for: selling a pair of unregistered short-barrel shotguns to an informant.
Reply With Quote
  #23  
Old 02-17-2017, 02:03 PM
Whack-a-Mole Whack-a-Mole is offline
Guest
 
Join Date: Apr 2000
Quote:
Originally Posted by Bone View Post
Also not quite right. Early repeating rifles existed at the time, though they were very expensive and not super common.
It is always trotted out that repeating rifles existed when the FFs wrote the Bill of Rights.

While that is true the takeaway here should be that the FFs had no concept of what a world with such weapons looked like. Their view on weapons were muskets, cannons and swords. They did not imagine anything else when writing the 2nd amendment.
Reply With Quote
  #24  
Old 02-17-2017, 02:22 PM
MEBuckner MEBuckner is offline
Charter Member
Charter Member
 
Join Date: Aug 2000
Location: Atlanta, Georgia, USA
Posts: 11,154
Quote:
Originally Posted by Whack-a-Mole View Post
It is always trotted out that repeating rifles existed when the FFs wrote the Bill of Rights.

While that is true the takeaway here should be that the FFs had no concept of what a world with such weapons looked like. Their view on weapons were muskets, cannons and swords. They did not imagine anything else when writing the 2nd amendment.
And they also had no concept of a world with radio, television, cable television, the Internet, or Twitter when they wrote the First Amendment.

Also:
Quote:
Originally Posted by Whack-a-Mole View Post
Any weapon was allowed. You could own a warship if you wanted to with cannons and armed men...the works. Indeed many people did own those. The War of 1812 was fought, in part, with privateers.
So, you think the authors of the Second Amendment would have been saying "Warships with cannons on them are perfectly OK, but a rifle that can fire multiple times before you have to reload it?!? Whoa, Nelly! That's going too far!"
__________________
"In our obscurity, in all this vastness, there is no hint that help will come from elsewhere to save us from ourselves." -- Carl Sagan

Ceterum censeo imperium Trumpi esse delendam
Reply With Quote
  #25  
Old 02-17-2017, 02:45 PM
Whack-a-Mole Whack-a-Mole is offline
Guest
 
Join Date: Apr 2000
Quote:
Originally Posted by MEBuckner View Post
And they also had no concept of a world with radio, television, cable television, the Internet, or Twitter when they wrote the First Amendment.
None of which are potentially lethal.

Quote:
So, you think the authors of the Second Amendment would have been saying "Warships with cannons on them are perfectly OK, but a rifle that can fire multiple times before you have to reload it?!? Whoa, Nelly! That's going too far!"
Yes. Sail powered warships with muzzle loaded cannons were only dangerous in specific circumstances.

If you showed the FFs Chicago today I am willing to bet they'd rethink that amendment.

Last edited by Whack-a-Mole; 02-17-2017 at 02:46 PM..
Reply With Quote
  #26  
Old 02-17-2017, 02:53 PM
HurricaneDitka HurricaneDitka is offline
2016 Election-from-Heck RnnrUp
 
Join Date: Aug 2012
Posts: 3,648
This "2nd Amendment should only cover muskets" argument (in all its oft-repeated variations) is easily the weakest and worst-thought-out position that I see the gun control crowd regularly take. It serves primarily as a testament to the ignorance of the person advancing it.
Reply With Quote
  #27  
Old 02-17-2017, 03:09 PM
Whack-a-Mole Whack-a-Mole is offline
Guest
 
Join Date: Apr 2000
Quote:
Originally Posted by HurricaneDitka View Post
This "2nd Amendment should only cover muskets" argument (in all its oft-repeated variations) is easily the weakest and worst-thought-out position that I see the gun control crowd regularly take. It serves primarily as a testament to the ignorance of the person advancing it.
Good thing I didn't do that then.
Reply With Quote
  #28  
Old 02-17-2017, 03:22 PM
Falchion Falchion is offline
Guest
 
Join Date: Oct 2013
Quote:
Originally Posted by Whack-a-Mole View Post
While that is true the takeaway here should be that the FFs had no concept of what a world with such weapons looked like. Their view on weapons were muskets, cannons and swords. They did not imagine anything else when writing the 2nd amendment.
That doesn't make sense to me. Sure, the FFs would not have been able to predict the precise weaponry that would develop. But they certainly would have understood that weapons technology would continue to advance. And, if the principal difference between weapons in the 1700s and weapons now are that they are more accurate or have a higher rate of fire, then they absolutely would have known that that would happen.

