High Court to rule on gun bans

Great Debates
121

[QUOTE=ElvisL1ves]

Only those owned by Guard members and intended for Guard use.

The unanimous Miller ruling, for reference: “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

Is the argument any different for Saturday Night Specials?
[/QUOTE]

I believe that Airman Doors already demonstrated above that militia and national guard are not the same. The militia is all those eligible to be in the guard, if I understand the statute correctly.

To cite the D.C. opinion:

122

[QUOTE=Shodan]
Enumeration of rights is one of the powers reserved to the states, or the people. The federal government may not do so - it has to be done thru Constitutional amendment, or legislative action. New rights discovered by the Supremes are not legitimate. New rights discovered by the people, are.

Regards,
Shodan
[/QUOTE]

Expand on this line of thinking, please. I see your point, and may (reluctantly) come around to your way of thinking on it. But I require to be convinced by reasonable argument. :slight_smile:

As things stand now, with the court rendering decisions on a case by case basis, what I see happening is: The court hears a case. A right is claimed, validly or bogusly. It reviews and compares that claim to what is guaranteed, sometimes in very general terms.

For example, in Loving v. Virginia, the court could have decided that equal protection required that members of interracial couples required to be treated equally with members of same-race couples in being granted or denied marriage licenses – and if the state was prepared to allow members of same-race couples to marry, it also needed to do so to members of interracial couples.

Instead, it looked over history and found that while governments claimed the right to regulate who might marry, they recognized an underlying right to contract marriage within those regulations. And hence it found marriage to be a fundamental right, presumably an unenumerated one protected by the Ninth Amendment, though they did not explicitly say so.

The court is on record as finding other such rights, such as the right to travel and to relocate one’s residence, and I believe what they have in common is that the conception of a free people ruled by law and not by an omnipotent ubergovernment would not hold up if they were (as a thought exercise) denied.

If you must get a permit from Homeland Security before going on a sales trip or vacation, if California may ban you from moving there because they are getting overpopulated, if you must justify to a government bureau that it is reasonable to permit you and your beloved to marry, we are no longer living in an America recognizable as the same free country to Americans of the past. Therefore, these are rights which Americans assume as a matter of course, though ones never enumerated. They are discovered by the test I just described when they are claimed as a part of a valid case or controversy.

I may be in error on this, but it seems to me to accurately describe the underlying process used by the Warren and Burger courts in “discovering” rights.

123

[QUOTE=ElvisL1ves]
Then tell us what it is. They’re both “arms”, right?

[/QUOTE]

I believe I made this clear somewhat earlier in the thread.

There are distinct categories of weapons. Ye Olde Nuclear Bomb is Ordnance, not Small Arms or Light Weapons. Small Arms, being the property of your average soldier, is most probably what is covered by the ‘right to bear arms’, whilst Light Weapons may not be, and Ordnance definitely is not. (I would suggest that it be possible for Light Weapons be owned by civilians under certain limitations. As it happens, I believe the Class III Firearms License covers it currently)

Simple, isn’t it?

124

[QUOTE=ElvisL1ves]

To your question: “Arms” are either for use by well-regulated militia (today, regular military via the Guard), or they are not. Tommy guns are not used by the militia however you wish to define the word, and neither are the sawed-off shotguns that the Supremes decided were therefore also bannable in Miller.

[/QUOTE]

The Tommy Gun and its descendants, the M3 ‘grease gun’ and M4 Carbine, are, in fact, quite useful for soldiers to carry. The shotgun was a very common weapon for base defense in the Vietnam War, and the military version of the Mossberg 500, the Mossberg 590, is very popular today.

Miller’s lack of defense allowed some erroneous statements to be made. That said, I seem to recall, but can not specifically cite, that there has been at least one case where Miller was cited, and then the note was made of the Vietnam use of shotguns as military weapons, and the point was allowed.

125

[QUOTE=ElvisL1ves]
Maybe not around the edges, and only until the arrival of an activist reacionary court determined to reverse the main holding, but yes, the main concept was that the right to bear covers only militia arms.
[/QUOTE]

You are talking about a case that had no opposition. Almost a Motion for a Default Judgement.

And an “activist reactionary court” should reverse that main holding, as it is erroneous on its face in response to the mountain of evidence that the founders never thought of a scenario where free people would be denied the use of arms.

As has been pointed out earlier, your definition of “well-regulated” is also erroneous.

Your definition of “militia” is similarly wrong.

And your whole contention that the qualifying statement limits a right of “the people” is also woefully wrong.

This sentence couldn’t be more twisted if you tried…

Whereas a simple statement such as “Congress shall make no law respecting an establishment of religion…”

Congress. Congress. Not the Florida Legislature. Not the local school board. But only Congress. Since you have twisted the first away, it is no surprise that the second can be molded to fit your agenda..

