# Doesn't the 2nd Amendment technically forbid ANY federal gun laws? **URL:** \ **Category:** Great Debates\ **Created:** [March 7, 2008, 2:09am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402 "2008-03-07T02:09:26Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 7, 2008, 11:30pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/41 "2008-03-07T23:30:59Z")
[QUOTE=ExTank] Considering that it addresses directly the definition of the Militia [/quote] Which Congress has since turned into the National Guard, whether you like it or not. > [@](#): > > , the rather disputed clause of the Second Ad It’s not disputed by anybody whose opinion has any meaning, if it contradicts the Supreme Court’s established \*Miller \* ruling. > [@](#): > > (as **Elvis’** continuing obstinate misinterpretation demonstrates) You don’t have to like it one little bit. But your dispute isn’t with _me_, ya know. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 7, 2008, 11:33pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/42 "2008-03-07T23:33:31Z")
[QUOTE=Stealth Potato] Haven’t we gone over this before? [/quote] We have. You should have paid attention. > [@](#): > > I believe I asked you repeatedly to point out where in _Miller_ the SCOTUS indicated a collective right As I pointed out, and as you can see for yourself, they ruled that the Second exists for the purpose of having a well-regulated militia. The rest follows. You don’t have to like it any more than \*\*ExTank[b/] does, of course. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [March 8, 2008, 12:18am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/43 "2008-03-08T00:18:27Z")
Elvis, the facts and the law are against you. I have pointed to Miller, I have pointed to reality, and the definition of the Militia has been pointed out to you. You are banging on the table. You, sir, are _wrong_. You are unable to say why you are not wrong. You are in error. I am not saying you are lying. I firmly accept you think what you are saying is true. It is not. Also, you can not say why you think it _is_ so, you simply repeat and expound on the topic as if the validity were already assumed. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [March 8, 2008, 12:46am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/44 "2008-03-08T00:46:01Z")
[QUOTE=ElvisL1ves] Which Congress has since turned into the National Guard, whether you like it or not. [/QUOTE] No, no they haven’t. If you read the cite the National Guard is only the organized militia. The unorganized militia is not the national guard, but the unorganized militia is still the militia. The unorganized militia is you & me, whether you like it or not. Well, not me as I’m over 45. :smack: ---
**Author:** ![ExTank](https://avatars.discourse-cdn.com/v4/letter/e/35a633/32.png) [@ExTank](https://boards.straightdope.com/u/ExTank)\ **Post date:** [March 8, 2008, 12:51am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/45 "2008-03-08T00:51:37Z")
[QUOTE=E-Sabbath] Elvis, the facts and the law are against you. I have pointed to Miller, I have pointed to reality, and the definition of the Militia has been pointed out to you. You are banging on the table. You, sir, are _wrong_. You are unable to say why you are not wrong. You are in error. I am not saying you are lying. I firmly accept you think what you are saying is true. It is not. Also, you can not say why you think it _is_ so, you simply repeat and expound on the topic as if the validity were already assumed. [/QUOTE] You, me, and just about every gun-owning (and more than a few non-gun-owning!) board member who’s stepped up to defend individual’s rights has told him the exact same thing; but it’s like arguing with a 3-year-old. He essentially just sticks his fingers in his ears and goes, “Nanny-nanny-boo-boo-I-can’t-hear-you!” The way he repeats the same asinine claim over-and-over, for a while I had wondered if he had taught a parrot to type. ---
**Author:** ![Stealth\_Potato](https://avatars.discourse-cdn.com/v4/letter/s/d78d45/32.png) [@Stealth\_Potato](https://boards.straightdope.com/u/Stealth_Potato)\ **Post date:** [March 8, 2008, 1:04am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/46 "2008-03-08T01:04:28Z")
[QUOTE=ElvisL1ves] As I pointed out, and as you can see for yourself, they ruled that the Second exists for the purpose of having a well-regulated militia. The rest follows. [/QUOTE] **ExTank** is right. You’re not debating, you’re just repeating the same claim over and over again. Again, you’re simply wrong. “The rest” **does not** follow. Only you have made this claim, and you have thus far refused to support it with either reasoning or proof. Let me summarize the **facts** : 1. The second amendment 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.” (Add extra commas to taste.) 2. The SCOTUS ruled in _Miller_ that the intent of the second amendment (i.e., the purpose that is addressed by the prefatory clause), is to “render possible the effectiveness of” a militia. 3. The SCOTUS did not rule that “the People” in the declaration of the 2A refers to the militia, or to any other governmental organization. If you would like to challenge any of these facts, or explain to me the chain of your reasoning that draws from these facts or others a “government rights only” decision by the SCOTUS in _Miller_, please do so. Otherwise I am done arguing with you. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [March 8, 2008, 2:03am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/47 "2008-03-08T02:03:11Z")
Having read the replies up to here, I would state that my OP was a question about federalism (thanks to **Hamlet** ). That is, how does the federal government claim to have any say in the issue? The replies I’ve read seem to indicate a combination of _Miller_ and the magical Commerce Clause. Is this correct? ---
