Certainly people have fought laws concerning firearms, but has anyone ever tried to claim that their possession of, I don’t know, a pipe bomb was legal under the 2nd Amendment?
I’ve often wondered if the laws against carrying certain knives or various martial arts weapons like throwing stars is Constitutional. The second Amendment says “arms” not “guns”.
I-Am-Not-A-Lawyer, but a partial answer is that US law defines some kinds of weapons as “destructive devices” which are broadly prohibited and not protected under the 2d amendment. I believe that the jurisprudence idea is that these are weapons with no reasonable practical application for personal ownership, that they are exclusively useful for causing devastation. These laws come directly from the kind of legal argument you mention - “the 2A means I can own a rocket launcher!” Maybe on the face of it, which is why the need to create a separate legal category for such weapons.
Obviously the practical distinction is perhaps unclear when you can buy a perfectly legal firearm that can kill as efficiently as any hand grenade, but that’s the legal idea anyway.
In acrimonious conversations with rabid fervent 2nd Amendment supporters, I’ve found myself wondering why it can’t be interpreted to mean I’m entitled to my own nuclear warhead arsenal if I purchase / develop it and ensconce it in my basement. If not, why no infringements on the right to tote around assault-level firearms? Why one and not the other, if it’s to be enshrined as an absolute right?
ETA: didn’t see previous post
The military seems to think they have practical application, and at least one point of the 2A is to ensure that the people have access to weapons capable of defending the security of a free state.
Arms are exclusively for destroying lives, and destructive devices destroy property. If you’re familiar with American society and values, then you shouldn’t have any confusion about why the former is broadly permitted while the latter is broadly prohibited.
1, my phrasing included “for personal ownership” which distinguishes from military application. 2, I am speaking strictly as a matter of law, which we all know is a bizarre parallel otherworld removed from normal logical considerations. Whether or not your analysis is correct, the courts have decided that some categories of weapon (however ill-defined) are not protected, which is the factual answer to the OP question.
No confusion at all here, and no disagreement either. I was just providing the factual answer to the asked question as I understand it.
In fact, in 2009, the 9th Circuit rejected the claim that the possession of a pipe bomb was protected by the Second Amendment. United States v. Tagg, 572 F.3d 1320. The court concluded that pipe bombs “are not typically possessed by law-abiding citizens for lawful purpose.” Court appear to routinely apply that formulation in analyzing Second Amendment claims post-Heller to determine whether something is a protected “arm” for Second Amendment purposes.
There are a number of state court decisions that address bans on carrying knives, etc., under the Second Amendment and/or state constitutional provisions. It’s not new (in 1984, the Oregon Supreme Court found that the state’s ban on the possession of switchblade knives violated the state constitution’s right to bear arms) and it has come to varying results; often fact-specific.
Post-Heller, in 2014, the Connecticut Supreme Court held that a ban on transporting “dirk knives” and police batons in a vehicle violated the Second Amendment (applying the same “typically possessed by law-abiding citizens for lawful purposes” analysis from Heller). State v. DeCiccio. The court has a pretty exhaustive analysis of historic cutlery law. In 2012, a California appellate court concluded that a ban on concealing a dirk knife was constitutional post-Heller. People v. Mitchell. (I don’t read Mitchell to hold that dirk knives aren’t “protected arms” under Heller, but rather that the state had a sufficient interest in regulating concealed carry as a public safety issue).
You’d most likely fall afoul of various laws on the safe storage and handling of radioactive materials, completely aside from the weapons issues.
I’d be really interested to see what would happen if there were a way to mine law enforcement databases for all known discharges of a given weapon type (say AR-15), and tally up which were ultimately found to be for a lawful purpose, and use that as the basis of a Heller challenge. It’s more of a thought experiment, I realize that under this SCOTUS it’s a pipe dream that it would get a reasoned hearing.
This is in danger of heading into Great Debates territory, but Falchion mostly answered my question. Do you know if SCOTUS denied cert on that case?
I think that the flaw in the thought experiment is that “lawful purpose” isn’t going to be limited to the type of use that would involve law enforcement. That is, it isn’t going to be a comparison between criminal and self-defense uses.
