ACLU, the SCotUS, and the 2nd

[ExTank]

BF: all fine and dandy; until the next Democrat gets elected President, and appoints an Attorney General who says otherwise.

[BF]

Well, yeah, ExTank, but at least we get some kinda positive precedent.

[DanBlather]

@ExTank

The right to keep and bear arms as historically understood has always been interpreted to mean individual arms; rifles, shotguns and pistols. These are held, and operated, by one person. They are meant to be used against other people.

Machineguns, Rocket Launchers, Grenades, Grenade Launchers, and Weapons of Mass Destruction are meant to be used as area-denial weapons, area-effect weapons, anti-vehicle weapons, and anti-material weapons. Thus, they are ordnance and not “arms.” Armaments /= Arms…

I’d love to see a cite on that. Every on-line search I have done defines arms as weapons with no distinction. Small arms refers to rifles, pistols, etc. but that is not what is in the 2nd ammenedment. Also, I never said the NRA wants to legalize missles. My question is if you want to go to original intent and strict construction why stop short. My suspicion is that gun lovers just want to be able to go out back and shoot at old tin cans. Everything else is just a justification.

[ExTank]

Assault Rifle Legislation: Unwise And Unconstitutional

1. The Reasonable Relationship Test¾In Miller, the United States Supreme Court recognized an individual right to bear arms, but also stated that this right extends to those arms with “some reasonable relationship to the preservation or efficiency of a well regulated militia.”[183] However, Miller does not specify the types of modem arms that would satisfy this standard. Fortunately, other courts have provided a framework for deciding which modern “arms” bear “some reasonable relationship to a well-regulated militia.”[184]

The Oregon Supreme Court noted, “the term ‘arms’ as used by the drafters of the constitution probably was intended to include those weapons used by settlers for both personal and military defense . . . . The term ‘arms’ would not have included cannon or other heavy ordnance not kept by militiamen or private citizens.”[185] As personal sidearms, the framers used single shot rifles, shotguns, and pistols; and they intended, no doubt, that the second amendment would protect the individual ownership of those types of firearms.[186] During the years that immediately followed the drafting of the Constitution, when single shot sidearms still predominated, courts protected absolutely the private possession of these sidearms without any qualification whatever as to their kind or nature.[187]

After the Civil War, courts addressed the implications of a developing weapons technology. The Civil War firmly established the popular use of repeating rifles and pistols as personal sidearms, and the Tennessee Supreme Court addressed this development. In the 1871 case Andrews v. State,[188] the court held that, although the Tennessee Constitution did not protect “every thing that may be useful for offense or defense,” the Constitution did protect “the rifle of all description, the shotgun, the musket, and repeater.”[189] In 1876, the Arkansas Supreme Court stated that protected “arms” included “the usual arms of the citizen of the country.”[190] The court agreed with the Tennessee court’s listing of these arms and noted the addition of the “army and [Page 170] navy repeaters, which, in recent warfare, have very generally superceded the old-fashioned holster, used as a weapon in the battles of our forefathers.”[191] These early courts-without using the exact wording of the later Miller test¾found that personal sidearms, including new repeating firearms, fell within the reach of constitutional provisions drafted in times of more simplistic weapons technology.

In 1980, the Oregon Supreme Court approached more modem weapons developments in a similar manner. The court noted that since the era of the Civil War, the development of powerful explosives, . . . combined with the development of mass produced metal parts, made possible the automatic weapons, explosives, and chemicals of modem warfare."[192] It concluded that such modem heavy ordnance, used exclusively by the military, would not be considered individual “arms” deserving of constitutional protection.[193] To the Oregon Supreme Court, citizens possessed a right to own personal arms “commonly used” for individual defense or militia service.[194]

Miller and these state cases provide some guidance from which to ascertain what “arms” individuals have a right to bear. Clearly these protected personal “arms” are not a category that froze during the 1780’s. Courts may constitutionally protect modem military-style semiautomatics just as they protected “repeating” rifles after the Civil War.[195] As Miller implied, modern weapons that bear “some reasonable relationship to a well-regulated militia” merit constitutional protection.[196] Relevant considerations for modern or old designs seem to include the following: (1) whether a type of firearm is a personal sidearm and not heavy ordnance used exclusively by the military, and (2) whether a type of firearm is commonly possessed by individuals as a sidearm for purposes of personal defense or potential militia service. These considerations provide guidance to courts in order to preserve individual rights while preventing modem-day heavy ordnance from threatening the public safety.

