Doesn't the 2nd Amendment technically forbid ANY federal gun laws?

Great Debates
221

[QUOTE=Algher]
I could see an ANTI-gun state having to go down this path:

  1. The only allowed guns are those with militia usage. They MIGHT try to play with this to limit the list, but I don’t see it working well for them.

  2. To possess a firearm you must register with a recognized militia group. The group must have a standard meeting and training regimine to ensure that they are truly well-regulated. Membership would be limited based on felony records, mental health, etc. However, ADA considerations would still apply! They might try to force it to be a state militia only, not sure though.

  3. You might be asked to come out once per year to show your skill level. Some places do that with concealed carry - you have to put a few rounds onto the target each year to keep your license current. You would be qualified with certain weapons, and you are only allowed to own those particular weapons.
    [/QUOTE]
    I’m pro-gun and I actually wouldn’t mind seeing that. The requirement to demonstrate that you can actually hit a man-sized target at a reasonable distance is pretty much what most carry permit laws specify already. And I wouldn’t care if derringers or zip-gun like contraptions like one-shot .22s were illegal, provided that as a member of my local militia in good standing, I was permitted to keep my assault rifle, submachine gun, sniper rifle, military grade shotgun or service sidearm loaded and ready in my home in a regulation gun locker.

Regarding “assault weapons”: while I agree it’s a slanted term made up to demonize some types of guns, I came across a working definition that at least lets you agree on what they are talking about. An “assault weapon” is a firearm possessing “militarized” features that supposedly enhance it’s lethality to a degree that makes it inappropriate for civilian use*. These include, but are not limited to, high capacity magazines, pistol grip or folding butt stock, semi-automatic versions of full-auto guns with the potential for illegal conversion, bayonet lugs**, flash suppressors, high-caliber weapons, etc.

*of course then in the same breath gun opponents claim that handguns should be banned too, because they’re “easily concealable” and “the weapon of choice for criminals”. :rolleyes:

**You have a loaded gun and someone’s worried because you have a knife on the end of your gun?? :rolleyes:

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Thank you. Yes, I was speculating based on what follows consistently if they take those positions as it seems they will. Sorry for my misunderstanding well regulated.

Given that even “many gun advocates are uncomfortable with what the second amendment truly means” what do you think would result from a series of consistent rulings in that line of interpretation in other cases with broader applicability?

223

[QUOTE=Lumpy]

Regarding “assault weapons”: while I agree it’s a slanted term made up to demonize some types of guns, I came across a working definition that at least lets you agree on what they are talking about. An “assault weapon” is a firearm possessing “militarized” features that supposedly enhance it’s lethality to a degree that makes it inappropriate for civilian use*. These include, but are not limited to, high capacity magazines

[/quote]

That’s a functional characteristic - however, there are plenty of non-“assault weapon” guns that have large capacity magazines made for them. Any gun that accepts a detachable magazine can accept any size magazine you make for it. The gun doesn’t “care” if the magazine is 5 rounds or 50.

These are pretty cosmetic.

Prior to the assault weapons ban, there were laws, or at least ATF policies, that civilian versions of military rifles be manufactured or modified in such a way as to not allow them to be converted into fully automatic weapons. The media likes to give the impression that you just need to drop a little piece in to make a semi-auto rifle into a fully automatic one, but it’s not true - the receivers are crippled so that it isn’t possible.

We’re all in agreement that this is pretty silly, right?

I want to note that contrary to popular conception, this doesn’t mean that the flash is hidden from your target - that’s impossible. Flash hiders try to reduce the amount of light that reaches the shooter, so that if you’re shooting at night you don’t go blind as quickly. It’s not as sinister as it sounds.

Military weapons range from the same caliber as common hunting weapons to much smaller. You often hear the phrase “high power assault rifle” but it’s utter nonsense. Assault rifles are designed to be much lower power than a typical rifle round. In terms of ballistic lethality, most hunting rifles are far more dangerous than any assault rifle.

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[QUOTE=SenorBeef]
Essentially, yes. Even many gun advocates are uncomfortable with what the second amendment truly means.
[/QUOTE]

I’m not. Military-style weapons have a comparatively low incidence of use in crime, and the use of registered fully-automatic weapons in crime was almost unheard of, even before the ban on civilian transfer of automatic weapons manufactured after 1986. I would even argue for the relaxation of the federal registration requirement, but at the least, removing the ban on post-'86 full autos isn’t going to have any significant effect on crime; history alone proves that. :smack:

[QUOTE=Lumpy]
Regarding “assault weapons”: while I agree it’s a slanted term made up to demonize some types of guns, I came across a working definition that at least lets you agree on what they are talking about. An “assault weapon” is a firearm possessing “militarized” features that supposedly enhance it’s lethality to a degree that makes it inappropriate for civilian use*.
[/quote]

It’s a very slanted term, and it misses the point entirely because “inappropriate for civilian use” is a mythical idea. Military use is a legitimate civilian use.