There are supposed to be something like 20 million AR-15s in the US (to use your example). Unlawful discharges can’t possibly account for even a tiny percentage of total discharges. For the argument to even potentially work, it would have to be a pretty rare item. Which would, itself, support a “not typically possessed” argument.
It does not look like cert was sought. I could imagine a different outcome for other explosive devices, but I don’t see how pipe bombs would ever qualify.
What were the bounds of possession laid out by Heller?
Seems I read somewhere that “arms” is/was defined as the weapons typically carried by someone serving in the Army in a ground combat role (e.g. infantry).
If someone is going to try that route it would seem more plausible try it on with some more obviously military equipment. I mean there are military uses for explosives, obviously, but it seems less compelling to say a “well regulated militia” should need a big stash of pipe bombs, than say a heavy machine gun or a mortar.
Moderator Note
Please keep this type of commentary out of FQ. Feel free to post it in other forums, but stick to the facts in FQ.
I don’t know what you’re asking. Heller is viewed as posing a two-part analysis: (1) Is the conduct within the protection of the Second Amendment and (2) if it is, does the regulation at issue pass muster under some sort of means-end analysis. The Heller analysis isn’t unfamiliar. A lot of constitutional analysis goes: (1) is the conduct protected at all and, if so, (2) does the restriction pass muster. Arguably Bruen changed the second part to something more like: is this regulation consistent with the historical tradition of regulation.
Heller seems to tell us (somewhat vaguely) that conduct within the scope of the Second Amendment is possessing weapons “typically possessed by law-abiding citizens for lawful purposes.” It’s been up to the lower courts to figure out what that means (and we’re going to go through it again post-Bruen).
The 2nd Amendment does not specify weapon types. Back in those days, you were allowed to own anything. Contrary to Biden’s frequent assertion otherwise, if you wanted to own a cannon, you could own a cannon. In fact, you still can own a cannon - they are perfectly legal, as long as you don’t fire explosive shells as explosive shell are considered to be a “destructive device”. If you wanted to own a Revolutionary War era “battleship”, you could. Countries would often hire private fighting ships (google “privateer” if you need details).
Many of the modern restrictions come from the National Firearms Act (NFA) of 1934, and the subsequent tweaks to these rules made by the Omnibus Crime Control and Safe Streets Act of 1968, and the Gun Control Act of 1968. This is where the legal term “destructive devices” was originally defined and regulated. Weapons that could be easily concealed were originally intended to be part of the NFA, but there was a lot of pushback regarding pistols. Nobody really cared much about short barreled rifles as they weren’t being manufactured in significant numbers, so they weren’t removed from the NFA, leading to the rather silly result that short barreled rifles are regulated because they are easily concealable, but pistols (which are shorter and more easily concealed) are not. Machine guns and silencers were also regulated under the NFA, along with a broad category of “any other weapon”, which includes things like pen guns or guns concealed in a walking cane.
The Firearm Owners Protection Act of 1986 further restricted machine guns. Now, instead of just being taxed and regulated, “new” machine guns were completely prohibited. You can still own a machine gun made prior to 1968 (which is still regulated under the NFA) but a private citizen is not allowed to own a machine gun that was not manufactured and registered prior to 1986.
Assault weapons (and by this I mean real assault weapons, not things like the modern civilian AR-15 which is most definitely NOT an assault weapon, no matter what some folks insist on calling it) are covered under the 1986 law. You cannot legally own an assault rifle that was manufactured after 1986.
Unless someone mounts a successful Constitutional objection to these laws and regulations (not likely, IMHO), the vague and non-specific nature of the 2nd Amendment is kinda meaningless. The NFA etc. make it very clear that the ownership of things like nuclear warheads and assault rifles is absolutely not an absolute right under the 2nd Amendment.
What makes an AR-15 not an assault weapon?
The definition of an assault weapon is fairly nebulous.
Some define it as the type of weapon you would use to assault a location. Others narrowly define it as a fully automatic weapon.
That people use guns like an AR-15 to assault locations like schools, offices, concerts, or homes doesn’t seem to sway the second camp at all.