Last edited by Falchion; 02-17-2017 at 03:22 PM..
Reply With Quote
  #29  
Old 02-17-2017, 03:33 PM
OldGuy OldGuy is offline
Charter Member
 
Join Date: Dec 2002
Location: Very east of Foggybog, WI
Posts: 3,975
Quote:
Originally Posted by HurricaneDitka View Post
This "2nd Amendment should only cover muskets" argument (in all its oft-repeated variations) is easily the weakest and worst-thought-out position that I see the gun control crowd regularly take. It serves primarily as a testament to the ignorance of the person advancing it.
I advance it against those who argue them meaning of "well-regulated" at the time the amendment was passed is different from what it means now. That is also true of "arms".

And note the amendment says "arms" not firearms. Where is the uproar when nunchucks, throwing stars, brass knuckles, etc. are outlawed.
Reply With Quote
  #30  
Old 02-17-2017, 04:01 PM
Bone Bone is online now
Newbie
Moderator
 
Join Date: Jul 2003
Posts: 6,237
Quote:
Originally Posted by OldGuy View Post
And note the amendment says "arms" not firearms. Where is the uproar when nunchucks, throwing stars, brass knuckles, etc. are outlawed.
Actually, in NY Maloney as a pro se litigant has been contesting the NY ban on nunchucks since as early as 2007. He lost at the federal appellate level but after McDonald was decided in 2010 SCOTUS vacated that decision and remanded for further proceedings. It is still ongoing.

Typically other arms are much more difficult to become proficient in and are most of the time less effective defense tools. Caetano at SCOTUS reaffirmed the idea that the "arms" protected under the 2nd amendment are not limited to firearms when it reversed a conviction for stun gun possession. After Caetano a number of other jurisdictions repealed their stun gun bans.

The problem is that these things take time, money, and litigation. I'd carry and ASP today if it was allowed, not to mention a firearm. But there really isn't a baton lobby that is as strong as the NRA and other groups like SAF. KnifeRights is another group that is making a lot of progress on the switchblade front.
Reply With Quote
  #31  
Old 02-17-2017, 04:04 PM
Whack-a-Mole Whack-a-Mole is offline
Guest
 
Join Date: Apr 2000
Quote:
Originally Posted by Falchion View Post
That doesn't make sense to me. Sure, the FFs would not have been able to predict the precise weaponry that would develop. But they certainly would have understood that weapons technology would continue to advance. And, if the principal difference between weapons in the 1700s and weapons now are that they are more accurate or have a higher rate of fire, then they absolutely would have known that that would happen.
If they did then that lends credence to the notion that the 2nd amendment was to form a "well regulated militia". Hmmm...
Reply With Quote
  #32  
Old 02-17-2017, 04:27 PM
Falchion Falchion is offline
Guest
 
Join Date: Oct 2013
Quote:
Originally Posted by Whack-a-Mole View Post
If they did then that lends credence to the notion that the 2nd amendment was to form a "well regulated militia". Hmmm...
Why?

And that without getting into the question of what "well regulated" means.
Reply With Quote
  #33  
Old 02-17-2017, 04:31 PM
thelurkinghorror thelurkinghorror is online now
Guest
 
Join Date: Jun 2006
Quote:
Originally Posted by bizerta View Post
(C) IIRC, felons are not allowed to carry weapons. Is there something in the Constitution that forbids it?
Generally okay per the 5th Amendment. With relevant bolding and truncation:
"No person shall be ... deprived of life, liberty, or property, without due process of law"
Quote:
Originally Posted by August West View Post
That "law" only applies when hunting migratory waterfowl. My shotgun holds 8 rounds and is perfectly legal.
And doves, migratory but not waterfowl.
Quote:
Originally Posted by Whack-a-Mole View Post
It is always trotted out that repeating rifles existed when the FFs wrote the Bill of Rights.

While that is true the takeaway here should be that the FFs had no concept of what a world with such weapons looked like. Their view on weapons were muskets, cannons and swords. They did not imagine anything else when writing the 2nd amendment.
Girandoni air rifle.

Belton flintlock, which the Continental Congress saw with their own eyes.
Quote:
Originally Posted by OldGuy View Post
Where is the uproar when nunchucks, throwing stars, brass knuckles, etc. are outlawed.
There is some. My state legalized switchblades last year. None of these are inherently more dangerous than legal weapons, and often less effective due to a high training requirement. But Hollywood showed us dangerous ninjas and Puerto Ricans, and hysteria led on.
Reply With Quote
  #34  
Old 02-17-2017, 05:00 PM
Chefguy Chefguy is offline
Charter Member
 