Hey, gotta do something about all those drive-by bayonettings. :smiley:

225

[QUOTE=Stealth Potato]
It’s a very slanted term, and it misses the point entirely because “inappropriate for civilian use” is a mythical idea. Military use is a legitimate civilian use.
[/QUOTE]
Hey, no argument from me, I was just trying to define what the anti-gun crowd means by “assault weapon”.

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I know what you meant; sorry if it sounded like I was griping at you. :slight_smile:

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[QUOTE=Lumpy]
Hey, no argument from me, I was just trying to define what the anti-gun crowd means by “assault weapon”.
[/QUOTE]

But in the process, you missed the point.

Your point is essentially “the media wants to make people think that scary-looking rifles are actually the full-auto capable military version of those rifles, but it’s okay, they’re not, they actually work just like common socially acceptable rifles” - which is a true and valid point when discussing assault weapons bans and the media/gun control advocate deception around them.

In your point, there’s the implicit agreement that real military weapons are bad, but it’s okay because “assault weapons” aren’t the same thing.

But what we’re discussing now is that the second amendment first and foremost protects those military weapons. We shouldn’t be meekly saying “It’s okay, they only look like those guns”, we should be saying “those guns are the most protected of any”.

228

[QUOTE=SenorBeef]
Military weapons range from the same caliber as common hunting weapons to much smaller.
[/QUOTE]
You’re excluding from this such things as the Barrett “Light Fifty”? Wouldn’t / shouldn’t such exclusively military-use weapons be included?

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Do you predict that the court will indeed rule in that way and then rule consistently with that in the future - i.e. in a manner that protects the individual right to own military-use weapons most of any?

If so what impact do you think it will have?

230

[QUOTE=Apollyon]
You’re excluding from this such things as the Barrett “Light Fifty”? Wouldn’t / shouldn’t such exclusively military-use weapons be included?
[/QUOTE]

That’s true. Yes, I don’t see why that wouldn’t be protected - I also wouldn’t call it exclusively military use. Marksmanship competitions often use that type of rifle.

Mostly I was dispelling the idea that “military” implies “powerful” in terms of rifles. A lot of people think that assault rifles are these especially powerful weapons when they’re really not.

No, to be honest, I think they’ll be too chickenshit to do anything like that. They’ll come up with some “it’s an individual right, but it’s subject to governmental restrictions” thing that might strike down the most egregious bans like DC and Chicago but mostly leave the status quo.

At the very least, though, if they don’t repeal the NFA '34 I’d hope they’d repeal the amendment to the FOPA '86 that bans manufacture/conversion/importation of fully automatic weapons. They were never any sort of threat whatsoever - hundreds of thousands of legally owned fully automatic weapons over a span of 70+ years and NONE WERE EVER USED IN A CRIME. The MG ban is a prime example of gun control in all its glory.

231

[QUOTE=SenorBeef]
But in the process, you missed the point.

Your point is essentially “the media wants to make people think that scary-looking rifles are actually the full-auto capable military version of those rifles, but it’s okay, they’re not, they actually work just like common socially acceptable rifles” - which is a true and valid point when discussing assault weapons bans and the media/gun control advocate deception around them.

In your point, there’s the implicit agreement that real military weapons are bad, but it’s okay because “assault weapons” aren’t the same thing.

But what we’re discussing now is that the second amendment first and foremost protects those military weapons. We shouldn’t be meekly saying “It’s okay, they only look like those guns”, we should be saying “those guns are the most protected of any”.
[/QUOTE]
I fully agree with you, as I’d hoped my posts made clear. I was merely trying to describe what rationale (in their own minds anyway) the anti-gun crowd is going by when they rant about “assault weapons”. I would hope that in a discussion of Naziism one could describe the mindset that led the Nazis to persecute and exterminate the Jews without there being any question of actuallly subscribing to that mindset.

232

Do you get extra points for Godwinizing with no one even debating you? :slight_smile:

SenorBeef I suppose they can do whatever they want, but how do they justify it in a logically consistent manner? Or do they not care?

233

[QUOTE=SenorBeef]
No, to be honest, I think they’ll be too chickenshit to do anything like that. They’ll come up with some “it’s an individual right, but it’s subject to governmental restrictions” thing that might strike down the most egregious bans like DC and Chicago but mostly leave the status quo.
[/quote]
Why would that be a “chickenshit” ruling? Almost every right in the Bill of Rights is “an individual right, but it’s subject to governmental restrictions”. You can’t scream “fire” in a crowded theater or slander someone, you can’t smoke peyote, even as a religious sacrament, you can be searched in exigent circumstances. Every right is subject to governmental regulation.