126

[QUOTE=Honesty]
In the 1930’s, Congress outlawed the sell of Tommy Guns. Why wasn’t that considered an infringement on the 2nd amendment?
[/QUOTE]

The National Firearms Act of 1934 required registration of certain classes of weapons and the payment of a $200 tax on them if you intended to transfer or keep them. The reason for this is plain: back then, $200 was a small fortune, and it would (theoretically) remove automatic weapons from the possession of the average civilian, thus making cities safer.

While it had the desired effect of removing automatic weapons as a threat, it did not have the desired effect on crime. Nor did the GCA of 1968 or the more recent ones in 1986 and 1993.

In fact, the biggest impact of the 1968 GCA for the average citizen is that companies cannot import weapons af a smaller caliber, as most .380 automatics do not qualify under the point system. How deliciously ironic: a gun control law causes people to carry BIGGER caliber guns, which are invariably more destructive when used in crimes.

However, none of those laws have caused a general decrease in crime, and in the case of the GCA of 1993 it focused almost entirely on cosmetic, and thus trivial, details.

The history of gun control in this country is steeped in racism, xenophobia, and the attempt to keep guns out of the hands of “undesirables”. It’s social engineering at its worst. The net effect is the disarming of innocents, making them nothing more than docile lambs to the slaughter at the hands of criminals, and I find that to be genuinely sad.

127

Y’know, we could argue semantics till the cows come home, but it doesn’t matter a whit what we think-what matters is what the Justices of the Supreme Court of the United States think. What I really want to know is, are you(no matter what you now believe) prepared to abide by whatever they decide, or are you “Law And Order” only when the law supports your beliefs?

Now, I am hoping that the Court decides not to make it a complete freedom to own whatever the hell you want without restriction, but I think I can adjust if it goes the other way.

What say you?

128

I will abide by the laws of the United States without reservation, but if they rule against me and my beliefs I will not stop trying to persuade them to agree with me sometime in the future.

That said, I don’t think that the Supreme Court will rule in favor of DC, just by reading the briefs. I suspect it will end up 5-4, if not even 6-3.

129

[QUOTE=Airman Doors, USAF]
I will abide by the laws of the United States without reservation, but if they rule against me and my beliefs I will not stop trying to persuade them to agree with me sometime in the future.
[/QUOTE]

Fair enough, and I would expect no less from you. I am worried about those who will use “Natural Law” as an excuse to disregard any decisions they might disagree with.

130

I’ve read one constitutional scholar who offered an unusual interpretation of the second amendment. He said that the right to bear arms meant that people had a right to serve in the military. It seems a unusual thing to have to guarantee but he pointed out that groups that were/are excluded from military service - blacks, Indians, women, immigrants, gays - also generally face other legal restrictions. He said that the collective right to vote and the collective right to serve enpowers a group and thereby guarantees them all of their other rights. Individuals that are barred from voting or military service are dependent on the good will of other people to give them the rights that they cannot secure through their own actions.

Admittedly, I don’t believe this line of reasoning has ever been presented in any major court cases. But I’ve always felt it was interesting and not easily dismissed.

131

[QUOTE=jtgain]
Whereas a simple statement such as “Congress shall make no law respecting an establishment of religion…”

Congress. Congress. Not the Florida Legislature. Not the local school board. But only Congress. Since you have twisted the first away, it is no surprise that the second can be molded to fit your agenda..
[/QUOTE]

I’m not going to take issue with your main premise in the post which the above quote concludes; I think you’re pretty close to on target in it.

However, let’s not play semantics about rights here. Yes, the First Amendment rights are guaranteed as against acts of Congress (not Acts of Congress, but any actions). Because the laws which the President and his Administration executes and on the basis of which the courts render judgments are, of necessity, passed by Congress, it’s generally asserted that the Federal Government may not establish a religion, infringe on its free exercise, unduly restrict speech or the press, etc.

And nobody is saying that the First Amendment, taken by itself, says anything more than that. Nobody who understands constitutional law, anyway.

The consensus of opinion, however, is that the First Amendment (and other sections of the constitution) guarantees rights of American citizens, which are among their “privileges and immunities” – and I will leave it to Bricker or Gfactor to explain how incorporation ties into due process and equal protection. But the basic point is that the Fourteenth Amendment recognizes all citizens of the states as citizens of the United States, and forbids the states from infringing on their rights as U.S. citizens – which may be found, ceteris paribus, in the Bill of Rights.