Note that this is upheld by closely worded regulatory schemes. Sure, I can own a machinegun. Or a howitzer. Or a tank. But I’m not going to be able to just run down to my local gun store and pick one up from their shelves or lot with nothing more than cash, a driver’s license, and a sunny smile on my face. I’m going to have to submit to some pretty damned close scrutiny by several federal (as well as possibly state) agencies, and fill out quite a bit more paperwork than the standard BATF Form 4437.

Now, should the worst happen and government and society collapsed, and the President “called forth the militia” via broadcast over the Emergency Broadcast Network for all able-bodied citizens to report to their local police stations with their own Arms to assist in preserving order, I could conceivably unpack my machinegun, and hitch my howitzer to my tank and so report.

But they’re not going to put me in a Provisional Rifle Company and have me stand a post on a streetcorner with my machinegun, howitzer, or tank. Most Likely they would “appropriate for the common defense,” taking them all away from me. They might retain me as an artillery or tank specialist if I knew how to use them beyond putting a blank shell in it every 4th of July as a great big noisemaker.

The machinegun would probably be put on a tripod in a sandbag revetment around or on top of the police station or courthouse for area security, with a rotating crew of police, soldiers, or experienced militia manning it.

[Blalron]

@Bricker

Kinda my point there, Bob.

Can you point out to me even one Supreme Court justice that has subscribed to the individual rights theory of the second amendment?

[DanBlather]

@ExTank

Now, should the worst happen and government and society collapsed, and the President “called forth the militia” via broadcast over the Emergency Broadcast Network for all able-bodied citizens to report to their local police stations with their own Arms to assist in preserving order, I could conceivably unpack my machinegun, and hitch my howitzer to my tank and so report.

But they’re not going to put me in a Provisional Rifle Company and have me stand a post on a streetcorner with my machinegun, howitzer, or tank. Most Likely they would “appropriate for the common defense,” taking them all away from me. They might retain me as an artillery or tank specialist if I knew how to use them beyond putting a blank shell in it every 4th of July as a great big noisemaker.

The machinegun would probably be put on a tripod in a sandbag revetment around or on top of the police station or courthouse for area security, with a rotating crew of police, soldiers, or experienced militia manning it.

Good cite!

Question: my understanding is that people that want to keep guns to fight tyranny are more afraid of the govt going bad then the govt collapsing; i.e., it might be the govt that you end up fighting. Given the opinions of the cited court cases it seems that the populace will be out of luck if they only have the equivalent of personal weapons to fight the army…

[Bricker]

@Blalron

Can you point out to me even one Supreme Court justice that has subscribed to the individual rights theory of the second amendment?

Kinda not my point.

Why did I bring up Bowers?

[Blalron]

@Bricker

Kinda not my point.

Why did I bring up Bowers?

You brought up Bowers as an example of a case that needed to be reversed. But there’s a big difference here. Whereas Bowers was undermined by precedents set before and after its decision, nothing has undermined the Miller decision.

There’s also scant legal support for the individual rights theory, and the text of the Second Amendment contradicts it.

[ExTank]

@DanBlather

Good cite!

Question: my understanding is that people that want to keep guns to fight tyranny are more afraid of the govt going bad then the govt collapsing; i.e., it might be the govt that you end up fighting.

Amongst those who keep guns against the eventuality of fighting “tyranny,” I’d wager that that’s pretty much true; the lure of unchecked power (and don’t think some gun owners aren’t looking at President Bush with suspicious eyes) may, at some point, override some politician’s common sense.

What really amazes me is something in a similar vein to Bricker’s OP. A good many Liberals bash gun owners as “Right Wing Paranoid Nut-Jobs” for wanting to keep and bear against the eventuality of a “government gone bad;” yet they’ll wring their hands and wet their pants at the threats to Liberty posed by such things as the Patriot Act and unchecked “Patriotism” giving politicians the perception that they have some sort of “blank check” mandate.