Join Date: Jun 2003
Location: Portlandia
Posts: 36,668
Quote:
Originally Posted by yearofglad View Post
There is no such restriction.
I'm pretty sure that any speech that incites to violence is against the law. Using hate speech in general terms is protected, but using it as "fighting words" is not.
Reply With Quote
  #35  
Old 02-17-2017, 05:19 PM
Revenant Threshold Revenant Threshold is offline
Guest
 
Join Date: Oct 2005
Quote:
Originally Posted by HurricaneDitka View Post
This "2nd Amendment should only cover muskets" argument (in all its oft-repeated variations) is easily the weakest and worst-thought-out position that I see the gun control crowd regularly take. It serves primarily as a testament to the ignorance of the person advancing it.
I'm curious about my particular variation; what would you say to, "The 2nd Amendment should cover whatever arms the law defines as being covered, but the founding fathers would have been thinking in terms of musketry and early rifles"?
Reply With Quote
  #36  
Old 02-17-2017, 06:01 PM
MEBuckner MEBuckner is offline
Charter Member
Charter Member
 
Join Date: Aug 2000
Location: Atlanta, Georgia, USA
Posts: 11,154
Quote:
Originally Posted by Whack-a-Mole View Post
Quote:
Originally Posted by MEBuckner View Post
And they also had no concept of a world with radio, television, cable television, the Internet, or Twitter when they wrote the First Amendment.
None of which are potentially lethal.
Who is President of the United States right now? The potentially lethal narcissistic demagogue who is now President of the United States didn't get elected because his supporters used "assault weapons" to shoot everyone and seize power. Trump gained power through forms of free speech that were totally inconceivable to the Founding Fathers--talk radio, cable news (Fox News), the Internet (Breitbart), and Twitter. You do free speech no favors by claiming that free speech is just some harmless right without consequences, and therefore it's OK to let the rubes have their free speech (but not guns, 'cause someone could get hurt with those!).

Free speech (especially--but not only--the 21st century forms of free speech that exist in the Electronic Age) in the hands of a demagogue who cares about nothing and nobody but himself is incredibly dangerous--just check the news. It's just that the solutions to that problem, other than more free speech, are also incredibly dangerous.
Reply With Quote
  #37  
Old 02-17-2017, 06:03 PM
Whack-a-Mole Whack-a-Mole is offline
Guest
 
Join Date: Apr 2000
Quote:
Originally Posted by Falchion View Post
Why?

And that without getting into the question of what "well regulated" means.
If we are going with your notion that they could foresee improvements in weapons and understand what that meant I doubt they would have gladly written a protection for arms that would lead to rampant gun violence in US cities. So they didn't, they wrote the amendment to protect ownership when connected with a well regulated militia.

They did not guess everyone would simply ignore what was written though.
Reply With Quote
  #38  
Old 02-17-2017, 06:04 PM
madsircool madsircool is offline
Guest
 
Join Date: Oct 2011
That was an awesome American Experience on PBS.
Reply With Quote
  #39  
Old 02-17-2017, 06:06 PM
Whack-a-Mole Whack-a-Mole is offline
Guest
 
Join Date: Apr 2000
Quote:
Originally Posted by MEBuckner View Post
Free speech (especially--but not only--the 21st century forms of free speech that exist in the Electronic Age) in the hands of a demagogue who cares about nothing and nobody but himself is incredibly dangerous--just check the news. It's just that the solutions to that problem, other than more free speech, are also incredibly dangerous.
The pen is mightier than the sword?

As it happens you do not need free speech protections to get demagogues. We've seen them crop up throughout history and I wold submit the best defense against them is free speech.

Also, that danger is at some remove. I will be far more worried about someone pointing a gun at me than I will at a person yelling at me. YMMV

Last edited by Whack-a-Mole; 02-17-2017 at 06:06 PM..
Reply With Quote
  #40  
Old 02-17-2017, 06:16 PM
Whack-a-Mole Whack-a-Mole is offline
Guest
 
Join Date: Apr 2000
Quote:
Originally Posted by thelurkinghorror View Post
Girandoni air rifle.

Belton flintlock, which the Continental Congress saw with their own eyes.
So what? Till you see them in action on a grand scale (i.e. they are ubiquitous and not a curiosity) you cannot really fathom what the new tech really means.

Consider WWI. The generals knew what weapons they had but sent their troops into a meat grinder against them repeatedly. Eventually they learned. When the US showed up what did they do? They ignored the experience of the troops who already learned hard lessons and sent their troops into the meat grinder. Only after incredibly costly lessons did everyone figure out what these new weapons really meant. The FFs would have had no such experience.