What I think you would be frustrated by, and correct me if I’m wrong, is if the level of scrutiny (and amount of lack of deference to the legislature) the courts give the right. If the court rules regulations only need to be “rational” or “reasonable” or if they defer to legislative findings about handguns being too easily concealed and to often used in crime, you’ll be upset. But if they apply the highest level of scrutiny and seriously question the reasons for the ban, you’ll be happy.

234

[QUOTE=DSeid]

SenorBeef I suppose they can do whatever they want, but how do they justify it in a logically consistent manner? Or do they not care?
[/QUOTE]

Possibly along these lines:

Essentially, “they’re highly regulated and partially banned, and therefore aren’t in common use, and because they’re not in common use, they’re not protected by the second amendment” - obvious bullshit.

[QUOTE=Hamlet]
Why would that be a “chickenshit” ruling? Almost every right in the Bill of Rights is “an individual right, but it’s subject to governmental restrictions”. You can’t scream “fire” in a crowded theater or slander someone, you can’t smoke peyote, even as a religious sacrament, you can be searched in exigent circumstances. Every right is subject to governmental regulation.

[/quote]

I don’t think banning certain classes of arms is equivelant to banning slander. The law against slander is a law against commiting a crime - you can’t use your freedom of speech as a free pass to commit that crime.

Holding up a liquor store with a gun is a crime, you can’t use the right to bear arms as a free pass to commit that crime.

Banning certain classes of firearms would be more analogous to saying “you can hand-write political tracts, but you can’t produce them with a printing press” or “you can own books, but not newspapers”.

As to why I said it was a chickenshit ruling - as we’ve been discussing recently in the thread, it seems clear to me that if the second amendment protects any right at all, it’s the right to own the common infantry rifle of the day. If they pass a ruling that contradicts that, they’re trading the intent of the constitution for political expediency.

This is definitely a factor. A “reasonable” scrutiny against a constitutional right is woefully insufficient. And I’m guessing a bit of a misnomer - there will be all sorts of illogical and/or ineffective gun laws that will pass the “reasonable test” of a lot of courts.

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[QUOTE=SenorBeef]
I don’t think banning certain classes of arms is equivelant to banning slander. The law against slander is a law against commiting a crime - you can’t use your freedom of speech as a free pass to commit that crime.
[/quote]
Nor can you use your freedom to keep and bear arms to commit the crime of possession of weapon. The rights protected in the Constitution are not absolute.

Someone read the oral argument transcript. I, personally, think the question is a complete non-sequitor (a very cute non sequitor, though). The issue is whether or an infringment, whether done by a class of weapons or class of speech is reasonable (or whatever level of scrutiny). Scalia, in his question, and you by repeating, are changing the test from the reasonableness of the governmental action to one of HOW the action is taken. It’s like banning speech that fits the definition of “slander” or “child pornography” (which is an entire class of speech just like handguns are an entire class of “arms”). Or banning people from owning thermonuclear weapons. That’s a ban on a complete class of arms.

And, as I said, I believe your assertion that the “intent of the Constitution” of the Second Amendment is anywhere near settled, nor can it be. Heck, if you want to stick to the 1791, the right should incorporate only arms existing them, such as muskets.

Why? Why should the right to have weapons for self defense be subject to more scrutiny than that of having sex with another consenting adult in the privacy of your own home. Or why should arms be considered higher than the right to property? And, given the clear language of a limited purpose in the Second Amendment, how can the right be subject to heightened scrutiny.

Every state that has considered the right to bear arms under their own constitutions apply the reasonableness standard. "Every state, without exception, applies the same standard of review, requiring only that laws be reasonable regulations of the right. From one of the Amicus Curiae Briefs.

Just as they have for decades in State Courts.

Don’t get me wrong, I’m not a fan of the levels of scrutiny, etc. that SCOTUS has used to make determinations such as this. But I would find it amusing if Justices like Scalia, Alito, or Thomas granted heightened review.

236

[QUOTE=Hamlet]
Nor can you use your freedom to keep and bear arms to commit the crime of possession of weapon. The rights protected in the Constitution are not absolute.

[/quote]

The analogies are certainly imperfect.

If they banned newspapers, then you could say that it’s not a violation of the first amendment right because possessing a newspaper was a crime.

My attempt at explanation may have been flawed. Slander and yelling “fire!” in a crowded theater aren’t protected by the first amendment in part because they’re harmful acts - acts inflicted upon others. The mere act of owning an assault rifle does not harm anyone, so it’s not equivelant to slander. Using the gun to harm someone wouldn’t be protected under the second amendment in a way similar to using speech to slander isn’t protected under the first.

That’s also an imperfect explanation, but you at least get my meaning I hope.