Because, for example, it does absolutely no good to say that the Feds. absolutely cannot restrict freedom of speech, and then turn around and say, “Well, yeah, but they can recommend that the States do, under penalty of this ‘n’ that, and the states sure can.” Or, how about if the FBI needs to get someone to confess to a crime, but is prohibited by the Fifth Amendment from forcing a confession. So they bring in Sheriff Buford T. Justice, and he forces the confession, which they then are free to use, because it was obtained by a local official not restricted by the Fifth.

“Congress shall make no law…” And the rights of citizens of the United States which Congress is prohibited from infringing on by that statement in the First Amendment, the individual states are prohibited from infringing on by Section One of the Fourteenth Amendment.

132

[QUOTE=Czarcasm]
Now, I am hoping that the Court decides not to make it a complete freedom to own whatever the hell you want without restriction, but I think I can adjust if it goes the other way.
[/QUOTE]

I missed this before. That is not what is at issue here. The DC ban is an administrative ban. They (apparently) give people the means to apply for permission and then they never, ever say yes. This is evident in that Heller was the only person with standing as he was the only person to actually apply. That makes it an actual ban, which is in the view of the appellate court illegal. It’s akin to requiring a permit to assemble and then refusing every application to do so for 30 years.

This is not about “complete freedom to own whatever the hell you want without restriction”. It is about circumventing a law by systematically denying access but claiming total compliance with said law. This is known as “may issue”, and that is what is at the heart of the matter. People want to exercise their rights, and got tired of banging their heads up against the wall so they took it to court. The people that need be concerned are the governments of states that have “may issue” or “no issue” policies, because those are in deep trouble if this goes through. They might actually have to honor the rights of their citizens for a change, God forbid.

133

[QUOTE=ElvisL1ves]
For citizens who are part of a well-regulated militia, yes. But militia is legally defined as either the Guard (well-regulated), or “unorganized” (therefore not well-regulated and therefore not covered), so no conflict exists.
[/QUOTE]

This is an unwarranted leap. Where do you get the idea that “unorganized” means “not well-regulated”? And even if we accept your peculiar definition, where is the restrictive text that explicitly redefines “The People”? Without that link, the prefatory clause of the Second Amendment is just that.

Also, I think you are misunderstanding United States v. Miller. The Court in Miller determined that a sawed-off shotgun was not protected because it was not a weapon of the sort that would be used in a militia. It said nothing about any requirement that the particular weapon be owned or used by any militia.

Of course, the Miller court was dead wrong in its statement that short-barreled shotguns were not of military use, but such was their decision.

[QUOTE=Czarcasm]
Y’know, we could argue semantics till the cows come home, but it doesn’t matter a whit what we think-what matters is what the Justices of the Supreme Court of the United States think. What I really want to know is, are you(no matter what you now believe) prepared to abide by whatever they decide, or are you “Law And Order” only when the law supports your beliefs?

Now, I am hoping that the Court decides not to make it a complete freedom to own whatever the hell you want without restriction, but I think I can adjust if it goes the other way.

What say you?
[/QUOTE]

Like Airman Doors, I intend to abide by the laws of my country and of my state, unless those laws should someday become such an affront to liberty that they can no longer be endured. Even without the Second Amendment, my individual right to keep and bear arms in my own defense is protected by my state’s constitution, and in any case, I have always felt that if there is to be any gun control at all, the federal government has no business in it.

I’m an atheist - I have no “Natural Law” to prop up the things I believe to be Right, and I need none. There are some freedoms that I believe in strongly, and that I will fight to uphold. The freedom to speak one’s mind and the freedom to be armed are among them.

134

[QUOTE=ElvisL1ves]

[QUOTE=Bobotheoptimist]
There’s quite a difference between a Beretta .25 that’s illegal in DC and a nuke.
[/QUOTE]
Then tell us what it is. They’re both “arms”, right?
[/QUOTE]
I think I understand now why some people are so terrified of firearms - they don’t know the difference between a WMD and a pistol.
E-Sabbath covered this, although I fully expect that you won’t be satisfied and will continue to ask this type of question.
Also, I don’t know how to bear a nuke.
[QUOTE=ElvisL1ves]

[QUOTE=Bobotheoptimist]
it’s so wildly far off topic that I can’t see how it matters
[/QUOTE]
No ducking allowed. To the contrary; it’s the heart of the topic. Are you a Second Amendment (Second Half Only) absolutist or aren’t you? If not, why not, and where do you draw the line and why? If it’s at “reasonable” control, then how should “reasonability” be defined and implemented, if not through the political lawmaking process?
[/QUOTE]
Washington DC refusing to allow private citizens in the city to own an operational handgun is the heart of the topic, not private ownership of nuclear weapons.
If I were a Second Amendment absolutist it would be the entire Second, not just the second half of the Second. As has been repeatedly explained - the second part can stand alone, but the first part explains why the second part is important. It doesn’t limit the amendment to military arms but does seem likely to include them.
Do you, ElvisL1ves, feel that swords should be banned in DC? Staves? Pointed sticks? Crossbows?
Your phrasing of the reasonability question causes me to suspect that you assume the gun rights crowd does not believe in the political lawmaking process. As written, it’s unanswerable.
How do you believe guns should be controlled, if not through the lawmaking process?
Also, I intend to abide by the handgun laws of Washington DC if I ever find myself subject to them.