Heck, IIRC it wasn't till about 1850 with design of the 1863 Sharps Carbine that the world saw an effective and widely adopted breech loading rifle and it still used percussion caps to fire (as did most Civil War era rifles). Someone well trained with one could fire maybe 10 times per minute. So, the FFs never saw anything approaching what we have available today.

Last edited by Whack-a-Mole; 02-17-2017 at 06:17 PM..
Reply With Quote
  #41  
Old 02-17-2017, 07:32 PM
GIGObuster GIGObuster is online now
Guest
 
Join Date: Jul 2001
Quote:
Originally Posted by running coach View Post
Scalia (shocker to me) said that the 2nd Amendment does not preclude regulation.
That reminded me of the case of the Punt gun:

http://rarehistoricalphotos.com/punt-gun-1910-1920/

Made illegal because it made very easy to deplete the stocks of ducks and other birds. Not very sportsmanlike...

Those things were really cannons.

Last edited by GIGObuster; 02-17-2017 at 07:34 PM..
Reply With Quote
  #42  
Old 02-17-2017, 07:57 PM
Bone Bone is online now
Newbie
Moderator
 
Join Date: Jul 2003
Posts: 6,237
Quote:
Originally Posted by Whack-a-Mole View Post
If they did then that lends credence to the notion that the 2nd amendment was to form a "well regulated militia". Hmmm...
It's like saying because speech is protected, and we extend those protections to mediums that are new, that's the same as saying speech really means teddy bears.

While you may think this is some adroit observation, it's not. The advance of arms technology is a difference of degree. The attempts to conflate the meaning of "well regulated" as it is understood in modern times to that which was understood at the time of the 2nd Amendment's writing is a difference in kind.
Reply With Quote
  #43  
Old 02-17-2017, 08:22 PM
obbn obbn is offline
Guest
 
Join Date: May 2011
Quote:
Originally Posted by Whack-a-Mole View Post
None of which are potentially lethal.



Yes. Sail powered warships with muzzle loaded cannons were only dangerous in specific circumstances.

If you showed the FFs Chicago today I am willing to bet they'd rethink that amendment.
I think you might be right, but Chicago is one of the most anti 2nd cities in the country. Very restrictive gun laws, but they aren't working. Se, here's the thing, criminals don't follow laws.
Reply With Quote
  #44  
Old 02-17-2017, 08:35 PM
yearofglad yearofglad is offline
Guest
 
Join Date: Jun 2004
Quote:
Originally Posted by Chefguy View Post
I'm pretty sure that any speech that incites to violence is against the law. Using hate speech in general terms is protected, but using it as "fighting words" is not.
Correct. So there is no restriction on hate speech.

Hate speech certainly CAN incite to violence, but doesn't necessarily, and there are lots of examples of non-hate speech that also CAN incite to violence and are therefore not covered under free speech.
Reply With Quote
  #45  
Old 02-18-2017, 10:35 AM
Whack-a-Mole Whack-a-Mole is offline
Guest
 
Join Date: Apr 2000
Quote:
Originally Posted by obbn View Post
I think you might be right, but Chicago is one of the most anti 2nd cities in the country. Very restrictive gun laws, but they aren't working. Se, here's the thing, criminals don't follow laws.
McDonald v. City of Chicago in 2010 put an end to Chicago's restrictive gun laws (it was a follow-on case to the Supreme Court's District of Columbia v. Heller decision).

More broadly restrictive gun laws are worthless on anything less than a national level. So what if Chicago has tough restrictions when a 20 minute drive gets you out of Chicago to places that will gladly sell you a gun?

Last edited by Whack-a-Mole; 02-18-2017 at 10:37 AM..
Reply With Quote
  #46  
Old 02-18-2017, 10:58 AM
Whack-a-Mole Whack-a-Mole is offline
Guest
 
Join Date: Apr 2000
Quote:
Originally Posted by obbn View Post
Very restrictive gun laws, but they aren't working. Se, here's the thing, criminals don't follow laws.
Gun bans work. We know they work:

Quote:
Regardless of how much of a cause-and-effect relationship there might be between the NFA and gun deaths in Australia, it’s undeniable that the firearms homicide rate in that country has decreased substantially since the implementation of the NFA. It’s not the case, however, as suggested by the misleading and long out-of-date online piece quoted in the Example block above (which was written way back in 2001) that the overall crime rate in Australia has shot up since the NFA was introduced. The rates of various types of violent crimes (sexual assault, kidnapping, homicides of all types) have scarcely changed at all, and while the robbery rate rose substantially in the 1998-2001 timeframe, it dropped below its pre-NFA level by 2004 and has continually declined since then.