**Author:** ![Stealth\_Potato](https://avatars.discourse-cdn.com/v4/letter/s/d78d45/32.png) [@Stealth\_Potato](https://boards.straightdope.com/u/Stealth_Potato)\ **Post date:** [March 8, 2008, 2:16am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/48 "2008-03-08T02:16:11Z")
[QUOTE=Lumpy] Having read the replies up to here, I would state that my OP was a question about federalism (thanks to **Hamlet** ). That is, how does the federal government claim to have any say in the issue? The replies I’ve read seem to indicate a combination of _Miller_ and the magical Commerce Clause. Is this correct? [/QUOTE] Well, pretty much just the magical Commerce Clause. If _Miller_ is used as the guide, any federal laws regulating weapons suitable for military use should be invalid. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 8, 2008, 3:00am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/49 "2008-03-08T03:00:15Z")
> [@](#): > > So, would you feel that requiring all persons to register the books they read with the federal government would not be an abridgement of the freedom of speech? If not, Congress would not be prohibited from passing such a law under the First Amendment! Exactly. Would it be a bad law? Yes. Would it be a violation of the First Amendment? No. There’s no implicit right to privacy in the Constitution. > [@](#): > > But the federal government is not granted authority by the Constitution to violate, abridge, or infringe the rights enumerated in the first and second amendments anyway. The Constitution doesn’t use the word “violate”. It says the rights in the first two amendments can’t be prohibited, abridged or infringed. Which is pretty much my point. Monitoring an activity does not inherently prohibit, abridge, or infringe the activity. ---
**Author:** ![Stealth\_Potato](https://avatars.discourse-cdn.com/v4/letter/s/d78d45/32.png) [@Stealth\_Potato](https://boards.straightdope.com/u/Stealth_Potato)\ **Post date:** [March 8, 2008, 3:34am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/50 "2008-03-08T03:34:34Z")
[QUOTE=Little Nemo] Monitoring an activity does not inherently prohibit, abridge, or infringe the activity. [/QUOTE] I disagree. If ownership of a firearm is contingent to some government requirement, e.g., registration or licensing, I would argue that the right to bear arms is being infringed. If I have a _right_ to do something, I do not need government approval in order to do it. So not only would federal firearm registration be a stupid law, I believe it would be unconstitutional, both because registering private firearms does not reasonably fall under any enumerated power, and because it would violate the second amendment. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [March 8, 2008, 3:46am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/51 "2008-03-08T03:46:59Z")
Mmm. Reminds me a bit of my favorite maxim. “The power to tax is the power to destroy.” The power to enforce registration is the power to censor. What happens if you do not accept a registration? The guns are now illegal. A shame. Sounds a bit like a poll tax. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [March 8, 2008, 3:59am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/52 "2008-03-08T03:59:04Z")
[QUOTE=jtgain] 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. [/QUOTE] Actually I think that the logic is more of: they sell baseball cards in other states, and what that shop does affects all of the others therefore ICC Oh wait! That particular industry doesn’t go outside of the state? But it could affect ANY memorabilia shop therefore ICC. I concur that the abuse of the ICC must stop. If your lamp is from Vermont and your couch is from Kentucky then the Feds can control what you do in your living room. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 8, 2008, 5:00am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/53 "2008-03-08T05:00:19Z")
> [@](#): > > I disagree. If ownership of a firearm is contingent to some government requirement, e.g., registration or licensing, I would argue that the right to bear arms is being infringed. If I have a right to do something, I do not need government approval in order to do it. You’re misunderstanding the power of registration. The government registers births and issues birth certificates; that doesn’t mean you need government approval to have a baby. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 8, 2008, 5:04am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/54 "2008-03-08T05:04:38Z")
> [@](#): > > I concur that the abuse of the ICC must stop. If your lamp is from Vermont and your couch is from Kentucky then the Feds can control what you do in your living room. Arguably true. But that train left the station over a hundred years ago and it’s not coming back. Both liberals and conservatives use the power of the ICC to support and advance their own agendas; the only time they denounce it is when the other side uses it. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [March 8, 2008, 5:13am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/55 "2008-03-08T05:13:57Z")
[QUOTE=Little Nemo] Arguably true. But that train left the station over a hundred years ago and it’s not coming back. Both liberals and conservatives use the power of the ICC to support and advance their own agendas; the only time they denounce it is when the other side uses it. [/QUOTE] Actually it is a result of Roosevelt’s court packing scheme in 1933 - only 75 years old ---
