Leaving aside the whole issue of whether gun possession is or is not a personal right, or whether states and local jurisdictions can regulate guns to the point of regulating them out of existence, doesn’t the 2nd Amendment mean that regulating arms is supposed to be completely out of the federal government’s perview? Yet obviously guns, explosives and other devices of destruction are routinely regulated by federal laws; so when was the federal government held to have that authority?
Without going into a bunch of cites, my research over the years has led me to this conclusion:
The Second Amendment doesn’t apply to the states only to the federal government. So, yes, any federal laws regarding militia arms are unconstitutional.
The second amendment is not about hunting ( :rolleyes: Khrist I’m so sick of Pols who act like it is). Technically it’s not about self defense either (though some of the statements made by the founders hint that it is a little bit).
The Second Amendment is the enumerated “creator” given right to bear arms to keep the government in check against tyranny, AND/OR so that an armed populace may be called upon by the Governor or President in times when the militia is needed (standing armies being a bad thing).
Local/State gun control laws really don’t need to be fought using the 2nd Amendment as most (not all) states have a right to bear arms clause in their state constitution. And most of those are written to be an obviously individual right.
The D.C. case is unique as it’s not a state.
I think the 2nd amendment, even read strictly, would not prohibit the Federal govt from regulating interstate commerce of guns.
Read strictly, the 2nd amendment prevents the government from making any gun laws that infringe on the right to own weapons, but it doesn’t prevent the government from infringing on your right to BUY weapons?
The right is defined only for “a well-regulated militia”, i.e. today’s National Guard. The amendment is silent regarding other contexts.
ElvisL1ves is incorrect. The 2nd Amendment is clearly an individual right.
…
Well, if he can say it, I can too. That said, his position is clearly wrong, as it ignores state militias (Yes, they exist, the NY Guard has a navy and air force) and private ones (Blackwater being the most notable), and the more general definition could include my gun club. (Well-Regulated Militia being a term not unlike a Well-Tempered Clavier, meaning a militia kept in good order, not one created by laws.)
That said, I consider the automatic weapons ban dubious legally, insofar as the small arms of an individual soldier would violate said law. It’s pretty clear that the 2nd is pretty much designed to keep the individual weapons of a soldier available to private hands, for a number of reasons. Firstly, of course, to preserve freedom. Secondly, to preserve the nation. Thirdly, to increase the skills and training of those who might join the armed forces in time of war.
… what, you thought ‘one weekend a month’ is enough to make someone a good shot?
Remember, part of this is because there was no defense. Shotguns with short barrels are commonly used in warfare. (Mossberg 550, for example, which is almost identical to the civilian 500, excepting a shorter barrel, more ammo capacity, and slightly better machining, the dies having been made in 200X instead of 196X.) When this fact is brought up in court, generally, the way Miller is carefully stated, the weapon becomes federally legal.
That said, the Second Amendment has never been Incorporated under the 14th amendment, officially, which means that local government can be more restrictive. Which, of course, is like saying the Feds can’t establish an official religion but the States can.
God knows why people think they can pick and choose. The 14th applies to all amendments or it applies to none. But the Supremes have been very cautious about test cases. Note that the case in front of them is not about a state.
Tell the Supreme Court. They ruled the other way in Miller already. You don’t have to like it, but it’s the law nonetheless.
You are correct in that even without the 2nd amendment, the regulation of firearms or explosives is not an enumerated power granted to Congress and it should be off limits to the feds, however the thoughts changed in the last century.
It came in the late 1930s with the expansion of the interstate commerce clause of the constitution which has, in effect, given the feds a blank check to pass laws regarding every aspect of life. If they don’t have the enumerated power, they invent some tortured connection to interstate commerce and give themselves permission.
For good or evil, they have taken over the traditional role of the states under the guise of interstate commerce. Take, for example, federal employment laws on a baseball card shop in Key West, FL. Is that interstate commerce? Well, surely a tourist could travel from Michigan and buy baseball cards at the shop, but being old school, I would contend that the commerce itself is local to Florida.
Finally in 1995, the Supreme Court grew a backbone when it struck down a federal law banning gun possession on school grounds. Here is the interstate commerce logic (simplification mine): Guns in school cause violence. Violence in school lessens the quality of education. Lower quality of education means dumber students. Dumber students means dumber employees years from now. Dumber employees years from now affect how we compete in business and thereby affects…drum roll, please interstate commerce!
Thankfully, that was struck down, though it was a 5-4 decision and very controversial…
The right to own weapons necessarily implies the right to acquire weapons.
As I see it, the state and federal governments can regulate firearm sales and ownership, but not ban it completely. They can require you to register the weapon, pass a test to show you know basic firearm safety, carry insurance on it, and so forth. But the second amendment clearly forbids an outright ban on all firearm ownership. Such a ban would be clearly unconstitutional–and [slight hijack] probably wouldn’t work, considering what miserable failures alcohol and drug prohibition have been. If people have no trouble buying heroin or meth when they want it, what makes the gun grabbers think a huge black market in firearms wouldn’t spring up? [/slight hijack]
I think there are two issues raised by the OP. One, whether the principles of federalism foreclose the FEDERAL government from regulating firearms. Second, whether the rights protected in the Second Amendment are absolute or can be reasonably regulated.
As to the first, I think US v. Lopez and Printz v. US, show that the Supreme Court (especially with its current makeup) would be much more likely to limit the federal government from enacting sweeping gun control. I think there is still room for much of the currently enacted legislation to survive though.