SOURCE: http://www.snopes.com/crime/statistics/ausguns.asp
Reply With Quote
  #47  
Old 02-18-2017, 11:17 AM
Bone Bone is online now
Newbie
Moderator
 
Join Date: Jul 2003
Posts: 6,237
Quote:
Originally Posted by Whack-a-Mole View Post
McDonald v. City of Chicago in 2010 put an end to Chicago's restrictive gun laws (it was a follow-on case to the Supreme Court's District of Columbia v. Heller decision).
This is incorrect. McDonald targeted the ban on possession of handguns in the home. That was the only law that was impacted. After McDonald it was still impossible to acquire the permit necessary to purchase the gun, and it was still impossible to carry the gun. Did you know that?

To address those things, more litigation was required (Ezell, Ezell II, Moore, etc.*). This is another answer to the question above about other types of arms - each restriction takes its own litigation path and each restrictive law needs to be attacked individually. That's why through the courts is not a fast, nor guaranteed strategy. A much better alternative would be through the legislature but some localities are intransigent.


Quote:
More broadly restrictive gun laws are worthless on anything less than a national level. So what if Chicago has tough restrictions when a 20 minute drive gets you out of Chicago to places that will gladly sell you a gun?
Again, not correct. They are still worthless on a national level, though they would accomplish one thing on a national level the same as they do on a non-national level - they disarm law abiding people and leave them at the mercy of criminals.






*Ezell was about the new requirement to have live fire training to obtain a permit - all live fire ranges were banned - the city lost.
Ezell II was about allowing live fire ranges, but zoning them to virtual impossibility - the city lost.
Moore was about concealed carry - the city lost.
Reply With Quote
  #48  
Old 02-18-2017, 11:27 AM
Whack-a-Mole Whack-a-Mole is offline
Guest
 
Join Date: Apr 2000
Quote:
Originally Posted by Bone View Post
Again, not correct. They are still worthless on a national level, though they would accomplish one thing on a national level the same as they do on a non-national level - they disarm law abiding people and leave them at the mercy of criminals.
Hysteria.

See post #46.
Reply With Quote
  #49  
Old 02-18-2017, 12:01 PM
msmith537 msmith537 is offline
Guest
 
Join Date: Jan 2001
Quote:
Originally Posted by bizerta View Post
This was prompted by a PBS show on Ruby Ridge.

Americans have the right to bear arms, but I see nothing in the Constitution that determines what arms are allowed, restricted, or inhibited. For example (A) why is a sawed off shotgun illegal? Isn't that an "arm"? (B) automatic weapons. (C) IIRC, felons are not allowed to carry weapons. Is there something in the Constitution that forbids it? (D) 50 years ago, my father had an old shotgun that could hold five rounds. The "law" required him to put a wooden plug in it so that only three rounds could be fired without reloading. (E) If we have the right to bear arms, why can't we just go into a gun store and cash-and-carry? (F) I'm sure I'd think of more if I had the time.
The short answer is sometimes criminals and mentally ill people (and some people who are just careless) kill innocent people with guns. A problem made more complex by the fact that since 1789 firearms have become a lot more powerful in terms of range, accuracy, stopping power, portability and rate of fire. So ideally society tries to strike a balance between safety and people's right to hunt and defend themselves.

It's kind of like automobiles. Pretty much anyone can own a car and go where they want. But cars are still heavily regulated.
Reply With Quote
  #50  
Old 02-18-2017, 12:18 PM
Revenant Threshold Revenant Threshold is offline
Guest
 
Join Date: Oct 2005
Quote:
Originally Posted by obbn View Post
Se, here's the thing, criminals don't follow laws.
Actually, for the most part, they do seem to. Once someone becomes a criminal, they don't all instantly start ignoring traffic signals, rob everyone they meet, sell dodgy medicine, or commit insurance fraud.

I think a better way of phrasing the point you're trying to make is, "Criminals who want to own and/or use a gun in the proceeding of their criminal behaviour don't follow laws to do so." Although that doesn't quite work either, since we then have the "turning point" issue to deal with, "want" should really be qualified. Still, it's more accurate and useful for looking at the subject.
Reply With Quote
Reply



Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 02:00 AM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2017, vBulletin Solutions, Inc.

Send questions for Cecil Adams to: cecil@chicagoreader.com

Send comments about this website to: webmaster@straightdope.com

Terms of Use / Privacy Policy

Advertise on the Straight Dope!
(Your direct line to thousands of the smartest, hippest people on the planet, plus a few total dipsticks.)

Publishers - interested in subscribing to the Straight Dope?
Write to: sdsubscriptions@chicagoreader.com.

Copyright © 2017 Sun-Times Media, LLC.