**Author:** ![ExTank](https://avatars.discourse-cdn.com/v4/letter/e/35a633/32.png) [@ExTank](https://boards.straightdope.com/u/ExTank)\ **Post date:** [March 8, 2008, 6:54am UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/56 "2008-03-08T06:54:47Z")
[QUOTE=Stealth Potato] **ExTank** is right. You’re not debating, you’re just repeating the same claim over and over again. Again, you’re simply wrong. “The rest” **does not** follow. Only you have made this claim, and you have thus far refused to support it with either reasoning or proof. Let me summarize the **facts** : 1. The second amendment 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.” (Add extra commas to taste.) 2. The SCOTUS ruled in _Miller_ that the intent of the second amendment (i.e., the purpose that is addressed by the prefatory clause), is to “render possible the effectiveness of” a militia. 3. The SCOTUS did not rule that “the People” in the declaration of the 2A refers to the militia, or to any other governmental organization. If you would like to challenge any of these facts, or explain to me the chain of your reasoning that draws from these facts or others a “government rights only” decision by the SCOTUS in _Miller_, please do so. Otherwise I am done arguing with you. [/QUOTE] I went round-and-round with both **Elvis** and **mintygreen** for 2-3 pages in The Pit about two years ago over _Miller_; over the course of the thread, I’d be willing to wager I c&p’d 80%+ of the text of _Miller_ straight off of FindLaw, and challenged them both to point out the relevant passage saying that the Militia is the National Guard, and _only_ the National Guard. I don’t dipute USC 311; the National Guard is the _organized_ militia of the United States (though _Perpich v. Dept. of Defense_ kinda puts that on shaky ground, but only vis-a-vis “The Militia/The People” aspect of the 2ad. argument). But USC 311, and _Miller,_ and The Federalists, and other documents and writings of the FF, don’t make the organized militia the _sole_ militia of the United States. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [March 8, 2008, 12:38pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/57 "2008-03-08T12:38:50Z")
Miller seems to be hugely misunderstood. That the second amendment protects an individual right is assumed. The issue in question was whether or not the particular weapon involved was protected by the second amendment by its usefulness as a military tool. Something to understand about Miller - the defense was not represented at all. The defendants were long gone and there was no lawyer to argue their case. So the prosecution, in a very lawyerly move, essentially says “this exact gun, model number XXXXX, has never been used in military service and therefore is not protected under the second amendment” and since there was no defense to oppose that and show that short barreled shotguns had indeed seen military use, the court seems to have ruled for the prosecution by default. Gun control advocates seem to hail Miller as a big victory, but I can’t understand why. If there was a defense to make the case that the weapon was indeed militarily useful, then the court would’ve ruled that it was indeed an infringement of second amendment rights. It also makes the case that the most militarily useful weapons - generally, among the ones that gun control advocates want to ban on the basis of them claiming they have no hunting/sporting usefulness, are the most protected weapons. By the logic of Miller, the fact that I practically can’t own an M16 is clearly in violation of my second amendment rights. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 8, 2008, 1:23pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/58 "2008-03-08T13:23:49Z")
[QUOTE=Little Nemo] You’re misunderstanding the power of registration. The government registers births and issues birth certificates; that doesn’t mean you need government approval to have a baby. [/QUOTE] But no reasonable person has any fear that the government with outlaw reproduction at any time in the future. People have a real fear of criminalization of guns in our lifetimes. Without registration, then it would be impossible to take guns away from people. Nobody knows if I own zero guns or a hundred, but enact a registration law, and now the government knows. It would be the first logical step to confiscation, and that is why pro-gun people fight registration so hard. If that was the end all of gun laws, then I don’t think anyone would complain about it.. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [March 8, 2008, 2:02pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/59 "2008-03-08T14:02:00Z")
[QUOTE=SenorBeef] It also makes the case that the most militarily useful weapons - generally, among the ones that gun control advocates want to ban on the basis of them claiming they have no hunting/sporting usefulness, are the most protected weapons. By the logic of Miller, the fact that I practically can’t own an M16 is clearly in violation of my second amendment rights. [/QUOTE] So it’s _not_ just me that sees it that way, then. (I admit, I just want a P90. (I’m gonna get me a PS90 one day. Yep.)) ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 8, 2008, 2:45pm UTC](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402/60 "2008-03-08T14:45:04Z")
[QUOTE=SenorBeef] Miller seems to be hugely misunderstood. [/quote] But by whom? > [@](#): > > That the second amendment protects an individual right is assumed. No, if it were then that would have been the end of the case right there. > [@](#): > > The issue in question was whether or not the particular weapon involved was protected by the second amendment by its usefulness as a military tool. It inevitably follows that if it weren’t, then it wasn’t protected, hmm? > [@](#): > > Something to understand about Miller - the defense was not represented at all. The defendants were long gone and there was no lawyer to argue their case. Somehow it never gets explained how that actually made any difference. Is that brought up only to show that the decision doesn’t actually constitute the law, or can be ignored or dismissed? You’ve done it here, perhaps you can explain why. > [@](#): > > By the logic of Miller, the fact that I practically can’t own an M16 is clearly in violation of my second amendment rights. Only if you’re a National Guard member, and your ownership of it is “well-regulated” by it. Are you and is it? **stealth potato** , horse, water, same as always for you. [Previous page](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402.md?page=2) [Next page](https://boards.straightdope.com/t/doesnt-the-2nd-amendment-technically-forbid-any-federal-gun-laws/440402.md?page=4)