I don’t believe “class of weapons” or “class of speech” to be equivelant in the way you’re asserting. Simply owning a certain type of weapon is not a harmful act in the way that certain classes of speech (slander, child porn) are. The analogy is flawed because slander and child porn are a use of speech whereas a class of weapons are simply physical objects. Slander and child porn are inherently harmful. Assault rifle ownership is not.

A more apt, but still flawed example, would be banning newspapers but allowing books. Either can be used for slander or child porn, but the object and type of medium are not inherently harmful.

Only if protections for freedom of speech only cover existing communications media at the time.

I can’t defend that position because I don’t believe it - the government has no business regulating such a thing and so the highest scrutiny should be used.

I’m not legally knowledgable enough to understand the full implications of the question to answer it.

“Clear language of a limited purpose” is still up for debate - the decision of the court may touch upon this.

To be honest, I’m not legally knowledgable enough to make competant arguments as to the validity of various scrutiny methods. I only possess a general belief that when it comes to restricting or curtailing individual rights, the government should have high requirements of scrutiny and should tailor the laws as narrowly as possible.

237

[QUOTE=SenorBeef]
The analogies are certainly imperfect.

If they banned newspapers, then you could say that it’s not a violation of the first amendment right because possessing a newspaper was a crime.

My attempt at explanation may have been flawed. Slander and yelling “fire!” in a crowded theater aren’t protected by the first amendment in part because they’re harmful acts - acts inflicted upon others. The mere act of owning an assault rifle does not harm anyone, so it’s not equivelant to slander. Using the gun to harm someone wouldn’t be protected under the second amendment in a way similar to using speech to slander isn’t protected under the first.
[/quote]
If you wish to argue the “victimless crime” aspect of possession of a weapon, have at it. I, personally, don’t buy it, and it has little to do with the Constitutionality of the statute. Knowing possession of certain drugs, certain explosive devices, certain chemicals, possession of alcohol as a minor, heck, even certain kinds of speech (child porn) are illegal. And Constitutional.

Again, if you wish to make that argument, have at it. But it is, to my mind, more of a policy argument than a Constitutional argument. Although there is certainly room to debate.

My point was the entire argument of banning by classification is a red herring. Many bans, from child porn to drugs, to types of speech, are based on classifications.

Which is why I disagree with extremely strict original intent.

But the Justices who seem to be leaning toward overruling the ban certainly do.

My point is that, in most cases, the right to ownership of property (including guns) is subject to the lowest level of scrutiny.

It is certainly up for debate. Which is why we’re here. Of course, I’m right, but … :stuck_out_tongue:

I tend to agree with you. As I said, I’m not a fan of the level of scrutiny analysis, but it’s what the Court has done in the past. I tend to think rational basis with bite is a nice catch all, but I also think certain rights, and certain laws, should be subject to higher scrutiny. But I don’t think the right to keep and bear arms in self defense is necessarily one of them.

238

[QUOTE=Hamlet]
Nor can you use your freedom to keep and bear arms to commit the crime of possession of weapon. The rights protected in the Constitution are not absolute.
[/quote]

Hwwwwwaaaahhh? I’m sorry, that just about made my brain explode. :dubious:

No, child pornography is not a “class” of speech; it is a specific act (with actual victims) that may be carried out through channels of communication.

Thermonuclear weapons are not “arms,” except in the most vague sense possible. They certainly do not fall into the protected class established in Miller.

Simply put, there should be no disparity of scrutiny. All these things are rights of the individual that the federal government has no authority to regulate. Ideally, this discussion of levels of scrutiny would be meaningless.

[QUOTE=Hamlet]
Knowing possession of certain drugs, certain explosive devices, certain chemicals, possession of alcohol as a minor, heck, even certain kinds of speech (child porn) are illegal. And Constitutional.
[/quote]

No, federal laws prohibiting such things are not Constitutional. Where exactly in the Constitution is the federal government granted authority to regulate private possession of drugs? (Yeah, I already know the “justification”: the commerce clause. Somehow I don’t buy that laws using a power to regulate commerce as a justification for criminalizing private acts of individuals should have ever passed Constitutional muster.)

239

[QUOTE=Apollyon]
You’re excluding from this such things as the Barrett “Light Fifty”? Wouldn’t / shouldn’t such exclusively military-use weapons be included?
[/QUOTE]

Big Bore rifles were mostly used for big-game hunting, and then evolved into military applications. Early man-portable anti-tank rifles were in the .50 cal range, and some were as high as 20mm.

They still have sport/game applications (not the Lahti!), albeit more often in places like Africa than North America.

240

A small nitpick. The interpretation of original intent being hinted at implies a high level of protection for individual weapon ownership in a manner that facilitates the formation of ad hoc militias, as a protection from tyranny. It, if applied consistently, actually undercuts the level protection to weapon ownership in a manner that facilitates personal protection. Or hunting. Other than in so far as such overlaps with providing for the ability to form effective ad hoc militias to combat governmental tyranny.

If applied consistently.