What they have never grasped is that those kinds of gun owners don’t trust Government. Period. Not a Lefty government, nor a Righty one. These folks are fairly libertarian, and don’t care much for Governemnt of any size, shape, or flavor. Yet these peole get lumped into “the radical right” for some reason.

@DanBlather

Given the opinions of the cited court cases it seems that the populace will be out of luck if they only have the equivalent of personal weapons to fight the army…

Not necessarily. Your average civillian with an Assault Rifle, or just a decent hunting rifle, has certain advantages. Unless the “government gone bad” starts a Camodia-style genocide on its own population, how do you separate the sheep from the goats? A problem our own military experienced in Vietnam, and is currently experiencing in Iraq.

Also: I’ve seen cops and soldiers shoot, and am generally appalled at the displays of incompetence. I’ve seen many more “good ol’ boys” who are nail drivers with simple, rugged, and reliable scoped bolt-action rifles, at ranges that’d blow your mind. Of course, our military has recently had a butt-load of real-world combat experience, so marksmanship may have improved (probably has) amongst soldiers; cops, on average, are still lucky to hit the broad side of a barn, standing inside of it. In my experience, they’re just as likely to shoot Bessie the cow, and old Dollar hitched up in her stable (pkbites may be along shortly to chew me out for such a sweeping generalization against law enforcement).

So I’ll readily admit that some of the best shooters I’ve seen are also cops, and soldiers. I was in Basic with a fella from Mississippi who had never held, much less fired, a gun in his life. He qualified Expert on both Rifle and Pistol, first try. But these folks are, in my experience, the exception rather than the rule. I recently got to see a group of St. Louis City cops shooting at an outdoor range. They set up man-silhouette targets at 10 yards, and blazed away. When they were finished, they were high-fiving each other at hitting 6- and 7-ring groups from resting-supported positions on slow-fire. Sloppy! :mad: I was pulling 8-ring groups at 25-yard pistol targets (typical bullseye targets) with a single-action revolver on rapid fire. And on the scale of marksmanship, I’m middling-fair.

Overall, neither the military, or law enforcement in general, allocate much in the way of “training funds” on keeping basic marksmanship at proficient levels. Again, the military has recently garnered a butt-load of experience, though. Nothing like someone shooting at you to get the juices flowing and focus your mind on killing the other guy before he can kill you. Necessity is a Mother.

[ExTank]

@Blalron

You brought up Bowers as an example of a case that needed to be reversed. But there’s a big difference here. Whereas Bowers was undermined by precedents set before and after its decision, nothing has undermined the Miller decision.

The MIller decision is so misquoted. Like I pointed out to BobLibDem, Miller merely ruled that it was not in their notice that a shotgun having a barrel of less than 18 inches bore any reasonable semblance to the type of weapons in current use by the military. That would seem to imply that military-grade weaponry, even the “Assault Weapons” which were banned until recently, are indeed protected classes of weapons.

@Blalron

There’s also scant legal support for the individual rights theory, and the text of the Second Amendment contradicts it.

Not hardly! There’s been a veritable sea-change of scholarly legal opinion regarding the Second Amendment, best exemplified by Sanford Levinson’s The Embarrassing Second Amendment. That at least one Supreme Court Justice has held forth for a reconsideration of the Second shows that the matter is far from settled.

In spite of my inherent pessimism and cynicism, BF is correct in that the current administration’s Justice Department’s open support of the individual rights interpretation is a watershed event.

The real hang-up is that whole Militia thingy. Who, or what, is the Militia? The basic dictionary definition holds that a Militia is all able-bodied citizens capable of bearing arms in defense of their country. Current Federal Law recognizes two categories of Militia: the “organized militia” (the National Guard and Naval Reserves) and the “unorganized militia” (everyone else).

So let’s see: I gave more than 8-years to Uncle, and am not in the National Guard or Naval Reserves. I’m not even sure if I’m on the Inactive Ready Reserve list anymore. I guess that leaves me as one of those “everyone else” kinda peoples for purposes of defining my militia category. I sure as hell am unorganized, especially during the Christmas Season.