As to the second issue, I found this brief article by Erwin Chemerinsky is a great introduction to the issue. He says:
"The assumption in this debate, and one that the D.C. Circuit followed Friday, is that gun control laws are unconstitutional if the individual rights approach is followed. This assumption, though, has no basis in constitutional law. No rights are absolute. Even the First Amendment, which is written in the seemingly absolute language that Congress shall make “no law” abridging freedom of speech or religion, allows government regulation.
Therefore, under the individual rights approach, there still is the question of what types of government regulations are appropriate."
I believe that, if there isn’t a federalism issue, that Congress is still empowered to enact reasonable regulations on the ownership (and purchase) or firearms.
ElvisL1ves and Hamlet are correct. Although the Supreme Court as currently constituted may very well overrule Miller in the D.C. case now pending, the issue was long thought settled, and the people through their legislators at all levels of government could and did create gun laws.
Wrong. The Miller ruling found that the specific type of weapon in the case (a sawed-off shotgun) was not included in the definition of “arms” because the facts before the court did not establish that it has a militia-related use. Thus, Miller establishes that the purpose of the militia clause is to provide guidance as to the definition of the term “arms”, and has no bearing on the term “people”.
In general, theoretically absolute statements of rights are understood not to actually imply absolute rights. For example, the unqualified recitation of a freedom-of-speech right in the First Amendment does not prevent the feds from arresting you if you give your best friend in Tehran pointers on assembling a critical mass of plutonium.
As for test requirements, they arguably make sense in an ideal world without historical baggage. In the real world, such mechanisms have the same sort of historical baggage as literacy tests for voting (another idea that is eminently defensible in the abstract, but not so great if one considers its actual record).
As I noted earlier, rights are not absolute. However, the courts generally view limitations upon them with a skeptical eye, and require that they show some strong justification and that they be narrowly tailored so as to curtail individual rights to the minimum possible degree.
For example, courts have upheld laws against obscenity, child pornography, and distribution of porn to minors, but struck down laws that overreached to the point of banning mere indecency or requiring adults to jump through too many hoops to access it under the guise of protecting minors.
By analogy, the DC gun ban (and the gun control laws of quite a few other jurisdictions) are (translated into smut-laws terms) the equivalent of prohibiting anything more salacious than American Gothic and requiring women to wear burqas in public. As such, the court can, and should, strike them down as unjustifiable infringements on Second Amendment rights. More reasonably tailored laws (e.g. prohibiting gun purchases by persons convicted of crimes or legally determined to be mentally incompetent) could still fit under the umbrella of “reasonable regulation”.
I don’t think I know much about snd amendment rights, but when I read it, I think it means that no part of the federal or state or local governments can put any limits on acquiring and owning arms - and clearly “arms” in this context includes not only firearms but also any other kinds of armaments that armies might own, including nuclear ICBMs, aircraft carriers, and so forth.
I think it would be better if we weren’t allowed to own any of that, not even hunting rifles. That is, I’d like to see the amendment repealed. But I don’t understand why the 2nd amendment wouldn’t have to guarantee those rights.
Actually, in my limited research, a vast majority of “individual rights” gun cases are subject to the lowest level of scrutiny, call it “reasonable restriction”. State Constitutions have been found to have individual rights to bear arms, and State courts have been allowing reasonable restrictions for awhile now. From what I have read, like this, and this, state courts overwhelmingly apply the lowest standard of review. I can see the same happening on the federal level, especially considering the militia preamble. The purpose of the Second Amendment isn’t, as so often proclaimed, to allow for “self-defense” or “personal use” of firearms, but rather for militia purposes. I think, although the opposite is certainly possible, that, since the Second Amendment is limited in purpose, it won’t receive heightened scrutiny.
With this lowest standard of review, it would be tough to find a majority of regulations unconstitutional (I’m sure our Supreme Court wouldn’t be “activist”).
The “reasonableness” of the regulation is certainly another issue. But, although it works as a ban on handguns, I think the Court will look at the nature of handguns and find that the regulation is reasonable. Handguns, not rifles or shotguns, are much more likely to be used in crimes, are easier concealled, and account for a great majority of weapons crimes in DC. Unless the Court heightens the level of review, or pays only lip service to legislative deference and judicial restrainit, I think the statute survives.
Entirely correct. The individual versus collective right argument has carefully not been settled by the Supreme Court. The Ashcroft Justice Department announced they were in favor of the Individual Right interpretation.
http://www.usatoday.com/news/washington/2008-02-26-guns-cover_N.htm
I hate agreeing with Ashcroft on anything, but I do agree with him on this. Such is life.
Incorrect. The problem here is that you don’t understand what the word ‘arms’ means. It doesn’t mean ‘aircraft carriers’. It means ‘The personal weapons of a soldier’. Small Arms. Not ordnance, and not anything larger than that. If this were the middle ages, it would mean a sword, shield, armor. Horse barding, a lance, too. But not a ballista or catapult, those being a siege weapon. Today, I’d judge it to be the common weapons of an individual soldier, up to about a Squad Automatic Weapon or so. Possibly a RPG, at the largest limit.
Psst, Hamlet. Shotguns are all-but-banned too. I think that’s what the guy is suing over, but that’s only by memory.
>The problem here is that you don’t understand what the word ‘arms’ means. It doesn’t mean ‘aircraft carriers’. It means ‘The personal weapons of a soldier’.
“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.”
I’m not at all sure I do understand, but, how can personal weapons secure a free state against abuses by governments? What else could be the point of the amendment?