135

[QUOTE=Richard Parker]
I believe that Airman Doors already demonstrated above that militia and national guard are not the same. The militia is all those eligible to be in the guard, if I understand the statute correctly.
[/QUOTE]
Already explained above. The statute itself divides “militia” into (A) the National Guard, and (B) the “*unorganized * militia”.

Unless somebody can explain how something that isn’t even organized can still be “well-regulated”, I believe the point stands. jtagain, perhaps you can give it a try. Perhaps you can start by showing how many mailes 17-45 even *know * they’re in a militia of some kind, before getting into how well-regulated they consider themselves as its members. Don’t be silly.
bobtheoptimist, to repeat, no ducking, and to add, no claiming you were joking. Do you or do you not accept that a line can be drawn, and if so, where? :dubious: Obviously I do, and accept that it’s up to the competent legislative authorities to do so on the basis of their best judgment as part of the political process.

Probably. IYHO, that is. OK. :shrug: As **Czarcasm ** has reiterated, yours isn’t the opinion that counts, nor is mine. That’s why we have a Supreme Court.

136

[QUOTE=Czarcasm]
Fair enough, and I would expect no less from you. I am worried about those who will use “Natural Law” as an excuse to disregard any decisions they might disagree with.
[/QUOTE]

When a law is morally wrong I feel no compulsion to obey it. Back during the slave-era, would you have returned escaped slaves to their owners because it was what the law said you should do?

137

[QUOTE=Bobotheoptimist]

Also, I don’t know how to bear a nuke.
[/QUOTE]

When a mommy and daddy nuke love each other very much…

138

Elvis, no, that’s how the Court approaches it. Remember Miller? The Court decides that since shotguns were not weapons appropriate to a soldier, they did not count. Now, due to lack of a defense, the decision was wrong, but the logic behind it was solid and correct: the question was if the shotgun was a Small Arm.

As for unorganized and well-regulated? Well, my trap club counts, more or less, as an unorganized (by the state) milita: a bunch of people getting together to shoot things. However, we have our own charter and by-laws, and we follow appropriate safety instructions, and have our own drill and appropriate measures.

Other ‘unorganized’ but well-regulated things: The NFL. Professional Baseball, Soccer, and NASCAR. Their organization comes from within.

Remember, this was written back when people would raise companies by themselves, arm 'em, pay for 'em, and join up as the LTs. How do you think Teddy got his company for charging up San Juan Hill?

Fun Fact: New York State has an official milita. The NY Guard. The NY Guard is not the National Guard, and has its own air force and navy. Where does that stand in your perspective on things? Do you consider them not ‘well-regulated’? They train as hard as the National Guard does.

139

Professional sports leagues are “unorganized”? Maybe in the Queen of Hearts’ world.

Even using your own inverted definitions, though, you’re still avoiding the closing of the loop. Nonmilitia weapons simply aren’t covered by the Second, according to Miller, by any definition, either historical or modern, of militia or regulation.

The same question goes to you that went to our friend jtgain - how would Miller’s lawyer, if one had been present, have argued the case so that the Court would reach the opposite conclusion? A good refresher on the ruling for y’all.

140

[QUOTE=ElvisL1ves]
bobtheoptimist, to repeat, no ducking, and to add, no claiming you were joking. Do you or do you not accept that a line can be drawn, and if so, where? :dubious:
[/QUOTE]
You like that :dubious:, don’t you? I feel humbled and scared by each repeated use. :rolleyes: I will include many smilies from here on out, hoping that maybe the little faces will get through where words have thus far failed. :wink:

Bringing nukes into this is, imho, very much like asking if the Second Amendment covers watercraft. Do we have a right to own a boat because floating things are used to fight wars? :dubious:

A line cannot be drawn between handguns and nukes because they are not on the same plane. They are as incomparable as fighter jets and cans of diet soda that both contain aluminum, while both firearms and A-bombs can kill a person, but otherwise have nothing in common. :dubious: The closest I can get to answering whatever it is you’re trying to ask is - I do not think there is a right for nations to own nukes, much less individuals. But this has absolutely nothing to do with the Second Amendment. :mad:

So, now you are obliged to explain why you are pushing this so hard. Are you trying to go the “if it’s ok to ban nukes, it must be ok to ban .22’s” or is it some imagined hypocrisy that you believe exposing will help you finally make a point? :rolleyes: